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national legal system. Only in Marleasing, it will be recalled, was this duty
extended more generally. A series of three House of Lords cases, all decided after
Von Colson but before Marleasing, illustrate the impact of this obligation on
British practices of statutory interpretation.
These cases do not, strictly speaking, concern sovereignty, although matters
of statutory interpretation may sometimes have an indirect impact on sover-
eignty (as we saw, for example, with regard to section 3 of the Human Rights
Act 1998, above, pp 62“6). There is a di¬erence “ in theory if not always in prac-
tice “ between judicial interpretation of Parliament™s legislation and judicial
invalidation of legislation. In any case, not all of these three cases concern
the interpretation of statute “ of primary legislation. One of them concerns the
interpretation of secondary legislation, where no question of parliamentary
sovereignty can arise.
The ¬rst case is Duke v GEC Reliance [1988] AC 618. This case concerned
the interpretation of certain provisions of primary legislation (the Sex
Discrimination Act 1975) that had not been passed for the purpose of giving
domestic e¬ect to EU law. One purpose of that legislation was to preserve
di¬erent retirement ages for men and women. In 1986 the European Court of
Justice ruled (in Marshall, above, p 311) that such discrimination was, as a
matter of Community law, unlawful as being in breach of the Equal Treatment
Directive (Directive 76/207/EC). In Duke, the House of Lords was invited to
follow that approach and to construe and give e¬ect to the 1975 Act accordingly.
This their Lordships refused to do, holding that Von Colson was ˜no authority
for the proposition that a court of a Member State must distort the meaning of
a domestic statute so as to conform to Community law which is not directly
applicable™ (Lord Templeman). (Directives, of course, are not directly applica-
ble: Article 249 EC.) Neither could section 2(4) of the European Communities
Act 1972 be relied upon to achieve this purpose: Lord Templeman stated that
section 2(4) ˜does not in my opinion enable or constrain a British court to
distort the meaning of a British statute in order to enforce against an individ-
ual a Community Directive which has no direct e¬ect between individuals™
(a reference to the fact that, as we saw above, Directives may have vertical,
but not horizontal, direct e¬ect. In Duke, the dispute was between two private
The second case is Pickstone v Freemans [1989] AC 66, which saw the House
of Lords adopt an altogether di¬erent approach to interpretation. The case does
not overrule Duke v GEC Reliance, but it clearly distinguishes it. The Equal Pay
Act 1970, as amended, provides for equality of bene¬ts for a female employee
if her work is (in terms of the demands made on her) of equal value to that of
a man in the same employment. The amendment so providing was made to
the Equal Pay Act 1970 by the Equal Pay (Amendment) Regulations 1983,
337 The European dimensions

S1 1983/1794 in order to give e¬ect to Article 119 of the EC Treaty (as it then
was, see now Article 141 EC) as elaborated by the Equal Pay Directive (Directive
Mrs Pickstone was employed by Freemans as a ˜warehouse operative™ and was
paid less than a man in the same employment who was employed as a ˜checker
warehouse operative™. She contended that her work was of equal value with that
of the man and that she was therefore entitled to equal pay. The employers
replied that one of the warehouse operatives was a man, doing the same work
as Mrs Pickstone and receiving the same pay. They argued that the amended
Equal Pay Act excluded a woman™s entitlement to equal pay on the basis of work
of equal value to that of a man if she was paid as much as another man who was
employed on like work with her.
A literal construction of the relevant section of the Equal Pay Act supported
the argument of the employers but would thus allow a new form of discrimi-
nation against women which would be inconsistent with Community law:
the Equal Pay (Amendment) Regulations 1983 would have failed, through
defective drafting, in their purpose of bringing the Act into accord with the
Treaty and the Equal Pay Directive. To avoid this result the House of Lords
departed from the ˜well-established™ rule of construction that the intention of
Parliament ˜has . . . to be ascertained from the words which it has used and
those words are to be construed according to their plain and ordinary meaning™
(Lord Oliver of Aylmerton). It was necessary to adopt instead a ˜purposive™

Lord Oliver of Aylmerton: . . . [A] construction which permits the section to operate as a
proper fulfilment of the United Kingdom™s obligation under the Treaty involves not so much
doing violence to the language of the section as filling a gap by an implication which arises,
not from the words used, but from the manifest purpose of the Act and the mischief it was
intended to remedy. The question is whether that can be justified by the necessity “ indeed
the obligation “ to apply a purposive construction which will implement the United Kingdom™s
obligations under the Treaty . . .
. . . The fact that a statute is passed to give effect to an international treaty does not, of
itself, enable the treaty to be referred to in order to construe the words used other than in
their plain and unambiguous sense . . .I think, however, that it has also to be recognised that
a statute which is passed in order to give effect to the United Kingdom™s obligations under
the EEC Treaty falls into a special category and it does so because, unlike other treaty oblig-
ations, those obligations have, in effect, been incorporated into English law by the European
Communities Act 1972 . . .
In the instant case, the strict and literal construction of the section does indeed involve
the conclusion that the Regulations, although purporting to give full effect to the United
Kingdom™s obligations under article 119, were in fact in breach of those obligations. The ques-
tion . . . is whether they are reasonably capable of bearing a meaning which does in fact
comply with the obligations imposed by the Treaty . . .
338 British Government and the Constitution

