Factual and Procedural Background
These are four appeals by way of case stated concerning the law relating to weights and measures, specifically municipal legislation implementing the European Union's policy to introduce compulsory metric weights and measures in Member States. The appellants challenge the validity of subordinate legislation made under this policy.
The first appellant, Plaintiff A, a greengrocer, used weighing machines calibrated in imperial units and was prosecuted after refusing to comply with a notice requiring metric calibration. His trial took place before District Judge Morgan, who convicted him.
The second appellant, Plaintiff B, sold fruit and vegetables using metric scales but displayed prices in imperial units. He faced charges of failing to display unit prices per kilogram and delivering underweight goods, which were argued to be innocent calculation errors. District Judge Baldwin convicted him but made concurrent orders of conditional discharge.
The third and fourth appellants, Plaintiffs C and D, sold goods priced only in imperial units and faced charges under the Price Marking legislation and the Weights and Measures Act 1985. They were convicted by a bench of lay justices.
The fifth appellant, Plaintiff E, held a street trading licence with conditions requiring metric-only sales and scales. He appealed these conditions on grounds including Article 10 of the European Convention on Human Rights, but the magistrates dismissed his appeal.
The appeals challenge the validity of four subordinate instruments: the 1994 Amendment Order, the 1994 Regulations, the Weights and Measures (Metrication Amendments) Regulations 1994, and the Price Marking Order 1999.
Legal Issues Presented
- Whether the subordinate legislation implementing the EU metrication policy, including the 1994 Amendment Order, 1994 Regulations, Metrication Amendments Regulations 1994, and Price Marking Order 1999, are lawful and valid.
- Whether the doctrine of implied repeal invalidates the subordinate legislation amending the Weights and Measures Act 1985, particularly regarding the continued use of imperial measures.
- Whether the Henry VIII powers conferred by the European Communities Act 1972 may be used to amend primary legislation, including statutes enacted after the Act.
- The constitutional status of the European Communities Act 1972 and whether it can be impliedly repealed.
- The relationship between EU law supremacy and UK parliamentary sovereignty, including the extent to which EU law can entrench itself within UK law.
- Whether the prosecutions constituted an abuse of process in light of the appellants’ compliance efforts.
- Whether the prohibition on imperial measures infringes Article 10 of the European Convention on Human Rights.
Arguments of the Parties
Appellants' Arguments
- The subordinate legislation implementing metrication is invalid as it exceeds the powers granted under the European Communities Act 1972 and the Weights and Measures Act 1985.
- The doctrine of implied repeal applies, rendering the 1994 Regulations and related instruments unlawful because they conflict with the original provisions of the 1985 Act preserving imperial measures.
- Henry VIII powers cannot lawfully be used to amend future legislation not yet enacted at the time the powers were granted.
- The prosecutions for using imperial measures or failing to comply with metrication regulations are unlawful or amount to an abuse of process, particularly where appellants took steps to comply.
- The prohibition on imperial measures restricts freedom of expression under Article 10 of the European Convention on Human Rights.
Respondents' Arguments
- The European Communities Act 1972 validly incorporates EU law, including subordinate legislation made under its Henry VIII powers, which may amend both existing and future primary legislation.
- There is no inconsistency between the 1985 Act and the European Communities Act 1972 powers; hence, no implied repeal arises.
- The EU legal order is supreme in areas it covers, and UK courts must give effect to EU law, including subordinate legislation implementing directives.
- Henry VIII powers are properly used to implement EU obligations, including amendments to primary legislation.
- The prosecutions are lawful, and the argument of abuse of process fails as compliance efforts may be relevant to sentencing but not to the validity of the prosecution.
