An Analysis of British Sovereignty - Essay Example

Your Your How Much of a Factor was Factortame An Analysis of British Sovereignty The laudable aims of free trade and environmental protection often run afoul of one another, as policies and laws that seek to favor one tend to hamstring the other. These two aims collided in the Factortame case, because the European Union's Common Fisheries Policy, which had been established in 1970, sought to open access to fishing waters within the EU to all member states. However, once overfishing became a concern, each member state was given quotas as to how many fish could be caught in its waters. This led to an effort in the UK to stop Spanish fishermen from "quota hopping" by demanding that fishing boats in UK waters be "materially connected" to the UK in ways more significant than the weak terms of the Merchant Shipping Act 1894 (Drewry, p. 101). This decision seriously threatened the livelihood of Factortame Limited, whose Spanish directors had re-registered 53 Spanish-registered boats as British boats, and also purchased 42 British-registered boats, for a fleet of almost 100 fishing boats to use in UK waters. When the Merchant Shipping Act 1988 was passed, Factortame sought to have a British court overturn it, because it violated the Common Fisheries Policy, and legal principle held that Community law held sway over national law. This had been set as precedent by the ECJ in Costa v. ENEL in 1964 (Drewry, p. 101), but that did not stop the Court of Appeal and the House of Lords make Factortame seek remedy in the ECJ before starting the process on British soil. The Factortame received far more publicity than did Costa, and it brought home to the British public a fact that had been clear to the British legal community for some time: that, in many ways, British sovereignty had been changed as soon as the British government acceded to membership in the EC (Oliver p. 2). Over time, the British courts have moved to make this change a reality through case law. In the instance of Factortame, the court invalidated provisions that were contradictory to European law, and precedents over time have altered the doctrine of implied repeal. Other changes have included an alteration in the common law presumption of compliance between British statutes and international law, as well as a change in the way that the common law of remedies works, so that it dovetails with European requirements (Oliver, p. 1). Much press has been given to the ways that the European Union has allegedly attempted to rob its member countries of their individuality by instituting regulations in a number of silly ways. According to an editorial in the New York Times, a large urban mythology about this has grown up: The European Union has long tried to dispel myths that its zealous bureaucrats are trying to impinge on national cultures in their bid to harmonize standards in the world's biggest trading bloc. Such myths have included that cucumbers sold in the European Union must not arch more than 10 millimeters for every 10 millimeters of length; that it is against health rules to feed swans stale bread; and that Brussels had decided that shellfish must be given rest breaks and stress-relieving showers during boat journeys over 50 kilometers long." (European Union). Since the Factortame case came well after the Costa case, which was the groundbreaking precedent in establishing the supremacy of European law over national law, it is interesting that it was this case that attracted such attention in the public arena. As Gavin Drewry points out, the case of Factortame was much less of an earthquake in legal circles than it was in public opinion, because relevant precedent had been set almost fifteen years before, and the legal community was accustomed to seeing British statutes get set aside when they came into conflict with European law. The timing of Factortame was what made the case such a significant event in the public arena: it occurred during Prime Minister Thatcher's Conservative government, at a time when the government's position was becoming "Eurosceptical." In other words, the opinions of the national leadership about membership in the EU were becoming less and less positive (Drewry, p. 105). One aspect of Factortame that has attracted attention from legal scholars is its juxtaposition with the subsequent ruling by the House of Lords in R. v. Secretary of State for Employment, ex parte Equal Opportunities Commission. This case was concerned with the employment rights of part-time laborers as protected by the Equal Pay Directive. Whereas in the case of Factortame, the House of Lords had sent the plaintiff to the ECJ to get remedy before they would provide remedy in Britain, in this later case, the House of Lords did not feel the need to send the case to the ECJ before setting aside parts of a British statute in favor of European law. Danny Nicol wrote that "no longer did the United Kingdom's