Critical Examination of Factortame Litigation and its Effect to the UK Constitution
Factortame[1] litigation is one of the most significant cases for the Law of England and Wales and the United Kingdom (UK) constitution. This essays attempts to critically examine the ways in which Factortame litigation affected the law of England and Wales and the UK uncodified constitution. A short background of the case was summarized and legal issues that have affected the law of England and Wales in particular the erosion of the concept of Parliamentary supremacy were discussed in detail.
In 1977 the European Economic Community (EEC) initiated the Common Fisheries Policy which purposively regulate and control the fishing industry to protect stocks by introducing a quota system for the Member States. Factortame involved Spanish fishermen. The Spanish fishermen in the 1980’s began to infiltrate the UK fishing market by taking advantage of the lax fishing vessel registration requirements contained in the Merchant Shipping Act 1984[2]. The act although prohibiting ownership of vessels by non-UK nationals, allowed UK registered companies to be registered as owners. The Spanish fishermen simply re-registered their vessels as company owned vessels by a registered UK company. One of those who benefited from this is the Factortame Limited, a company owned by Joseph J L Couceiro, John A Couicero and Ken L Couceiro all Spanish national and resident and domiciled in Spain. The company, Factortame Limited, re-registered 53 vessels which had formerly flown the Spanish flag as British fishing vessels under the 1894 act. They also purchased 42 existing British vessels with the intention of using them in the UK fishing zone. Most of these vessels landed their catches in Spain, but as the fish were caught in the UK waters, they comprise against the UK fishing quota. The British government intervened to end this practice and enacted thru Parliament the 1988 Merchant Shipping Act[3] and the Merchant Shipping (Registration of Fishing Vessels Regulations) were introduced. Under the new domestic law the system of registration contained in the 1984 act was repealed. They restricted registration of fishing vessels to only those with “a genuine and substantial connection” with the UK. For this to be complied the vessels must be British-owned, it should be managed, controlled and operated in the UK and any charterer, manager or operator had to be a qualified person or company which means British citizen who are resident of the UK or a company which has a majority share about 75% owned by British national whose principal place of business is the UK.
Under the Merchant Shipping Act all Factortame vessels could not qualify to re-register to fish in the UK fishing zone. Hence an action for judicial review was initiated in the UK courts in December 1988.
The legal issue on the Factortame litigation was that the Merchant Shipping Act of 1988 is contrary to the European Union (EU) law and as a result can not be imposed to the Spanish Fishermen as Spain joined the EEC in 1985. The Spanish fishermen requested that the High Court disapply the UK Act of Parliament. The court issued an injunction which temporarily suspended the Secretary of State for Transport from enforcing the Act. This issue was taken up by the Court of Appeals and later by the House of Lords (Regina v Secretary of State for Transport, Ex parte Factortame Ltd. And Others (No.2) [1990] which both confirmed that the decision of the first Court was wrong as the Courts did not have the power to suspend an Act of Parliament. The House of Lords were obliged under the European Union law to refer this matter to the European Court of Justice (European Court of Justice) which ruled that domestic courts were able to disapply a domestic law which contravened EU law and therefore the Merchant Shipping Act 1988 could not be applied.
On 11 October 1990 the House of Lord gave its judgement in the light of the European Court of Justice’s ruling and granted an injunction in favour of the Spanish fishermen. The judgement of the European Court of Justice is a point of no return in the UK constitution, the House of Lords laid the unthinkable the availability of an interim relief against the Crown, the basis on which the relief can be granted and the issue of its ruling in favour of the Spanish fishermen on the concepts of Parliamentary sovereignty.
Lord Goff acknowledged that, as a matter of Community law, interim relief had to be available in principle against the Crown under section 37 of the Supreme Court Act 1981. [4] The decision of the House of Lord to grant relief in Factortame is based on two factors. The first one being the likelihood that Factortame would suffer hardship and loss if the interim relief was not granted. Secondly which is the more important factor is the strong probability that Factortame can succeed in a full trial once ECJ’s ruled that the Spanish arguments had ‘considerable force’.
