Outline the change in attitude of English courts since 1973 on the issue of the interpretation and status of national legislative provisions that are in conflict with EC law.
The European Community Act 1972 (ECA) came into force in 1973. Section 2 provides that UK courts are to give effect to the acquis communautaire, to enforce Community rights and remedies, etc. It was widely accepted at the time when the Bill was debated in Parliament that ss2 and 3 did not exclude the possibility that the ECA could be repealed at some future date and so in this way it could be said that the doctrine of parliamentary sovereignty was not affected. The judicial explanation of the interaction between Community and national law and the issue of supremacy of Community law has evolved over time in the English court and will be described in this essay.
The essential point with which the judges have had to grapple is contained in s2(1) ECA where it is provided that all Community law, whenever enacted, is to be given effect in English law and further in s2(2) which states that all enactments of Parliament "passed or to be passed" are to be given effect in accordance with s2.
Initially the approach of the English judges, when having to deal with inconsistencies between Community law and domestic legislation, was to rely on statutory interpretation, thus avoiding the issue of sovereignty. Thus, for example, Lord Denning in the Bulmer v Bollinger (1974) case said that the EEC Treaty (as it was then) is now "part of our law. It is equal in force to any statute". But the real question that the English court has had to come to term with is the question of the supremacy, not equality, of Community law over English law in cases of conflict. In 1979 in Macarthy's v Smith Lord Denning, who failed on this occassion to persuade his fellow judges sitting with him in the Court of Appeal, said that Community law was an "overriding force" with the result that precedence had to be given to it whenver there was inconsistency. The conflict in that case was between Article 119 EEC (now 141 EC) and the Equal Pay Act. Eventually when the answer came back from the ECJ to the questions referred to it, the Court of Appeal felt able to 'construe' the statute to comply with the Treaty obligation.
A constitutional problem is to do with the separation of powers doctrine, in particular, the traditional role of the judiciary which is/was to do no more than interpret the will of Parliament. The traditional methods employed by the English judiciary in order to perform this function proved to be unequal to the task once the UK became a Member State of the European Community leading to the development of purposive interpretation and it is this development that exercised the judges at the beginning. Another early example of the judicial reluctance to address directly the sovereignty point is provided by Lord Diplock's words in Garland (1982) where he said that it was a principle of statutory interpretation (that did not any longer need a citation of authority as it was so well established) that an English scourt will always construe a relevant statute so as to comply with the UK's international obligations. But the point is that many cases ended up in the House of Lords during a period of uncertainty.
By 1989 the House of Lords was able to construe legislative provisions without the need for a reference of the ECJ in the case of Litster v Forth Dry Dock. Admittedly the provisions in question were contained in a statutory instrument (rather than a statute) that was put in place pursuant to a Directive but nevertheless it seemed to mark a significant change in the judicial attitude that the House was willing to stray as far as it did from the wordings of the legislation. The effect of deciding that the Regulations (TUPE) had to be interpreted so that they are in conformity with the UK's obligations under the Treaty was to read into that legislation the words "or would have been so employed had they not been unfairly dismissed". The assumption was that the UK intended to comply with its obligations under the Directive.
The statutory interpretation approach became untenable in the course of the Factortame litigation, however. The main procedural question initially was whether an English court could grant interim relief (to suspend the operation of a statute until the issue of the substantive inconsistency between the Merchang Shipping Act of 1988 and EEC Treaty articles was settled by the ECJ on a preliminary reference) to the Spanish claimants. The House of Lords on appeal from the Court of Appeal agreed with that court that it was not possible to grant an injunction against the Crown (sovereign Parliament). The ECJ's answer on the interim relief point was that the Community rights must be protected by the national court to ensure the effectiveness of the Treaty and so the English national court had to set aside any national law that prevented it from enforcing Community rights. Thus English rules about whether an injunction will lie against the Crown had to be abandoned when there was a Community issue before the court.
