Facts

As part of the Common Fisheries Policy, the United Kingdom had a quota for the number of fish that its vessels could land. Under s. 14 of the Merchant Shipping Act 1988, it was a requirement of the licensing conditions that a UK-registered fishing vessel should be at least 75 per cent owned by UK residents (at 660), so as to demonstrate a ‘genuine economic link with the UK fishing industry’ (at 660). The 1988 Act and earlier pieces of legislation were designed to deal with Spanish fishing vessels ‘with only tenuous [economic] links’ registering in the United Kingdom to benefit from the United Kingdom’s quota (Lord Goff, at 666; see also Oliver (1991) 54(3) MLR 442, 442–4). It was argued that this provision appeared to be in conflict with European Community (EC) law (at 667–8).

To determine how to proceed where there was a conflict between national primary legislation and EC law, their Lordships sought a preliminary ruling from the European Court of Justice (ECJ) to determine whether the court had jurisdiction:

A summary of the facts can be found in the judgment of Lord Goff (at 665–71), but the remainder of this note deals specifically with these two questions vis-à-vis parliamentary sovereignty.

Decision

The ECJ concluded that a domestic court could grant an injunction suspending the operation of a national law where that law appeared, on its face, to conflict with EC law (see Case C-213/89). Their Lordships granted interim relief by suspending the effect of the 1988 Act, and subsequently found it to be in conflict with EC law and disapplied it (Lord Bridge, at 658).

While this decision may seem revolutionary, Lord Bridge reasoned that it was a foreseeable consequence of Parliament’s decision to join the (then) European Economic Community via the European Communities Act 1972. In his judgment, he said that the principle that EC law trumped domestic law ‘was certainly well established in Community jurisprudence long before the UK joined’ (at 658–9; see also s. 2(4) of the 1972 Act). Therefore, the concomitant reduction in Parliament’s sovereignty that followed was ‘entirely voluntary’ (Lord Bridge, at 659).

Comment

Although Lord Bridge concluded that the ruling from the ECJ in Factortame was ‘no more than a logical recognition of [the] supremacy [of EC law]’ (at 659), for Wade (1996) 112(Oct) LQR 568, Factortame still entailed a real example of fundamental constitutional change. Wade (at 571) observed that ‘we are in a regime in which Parliament has bound its successors successfully … which is nothing if not revolutionary’ rendering parliamentary sovereignty ‘a freely adjustable commodity’ (Wade, at 573). This, Wade argued (at 574), meant that the decision in Factortame could be reconciled with the doctrine of parliamentary sovereignty only if it were to be understood that the ‘rule of recognition is itself a political fact’, which allows ‘judges, faced with a novel situation … to depart from the familiar rules for the sake of political necessity’ (see also Wade (1955) 13(2) CLJ 172, 189, 191–3; Hart, The Concept of Law, Oxford: Clarendon, 1997). If the United Kingdom’s constitution is political—that is, developed largely through political processes, rather than legal ones—then the suggestion that the rule of recognition can be changed in response to the prevailing political wind is in keeping with such an understanding.

Allan (1997) 113(Jul) LQR 443 was unwilling to characterize the consequences of Factortame in this way. He suggested that the claim that the nature of Parliament’s sovereignty could be determined by political whim ‘is really an excuse for shirking the explicit analysis of constitutional principle’ (at 448). For Allan, parliamentary sovereignty had to be recognized as a legal concept. It was not something that could be changed by statute, but was instead a product of the common law; ‘its nature and scope are matters of reason, governed by our understanding of the constitution as a whole’ (at 448–9, 451–2). By confining analysis to one aspect of the constitution (that is, parliamentary sovereignty) without also taking into consideration other principles (such as democracy, the rule of law, the separation of powers) and other common law rules, one could not sensibly conceptualize the ‘nature and scope’ of parliamentary sovereignty (at 449).

Oliver (at 445–6) draws attention to a separate issue raised by Factortame, noting that in Macarthys v Smith [1979] 3 All ER 325, at 329, Lord Denning commented that expressly contravening EC law in statute would require the courts to follow the Westminster Parliament’s statute rather than EC law (see also Thoburn [2002] EWHC 195 (Admin)). Similarly, Elliott (2014) 10(3) ECL Rev 379, at 387, has more recently observed that express words would also have been sufficient for the Merchant Shipping Act 1988 to overcome the apparent supremacy of EC law in Factortame. However, these observations do not deal with what would happen in the event that two constitutional statutes came into conflict—a point not fully addressed in the recent case law, for example HS2 Action Alliance [2014] UKSC 3 or Miller [2017] UKSC 5, at [65–67].

Wider Questions

The argument between Wade and Allan is a microcosm of the long-running debate over whether the constitution of the United Kingdom is essentially political or legal in its foundations, and thus the debate arising from Factortame remains relevant notwithstanding the UK’s departure from the European Union. If Parliament’s sovereignty is determined by political necessity, then does this entail that political power is unlimited? Can Parliament make whatever laws legislators and the government believe they can convince the public are necessary, regardless of whether it ties the hands of future parliaments? If not, then what are the limits on that law-making power, and where do those limits come from? If the limitations originate in the common law, are we content to allow the judiciary to be the United Kingdom’s constitutional augurs?

The issues raised by Oliver and Elliott also serve to demonstrate that the absence of a codified constitution means that we are reliant upon the outcome of the political versus legal constitutionalism debate for the development of fundamental aspects of the constitution. It is clear that while the existence of constitutional statutes has now been recognized on several occasions by the Court of Appeal and Supreme Court, the constitutional implications of their existence remain altogether undertheorized.