Erosion of Parliamentary Sovereignty and the European Union
With the rulings of the European Court of Justice on the Factortame case the issue of erosion of Parliamentary Sovereignty was the main content of criticism. As what Dicey[5] said “the principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.” It is clear that in the Factortame case the House of Lords set aside the Merchant Shipping Act of 1988. Some scholarly arguments would say that on the strict reading of Parliamentary sovereignty the Merchant Shipping Act 1988 was not a purposeful and direct conflict with EC Law, but was instead an attempt to give effect to the fishing quotas required under EC law. Justifying that the courts was not over-riding or striking down a domestic act of Parliament, but were instead attempting to interpret legislation to construe with the obligation of the UK under EU law as proposed by Diplock in the case of Garland v British Rail Engineering[6]. But it is clear in Factortame that the court set-aside an Act of Parliament to give way to a directly applicable community rights under the European Communities Act 1972[7]. This new power given to the court to set-aside an Act of Parliament was the first in the history of the UK constitution. Sir Robert Megarry in Manuel v AG[8] said that
“The duty of the court is to obey and apply every Act of Parliament and…the court cannot hold any such Act to be ultra vires. Of course there maybe questions about what the act means, and of course there is power to hold statutory instruments and other subordinate legislation ultra vires. But once an instrument is recognized as being an Act of Parliament, no English court can refuse to obey it or question its validity.”
To quote Willes J “If an act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it; but so long as it exist in law, the courts are bound to obey it.” Lord Reid further said “In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the revolution of 1688 any such idea has become obsolete.”
Lord Bridge reiterated that under the European Communities Act 1972, the law regulating the UK’s membership of the European Union, it had “always been clear that it was in the duty of a UK court when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law.” In the same way that Parliament had introduced legislation to remedy areas of the UK law which did not meet the standards set by EU directives, the House of Lord was now accomplishing the same task in giving judgment for Factortame. There was nothing new, in this respect, in recognizing the supremacy of EU law in the area which it applies. Although European supremacy over UK law has been stated many times as in the ECJ Case 6/64 Costa v Enel[9] ECJ said, “…the Member States have limited their sovereign rights, albeit within limited fields.” In Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen[10] the ECJ ruling states “…the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights”. This acceptance of European Union supremacy was purely theoretical in a way but not since the Factortame litigation.
Arguments both for and against erosion of Parliamentary sovereignty because of the decision of the House of Lords landmark case of Factortame seems to go on a vicious cycle. But it can be inferred safely that Factortame gave a clear and distinct guidelines to the UK court and constitution that if there is a question or conflict with Domestic Law the Community law takes precedence. It reasserts the primacy of the EU law over domestic law of member states. It also affected the balance of power in the constitution as it enabled the Judiciary to overturn the Legislature even though it has knowledge of its express will.
An academic debate as to the question of who has the ultimate say on things has not been settled. Lord Denning in McCarthy’s Ltd v Smith[11] said, “ If the time should come when our Parliament deliberately passes an Act-with the intention of repudiating the Treaty or any provision in it-or intentionally of acting inconsistently with it – and says so in express terms, then…it would be the duty of our courts to follow the statute of Parliament. This view is supported by Lord Justice Laws in the Thoburn v Sunderland City Council[12] case, when he stated, “…there is nothing in the European Communities Act which allows the European Court, or any other institution of the European Union, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom… That being so, the legislative and judicial institutions of the European Union cannot intrude upon those conditions.”
Section 2 of the European Act of 1972 provides that the UK courts are to give effect to the Acquis Communautaire, to enforce community rights and remedies, etc however ss2 and 3 did not include the possibility that the European Act of 1972 can be repealed in a future date thereby protecting the concept of Parliamentary sovereignty. Looking to the future it is almost impossible that the UK would repudiate its inclusion with the European Union but theoretically it is possible to assert Parliamentary sovereignty in the future making it an open option though deemed unthinkable as of present situation. But as of present time and with the precedent laid comprehensively by the Factortame case the European Union Supremacy is asserted within the context of the United Kingdom as a member state of the European Union.
