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.”

Attorney-General v Jonathan Cape Ltd [1976]

English Constitutional Law

Attorney-General v Jonathan Cape Ltd  [1976]
‘An Interesting Book’ by Claude Raguet Hirst

Public interest, national security and the freedom of speech are key ingredients to a ‘united kingdom’, therefore should any one of those elements become endangered any true sense of democracy would be diminished in favour of state control, and so when a Cabinet Minister chose to keep an open diary of his time in government, he did so on the pretence that it would one day become a published series for public reading. 

Upon retirement the now deceased author had endowed his executors the rights to attain full publication with the support of the Treasury solicitors, whereupon they did so in the hope of releasing sections of the first volume through a leading national newspaper, and while there was an initial collaboration between the executors and the Secretary of the Cabinet, numerous demands to remove what was considered critical text dissolved the partnership into legal argument and subsequent litigation. 

In the first instance the Attorney-General issued a writ preventing publication on grounds of conventional breach of confidence and national safety, while in a second writ the newspapers were subjected to the same restrictive terms in order to cease printing and publishing the planned articles.

In the lower courts the claimants argued that history demonstrated how current and former Ministers served the country in the knowledge that any official discourse was considered secret, and that where permitted for public release such information was typically held to a thirty-year restraining period, while the respondents countered that any information contained within the compiled material was now over a decade old and so posed no real threat to either national stability or the ongoing operational integrity of the Cabinet.

When submitted before the Court of the Queen’s Bench, the court held that the burden of proof rested upon the claimants, and so held that it must be proven beyond any reasonable doubt that: 

1. A breach of confidence had occurred.

2. Public interest required the repression of information.

3. Any need for public disclosure was insufficient to stand against non-publication. 

And so given time to consider the arguments presented it was agreed that despite strong supposition on the part of the Attorney-General, there had been sufficient examination of the final and edited source material to prevent any interference by the court, and that with an appreciation of free speech and the transparency of the author’s intentions, the respondents were free to both publish the first volume and release the preceding articles as and when time permitted, while clarifying to the court that:

“[T]here may be no objection to a Minister disclosing (or leaking, as it was called) the fact that a Cabinet meeting has taken place, or, indeed, the decision taken, so long as the individual views of Ministers are not identified.” 

A v Secretary of State for the Home Department [2004]

English Constitutional Law

A v Secretary of State for the Home Department [2004]
‘Freedom’ by Abed Alem

The unlawful detention of individuals suspected of terrorist activity is central to this collective appeal amidst the unprecedented attacks of September 11th 2001 in New York, when in light of this historic event the United Kingdom took swift measures to derogate from their commitment to the Convention on Human Rights (ECHR) and the Human Rights Act 1998.

Following a number of arrests, there were nine men of various nationalities detained under s.23 of the Anti-terrorism, Crime and Security Act 2001. In order to facilitate such action the Home Secretary had worked closely with Parliament to both execute and enact Part 4 of the 2001 Act, which provided powers to issue freezing orders upon those suspected of threats to the stability or security of the country. To further support this measure, statutory instrument SI/2001/3644 (also known as the ‘Derogation Order’) was drafted as to allow for specific actions peripheral to the Human Rights Act 1998 where those suspected were subject to the terms of the 2001 Act.

Prior to this amendment it was only possible under para.2(2) of sch.3 of the Immigration Act 1971 for the Secretary of State to detain non-British nationals while awaiting deportation, and such action was only deemed justifiable for a reasonable period of time, as this allowed the United Kingdom to remain fully compliant with its obligations to the ECHR, in particular art.5(1) (Right to liberty and security). However, in Chahal v United Kingdom Parliament attempted to circumvent art.3 of the Convention (No one shall be subjected to torture or to inhuman or degrading treatment or punishment) in order to excessively detain and deport a Sikh separatist on grounds of an affiliation to terrorism, but were overruled by the EU Commission on democratic principles.

In this instance the appellants were challenging the derogation from ECHR principles for the purposes of detainment and deportation of foreign nationals, on grounds that the United Kingdom was not in a state of public emergency as required by art.15(1) of the Convention, and that further clarification of that article had been found in The Greek Case, where the Commission had explained that:

“Such a public emergency may then be seen to have, in particular, the following characteristics: (1) It must be actual or imminent. (2) Its e­ffects must involve the whole nation. (3) The continuance of the organised life of the community must be threatened. (4) The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.”

