. 67
( 155 .)


logical recognition of that supremacy.

We shall come back to consider Lord Bridge™s comments in detail in a
moment. First, let us ¬nish the saga. In the next chapter of the Factortame
annals, the Court of Justice gave its ruling on the original reference from
the Divisional Court, holding that nationality, residence and domicile require-
ments such as were stipulated by the Merchant Shipping Act 1988 were contrary
to Community law (in particular Article 43 EC on freedom of establishment):
Case C-221/89 R v Secretary of State for Transport, ex p Factortame (No 3) [1992]
QB 680. The Divisional Court thereupon granted a declaration to that e¬ect,
and the Government duly took the necessary steps to bring domestic law into
conformity with the judgment: see the Merchant Shipping (Registration, etc)
Act 1993, section 3 and the Merchant Shipping (Registration of Ships)
Regulations 1993, S1 1993/3138. The sequel to the ECJ™s ruling that the UK leg-
islation was in breach of Community law was a claim for damages against the
United Kingdom Government brought by the Spanish trawler owners who had,
during the course of the Factortame litigation, been deprived of their right to
¬sh in British waters. It was held by the House of Lords, after yet another refer-
ence to the Court of Justice, that the claimants were entitled to damages: see
R v Secretary of State for Transport, ex p Factortame Ltd (No 5) [2000] 1 AC 524.
It was clear after Factortame (No 2) that British courts would no longer nec-
essarily be inhibited from suspending the application of a statute when such
action was required to give e¬ective interim protection to Community rights.
Moreover, the Factortame litigation indicated that a ruling by the Court of
Justice that provisions in a United Kingdom statute were incompatible with
Community law would, where possible, be acted upon by British courts in
granting declaratory relief to a party adversely a¬ected by the application of
those provisions. This was reinforced by the decision of the House of Lords in
331 The European dimensions

R v Secretary of State for Employment, ex p Equal Opportunities Commission
[1995] 1 AC 1. In this case the Equal Opportunities Commission (EOC)
objected to provisions of the Employment Protection (Consolidation) Act 1978
on the ground that they were contrary to Community law. No decision had been
taken by the Secretary of State such as might have been open to review, but the
EOC mounted a challenge, in proceedings for judicial review, directed to the
statutory provisions themselves. The House of Lords granted declarations that
the provisions in question were incompatible with (what is now) Article 141 EC
and with the Equal Pay and Equal Treatment Directives. In response to this
ruling the Act was amended by delegated legislation so as to remove the incom-
patibility (see on this case Harlow and Szyszczak (1995) 32 CML Rev 641).
What are we to make of the Factortame story and, in particular, of the deci-
sion of the House of Lords in Factortame (No 2)? Academic opinion is sharply
divided on how the decision should be interpreted and, especially, on what it
means for the sovereignty of Parliament. There are perhaps two main camps,
which may be dubbed the ˜revolution view™ and the ˜evolution view™. In the
former (perhaps we should say, leading the former) is the late Sir William Wade,
who with his customary clarity and robustness, argued as follows (˜Sovereignty:
revolution or evolution?™ (1996) 112 LQR 568):

When in the second Factortame case the House of Lords granted an injunction to forbid a
minister from obeying an Act of Parliament, and the novel term ˜disapplied™ had to be
invented to describe the fate of the Act, it was natural to suppose that something drastic had
happened to the traditional doctrine of Parliamentary sovereignty. The established rule about
conflicting Acts of Parliament, namely that the later Act must prevail, was evidently violated,
since the later Act in this case was the Merchant Shipping Act 1988, yet it was disapplied
under the European Communities Act 1972. The Act of 1972 had provided for the subordina-
tion of English law to European Community law by section 2(4), enacting that European
Community law was to prevail over Acts of Parliament ˜passed or to be passed™. When that
Act was nevertheless held to prevail it seemed to be fair comment to characterise this, at
least in a technical sense, as a constitutional revolution. The Parliament of 1972 had suc-
ceeded in binding the Parliament of 1988 and restricting its sovereignty, something that was
supposed to be constitutionally impossible. It is obvious that sovereignty belongs to the
Parliament of the day and that, if it could be fettered by earlier legislation, the Parliament
of the day would cease to be sovereign.