Summary:
The Factortame case was a landmark case as it was the first known case in England and Wales that affirmed EU supremacy over national law in the areas where the European Union has competence. It is also the first time that a national court disapplied an Act of Parliament which before Factortame was unthinkable as enshrined in the doctrine of Parliamentary supremacy. The constitution of the UK is very clear in that Parliament is supreme and the judiciary is subservient to it. In so doing the Factortame litigation evolved the Judiciary from its former and traditional interpretative function to a constitutional court. It has given the judiciary with the new powers never before seen and was previously unimaginable in the UK law.
[1] [1991] A.C. 603; [1990] 3 W.L.R. 818; [1991] 1 All E.R. 70; [1991] 1 Lloyd’s Rep 10; [1990] 3 C.M.L.R. 375; (1991) 3 Admin. L.R. 333; (1990) 140 N.L.J. 1457; (1990) 134 S.J. 1189
[2] Merchant Shipping Act 1984. (c.5), London: HMSO.
[3] Merchant Shipping Act 2008. (c.12), London: HMSO
[4] Supreme Court Act 1981. (c.54), London: HMSO
[5] Dicey A.V., 1915. Introduction to the study of the law of the constitution. 8th ed
[6] Garland v British Rail Engineering Ltd [1982] ICR 420
[7] European Community Act 1972. (c.68), London: HMSO
[8] Manuel and others v H.M. Attorney General [1982] 3All ER 822
[9] C6/64 Flaminiano Costa v ENEL [1964] ECR 585, 593
[10] C26/62 N V Algemene Transport –En Expeditie Onderneming Van Gend en Loos v Nederlandse Administratie der Belastingen
[11] C129/79 Macarthy’s Ltd v Wendy Smith
[12] Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151
Thursday, 11 December 2008
Friday, 28 November 2008
Principles of Legal Writing
Never use one word where ten will do.
Never use a small word where a big one will do...suffice.
Never use a simple statement where it appears that one substantially greater complexity will achieve similar goals.
Never use plain English where Latin 'mutatis mutandis' will do.
Qualify virtually everything.
Do not be embarassed about repeating yourself.
Do not be embarassed about repeating yourself.
Do not be embarassed about repeating yourself.
Worry about the difference between 'which' and 'that'.
Never refer to one's opponent's 'argument'. He make's 'assertions' and they are always 'bold'.
If a layperson can read a document from beginning to end without falling asleep...it needs work.
Today I was working on an employment dispute case that I am going to present tomorrow. I was really surprised by the fact that I made my own coffee and I was drinking it while scribbling my defense for the next day hearing. I used to shun the thoughts of big, fat, lawyers drinking coffee as a totally unhealthy mix-up. But now im a convert, I started liking my coffee while working on my computer. Hmmm very bad indeed.
Never use a small word where a big one will do...suffice.
Never use a simple statement where it appears that one substantially greater complexity will achieve similar goals.
Never use plain English where Latin 'mutatis mutandis' will do.
Qualify virtually everything.
Do not be embarassed about repeating yourself.
Do not be embarassed about repeating yourself.
Do not be embarassed about repeating yourself.
Worry about the difference between 'which' and 'that'.
Never refer to one's opponent's 'argument'. He make's 'assertions' and they are always 'bold'.
If a layperson can read a document from beginning to end without falling asleep...it needs work.
Today I was working on an employment dispute case that I am going to present tomorrow. I was really surprised by the fact that I made my own coffee and I was drinking it while scribbling my defense for the next day hearing. I used to shun the thoughts of big, fat, lawyers drinking coffee as a totally unhealthy mix-up. But now im a convert, I started liking my coffee while working on my computer. Hmmm very bad indeed.