It was thus contended that none of the above elements were visible when derogating from the ECHR and applying the terms of the Anti-terrorism, Crime and Security Act 2001 in order to both arrest and detain the appellants, and further noted that recent ministerial statements indicated that the United Kingdom was under no immediate threat, and so while alert to international attacks they had no evidence to suggest otherwise.

Having considered the voluminous evidence provided by both sides, and the decision taken by the Court of Appeal, the House of Lords reemphasised the course of action taken by the Secretary of State, who had countered that failure to adopt a pre-emptive state of emergency was tantamount to a breach of national security. And so while no immediate evidence suggested imminent danger to the general public and economic infrastructure, proportionate measures taken, now far outweighed the argument for adherence to Convention policy, despite overwhelming disagreement by the European Commission. 

There was also discussion around unlawful use of the Special Immigration Appeals Commission (SIAC) as provided for in s.24 of the 2001 Act, who were granted exclusive jurisdiction over the rights and appeals of detainees, as opposed to referral to the courts, which was another obvious attempt to circumvent due process under principles of national security.

With knowledge of deviant use of policy and a flagrant appreciation of the English judicial system the House unanimously allowed the appeals, while quashing the Derogation Order and declaring s.23 of the Ant-terrorism, Crime and Security Act 2001 incompatible with arts.5 and 14 of the ECHR on grounds of discrimination through the use of immigration status, before reminding the court that:

“[A] non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country and is not charged with any crime, may not under article 5(1)(f) of the Convention and Schedule 3 to the Immigration Act 1971 be detained here even if judged to be a threat to national security.”

Ghaidan v Godin-Mendoza (2004)

English Constitutional Law

 

Smith, Philip Henry, 1924-2008; Flats, 1960
‘Flats, 1960’ by Philip Henry Smith

Same-sex relationships and the discrimination of landlords under death of secured tenants, provokes the wisdom of the judiciary when the progressive interpretation of existing statute is the only salient answer to a claim for devolved rights by the freeholder.

After living together in a committed homosexual relationship for over thirty years, the respondent had been left facing continued occupancy of the flat under the terms of an assured rather than secure tenancy following the death of his partner and secure tenant, thus by falling subject to the lesser of the two tenancies, the respondent had become vulnerable to potentially increased rents and no legal rights to challenge repossession should the freeholder decide to remove him.

Having sought enforcement under sch.2 para.1 of the Rent Act 1977 the appellant landlord argued that same-sex relationships were precluded from the enjoyment of direct succession of statutory tenancy as prescribed, however those surviving death could remain in occupation under an assured tenancy, as was held in Fitzpatrick v Sterling Housing Association Ltd.

Whereupon the respondent argued that as that case was raised prior to the Human Rights Act 1998 (HRA), devolution of rights through the application of the 1977 Act constituted a direct violation of arts.8 (Right to respect for private and family life) and 14 (Prohibition of discrimination) of the European Convention on Human Rights (ECHR), therefore he was free to remain in occupation under the same rights bestowed those in sch.1 paras.1, 2 and 3 of the 1977 Act, which stated that:

“1.Paragraph 2 or, as the case may be, paragraph 3 below shall have effect, subject to section 2(3) of this Act, for the purpose of determining who is the statutory tenant of a dwelling-house by succession after the death of the person (in this Part of this Schedule referred to as “the original tenant”) who, immediately before his death, was a protected tenant of the dwelling-house or the statutory tenant of it by virtue of his previous protected tenancy.

2. If the original tenant was a man who died leaving a widow who was residing with him at his death then, after his death, the widow shall be the statutory tenant if and so long as she occupies the dwelling-house as her residence.

3. Where paragraph 2 above does not apply, but a person who was a member of the original tenant’s family was residing with him at the time of and for the period of 6 months immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be the statutory tenant if and so long as he occupies the dwelling-house as his residence.”

Historically the courts viewed para.3 of the Rent Act 1977 as designed to treat unmarried women as family members in order to allow assured tenancies to permit continuous occupancy when no marriage or family previously existed, however Fitzpatrick widened the scope of entitlement when the House of Lords had held that:

“[T]wo people of the same sex can be regarded as having established membership of a family, one of the most significant of human relationships which both gives benefits and imposes obligations.”

In the first hearing the court awarded for the respondent on principle that overt discrimination was not a virtue welcome in English law, while the Court of Appeal upheld the previous judgment before the matter wound up before the House of Lords.

