Evolution of Law and Parliamentary Sovereignty

The evolution of law is a remarkable process sometimes slow and indistinct and at other quite vehement and very clear in its approach. In the case of Factortame [1] the evolution was so watershed that suffered mass publicity and left commentators divided. It may well be that this can be described as a revolutionary change to the perception of what the law and sovereignty was [2].

Up and until the decision the traditional view of Sovereignty was that which AV Dicey [3] described as the sovereign power held by the United Kingdom for the British. The doctrine of Parliamentary Sovereignty presupposes that no party can challenge any enactment in that any enactment by parliament represents Supreme law that can only be amended, read down altered or revoked by Parliament [4].

The right of Parliament to make laws, as it deems fit, means all issues of public interest may be regulated without effecting any previous legislation. By ascribing this power to Parliament all other functionaries are tasked with applying the principles so determined. That infers that the courts are compelled to give effect to the legislation with the overriding consideration that effect must be afforded to the sovereignty of Parliament.

The courts thus apply the law with reference to the principle of Parliamentary Sovereignty, in practice this meant that the judges deemed themselves bound to give expression to the principles. In the Madzimbamuto v Lardner-Burke case [5], Fieldsend AJA of the Rhodesian Appellate Division stated that,

“… A court created by written constitution can have no independent existence apart from that constitution; it does not receive its power from the common law and decide what its own powers are…”

The European Community

The doctrine of Parliamentary Sovereignty is limited and restricted within the European Union by the operation of Community Law in that Member States agree to the principle of the supremacy of Community Law.

The European Court of Justice has determined that Community Law infers on subjects rights and obligations that become part of their legal system. The effect of the power of the Community Law is that is subjugates the power of Parliament to be the Supreme law maker.

The principle has a number of detractors including legal commentators as to the application of the provisions of the European Union Treaties been able to restrict the power of Parliament to act in accordance with the provisions of the treaties and undertakings [6].

The principle that Community law overrides inconsistent statutes in Member States has been established in a number of cases. The first of these cases was Van Gend v Loos [7] where the European Court of Justice held that the Community Law was a new legal order created by the member’s states with the insight that by so doing the member states had limited their sovereign rights. This gave birth to the doctrine that Community Law had direct effect over the powers of the member states to make laws subject to their parliamentary Sovereignty. The court further referred to the fact that the member states acknowledged the fact that the Community Law has force and effect that bound the national courts to apply the law of the European Union, as embodied in the treaties

The principles were soon hereafter decided in clearer terms in the case of Costa v ENEL [8] in that the European Court of Justice inferred that the doctrine of supremacy and sovereignty was limited by member states in favour of a broader institution that assumed the collective right to the European Community to create a body of law that bound the member states and their nationals.

In the case of Internationale Handelsgesellschaft [9] the European Court of Justice decided that that Community law prevailed over the fundamental constitutional law of a Member State and that constitutional provisions were subordinated by the provisions of Community law.

Whilst the principles were clear the position in the United Kingdom was still rigid in that the evolution had not hit home until 1988 with the amendment of the Merchant Shipping Act 1988 and the associated Regulations.

Factortame Case

The facts

The case [10] dealt with a United Kingdom registered Company that was owned and controlled by a number of Spanish nationals. This Company engaged in fishing activities in the United Kingdom’s territorial waters. Principally the reason for establishing the business in the United Kingdom was to bypass fishing quota exemptions available to United Kingdom nationals and companies.

The Merchant Shipping Act 1984 prescribed that no foreigner was permitted to register a fishing vessel; however nothing precluded a UK Company from utilising the provisions of the Merchant Shipping Act 1984 to register fishing vessels. The Company exploited the grey area of law and consequently registered 53 formerly registered Spanish fishing vessels and acquired 42 vessels in the UK. The Company thus had access to the UK fishing industry albeit landing the catches in Spain.

The Company petitioned the Court in the United Kingdom against the prohibition by the UK Government under the provisions of Merchant Shipping Act and Regulations [11] that sought to prevent foreigners from exploiting the grey area and prescribing guidelines to be complied with prior to a vessels being registered as a United Kingdom vessel and hence authorised to fish within UK territorial waters.

