Jean Monnet Center at NYU School of Law


II. The Conundrum of the Judicial Revisiting of the British Constitutional Settlement

The application of EC law in United Kingdom courts cannot be equated to a form of best-level analysis which involves a simple shift in allegiances from the periphery to the centre by the national courts. It involved a transformation in the relationships the judiciary enjoyed with other arms of government, with the central institutions of civil society and within the judiciary itself.

First, EC law reversed the hierarchy between the British judiciary and the other arms of government. The British constitutional settlement had traditionally been one within which, as the sovereign, Parliament sat at the apex and courts, whilst having extensive powers in the private law field, had very limited ones in public law. They had no powers of legislative review and applied only a weak measure of review over administrative acts which allowed considerable administrative discretion.21 By requiring national courts to disapply administrative or legislative acts which conflicted with it, EC law gave national courts sweeping new powers of legislative and administrative review which placed them at the apex of the constitutional settlement. Furthermore, the new measure of review, that of compliance with EC law, seemed to enable them to intervene sweepingly and more intensively in previously untouched areas of governmental activities.

Secondly, EC law required British courts to mediate a fundamentally different relationship between individual and State. Its monarchist and hereditary trappings aside, the approach of the British constitutional settlement to legal and political life has always been strongly republican in nature. The legitimacy of the hegemony of a majoritarian institution such as Parliament lay in its being the most representative body to enact a corpus of laws best suited to the conditions and mores of British society. The strongly collectivist nature of this vision accords priority to the legal system as a whole in which it mediates between plural interests and individual rights enjoy an essentially derivative role.22 Similarly, politics becomes measured by its success in securing collective goods with individual measures being reviewed against their contribution towards that.23 The EC Treaty, by contrast, was centered around a series of economic freedoms whose ideological foundations were based upon the liberal vision of private autonomy.24 Within the liberal vision, these principles enjoy a transcendental and prior status to any collective settlements. Legal priority is thus given to subjective rights. Likewise, a more self-limiting vision of politics is taken within which as much space is preserved for autonomous behaviour by private individuals as possible.

Thirdly, the application of EC law undermined internal judicial hierarchies. Whilst the division of labour within British courts is not as strong as some jurisdictions, specialised courts exist in, inter alia, the fields of labour law, immigration, tax and intellectual property and only the higher courts (the High Court, Court of Appeal and House of Lords in England and Wales) have powers of judicial review. The system of precedent imposes powerful hierarchies within the system by obliging lower courts to follow prior decisions of higher courts on materially identical questions. EC law subverts these by robbing higher courts of their privileges vis-_-vis the other arms of government in granting powers of judicial review or legislative review to any body which, acting under governmental supervision contains quasi-judicial procedures to determine EC rights.25 Powers usually reserved for the higher courts26 are not merely granted to all other courts, but also to statutory bodies which often contain lay members and enjoy a hinterland status somewhere between government agency and judiciary.27 EC law also undercuts the authority of higher courts over lower courts by enabling the latter to refer points to the Court of Justice and give authority to Court of Justice rulings on points materially identical to those already decided by higher national courts.28

Fourthly, EC law brought unprecedented administrative intervention into the legal institutions of civil society. Historical sociologists have observed how the development of modern notions of political sovereignty contributed to the development of capitalist economies by enabling the economic sphere to be separated from the political sphere and, through centralised laws, giving political backing to those private property rights that are the mainstay of a capitalist economy.29This was done in many European jurisdictions through the development of civil codes. An 'abeyance' emerged in the British constitutional settlement whereby although Parliament had formal sovereign powers, in practice it seldom trespassed on the autonomy of the common law.30 This allowed the British courts a property over the origins and development of the legal institutions of private law society not enjoyed to the same extent by their counterparts elsewhere. In this, as the roots of the common law lay embroiled in custom, they came to act as central fora for societal self-learning experimentation31 in such a way that it was perhaps easier for British commentators to claim that the common law acted as a mirror for the ethics of British society.32 To be sure, the autonomy of these institutions became subject to increasing legislative and executive intrusion from the end of the nineteenth century onwards.33 Yet EC law still represented a drastic intrusion on the considerable residual autonomy of these institutions. On the one hand, EC competition law interfered in an unprecedented manner with the exchange function of contract.34 On the other EC regulation in fields such as health and safety, environment and consumer law intruded far more intensively than prior British legislation into the risk allocation functions performed by both contract and tort law. These intrusions threatened to generate radical new elisions, dislocations and complexities in the hitherto relatively monolithic institutions of contract and tort.35

