The Factortame case was a landmark constitutional case in the United Kingdom (UK), which confirmed the primacy of European Union law over English law whilst the European Communities Act 1972 is not expressly repealed. The Factorame cases spanned a period of over ten years and are of particular constitutional significance in the debate over the erosion of Parliamentary supremacy in Britain. The two most important judgements are to be found in R v Sectretary of State for Transport (ex parte Factortame) [1990] 2 AC 85 and R v Sectretary of State for Transport (ex parte Factortame) No 2 [1991] 1 AC 603 which are often referred to as Factortame I and Factortame II.
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Background
The case first came to prominence when a Spanish fishing company incorporated by Directors; Joseph J LCouceiro, John A Couceiro and Ken L Couceiro, appealed in the UK courts against restrictions imposed on them by the UK government under the Merchant Shipping Act 1988. A section of the Act prevented companies using foreign ships registered as British vessels from fishing in UK waters. Factortame's argument was that they were permitted to fish under the law of the European Economic Community
First Instance
The case reached the High Court, which granted an order requiring that the relevant part of the Merchant Shipping Act be disapplied. However, on 22 March, 1989, this was overturned by the Court of Appeal on the basis that the constitution did not give any court the right to suspend Acts of Parliament, and this was confirmed by the House of Lords, the highest court in the UK.
House of Lords
In 1990, the House of Lords, ruling that they did not have the power to suspend Acts of Parliament, referred the case to the European Court of Justice (ECJ), as was legally required. The ECJ in June, 1990, ruled that national courts could disapply legislation that contravened EU law. Consequently, the House of Lords ruled in favour of Factortame, meaning that in effect the Merchant Shipping Act 1988 was struck down.
Relevance
The key issue in this case was not whether European law was superior to national law. In the view of the European Court of Justice, this was already well established in case law, since the decision in Costa v. ENEL; although another view is that European law is only superior whilst the UK Parliament allows it to be. The question was whether or not a domestic British court could overturn an Act of Parliament on grounds of incompatibility with EU legislation. (For a further discussion of this issue see Erskine May, Parliamentary Practice) This appears to breach English constitutional principle of Parliamentary sovereignty, which holds that Parliament is the supreme law-making body and that no external body can override its legislation. In Factortame, the courts were able to prevent the operation of the law created by Parliament. Effectively, the House of Lords has been given the power to disapply Acts of Parliament where they are incompatible with EU law. The comments made by Lord Bridge in the case have been seen in some quarters as being 'revolutionary' (Wade), in that he suggests that Parliament has, in the European Communities Act (ECA) 1972, managed to bind its successors from repealing the Act impliedly. It had previously been thought that no Parliament could ever bind its successors in such a way. In a case where two statutes conflicted, the traditional approach would have been to apply the later statute on the basis that the inconsistent parts of the earlier statute had been repealed. Such an interpretation of the case is supported by statements in Thoburn v Sunderland City Council and Hunt v Hackney Borough Council to the effect that there now exist two forms of Acts of Parliament: ordinary acts which can be repealed impliedly, and 'statutory' or 'constitutional' acts which can only be repealed expressly. (See in particular the judgement of Laws LJ in Thoburn). Nevertheless, there is no restriction on the ability of Parliament to expressly repeal ECA 1972. Furthermore, the case does not, on a strict reading, constitute a breach of Parliamentary sovereignty. The Merchant Shipping Act 1988 was not a purposeful and direct conflict with EC law, but was instead an attempt to give effect to the fishing quotas required under EC law. Therefore, the courts were not striking down a domestic Act of Parliament, but were instead attempting to interpret legislation in a manner compatible with the Treaty obligations that arise under ECA 1972 (as proposed by Lord Diplock in the case of Garland v British Rail Engineering). It remains to be seen how the courts would respond to an Act of Parliament intentionally contradicting EC law. However, in the case of MacArthy's v Smith, Lord Denning suggested that, should such an event occur, the courts would be obliged to obey the domestic law over the European.
Sovereignty
The issue of whether the UK Parliament or the European Court of Justice has ultimate sovereignty over European Community laws which apply to the UK is still an area of intense legal debate and conflicting views. In current practice, the UK recognises the primacy of the European Court of Justice for those areas of law in which the EU has competency. However, in Macarthys Ltd v Smith, Lord Denning said, "If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or of intentionally acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament." This view of the UK's ultimate sovereignty was supported by Lord Justice Laws in the Metric Martyrs case, when he said, "...there is nothing in the European Communities Act which allows the European Court, or any other institution of the EU, to touch or qualify the conditions of Parliament's legislative supremacy in the United Kingdom...That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions." The opposing view, that European law has primacy over UK law, has been stated many times by the European Court of Justice. In ECJ Case 6/64 Costa v. ENEL (1964), the ECJ stated, "...the Members States have limited their sovereign rights, albeit within limited fields." In Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen (1963) their ruling states, "...the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights." The question of who has the ultimate 'Kompetenz-Kompetenz' (i.e. the right to decide the limits the European Court of Justice's jurisdiction) has not been settled. The Factortame case is important for two reasons. Firstly, the European Court of Justice re-asserts the primacy of European Community law, and its ability to overrule conflicting domestic legislation. It also changes the balance of power in the constitution. For the first time since 1688 (prior to the Bill of Rights), the judiciary is able to set aside the will of the legislature, even though it has knowledge of its express wish. The Factortame case is often cited as evidence for the erosion of UK sovereignty and independence by the Eurosceptic movement in the UK. The central question is therefore whether Parliament is truly sovereign.
See also
Further reading and references
- Report on the judgement
- Extract of the judgement with some analysis
- ECJ Case C-213/89 The Queen v Secretary of State for Transport, ex parte Factortame Ltd and others. ECJ judgment 19 June, 1990
- ECJ Case C-221/89 The Queen v Secretary of State for Transport, ex parte Factortame Ltd and others. ECJ judgment 25 July, 1991