The Merchant Shipping Act and Regulations [12] introduced as test as to the origin of the owners of a vessel whether directly or beneficially and provided that if foreign owners held an interest in a UK Corporate that any vessel would be disqualified from registration.

If the vessels were precluded from registration then the Company could not fish within the UK fishing grounds as from the 1st April 1989, this established an element of urgency and the Company brought the challenge on that basis.

The arguments

The Company argued that it was authorised to fish within any area which was common or regulated under the laws applicable to the European Economic Community. The Company argued that the restrictions were contrary to Community Law as;

A breach of Article 7 of the Treaty of Rome in that it sought to discriminate between individuals of member states on the ground of nationality,

A breach of Article 43 -48 of the Treaty of Rome as it interfered with the right of individuals of member states to establish their businesses in any member state,

A breach of Article 294 in that the individual’s right to participate in the capital of companies in other member states.

Her Majesty’s Government argued that the principle of sovereignty dictated that each state could determine how vessel registration was conducted and that Community law had did not obviate that right. It further argued that the provisions of the Merchant Shipping Act and Regulations [13] were consistent with the fishing policies of the European Community.

The Decisions

The Divisional Court of the Queen’s Bench determined that it had the power to grant injunctive relief and ordered a suspension of the Merchant Shipping Act and Regulations [14] and held that the registrations of the vessel under the 1894 Act which should continue until a final decision was made.

The Secretary of State appealed against decision and the Court of Appeal held that in terms of the doctrine of Parliamentary Sovereignty the United Kingdom courts were bound to apply the laws of Parliament and did not have the power to void legislation issued by Parliament.

The doctrine effectively prevented the court granting injunctive relief to parties and the courts had no power to suspend acts of Parliament.

The House of Lords confirmed the Court of Appeal’s decision and held that injunctive relief was not available as against the government as it is presumed that all acts are binding as supreme law and consistent with Community Law unless and until the European Court of Justice determines otherwise.

The House of Lords stayed the proceedings in accordance with Article 234 of the EC Treaty and referred the matter to the European Court of Justice.

The House of Lords sought clarification from the European Court of Justice whether national courts in the United Kingdom had the power to grant injunctive relief to enable nationals to be afforded protection against breaches of Community Law.

The question went further in that the House of Lords sought to establish if injunctive relief was granted whether the national courts would have the right to set aside legislation that did not conform to Community Law.

The European Court of Justice determined that if the only preclusion to granting injunctive relief in order to give effect to Community Law was the national laws of a member state then that national law ought to be set aside.

The House of Lords [15] following the European Court of Justice’s determination interdicted the Secretary of State from withdrawing registrations under the Merchant Shipping Act 1988.

A by-product of the judgment was the fact that the decision revoked the principle at common law that inferred that injunctions could not be obtained against the government.

Commentary of the case

The main point of criticism arising from the decision is the lack of relationship between statutes and directly effective European provisions. The tenure of the European Court of Justice rather than clearly enunciating the point that National Law is bound to follow Community Law has provided the concept as of “as far as possible” [16] complying with the Community Law. This approach is criticised by some authors as it infers “indirect effect” rather than “direct effect” as was inferred in the judgement by Lord Bridge [17].

Wade [18] argues that the revolution has taken place with drastic legal consequence. He goes on to describe the revolution as fully subscribed and contrary to the construction view in the Factortame case [19].

He contends that Lord Bridge of Harwich’s [20] action to “disapply” the provision of the Merchant Shipping Act 1988 as being proof of the revolutionary rather than the statutory construction of laws method.

Wade argues that the case as finally decided infers that European Community Law takes precedence over Parliamentary Statute and that the Courts are able to declare laws incompatible with European Community law but also clearly suspend the operation of the law in circumstances as described by Lord Bridge [20].