- The use of imperial measures as supplementary indications is permitted until 31 December 2009, so no breach of Article 10 arises.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Vauxhall Estates Ltd [1932] 1 KB 733 |
Doctrine of implied repeal: later statutes impliedly repeal inconsistent earlier statutes. |
Confirmed the principle that Parliament cannot bind successors; later inconsistent laws repeal earlier ones. |
| Ellen Street Estates Ltd [1934] 1 KB 590 |
Doctrine of implied repeal and Parliamentary sovereignty. |
Reinforced that Parliament can repeal or amend earlier statutes by inconsistent later statutes. |
| Goodwin v Phillips [1908] 7 CLR 1 |
Partial implied repeal where statutes are inconsistent only in application to particular cases. |
Supported limited implied repeal where only some applications are inconsistent. |
| Collco Dealings Ltd [1962] AC 1 |
Earlier legislation incorporating international treaties is not immune from implied repeal. |
Confirmed that municipal legislation may override treaty provisions by implication. |
| Felixstowe Dock and Railway Company [1976] 2 CMLR 655 |
Parliamentary sovereignty over EU Treaty provisions. |
Held that once Parliament enacts legislation, courts must apply it regardless of treaty conflicts. |
| Macarthys Ltd v Smith [1979] 3 AER 325 |
Parliament intends to fulfill EU Treaty obligations unless expressly stated otherwise. |
Courts should presume Parliament complies with EU law unless clear contrary intention. |
| Factortame Ltd (No 1) [1990] 2 AC 85 |
Supremacy of EU law over conflicting UK legislation, including primary legislation. |
Confirmed that UK courts must disapply national legislation inconsistent with EU law. |
| Factortame Ltd (No 2) [1991] 1 AC 603 |
Further affirmation of EU law supremacy and obligation of UK courts to grant interim relief. |
Reinforced the principle that EU rights override conflicting national law provisions. |
| Duke v Reliance Systems Ltd [1988] AC 618 |
Limits of s.2(4) of the European Communities Act 1972 regarding directives without direct effect. |
Clarified that s.2(4) applies only to directly applicable Community provisions, not all directives. |
| Pickstone v Freemans plc [1989] AC 66 |
Interpretation of Acts of Parliament to uphold EU law supremacy. |
Supported broad interpretation to ensure compliance with EU obligations. |
| Pepper v Hart [1993] AC 593 |
Use of Parliamentary materials in statutory interpretation. |
Not applicable here as s.2(2) was not ambiguous; parliamentary statements not decisive. |
| R v Secretary of State for Transport, Ex parte Factortame Ltd [1992] QB 680 |
Judicial review for compatibility of legislation with EU law. |
Supported availability of judicial review for challenging legislation incompatible with EU law. |
| Ex p Equal Opportunities Commission [1995] 1 AC 1 |
Scope of court powers to make declarations on compatibility with EU law. |
Confirmed courts can declare primary legislation incompatible with EU law. |
| Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 |
Recognition of constitutional or fundamental rights in common law. |
Supported the concept of constitutional statutes with special protection. |
| Pierson v Secretary of State [1998] AC 539 |
Protection of constitutional rights against implied repeal. |
Supported the principle that constitutional statutes cannot be impliedly repealed. |
| Simms [2000] 2 AC 115 |
Recognition of fundamental rights within common law. |
Affirmed courts' role in protecting fundamental rights against legislative encroachment. |
| Witham [1998] QB 575 |
Protection of constitutional rights and statutes. |
Supported the special status of constitutional statutes in statutory interpretation. |
Court's Reasoning and Analysis
The court examined the interplay between the European Communities Act 1972 (ECA), the Weights and Measures Act 1985, and the subordinate legislation implementing EU metrication directives. It identified the core constitutional tension between EU law supremacy and UK parliamentary sovereignty.
The court rejected the appellants' argument that the doctrine of implied repeal invalidated the subordinate legislation. It held that there is no inconsistency between the Henry VIII powers in ECA s.2(2), which permit amendment of future legislation, and the provisions of the 1985 Act. The court explained that the doctrine of implied repeal does not restrict Parliament's ability to confer powers to amend future statutes, as such a restriction would fetter parliamentary sovereignty.
The court recognized the ECA as a constitutional statute within UK law, which cannot be impliedly repealed. It distinguished between substantive EU rights, which have supremacy over inconsistent UK law, and the constitutional foundation of the UK's legal relationship with the EU, which remains subject to UK parliamentary sovereignty and common law principles.
The court endorsed the principle from Factortame that substantive Community rights prevail over conflicting domestic law, including primary legislation, but clarified that this supremacy does not extend to entrenching the ECA itself against repeal or amendment without express words.
Regarding the validity of the subordinate legislation, the court found no legal impediment to the use of Henry VIII powers to implement EU obligations, including amendments to the 1985 Act and related regulations.
The court dismissed the argument that the prosecutions were an abuse of process, noting that compliance efforts might be relevant to sentencing but do not affect prosecution validity.
The suggestion that the prohibition on imperial measures violated Article 10 ECHR was rejected on the basis that imperial units were permitted as supplementary indications until 31 December 2009, thus no current violation arose.
The court expressed concern about the complexity and indirectness of the criminal offences created by extensive subordinate legislation but acknowledged no prejudice to appellants who were aware of the law.
Holding and Implications
The court DISMISSED all appeals, upholding the validity of the subordinate legislation implementing the EU metrication policy and the related prosecutions.
The direct effect of this decision is that the subordinate instruments challenged are lawful and that the appellants' convictions and licence conditions stand. The court reaffirmed the constitutional principle that the European Communities Act 1972 is a constitutional statute that cannot be impliedly repealed and that EU substantive rights have supremacy over conflicting domestic law, but that the legal foundation of the UK's relationship with the EU remains subject to UK parliamentary sovereignty and common law.
No new precedent was established beyond clarifying the constitutional status of the ECA and the limits of implied repeal concerning EU law incorporation and Henry VIII powers.