Evaluate the thesis (as per Wade) that the Factortame case represents a technical legal revolution. provide alternative views as part of your evaluation.
Sahil Suleman Constitutional Law
Ms Costello
Evaluate the thesis (as per Wade) that the Factortame case represents a technical legal revolution. provide alternative views as part of your evaluation.
The traditional interpretation of parliamentary legislative supremacy is that of Dicey, stating that there are no legal limitations on the legislative competence of Parliament, as seen his definition whereby, “under the English constitution, the right to make or unmake any law whatever; and further than no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.” Furthermore, Dicey identified what was at that time the sole restriction on parliamentary sovereignty, in that “a sovereign power cannot, while retaining its sovereign character, restrict its own powers by any parliamentary enactment,” ie. Parliament cannot bind its successors. When the United Kingdom joined the E.U. via the European Communities Act 1972, it was declared that membership of the E.U. would not affect the sovereignty of Parliament. This act had worked within the national legal system in a largely uncontroversial manner until 1989 when the first of a set of cases which would last more than 10 years was initiated. The Factortame cases were to be of great constitutional significance, particularly the case known commonly as Factortame II. Following the European Court of Justice declaration that the Spanish fisherman in the case were entitled to relief under Community law, the House of Lords was able to pass in an injunction preventing the Secretary of State from exercising power under the act in contravention of the European Communities Act 1972, namely the Merchant Shipping Act 1988. This injunction effectively ‘disapplied’ the Act in question. It was Sir William Wade who went so far as to describe the effect of the case on our legal system as a ‘technical legal revolution.’ It is my opinion that this too radical a judgement, although I do believe that some changes in our understanding of the fundamental legal principle of the United Kingdom have been made.
It was the opinion of Wade that the commonly recognised ideal of legislative supremacy could not be preserved alongside the House of Lords judgement in the Factortame case ie. that the two ideas could not be reconciled. His main potent argument is that “The Parliament of 1972 had succeeded in binding the Parliament of 1988 and restricting its sovereignty, something that was supposed to be constitutionally impossible.” In the case, Lord Bridge confirms this idea, in his statement that, “Under the terms of the Act of 1972 it has always been clear that it was the duty of a U.K. court, when delivering final judgement, to override any national law found to be in conflict with any directly enforceable rule of Community law.” Wade also argues that the only existent limitations on Parliament up to that point were merely territorial, which only gave away powers but retained omnipotence over the rest of the Empire. Clearly the European Communities Act has placed limitations on the legislative supremacy of Parliament, but the extent to which this is a ‘revolution’ is questionable. Based on the argument of Wade and the Diceyan principle, Parliament would have in fact lost its sovereignty when it legislated regarding Independence acts, as it has been stated that ‘freedom once conferred cannot be revoked,’ and I disagree with Wade’s assertion that territorial limitations are not limitations on the Diceyan principle of parliamentary legislative supremacy. As this is also quite clearly a limitation on parliamentary omnipotence, it would therefore appear that Wade’s ideal of ‘binding of Parliament’ is perhaps oversimplified. However, it is on the issue of ‘voluntary acceptance’ that I find Wade’s arguments less convincing. In his judgement, Lord Bridge states that, “whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.” Having identified that the Act did at least place some limitations on parliamentary sovereignty, we see that Factortame itself was a court decision that was forced neither by the European Courts of Justice, nor by the Lords, and this power was endowed by Parliament itself, and not imposed by Community law, as is often mistakenly suggested. This idea of voluntary acceptance suggests, as Wade describes it, that “the courts are reformulating the fundamental rules about the effectiveness of Acts of Parliament.” However it must also be noted that in the court’s judgement on the case, the 1988 Merchant Shipping Act was not actually repealed – the injunction only ‘disapplied’ the Act as such, so the courts did not go beyond their power in attempting to repeal an Act themselves. The courts were only acting on the advice of the ECJ, and acting in accordance with Community law, which is as far as their powers of adjudication go.
