Sunday, February 27, 2005


Only three stories in this week's Booker column, the marketing department having filled the space usually occupied by the “four” with an additional advertisement. One sometimes thinks they would be happier if the editorial content could be cut out completely.

Anyhow, Booker's first story illustrates what a terrible mess successive governments have made trying to introduce metric measurements on the sly, and how this is now rebounding on home secretary Charles Clarke's plan to lock people up under house arrest without the benefit of a trial.

The problem stems from the government’s choice in 1995 to impose the latest round of compulsory metrication, implementing Community Directive 89/617/EEC, through a series of statutory instruments rather than a full-blow Act of Parliament which would have required a full-blown debate and a vote, which the government may well have lost.

What the government had overlooked at the time was that the 1985 Weights and Measures Act which permitted the continued selling of goods in pounds and ounces.

When "metric martyr" Steve Thoburn was found guilty of the criminal offence of selling bananas by the pound, it was argued on appeal that the 1985 Act effectively repealed part of the European Communities Act of 1972, under which metric weights and measures were made compulsory, and therefore the regulations under which Thoburn had been prosecuted were invalid.

However, in a landmark case in 2002, Lord Justice Laws ruled that the European Communities Act was a "constitutional statute" and therefore could not be repealed by a subsequent Act, unless it was explicitly the declared intention of Parliament , thus confounding the so-called principle of "implied repeal" where conflicting earlier statues were considered repealed by subsequent Acts.

Since the 1985 made no such intention explicit, the regulations stood and Thoburn’s conviction was upheld.

But now this judgement is rebounding on the government because Clarke’s house arrest provisions drive a coach and horses through Magna Carta, which rules that "no freeman shall be arrested or detained in prison or deprived of his liberty – except by the judgement of his peers".

If Clarke wishes to overrule Magna Carta, according to Lord Justice Laws's ruling, he must make this explicit in his Prevention of Terrorism Bill. Parliament must be given the chance to decide that in this respect it wishes to override Magna Carta.

The delicious thing about this conundrum, however, is that if Clarke refuses to accept the relevance of Laws's judgement, then the whole case against Thoburn collapses and their convictions must be overturned, thus putting the UK in breach of EU law.

But then even if, to avoid such embarrassment, Clarke does ask Parliament explicitly to set aside the relevant section of Magna Carta, he will then be advised that the Great Charter was not an Act of Parliament that can be repealed by a subsequent parliament. It was a contract in perpetuity between the sovereign and the people, which Parliament cannot undo.

Whichever way the Government plays it, Booker writes, in its continuing assault on the constitutional rights of the British people, this time it is stuffed.

For his second story, under the heading, "Parliament votes itself further into the void", Booker weaves two tales rehearsed in this Blog: Patricia Hewitt’s attempt to hijack VE Day and the account of how ineffective is Parliamentary scrutiny of EU law. Notes Booker, everything the Government does to sell the "Constitution for Europe" is becoming an embarrassment.

For his final tale, Booker looks at our “take” on the denied boarding story we also put on the Blog, also going for the title "denied safety" regulations to describe this new EU impost.

As an aside, by a remarkable coincidence, also in the same edition of the Sunday Telegraph is a story about how a BA Jumbo Jet was turned back from its journey to New York, halfway across the Atlantic, because US officials claimed one of its passengers was a "positive match with an anti-terrorism watch list".

It is an odd reflection of our times that, as in the Booker story, it is considered perfectly acceptable to fly a Jumbo from Los Angeles to London on three engines, to the point where it almost ran out of fuel and had to make an emergency landing in Manchester, yet it is deemed necessary to turn back a fully serviceable Jumbo because of – as it turned out – unwarranted suspicions about one passenger.

Sometimes, you really could not make it up.

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