For Wade, a constitutional revolution had occurred because the House of Lords
had recognised that the result of the European Communities Act 1972 was that
future Parliaments were, unless and until they expressly repealed it, bound by
its terms. Parliament remained sovereign in the sense that it retained the power
expressly to repeal the 1972 Act (thereby withdrawing the United Kingdom
from the European Union), but for as long as the United Kingdom continued
to be a member of the European Union on the terms set out in the 1972 Act, the
United Kingdom Parliament remained tied to the terms of that statute.
332 British Government and the Constitution

An alternative, more evolutionary, set of views has been suggested by a variety
of other commentators, including Sir John Laws and TRS Allan. Sir John Laws
has argued as follows (˜Law and democracy™ [1995] PL 72, 89):

The effect is that section 2(4) of the European Communities Act falls to be treated as estab-
lishing a rule of construction for later statutes, so that any such statute has to be read (what-
ever its words) as compatible with rights accorded by European Law. Sir William Wade regards
this development as ˜revolutionary™, because in his view it represents an exception to the rule
that Parliament cannot bind its successors. But I do not think that is right. It is elementary that
Parliament possesses the power to repeal the European Communities Act in whole or in part
(I leave aside the political realities); and the most that can be said, in my view, is that the
House of Lords™ acknowledgement of the force of European law means that the rule of con-
struction implanted by section 2(4) cannot be abrogated by an implied repeal. Express words
would be required. That, however, is hardly revolutionary: there are a number of areas where
a particular statutory construction is only likely to be accepted by the courts if it is vouchsafed
by express provision [as where a statute is said to exact taxes, impose criminal liability or to
have retroactive effect]. Although Factortame and EOC undoubtedly demonstrate what may be
described as a devolution of legislative power to Europe, it is no true devolution of sovereignty.
In legal (though certainly not political) terms, the organs of European legislation may in truth
be described, for so long as the Act of 1972 remains on the statute book, as Parliament™s del-
egates; the law of Europe is not a higher-order law, because the limits which for the time being
it sets to the power of Parliament are at the grace of Parliament itself.

Allan™s challenge to Wade is slightly di¬erent. He attacks the jurisprudential
basis of Wade™s account of sovereignty (outlined in chapter 2, above, pp 54“6).
For Wade, the sovereignty of Parliament is ultimately a judicially recognised
˜political fact™. And when the judges recognise that the political facts have
changed, the meaning of sovereignty changes accordingly. So, for Wade, what
the House of Lords recognised in Factortame (No 2) was that the political fact
of sovereignty had changed “ Parliament since 1972 legislates not in the splen-
did isolation of a supreme being but in a geo-political environment in which the
United Kingdom is a loyal and largely obedient member of the European Union.
Allan disputes this analysis on the basis that sovereignty should be seen, not as
judicial recognition of political fact, but as a rule of the common law based on
reason just like any other rule of the common law. For him, what occurred in
Factortame (No 2), ˜far from any dramatic, let alone unauthorised, change™, was
that ˜the House of Lords merely determined what the existing constitutional
order required in novel circumstances™ (˜Parliamentary sovereignty: law, poli-
tics, and revolution™ (1997) 113 LQR 443, 445). As he recognises and, indeed,
welcomes, the consequences of Allan™s analysis are potentially great (pp 448“9):
˜If it is possible to recognise limits on the power of Parliament to enact legisla-
tion which con¬‚icts with European Community law, even if only to the extent
of requiring express wording, it is equally possible to countenance other limits
on parliamentary sovereignty which re¬‚ect the demands of constitutional
333 The European dimensions

