The metric Martyrs and the Constitution: Libertarian Alliance Showcase Publication no-19, by Sean Gabb


Sean Gabb

By way of intro, der Überblogmeister writes:-

For the benefit of overseas readers, English people have been in the habit of being able to trade in – and buy/sell in (legally) “imperial” measures for as long as these have been commonly understood, which in some cases such as “a Pound” (weight) is about fourteen centuries. These measures were indeed widely used in Europe and other places in the Known World, until the advent of the Metric System, statutorily enforced throughout conquered Europe by Napoleon. Just doing that thing on its own did not make Napoleon a fascist pig, but a fascist pig is what he was all the same, for integrated reasons.

Indeed, it has ALWAYS been legal in the UK to buy/sell/manufacture ot trade in metric measures of any kind. Scientists almost universally use the MKS (and understand the cgs) systems, both of which are metric, and this is logical as it makes the use of Standard Form Numbers much easier, in conjunction with any metric unit.

The ZanuLaborg British Stalinist fascist political parties, including the Tory party, here have all colluded in the forced metrication of all aspects of British life and thought, whether this was asked for, beneficial, or not.

it is advantageous to be fluent in both the “Imperial” and the Metric systems, but libertarians do not see this as a justifiable area for compulsion or legislation, so long as the standards in each are defines and known.

Here follows a sad story:-

 

Permanent link at: http://www.seangabb.co.uk/flcomm/flc063.htm

Free Life Commentary,
an independent journal of comment
published on the Internet
Issue Number 63
21st February 2002

The “Metric Martyrs” and the Constitution
Sean Gabb

On Monday the 18th February 2002, judgment was given in the Court of
Appeal on the “Metric Martyrs” case (Thoburn v Sunderland City Council.)
These were appeals from four men who had in different ways been told by
lower courts that it was no longer legal for them to use the English
system of weights and measures for any purpose of trade.

The grounds of their appeal were that the relevant laws had been made
further to powers contained in the European Communities Act 1972, whereas
it appeared that their right to continued use of the English system had
been protected by the Weights and Measures Act 1985. According to the
doctrine of implied repeal, an earlier Act cannot be used to amend or
repeal a later Act. Instead, where any conflict arises between Acts of
Parliament that cannot be smoothed by judicial interpretation, the later
one always takes precedence: leges posteriores priores contrarias
abrogant .

What made this case so important was that it was brought to clarify the
constitutional status of our membership of the European Union. Either the
Judges could apply the doctrine of implied repeal, in which case, our
membership of the European Union was compromised to whatever degree the
European Communities Act had been repealed, or they could announce that
Parliament was no longer sovereign, and that we were now unambiguously
under the rule of a centralising, Roman Law despotism based outside this
country. In the judgment given last Monday, the four men lost their case.
According to Lord Justice Laws and Mr Justice Crane, the 1972 Act was
protected against implied repeal by the 1985 Act, and the English system
of weights and measures has been legally abolished to the degree stated
in the disputed laws.

Now, looking at the superficial aspects of the case, it is a defeat. As a
conservative, I deplore the legal suppression of weights and measures
which are an integral part of our culture. Whatever its merits considered
purely in themselves-and these are probably not so great as is usually
claimed-the metric system is an alien thing. Its imposition cuts us off
from part of our history, and makes it harder for us to enjoy that
intimate communion with the past that is part of any nation’s strength
and cohesion. As a libertarian, I deplore the imposition of anything. If
greengrocers want to sell bananas by the pound or the kilogramme-or
indeed by the ancient Athenian mina-that is a matter for them and their
customers, not for the authorities. However, if we look beneath the
surface, we can see that the judgment was not so much a defeat as a great
if conditional victory for both conservatives and libertarians. For while
it would not have been politically conceivable for the Judges to strike
down any part of the European Communities Act, they did preserve
parliamentary sovereignty to the extent that a majority of the House of
Commons will be able in due course to repeal that Act by positive
legislation; and that is, let us face reality, how we shall eventually
withdraw from the European Union-not by some clever legalistic trick, but
by full public debate followed by parliamentary repeal. And of equally
great importance for us, when the Judges squared the apparent circle
given to them, they did so by reviving the ancient doctrine of
fundamental law.