Here the facts were given equal attention before the House dismissed the appeal on grounds that the time was right to embrace the universal nature of close and loving bonds and the freedoms of the Convention without a need for Parliamentary involvement, while further holding that:

“[T]he social policy underlying the 1988 extension of security of tenure under paragraph 2 to the survivor of couples living together as husband and wife is equally applicable to the survivor of homosexual couples living together in a close and stable relationship.”

Black and Morgan v Wilkinson (2013)

English Constitutional Law

Black and Morgan v Wilkinson
‘Breakfast in Bed’ by Mary Cassatt

Discrimination on grounds of sexual orientation and the right to manifest one’s religious beliefs lock horns in a case built around progressive lifestyles and the security of dogma.

Having established herself as the owner operator of a bed and breakfast, the appellant consciously took bookings on principles espoused through Christian teachings, one of which precluded the use of double rooms by those outside wedlock. While considered a practical and measured restriction, the appellant was often found letting out such rooms to unmarried couples, largely due to the difficulty in establishing their marital status at the time of agreement.

However, the footing of this matter rested upon a homosexual couple, who having secured the room via email, and duly paying the required deposit, arrived at the property, before finding themselves denied use of the double room on grounds of their sexual relationship and unmarried status (an impossible task at the time of this hearing).

At the point of litigation, the claimants argued that the appellant had unlawfully discriminated against them under the terms of the Equality Act (Sexual Orientation) Regulations Act 2007 (SI 2007/1263), in particular regulations 3 and 4, which read:

“3.(1) For the purposes of these Regulations, a person (“A”) discriminates against another (“B”) if, on grounds of the sexual orientation of B or any other person except A, A treats B less favourably than he treats or would treat others (in cases where there is no material difference in the relevant circumstances).

4. (1) It is unlawful for a person (“A”) concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person (“B”) who seeks to obtain or to use those goods, facilities or services”

While the appellant countered that she had refused the claimants use of the room under regulation 6, which reads:

“6.-(1) Regulation 4 does not apply to anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention.”

Further arguing that her business fell outside the scope of a boarding house, as expressed in regulation 4(2)(b) of the same statutory instrument.

During the first hearing, the court refused to uphold her claim and found her liable for sexual discrimination on grounds of sexual orientation, whereupon the defendant argued her case in the Court of Appeal.

Here, the facts were given greater consideration, including various articles of the European Convention on Human Rights (ECHR). With regard to exemption from regulation 4(b), the Court observed that in Otter v Norman the House of Lords had ruled that:

“[T]he provision of breakfast by itself, with the implicit inclusion of the ancillary services involved in preparing it and the provision of crockery and cutlery with which to eat it, amounted to “board” within the meaning of section 7(1) [of the Rent Act 1977].”

However, with careful observation of regulation 6(1), it was noted by the Court that the claimants were anything but members of her family, children, elderly persons of those requiring special degree of care and attention. The appellant also relied upon Preddy v Bull for her contention that her refusal of the respondents occupation was one based upon an objection to sexual behaviour, and not orientation; yet sadly the parties involved were in a civil partnership, which distinguished it from the immediate case.

Turning instead to proportionality for justification, the appellant relied upon arts.8 (Right to respect and private family life) and 9 (Freedom of thought, conscience and religion) of the ECHR for her right to exclusion, while the respondents relied upon arts.8 and 14 (Prohibition of discrimination) to uphold their right to occupation.

It was then noted that while art.9(1) provides for religious manifestation, art.9(2) also provides that restrictions apply when preserving the rights of others, which on this occasion worked against the appellant, as she was by all accounts, running a commercial enterprise, and which under a Government paper titled “Getting Equal: Proposals to outlaw sexual orientation discrimination in the provision of goods and services, Government Response to Consultation” it was outlined on page 13 that:

“The Government contends that where businesses are open to the public on a commercial basis, they have to accept the public as it is constituted.”

While it was also stressed in Eweida and others v United Kingdom that:

“Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief.”

And so despite any freedom to manifest one’s religious beliefs when operating a licensed business to paying customers, indirect discrimination through the application of a policy denying equal rights to those in homosexual relationships amounted to a uniform ruling of direct discrimination on grounds of sexual orientation, while the appeal court held that:

“[D]irect discrimination cannot be justified, whereas indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.”

Associated Provincial Picture Houses Ltd v Wednesbury Corp (1947)

English Constitutional Law

Associated Provincial Picture Houses Ltd v Wednesbury Corp
‘New York Movie’ by Edward Hopper

Acting ultra vires through the application of executive powers is not something alien to public authority decision-making, but it is equally important that those seeking legal review are clear as to exactly what has constituted a breach of their jurisdiction.