principle. Since the requirement of judicial obedience to statutes constitutes
a principle of common law . . . its nature and scope are matters of reason,
governed by our understanding of the constitution as a whole.™ Here we are back
to the common law radicalism that we saw posing such a potent challenge to the
sovereignty of Parliament in chapter 2 (see above, pp 66“74).
(For a full and balanced analysis of the issues, see Craig, ˜Sovereignty of the
United Kingdom Parliament after Factortame™ (1991) 11 YEL 221; for further
commentary see Wade (1991) 107 LQR 1, Oliver (1991) 54 MLR 442 and
Gravells [1991] PL 180.)
These matters were revisited and taken further in Thoburn v Sunderland City
Council [2003] QB 151. This is a ¬rst instance decision only and has not been
expressly approved by the Court of Appeal or by the House of Lords, although
it is a decision made by a leading public law judge, Sir John Laws (Laws LJ). The
case arose out of the prosecution of a number of traders (known popularly as
the ˜metric martyrs™) for continuing to trade in imperial measures (pounds and
ounces) after EU laws had been brought into e¬ect in Britain that required trade
to be conducted in metric measures only (ie, in grams and kilograms). The
traders argued that the Weights and Measures Act 1985 which, until it was
amended by Orders in Council in 1994 to bring it into line with European
requirements, had allowed trading in either imperial or metric measures, had
impliedly repealed the government™s statutory power (in section 2(2) of the
European Communities Act 1972) to make the 1994 Orders in Council. The
argument was unsuccessful, principally on the ground that there was no incon-
sistency between the 1972 and 1985 Acts (and, without such inconsistency, there
could be no question of implied repeal). What is of more interest, however, is
Laws LJ™s reasoning, albeit that (rather like their Lordships™ comments on
sovereignty in Jackson v Attorney General in chapter 2), it is almost all obiter.

Laws LJ: . . . Being sovereign, [the United Kingdom Parliament] cannot abandon its sover-
eignty. Accordingly there are no circumstances in which the jurisprudence of the Court of
Justice can elevate Community law to a status within the corpus of English domestic law to
which it could not aspire by any route of English law itself. This is, of course, the traditional
doctrine of sovereignty. If it is to be modified, it certainly cannot be done by the incorpora-
tion of external texts. The conditions of Parliament™s legislative supremacy in the United
Kingdom necessarily remain in the United Kingdom™s hands. But the traditional doctrine has
in my judgment been modified. It has been done by the common law, wholly consistently
with constitutional principle.
The common law has in recent years allowed, or rather created, exceptions to the doc-
trine of implied repeal: a doctrine which was always the common law™s own creature. There
are now classes or types of legislative provision which cannot be repealed by mere implica-
tion. These instances are given, and can only be given, by our own courts, to which the scope
and nature of parliamentary sovereignty are ultimately confided. The courts may say “ have
said “ that there are certain circumstances in which the legislature may only enact what it
334 British Government and the Constitution

desires to enact if it does so by express, or at any rate specific, provision. The courts have in
effect so held in the field of European law itself . . .
It seems to me that there is no doubt but that in Factortame the House of Lords effec-
tively accepted that section 2(4) [of the European Communities Act 1972] could not be
impliedly repealed, albeit the point was not argued . . .
In the present state of its maturity the common law has come to recognise that there exist
rights which should properly be classified as constitutional or fundamental [citing R v
Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 and R v Secretary
of State for the Home Department, ex p Pierson [1998] AC 539, among other authorities: see
chapter 2]. And from this a further insight follows. We should recognise a hierarchy of Acts
of Parliament: as it were ˜ordinary™ statutes and ˜constitutional™ statutes . . .The European
Communities Act 1972 [along with Magna Carta, the Bill of Rights 1689, the Act of Union,
the Reform Acts, the Human Rights Act and the devolution legislation] is, by force of the
common law, a constitutional statute.
Ordinary statutes may be impliedly repealed. Constitutional statutes may not.

