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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Secretary of State for Transport, ex p. Factortame Ltd (No. 1) [1989] UKHL 1 (18 May 1989)
URL: http://www.bailii.org/uk/cases/UKHL/1989/1.html
Cite as: [1990] 2 AC 85, [1989] 2 All ER 692, [1989] 3 CMLR 1, [1989] UKHL 1, [1989] 2 WLR 997, [1989] COD 531

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JISCBAILII_CASES_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/249

    Judgment: 18.5.89

    HOUSE OF LORDS

    REGINA
    v.

    SECRETARY OF STATE FOR TRANSPORT
    (RESPONDENT)

    EX PARTE FACTORTAME LIMITED
    AND OTHERS
    (APPELLANTS)

    Lord Bridge of Harwich
    Lord Brandon of Oakbrook
    Lord Oliver of Aylmerton
    Lord Goff of Chieveley
    Lord Jauncey of Tullichettle

    LORD BRIDGE OF HARWICH

    My Lords,


    The appellants are a number of companies incorporated
    under the laws of the United Kingdom and also the directors and
    shareholders of those companies, most of whom are Spanish
    nationals. The appellant companies between them own or manage
    95 deep sea fishing vessels, which were until 31 March 1989
    registered as British fishing vessels under the Merchant Shipping
    Act 1894. Of these vessels 53 were originally registered in Spain
    and flew the Spanish flag. These 53 vessels were registered under
    the Act of 1894 at various dates from 1980 onwards. The
    remaining 42 vessels had always been British fishing vessels.
    These vessels were purchased by the appellants at various dates
    mainly since 1983.

    The statutory regime governing the registration of British
    fishing vessels was radically altered by Part II of the Merchant
    Shipping Act 1988 and the Merchant Shipping (Registration of
    Fishing Vessels) Regulations 1988 (S.I. 1988 No. 1926) both of
    which came into force on 1 December 1988. The following are
    the critical provisions of the Act which affect the appellants:

    "14(1) Subject to subsections (3) and (4), a fishing vessel
    shall only be eligible to be registered as a British fishing
    vessel if - (a) the vessel is British-owned; (b) the vessel is
    managed, and its operations are directed and controlled,
    from within the United Kingdom; and (c) any charterer,
    manager or operator of the vessel is a qualified person or
    company. (2) For the purposes of subsection (l)(a) a fishing
    vessel is British-owned if - (a) the legal title to the vessel
    is vested wholly in one or more qualified persons or
    companies; and (b) the vessel is beneficially owned - (i) as
    to not less than the relevant percentage of the property in
    the vessel, by one or more qualified persons, or (ii) wholly

    - 1 -

    by a qualified company or companies, or (iii) by one or
    more qualified companies and, as to not less than the
    relevant percentage of the remainder of the property in the
    vessel, by one or more qualified persons. ... (7) In this
    section - "qualified company" means a company which
    satisfies the following conditions, namely - (a) it is
    incorporated in the United Kingdom and has its principal
    place of business there; (b) at least the relevant percentage
    of its shares (taken as a whole) and of each class of its
    shares, is legally and beneficially owned by one or more
    qualified persons or companies; and (c) at least the
    relevant percentage of its directors are qualified persons;
    "qualified person" means - (a) a person who is a British
    citizen resident and domiciled in the United Kingdom, or (b)
    a local authority in the United Kingdom; and "the relevant
    percentage" means 75 per cent. or such greater percentage
    (which may be 100 per cent.) as may for the time being be
    prescribed."

    Fishing vessels previously registered as British under the Act of
    1894 require to be re-registered under the Act of 1988, subject to
    a transitional period prescribed by the Regulations of 1988 which
    permitted their previous registration to continue in force until 31
    March 1989.

    At the time of the institution of the proceedings in which
    this appeal arises, the 9.5 fishing vessels in question failed to
    satisfy one or more of the conditions for registration under section
    14(1) of the Act of 1988, and thus failed to qualify for
    registration, by reason of being managed and controlled from Spain
    or by Spanish nationals or by reason of the proportion of the
    beneficial ownership of the shares in the appellant companies in
    Spanish hands. The appellants sought by application for judicial
    review to challenge the legality of the relevant 1988 legislation on
    the ground that it contravened the provisions of the Treaty of
    Rome and other rules of law given effect thereunder by the
    European Communities Act 1972 by depriving the appellants of
    rights of the kind referred to in section 2(1) of the Act of 1972
    as "enforceable Community right[s]." It will be convenient to use
    the expression "Community law" as embracing the Treaty of Rome,
    subordinate legislation of institutions of the European Economic
    Community ("the E.E.C.") and the jurisprudence developed by the
    Court of Justice of the E.E.C. ("the E.C.J.") and to use the
    expression "directly enforceable Community right[s]" as referring to
    those rights in Community law which have direct effect in the
    national law of member states of the E.E.C.. The defence of the
    Secretary of State to the appellants' challenge was and is, first,
    that Community law does not in any way restrict a member
    state's right to decide who is entitled to be a national of that
    state or what vessels are entitled to fly its flag and, secondly,
    that, in any event, the new legislation is in conformity with
    Community law and, indeed, is designed to achieve the Community
    purposes enshrined in the Common Fisheries Policy.

    The appellants' application for judicial review was heard by
    the Divisional Court (Neill L.J. and Hodgson J.) who, in judgments
    delivered on 10 March 1989, decided to request a preliminary
    ruling from the E.C.J. in accordance with Article 177 of the
    Treaty of Rome on the substantive questions of Community law

    - 2 -

    which they considered necessary to enable them finally to
    determine the application. The precise terms of the questions
    proposed to be referred by the Divisional Court have not yet been
    settled. The Divisional Court went on to consider an application
    by the appellants for interim relief and made an order for the
    interim protection of the directly enforceable Community rights
    claimed by the appellants in the following terms:

    " It is ordered that: (1) pending final judgment or

    further order herein the operation of Part II of the
    Merchant Shipping Act 1988 and the Merchant Shipping
    (Registration of Fishing Vessels) Regulations 1988 be
    disapplied and the Secretary of State be restrained from
    enforcing the same in respect of any of the applicants and
    any vessel now owned (in whole or in part) managed
    operated or chartered by any of them so as to enable
    registration of any such vessel under the Merchant Shipping
    Act 1894 and/or the Sea Fishing Boats (Scotland) Act 1886
    to continue in being . ."

    An appeal against this order was heard by the Court of Appeal
    (Lord Donaldson of Lymington M.R., Bingham and Mann L.JJ.) who
    on 16 March 1989 allowed the appeal, set aside the order for
    interim relief and granted leave to appeal to your Lordships'
    House, giving their reasons for their decision on 22 march.