Saturday, 1 November 2008
General Principles of EU Law
Critical Evaluation of the Role of the European Court of Justice under Article 220 to Draw on General Principles of Law from the Legal System of the Member States
Article 220 European Community (EC) charges the European Court of Justice (ECJ) with the duty of ensuring that in the interpretation and application of the Treaty the law is observed. Other Treaty articles make specific reference to general principles, for example, subsidiarity, proportionality and equality, and Article 230 provides that one ground of review of illegality is the infringement of "any rule of law" relating to the application of the Treaty. Moreover, Article 6 of the Treaty of the European Union (TEU) provides that the European Union (EU) is founded upon principless of liberty, democracy, respect for human rights and fundamental freedom and the rule of law, principles that are common to the Member States. These provisions added together may supply some (or complete) justification for the development of general principles within the ECJ's jurisprudence. Whether it has always been clear that the ECJ would have to do so is debatable. It should be noted that the TEU did not come into force until 1993 and in the absence of travaux preparatoires, it is not known what the draftsmen of the EEC Treaty (as it then was) originally intended.
Over time a significant number of general principles has been adopted by the ECJ, principles which are in turn binding upon the national courts. The ECJ has relied upon general principles as an aid to interpretation in or determining the validity of acts of the institutions of the EC, as a way of controlling the acts of national authorities when they are carrying out Community tasks and generally in order to fill the gaps in the law. There is no space here to do more than mention a few of the principles themselves.
It could be argued that judges in all courts sometimes have to call in aid unwritten rules or norms in order to fill gaps so as to be able to decide the cases before them. Early in the history of the ECJ, when the court was dealing with questions under the ECSC, it was realised by the Advocate General (AG) that the rules laid down for the implementation of that Treaty were not necessarily sufficiently comprehensive to resolve all disputes. AG Roemer said in Netherlands v High Authority (1954) that the ECJ must take account of the law of the different Member States in order to interpret Community law and AG Lagrange pointed out in 1955 (Federation Charbonniere de Belgigues v High Authority) that the ECJ could not refuse to give a ruling because of a lacuna in Community law. In 1957 (Algera & Others v Assembly) the ECJ itself made specific reference to the provisions of French, German and Italian law because it appeared necessary to reach a decision.
With hindsight, it could indeed be argued that the ECJ did 'have to accept' that the principles of fundamental rights are part of Community law as is evident from a series of cases involving a dialogue, in effect, with the German Constitutional Court. This took place long before the TEU. At first the ECJ was not sympathetic to the argument that Community law should comply with fundamentl rights guaranteed by the German Basic law but fairly soon the ECJ changed tack and declared that fundamental rights were part of Community law. The ECJ to be at odds with any Constitutional court on matters of Community law. The ECJ could not allow Community law to be subject to national norms. Stauder was the first case in which the ECJ was prepared to accept that the applicant's argument based on the fundamental right of respect for human diginity was relevant. The new approach was developed and further explained in the Handelgessellschaft case. The court ruled, in response to an argument that the EC measure at issue should be held against national (constitutional) norms, that, on the contrary, it had to be judged in the light of Community law because any other answer would damage the effectiveness of Community law -each Member State could produce a different answer. The ECJ went on to state that the respect for human rights "forms an integral part of the general principles of Community law" which the court would protect. Such protection of general principles was "inspired" by the constitutional traditions common to the Member States, the court said. It is not strictly relevant to this essay to note that wehn the ECJ's answer was sent to the German Court, that court decided, contrary to the ruling, that the national principle of proportionality had indeed been violated by the system of deposits under the EC measure.
The ECJ continued to justify and further clarify its embracing of fundamental right in Hauer. The court repeated what it had already said in Nold that it would not only draw inspiration from national constitutional norms but also from international treaties of which the Member States were signatories. Such norms supplied guidelines which had to be followed in interpreting Community law. In Hauer the European Convention of Human Rights and Fundamental Freedoms is expressly mentioned, specifically, the first protocol, which was relevant to Hauer's claim. Since 1993, the principles listed in the ECHR appear in Community legislation and Convention rights have been regularly relied upon in argument.
