R v Secretary of State for Transport, ex parte Factortame Ltd (No 2)
[1991] 1 AC 603
Ratio Decidendi
By the European Communities Act 1972, Parliament supremely and deliberately chose to give precedence to directly enforceable Community law over inconsistent domestic legislation. English courts must therefore, where they find a rule of national law to conflict with directly enforceable Community law, disapply that domestic rule — even if it is contained in an Act of Parliament. Courts also have jurisdiction to grant interim relief by way of injunction against the Crown to protect putative Community rights pending full determination, notwithstanding the Crown Proceedings Act 1947. This was a constitutional watershed: for the first time a domestic court suspended the operation of a primary Act of Parliament.
ਤੱਥ
The Merchant Shipping Act 1988 required fishing vessels to be British-owned to fish in UK waters. Spanish fishermen argued this breached EU law on freedom of establishment. They sought an interim injunction to disapply the Act pending the ECJ's ruling.
ਫੈਸਲੇ ਦਾ ਸਾਰ
The House of Lords, following a preliminary ruling from the ECJ in Case C-213/89 R v Secretary of State for Transport ex parte Factortame [1990] ECR I-2433, granted an interim injunction disapplying the nationality requirements of the Merchant Shipping Act 1988. Spanish fishing companies operating through British-registered vessels were unable to continue fishing under the 1988 Act, which imposed requirements of British nationality and residency. They argued the Act was incompatible with Community law on freedom of establishment and equality. When the case first came to the House of Lords, it had referred the question of interim relief to the ECJ. The ECJ held that the effectiveness of Community law required national courts to be able to grant interim relief setting aside conflicting national measures. On the return, the House of Lords (Lord Bridge, Lord Brandon, Lord Templeman, Lord Griffiths, and Lord Jauncey) granted the relief. Lord Bridge observed that the primacy of Community law had been clear since 1972 and that any surprise at it was misplaced — Parliament had knowingly legislated to give Community law this status when it enacted the ECA. The Courts were not subordinating parliamentary sovereignty; they were giving effect to a parliamentary choice. The case is of major constitutional significance, representing the moment that an English court formally suspended the operation of an Act of Parliament and the executive was required to not enforce a primary statute.
ਮੁੱਖ ਹਵਾਲੇ
"Under the terms of the Act of 1972 it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law."
— Lord Bridge at 658
"If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community."
— Lord Bridge at 658
"Some public surprise has been expressed that such a high constitutional principle could be derived from section 2 of the European Communities Act 1972. The basis of this surprise seems to be a misunderstanding of the constitutional position."
— Lord Bridge at 659
ਬਾਅਦ ਦਾ ਇਲਾਜ
Applied in Factortame Ltd v Secretary of State for Transport (No 5) [2000] 1 AC 524, where the House of Lords held that the UK government was liable to pay Francovich-style damages to the Spanish fishermen for breach of Community law.
Considered extensively post-Brexit in cases discussing the retained EU law framework under the European Union (Withdrawal) Act 2018 and the Retained EU Law (Revocation and Reform) Act 2023, which restore parliamentary sovereignty.
Distinguished post-Brexit: the UK's domestic courts no longer apply the principle of Community law supremacy over Acts of Parliament passed after 31 December 2020. The constitutional position has reverted to traditional Diceyan parliamentary sovereignty under the post-Brexit settlement.
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