    Since the only issue before your Lordships on the appeal
    relates to the grant of interim relief, your Lordships have not
    been called on to examine in any detail the rival arguments of the
    parties on the substantive issues of Community law which will
    determine the final outcome of the application for judicial review,
    nor to consider the voluminous affidavit evidence which was fully
    examined by the Divisional Court. In these circumstances I shall
    gratefully adopt so much of the admirably lucid judgment of Neill
    L.J. in the Divisional Court as is necessary to appreciate the
    nature of these arguments and the factual and historical
    background against which the substantive issues fall to be
    determined.

    Having set out the terms of the principal Articles of the
    Treaty of Rome relied on by the appellants, Neill L.J. continued:

    " On the basis of these Articles it was argued on

    behalf of the applicants that they had a number of relevant
    rights under Community law, including the following: (a)
    the right not to be discriminated against on the grounds of
    nationality (Article 7); (b) the right in the case of the
    individuals to establish a business anywhere in the E.E.C.
    (Article 52) (including the right to carry on fishing at sea)
    and, in the case of the companies, (Article 58); and (c) the
    right in the case of the individual applicants to participate
    in the capital of the applicant companies (Article 221). It
    was further argued that these provisions of Community law
    were provisions which had direct effect and that the
    applicants' rights would be infringed by the application to
    them of the Act of 1988 and the Regulations of 1988. It
    was submitted that these rights were fundamental rights
    which could not be swept away or submerged by the
    Common Fisheries Policy and that all provisions of the

    - 3 -

    Common Fisheries Policy had to be read subject to these
    fundamental provisions. On behalf of the Secretary of
    State, on the other hand, it was argued that the provisions
    of the Treaty were of no direct relevance in this case
    because each member state has a sovereign right to decide
    questions of nationality: that is, who are permitted to be
    nationals and who are permitted to fly the national flag. In
    the alternative, it was argued, the whole matter was
    governed by the Common Fisheries Policy, which was
    established to cope with the special problems in the fishing
    industry and which recognised the importance, and the need
    for protection, of national fishing fleets and national fishing
    communities, and that the legislation merely gave effect to
    the Common Fisheries Policy and was therefore wholly
    consistent with the Community law."

    The judgment then traces the history of the Common Fisheries
    Policy from its origins before the accession of the United Kingdom
    to the Common Market through various Community regulations up
    to the establishment of the system laid down for the conservation
    of stocks of certain fish and the allocation of quotas to member
    states in 1983 which is embodied in the relevant Council
    regulations now applicable. The judgment continues:

    "The system adopted by the Council to ensure fair
    distribution was by the establishment of national quotas.
    These national quotas were directly linked to vessels flying
    the flag or registered in the individual member state. As I
    have already observed, in Article 10 of the Regulations of
    1983 and Article 11 of the Regulations of 1987, all relevant
    fish caught by vessels flying the flag counted against the
    quota of that state. In order to decide how to share out
    the available fish between member states the Council took
    into account the quantities of fish which had been caught,
    on average, by the fishing fleets of the relevant state
    between 1973 and 1978. Once the area governed by the
    Common Fisheries Policy was extended as from 1 January
    1977 to a range of 200 miles from the coastline of member
    states, the Common Fisheries Policy began to make an
    impact on areas of the eastern Atlantic, including the
    Western Approaches, which had traditionally been fished by
    Spanish fishing vessels. Prior to the accession of Spain to
    the Community in 1986, the rights of Spain to fish in the
    waters of the member states was governed by an agreement
    reached between the E.E.C. and Spain in 1980. This
    agreement laid down strict limits on fishing by Spanish-
    registered boats. The principle of national quotas was
    incorporated into the Act of Accession of 1985 whereby
    Spain and Portugal became members of the E.E.C. The Act
    of Accession prohibited more than 150 Spanish fishing
    vessels fishing in specified areas. From about 1980 onwards
    the applicants and others began to register vessels which
    had formerly been Spanish fishing vessels (that is, vessels
    which had formerly flown the flag of Spain) as British
    fishing vessels under the Merchant Shipping Act 1894. Some
    53 of these vessels are those owned by the applicants. In
    addition, the applicants and others bought British fishing
    vessels with a view to using them for fishing in the area
    covered by the Common Fisheries Policy. The fish were, in

    - 4 -

    the main, destined for the Spanish market. As time went
    by the United Kingdom government became concerned at the
    growth of the practice whereby Spanish interests were either
    buying British fishing vessels or re-registering Spanish vessels
    under the Act of 1894. The United Kingdom government
    therefore decided to make use of the powers contained in
    section 4 of the Sea Fish (Conservation) Act 1967 to impose
    some additional conditions for the licences which are
    required before fishing for stocks which are subject to
    quotas under the Common Fisheries Policy by vessels of 10
    metres length and over. These new conditions were
    announced on 6 December 1985. The conditions were of
    three kinds: operating, crewing and social security. The
    conditions were described by Mr. Noble in his first affidavit
    in paragraph 22, and can be summarised as follows. The
    operating conditions were designed to ensure that the vessels
    concerned . had a real economic link with the United
    Kingdom ports. That link was to be demonstrated in one of
    two ways: first, by selling a portion of the catch in the
    United Kingdom (the landing test) or, secondly, by making a
    specified number of visits to the United Kingdom (the
    visiting test). The crewing condition required that at least
    75 per cent. of the crew should be made up of E.E.C.
    nationals (excluding, for a period, nationals of Spain, Greece
    and Portugal) ordinarily resident in the United Kingdom.
    The social security condition required that all the crew
    should contribute to the United Kingdom's national insurance
    scheme. These conditions came into force in January 1986.
    They have been challenged by Spanish interests in the
    European Court in Luxembourg. It has been contended that
    they are contrary to Community law. The decision of the
    European Court in the two relevant references is now
    awaited. The cases have been brought, respectively, at the
    suit of a company called Agegate Ltd. and another company
    called Jaderow Ltd. In the course of the argument we were
    referred to the opinions in these two cases of Mr. Advocate
    General Mischo in which he expressed views about the
    validity of the conditions. In summary, his opinion was this:
    that the crewing and social security conditions were valid,
    that the visiting test would be valid provided it did not
    interfere with exports, but that the landing test (included as
    part of the operating conditions) was in breach of Article 34
    of the E.E.C. Treaty. It should be remembered that earlier
    I referred to the terms of Article 34. It has been the
    contention of the Secretary of State that these conditions
    have not been observed by the applicants and that the
    further measures prescribed in the Act of 1988 and the
    Regulations of 1988 have been necessary to secure that the
    purposes of the Common Fisheries Policy are duly carried
    out, and also to ensure that proper policing and safety
    control are improved. Such then, in summary, is the
    background to this case and these are the relevant
    provisions both of the Treaty and of the Common Fisheries
    Policy to which our attention was particularly directed."

    I add a footnote to this summary to observe that the preliminary
    rulings of the E.C.J. in the cases of Agegate (Case 3/87) and
    Jaderow (Case 216/87) referred to by Neill L.J. had still not been
    given at the conclusion of the argument of this appeal before your
    Lordships.

