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( 155 .)


Discrimination Act 1975.
Section 1(2)(a)(i) of the Equal Pay Act 1970 introduces an ˜equality clause™ so as to put a
woman on an equality with a man ˜where the woman is employed on like work with a man
in the same employment™. The question is whether the words ˜at the same time™ are to be
read into that subsection so that it is confined to cases where the woman and the man are
employed at the same time in the same employment.

After considering this and related provisions Lord Denning concluded that
section 1(2)(a)(i) of the Equal Pay Act should not be read as if it included the
words ˜at the same time™, but should be interpreted so as to apply to cases where
a woman was employed on like work in succession to a man. He continued:

So I would hold, in agreement with Phillips J, that both under the Treaty and under the statutes
a woman should receive equal pay for equal work, not only when she is employed at the same
time as the man, but also when she is employed at the same job in succession to him, that
is, in such close succession that it is just and reasonable to make a comparison between them.
325 The European dimensions

If I am wrong
Now my colleagues take a different view. They are of opinion that s 1(2)(a)(i) of the Equal
Pay Act should be given its natural and ordinary meaning, and that is, they think, that it is
confined to cases where the woman is employed at the same time as a man.
So on our statute, taken alone, they would allow the appeal and reject Mrs Smith™s claim.
My colleagues realise, however, that in this interpretation there may be a conflict between
our statute and the EEC Treaty. As I understand their judgments, they would hold that if art
119 was clearly in favour of Mrs Smith it should be given priority over our own statute and
Mrs Smith should succeed. But they feel that art 119 is not clear, and, being not clear, it is
necessary to refer it to the European Court at Luxembourg for determination under art 177
of the Treaty [now Article 234 EC].

For myself I would be in favour of dismissing the appeal, because I agree with the decision of
the Employment Appeal Tribunal. I have no doubt about the true interpretation of art 119.
But, as my colleagues think that art 119 is not clear on the point, I agree that reference
should be made to the European Court at Luxembourg to resolve the uncertainty in that article.
Pending the decision of the European court, all further proceedings in the case will be

Lawton LJ: . . . In my judgment the grammatical construction of s 1(2) [of the Equal Pay Act]
is consistent only with a comparison between a woman and a man in the same employment
at the same time. The words, by the tenses used, look to the present and the future but not
to the past. They are inconsistent with a comparison between a woman and a man, no longer
in the same employment, who was doing her job before she got it. . . .
As the meaning of the words used in s 1(2) and (4) is clear, and no ambiguity, whether
patent or latent, lurks within them, under our rules for the construction of Acts of Parliament
the statutory intention must be found within those words. It is not permissible to read into
the statute words which are not there or to look outside the Act, as counsel for Mrs Smith
invited us to do and Phillips J did, to read the words used in a sense other than that of their
ordinary meaning. . . .
What led Phillips J to construe s 1(2) and (4) of the Act so as to allow such a comparison
were the provisions of art 119 of the EEC Treaty to which Lord Denning MR has referred for
its full terms. In this court counsel on both sides have submitted that the meaning of this
article is clear; but they have differed as to what that meaning is. Counsel for Mrs Smith has
submitted that under art 119 a woman should receive the same pay as a man she follows
in a job, unless there are factors, other than sex discrimination, which justify the difference.
If this be right, art 119 says something different from what I adjudge to be the plain, unam-
biguous meaning of s 1(2) and (4) of the Act. When an Act and an article of the EEC Treaty
are in conflict, which should this court follow? Counsel for Mrs Smith says the article, because
s 2 of the European Communities Act 1972 so provides, as does European Community law.
. . . Counsel for the employers™ submission as to the meaning of art 119 did not . . .
convince me that when construed in accordance with the canons of construction as used in
326 British Government and the Constitution

our court for finding out the meaning of statutes and deeds, its ambit was confined to men
and women doing like or broadly similar work side by side at the same time. The part of the
article which begins with the words ˜Equal pay without discrimination based on sex™ takes
in para (a) ˜the same work™ and in para (b) ˜the same job™ as the bases of comparison. A
woman may do ˜the same work™ or ˜the same job™ after a man as well as alongside a man.
In my opinion there is some doubt whether art 119 applies to the facts of this case.
We cannot, as counsel for the employers submitted, ignore art 119 and apply what I con-
sider to be the plain meaning of the Act. The problem of the implementation of art 119 is
not one for the EEC Commission to take up with the government of the United Kingdom and
Northern Ireland, as counsel for the employers submitted it was. Article 119 gives rise to
individual rights which our courts must protect. . . .
Being in doubt as to the ambit of art 119 and being under an obligation arising both from
the decisions of the European Court of Justice . . . and s 2 of the European Communities Act
1972 to apply that article in our courts, it seems to me that this is a situation to which art
177 of the EEC Treaty [now Article 234 EC] applies. I consider that a decision is necessary as
to the construction of art 119 and I would request the European Court of Justice to give
a ruling on it.