P.P. Craig [21] infers that after analysing the two theories that Lord Bridge applied the constructive approach he goes on to say that the construction view is in essence more appealing to judges as it is based on the pretext of Parliamentary Sovereignty. He does criticise Lord Bridge in that he states that the reasoning of the judgment does not accord with the traditional view, but he does appear to accord with the judgement with the constructive view.

The judgment was publically criticised in the popular press and by some legal commentators [22] as the United Kingdom losing its Sovereignty in favour of a broader community act that the British people had not control over.

Finally as one would expect Lord Justice Laws waded in on the debate [23] he infers that for Sovereignty of Parliament to supersede Community Law all that Parliament has to do is to provide expressly for the later Act to prevail over any conflicting Community law. His argument goes that once Parliament does this the Act becomes law and the matter is settled. He distinguishes and ranks laws as to those that can be implied varied and those of higher standing (as described below).

Evolution since the case

There have been a number of cases showing a clear evolution in the acceptance of a subjugation of national law in favour of Community Laws, the first of these is the Equal Opportunities Commission case [24] where the House of Lords held that applicants had the right to seek redress before any National Court to seek judicial review of any national legislation that conflicted with Community Law.

Lord Oliver held in the Pickstone and others v Freeman’s case [25] that the EEC Treaty authorized the plaint and overrode conflicting national legislation. In addition the Court held that any National Legislation must be interpreted with reference to Community Law. The judgement set a presumption that Parliament would not engage in laws that were contrary to the United Kingdom’s International treaty obligations.

In the case of Lister v Forth Dry Dock [26] the House of Lords held that it is bound to interpret Community Law purposively as to ensure that the purpose of the Community Law is achieved even if this means giving it a meaning other than that suggested by a literal reading of the text. In the case the House of Lords rewrote the relevant regulations so as to prevent employers evading the Transfer of Undertakings (Protection of Employment) Regulations 2006 by dismissing employees a few hours before a transfer of a business.

In the Thoburn V City of Sunderland cases [27] concerned a number of traders that sold goods contrary to the regulations made under the European Communities Act 1972. These regulations enforced sale of goods by metric measurement. The traders defence was the doctrine of implied repeal as in their assertion the Weights and Measures Act 1985 that permitted the use of either the metric or imperial system as to determine weight.

Laws LJ held that the European Communities Act 1972 was a constitutional statute and as such the Weights and Measures Act 1985 was subordinate to it, as it was a higher statute the doctrine of implied repeal did not apply to the cases.

The case of Arsenal Football Club PLC V. Reed [28] shows the sometime tenuous relationship between the National Courts and the accession to Community Law. The issue here was the infringement of the Arsenal Football clubs right to a trademark. The defence raised an issue of construction of the First Council Directive (EEC) 89/104. The Court referred the matter to the European Court of Justice and determined not to follow the direction of the European Court of Justice; on appeal the Court held that national courts were bound to follow the determinations of the European Court of Justice.

Conclusion

An observation I made in reading the case and subsequent evolution is that the National Courts are obliged to follow the decision of the European Court of Justice. That said the European Court of Justice does not always consistently apply previous cases as is the case in the United Kingdom under the principles of Stare Decisis. This is apparent in a number of decisions culminating in the decision of Boor V Ministere De La Fonction case [29].

The case appears to dismiss the established principles by permitting a transferee employer to vary conditions of employment following a transfer. Of consequence is that the judges did not distinguish the matter as to its facts and hence the decision conflicts the decision of Equal Opportunities Commission v. Secretary of State for Employment [30].

That begs the question on the fact whether the national courts would be compelled to follow the judgment in Boor V De La Fonction case [31] or distinguish the facts of the case they hear, irrespective of this it does infer a conflict in the way in which the national courts follow decisions opposed to the European Court of Justice.

The decision in Factortame [32] has evolved the view of national courts as to the application of Community Law, interesting enough some authors [33] argue that the case has directly created a conflict between whether the United Kingdom has a constitutional supremacy or a federal idea by central management.

I prefer the approach of the Sussex European Institute [34] that the favoured approach should be tempered with rationale as to the existence of the Community Law and the will of the United Kingdom to (for the time being) wishing to be part of that Community.