    - 5 -

    Against this background and in view of the nature of the
    questions of Community law involved, the discretionary decision of
    the Divisional Court to seek a preliminary ruling from the E.C.J.
    under Article 177 was, it seems to me, unquestionably right. The
    questions are of great difficulty and depend, I would think, on a
    wide range of considerations which only the E.C.J. has the
    competence to assess.

    Having indicated his reasons for the conclusion that the case
    called for a reference under Article 177, Neill L.J. said in
    considering the application for interim relief:

    "For my part, I do not propose to express even a tentative
    view of the likely result in the present reference, but
    neither side's arguments in my judgment can be described as
    weak. They both merit the most careful scrutiny. The
    applicants' contentions invoke the support of fundamental
    principles of the Treaty of Rome. The Solicitor General
    relies on sovereign rights over nationality, and on the
    special provisions of the Common Fisheries Policy. In these
    circumstances I think it is right' to look at the matter on
    the basis that the cogent and important arguments put
    forward on behalf of the applicants are to be set against
    arguments of a like weight urged with equal force on behalf
    of the Secretary of State."

    Hodgson J. expressed the view that the appellants had "a strong
    prima facie case" and was critical of some of the arguments
    advanced on behalf of the Secretary of State. Your Lordships
    have not, however, been invited to make your own independent
    assessment of the relative strengths of the rival contentions on the
    substantive issues of Community law which arise, and I think both
    sides accept that, in relation to the grant of interim relief,
    nothing turns on any difference between the assessments made by
    Neill L.J. and Hodgson J.

    It is estimated that the preliminary ruling requested by the
    Divisional Court from the E.C.J. will not be given for two years
    from the date when the reference is made. The appellants claim
    that unless they are protected during this period by an interim
    order which has the effect of enabling them to continue to
    operate their 95 vessels as if they were duly registered British
    fishing vessels (which would be necessary to enable them to
    continue to hold licences to fish against the British quota of
    controlled stocks of fish) they will suffer irreparable damage. The
    vessels are not eligible to resume the Spanish flag and fish against
    the Spanish quota. To lay the vessels up pending the ruling of the
    E.C.J. would be prohibitively expensive. The only practical
    alternative would be to sell the vessels or the Spanish holdings in
    the companies owning the vessels in what would be a glutted
    market at disastrously low prices. In addition many of the
    individual appellants are actively engaged in the operation and
    management of the vessels and would lose their livelihood. No
    doubt has been cast on the factual accuracy of these claims and I
    approach the question of interim relief on the footing that they
    are well founded. Moreoever, as the law presently stands on the
    authority of Bourgoin S.A. v. Ministry of Agriculture, Fisheries and
    Food
    [1986] Q.B. 716 the appellants would have no remedy in
    damages for losses suffered pending the ruling of the E.C.J.

    - 6 -

    It is more difficult to assess, in practical terms, the adverse
    consequences of granting interim relief if the preliminary ruling of
    the E.C.J. is in the event given in favour of the Secretary of
    State. Certainly there is no question of requiring from the
    appellants a cross-undertaking in damages, since it would be
    impossible to identify any damage sustained by individuals in the
    British fishing industry as a result of the continued operation of
    the appellants' vessels. But it is right to recognise that the policy
    of Her Majesty's Government endorsed by Parliament in Part II of
    the Act of 1988 is to ensure that the quota of controlled stocks
    of fish allocated to the United Kingdom in accordance with the
    Common Fisheries Policy, of which a sizeable proportion is
    presently taken by the appellants, should be fully available to be
    enjoyed by those engaged in the British fishing industry.

    The familiar situation in English law in which the question
    arises as to whether or not an interim injunction should be made
    to protect some threatened right of the plaintiff or applicant for
    judicial review is one in which the facts on which the right
    depends are in dispute and the court cannot proceed immediately
    to the trial which will resolve that dispute. In this situation the
    court has a discretion to grant or withhold interim relief which it
    exercises in accordance with the principles laid down by your
    Lordships' House in American Cyanamid Co. v. Ethicon Ltd. [1975]
    A.C. 396. In deciding on a balance of convenience whether or not
    to make an interim injunction the court is essentially engaged in
    an exercise of holding the ring. In private law as between private
    parties the plaintiff will be required, if granted interim relief, to
    give a cross-undertaking in damages and the court is thus enabled
    to make a pragmatic decision as to who is likely to suffer the
    greater injustice, the plaintiff on the one hand if interim relief is
    withheld and he eventually establishes his right but is left to his
    remedy in damages, or the defendant on the other hand if he is
    wrongly restrained in the interim and he is left to his remedy in
    damages on the plaintiff's cross-undertaking.

    The situation which arises in the present case is
    fundamentally different from this familiar situation in two
    respects. The first which I wish to examine is that the dispute on
    which the existence or non-existence of the rights for which the
    appellants claim protection depends is one of law, not of fact, and
    the postponement of the resolution of that dispute arises, of
    course, from the necessity to seek a preliminary ruling from the
    E.C.J under Article 177.

    By virtue of section 2(4) of the Act of 1972 Part II 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 "recognised and available in law, and . .
    . enforced, allowed and followed accordingly; . . ." 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 E.E.C.. Thus it is common
    ground that, in so far as the appellants succeed before the E.C.J.
    in obtaining a ruling in support of the Community rights which
    they claim, those rights will prevail over the restrictions imposed

    - 7 -

    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.

    It is difficult to envisage a parallel situation arising out of
    the disputed construction of an English statute not involving any
    question of Community law which would call for a decision as to
    whether or not the court could grant interim relief of the kind
    which the appellants are seeking here. Suppose that an English
    statute contained two sections allegedly in conflict with each
    other, one clear and unambiguous in its terms, the other of
    doubtful import. If an English court were faced with a claim by a
    party litigant to rights granted by the doubtful section which were
    denied by the unambiguous section, the court confronted with the
    issue at any level would decide it and no question of interim relief
    could possibly arise.

    The nearest parallel arises where subordinate legislation
    which in its terms is clear and unambiguous is challenged as ultra
    vires and a question arises as to the enforcement of the
    subordinate legislation before the challenge to the vires has been
    resolved. This indeed was the question which arose in F.
    Hoffmann-La Roche & Co A.G. v. Secretary of State for Trade
    and Industry
    [1973] A.C. 295, but it is important to appreciate the
    context in which it arose. The Secretary of State had made a
    statutory order under the Monopolies and Restrictive Practices
    (Inquiry and Control) Act 1948 which had been approved by both
    Houses of Parliament and which had the effect of restricting the
    price at which Hoffmann-La Roche could sell certain drugs. It
    was Hoffmann-La Roche who brought proceedings against the
    Secretary of State for a declaration that the statutory order was
    ultra vires on the ground that the proceedings before the
    Monopolies Commission and the findings of the Monopolies
    Commission on which the statutory order was based were vitiated
    by breaches of the rules of natural justice. Under the provisions
    of the Act of 1948 the only means by which the statutory order
    could be enforced was by injunction to restrain Hoffmann-La
    Roche from selling the drugs in question above the stipulated
    price. The Secretary of State accordingly moved for such an
    injunction and the motion was heard as if made in Hoffmann-La
    Roche's action. The primary question in issue was whether the
    Secretary of State could be required to give an undertaking in
    damages as a condition of the grant of an interim injunction
    pending trial of the action at which the issue as to the validity of
    the statutory order would be determined. But the House also had
    to determine whether it was appropriate to grant an interim
    injunction to enforce the terms of the statutory order at a time
    when a challenge to the vires of the order had not been resolved.

