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section; but, except as may be provided by any Act passed after this Act, Schedule 2 shall
have effect in connection with the powers conferred by this and the following sections of
this Act to make Orders in Council and regulations.
319 The European dimensions


3. (1) For the purposes of all legal proceedings any question as to the meaning or effect of
any of the Treaties, or as to the validity, meaning or effect of any Community instru-
ment, shall be treated as a question of law (and, if not referred to the European Court, be
for determination as such in accordance with the principles laid down by and any relevant
decision of the European Court or any court attached thereto).


We have seen that the European Communities Act had to provide for the appli-
cation in the United Kingdom of Community law “ both the law already existing
and that which would issue in the future from the Community institutions. Some
speci¬c alterations of UK law were immediately necessary and these were made
by sections 4“12 of the Act; for example, section 9(1) modi¬ed the doctrine of
ultra vires in company law to conform to a Community Directive of 1968. For the
rest, the existing Community law to be given e¬ect in the United Kingdom was
incorporated en bloc by section 2(1) of the Act.
The rights and remedies etc to which section 2(1) refers are those that
are required by Community law to be given legal e¬ect ˜without further enact-
ment™ “ that is, are to be directly enforceable in the courts of the Member
States. The subsection means that all directly applicable and directly e¬ective
Community law is to be recognised and enforced in the United Kingdom; by
this provision the Act adopted at a stroke almost the entire existing corpus
of Community Regulations together with the directly e¬ective provisions of
Directives, Decisions and the Treaties. As a result some 1,500 Community
instruments came into force in the United Kingdom on 1 January 1973.
It will be noticed that the law made applicable by section 2(1) keeps its sepa-
rate identity as Community law: it is not made a part of English (or Scottish)
law but is to be enforced together with that law in the courts of the United
Kingdom. British courts regularly act upon section 2(1) of the European
Communities Act in giving e¬ect to Community law. Once it is established “ it
may be by reference to the case law of the Court of Justice, in accordance with
section 3(1) “ that the Community provision in question is of the kind that
produces direct e¬ects, it is enforced accordingly. In Bulmer v Bollinger [1974]
Ch 401, 419, Lord Denning, having referred to section 2(1), said:

The statute is expressed in forthright terms which are absolute and all-embracing. Any
rights or obligations created by the Treaty are to be given legal effect in England [sic] without
more ado.


What, however, was to be done about future Community legislation that was
to be given direct e¬ect in the United Kingdom? A Government White Paper of
1967 had drawn attention to the ˜constitutional innovation™ which would be
necessary for ˜the acceptance in advance as part of the law of the United
Kingdom of provisions to be made in the future by instruments issued by the
Community institutions “ a situation for which there is no precedent in this
320 British Government and the Constitution


country™ (Legal and Constitutional Implications of United Kingdom Membership
of the European Communities, Cmnd 3301, para 22). The situation was the more
unprecedented in that future Community legislation was not only to be
accepted in advance, but was to be given that supremacy over domestic law
which is a keystone of the Community™s legal order.
The way was not taken of attempting to make an express transfer of legislative
power from Parliament to the Community institutions. Rather, the subtle mech-
anism of section 2(1) was made to serve a dual purpose. For the subsection gives
e¬ect in the United Kingdom to what it terms ˜enforceable Community rights™ as
˜from time to time™ arising under the Treaties, and so covers prospective
Community law as well as the law in existence when the Act came into force.
Neither was it thought right (or politic?) to make an express declaration in
the Act of the primacy or supremacy of Community law over the laws of the
United Kingdom. The words designed to achieve this are to be found oddly
sandwiched in the middle of section 2(4), and read as follows:

any enactment passed or to be passed . . . shall be construed and have effect subject to the
foregoing provisions of this section.

The enormous e¬ect of this provision is not immediately apparent on its face,
but among ˜the foregoing provisions™ are those in subsection (1) giving the
force of law in the United Kingdom to the ˜enforceable Community rights™
there de¬ned. It is therefore intended that any enactment (including any Act of
Parliament) is to be construed and have e¬ect subject to Community law having
force in the United Kingdom.
The same principle is impressed upon the judges by some bracketed words in
section 3(1): it is there provided that any question of the validity, meaning or
e¬ect of Community law is to be decided by our courts ˜in accordance with the
principles laid down by and any relevant decision of the European Court™. That
Court of Justice has, as we have seen, consistently upheld the precedence of
Community law over national law.
The provisions we have considered are apt to ensure that Community law, of
whatever date, that has legal force in the United Kingdom will override any
inconsistent provisions in United Kingdom legislation enacted before 1 January
1973, when the European Communities Act came into force. This follows from
the simple rule that the later Act (the European Communities Act) must prevail
over any earlier enactment.
A more di¬cult problem arises if an Act of Parliament passed after 1 January
1973 should con¬‚ict with a provision of Community law (of whatever date).
Here the simple rule mentioned above would give precedence to the Act of
Parliament as the latest expression of Parliament™s will, but the Community law
doctrine of supremacy and the apparent intention of section 2(4) of the
European Communities Act require the Community law to prevail. This
con¬‚ict raises the question of the continuing sovereignty of Parliament. We
shall see in the following section how the British courts have responded to it.
321 The European dimensions


