Const. and administrative law lecture 12/11/18
Parl. Sov and EU:
2016 Brexit referendum-non binding legally; 3mn EU residents not allowed to vote. Parl
given ‘meaningful vote’ on final deal.
European legal supremacy, UK joined EU but principle made before UK joined; European
Communities Act (1972)
R v Secretary of State for Transport ex p. Factortame (No.2) ([1991] 1 All E.R)-spanish
fishermen, british parl passed Merchant Shipping Act (1988) restricts fishing rights (act of
parl), prevents foreign nationals from fishing in north sea but contradicts EU law where
article in treaty has a non discrimination provision; cant discriminate between EU members.
Fishing=business in any state. Factortame No.1 (issue about interm relief; avoid bankruptcy
Spanish. Couldn’t grant interm relief to fishing companies, would have to suspend EU law?
HoL highest court at the time but referred to ECJ for clarification, conflict between national
and European law). Was it a breach of European law? ECJ DECIDED IT WAS A VIOLATION
NOT TO GIVE RELIEF. Case came back to UK in Factortame No.2 after ECJ reference where
they said they will give interm relief to Spanish, but had to suspend Merchant Shipping Act.
Pending final decision. Suspend/set aside/disapply. Last time courts suspended Act of
Parl=1688, glorious revolution, 17th century. Dicey-no body has power to override Act of Parl
(second, negative limb) but here it does. HoL justified-doing what parl telling them to do.
Lord Bridge; parl voluntarily entered into limiting parl sov, parl chose to give supremacy to
EU law. Arguing parl is still sovereign. European Communities Act-requires supremacy given
to EU law. ‘temporary restriction’ on parliamentary law making. Parl took us to EU using
their powers.
Reconciling European Legal Supremacy with Parl. Sov-parl bound its successors to recognise
supremacy of EU law. Revolutionary change (Wade)
Allan-rejects idea of judicial rev. emphasises British const is evolutionary, changes not
ruptures and breaks. Bent to comply with new reality to encompass with idea that EU law is
supreme.
Thoburn v Sunderland City Council:
a) ‘Metric Martyrs’-selling imperial measurements. Under Weights and Measures Act
(1985); can sell on metric or in pence/pounds but this Act was amended since EU
director said from now on have to sell in metric. Courts should do what they usually
do when 2 statues are in conflict-should set later statute. Doctrine of implied repeal.
What’s inconsistent with later acts of parl. Europ Communities Act (1972) but
Weights Act comes after. EU immune from implied repeal.
b) Const. Statutes-europ comm act=const statute. HRA, Devolution Acts, Magna Carta,
Bill of Rights ALL CONST STATUTES. CANNOT BE IMPLIEDLY REPEALED, BUT CAN BE
EXPRESSLY REPEALED. Hierarchy in statutes. Const statutes sit above ordinary
statutes. All judges agree with Lord Justices approach. More protection; priority
even if they’re a reflection of later will of parl.
c) Hierarchy of Acts of Parl.
R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3-procedure made
contrary to European directive. But procedure made by parl dealing with railway.
Principle/Concept of parl privilege. Procedures of parl are not questioned by any body; they
decide these procedures (old rule). Decide case without scrutinising procedure. Doesn’t
follow factortame. Because eu law is supreme, still certain fundamental parl principles that
stand above it?
Parl. Sov and EU:
2016 Brexit referendum-non binding legally; 3mn EU residents not allowed to vote. Parl
given ‘meaningful vote’ on final deal.
European legal supremacy, UK joined EU but principle made before UK joined; European
Communities Act (1972)
R v Secretary of State for Transport ex p. Factortame (No.2) ([1991] 1 All E.R)-spanish
fishermen, british parl passed Merchant Shipping Act (1988) restricts fishing rights (act of
parl), prevents foreign nationals from fishing in north sea but contradicts EU law where
article in treaty has a non discrimination provision; cant discriminate between EU members.
Fishing=business in any state. Factortame No.1 (issue about interm relief; avoid bankruptcy
Spanish. Couldn’t grant interm relief to fishing companies, would have to suspend EU law?
HoL highest court at the time but referred to ECJ for clarification, conflict between national
and European law). Was it a breach of European law? ECJ DECIDED IT WAS A VIOLATION
NOT TO GIVE RELIEF. Case came back to UK in Factortame No.2 after ECJ reference where
they said they will give interm relief to Spanish, but had to suspend Merchant Shipping Act.
Pending final decision. Suspend/set aside/disapply. Last time courts suspended Act of
Parl=1688, glorious revolution, 17th century. Dicey-no body has power to override Act of Parl
(second, negative limb) but here it does. HoL justified-doing what parl telling them to do.
Lord Bridge; parl voluntarily entered into limiting parl sov, parl chose to give supremacy to
EU law. Arguing parl is still sovereign. European Communities Act-requires supremacy given
to EU law. ‘temporary restriction’ on parliamentary law making. Parl took us to EU using
their powers.
Reconciling European Legal Supremacy with Parl. Sov-parl bound its successors to recognise
supremacy of EU law. Revolutionary change (Wade)
Allan-rejects idea of judicial rev. emphasises British const is evolutionary, changes not
ruptures and breaks. Bent to comply with new reality to encompass with idea that EU law is
supreme.
Thoburn v Sunderland City Council:
a) ‘Metric Martyrs’-selling imperial measurements. Under Weights and Measures Act
(1985); can sell on metric or in pence/pounds but this Act was amended since EU
director said from now on have to sell in metric. Courts should do what they usually
do when 2 statues are in conflict-should set later statute. Doctrine of implied repeal.
What’s inconsistent with later acts of parl. Europ Communities Act (1972) but
Weights Act comes after. EU immune from implied repeal.
b) Const. Statutes-europ comm act=const statute. HRA, Devolution Acts, Magna Carta,
Bill of Rights ALL CONST STATUTES. CANNOT BE IMPLIEDLY REPEALED, BUT CAN BE
EXPRESSLY REPEALED. Hierarchy in statutes. Const statutes sit above ordinary
statutes. All judges agree with Lord Justices approach. More protection; priority
even if they’re a reflection of later will of parl.
c) Hierarchy of Acts of Parl.
R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3-procedure made
contrary to European directive. But procedure made by parl dealing with railway.
Principle/Concept of parl privilege. Procedures of parl are not questioned by any body; they
decide these procedures (old rule). Decide case without scrutinising procedure. Doesn’t
follow factortame. Because eu law is supreme, still certain fundamental parl principles that
stand above it?