To be sure, the picture sketched above of the British constitutional settlement is a simplistic and static one, which has encountered substantial change since 1973.36Even allowing for this, the constitutional resettlement required was not only considerable but encountered three further pressures that all militated in favour of the status quo.

First, the resettlement of power brought about by the application of EC law is essentially redistributive in nature. That is to say that no 'win-win' scenarios exist, as any empowerment of one institutional actor is at the expense of another. Moreover, subject to what will be said below, it is not even possible to locate a constituency that can anticipate clear institutional benefits from the application of EC law. In all instances, the forms of institutional gain brought by EC law had to be set-off against corollary restrictions on autonomy and forms of disempowerment. The eventual 'winners' and 'losers' would depend upon unpredictable modalities of application of EC law eg would more opportunities for judicial review arise more than opportunities for administrative intervention. Furthermore, whilst it was not possible to identify future 'winners', it was possible to identify one clear 'loser', the British Parliament and its surrounding constituency, which seem to be disempowered under any scenario through the possible extension of either executive or judicial power.

Secondly, the British constitutional settlement was, on its face, explicitly structured against this revision. A feature of Parliamentary sovereignty is that Parliament can not formally tie the hands of its successors, and thereby curb its own powers.37 This rendered the application of EC law particularly vulnerable, as all EC law, whether adopted prior or subsequent to accession, takes formal legislative effect within the United Kingdom by virtue of section 2(1) European Communities Act 1972. Any EC legislation was thus in the unique situation that its application was threatenened not merely by subsequent Parliamentary action, but also by Parliamentary measures which preceded it, but took effect after 1 January 1973. This possibility of challenge could either be mounted generally, as happened with the Private Member's Bill curbing the Court of Justice's powers suggested by Ian Duncan-Smith in 1996, or, where there was not a sufficient constituency, more specifically by bringing in legislation that expressly contradicted individual pieces of EC legislation.38 To be sure, such actions would provoke a crisis with other Member States, but this would only provoke immediate costs for the executive. Whilst the executive, through the governing party, usually has had a strong grip on Parliament, where the executive's influence was weak, as was the case of the 1992-1996 Major Government, the likelihood of such a danger increases.

The third obstacle to revision was the traditionalist approach taken to accession. The European Communities Act 1972 only anticipated membership as having significant repercussions for relations between the executive and the legislature through its conferral by section 2(2) European Communities Act of sweeping quasi-legislative powers on the executive to implement, through Orders in Council, EC obligations - normally Directives - that had themselves been negotiated by the executive. In all other respects, its impact was perceived as marginal. Most notably, in the application of Community law, courts were to be confined by section 2(4) European Communities Act to their traditional role of interpreting administrative and legislative acts rather than reviewing them, which sought to resolve potential conflicts between EC law and Parliamentary statutes by requiring the latter to be 'construed' in the light of the former.