highest court feel compelled to refer statutory provisions to the ECJ whenever it believed them to be incompatible with Community law. Now it was prepared to override them itself" (p. 198). And so, while Factortame may well have come years after the relevant precedents were set, it does appear to have effected a change in the way that the House of Lords chose to handle cases involving contradictions in statute. Lord Bridge made an interesting comment in the House of Lords decision in Factortame (No. 2), that sparked a great deal of critical response in the legal community: 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. Thus, whatever limitation of sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. (R v. Secretary of State for Transport ex parte Factortame (No. 2) [1991] AC 603, at 658.) The key phrase here is "entirely voluntary." This suggests that the British government knew precisely what it was getting itself into when it passed the European Communities Act 1972 to join the Community. Danny Nicol has analyzed the debates of the Members of Parliament that surrounded that Act, and his research shows that very few of them, or even of the Cabinet-level ministers, understood the effects that Community membership would have on the British constitution. While the rulings of the ECJ would come to have tremendous impact on the British constitution, the Parliament was much more concerned with the Commission and the Council of Ministers, and the way that those two bodies could have legislative impact over Britons (Nicol, p. 252). It took such cases as Factortame and the EOC case to show the serious effects that Community membership would have on judicial institutions in Great Britain. Nicol explains this focus on legislative rather than judicial impact as follows: During the preceding sixty years the courts had not only respected the doctrine of parliamentary sovereignty but hadadopted a restrained attitude to judicial review. The fact that the judiciary had for so long operated only on the fringes of the political arena meant that, for parliamentarians, the world of public law was alien territory. They were accustomed to working within a politics-based constitution largely untouched by legal concerns. (p. 254) In other words, Parliament had not experienced the effects of judicial review, because in the decades prior to the country's entry into the European Union, judges had been loath to set aside statutes of Parliament. In the aftermath of the European Communities Act 1972, however, that unwillingness began to evaporate, most visibly in the Factortame case. And so one of the most visible effects of Factortame has been to transform the United Kingdom into what Gavin Drewry terms a "juridified polity" (p. 111). In other words, what had been a country dominated by legislated laws now found those laws called into question by judicial review. Whether that review has unlimited authority is still a matter of considerable legal debate and contradictory views. In general practice, the United Kingdom recognises that the ECJ has primacy in those areas of law where the European Union has competency. However, in Macarthys Ltd v Smith, Lord Denning wrote, "If the time should come when our Parliament deliberately passes an Act -- with the intention of repudiating the Treaty or any provision in itit would be the duty of our courts to follow the statute of our Parliament" (at page 789). Did Factortame alter the structure of the British constitution Was it this precedent that paved the way for case after case of judges overturning British statutes in favor of the European Union's laws Did Factortame in fact subvert the sovereignty of the United Kingdom Of course not -- the seeds for that subversion were sown when the UK joined the EEC in 1972, and the Costa case should have served as sufficient warning for the coming changes. However, in the public sphere of awareness, Factortame was the whipping post for those who decried membership in a larger European body as a surrender of British sovereignty. So in terms of perception, Factortame was where the United Kingdom surrendered authority to Europe as a whole: in fact, the surrender came when the Members of Parliament passed an Act without pondering its possible ramifications. Works Cited Drewry, Gavin. The jurisprudence of British Euroscepticism: A strange banquet of fish and vegetables. Utrecht Law Review, 3/2, 101-115. The European Union. Accessed online 12 February 2008 at http://www.nytimes.com/2007/09/12/world/europe/12metric.html_4=1&hp&oref=slogin Macarthys Ltd v Smith [1979] ICR 785. Nicol, Danny. EC Membership and the Judicialization of British Politics. 2001. Oliver, Dawn. The impacts of European integration on the UK constitution. Unpublished thesis. 2002. R. v. Secretary of State for Employment, ex parte Equal Opportunities Commission. [1995] AC 1. R. v. Secretary of State for Transport ex parte Factortame (No. 2). [1991] AC 603. Read More