This is a mediaeval doctrine that last flourished in the rather strange
legal soil of the 17th century. Its most famous statement is in Lord
Chief Justice Coke’s judgment in the case of Dr Bonham (1610). Bonham had
been fined for practising medicine without a licence from the Royal
College of Physicians. The charter under which he was fined had been
confirmed by Act of Parliament. In giving judgment for Bonham, Coke CJ
commented:

“And it appears in our books that in many cases the common law will
controul acts of parliament, and sometimes adjudge them to be utterly
void: for when an act of parliament is against common right and reason,
or repugnant, or impossible to be performed, the common law will controul
it, and adjudge such act to be void” (8 Coke’s Reports, 117-18).

By the end of that century, though, the whole notion of a fundamental law
that could be used to judge the validity of Acts of Parliament was in
decline. In the American colonies, the notion retained its hold among the
lawyers, and is preserved in the Constitution and Bill of Rights. But in
this country, the very different notion emerged of the absolute
legislative sovereignty of the Crown in Parliament. Our rulers were
restrained by their sense of right and wrong-or more often by their
caution-in exercising power, but were under no legal restraint so long as
they could rely on Parliament to pass whatever Acts they wanted.
Parliament was sovereign. Its Acts could be interpreted by the courts-and
frequently have been into senses that no Member of Parliament might have
recognised in the division lobbies-but could not be called in question.

The doctrine as a whole was elaborated to its full logical conclusions by
A.V. Dicey in his Law of the Constitution (1885). It was fully accepted
by the courts. “For us an Act of Parliament duly passed by Lords and
Commons and assented to by the King, is supreme, and we are bound to give
effect to its terms” said Lord Dunedin in 1906 (Mortensen v Peters, 8
F.(J.C.), 93,100).

The only limitation of sovereignty was its protection. It was held that
no Parliament could bind itself. Parliament could do anything, except
preserve its own Acts from repeal. An Act from the time of Henry VII, for
example, states that it cannot be repealed. An early 19th century
annotator of the State Trials refers to this as a void provision. A later
Act would always override an earlier one-and do so regardless of whether
that had been the intention of Parliament. Repeal could be intended or
simply implied. “The Legislature cannot, according to our constitution”
said Lord Justice Maugham, “bind itself as to the form of subsequent
legislation, and it is impossible for Parliament to enact that in a
subsequent statute dealing with the same subject-matter there can be no
implied repeal” (Ellen Street Estates Ltd v Minister of Health [1934] 1
King’s Bench Reports , 753. 14.).

Now, suddenly, the notion of fundamental law has been pulled out of the
legal grave in which it had been rotting for three hundred years, and
declared part of the law of our Constitution. In one sense, it was the
only way out of the paradox that the “Metric Martyrs” case had apparently
raised. By announcing that there was a “hierarchy of Acts of Parliament”
– “ordinary” and above them “constitutional”, the Judges were able to
save the European Communities Act from implied repeal. Undoubtedly, they
emphasised, European Union law is supreme in this country-but only to the
extent given by the European Communities Act, which can be repealed
should Parliament explicitly decide to do. Even so, short of explicit
repeal, it is immune from any implied repeal.

But in another sense, the judgment is only an extension of the growing
impatience that Judges have felt for a very long time with the
constraints imposed on them by the doctrine of parliamentary sovereignty.
And, in spite of the status given for the moment to the European
Communities Act, these are constraints that should be regarded with
impatience by everyone who values freedom in this country.

“The sovereignty of the Crown in Parliament” is a nice set of words. The
phrase rolls off the tongue and carries the mind back to earlier ages in
our history. But the phrase no longer describes what is at all a
desirable state of affairs. We are ruled by people who get an almost
sexual thrill from messing up our lives. Because they run the two main
parties, they are able to pack the House of Commons with a combination of
sheep who would vote black white and white black if ordered, and of
weaklings who know that something is wrong, but are controlled by bribes
and blackmail. Every so often, a few decent people get elected. But that
is because the control is not yet perfect; and its main effect, sadly, is
to keep alive in some minds the delusion that parliamentary democracy
still actually exists. The general result is tyranny mitigated by
recollections of a better time.