When the ECJ's answer was received by the House of Lords, Lord Bridge was able to say with considerable confidence and contrary to what he had said earlier, before the question was referred, that if the supremacy of Community was not always inherent in the Treaty, it was certainly well established by the time the UK joined the Community in 1973.
The English court had to do the constitutionally unthinkable in Factortame: not only grant interim relief where had never been granted previously but also to disapply a Parliamentary Act. As there is no constitutional court in the UK there had never before existed a power for the judiciary, in effect, to hold invalid an Act of Parliament. In terms of status, therefore, it could be said that EC law takes precedence over national legislation.
Lord Bridge was right in what he said in Factortame. The cases of Van Gend and Costa in the 1960's made clear that to some extent, that is, within the scope of the Treaty, Member States had limited their sovereignty when they created a new legal order of unlimited duration with its own autonomous institutions. The new legal order, said the ECJ, allowed individuals to rely upon their Treaty rights within their national courts and therefore if national provisions were enacted in breach of that Member State's obligations then it was the duty of the national court to accord precedence to Community law. This was the legal order that the UK joined in 1973 but it took the judiciary some time before it could be so clearly articulated.
A more recent illustration of the change in attitude in the English court is to be found in the Equal Opportunities case (R v Secretary of State for Employment ex p Equal Opportunities Commission, 1995). The case was a challenge by the EOC to provisions of the Employment Protection (Consolidation) Act 1978, as amended, under which part-time workers were disadvantaged compared to full time workers contrary to the equal treatment directives. Such disadvantages had been held by the ECJ numerous times to be indirect discrimination. The House of Lords, without referring a questions to the ECJ and relying on the authority of Factortame, declared that the provisions of the statute were discriminatory and so contrary to Community law and also stated that the Divisional Court, which hears applications for judicial review, is the appropriate court to make such a declaration in future cases of this nature.
Laws LJ, in the Metric Martyrs case (2003) gave primacy to the common law however, in that it is the judges who examine and describe the relationship between the EU and the UK. He held that the ECA is a constitutional statute which cannot impliedly repealed.
The European Community Act 1972 (ECA) came into force in 1973. Section 2 provides that UK courts are to give effect to the acquis communautaire, to enforce Community rights and remedies, etc. It was widely accepted at the time when the Bill was debated in Parliament that ss2 and 3 did not exclude the possibility that the ECA could be repealed at some future date and so in this way it could be said that the doctrine of parliamentary sovereignty was not affected. The judicial explanation of the interaction between Community and national law and the issue of supremacy of Community law has evolved over time in the English court and will be described in this essay.
The essential point with which the judges have had to grapple is contained in s2(1) ECA where it is provided that all Community law, whenever enacted, is to be given effect in English law and further in s2(2) which states that all enactments of Parliament "passed or to be passed" are to be given effect in accordance with s2.
Initially the approach of the English judges, when having to deal with inconsistencies between Community law and domestic legislation, was to rely on statutory interpretation, thus avoiding the issue of sovereignty. Thus, for example, Lord Denning in the Bulmer v Bollinger (1974) case said that the EEC Treaty (as it was then) is now "part of our law. It is equal in force to any statute". But the real question that the English court has had to come to term with is the question of the supremacy, not equality, of Community law over English law in cases of conflict. In 1979 in Macarthy's v Smith Lord Denning, who failed on this occassion to persuade his fellow judges sitting with him in the Court of Appeal, said that Community law was an "overriding force" with the result that precedence had to be given to it whenver there was inconsistency. The conflict in that case was between Article 119 EEC (now 141 EC) and the Equal Pay Act. Eventually when the answer came back from the ECJ to the questions referred to it, the Court of Appeal felt able to 'construe' the statute to comply with the Treaty obligation.
