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William Wade’s analysis of the second Factortame case ((1996) 112 Law Quarterly Review 568) is well known, and justly so. The facts, too, require little in the way of rehearsal. Briefly, and simplifying somewhat: the House of Lords, as it was then known, decided in 1990 to ‘disapply’ a 1988 statute of the UK Parliament – the Merchant Shipping Act (hereafter the MSA) – which may otherwise have frustrated the exercise of rights recognized in EU law, specifically, the rights of a number of Spanish fishermen to trawl in UK waters. In doing so, the court took itself to be acting under the auspices of the European Communities Act 1972 (hereafter the ECA), itself an Act of Parliament. The ECA provides, by section 2 (4), that European Union Law is to prevail over inconsistent Acts of Parliament ‘passed or to be passed’. Wade’s view was that, in ‘disapplying’ the 1988 Act, the House of Lords altered the fundamental rule of recognition in UK law and thereby affected a technical legal ‘revolution’, one which all but overthrew the doctrine of Parliamentary Sovereignty:
‘When in the second Factortame case the House of Lords [refused to apply the MSA] it was natural to suppose that something drastic had happened to the traditional doctrine of Parliamentary sovereignty. The established rule about conflicting Acts of Parliament, namely that the later Act must prevail, was evidently violated, since the later Act in this case was the [MSA], yet it was disapplied under the [ECA]… When that Act was nevertheless held to prevail it seemed to be fair comment to characterize this, at least in a technical sense, as a constitutional revolution.’
A number of issues arise out of Wade’s analysis, and in this note we focus on two lesser explored but, nonetheless, fundamental questions. The first concerns whether the ‘established rule’ that Wade cites properly applied in Factortame, and hence can be seen to have been modified by the ruling. The second concerns the implications of our first point for Wade’s description of the case. Our aim will be to cast doubt, from within the traditional framework, upon the thesis that Factortame was a ‘revolutionary’ ruling.
Was There A Conflict?
Doubtlessly there was. EU law granted rights to fish which would have been explicitly curtailed by the MSA, had it been applied. But was this the right type of conflict? Wade cites, as having been amended in the case, the following ‘established rule’:
Where two statutes conflict, the latter is to prevail over the former.
Does this rule apply in Factortame? Importantly, the question is not whether EU law itself conflicts with the MSA, because the requirements of the former, as interpreted by the European Court of Justice, are not themselves statutory. The relevant objects of interpretation for the purpose of the rule are the ECA, which requires courts to give effect to EU law, and the MSA, which restricts the rights of non-nationals fishing in UK waters.
Two statutes may be said to conflict if one requires a result that the other denies, if one affirms a proposition of law which the other repudiates. So, for example, a statute prohibiting the consumption of alcohol by those under the age of 18 conflicts with a statute granting children over 15 the right to drink alcohol under the supervision of their guardians. And under the established rule that which was formerly enacted should give way to the latter. What proposition did the MSA stand for? That UK nationals be granted a special dispensation to fish that was to be denied to EU citizens more generally. The question, then, is whether the ECA rejects this legal result and the answer must be that it does not. The ECA says nothing substantive about the rights of EU citizens, UK or otherwise, to fish and so cannot be said, itself, to conflict with the MSA.
One way to see this is to ask the question whether the ECA could be taken to conflict with the MSA if EU law did not grant directly enforceable rights to fish in UK waters to EU nationals. The answer, of course, is that it would not. But the question of whether two statutes conflict cannot be taken to depend upon factors other than their own content. If the ECA and MSA would not conflict in this situation, despite nothing having been changed in our imagined circumstances about the meaning of the statutes, then they cannot be taken to have been in conflict on the facts of Factortame. We cannot settle a matter of interpretation, in other words, on the ground of external contingencies.
To repeat, there was a legal conflict: between the MSA and directly enforceable EU law, which was required to be given effect to under the ECA, but not between the ECA and MSA. Why does this matter? It matters for the reason that the traditional rule that Wade cites – that where two statutes conflict the former must give way to the latter – did not apply in Factortame, and hence cannot be said to have been modified by the result. What the court did in that case was not to alter, or set aside, a long established and fundamental rule of UK Constitutional Law, but to fashion a novel principle – that legislation be given effect subject to EU law, that is, in accordance with the terms of the ECA so long as that statute remained on the books – in a novel constitutional situation. Note, moreover, that this rule does not contradict the central aspect of the doctrine of Parliamentary Sovereignty, the principle that Parliament may make or unmake any law whatsoever. The question of whether Parliament would have to repeal the ECA in order to legislate contrary to EU law, or simply decree that such legislation was to have effect ‘notwithstanding’ the ECA is a nice question of constitutional law, and the answer would probably be settled in favor of the latter.
Recognition and Revolution
Wade’s question, in light of his analysis, was this: ‘Has the House of Lords adopted a new “rule of recognition” or “ultimate legal principle”?’ Having concluded that the traditional rule concerning statutory conflict had been amended he answered in the affirmative, describing the situation as ‘revolutionary’. Disagreeing with Wade’s analysis, we may pose a different question in the terms suggested by our own argument: does the fact that the House of Lords established a rule in a situation of constitutional uncertainty entail that their verdict was one of revolutionary import? Does, in other words, the fact that the court made decision which, in this sense, affects the rule of recognition constitute a technical legal ‘revolution’? Seeing why it does not requires a better understanding of recognition rules, and their place in a constitutional order.
The constituent parts of a legal system, H.L.A. Hart famously argued, have synchronic identity in virtue of the fact that they are identified, by the courts, in accordance with the system’s ultimate criteria of recognition. These criteria – shown in use but rarely, if ever, stated in anything close to canonical form, complex and in various ways indeterminate – both fix the court’s ultimate duties within the system and bestow upon them a further responsibility. Because, ultimately, it is for the courts to interpret and apply the rule of recognition it falls on them, also, to resolve doubts and indeterminacies relating to its application. Such a task is not merely desirably placed within the hands of the courts, as legal experts, buts falls on their shoulders of necessity.
The courts have, in this sense, an inherent jurisdiction, in the context of controversy, to determine the limits of their own powers. This authority is, of course, limited by the central, uncontroversial tenets of constitutional doctrine, so no paradox arises, but the capacity is real nonetheless. Hart makes the point:
‘The possibility of the courts having authority at any given time to decide… limiting questions concerning the ultimate criteria of validity, depends… on the fact that, at that time, the application of those criteria to a vast area of the law… raises no doubts, though their precise scope and ambit do.’
At the limits of their role the courts must make decisions not controlled directly by the constitution, but at any rate within their power; this is what happened in Factortame. Is it right to call such judgments ‘revolutionary’? The answer, perhaps, may be less exciting than we have been lead to believe.
Thomas Adams is a D.Phil candidate at Balliol College, University of Oxford.
Suggested citation: T. Adams, ‘Wade’s Factortame’ U.K. Const. L. Blog (24th February 2014) (available at: https://ukconstitutionallaw.org/).