Cumming-Bruce LJ agreed with the reasoning and conclusion of Lawton LJ.
The case duly came before the Court of Justice for a preliminary ruling under
Article 177 of the EC Treaty (as it then was; now Article 234 EC). The European
Court ruled that the principle of equal pay enshrined in Article 119 of the Treaty
was not con¬ned to situations in which men and women were employed con-
temporaneously by the same employer: see Case 129/79 Macarthys Ltd v Smith
[1980] ECR 1275. In the light of this answer the employers conceded defeat
when the case returned to the Court of Appeal: Macarthys Ltd v Smith [1981]
QB 180. Lord Denning took the opportunity of saying (at 200):

The majority of this court felt that article 119 was uncertain. So this court referred the
problem to the European Court at Luxembourg. We have now been provided with the deci-
sion of that court. It is important now to declare “ and it must be made plain “ that the
provisions of article 119 of the EEC Treaty take priority over anything in our English statute
on equal pay which is inconsistent with article 119. That priority is given by our own law. It
is given by the European Communities Act 1972 itself. Community law is now part of our law:
and, whenever there is any inconsistency, Community law has priority. It is not supplanting
English law. It is part of our law which overrides any other part which is inconsistent with it.

Macarthys Ltd v Smith was not a case in which an English statutory provision
was deprived of its e¬ect by an overriding Community law: rather the
Community law extended to employees a right to equal pay in circumstances
which fell outside the scope of the English statute. Nevertheless, as the Court of
Appeal recognised, there was an inconsistency between the English statute and
Community law, and the court held unequivocally that the Community law had
327 The European dimensions

˜priority™. TRS Allan, drawing attention to Lord Denning™s proposition that
Parliament could override provisions of the EC Treaty if it stated ˜in express
terms™ its intention to do so, comments as follows (˜Parliamentary sovereignty:
Lord Denning™s dexterous revolution™ (1983) 3 OJLS 22, 25):

The attempt to entrench section 2(1) of the European Communities Act by means of section
2(4) has to some extent succeeded: the effect of the decision seems to be to impose a require-
ment of form (express wording) on future legislation designed to override Community law. In
short, Parliament in 1972 accomplished the impossible and (to a degree) bound its successors.

The Factortame saga
As Allan™s comment suggests, questions of sovereignty pervaded the judgment
in Macarthys Ltd v Smith even if that case did not confront them squarely. That
confrontation came a decade later, with the Factortame series of cases, to which
we now turn.
The background is as follows. The Council of Ministers had ¬xed national
quotas of allowable catches of ¬sh by the ¬shing ¬‚eets of the Member States. The
United Kingdom Parliament enacted the Merchant Shipping Act 1988, Part II of
which speci¬ed requirements for the registration of ¬shing vessels as British
(whose catches would then count as part of the British quota). The Act stipulated
that only British-owned vessels managed and controlled from within the United
Kingdom could be registered as British ¬shing vessels. In substance, a vessel
would be ˜British-owned™ only if the owners (or shareholders of corporate
owners) were British citizens and were resident and domiciled in the United
Kingdom. Regulations made by the Secretary of State under the Act brought this
scheme into operation and as a result ninety-¬ve ¬shing vessels, previously reg-
istered as British under an Act of 1894 but managed and controlled from Spain
or owned by Spanish nationals or companies, would not qualify for registration
under the 1988 Act. The owners of these vessels sought judicial review, seeking a
declaration that the 1988 legislation should not apply to them, on the ground that
it denied their rights under directly enforceable provisions of Community law.
The Divisional Court decided to obtain a preliminary ruling from the
European Court of Justice under (what is now) Article 234 EC on the questions
of Community law arising in the case. Since there would be a delay of two years
before the ruling of the Court of Justice was given, and the owners of the ¬shing
vessels would su¬er severe hardship if obliged to refrain from ¬shing during
that time, the Divisional Court granted them interim relief, ordering that Part
II of the 1988 Act and the Regulations should be ˜disapplied™ and that the
Secretary of State should be restrained from enforcing the legislation pending
¬nal judgment in the case.
In R v Secretary of State for Transport, ex p Factortame Ltd the Court of
Appeal ([1989] 2 CMLR 353) and then the House of Lords ([1990] 2 AC 85)
held that the Divisional Court had had no power, as a matter of English law,
328 British Government and the Constitution

to make an interim order in such terms. This was for two reasons. In the
words of Lord Bridge, the ¬rst was that:

An order granting the applicants the interim relief which they seek will only serve their
purpose if it declares that which Parliament has enacted to be the law . . . not to be the law
until some uncertain future date . . . [T]he effect of [such] interim relief would be to [confer]
upon [the applicants] rights directly contrary to Parliament™s sovereign will.

