This page is update by Dr Peter Jepson.
Lord
Bridge, ëBy virtue of section 2(4) of the Act of 1972 Part 11 of the Act of
1988 is to be construed and take effect subject to directly enforceable
Community rights and those rights are, by section 2(1) of the Act of 1972, to be
ërecognised and available in law, andÖenforced, allowed and followed
accordinglyÖí This has precisely the same effect as if a section were
incorporated in Part II of the Act of 1988 which in terms enacted that the
provisions with respect to registration of British fishing vessels were to be
without prejudice to the directly enforceable Community rights of nationals of
any member state of the EEC. Thus it is common ground that, in so far as the
applicants succeed before the ECJ in obtaining a ruling in support of the
Community rights which they claim, those rights will prevail over the
restrictions imposed on registration of British fishing vessels by Part II of
the Act of 1988 and the Divisional Court will, in the final determination of the
application for judicial review, be obliged to make appropriate declarations to
give effect to those rights.í
The
case was then referred to the ECJ for a preliminary ruling.
Lord
Bridge, ëMy Lords, when this appeal first came before the House in 1989 your
lordships held that, as a matter of English law, the courts had no jurisdiction
to grant interim relief in terms which would involve either overturning an
English statute in advance of any decision by the Court of Justice of the
European Communities that the statute infringed Community law or granting an
injunction against the Crown. It then became necessary to seek a preliminary
ruling from the Court of Justice as to whether Community law itself invested us
with such jurisdiction.
In
the speech I delivered on that occasion...I explained the reasons which led to
those conclusions. It will be remembered that, on that occasion, the House never
directed its attention to the question how, if there were jurisdiction to grant
the relief sought, discretion ought to be exercised in deciding whether or not
relief should be granted.
In
June 1990 we received the judgment of the Court of Justice...affirming that we
had jurisdiction, in the circumstances postulated, to grant interim relief for
the protection of directly enforceable rights under Community law and that no
limitation on our jurisdiction imposed by any rule of national law could stand
as the sole obstacle to preclude the grant of such relief. In the light of this
judgment we were able to conclude the hearing of the appeal in July and
unanimously decided that relief should be granted in terms of the orders which
the House then made, indicating that we would give our reasons for the decision
later...
Lord
Goff...has given a very full account of all the relevant circumstances arising
since our decision last year in the light of which our final disposal of the
appeal fell to be made. I gratefully adopt this account. I also agree with his
exposition of the principles applicable in relation to the grant of the interim
injunctive relief where the dispute involves a conflict between private and
public interests and where damages are not a remedy available to either party,
leading in the circumstances of this case, to the conclusion that it was
appropriate to grant interim relief in terms of the orders made by the House.
But I add some observations of my own in view of the importance of the subject
matter.
Some
public comments on the decision of the Court of Justice, affirming the jurisdic‚tion
of the courts of member states to override national legislation if necessary to
enable interim relief to be granted in protection of rights under Community law,
have suggested that this was a novel and dangerous invasion by a Community
institution of the sovereignty of the United Kingdom Parliament. But such
comments are based upon a misconception. 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 its sovereignty Parliament accepted when it enacted
the European Communities Act 1972 was entirely voluntary.
Under
the terms of the 1972 Act it has always been clear that it was the duty of a
United Kingdom court, when delivering final judgment, to override any rule of
national law found to be in conflict with any directly enforceable rule of
Community law. Similarly, when decisions of the Court of Justice have exposed
areas of United Kingdom statute law which failed to implement Council
directives, Parliament has always loyally accepted the obligation to make
appropriate and prompt amendments. Thus there is nothing in any way novel in
according supremacy to rules of Community law in those areas to which they apply
and to insist that, in the protection of rights under Community law, national
courts must not be inhibited by rules of national law from granting interim
relief in appropriate cases is no more than a logical recognition of that
supremacy.
Although affirming our jurisdiction, the judgment of the Court of Justice does not fetter our discretion to determine whether an appropriate case for the grant of an interim relief has been made out.í