The principle of non-discrimination, unlike fundamental human rights, had a textual basis in the EC Treaty from the beginning. After amendments of the Treaty, it now appears in articles 12 and 13, all the free movement provisions and the equal treatment of men and women in Article 141 and others. Nevertheless the ECJ has itself developed the scope or reach of the principle, sometimes contentiously, as in P v S. There are Treaty provisions which allow a Member State to derogate from the equal treatment principle. The difficult situations for the court to resolve have tended to be those that involved indirect discrimination, for example, a language requirement of national law whose purposes is valid and recognized, as in Groener and Angonese. The ECJ developed the approach of requiring objective justification for the derogation-to show that it was not disguised protectionism or discrimination-but such justification was only acceptable if it was not disproportionate.
Proportionality itself as a general principle has been explained and applied by the ECJ although initially there was no textual basis for it. There is now a textual basis for it both in Article 5 EC and also in an additional protocol under the Treaty of Amsterdam. According to Craig and de Burca the concept was most fully developed by the German courts. Proportionality means, in this context, that a Community measure, whether it is legislation or a decision of the institutions, or national measure with a Community aspect, must not go beyond what is necessary to achieve the aim of the measure. The application of the principles of proportionality requires a court to perform a balancing act between competing interests, for example, when an individual asserts that her right has been unduly restricted by a Community measure. This was the position in Hauer where a wine producer challenged a Community limitation on the planting of new vines of particular type. The correct balance had to be achieved between the wine producer's right to property as against the general scheme of the Common Agricultural Policy. It was a temporary measure designed to deal with the problem of the 'wine lake' and the ECJ ruled that whilst Community law protects fundament rights, on the facts, the claimant's right was not disproportionately infringed.
The FEDESA case provides an example fo a challenged to a more general Community policy to reduce the use of growth hormones in animal feed. The ECJ has often had to examine closely the arguments in such cases in order to decide whether a Community measure is disproportionate within the general policy. This has been on order to give proper guidance to a national referring court which has to apply the principles to the facts.
It is arguable that the most crucial step taken by the ECJ was in accepting jurisdiction to answer questions referred to it by national court at the beginning. Given the strong arguments of the Member States on this admissibility issue at that time it seems likely that the creation of the "new legal order" , what it has become, was not foreseen. Once the ECJ accepted that it had a duty to transfer questions referred to it, then it could be said that the development of general principles became necessary in order to deal with disputes before that court. It is the Advocates General who have provided fuller accounts of those principles and their provenance in their opinions.
Over time a significant number of general principles has been adopted by the ECJ, principles which are in turn binding upon the national courts. The ECJ has relied upon general principles as an aid to interpretation in or determining the validity of acts of the institutions of the EC, as a way of controlling the acts of national authorities when they are carrying out Community tasks and generally in order to fill the gaps in the law. There is no space here to do more than mention a few of the principles themselves.
It could be argued that judges in all courts sometimes have to call in aid unwritten rules or norms in order to fill gaps so as to be able to decide the cases before them. Early in the history of the ECJ, when the court was dealing with questions under the ECSC, it was realised by the Advocate General (AG) that the rules laid down for the implementation of that Treaty were not necessarily sufficiently comprehensive to resolve all disputes. AG Roemer said in Netherlands v High Authority (1954) that the ECJ must take account of the law of the different Member States in order to interpret Community law and AG Lagrange pointed out in 1955 (Federation Charbonniere de Belgigues v High Authority) that the ECJ could not refuse to give a ruling because of a lacuna in Community law. In 1957 (Algera & Others v Assembly) the ECJ itself made specific reference to the provisions of French, German and Italian law because it appeared necessary to reach a decision.