The second reason was more technical. It was that, as the law then stood, there
was simply no such thing in English law as an interim injunction against the
Crown, and this was precisely the remedy which the Divisional Court had
granted (the respondent in the case, the Secretary of State for Transport, being
an o¬cer of the Crown). There was, at the time, no such thing as an interim
injunction against the Crown because section 21(2) of the Crown Proceedings
Act 1947 provides that ˜The court shall not in any civil proceedings grant any
injunction or make any order against an o¬cer of the Crown™. (The interpreta-
tion of this provision was subsequently changed in M v Home O¬ce [1994]
1 AC 377 to exclude judicial review proceedings from its scope, judicial review
proceedings being public law proceedings rather than civil proceedings. See
above, pp 89“93.)
Having decided that there was no such remedy in English law, the House of
Lords then went on to consider whether an appropriate interim remedy might
be available to the applicants as a matter of Community law. After all, it was their
rights in Community law which the applicants argued had been violated. Might
Community law not be expected to say something about how those rights could
be judicially protected? Their Lordships decided that Community law on the
matter was unsettled and accordingly sent a second reference to the Court of
Justice under Article 234 EC.
In the meantime another actor had entered the stage. The European
Commission brought an action in the Court of Justice for a declaration under
(what is now) Article 226 EC that in imposing the nationality requirements in
Part II of the Merchant Shipping Act 1988, the United Kingdom had failed in
its obligations under the EC Treaty. In Case 246/89R Commission v United
Kingdom [1989] ECR 3125 the Court of Justice made an interim order that,
pending the delivery of its judgment in the action for a declaration, the United
Kingdom was to suspend the application of the nationality requirements
as regards the nationals of other Member States. The United Kingdom
Government complied with this ruling: see the Merchant Shipping Act 1988
(Amendment) Order 1989, S1 1989/2006. In the debate in the House of
Commons on a motion to approve the Order, MPs expressed their concern
about the implications for parliamentary sovereignty, one of them seeing
the Order as ˜an historic surrender of some constitutional importance™
(Mr Jonathan Aitken). The Solicitor General said in reply: ˜This case involves
no erosion of sovereignty over and above that which we accepted in 1972“73™.
329 The European dimensions

When the question of interim relief referred to it by the House of Lords came
before the Court of Justice, the ECJ held that a national court was obliged to set
aside provisions of domestic law which might prevent, even temporarily,
Community rights from having full force and e¬ect (see Case C-213/89
R v Secretary of State for Transport, ex p Factortame Ltd [1990] ECR I-2433).

a national court which, in a case before it concerning Community law, considers that the sole
obstacle which precludes it from granting interim relief is a rule of national law must set
aside that rule.

The House of Lords, when the case returned to it, obliged now to disregard
obstacles to interim relief under English law, granted an injunction against the
Secretary of State, requiring him to suspend the application of the requirements
of British residence and domicile in the Merchant Shipping Act to nationals of
other Member States: R v Secretary of State for Transport, ex p Factortame Ltd
(No 2) [1991] 1 AC 603. (The nationality requirements had already been sus-
pended by Order in Council: see above.) In this profoundly important decision,
the House of Lords acknowledged that its obligation to comply with a principle
of Community law as a¬rmed by the European Court of Justice required it to
deny e¬ect to the terms of an Act of Parliament. In the result the Merchant
Shipping Act 1988 yielded to the superior force of an earlier statute, the
European Communities Act 1972. As Craig sees it (in M Sunkin and S Payne
(eds), The Nature of the Crown (1999), p 332) the House of Lords was seeking
by its ruling in Factortame (No 2) ˜to bring constitutional doctrine up to date
with political reality™. In the course of his opinion in Factortame (No 2) Lord
Bridge made the following observations:

Lord Bridge of Harwich: My Lords, when this appeal first came before the House last
year . . . your Lordships held that, as a matter of English law, the courts had no jurisdiction
to grant interim relief in terms which would involve either overturning an English statute in
advance of any decision by the European Court of Justice that the statute infringed
Community law or granting an injunction against the Crown. It then became necessary to
seek a preliminary ruling from the European Court of Justice as to whether Community law
itself invested us with such jurisdiction . . .
. . . [We later] received the judgment of the European Court of Justice (Case C 213/89),
replying to the questions we had posed and affirming that we had jurisdiction, in the cir-
cumstances postulated, to grant interim relief for the protection of directly enforceable rights
under Community law and that no limitation on our jurisdiction imposed by any rule of
national law could stand as the sole obstacle to preclude the grant of such relief. In the light
of this judgment we . . .unanimously decided that relief should be granted . . .
Some public comments on the decision of the European Court of Justice, affirming the juris-
diction of the courts of Member States to override national legislation if necessary to enable
interim relief to be granted in protection of rights under Community law, have suggested that
330 British Government and the Constitution

this was a novel and dangerous invasion by a Community institution of the sovereignty of
the United Kingdom Parliament. But such comments are based on a misconception. If the
supremacy within the European Community of Community law over the national law of
Member States was not always inherent in the E.E.C. Treaty it was certainly well established
in the jurisprudence of the European Court of Justice long before the United Kingdom joined
the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it
enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the
Act of 1972 it has always been clear that it was the duty of a United Kingdom 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. Similarly, when decisions of the European
Court of Justice have exposed areas of United Kingdom statute law which failed to imple-
ment Council Directives, Parliament has always loyally accepted the obligation to make
appropriate and prompt amendments. Thus there is nothing in any way novel in according
supremacy to rules of Community law in those areas to which they apply and to insist that,
in the protection of rights under Community law, national courts must not be inhibited by
rules of national law from granting interim relief in appropriate cases is no more than a


. 66
( 155 .)