I wish to conclude with a quote by Dinnage [35] where he clearly pinpoints the rationale for Factortame and its evolution;

“The Community may choose to start out by adopting relatively modest and abstract measures in a given area; in time more and more measures may be adopted that become increasingly precise, leaving the member states with almost no scope for individual differences. All this means that more and more detailed policy making gradually shifts to the Community level”.

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[1] R v Secretary of State for Transport, ex parte Factortame Ltd [1989] 2 CMLR 353

[2] H.W.R. Wade “Sovereignty—Revolution or Evolution?” (1996) 112 Law Quarterly Review (Oct) 568–575

[3] A. V. Dicey, Introduction to the Study of the Law of the Constitution (1885)

[4] A. V. Dicey, Introduction to the Study of the Law of the Constitution (n3) p 5

[5] Madzimbamuto v Lardner-Burke [1968] 2 SA 284 at 430 -432 and used again as reference in Madzimbamuto v Lardner-Burke [1969] 1 AC 645

[6] Le Sueur A., Herberg J., English R., Principles of Public Law, Cavendish, London-Sydney, 1999

[7] Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, [1963] ECR 1.

[8] Case 6/64, Flaminio Costa v E.N.E.L., [1964] ECR 585

[9] Internationale Handelsgesellschaft mbH v Einfuhr – und Vorratsstelle furGetreide und Futtermittel Case [1974] 2 CMLR 540

[10] R v Secretary of State for Transport, ex parte Factortame (n1)

[11] Part II of the Merchant Shipping Act 1988 and Part VII of the Merchant Shipping (Registration of Shipping Vessels) Regulations 1988

[12] Merchant Shipping Act 1988 (n11)

[13] Merchant Shipping Act 1988 (n11)

[14] Merchant Shipping Act 1988 (n11)

[15] R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC 603

[16] Marleasing SA v La Comercial Internacionale de Alimentación SA [1992] 1 CMLR 305

[17] R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) (n15)

[18] H.W.R. Wade “Sovereignty—Revolution or Evolution?” (n2)

[19] R v Secretary of State for Transport, ex parte Factortame Ltd (No. 2) (n15)

[20] H.W.R. Wade “Sovereignty—Revolution or Evolution?” (n2)

[21] P.P. Craig, “Sovereignty of the UK Parliament after Factortame” (1991) 11 YBEL 221

[22] G Drewry, “The jurisprudence of British Euroscepticism: A strange banquet of fish and vegetables” Utrecht Law Review, Volume 3, Issue 2 (December) 2007

[23] J. Laws, “Law and Democracy”, [1995] P.L. 72 at p. 89

[24] Equal Opportunities Commission v. Secretary of State for Employment [1994] 1 WRL 409

[25] Pickstone and others v Freemans PLC [1989] A.C. 66

[26] Lister v Forth Dry Dock and Engineering Co Ltd [1989] 1 ALL ER 1134

[27] Hunt v London Borough of Hackney; Thoburn v City of Sunderland; Harman v Cornwall County Council; Collins v London Borough of Sutton [2002] EWHC (Admin) 195

[28] Arsenal Football Club PLC V. Reed (No.2) [2003] 1 All ER 137

[29] Boor v Ministre de Ia fonction Publique et de Ia Reforme administrative [C-425/02]

[30] Equal Opportunities Commission v. Secretary of State for Employment (n24)

[31] Boor v Ministre de Ia fonction Publique (n29)

[32] R v Secretary of State for Transport, ex parte Factortame (n1)

[33] Ludwikowski R.R., Supreme Law or Basic Law? The Decline of the Concept of Constitutional Supremacy, Cardozo Journal of International and Comparative Law, vol.9, 2002

[34] Sussex European Institute in the publication “Conflicts between Community and National Laws: An Analysis of the British Approach”

[35] J.D. Dinnage, J.F. Murphy: The Constitutional Law of the European Union, Anderson, Cincinnati, 1996, p. 414.