    The House in Hoffmann-La Roche affirmed by a majority
    (Lord Wilberforce dissenting) the decision of the Court of Appeal
    that the interim injunction should be granted without requiring the
    Secretary of State to give any cross-undertaking. The Solicitor
    General relies on passages in the speeches of the majority as
    establishing the principle that the unambiguous terms of delegated
    legislation, and, as he would say, a fortiori of an Act of
    Parliament, must be presumed to be the law and must be enforced
    as such unless and until declared to be invalid in the one case or

    - 8 -

    declared to be incompatible with Community law on the other.
    Lord Reid said, at p. 341:

    "It must be borne in mind that an order made under
    statutory authority is as much the law of the land as an
    Act of Parliament unless and until it has been found to be
    ultra vires. . . . But I think that it is for the person against
    whom the interim injunction is sought to show special reason
    why justice requires that the injunction should not be
    granted or should only be granted on terms."

    Lord Morris of Borth-y-Gest said, at p. 349:

    "The order then undoubtedly had the force of law.
    Obedience to it was just as obligatory as would be
    obedience to an Act of Parliament."

    Lord Diplock said, at p. 365:

    "Unless there is such challenge and, if there is, until it has
    been upheld by a judgment of the court, the validity of the
    statutory instrument and the legality of acts done pursuant
    to the law declared by it are presumed."

    Mr. Vaughan, for the appellants, relies on passages in the
    speeches of the majority and in the dissenting speech of Lord
    Wilberforce as qualifying the proposition that legislation whose
    validity is called in question must in all circumstances be enforced
    unless and until invalidated: see per Lord Morris of Borth-y-Gest
    at p. 350B; per Lord Diplock, at p. 367B-C; per Lord Cross of
    Chelsea, at p. 371E-G; and the dissenting view of Lord
    Wilberforce, at p. 358E-G. I do not find it necessary to set out
    these passages, since I accept that the court may in its discretion
    properly decline to exercise its jurisdiction to grant an interim
    order in aid of the enforcement of disputed legislative measures in
    a situation where, as in the case of Hoffmann-La Roche, it is
    necessary to invoke the court's jurisdiction in order to secure their
    enforcement.

    The application of this principle in relation to the
    enforcement of the provisions of Part II of the Act of 1988 admits
    of a simple illustration. Section 22, as its sidenote indicates,
    creates certain "offences relating to, and liabilities of, unregistered
    fishing vessels." If any of the appellants were to be prosecuted
    for an offence in relation to an unregistered fishing vessel or if
    proceedings for forfeiture of the vessel were instituted under
    section 22 and the rights under Community law now claimed were
    relied on in defence, it is very properly conceded by the Solicitor-
    General that the court before which the prosecution or forfeiture
    proceedings were brought, if it decided to refer questions of
    Community law to the E.C.J., could grant a stay of the
    prosecution or forfeiture proceedings pending the preliminary ruling
    of the E.C.J. This would be a proper case of the court staying
    its hand until the issue as to the claim of Community rights was
    settled. The prosecution or the forfeiture proceedings would not
    be frustrated but suspended. If eventually the claimed Community
    rights were not upheld by the E.C.J., there could still be a
    conviction or a forfeiture of the vessel. Precisely the same
    principle underlies the decision of the Irish Supreme Court in

    - 9 -

    Pesca Valentia Ltd v. Minister for Fisheries and Forestry, Ireland
    and Attorney General
    [1985] IR 193, on which Mr. Vaughan relies,
    where a prosecution for an offence in contravention of Irish
    legislation regulating fisheries alleged to be incompatible with
    Community law was stayed.

    In the light of these considerations I do not believe that
    Hoffmann-La Roche provides the conclusive answer, as a matter of
    English law, to the appellants' claim for interim relief. But this
    brings me to what I believe to be the nub of the appeal, in so far
    as it depends on English law, and to the second critical distinction
    between the claim to interim relief advanced by the appellants and
    any claim to interim relief which an English court has ever
    previously entertained. Unlike the statutory order which the
    Secretary of State for Trade and Industry sought to enforce by
    interim injunction against Hoffmann-La Roche, the provisions of
    Part II of the Act of 1988 require no assistance from the court
    for their enforcement. Unambiguous in their terms, they simply
    stand as a barrier to the continued enjoyment by the appellants'
    vessels of the right to registration as British fishing vessels. In
    this situation the difficulty which confronts the appellants is that
    the presumption that an Act of Parliament is compatible with
    Community law unless and until declared to be incompatible must
    be at least as strong as the presumption that delegated legislation
    is valid unless and until declared invalid. But an order granting
    the appellants the interim relief which they seek will only serve
    their purpose if it declares that which Parliament has enacted to
    be the law from 1 December 1988, and to take effect in relation
    to vessels previously registered under the Act of 1894 from 31
    March 1989, not to be the law until some uncertain future date.
    Effective relief can only be given if it requires the Secretary of
    State to treat the appellants' vessels as entitled to registration
    under Part II of the Act in direct contravention of its provisions.
    Any such order, unlike any form of order for interim relief known
    to the law, would irreversibly determine in the appellants' favour
    for a period of some two years rights which are necessarily
    uncertain until the preliminary ruling of the E.C.J. has been given.
    If the appellants fail to establish the rights they claim before the
    E.C.J., the effect of the interim relief granted would be to have
    conferred upon them rights directly contrary to Parliament's
    sovereign will and correspondingly to have deprived British fishing
    vessels, as defined by Parliament, of the enjoyment of a
    substantial proportion of the United Kingdom quota of stocks of
    fish protected by the Common Fisheries Policy. I am clearly of
    the opinion that, as a matter of English law, the court has no
    power to make an order which has these consequences.

    It follows that this appeal must fall to be dismissed unless
    there is, as the appellants contend, some overriding principle
    derived from the jurisprudence of the E.C.J. which compels
    national courts of member states, whatever their own law may
    provide, to assert, and in appropriate cases to exercise, a power to
    provide an effective interlocutory remedy to protect putative
    rights in Community law once those rights have been claimed and
    are seen to be seriously arguable, notwithstanding that the
    existence of the rights is in dispute and will not be established
    unless and until the E.C.J. so rules. But before turning to
    consider the appellants' submissions on this aspect of Community
    law, a further and, as some may think, narrower and more
    technical question of English law has to be decided.