Pre-existing conceptions of the constitutional settlement also informed judicial practice through the 1970's and 1980's in a number of ways. In a number of judgments strong deference was made to the prerogatives of the other arms of government and the need for judicial reserve. This was most marked in the approach of the courts to conflicts between EC law and Parliamentary statute. These were to be interpreted away under the fiction that section 2(4) was merely an extension of the practice of interpreting British statutes in the light of its international treaty obligations.39 It was also present in a number of judgments which emphasised the traditional balance of powers between the judiciary and other arms of government.40 Similarly, there was a strong emphasis on preserving judicial hierarchies. Industrial Tribunals were prevented from applying EC law until 1979. 41 Whilst there were isolated instances of lower courts invoking decisions of the Court of Justice at the expense of those given by higher national courts,42 they continued to consider themselves generally bound by decisions of the latter on point of EC law.43 There was also evidence that lower courts felt that referrals to the ECJ should normally only be the prerogative of the higher courts.44 Similarly, EC law was not considered as ousting the exclusive jurisdiction of certain courts do decide certain forms of dispute, even if this excluded other courts from applying EC law.45 Finally, British courts were equally protective about their hegemony over the common law. EC competition law was not envisaged as created any new forms of private action,46 and British courts were reticent to treat as privileged, in private law disputes before them, legal advice given to undertakings in preparation for competition hearings before the Commission.47

On its face, this makes the change brought about in the Factortame saga all the more dramatic.48 Famously, the highest court in the United Kingdom, the House of Lords, accepted the supremacy of EC law and, with it, the power for British courts to review legislative measures for their compliance with EC law. Since then, as a matter of legal doctrine, the formal supremacy of EC law has been entrenched in British law. To be sure, there has been the occassional act of defiance. British courts have departed - temporarily - from the Court of Justice on the legal effects of Directives49 and, more recently, haved noted that the Court of Justice can not, as EC law currently stands, rule generally on the compatibility of national administrative action with fundamental rights norms and on treaties entered into by the United Kingdom prior to EC accession.50 Yet these latter judgments are relatively isolated and have their precursors in similar judgments given by national courts in other EU jurisdictions.51 More broadly, the study carried out also attempted to measure covert resistance, where EC law was not explicitly challenged but devices were used to distinguish its application to a case in hand.52 These made up only 98 cases, 9.01%, of the total, a small number. These tended to be slightly higher, in proportionate terms, in the early years, suggesting that not only has judicial resistance increased as a consequence of the more onerous formal duties imposed by Factortame or EU law's increasing incursion into new fields of policy, but that some process of socialisation took place. This is to be contrasted with the number of rulings which can be contrasted as positive. These were ones that either applied the case law of the Court of Justice directly to the factual circumstances or referred the matter to the Court of Justice,53 as these implicitly accept the interpretive authority of the Court of Justice to the case in hand or in some other way were positive about the application of EC law (eg changed legal aid rules to accommodate EC complaints, accepted the exclusive jurisdiction of EC law, interpreted EC law very widely, relaxed rules of standing). These do not include simple interpretations of EC provisions, but still number 559, a figure that is over five times that of the 'restrictive' cases.54 (Table 3)

This general acceptance and application of EC law would seem to posit in a truly revolutionary manner both the judiciary and the liberal principles contained in EC law at the apex of the British constitutional settlement. Before considering the real nature of this 'revolution', the above does provoke the question, however, why it took over 16 years for the latent conflict between the supremacy of EC law and Parliamentary sovereignty to come to a head. The answer to this question can not lie in the somewhat smug and racist assumption that the British are inately good at meeting their international commitments.55 The quantity of EC legislation produced in this period,56 unanticipated interpretations of EC law by the Court of Justice and some resistance from the executive all made some breaches of EC law inevitable. Indeed, within the period 1973-1989 one finds a number of successful Article 226 EC actions brought against the United Kingdom by the Commission.57

A more likely contributory factor is that British courts, in particular lower courts, had been engaging in a form of subversive legislative review through the 1970's and 1980's, whereby the EC provision was applied directly with the question of the status of the national provision being left unaddressed.58 There is only one instance, prior to Factortame, where a British court went the other way and held that EC law could not void a statute.59 The question did not, thus, arise as a question of constitutional issue, because it was generally resolved in a pragmatic manner by lower courts, whose decisions had little precedential effect, that diffused the issue. Indeed, a striking feature of an intertemporal analysis is the presence of continuities prior and subsequent to Factortame. Moreover, this practice has continued since Factortame. In only two subsequent judgments has the question of suspension of domestic legislation been directly addressed.60 There are several, however, where the EC provision has just been applied over the national one, with its effects on the latter not being discussed.61

