The Yardstick Journal of the British Weights and Measures Association Number 70 ISSN 1361-7435 August 2019 Imperial pedestrian signs strike back Patrons Following BWMA’s mailshot to over a thousand local authorities in February 2019, reminding them of the unlawful status of metric Kate Hoey MP pedestrian signs, the matter was followed up by Christopher Hope at Philip Hollobone MP the Daily Telegraph, who published an article on 21 April 2019. This interest prompted the Transport Secretary Chris Grayling to write to Honorary Members local authorities himself; he told the Telegraph: “Councils are legally Peter Alliss, CBE obliged to stick to imperial measures. I have written to all local Clive Anderson authorities reminding them of the clear and consistent signage we Sir Ian Botham, OBE expect to be delivered on our highways.” An update will be featured in the next Yardstick. Gyles Brandreth Lee Child bwma.org.uk Jilly Cooper, CBE We are delighted to announce that BWMA has a new website, Bernard Cornwell, OBE designed by supporter Thomas Walker. The former bwmaOnline.com, Prof. Richard Demarco, CBE set up in 2002, had become dated and difficult to manage, and its Rt Hon Frank Field MP replacement bwma.org.uk represents a complete revamp and Sir Ranulph Fiennes, OBE improvement. The site contains downloadable pdfs of BWMA Edward Fox, OBE publications, and revised and updated sections on metric downsizing Sandy Gall, CBE and road signs. There is also a Political and Legal Chronology where Dr Sean Gabb visitors can see historic documents and letters, such as the confidential Neil Hamilton AM February 1965 memo by the Federation of British Industries, Simon Heffer discussed in Yardstick 68. Peter Hitchens bwmaOnline.com will remain ‘live’ until the end of September, after Jools Holland which visitors will be redirected to bwma.org.uk. Bryan Parry Conn and Hal Iggulden meanwhile runs the twitter account, which retains the name @BWMAonline. Thank you, Thomas and Bryan. Richard Ingrams Hugh Johnson, OBE Christopher Booker 1937–2019 Dr James Le Fanu Christopher Booker was probably the earliest journalist to investigate Jonathan Lynn compulsory metrication, publishing a major feature in 1970 in the Dr Richard Mabey Telegraph Magazine. In the run up to the metrication of packaged foods Alexander McCall Smith, CBE and loose goods in October 1995, his Sunday Comment reported each Reverend Peter Mullen week on the implications of the change and the public’s reaction. On 13 Micah Nathan September of that year, Christopher lunched with Vivian Linacre and, two weeks later, on Friday 29 September, the BWMA was launched in Robin Page the New Cavendish Club, London. In tribute to Christopher, we reprint OBE Andrew Phillips, on the back page of this Yardstick the earliest metric-related example R W F Poole, MBE that we have of his Sunday Comment, and the Sunday Comment that Sir Tim Rice helped lead to the formation of BWMA. Prof Andrew Roberts John Gardner, Director J K Rowling, OBE BWMA is a non-profit body that exists to promote parity in law between Sir Roger Scruton British and metric units. It enjoys support from across Britain’s political Quinlan Terry, CBE spectrum, from all manner of businesses and the general public. BWMA is Antony Worrall Thompson financed by subscriptions and donations. Membership is £12 per year. Cheques or postal orders payable to “BWMA”, 29 Chart House Road, Ash Vale, Surrey GU12 5LS Letter from John Gardner to Andrew and will assist and defend all Jurisdic- Parker, Director General, MI5, PO tions, Pre-eminences, and Authorities, Box 3255, London, 5 November 2018 granted to Her Majesty … against all For- eign Princes, Persons, Prelates, States, or MI5 has responsibility for defending Britain from Potentates … subversion and treason; in the words of the Security Government ministers have a duty to uphold Service Act 1989, its function is “… the protection of Parliamentary processes in the event of pressure national security and, in particular, its protection from external legal forces; in Factortame, they against threats from espionage, terrorism and failed to do so. sabotage, from the activities of agents of foreign powers and from actions intended to overthrow or 2) Thoburn v Sunderland City Council (2002) undermine parliamentary democracy by political, was a case where grocer Steven Thoburn industrial or violent means”. appealed his conviction for selling bananas by Following a review of information contained in the pound. On this occasion, implied repeal was recent issues of The Yardstick, BWMA Director John argued by the defence, that is, although Thoburn Gardner considered that there were sufficient had been convicted under the European grounds to suspect that the “Metric Martyrs” legal Communities Act 1972, his actions were lawful judgements of 2002 had been subverted. Here is his since the later Weights and Measures Act 1985 letter to