Laws LJ™s distinction between ordinary and constitutional statutes is novel, and
has not (yet?) been adopted elsewhere (although compare Robinson v Secretary of
State for Northern Ireland [2002] UKHL 32, considered in chapter 2). But it will
be seen that, in this judgment, his Lordship develops aspects of both his own and
of TRS Allan™s ˜evolutionary™ accounts of what happened in 1972 and of what the
constitutional implications are of the House of Lords™ decisions in Factortame.
It seems that, on any of Wade™s, Laws™ or Allan™s views, we must recognise the
assertion of a judicial power to rede¬ne the extent and limits of parliamentary
sovereignty. In the context of Community law that power was furnished to the
courts by Parliament itself, in the European Communities Act 1972, and the
resulting limitation of sovereignty can be seen as proceeding from a collabora-
tion of Parliament and the courts. (Compare the comments of Lord Hope in
Jackson: above, p 74.)
Could Parliament reclaim the fullness of its sovereignty? Parliament retains
its ultimate sovereignty as long as it has the power to terminate the application
of Community law in the United Kingdom (and its overriding force) by repeal-
ing or amending the European Communities Act 1972. Since the United
Kingdom™s membership of the European Union is now relatively uncontentious
no such action by Parliament is in prospect, but it is hardly open to doubt that
the Queen™s courts would give e¬ect to an Act of Parliament which was passed
in the process of e¬ecting a withdrawal from the Union. Meanwhile it is
conceivable, although unlikely, that Parliament might legislate deliberately in
contradiction of a rule of Community law, perhaps even with the expressly
stated purpose of negating the e¬ect of the rule in the United Kingdom.
(Cf Lord Denning MR in Macarthys Ltd v Smith, above.) A bill to this e¬ect
was introduced in Parliament in 2005 (the Food Supplements (European
Communities Act 1972 Disapplication) Bill, sponsored by a group of
335 The European dimensions

well-known ˜Eurosceptic™ MPs). The bill had no chance of being enacted. Its
provisions, however, make interesting reading. The bill™s long title stated that
the bill was ˜to provide that a speci¬ed Community instrument relating to food
supplements shall not have e¬ect in the United Kingdom notwithstanding the
provisions of the European Communities Act 1972™. To this end, clause 1 of
the bill provided that ˜Notwithstanding the provisions of the European
Communities Act 1972 (a) Directive 2002/46/EC . . . on the approximation of
the laws of the Member States relating to food supplements, and (b) any judg-
ment of the European Court of Justice relating to the [Directive], shall not have
e¬ect in the United Kingdom™.
If an Act were to be passed in terms such as these the courts could not refuse
to apply it without asserting a power which our constitution has not hitherto
accorded to them and to which no English court has yet laid claim. Should the
issue arise, however, the response of the British courts cannot be predicted with
certainty. One thing is certain, however: the Commission would bring infringe-
ment proceedings before the Court of Justice against the United Kingdom (under
Article 226 EC) and, if the United Kingdom ignored the Court™s judgment, the
country would be heavily ¬ned under the penalty payment procedure of Article
228 EC. What would happen if the United Kingdom “ a net contributor to
the EU™s budget “ refused to pay such a penalty payment, insisting on its national
sovereignty, is a question which (remarkably, perhaps) has not yet arisen in the
history of the European Union and which, in any event, cannot be answered by
reference to law alone. Any solution would have to come from the altogether
more unpredictable worlds of diplomacy, politics and international relations.
For the present, Parliament in practice refrains from any deliberate exercise
of its legislative power that would contradict or forestall the application of
Community law. If this should happen inadvertently, corrective action would
be taken “ if not by the courts in the process of interpretation or in giving
primacy to Community law, then by amending legislation. To this extent, and
in the area occupied by Community law, parliamentary sovereignty may be said
to be in abeyance.
In Stoke-on-Trent City Council v B & Q plc [1991] Ch 48, 56, Ho¬mann J said:

The [EC] Treaty is the supreme law of this country, taking precedence over Acts of Parliament.
Our entry into the European Economic Community meant that (subject to our undoubted but
probably theoretical right to withdraw from the Community altogether) Parliament surren-
dered its sovereign right to legislate contrary to the provisions of the Treaty on the matters
of social and economic policy which it regulated. The entry into the Community was in itself
a high act of social and economic policy, by which the partial surrender of sovereignty was
seen as more than compensated by the advantages of membership.

Statutory interpretation
We saw above (p 312) that in Von Colson and again in Marleasing the European
Court of Justice introduced and developed a duty on the courts of Member
336 British Government and the Constitution

States to interpret national law consistently with EU law. As we saw, to start with
this duty was expressed in the speci¬c context of the interpretation of national
law that was itself designed to implement provisions of EU law into the relevant


. 67
( 155 .)