21 There were essentially three tests. On the one hand, there was the two-fold test famously see out in Associated Provincial Picture Houses v Wednesbury [1948] 1 KB 223. A measure would be illegal, on the one hand, if it was ultra vires. In particular, it took account of a factor or failed to take account of a failure that was precluded by statute. It would also be illegal if it was unreasonable, namely `so absurd that no sensible person could ever dream that it lay within the powers of authority'. On othe other, the doctrine of natural justice emerged in the 1960's to impose certain requirements of procedural justice, Ridge v Baldwin [1964] AC 40. None of these tests applied a stringent test of substantive review. This has changed in the last 25 years with a plurality of tests emerging, whose intensity will depend upon the nature of the measure reviewed. For more on this now very complex area see P. Craig, Administrative Law (1999, 4th Edition, Sweet & Maxwell, London) Chapter 12 etseq.

22 J. Habermas, Between Facts and Norms (1996, Polity, Cambridge) 270-272.

23 Ibid 298.

24 The irony is that the Court of Justice applies a measure of review to national action that is quintessentially, liberal in nature, namely is the measure in question excessively restrictive of the economic freedom in question, Case 104/75 Officier van Justitie v De Peijper [1976] ECR 613. It applies, however, a far more lenient, republican version to review of EC Institutions' actions merely considering whether the measures were 'manifestly unsuitable', Case C-22/94 Irish Farmers Association v MAFF [1997] ECR I-1809. Being only able to review national measures for their compatibility with EC law, it is the former test that national courts have to apply, however. Case 314/85 Firma Fotofrost v HZA L_beck Ost [1987] ECR 4199.

25 Case 246/80 Broeckmeulen v Huisarts Registratie Commissie [1981] ECR 2311; Case C-24/92 Corbiau v Administration des Contributions [1993] ECR I-1277.

26 In England and Wales powers of judicial review are only given to the High Court, Court of Appeal and House of Lords.

27 Examples include Employment Tribunals, Value Added Tax and Duties Tribunals, Immigration Appeals Tribunals, Social Security Commissioners.

28 Case 146/73 Rheinm_hlen v Einfuhr-und Vorratstelle Getriede [1974] ECR 139

29 R. Brenner, `The Agrarian Roots of European Capitalism' 284-299 in T. Aston & C. Philpin (eds.) The Brenner Debate: Agrarian Class Structure and Economic Development in Pre-Industrial Europe (1985, CUP, Cambridge); A. Giddens, The Nation-State and Violence (1985, Polity, Cambridge) 148-152.

30 M. Foley, The Silence of Constitutions (1989, Routledge, London-New York) Chapter 2.

31 W. Murphy, The Oldest Social Science? Configurations of Law and Modernity (1997, OUP, Oxford) 81-100. One author thus saw the emergence of the common law in the thirteenth century as designed to preserve `the harmony of the free landowning class'. R. van Caernegem, The Birth of the English Common law (1988, 2nd Edition, CUP, Cambridge) 97.

32 H. Collins, 'European Private Law and the Cultural Identity of Member States' (1995) 3 European Review of Private Law 353.

33 P. Atiyah, The Rise and Fall of Freedom of Contract (1979, OUP, Oxford) Chapters 17-22.

34 The exchange function deals with the price at what a good or service could be sold. There had been monopolies and restrictive practices legislation in the United Kingdom since 1948. There was also legislation protecting against exorbitant pricing. A feature of this legislation, however, was weak administrative powers, R. Whish, Competition Law (1993, 3rd Edition, Butterworths, London) 170-174, and considerable judicial discretion, J. Adams & R. Brownsword, `The Unfair Contract Terms act: A Decade of Discretion' (1988) 104 LQR 94.

