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Flashcards in (4) The Factortame Litigation Deck (16)
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1

What was the factortame litigation?

The factortame litigation was the result of a conflict between primary legislation and directly applicable principles of European Community Law that could not be remedied by way of interpretation.

2

What were the details of the factortame litigation?

The litigation was brought by a group of predominantly Spanish Companies who were set to suffer serious financial harm as a consequence of the changes introduced by the 1988 Merchant Shipping Act. Factortame argued that the Merchant Shipping Act was incompatible with Community Law, specifically the right not to be discriminated against on the basis of nationality. Factortame therefore sought a declaration that the Merchant Shipping Act was incompatible with EC Law.

3

What was the original response of the Divisional Court to the factortame case?

Initially the Divisional Court referred the question of compatibility to the European Court of Justice and in the mean time granted an interim injunction suspending the application of the Merchant Shipping Act.

4

How did the Secretary of State respond to the granting of an injunction by the Divisional Court?

Following an appeal by the Secretary of State the Court of Appeal quashed the injunction and held the Primary Legislation should be upheld.

5

What was Factortame's response to the decision by the Court of Appeal?

Factortame appealed to the House of Lords. The only issue considered in Factortame (1) was whether the domestic courts had jurisdiction to suspend Primary Legislation in cases where there was a potential, but unconfirmed, clash with EC Law.

6

How did Lord Bridge seek to resolve the issue considered in factortame (1)?

Lord Bridge was not entirely persuaded that the domestic court did have jurisdiction to suspend primary legislation as the court of appeal had found so sought clarification through a preliminary ruling from the ECJ.

7

What issues did the ECJ consider following referral to them by Lord Bridge?

The ECJ considered two key issues following referral by Lord Bridge;
(a) the substantive question concerning the compatibility (or otherwise) of the Merchant Shipping Act with the protections afforded under EC Law
(b) whether, as a matter of EC Law, national courts should have competence to set aside provisions of domestic legislation in order to give effect to directly effective rights in EC Law

8

What were the findings of the ECJ?

The ECJ found that the Merchant Shipping Act was in breach of the requirements of EC Law on the basis that it was discriminatory on the grounds of nationality. Considering the previous ECJ judgement in the Simmenthal Case the ECJ also found that domestic courts should indeed have the competence to set aside incompatible national legislation in order to give effect to directly effective EC Law/Norms.

9

What issue did the findings of the ECJ in factortame (1) present for the House of Lords?

The following question for the House of Lords then was whether these requirements on the part of the EC could be squared with domestic constitutional doctrines.

10

What radical action did the House of Lords take in Factortame (2)?

Factortame (2) saw the House of Lords disappl[y]' provisions of the Merchant Shipping Act so far as they were incompatible with the directly effective requirements of Community Law. This was an unprecedented alteration to the orthodox reading of the Parliamentary Sovereignty Doctrine.

11

What were the implications of the decision of the House of Lords in Factortame (2)?

Following this judgement arguments were put forward suggesting acknowledgment of the supremacy of EU Law would lead to 'a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament'.

12

What was Lord Bridge's response to arguments regarding the perceived 'dangerous invasion' the House of Lords decision in Factortame (2) enabled?

Lord Bridge attempted to dispel this view as a 'misconception', he argued that the principle of the supremacy of European Community Law had long since been established by the time the UK joined the Community in 72/73 therefore 'whatever limitation on its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary'.

13

What was the key consequence of the Factortame (2) litigation?

Factortame (2) saw implicit acceptance by the House of Lords that Parliament's legislative ability had been in some way limited (the principle of implied repeal didn’t seem to apply for instance in relation to the ECA 1972 and the Merchant Shipping Act 1988). While Sovereignty had clearly been limited in some way the House of Lords refused to be more precise than this.

14

What are the five alternative interpretations of Factortame (2)?

1. Legal Revolution
2. Evolution of a rule of Statutory Construction
3. Application of the rule of separate and distinct legal jurisdiction
4. Controlling influence of the Common Law
5. The European Union Act 2011

15

What three arguments sought to preserve the supremacy of parliamentary sovereignty in spite of the clash with supreme EU Law?

1. In enacting the 2011 European Union Act Parliament sought to clarify that the influence of EU law over the Constitution was the express result of statutory interpretation.
2. in the HS2 case Lord Reed indicated that conflicts between EU norms and domestic law 'cannot be resolved simply be applying the doctrine developed by the Court of Justice of the Supremacy of EU Law, since the application of that doctrine in our law itself depends upon the 1972 Act'.
3. Jeffrey Goldsworthy in 1999 suggested that Parliament remained sovereign so long as they have the ability to withdraw from the European Community.

16

In summary what was the key issue and finding of the Factortame litigation?

The Factortame litigation centred around the issue with reconciliation of the law-making capacities of two supposedly sovereign bodies/institutions. The consequence of the case was to allow, for the first time, a domestic court to disapply a domestic statute on the basis of an incompatibility with law originating from an alternative source of authority.