Jurisdiction Unresolved

To say that the Factortame litigation spun a web of revolutionary ideologies is an understatement.

As discerned from the facts above the crucial issue was the compatibility of Community law (Articles 7, 58, 221) and UK law (s.14 of the Merchant Shipping Act 1988).

The UK government’s argument for the s.14 restriction was that their Common Fisheries Policy allowed them to implement a system of national quota and the Merchant Shipping Act 1988 effectively standardized that system. The ECJ contended that while that may be the case any member state can only do so insofar as they do not violate EC law.

Clearly, what this meant was that economic ties of the member states cannot be severed on the grounds of nationality as this would be in contravention of EC Law. To do so would undoubtedly defy the aim of the EC framework which must rank superior to the Common Fisheries Policy argument the UK government was relying on.

Instinctively then, the second issue arose when Factortame asked the Divisional Court to disapply the UK provision, which was unheard of in the UK although the concept was not new for Germany, Portugal and the Netherlands - other member states. To do so would inevitably compromise the underlying principle of the UK’s constitution, i.e the sovereignty of Parliament.

Noteworthy is that the two highest court in the land held on steadily to Dicey’s proclamation that no court can question the validity of an Act of Parliament. They contended that the High Court did not have the power to suspend an Act of Parliament and nor did they. The House of Lords referred to Article 177 and stated that they were obliged under EU law to refer the matter to the ECJ. To this extent the hierarchy of the UK courts is thereby maintained, at least until the ECJ’s ruling in 1990. The declaration made by the ECJ was that, domestic courts are indeed able to disapply domestic legislation in so far as they are deemed incompatible with EU law. It came as no surprise then that the ECJ ruled that the Merchant Shipping Act 1988 ran second to the EC legislation.

Another important matter arising from the litigation was the issue of state liability i.e the extent to which the applicants could pursue a claim for damages. Luckily the ECJ had not too long given their Francovich ruling so this served them well on the matter at hand in this case. It was thereby stated such applicants should be able to recover damages for the losses they have suffered provided the requisite requirements are adhered to. Community law specifies that its law must have intended to confer such rights on individuals, that the breaches were indeed sufficiently serious and that the breach did cause the damage being claimed. 

 

The Significance of the Factortame Litigation

This body of cases has inevitably contributed remarkably to the development of Community Law in the United Kingdom.

According to Lord Bridge of the House of Lords,

“If the supremacy within the European Community of Community law over the national law of Member States were not always inherent in the EEC Treaty, it was certainly well established in the jurisprudence of the ECJ”.

Thus, by 1990 the principle of supremacy of Community law became full blown. Apart from clarifying the boundaries of the right of establishment and non-discrimination on the ground of nationality as well as the scope of state liability, a 3-D view of the litigation portraits greater significance.

One will note that the traditional doctrine of parliamentary sovereignty as per Dicey says that no Parliament can bind its successors or be bound by its predecessors, in other words Parliament cannot bind itself.

To understand this grave constitutional movement, yes, the European Communities Act (ECA) 1972 prevails over the Merchant Shipping Act 1988 but it’s an earlier Act of Parliament (ECA 1972) prevailing over a later Act of Parliament (MSA 1988). By virtue of the doctrine of implied repeal later Acts prevail over inconsistent earlier Acts not the other way around. Today then it may be quite safe to say that parliament can bind its successors or be bound by its predecessors. Sir William Wade got it right then when he said: “the Parliament of 1972 had succeeded in binding the parliament of 1988”.

This pronouncement no doubt has political and constitutional significance. By virtue of the Factortame saga then it is now abundantly clear that ECA 1972 is protected against implied repeal.

Wade clearly adheres to a revolutionary view. He says a new legal order was created by the ECA 1972 and is of the belief that the UK Parliament went into the EEC with their eyes wide open knowing full well what membership would mean to their sovereignty. S. 2(4) ECA 1972 he said is not a creation of the EC it is a creation of the UK Parliament so when it was said ‘Acts passed or to be passed’ it is NOT a matter of construction but by a matter of design that Parliament can bind its successors and knowing that, this departure from the Dicey’s definition of the sovereignty of Parliament is indeed a “constitutional revolution”.

The cogency of Wade’s argument however was reviewed by T.R.S. Allan when he said “it rests on the same conception of sovereignty as “political fact” which underlies H. L. A. Hart's account of the “rule of recognition”: “The point is simply that the rule of recognition is itself a political fact which the judges themselves are able to change when they are confronted with a new situation which so demands.

Allan clearly shares a platform with Mr. David Vaughan and Sir John Laws. They were of the view that parliamentary sovereignty could not be limited, contending that it was the UK Parliament that passed the ECA 1972 and it is surely the UK Parliament that has the power to repeal that law though it may only be done expressly.

So by way to significance the big question is – does Factortame mark an end to parliamentary sovereignty and is it time now for the UK to adopt a written constitution?

The case is also known to have unravelled a momentous tenet for its citizens and that is individuals have acquired the right to question the legality and/or compatibility of UK national law and community law.  Tillotson attributed this doctrine to (in his words) the twin principle of supremacy and direct effect of Community law. 

Conclusion

So here is the real deal. Parliament is supreme in so far as there is no EC law that contravenes it. It is without a doubt that Factortame has elevated the laws of the EU above its national laws and has bestowed upon the judiciary a new found power that definitely runs counter to Dicey’s maxim that all the court can do is apply the UK law.

Danny Nicol observes that, ‘no longer did the United Kingdom’s highest court feel compelled to refer statutory provisions to the ECJ whenever it believed them to be incompatible with Community law. Now it was prepared to override them itself.’

While Lord Denning, Allan and Laws avidly contradict the submission of a limited sovereignty, in the belief that the ECA is a creation of the UK parliament and can consequently be repealed by them. The economic reality is this is far from practical.

The UK would like to think their sovereignty is intact but the reality is that their law making power have been crippled.

So perhaps the time has come to adopt a written constitution for the UK. Why shouldn’t they. With the recent constitutional events now rampant in Britain, for example the Human Rights Act 1998 and the Devolution Acts: The Scotland Act, The Wales Act and The Northern Ireland Act the time is now right more than ever.

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