35 T. Wilhelmsson, `Integration as disintegration of national law' in Petersen and Zahles, Legal Polycentricity: Consequences of Pluralism in Law (1995,Dartmouth, Aldershot); H. Schepel, `Legal Pluralism in Europe' in P. Fitzpatrick & J. Bergeron (eds) Europe's Other: European Law between Modernity and Postmodernity (1997, Ashgate, Aldershot); G. Teubner, `Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up In new Divergences' (1998) 61 Modern Law Review 11.

36 The courts began to engage far more extensively in judicial review from the mid 1980's onwards. The Human Rights Act 1998, by subjecting all administrative and, to a more qualified extent, legislative action to review against the norms set out in the European Convention on Human Rights and Freedoms has anchored the British constitutional settlement around certain liberal, constitutive principles safeguarding private autonomy. The onset of the regulatory State in Britain has also considerably reduced the ambit and autonomy of the common law. With the possible exception of the latter - and even there many of the interventions were wholly domestic in nature -, the direct contribution of the European Community to these broader developments outside its ambit was inconsiderable. The Labour Party in its 1996 Manifesto did not resort to any arguments based on EC law to justify the Human Rights Act 1998. For an extensive justification from the two Ministers involved see J. Straw & P. Boateng, `Labour's Plans to Incorporate the ECHR' (1997)(1) European Human Rights Law Review 94. If EC law were to have been a vehicle for judicial empowerment, it would have involved, from an early stage, a high incidence of ex parte judicial review actions. For these give access to the administrative law remedies of certiorari and mandamus, which enable courts to compel other government agencies to act or desist from acting. In fact, in the early years these were far and few between. It was only after the judiciary repositioned itself, in disputes that did not involve EC law, vis-_-vis the other arms of government that the incidence of such actions involving EC law increased.. The figures for such actions in the cases analysed were the following:- 1977-2; 1980-1; 1982-2; 1984-4; 1985-1; 1986-8; 1987-4; 1988-4; 1989-4; 1990-4; 1991-9; 1992-4; 1993-14; 1994-17; 1995-20; 1996-20; 1997-18; 1998-27.

37 ` If the act of parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it ... for that were to set the judicial power above that of the legislature' (Blackstone's Commentary 1765, Volume I, p. 91). More recently see British Railways Board v Pickin [1974] AC 765.

38 Most recently see the Food Labelling Bill introduced by Stephen O'Brien, and backed by the National Farmers Union, on 15 December 1999. Clause 2 will require all food imports to be labelled with their State of origin, a piece of draft legislation that quite clearly breaches Article 28 EC, the provision on free movement of goods. <accessed 20 February 2000>

39 Garland v BREL [1983] 2 AC 751.

40 Processed Vegetables Growers Association v CCE [1974] 1 CMLR 113; Applications des Gaz v Falks Veritas [1974] 2 CMLR 75; National Insurance Commissioner Decision No CS 8/76 [1977] 1 CMLR 1.

41 See Sparkes v Insurance Officer [1977] CMLR 2 317 which overruled two prior rulings to the opposite effect, Amies v ILEA [1977] ICR 308, Snoxell v Vauxhall Motors [1977] 3 WLR 189.

42 Kenny v Insurance Officer [1978] 1 CMLR 181.

43 British Ten Pin Bowling Association v CCE [1989] 1 CMLR 561.

44 Burton v British Rail Board [1981] 3 CMLR 100.

45 Jensen v Corporation of the Trinity House of Deptford [1982] 2 CMLR 218.

46 Valor International v Application des Gaz [1978] 1 CMLR 30.

47 Hasselblad v Orbinson [1984] 3 CMLR 679; Hasselblad v Hodes [1985] 3 CMLR 664.

48 R v Secretary of State for Transport exparte Factortame (No 1) [1990] 2 AC 85; R v Secretary of State for Transport exparte Factortame (No 2) [1991] AC 603.

