Thoburn v Sunderland City Council [2002]

English Constitutional Law

Thoburn v Sunderland City Council [2002]
‘The Greengrocer’s Shop’ by Terrick Williams

In a collective hearing the facts surrounding a national transition between imperial and metric measurements for the purposes of trade, gave rise to claims of unlawful application and subsequent challenge within the High Court as below:

Thoburn v Sunderland City Council

In this matter a greengrocer was accused of trading without licensed weighing scales under s.11(2) of the Weights and Measures Act 1985, while it was also alleged that despite repeated warnings to calibrate his scales in line with the legal requirements, the defendant had continued to operate the machines until their seizure by the local authority, and so losing his case in the Divisional Court the defendant later applied for referral to the High Court in order to further discuss the legalities of both imperial and metric measurements.

Hunt v Hackney London Borough Council 

On this occasion another fruit and vegetable trader was accused of a number of offences under s.4 of the Prices Act 1974 and s.28(1) of the Weights and Measures Act 1985 after commercial standards officers made discreet purchases revealing average product weight losses of twenty percent in favour of the defendant. 

Charged in the first instance, the defendant challenged the validity of the legislation and also sought the opinion of the High Court on grounds that he contended the applicability of the 1974 Act and the unlawfulness of displaying goods under the imperial weights system.

Harman and another v Cornwall County Council

This matter involved a market trader and fishmonger, who were both accused of selling their produce using imperial units of cost and thereby violating art.5 of the Price Marking Order 1999, as found under the Prices Act 1974 and sch.1 of the Weights and Measures Act 1985 as amended by The Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994 (SI 1994/1851). 

Here it was alleged that the two defendants had also prevented their attending local authority representative from removing the imperial price stickers when attempting to obtain evidence of their acts, and so having admitted liability the judge was referred to the outcome of Thoburn and raised the question as to the intention that both imperial and metric systems were to continue to run in parallel to one another, and whether the trading standards officers were acting beyond their powers when attempting to obtain pricing stickers from traders despite no suggestion of dishonesty by those accused.

Collins v Sutton London Borough Council

In a slightly different circumstance the appellant had argued that the terms of the renewal of his trading licence had been unlawfully amended by the issuing council, and so applied for a summons under s.30(1)(a) of the London Local Authorities Act 1990 while claiming that under the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994, Units of Measurement Regulations 1994 and  The Weights and Measures (Metrication Amendments) Regulations 2001 (SI 2001/85) the local authority had instructed the appellant that he must display and charge for his produce under the metric weights system and that such a request constituted a breach of statutory powers and a violation of art.10 of the Human Rights Act 1998 (Freedom of expression). 

To clarify, s.1(1) of the Weights and Measures Act 1963 provided that both the metric and imperial system of measurements were permitted equal presence within the United Kingdom until the creation of the European Communities Act 1972  and the introduction of Directive 80/181/EEC in 1979, after which chapter 1 of Directive 89/617/EEC cited that the metre and the kilogram were to become the single legal measurements of both length and mass, however chapter IV provided that certain goods sold loose in bulk were  allowed to be measured in pounds and ounces until 31 December 1999. 

In the following two years The Units of Measurements Regulations 2001 (SI 2001/55) provided that imperial measures (while unlawful as primary indicators for sale) were still permitted as secondary indicators until 1 January 2010, while contrastingly the Price Marking Order 1999 required traders to indicate unit prices in metric measures, yet anything to the contrary was a criminal offence under para.5 of sch.2 of the Prices Act 1974.

When brought before the High Court the four appellants relied upon a contention that the Weights and Measures Act 1985 (Metrication) (Amendment) Order 1994, Units of Measurement Regulations 1994, Weights and Measures (Metrication Amendments) Regulations 1994 and the Price Marking Order 1999 were all unlawful and thus void under the principle of ‘implied repeal’, which is a process applied when Parliament enacts successive statutes containing inconsistent terms, and where the former is repealed by the latter in order to avoid future binding and confusion of effect, while it was also argued that the 1985 Act had repealed s.2(2) of the European Communities Act 1972 in order to prevent future subordinate legislation, as had been used to replace the imperial system with the metric measurement system. 

Having considered the appellants’ somewhat unorthodox line of argument the Court dismissed the appeals on grounds that while observation of European Community law remained first and foremost to the function of the sovereign, there was nothing in the European Communities Act 1972 that allowed any outside jurisdiction to compromise the supremacy of Parliament, and that the executive measures of the 1972 Act were not subject to repeal by implication but through express and specific decisions, before reminding the parties that:

“Parliament cannot bind its successors, and that is a requirement of legislative sovereignty.”

Author: Neil Egan-Ronayne

Author, legal scholar and foodie...

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