Community legislation (in particular Directives) will often call for imple-
menting action by the national authorities. In the United Kingdom this is
sometimes done, especially in important matters, by Act of Parliament: an
example is the Data Protection Act 1998, passed to implement the Data
Protection Directive (95/46/EC). More often subordinate legislation is the
chosen method of implementation: section 2(2) of the European Communities
Act authorises the making of Orders in Council or departmental regulations for
this purpose. The power given is a wide one, for it is ampli¬ed by section 2(4)
to include ˜any such provision (of any such extent) as might be made by Act of
Parliament™, subject only to certain limitations in Schedule 2 to the Act.
(These relate to taxation, retrospective legislation, sub-delegated legislation and
the creation of new criminal o¬ences.) It follows that Orders in Council or
regulations made under section 2(2) can repeal or amend Acts of Parliament.
This was done, for instance, when the Equal Pay (Amendment) Regulations
1983, S1 1983/1794, made by the Secretary of State for Employment under
the authority of section 2(2), amended the Equal Pay Act 1970 so as to carry
out the terms of the Equal Pay Directive (75/117/EEC) in accordance with the
judgment of the Court of Justice in Case 61/81 Commission v United Kingdom
(see above, p 288“90).

(iii) Impact of EU membership on questions of public law
Naturally, the United Kingdom™s membership of the European Union has had
a profound e¬ect on the areas of substantive law over which the European
Union has competence. Thus, British trade law, competition law, environmen-
tal protection law, labour law and discrimination law, to name just a few such
areas, have been utterly transformed by virtue of our membership of the
European Union. But the United Kingdom™s membership of the European
Union has also had a considerable impact on various matters of British consti-
tutional law. In the remaining pages of this chapter, the European Union™s
impact on four areas of constitutional law will be examined. We start with the
most famous: the challenge EU membership poses for the doctrine of the sov-
ereignty of Parliament. We then consider the European Union™s impact on
statutory interpretation (particularly in light of the doctrine of indirect e¬ect,
or the duty of consistent interpretation) and, more brie¬‚y, the impact on judi-
cial review and on the law of remedies.

Supremacy and sovereignty
It did not take long for English judges to acknowledge the supremacy of
Community law. For example, Lord Hailsham said in The Siskina [1979] AC
210, 262:

It is the duty of the courts here and in other Member States to give effect to Community law
as they interpret it in preference to the municipal law of their own country over which
ex hypothesi Community law prevails.
322 British Government and the Constitution


Community law is applied by British courts so as to override contrary provi-
sions in laws made before the European Communities Act came into force
on 1 January 1973. This was unhesitatingly acknowledged, for example, in
R v Henn [1981] AC 850, R v Goldstein [1983] 1 All ER 434 and WH Smith Do-
It-All v Peterborough City Council [1991] 1 QB 304. This aspect of the supremacy
of Community law is consistent with the normal operation of United Kingdom
statutes and is uncontroversial.
When a statute enacted after 1 January 1973 is in question, the court will
strive to interpret the statute in such a way as to reconcile it with any relevant
Community law in force in the United Kingdom. Such an approach is
demanded by section 2(4) of the European Communities Act, by which enact-
ments must be ˜construed and have e¬ect™ subject to the application in the
United Kingdom of directly e¬ective Community law. We shall see that, by the
use of novel and creative modes of interpretation, the courts have been able to
resolve apparent inconsistencies between post-1972 United Kingdom statutes
and Community instruments. In taking this course a court may claim to give
due recognition both to the intentions of Parliament and to the obligation to
accord priority to Community law. If such an interpretation of the statute
proves impossible, however, the court has nevertheless to ¬nd the way of assur-
ing to Community law its full force and e¬ect.
In the following case the question arose of the relation between the Equal Pay
Act 1970 “ (as re-enacted with amendments by the Sex Discrimination Act 1975
after the European Communities Act had come into force) and Community law.


Macarthys Ltd v Smith [1979] 3 All ER 325 (CA)
Macarthys Ltd had employed Mr McCullough as their stockroom manager.
Some time after he left, Mrs Smith was employed in the same position, with
similar duties, at lower pay. An industrial tribunal held that she was entitled to
be paid at the same rate as Mr McCullough, and the Employment Appeal
Tribunal, with Phillips J presiding, a¬rmed that decision. Macarthys Ltd
appealed.

Lord Denning MR: . . . The employers say that this case is not within the Equal Pay Act 1970.
In order to be covered by that Act, the employers say that the woman and the man must be
employed by the same employer on like work at the same time: whereas here Mrs Smith
was employed on like work in succession to Mr McCullough and not at the same time as he.
To solve this problem I propose to turn first to the principle of equal pay contained in the
EEC Treaty, for that takes priority even over our own statute.