49 Duke v GEC Reliance [1988] AC 618; Finnegan v Clowney [1990] AC 407.

50 R v MAFF ex parte First City Trading [1997] 1CMLR 250; R v Secretary of State for the Environment, Transport and Regions exparte IATA [1999] 1 CMLR 1287. These were both given by the same judge, Justice Laws, a former Treasury Devil (lawyer appointed to represent and defend the Government), but the former has now been reaffirmed in Marks and Spencer v CCE [1999] 1 CMLR 1152.

51 On Directives see Minister of the Interior v Cohen Bendit [1980] 1 CMLR 543, Re VAT Directives [1982] 1 CMLR 527. On the 'limited powers' of the Court of Justice see Brunner v European Union Treaty [1994] 1 CMLR 57, Carlsen v Rasmussen, judgment of the Danish Constitutional Court of 6 April 1998.

52 To merely equate resistance with the unsuccessful application of EC law is far too broad. The author looked instead for explicit devices used by national courts. These were explicit refusal by United Kingdom courts either to accept EC law, particular pieces of legal doctrine or the institutional authority of the EC Institutions. A second more common category was ECJ case law was distinguished by being confined to narrower contexts than the one in hand. The third was where a narrow interpretation of legislation was taken, which ignored ECJ decisions on the matter or interpreted a provision in a manner that was less integrationist than subsequent decisions. The above inevitably involved an element of judgment on the part of the author. Insofar as it was clear that resistance was not great, the study has a bias towards exaggerating the level of resistance through the methodology used which can some cases and its reliance upon reported cases.

53 If a matter was referred, it was treated as not falling in any of the other 'positive' categories to avoid double counting. The number for references is 256 as there were 2 references in which the reference was restrictively received by the referring court R v Secretary of State for the Home Department ex parte Santillo [1981] 1 CMLR 569; R v Secretary of the State for the Home Department ex parte Gallagher [1996] 2 CMLR 951.

54 These were rulings which either explicitly accepted the authority of EC law or the supranational institutions (eg EC Commission Decisions), applied ECJ case law, interpreted national law in the light of EC law or adopted interpretations of EC legislation which were more integrationist than or subsequently adopted in ECJ decisions. These were taken subsequently from references to Luxembourg. It is possible that the number is exaggerated not just from the reliance upon reported decisions, but also, as in some cases this did not result in successful invocation of EC law. Nevertheless, given the precedential effects of such decisions (ie they were not neutral as to future action) it seemed appropriate to include them.

55 eg the official of the European Court quoted in T. Hartley, Constitutional Problems of the European Union (1999, Hart, Oxford) 106.

56 On this see N. Fligstein & J. MacNicholl, 'The Institutional Terrain of the European Union' 59, 76 in W. Sandholtz & A. Stone Sweet (ed) European Integration and Supranational Governance (1998, OUP, Oxford); J. Golub, 'In the Shadow of the Vote? Decision-Making in the European Community' (1999) 53(4) International Organisation 733.

57 To the end of 1989 the Commission had brought 24 Article 226 EC actions against the United Kingdom. The fact that all of these were successful suggests that they represented the tip of the iceberg in terms of the United Kingdom's non-compliance.

58 National Insurance Commissioner Decision No. CS 7/76 [1977] 1 CMLR 5; Macarthys v Smith [1979] 3 CMLR 44; Parkinson v CCE [1986] 3 CMLR 1; Azo Maschinenfabrik v CCE [1987] 3 CMLR 462; Merseyside Cablevision v CCE [1987] 3 CMLR 290; R v Secretary of State for Social Services exparte Clarke [1988] 1 CMLR 279.

59 Farral v Department of Transport [1983] Scottish Current Law No. 435 (Part 8).

60 R v Secretary of State for Employment exparte EOC [1995] 1 AC 1 , Bossa v Nordstress & Hall [1998] 2 CMLR 175.

61 McKechnie v UBM [1991] 2 CMLR 668; Rutherford v Laidlaw [1990] 1 CMLR 519; Battersea Leisure v CCE [1992] 3 CMLR 610; R v DHSS ex parte Organon [1990] 2 CMLR 49. More recently see Levez v Jennings Harlow Pools [1999] 3 CMLR 715.



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