. . . I am satisfied that the words of [the section], whilst on the face of them unequivo-
cal, are reasonably capable of bearing a meaning which will not put the United Kingdom in
breach of its Treaty obligations. This conclusion is justified, in my judgment, by the manifest
purpose of the legislation, by its history, and by the compulsive provision of section 2(4) of
the [European Communities Act 1972].

Lord Templeman, in agreeing with Lord Oliver, expressly relied on Von Colson.
He stated that, in that case, the Court of Justice ˜advised that in dealing with
national legislation designed to give e¬ect to a Directive, “it is for the national
court to interpret and apply the legislation adopted for the implementation of
the Directive in conformity with the requirements of Community law, in so far
as it is given discretion to do so under national law”™. Lord Templeman then
went on to state that:

In Duke v GEC Reliance this House declined to distort the construction of an Act of Parliament
which was not drafted to give effect to a Directive and which was not capable of complying
with the Directive as subsequently construed by the European Court of Justice. In the present
case I can see no difficulty in construing the Regulations of 1983 in a way which gives effect
to the declared intention of the Government of the United Kingdom responsible for drafting
the Regulations and is consistent with the objects of the EEC Treaty, the provisions of the
Equal Pay Directive and the rulings of the European Court of Justice.

Thus, their Lordships were in agreement that the words of the Act inserted by
the Equal Pay (Amendment) Regulations 1983 must be modi¬ed “ by implica-
tion of additional words “ to the extent necessary to ensure compliance with
Community law, so giving e¬ect to the intention of the Government in intro-
ducing the Regulations and of Parliament in approving them.
Such a purposive approach to statutory interpretation was again taken by the
House of Lords in Litster v Forth Dry Dock and Engineering [1990] 1 AC 546,
where their Lordships recognised, indeed emphasised, that what they were
doing was a requirement of Community law, rather than something they
were doing purely voluntarily. As Lord Keith put it, ˜it is the duty of the court
to give [the relevant legislation, here the Transfer of Undertakings (Protection
of Employment) Regulations 1981, SI 1981/1794] a construction which
accords with the decisions of the European Court upon the corresponding
provisions of the Directive to which the [national legislation] was intended
by Parliament to give e¬ect. The precedent established by Pickstone v Freemans
indicates that this is to be done by implying the words necessary to achieve
that result.™
As was noted above, all of these decisions were handed down before
Marleasing. While Marleasing extended the scope of the duty of consistent inter-
pretation (so that it applies not only in the context of interpreting national
legislation that has been passed in order to give EU law domestic e¬ect), even
339 The European dimensions

after Marleasing the duty is not an absolute one. It applies only where an
interpretation consistent with EU law is ˜possible™. Marleasing does not require
a court to give a meaning to UK legislation which it is incapable of bearing: as
the House of Lords ruled in Webb v EMO Air Cargo [1993] 1 WLR 49 the statute
˜must be open to an interpretation consistent with the Directive whether or not
it is also open to an interpretation inconsistent with it™, and a conformable inter-
pretation is to be adopted only ˜if that can be done without distorting the
meaning of the domestic legislation™ (Lord Keith).
In Webb v EMO Air Cargo the appellant, Mrs Webb, had been engaged by
the company to take the place of another employee who had been given mater-
nity leave. Soon after starting work Mrs Webb reported that she had herself
become pregnant and she was dismissed. She claimed that her dismissal was
contrary to the Sex Discrimination Act 1975. The House of Lords concluded
that if the Act was considered in isolation the appellant must fail: she would
not have su¬ered discrimination according to its terms. The question then
arose whether Mrs Webb™s dismissal was contrary to the Equal Treatment
Directive (Directive 76/207/EC, which could not have direct e¬ect in the cir-
cumstances of the case and had been adopted after the 1975 Act). The House
of Lords made a reference to the Court of Justice for its ruling on the correct
interpretation of the Directive, to enable the House to decide whether it was
possible to construe the 1975 Act so as to accord with that interpretation. In
Case C-32/93 Webb v EMO Air Cargo [1994] ECR I-3567 the Court of Justice
ruled that Directive 76/207 precluded the dismissal of an employee in the posi-
tion of Mrs Webb. When the matter returned to it in Webb v EMO Air Cargo
(No 2) [1995] 1 WLR 1454 the House of Lords did ¬nd it possible, without
doing violence to the language of the Act, to interpret it so as to conform to
the Directive.
(See generally Craig, ˜Directives: direct e¬ect, indirect e¬ect and the
construction of national legislation™ (1997) 22 EL Rev 519.)