The Judges have been worried by this for generations. According to Lord
Wright in 1942,

“Parliament is supreme. It can enact extraordinary powers of interfering
with personal liberty. If an Act of Parliament… is alleged to limit or
curtail the liberty of the subject or vest in the executive extraordinary
powers…, the only question is what is the precise extent of the powers
given” (Liversidge v Anderson , Appeal Cases, 106).

Since then, things have grown worse. Bad laws pour out in a continual
stream. A well funded interest group only has to demand, or a media
campaign to start, and the politicians reach for their legislative
hammer. In the 1960s, the insurance companies complained about the level
of awards in civil cases where they were known to stand behind a
defendant; and so the politicians virtually abolished the right to trial
by jury in the civil courts. In 1987, there were complaints when some
defendants in a criminal case pooled their right of peremptory challenge
to secure a more sympathetic jury; and so the politicians abolished that
right. Around the same time, the authorities wanted to raise the
conviction rate or financial crimes; and so the politicians created the
Serious Fraud Office, and gave it the right to compel self-incrimination.
In 1991, a few children were bitten by dogs; and so the politicians
brought in a law that almost everyone now regards as mad. Arguments about
the rule of law drew at best a blank stare, at worst an exultant sneer.

Nor is it just that Parliament is churning out bad laws-though many are
very bad. It is that Parliament is churning out thousands of pages of new
law every year, supplemented by thousands more of statutory instruments.
No one has read or can read all of these. No one is co-ordinating the
process of their manufacture. Quite often, no one knows what the laws are
on an issue from one day to another. Not surprisingly, they frequently
contradict each other. This is what led to the challenge to the
metrication laws. The Weights and Measures Act does contradict the
European Communities Act. No one intended this to happen. No one noticed
it had happened for about 15 years. But it did happen.

Now, the politicians are being brought under control. Let me quote from
the relevant sections of the judgment:

“In the present state of its maturity the common law has come to
recognise that there exist rights which should properly be classified as
constitutional or fundamental…. And from this a further insight
follows. We should recognise a hierarchy of Acts of Parliament: as it
were “ordinary” statutes and “constitutional” statutes. The two
categories must be distinguished on a principled basis. In my opinion a
constitutional statute is one which (a) conditions the legal relationship
between citizen and State in some general, overarching manner, or (b)
enlarges or diminishes the scope of what we would now regard as
fundamental constitutional rights. (a) and (b) are of necessity closely
related: it is difficult to think of an instance of (a) that is not also
an instance of (b). The special status of constitutional statutes follows
the special status of constitutional rights. Examples are the Magna
Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which
distributed and enlarged the franchise, the [Human Rights Act 1998], the
Scotland Act 1998 and the Government of Wales Act 1998. The [European
Communities Act] clearly belongs in this family…. The ECA is, by force
of the common law, a constitutional statute.

“Ordinary statutes may be impliedly repealed. Constitutional statutes may
not. For the repeal of a constitutional Act or the abrogation of a
fundamental right to be effected by statute, the court would apply this
test: is it shown that the legislature’s actual not imputed, constructive
or presumed intention was to effect the repeal or abrogation? I think the
test could only be met by express words in the later statute, or by words
so specific that the inference of an actual determination to effect the
result contended for was irresistible. The ordinary rule of implied
repeal does not satisfy this test. Accordingly, it has no application to
constitutional statutes. I should add that in my judgment general words
could not be supplemented, so as to effect a repeal or significant
amendment to a constitutional statute, by reference to what was said in
Parliament by the minister promoting the Bill pursuant to Pepper v Hart
[1993] AC 593. A constitutional statute can only be repealed, or amended
in a way which significantly affects its provisions touching fundamental
rights or otherwise the relation between citizen and State, by
unambiguous words on the face of the later statute.

“This development of the common law regarding constitutional rights, and
as I would say constitutional statutes, is highly beneficial. It gives us
most of the benefits of a written constitution, in which fundamental
rights are accorded special respect. But it preserves the sovereignty of
the legislature and the flexibility of our uncodified constitution. It
accepts the relation between legislative supremacy and fundamental rights
is not fixed or brittle: rather the courts (in interpreting statutes, and
now, applying the HRA) will pay more or less deference to the
legislature, or other public decision-maker, according to the subject in
hand. Nothing is plainer than that this benign development involves, as I
have said, the recognition of the ECA as a constitutional statute.”