During the period following the second world war, there were three Acts that affected the opening times of cinematograph houses across the UK. The first was the Cinematograph Act 1909, the second was the Sunday Entertainments Act 1932, and third was Defence Regulation 42B, which was introduced during the war, but remained effective until late 1947.

When it was decided by an issuing local authority to grant a trading licence to their local picture house, there came with it restrictions preventing any attendance by children aged below fifteen years of age, regardless of whether they were accompanied by an adult. While appreciative of the opportunity to open on a day typically reserved for domestic pursuits, the appellants sought judicial review on grounds that such a restriction was self-defeating and thereby ‘unreasonable’.

As there were three Acts from which to rely upon, it was agreed that for the purposes of clarity the Sunday Entertainments Act was the most appropriate, and yet within the terms prescribed, s.1 ss.1 provided that the issue of a licence was “subject to such conditions as the authority think fit to impose.” This, it was agreed, allowed the local authority to apply its discretion to the limitations of the permit, and so by extension, it had acted accordingly.

When heard in the first instance, the court dismissed the objections brought by the picture house, and after a brief but considered review of that decision, it was reiterated that while the courts are able to question the legal validity of executive decisions, they are not equipped nor predisposed, to challenge the illegitimacy of those limitations, unless the body in question has applied it powers outside the boundaries of reasonableness, and in ignorance of required objectives.

Relying upon the relevant case history behind these matters, there was, despite strong opposition by the commercial vendors, no precedent upon which their argument could stand, and thus the court noted that it was important to hold in mind the scope of discretion afforded local authorities when following statute before taking legal action, while further reminding the parties that:

“[T]he court, whenever it is alleged that the local authority have contravened the law, must not substitute itself for that authority.”

R v Secretary of State for Transport ex parte Factortame Ltd (No.2) (1990)

English Constitutional Law

R v Secretary of State for Transport Ex parte Factortame Ltd
‘NERIED, Cannery Tender’ by Steve Mayo

Direct effect compatibility, and the obligation owed by Member States to transpose Directives and Treaties as binding upon national laws, was a ruling that would soon unearth conflicts of interest. On this occasion, the contention was brought about by aggressive amendment to statute in favour of the UK fishing industry.

Until 1988, those parties involved in domestic commercial fishing were required to register under the Merchant Shipping Act 1894; an Act that allowed overseas companies to operate outside British waters, but still have their fleets registered under UK incorporation. As a means of preventing ‘quota hopping’ (over-fishing), it was enacted by Parliament to include Part II of the Merchant Shipping Act 1988 and Merchant Shipping (Registration of Fishing Vessels) Regulations 1988, to the effect that all those trading were to re-register under new conditions.

These terms required that in order to qualify for registration, the company must have a minimum of seventy-five percent British ownership, and where ownership fell outside the United Kingdom, there needed to be a seventy-five percent share hold by British citizens. This translated that the appellants, who had been previously registered for over almost twenty years, were now unable to re-register, as the owners were Spanish and therefore exempt from the new legislation.

Having appreciated the United Kingdom’s position as a Member State, and subsequent membership to EU Community law, the firm sought proceedings under the principle that the choice taken to exclude other EU members from registration had displayed an overt refusal to comply with art.177 of the EEC Treaty. Furthermore, it was claimed that where Community rights were held to have ‘direct effect’, it was the onus of the national courts to suspend challenged legislation, with the granting of interim relief where proven necessary.

When heard in the Divisional Courts, the claim was supported and provisions made to allow the unfettered trading of the claimants, until such time that clarification was found in the challenge against the amended Act. However, when appealed by the Secretary of State, Court of Appeal Court set aside the previous finding, while granting leave of appeal to the House of Lords.

In this instance, the House agreed that should the claimants’ fail in their argument, the financial damage would be sufficient enough to cause irretrievable damage to the firm, but that without a preliminary ruling by the European Court of Justice (COJ), it was impossible to determine (i) if the courts were empowered to suspend legislative effect, and (ii) how best to determine what form the interim relief should take.

Upon deliberate consideration by the COJ, it was unanimously agreed that when the objectives of direct effect were designed, they were done so in a way that intended literal application with immediate purpose, and that unless under exceptional circumstances, it was the duty of the national courts to hold the powers of Community law above those of domestic interest, whereupon the House held that:

“[N]ational courts are required to afford complete and effective judicial protection to individuals on whom enforceable rights are conferred under a directly effective Community provision, on condition that the Community provision governs the matter in question from the moment of its entry into force…”