    - 10 -

    The Solicitor-General accepted in the courts below that it
    was not open to him to argue that the court had no jurisdiction to
    grant an interlocutory injunction against the Crown in the light of
    the majority judgments of the Court of Appeal in Reg. v.
    Licensing Authority Established under Medicines Act 1968, Ex parte
    Smith Kline & French Laboratories Ltd.
    (No. 2) [1989] 2 W.L.R.
    378 ("S.K.F.") affirming the previous judgment of Hodgson J. in
    Reg. v. Secretary of State for the Home Department, Ex parte
    Herbage
    [1987] Q.B. 872. The point was kept open for argument
    in your Lordships' House. Strictly speaking, I think that the views
    expressed in the two cases referred to were obiter, since in
    neither case did the court act on its view by proceeding to make
    an interim injunction against the Crown. But this matters not.
    The question for your Lordships is whether Hodgson J. in Herbage
    and Woolf and Taylor L.JJ., who were the majority in S.K.F., were
    right in the conclusion they reached that, although the court has
    no jurisdiction to grant an interim injunction against the Crown in
    proceedings begun by writ, it has such a jurisdiction in proceedings
    on an application for judicial review.

    The question at issue depends, first, on the true construction
    of section 31 of the Supreme Court Act 1981 which provides, so
    far as material:

    "(1) An application to the High Court for one or
    more of the following forms of relief, namely - (a) an
    order of mandamus, prohibition or certiorari; (b) a
    declaration or injunction under subsection (2); . . . shall be
    made in accordance with rules of court by a procedure to
    be known as an application for judicial review. (2) A
    declaration may be made or an injunction granted under this
    subsection in any case where an application for judicial
    review, seeking that relief, has been made and the High
    Court considers that, having regard to - (a) the nature of
    the matters in respect of which relief may be granted by
    orders of mandamus, prohibition or certiorari; b) the nature
    of the persons and bodies against whom relief may be
    granted by such orders; and (c) all the circumstances of
    the case, it would be just and convenient for the declaration
    to be made or the injunction to be granted, as the case
    may be. (3) No application for judicial review shall be
    made unless the leave of the High Court has been obtained
    in accordance with rules of court; and the court shall not
    grant leave to make such an application unless it considers
    that the applicant has a sufficient interest in the matter to
    which the application relates. (4) On an application for
    judicial review the High Court may award damages to the
    applicant if - (a) he has joined with his application a claim
    for damages arising from any matter to which the
    application relates; and (b) the court is satisfied that, if
    the claim had been made in an action begun by the
    applicant at the time of making his application, he would
    have been awarded damages."

    The essence of the reasoning leading to the conclusion that this
    section on its true construction confers a jurisdiction which never
    existed before to grant injunctions against the Crown appears from
    the following passage in the judgment of Woolf L.J. in S.K.F., at
    pp. 390-391:

    - 11 -

    "Turning to consider the provisions of the Act of 1981, it is
    important to note that there is a distinction between the
    way that the Act deals with the power of the courts to
    grant relief by way of injunction or by way of declaration
    from that which exists in relation to damages. Here,
    section 31(2) and section 31(4) are important."

    The judgment then sets out the provisions of section 31(2).

    "The effect of section 31(2), read literally, is that the court
    has a discretion to grant a declaration or grant an
    injunction at least in that class of cases where it was the
    practice previously to grant an order of mandamus,
    prohibition or certorari, subject to the qualification that
    application is against the type of body or persons in relation
    to whom those orders normally would be available. This is
    a different basis of jurisdiction from that which previously
    existed."

    The judgment then sets out the provisions of section 31(4).

    "The position with regard to a claim for damages, therefore,
    is quite distinct from that in relation to a claim for a
    declaration or injunction because in respect of a claim for
    damages it has to be a situation where if the claim had
    been included in an action damages would be awarded. The
    key to the distinction between subsection (2) and subsection
    (4) of section 31 is that subsection (2) has the innovative
    effect of making a declaration or injunction for the first
    time a public law remedy in addition to being a private law
    remedy which could be used to obtain relief on the same
    basis against private bodies and public bodies, which was the
    position prior to the coming into force of the new procedure
    of judicial review. However, in the case of damages the
    situation is otherwise. Damages could previously only be
    obtained in private law proceedings against a public body if
    private law, common law or statutory rights were breached
    and now the same restrictions apply in judicial review, that
    is public law proceedings, where damages are claimed. In
    my view, looking at the language of section 31 of the Act
    of 1981 alone, it is quite clear that the court's jurisdiction
    was being extended in relation to declarations and
    injunctions, but the court's jurisdiction was not being
    extended in relation to damages, and in relation to damages
    all that has happened is that there is a procedural change,
    whereas in relation to declarations and injunctions not only
    has there been a procedural change, there has also been a
    jurisdictional change. . . . Against that background to the
    statutory provisions I ask myself whether or not there is a
    power to grant an injunction against the Crown, and subject
    to what I have to say hereafter I conclude that there
    clearly is such a power under the new procedure."

    The question at issue depends, secondly, on the true
    construction of R.S.C., Ord. 53, r. 3(10)(b) which provides:

    "Where leave to apply for judicial review is granted, then -
    . . .

    - 12 -

    (b) if any other relief is sought, the court may at any
    time grant in the proceedings such interim relief as could
    be granted in an action begun by writ."

    Proceeding from the premiss that section 31(2) of the Act of 1981
    confers jurisdiction by statute in judicial review proceedings to
    grant injunctions against the Crown, the view of the majority in
    S.K.F. affirming Hodgson J. in Herbage was that this provision in
    the rules, on its true construction, enables that statutory
    jurisdiction to be exercised to grant an interim injunction.

    In my opinion, it is impossible to construe section 31 of the
    Act of 1981 except in the light of the relevant preceding history.
    In much that follows I am indebted to the submissions on this part
    of the case made on behalf of the Secretary of State by Mr.
    Laws.

    Before the passing of the Crown Proceedings Act 1947 the
    only means by which the Crown might be impleaded in court were
    by petition of right, action against the Attorney General for a
    declaration and action against certain ministers or government
    departments which had been made liable to suit by statute. None
    of these procedures involved claims for injunctions. Officers of
    the Crown, acting as such, were likewise immune from suit. An
    exception to this proposition is said by Mr. Forwood, who
    presented the argument for the appellants on this part of the case,
    to be established by Tamaki v. Baker [1901] A.C. 561 where the
    defendant Baker was the New Zealand Commissioner of Crown
    lands. Lord Davey, delivering the judgment of the Privy Council,
    said, at p. 576:

    "Their Lordships hold that an aggrieved person may sue an
    officer of the Crown to restrain a threatened act purporting
    to be done in supposed pursuance of an Act of Parliament,
    but really outside the statutory authority."