Some people, I know, are angry that the European Communities Act has been
given this special status. However, its protection against implied repeal
comes not-as the Sunderland City Council lawyers argued-because on
entering the European Union, we accepted a new legal order in which our
own constitutional arrangements were reduced to the status of a town
council, but because the Common Law now recognises a whole class of
special Acts of which the European Communities Act is presently one. If
we ever repeal the European Communities Act by explicit Act of
Parliament, it will drop out of this special class, but the special class
will remain.

And we can repeal the European Communities Act. That much is now certain.
The various judgments in the Factortame legislation left the position of
European Union law highly ambiguous-was it or Parliament supreme?. This
judgment make it clear that the laws of the European Union enjoy a
borrowed primacy in England. Parliament may have chosen to indulge a
foreign authority, but cannot subordinate itself to it:

“there is nothing in the ECA which allows the Court of Justice, or any
other institutions of the EU, to touch or qualify the conditions of
Parliament’s legislative supremacy in the United Kingdom. Not because the
legislature chose not to allow it; because by our law it could not allow
it.”

This is not the outcome that the supporters of the “Metric Martyrs” were
hoping for. It is not an outcome, I think, that anyone was expecting. The
point of fundamental law was not raised in any of the hearings, and it is
highly unusual for Judges to go beyond the points raised in a case except
for giving obiter dicta , which have no binding force as precedent. But
it is a not a judgment that the Government was hoping for. Its general
implications have yet to be revealed. But it seems reasonable that a vast
mass of bad laws can now be set aside as inconsistent with fundamental
laws that they have not explicitly repealed.

Therefore, the sections of the Road Traffic Act 1982, that allow the
Police to impose fines on motorists without going to court, may be
inconsistent with the guarantee of due process in Magna Carta. The
various Firearms Acts-especially the most recent ones, which are intended
to criminalise rather than regulate the possession of guns-may be
inconsistent with the Bill of Rights. The Government’s proposed
Confiscation Agency, which will import the American doctrine of civil
asset forfeiture, will require the explicit repeal of Magna Carta and
parts of the Human Rights Act.

At a stroke, the Judges have put the politicians under a restraint that
may be as severe in practice as that imposed by the Supreme Court in
America. It means that they can carry on their game of stealing our
freedoms-but they must do so in the open, by spelling out what they are
doing in words that cannot be ignored by the courts. I have no doubt that
if they had known in advance the outcome of this case, the authorities
would quietly have connived at breaches of their metrication laws.

We have lost the right to use our traditional weights and measures. But
we may have gained the vast benefit of living again under a Constitution
that protects our fundamental rights. I feel sorry for the four men who
have taken on the considerable legal costs of getting this case into
court, and I hope that the public appeal will be sufficient to pay these
costs. But it was, most emphatically, a case worth getting into court. It
has given us, I repeat, a great and unexpected, if conditional, victory.


Sean Gabb
Director, The Libertarian Alliance
sean@libertarian.co.uk
Tel: 07956 472 199

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3 responses to “The metric Martyrs and the Constitution: Libertarian Alliance Showcase Publication no-19, by Sean Gabb

  1. Pingback: What appears to be good news « The Landed Underclass

  2. Do a bit of research… your statement “it has ALWAYS been legal in the UK to buy/sell/manufacture ot trade in metric measures of any kind” is wrong. It is ILLEGAL to sell draught beer or cider in metric units. Milk in returnable containers must also be imperial.

    Those of us who grew up with and learned metric are often unable to make use of what we’ve learned because of these so-called “metric martyrs” and people such as yourself who seem to think that choice of measurement is a matter of free speech. I claim the right to use metric… but please do tell me where I can buy a 30cm pizza or a 15cm subway? In which pub can I buy half a litre of lager? How can I see from signs on the roadside how many km it is to my destination? Do you know of any motor manufacturers who will tell me in TV commercials how many litres per 100km their new model does?

    And how about, for once, being able to go out in the car and know when that low bridge or narrow lane is big enough for my car? It was designed and manufactured in metric and all I learned was metric so why should I have to convert to units introduced by the Romans and tinkered with by successive unelected monarchs for hundreds of years? We can’t even agree with the Americans how big a pint is, they even have two definitions for the foot depending on what it’s used for! How daft is that?

    Freedom of speech? Hah! Confuse the masses more like!

  3. Thank you for that useful comment.