The EEC Treaty
Article 119 of the EEC Treaty [as it then was: see now Article 141 EC] says:
˜Each Member State shall . . . ensure and subsequently maintain the application of the
principle that men and women should receive equal pay for equal work.™
323 The European dimensions


That principle is part of our English law. It is directly applicable in England. So much so
that, even if we had not passed any legislation on the point, our courts would have been
bound to give effect to art 119. If a woman had complained to an industrial tribunal or to
the High Court and proved that she was not receiving equal pay with a man for equal work,
both the industrial tribunal and the court would have been bound to give her redress. . . .
In point of fact, however, the United Kingdom has passed legislation with the intention
of giving effect to the principle of equal pay. It has done it by the Sex Discrimination Act
1975 and in particular by s 8 of that Act amending s 1 of the Equal Pay Act 1970. No doubt
the Parliament of the United Kingdom thinks that it has fulfilled its obligations under the
Treaty. But the European Commission take a different view. They think that our statutes do
not go far enough.
What then is the position? Suppose that England passes legislation which contravenes the
principle contained in the Treaty, or which is inconsistent with it, or fails properly to imple-
ment it. There is no doubt that the European Commission can report the United Kingdom to
the European Court of Justice; and that court can require the United Kingdom to take the nec-
essary measures to implement art 119. . . .
It is unnecessary, however, for these courts to wait until all that procedure has been gone
through. Under s 2(1) and (4) of the European Communities Act 1972 the principles laid down
in the Treaty are ˜without further enactment™ to be given legal effect in the United Kingdom;
and have priority over ˜any enactment passed or to be passed™ by our Parliament. So we are
entitled and I think bound to look at art 119 of the EEC Treaty because it is directly applica-
ble here; and also any directive which is directly applicable here: see Van Duyn v Home
Office. We should, I think, look to see what those provisions require about equal pay for men
and women. Then we should look at our own legislation on the point, giving it, of course,
full faith and credit, assuming that it does fully comply with the obligations under the Treaty.
In construing our statute, we are entitled to look to the Treaty as an aid to its construction;
but not only as an aid but as an overriding force. If on close investigation it should appear
that our legislation is deficient or is inconsistent with Community law by some oversight of
our draftsmen then it is our bounden duty to give priority to Community law. Such is the
result of s 2(1) and (4) of the European Communities Act 1972.
I pause here, however, to make one observation on a constitutional point. Thus far I have
assumed that our Parliament, whenever it passes legislation, intends to fulfil its obligations
under the Treaty. 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 incon-
sistently with it and says so in express terms [emphasis added] then I should have thought
that it would be the duty of our courts to follow the statute of our Parliament. I do not however
envisage any such situation . . . Unless there is such an intentional and express repudiation of
the Treaty, it is our duty to give priority to the Treaty. In the present case I assume that the
United Kingdom intended to fulfil its obligations under art 119. Has it done so?

Article 119
Article 119 is framed in European fashion. It enunciates a broad general principle and leaves
the judges to work out the details. In contrast the Equal Pay Act is framed in English fashion.
It states no general principle but lays down detailed specific rules for the courts to apply
324 British Government and the Constitution


(which, so some hold, the courts must interpret according to the actual language used)
without resort to considerations of policy or principle.
Now consider art 119 in the context of our present problem. Take the simple case envis-
aged by Phillips J. A man who is a skilled technician working single-handed for a firm receives
£1.50 an hour for his work. He leaves the employment. On the very next day he is replaced
by a woman who is equally capable and who does exactly the same work as the man but,
because she is a woman, she is only paid £1.25 an hour. That would be a clear case of dis-
crimination on the ground of sex. It would, I think, be an infringement of the principle in art
119 which says ˜that men and women should receive equal pay for equal work™. All the more
so when you take into account the explanatory sentence in art 119 itself which says:
˜Equal pay without discrimination based on sex means . . . that pay for work at time
rates shall be the same for the same job™.
If you go further and consider the Council directive of 10th February 1975, it becomes
plain beyond question:
˜The principle of equal pay for men and women outlined in Article 119 of the Treaty,
hereinafter called “principle of equal pay”, means, for the same work or for work to
which equal value is attributed, the elimination of all discrimination on ground of sex
with regard to all aspects and conditions of remuneration™.
. . . In my opinion therefore art 119 is reasonably clear on the point; it applies not only to
cases where the woman is employed on like work at the same time with a man in the same
employment, but also when she is employed on like work in succession to a man, that is, in
such close succession that it is just and reasonable to make a comparison between them. So
much for art 119.

The Equal Pay Act 1970
Now I turn to our Act to see if that principle has been carried forward into our legislation.
The relevant part of this Act was passed not in 1970 but in 1975 by s 8 of the Sex

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