Judicial review
The third and fourth consequences for British public law of the United
Kingdom™s membership of the European Union can be relatively quickly dealt
with. EU law has had an important impact on judicial review. As we shall see in
detail in chapter 10, judicial review is the legal procedure by which the actions
and decisions of government and other public authorities may be challenged in
court. Applicants may seek (or, in Scotland, petition for) judicial review where
they consider that a public authority has acted or is proposing to act illegally,
irrationally or procedurally unfairly (Council of Civil Service Unions v Minister
for the Civil Service [1985] AC 374). Each of these grounds of review “ illegal-
ity, irrationality and procedural unfairness “ have detailed and developed
meanings in domestic law, as we shall see in chapter 10. EU law has made two
substantive changes to the way in which the grounds of judicial review are
340 British Government and the Constitution

First, it has supplemented the notion of irrationality with a doctrine of
proportionality. It may be that, in this respect, it is the law of the ECHR rather
than EU law that will have the greater impact on domestic proceedings,
proportionality being a principle of considerable importance in European
human rights law (on which, see R (Daly) v Secretary of State for the Home
Department [2001] 2 AC 532, considered in chapter 10). There are some cases,
however, in which proportionality as a general principle of EU law has begun
to feature, perhaps the most notable example being R v Chief Constable of
Sussex, ex p International Trader™s Ferry [1999] 2 AC 418. This case concerned
the legality of the decision of the Chief Constable of Sussex police force, taken
principally for resource reasons, to limit the number of days on which his force
was able to police ports from which live animals were being exported to France.
Without a signi¬cant police presence, animal rights protesters would force the
ports to close. The House of Lords ruled that the Chief Constable™s decision was
neither irrational in domestic law nor disproportionate in EU law, the point of
EU law arising because the ferry operators considered that their inability to con-
tinue with the exports infringed their right to freedom of movement of goods
under Article 28 EC. (For a further example, see Gough v Chief Constable of
Derbyshire [2002] QB 1213.)
Secondly, EU law has signi¬cantly in¬‚uenced the protection that the courts
will give under domestic law to ˜legitimate expectations™. If you legitimately
expect that the government will treat you in a certain way (because, for example,
the government has told you that it will treat you in a certain way and you have
relied on that assurance), English law would traditionally have protected your
expectation by a¬ording you a right to be heard before your expectation could
be frustrated (see eg, R v Secretary of State for the Home Department, ex
p Hargreaves [1997] 1 WLR 906). This amounts to a procedural protection of
legitimate expectations: what you get is a right to be heard; what you do not get
is the right necessarily to have your expectation ful¬lled. Under EU law,
however, legitimate expectations may be protected substantively: what you may
get is not merely a right to be heard, but the right to have your expectation
satis¬ed. Accordingly, albeit only in limited cases, English law too has started
(not only in the context of EU law) to a¬ord substantive protection to legitimate
expectations (see eg, R v Minister for Agriculture, Fisheries and Food, ex p Hamble
[1995] 2 All ER 714 and R v North and East Devon Area Health Authority,
ex p Coughlan [2001] QB 213).

The ¬nal area to be considered is the law of remedies. We saw above that the
Court of Justice has developed a doctrine of state liability according to which,
in certain circumstances, Member States will be liable in damages for
˜su¬ciently serious™ breaches of EU law. Under domestic public law, damages
were only rarely available. Whereas damages are a central remedy in domestic
private law, they have not been so in public law. In public law the principal
341 The European dimensions

remedies are injunctions, by which public o¬cers may be ordered to act or to
refrain from acting in certain ways, and declarations, by which, as its name
implies, the court may declare what the legal position is (see generally C Lewis,
Judicial Remedies in Public Law (3rd edn 2004); note that the law of remedies is
di¬erent in Scots law: see S Blair, Scots Administrative Law: Cases and Materials
(1999), ch 11). It may be that, under the combined in¬‚uence of the EU doctrine
of state liability and European human rights law (see the Human Rights Act
1998, section 8), this is beginning to change, as damages become more impor-
tant in public law (see Amos, ˜Extending the liability of the state in damages™
(2001) 21 LS 1).
Part II

Crown and government

1 The Crown
(a) Privileges and immunities of the Crown
2 Monarchy and the prerogative
(a) Appointment of the Prime Minister
(b) Dismissal of ministers
(c) Dissolution of Parliament
3 Central government
(a) Ministers
(b) The Prime Minister
(c) The Cabinet
(d) Ministerial committees of the Cabinet
(e) Government departments
(f) Non-departmental public bodies
(g) The civil service

In this chapter and the next we focus on government. For the most part we con-


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