    But the exception is apparent, not real. The same passage from
    Lord Davey's judgment was relied on by counsel for the plaintiff
    in Mutton v. Secretary of State for War (1926) 43 T.L.R. 106 in
    seeking to resist a preliminary point taken by the Attorney
    General that an action against the Secretary of State for War, as
    such, would not lie. Referring to this passage in his judgment,
    Tomlin J. said, at p. 107:

    "The plaintiffs' contention really received no support from
    the passage referred to when it was read in its context.
    What Lord Davey was really saying was that in a case
    where an official was sued as an individual for a wrongful
    act it was no defence to say that the wrongful act was
    done by him as an officer of the Crown. The argument
    that an action would lie against a Crown official, as such,
    when a wrong had been done which purported to be an
    exercise of a statutory authority, entirely failed."

    Injunctions were never available in proceedings on the Crown
    side invoking the ancient jurisdiction to issue the prerogative writs
    of mandamus, prohibition and certiorari, which were transformed
    by section 7 of the Administration of Justice (Miscellaneous
    Provisions) Act 1938 into orders to the same effect.

    - 13 -

    The Act of 1947 by section 1 gives the right to sue the
    Crown in tort and in section 2 defines the scope of the Crown's
    liability in tort. Section 21 provides, so far as material:

    "(1) In any civil proceedings by or against the Crown the
    court shall, subject to the provisions of this Act, have
    power to make all such orders as it has power to make in
    proceedings between subjects, and otherwise to give such
    appropriate relief as the case may require: Provided that:-
    (a) where in any proceedings against the Crown any such
    relief is sought as might in proceedings between subjects be
    granted by way of injunction or specific performance, the
    court shall not grant an injunction or make an order for
    specific performance, but may in lieu thereof make an order
    declaratory of the rights of the parties; ... (2) The court
    shall not in any civil proceedings grant any injunction or
    make any order against an officer of the Crown if the
    effect of granting the injunction or making the order would
    be to give any relief against the Crown which could not
    have been obtained in proceedings against the Crown."

    By definition in section 38(2)

    "'civil proceedings' includes proceedings in the High Court or
    the county court for the recovery of fines or penalties, but
    does not include proceedings on the Crown side of the
    King's Bench Division; ..."

    In the light of this definition, Hodgson J. was, in my view,
    clearly right in Reg. v. Secretary of State for the Home
    Department. Ex parte Herbage
    [1987] Q.B. 872 to reject an
    argument that proviso (a) to section 21(1) should be construed as
    extending to Crown side proceedings. The ambit of the words
    "any proceedings" in the proviso can be no wider than the ambit
    of the words "any civil proceedings" in the body of the subsection
    to which the proviso applies. Dicta to the contrary effect in Reg.
    v. Inland Revenue Commissioners, Ex parte Rossminster Ltd.
    [1980]
    A.C. 952, on which Mr. Laws relied with undisguised lack of
    enthusiasm, must be regarded as having been expressed per
    incuriam. But, having said that, it is important to add that the
    absence from the Act of 1947 of any express prohibition of the
    grant of injunctions against the Crown in proceedings on the
    Crown side is of no significance since, as already stated,
    injunctions were not available in Crown side proceedings and such
    a prohibition would have been otiose.

    The previous common law position where an injunction is
    sought against an officer of the Crown is, in my view, effectively
    preserved by the combined effect of section 21(2) and the
    definition of the phrase "civil proceedings by or against the
    Crown" in section 23(2)(b) which provides:

    "(2) Subject to the provisions of this section, any
    reference in this Part of this Act to civil proceedings
    against the Crown shall be construed as a reference to the
    following proceedings only:- . . . (b) proceedings for the
    enforcement or vindication of any right or the obtaining of
    any relief which, if this Act had not been passed, might
    have been enforced or vindicated or obtained by an action

    - 14 -

    against the Attorney-General, any government department,
    or any officer of the Crown as such; . . . and the
    expression civil proceedings by or against the Crown shall be
    construed accordingly."

    In Merricks v. Heathcoat-Amory [1955] Ch. 567 the plaintiffs
    sought a mandatory injunction against the defendant requiring him
    to withdraw a draft scheme under the Agricultural Marketing Acts
    1931-1949 which had been laid before both Houses of Parliament
    but was alleged to be ultra vires. It was argued that the
    defendant was not acting as a representative of the Crown but
    either in an official capacity as a person designated to perform
    statutory functions or in an individual capacity. Upjohn J.
    rejected the argument. He said, at p. 575:

    "It seems to me that from start to finish he was acting in
    his capacity as an officer representing the Crown. That
    being so, it is conceded that no injunction can be obtained
    against him, and therefore the motion falls in limine. I am
    not satisfied that it is possible to have the three categories
    which were suggested. Of course there can be an official
    representing the Crown, that is plainly this case. But if he
    were not, it was said that he was a person designated in an
    official capacity but not representing the Crown. The third
    suggestion was that his capacity was purely that of an
    individual. I understand the conception of the first and the
    third categories, but I confess to finding it difficult to see
    how the second category can fit into any ordinary scheme.
    It is possible that there may be special Acts where named
    persons have special duties to perform which would not be
    duties normally fulfilled by them in their official capacity;
    but in the normal case where the relevant or appropriate
    minister is directed to carry out some function or policy of
    some Act, he is either acting in his capacity as a Minister
    of the Crown representing the Crown, or is acting in his
    personal capacity, usually the former. I find it very
    difficult to conceive of a middle classification."

    This judgment has been subject to academic criticism (see Wade,
    Administrative Law,
    6th ed. (1988), p. 589) and Mr. Forwood has
    submitted that Merricks was wrongly decided. It seems to me,
    however, that the judgment of Upjohn J. accords entirely with the
    position in law before 1947, as explained in the judgment of
    Tomlin J. in Mutton v. Secretary of State for War, which, as I
    have said, the Act of 1947 appears to me to be specifically
    intended to preserve.

    The new Order 53 of the Rules of the Supreme Court was
    introduced in 1977 following the Law Commission's Report on
    Remedies in Administrative Law (Law Com. No. 73) (1976) (Cmnd.
    6407). The relevant recommendations are set out in Part V
    headed "Recommendations for Reform." Under the sub-heading "(a)
    An application for judicial review," paragraph 43 reads:

    "Our basic recommendation is that there should be a form
    of procedure to be entitled an "application for judicial
    review.' Under cover of the application for judicial review
    a litigant should be able to obtain any of the prerogative
    orders, or, in appropriate circumstances, a declaration or an
    injunction . . . ."