A constitutional problem is to do with the separation of powers doctrine, in particular, the traditional role of the judiciary which is/was to do no more than interpret the will of Parliament. The traditional methods employed by the English judiciary in order to perform this function proved to be unequal to the task once the UK became a Member State of the European Community leading to the development of purposive interpretation and it is this development that exercised the judges at the beginning. Another early example of the judicial reluctance to address directly the sovereignty point is provided by Lord Diplock's words in Garland (1982) where he said that it was a principle of statutory interpretation (that did not any longer need a citation of authority as it was so well established) that an English scourt will always construe a relevant statute so as to comply with the UK's international obligations. But the point is that many cases ended up in the House of Lords during a period of uncertainty.
By 1989 the House of Lords was able to construe legislative provisions without the need for a reference of the ECJ in the case of Litster v Forth Dry Dock. Admittedly the provisions in question were contained in a statutory instrument (rather than a statute) that was put in place pursuant to a Directive but nevertheless it seemed to mark a significant change in the judicial attitude that the House was willing to stray as far as it did from the wordings of the legislation. The effect of deciding that the Regulations (TUPE) had to be interpreted so that they are in conformity with the UK's obligations under the Treaty was to read into that legislation the words "or would have been so employed had they not been unfairly dismissed". The assumption was that the UK intended to comply with its obligations under the Directive.
The statutory interpretation approach became untenable in the course of the Factortame litigation, however. The main procedural question initially was whether an English court could grant interim relief (to suspend the operation of a statute until the issue of the substantive inconsistency between the Merchang Shipping Act of 1988 and EEC Treaty articles was settled by the ECJ on a preliminary reference) to the Spanish claimants. The House of Lords on appeal from the Court of Appeal agreed with that court that it was not possible to grant an injunction against the Crown (sovereign Parliament). The ECJ's answer on the interim relief point was that the Community rights must be protected by the national court to ensure the effectiveness of the Treaty and so the English national court had to set aside any national law that prevented it from enforcing Community rights. Thus English rules about whether an injunction will lie against the Crown had to be abandoned when there was a Community issue before the court.
When the ECJ's answer was received by the House of Lords, Lord Bridge was able to say with considerable confidence and contrary to what he had said earlier, before the question was referred, that if the supremacy of Community was not always inherent in the Treaty, it was certainly well established by the time the UK joined the Community in 1973.
The English court had to do the constitutionally unthinkable in Factortame: not only grant interim relief where had never been granted previously but also to disapply a Parliamentary Act. As there is no constitutional court in the UK there had never before existed a power for the judiciary, in effect, to hold invalid an Act of Parliament. In terms of status, therefore, it could be said that EC law takes precedence over national legislation.
Lord Bridge was right in what he said in Factortame. The cases of Van Gend and Costa in the 1960's made clear that to some extent, that is, within the scope of the Treaty, Member States had limited their sovereignty when they created a new legal order of unlimited duration with its own autonomous institutions. The new legal order, said the ECJ, allowed individuals to rely upon their Treaty rights within their national courts and therefore if national provisions were enacted in breach of that Member State's obligations then it was the duty of the national court to accord precedence to Community law. This was the legal order that the UK joined in 1973 but it took the judiciary some time before it could be so clearly articulated.
A more recent illustration of the change in attitude in the English court is to be found in the Equal Opportunities case (R v Secretary of State for Employment ex p Equal Opportunities Commission, 1995). The case was a challenge by the EOC to provisions of the Employment Protection (Consolidation) Act 1978, as amended, under which part-time workers were disadvantaged compared to full time workers contrary to the equal treatment directives. Such disadvantages had been held by the ECJ numerous times to be indirect discrimination. The House of Lords, without referring a questions to the ECJ and relying on the authority of Factortame, declared that the provisions of the statute were discriminatory and so contrary to Community law and also stated that the Divisional Court, which hears applications for judicial review, is the appropriate court to make such a declaration in future cases of this nature.
Laws LJ, in the Metric Martyrs case (2003) gave primacy to the common law however, in that it is the judges who examine and describe the relationship between the EU and the UK. He held that the ECA is a constitutional statute which cannot impliedly repealed.