Andrew Parker, MI5 Director General, sent impliedly repealed metric provisions passed the Fifth of November. under the 1972 Act. I am writing in connection to two legal cases, so When the judge, Lord Justice Laws, issued his perverse as to give rise to suspicion of subver- judgment, he did not deny that the Weights and sion of Parliamentary democracy by members of Measures Act 1985 permitted imperial units; the government and judiciary. instead, he said that implied repeal did not apply, since the European Communities Act 1) R (Factortame Ltd) v Secretary of State for 1972 could be used to change the 1985 Act Transport (Nos 1-5, 1989 to 2000) was a case (thus side-stepping the point of implied repeal). brought against the UK government by a Span- Lord Justice Laws supported his ruling with the ish fishing company which claimed that the announcement of a “hierarchy of acts”, whereby Merchant Shipping Act 1988 breached EU law “constitutional” acts (i.e. the European by requiring ships registered in the UK to be at Communities Act 1972) could not be repealed least 75% British owned. British courts ruled in impliedly by ordinary acts (i.e. the Weights and favour of the fishermen, making Factortame the Measures Act 1985). This had not been argued first time an Act of Parliament was dis-applied in court by the prosecution. when found to be contrary to EU law. Lord Justice Laws said that the case raised a A defence open to the UK government was that question of “general application and public the Merchant Shipping Act 1988 impliedly importance” (whether the European Communi- repealed the European Communities Act 1972, ties Act 1972 could be impliedly repealed) and since later Acts take precedence over earlier granted a certificate that this matter could be Acts. Yet, the government did not argue this appealed to the House of Lords. defence, meaning an Act of Parliament was dis- applied when it might not have been necessary. However, three Law Lords, Bingham of Cornhill, Steyn and Scott of Foscote, at a The implication is that government ministers hearing on 15 July 2002, prevented the appeal sacrificed an Act of Parliament through from being made to the House of Lords, saying inaction, rather than not apply a European they did not consider that the appeal “would Directive; perhaps they wanted to avoid a give rise to points capable of reasonable political conflict with the European Union. argument”. You will be aware of the Privy Counsellors’ What is the suspicion? Oath which government ministers must swear: That members of the government in … You will to your uttermost bear Faith Factortame, and members of the judiciary in and Allegiance unto the Queen's Majesty; Thoburn, were not acting judiciously or in accordance with Parliamentary oaths, but were What Lord Justice Laws said in court was not motivated to avoid conflict between UK and EU reflected in his ruling. Evidently, he changed his law. The effect was that two Acts of Parliament mind. were not applied; the Merchant Shipping Act ii) Content of 1971 Confidential Note by Law 1988, and the Weights and Measures Act 1985. Officers (FCO 30/1049) Reasons for the suspicion In January 2002, a June 1971 Confidential Note The bare facts alone raise suspicion that these by Law Officers (“Legislation to give effect to Acts were compromised deliberately, and there- Community Law”) was released into the public fore unlawfully: domain.* This Note recorded the unanimous view of the four Law Officers in 1971, Failure by the Secretary of State for including the Attorney-General, that UK Transport in Factortame to argue implied legislation implementing EC law was open to repeal. implied repeal by later legislation. The Law A ruling in Thoburn that side-stepped Officers went further; they said that implied implied repeal. repeal would apply even if a later act expressly sought to protect itself from implied repeal. Failure by Law Lords to refer implied repeal to the House of Lords, despite Lord Implied repeal is a constitutional principle; it Justice Laws introducing into Thoburn the does not fade in and out with the years. It is “hierarchy of acts”. suspicious that something that was evident to Law Officers in 1971 was not regarded as The suspicion is heightened by two further “capable of reasonable argument” by three Law matters: Lords during the hearing on 15 July 2002. i) Remarks made by Lord Justice Laws during Against whom is this complaint being made? the Thoburn appeal hearing. Factortame: in the first instance, the Secretaries During the appeal hearing, prosecuting counsel of State for Transport during the relevant [Ms E Sharpston] said there could be no implied period; however, we very much doubt that repeal while the European Communities Act transport ministers would take it upon 1972 remained in place. Lord Justice Laws said, themselves to compromise Acts of Parliament, “I have a lot of difficulty with that”.