    - 15 -

    Under the later sub-heading "(h) Interim relief on an application
    for judicial review, with special reference to the Crown" the Law
    Commission addressed as a quite distinct problem the lack of
    jurisdiction to grant interim injunctions against the Crown and set
    out its reasoning and recommendation in this regard in paragraph
    51 as follows:

    "We have pointed out that, where an application is being
    made for certiorari or prohibition, the court can give
    interim relief preserving the status quo pending a final
    decision under Ord. 53, r. 1(5); and where an injunction is
    being sought such interim relief can be obtained by means
    of an interlocutory injunction. However, an injunction
    cannot be obtained against the Crown although it is possible
    in such a case to get a declaration. But there is at present
    no form of interim declaration which in effect preserves the
    status quo pending the final declaration. We think it
    desirable that there should be a form of relief which would
    have this interim effect where a declaration is being sought
    against the Crown. We therefore recommend that section
    21 of the Crown Proceedings Act 1947 should be amended
    to provide that, in addition to the power there given to
    make a declaratory order in proceedings against the Crown,
    there is also power to declare the terms of an interim
    injunction which would have been granted between subjects.
    In spite of the judicial doubts which have been expressed as
    to the logical character of a provisional declaration, we see
    no reason to doubt that the Crown would respect a
    declaration of the terms of an interim injunction in the
    same way as it respects a final declaratory order."

    The Law Commission appended to its report a draft Bill by
    which it proposed that its recommendations should be implemented.
    The recommendation that interim relief should be available against
    the Crown was proposed to be implemented by clause 3(2) of the
    draft Bill in the following terms:

    "In section 21 of the Crown Proceedings Act 1947 (nature of
    relief in civil proceedings by or against Crown), for
    paragraph (a) of the proviso to subsection (1) there shall be
    substituted the following paragraph:- '(a) the court shall
    not grant an injunction, or order specific performance,
    against the Crown but may in lieu thereof - (i) in a case
    where the court is satisfied that it would have granted an
    interim injunction if the proceedings had been between
    subjects, declare the terms of the interim injunction that it
    would have made; or (ii) make an order declaratory of the
    rights of the parties;".

    The decision taken following the Report to proceed by
    amendment of the Rules of the Supreme Court rather than by
    primary legislation limited the extent to which it was possible to
    implement the recommendations of the Law Commission, since the
    Rule Committee is only empowered to legislate in matters of
    practice and procedure and cannot extend the jurisdiction of the
    High Court. Accordingly the new Order 53 proceeded to
    implement the recommendation in paragraph 43 of the Report (and
    clauses 1 and 2 of the proposed draft Bill) but did not, as it could

    - 16 -

    not, seek to implement the recommendation in paragraph 51 (and
    clause 3(2) of the proposed draft Bill). The terms of Ord. 53, r.
    1(1) and (2) are and were when the order was first promulgated in
    1977 in all relevant respects identical with the terms subsequently
    enacted by section 31(1) and (2) of the Act of 1981.

    If section 31 of the Act of 1981 were to be construed in
    isolation, I would see great force in the reasoning set out in the
    judgment of Woolf L.J. in S.K.F. [1989] 2 W.L.R. 378, 390-391
    which I have cited. But in the light of the history it seems to
    me that there are three reasons why it is impossible to construe
    section 31(2) as having the effect attributed to it by Woolf L.J. of
    conferring a new jurisdiction on the court to grant injunctions
    against the Crown. First, section 31(2) and Ord. 53, r. 1(2) being
    in identical terms, the subsection and the sub-rule must have the
    same meaning and the sub-rule, if it purported to extend
    jurisdiction, would have been ultra vires. Secondly, if Parliament
    had intended to confer upon the court jurisdiction to grant interim
    injunctions against the Crown, it is inconceivable, in the light of
    the Law Commission's recommendation in paragraph 51 of its
    report, that this would not have been done in express terms either
    in the form of the proposed clause 3(2) of the Law Commission's
    draft Bill or by an enactment to some similar effect. There is no
    escape from the conclusion that this recommendation was never
    intended to be implemented. Thirdly, it is apparent from section
    31(3) that the relief to which section 31(2) applies is final, as
    opposed to interlocutory, relief. By section 31(2) a declaration
    may be made or an injunction granted "where an application for
    judicial review . . . has been made . . . ." But by section 31(3)
    "no application for judicial review shall be made unless the leave
    of the High Court has been obtained in accordance with rules of
    court; . . . ." Under the rules there are two stages in the
    procedure, first the grant of leave to apply for judicial review on
    ex parte application under Ord. 53, r. 3, secondly the making of
    the application for judicial review which by rule 5 is required to
    be by originating motion or summons duly served on all parties
    directly affected. Section 31(2) is thus in terms addressed to the
    second stage, not the first, and is in sharp contrast with the
    language of Ord. 53, r. 3(10), which by its terms enables
    appropriate interim relief to be granted by the court at the same
    time as it grants leave to apply for judicial review. This point
    appeared to me at first blush to be one of some technicality. But
    on reflection I am satisfied that it conclusively refutes the view
    that section 31(2) was intended to provide a solution to the
    problem of the lack of jurisdiction to grant interim injunctions
    against the Crown. The form of final relief available against the
    Crown has never presented any problem. A declaration of right
    made in proceedings against the Crown is invariably respected and
    no injunction is required. If the legislature intended to give the
    court jurisdiction to grant interim injunctions against the Crown, it
    is difficult to think of any reason why the jurisdiction should be
    available only in judicial review proceedings and not in civil
    proceedings as defined in the Act of 1947. Hence, an enactment
    which in terms applies only to the forms of final relief available
    in judicial review proceedings cannot possibly have been so
    intended.

    Mr. Forwood, replying for the appellants to Mr. Laws'
    submissions on this part of the case, did not address any of the

    - 17 -

    issues to which I have referred in the foregoing paragraph, but
    submitted instead that the power to grant interim injunctions
    against the Crown in judicial review proceedings derived from a
    purely procedural change effected by the introduction of the new
    Order 53 in 1977 which involved no extension of the court's
    jurisdiction and which it was within the power of the Rule
    Committee to make. I note that this submission runs entirely
    counter to the reasoning of Woolf L.J. in S.K.F. in the passage
    from his judgment which I have cited. Mr. Forwood relied in
    support of the submission on passages from the speeches delivered
    in your Lordships' House in Reg. v. Inland Revenue Commissioners,
    Ex parte National Federation of Self-Employed and Small
    Businesses Ltd.
    [1982] AC 617 and O'Reilly v. Mackman [1983] 2
    A.C. 237. I do not find in those passages anything which supports
    the submission, since it is clear from the context that none of
    their Lordships had addressed their minds to the question of
    injunctions against the Crown.

    I have accordingly reached the conclusion that the views
    expressed by Hodgson J. in Reg. v. Secretary of State for the
    Home Department, Ex parte Herbage
    [1987] Q.B. 872 and by the
    majority of the Court of Appeal in S.K.F. were erroneous and
    that, as a matter of English law, the absence of any jurisdiction
    to grant interim injunctions against the Crown is an additional
    reason why the order made by the Divisional Court cannot be
    supported.