With hindsight, it could indeed be argued that the ECJ did 'have to accept' that the principles of fundamental rights are part of Community law as is evident from a series of cases involving a dialogue, in effect, with the German Constitutional Court. This took place long before the TEU. At first the ECJ was not sympathetic to the argument that Community law should comply with fundamentl rights guaranteed by the German Basic law but fairly soon the ECJ changed tack and declared that fundamental rights were part of Community law. The ECJ to be at odds with any Constitutional court on matters of Community law. The ECJ could not allow Community law to be subject to national norms. Stauder was the first case in which the ECJ was prepared to accept that the applicant's argument based on the fundamental right of respect for human diginity was relevant. The new approach was developed and further explained in the Handelgessellschaft case. The court ruled, in response to an argument that the EC measure at issue should be held against national (constitutional) norms, that, on the contrary, it had to be judged in the light of Community law because any other answer would damage the effectiveness of Community law -each Member State could produce a different answer. The ECJ went on to state that the respect for human rights "forms an integral part of the general principles of Community law" which the court would protect. Such protection of general principles was "inspired" by the constitutional traditions common to the Member States, the court said. It is not strictly relevant to this essay to note that wehn the ECJ's answer was sent to the German Court, that court decided, contrary to the ruling, that the national principle of proportionality had indeed been violated by the system of deposits under the EC measure.
The ECJ continued to justify and further clarify its embracing of fundamental right in Hauer. The court repeated what it had already said in Nold that it would not only draw inspiration from national constitutional norms but also from international treaties of which the Member States were signatories. Such norms supplied guidelines which had to be followed in interpreting Community law. In Hauer the European Convention of Human Rights and Fundamental Freedoms is expressly mentioned, specifically, the first protocol, which was relevant to Hauer's claim. Since 1993, the principles listed in the ECHR appear in Community legislation and Convention rights have been regularly relied upon in argument.
The principle of non-discrimination, unlike fundamental human rights, had a textual basis in the EC Treaty from the beginning. After amendments of the Treaty, it now appears in articles 12 and 13, all the free movement provisions and the equal treatment of men and women in Article 141 and others. Nevertheless the ECJ has itself developed the scope or reach of the principle, sometimes contentiously, as in P v S. There are Treaty provisions which allow a Member State to derogate from the equal treatment principle. The difficult situations for the court to resolve have tended to be those that involved indirect discrimination, for example, a language requirement of national law whose purposes is valid and recognized, as in Groener and Angonese. The ECJ developed the approach of requiring objective justification for the derogation-to show that it was not disguised protectionism or discrimination-but such justification was only acceptable if it was not disproportionate.
Proportionality itself as a general principle has been explained and applied by the ECJ although initially there was no textual basis for it. There is now a textual basis for it both in Article 5 EC and also in an additional protocol under the Treaty of Amsterdam. According to Craig and de Burca the concept was most fully developed by the German courts. Proportionality means, in this context, that a Community measure, whether it is legislation or a decision of the institutions, or national measure with a Community aspect, must not go beyond what is necessary to achieve the aim of the measure. The application of the principles of proportionality requires a court to perform a balancing act between competing interests, for example, when an individual asserts that her right has been unduly restricted by a Community measure. This was the position in Hauer where a wine producer challenged a Community limitation on the planting of new vines of particular type. The correct balance had to be achieved between the wine producer's right to property as against the general scheme of the Common Agricultural Policy. It was a temporary measure designed to deal with the problem of the 'wine lake' and the ECJ ruled that whilst Community law protects fundament rights, on the facts, the claimant's right was not disproportionately infringed.
The FEDESA case provides an example fo a challenged to a more general Community policy to reduce the use of growth hormones in animal feed. The ECJ has often had to examine closely the arguments in such cases in order to decide whether a Community measure is disproportionate within the general policy. This has been on order to give proper guidance to a national referring court which has to apply the principles to the facts.
It is arguable that the most crucial step taken by the ECJ was in accepting jurisdiction to answer questions referred to it by national court at the beginning. Given the strong arguments of the Member States on this admissibility issue at that time it seems likely that the creation of the "new legal order" , what it has become, was not foreseen. Once the ECJ accepted that it had a duty to transfer questions referred to it, then it could be said that the development of general principles became necessary in order to deal with disputes before that court. It is the Advocates General who have provided fuller accounts of those principles and their provenance in their opinions.
Friday, 31 October 2008
Parliamentary sovereignty versus Community law supremacy
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.
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