Constitutional Storm Clouds Gather over Sunderland

Christopher Booker's Notebook
Sunday Telegraph
18th September 2005

Labour assault on constitution

Ministers are said to be so alarmed by the latest twist in the row over the legality of automatic penalties - the billions of pounds raised each year by parking fines, penalties for late tax returns and so forth - that they are considering emergency legislation.

This extraordinary story began with a ruling by Lord Justice Laws in the "Metric Martyrs" case that certain Acts of Parliament, such as the Bill of Rights Act 1689, are "constitutional statutes" which cannot be overridden by subsequent legislation, unless this is made "expressly clear". It was on this point that the judge decided that the Metric Martyrs, including the late Steve Thoburn, should be found guilty.

But a central provision of the Bill of Rights is that no one can be fined except by the judgment of a court. For more than a year therefore, Neil Herron, the Metric Martyrs campaign director, has been questioning the legality of the automatic parking fines imposed by the 142 councils that operate "decriminalised" parking schemes under the 1991 Road Traffic Act, since motorists penalised under these schemes have no recourse to a court. Their only appeal is to the National Parking Adjudication Service, which is run on behalf of and financed by the councils involved, and which is anyway on record denying that it is a court of law.

Sunderland city council -which originally seized Mr Thoburn's scales - had so many motorists using the "Bill of Rights defence" to justify non-payment of these automatic penalties that it sought legal advice. Eleanor Sharpston QC said that, since it was the intention of the 1991 Act that the Bill of Rights should be set aside, the penalties are legal.

Here, however, Miss Sharpston is impaled on a hook, because it was she who represented Sunderland in the metric case, which she only won because of Laws's ruling; and Laws was unequivocal in saying that the Bill of Rights can only be overridden where Parliament makes this "expressly clear".

The 1991 Act does nothing of the kind. The only way Miss Sharpston can defend her latest opinion is by rejecting the very ruling that won her the case. If she is right, the Metric Martyrs' case should be quashed.

So many people are using the "Bill of Rights defence" to justify non-payment of automatic penalties - HM Customs has backed down more than once over refusal to pay surcharges for late VAT returns - that, according to Birmingham city council last week, Government lawyers are considering emergency legislation to override the Bill of Rights.

But, as Mr Herron points out, the Bill of Rights itself only enshrines the Declaration of Rights, which was a solemn contract between Sovereign and People, and which Parliament has no power to undo.

When those Sunderland officials seized Mr Thoburn's scales in 2000, they can little have guessed what a constitutional can of worms they were about to open.