    I turn finally to consider the submission made on behalf of
    the appellants that, irrespective of the position under national law,
    there is an overriding principle of Community law which imposes
    an obligation on the national court to secure effective interim
    protection of rights having direct effect under Community law
    where a seriously arguable claim is advanced to be entitled to
    such rights and where the rights claimed will in substance be
    rendered nugatory or will be irremediably impaired if not
    effectively protected during any interim period which must elapse
    pending determination of a dispute as to the existence of those
    rights. The basic propositions of Community law on which the
    appellants rely in support of this submission may be quite shortly
    summarised. Directly enforceable Community rights are part of
    the legal heritage of every citizen of a member state of the
    E.E.C. They arise from the Treaty of Rome itself and not from
    any judgment of the E.C.J. declaring their existence. Such rights
    are automatically available and must be given unrestricted
    retroactive effect. The persons entitled to the enjoyment of such
    rights are entitled to direct and immediate protection against
    possible infringement of them. The duty to provide such
    protection rests with the national court. The remedy to be
    provided against infringement must be effective, not mereby
    symbolic or illusory. The rules of national law which render the
    exercise of directly enforceable Community rights excessively
    difficult or virtually impossible must be overridden.

    Mr. Vaughan, in a most impressive argument presented in
    opening this appeal, traced the progressive development of these
    principles of the jurisprudence of the E.C.J. through a long series
    of reported decisions on which he relies. I must confess that at
    the conclusion of his argument I was strongly inclined to the view
    that, if English law could provide no effective remedy to secure

    - 18 -

    the interim protection of the rights claimed by the appellants, it
    was nevertheless our duty under Community law to devise such a
    remedy. But the Solicitor General, in his equally impressive reply,
    and in his careful and thorough analysis of the case law, has
    persuaded me that none of the authorities on which Mr. Vaughan
    relies can properly be treated as determinative of the difficult
    question, which arises for the first time in the instant case, of
    providing interim protection of putative and disputed rights in
    Community law before their existence has been established. This
    is because the relevant decisions of the E.C.J., from which the
    propositions of Community law asserted by Mr. Vaughan are
    derived, were all made by reference to rights which the E.C.J.
    was itself then affirming or by reference to the protection of
    rights the existence of which had already been established by
    previous decisions of the E.C.J.

    In the light of the course which I propose that your
    Lordships should take, it would serve no useful purpose for me to
    attempt an analysis of the voluminous Community case law to
    which the main arguments have been directed. It is significant to
    note, however, that Community law embodies a principle which
    appears closely analogous to the principle of English law that
    delegated legislation must be presumed to be valid unless and until
    declared invalid. In Granaria B.V. v. Hoofdproduktschap voor
    Akkerpbouwprodukten
    (Case 101/78) [1979] E.C.R. 623 the validity
    of a regulation made by the Council of the E.E.C. was challenged
    in proceedings before the court of a member state. In answering
    questions referred to it under Article 177 of the Treaty of Rome
    the E.C.J. held that every regulation which is brought into force
    in accordance with the Treaty must be presumed to be valid and
    must be treated as fully effective so long as a competent court
    has not made a finding that it is invalid. On the other hand, in
    Firma Foto-Frost v. Hanptzollamt Lubeck-Ost (Case 314/85) [1988]
    3 C.M.L.R. 57, 80 the E.C.J. said in giving judgment, again on a
    reference under Article 177:

    "It should be added that the rule that national courts may
    not themselves declare Community acts invalid may have to
    be qualified in certain circumstances in the case of
    proceedings relating to an application for interim measures;
    however, that case is not referred to in the national court's
    question."

    In the light of these two authorities and in application of
    the principles laid down by the E.C.J. in S.r.l. Cilfit v. Ministry of
    Health
    (Case 283/81) [1982] ECR 3415, I do not think that it is
    open to your Lordships' House to decide one way or the other
    whether, in relation to the grant of interim protection in the
    circumstances of the instant case, Community law overrides
    English law and either empowers or obliges an English court to
    make an interim order protecting the putative rights claimed by
    the appellants. It follows, I think, that your Lordships are obliged
    under Article 177 of the Treaty to seek a preliminary ruling from
    the E.C.J.. I would propose that the questions to be referred
    should read as follows:

    1. Where - (i) a party before the national court claims to be
    entitled to rights under Community law having direct effect
    in national law ("the rights claimed"), (ii) a national

    - 19 -


    measure in clear terms will, if applied, automatically
    deprive that party of the rights claimed, (iii) there are
    serious arguments both for and against the existence of the
    rights claimed and the national court has sought a
    preliminary ruling under Article 177 as to whether or not
    the rights claimed exist, (iv) the national law presumes the
    national measure in question to be compatible with
    Community law unless and until it is declared incompatible,
    (v) the national court has no power to give interim
    protection to the rights claimed by suspending the
    application of the national measure pending the preliminary
    ruling, (vi) if the preliminary ruling is in the event in
    favour of the rights claimed, the party entitled to those
    rights is likely to have suffered irremediable damage unless
    given such interim protection, does Community law either
    (a) oblige the national court to grant such interim
    protection of the rights claimed; or (b) give the court
    power to grant such interim protection of the rights
    claimed? 2. If question l(a) is answered in the negative and
    question l(b) in the affirmative, what are the criteria to be
    applied in deciding whether or not to grant such interim
    protection of the rights claimed?"

    The adjournment of further consideration of the appeal,
    which must necessarily follow is, I recognise, a most unsatisfactory
    result from the appellants' point of view, and I venture to express
    the hope that the E.C.J. will, so far as their procedures permit,
    treat the reference made by your Lordships' House as one of
    urgency to which priority can be given.

    LORD BRANDON OF OAKBROOK

    My Lords,

    I agree with the speech delivered by my noble and learned
    friend, Lord Bridge of Harwich. I also agree that further
    consideration of the appeal should be adjourned until the European
    Court of Justice has given a preliminary ruling on the questions
    formulated by my noble and learned friend for reference to it.

    LORD OLIVER OF AYLMERTON

    My Lords,

    I have had the advantage of reading in draft the speech of
    my noble and learned friend, Lord Bridge of Harwich with which I
    am in entire agreement. I also agree that the questions posed in
    the speech of my noble and learned friend must be referred to the
    European Court of Justice pursuant to Article 177 of the Treaty
    of Rome and that pending the preliminary ruling of that Court,
    the further consideration of the appeal should be adjourned.

    - 20 -

    LORD GOFF OF CHIEVELEY

    My Lords,

    I agree with the speech to be delivered by my noble and
    learned friend, Lord Bridge of Harwich. I also agree that further
    consideration of the appeal should be adjourned until after the
    questions posed by my noble and learned friend have been
    considered by the European Court of Justice.

    LORD JAUNCEY OF TULLICHETTLE

    My Lords,

    I agree with the speech to be delivered by my noble and
    learned friend, Lord Bridge of Harwich. I also agree that further
    consideration of the appeal should be adjourned until after the
    questions posed by my noble and learned friend have been
    considered by the European Court of Justice.

    - 21 -


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