Factortame Case

The case first came to prominence when a Spanish fishing company called Factortame appealed in the UK courts against restrictions imposed on them by the UK government under the Merchant Shipping Act 1988 . A section of the Act prevented companies using foreign ships registered as British vessels from fishing in UK waters. Factortame's argument was that they were permitted to fish under the law of the European Economic Community (which became the EU in 1992 ). The case reached the High Court Of Justice Of England And Wales , which obtained an injunction from the European Court Of Justice (ECJ) to temporarily suspend the Secretary Of State For Transport from enforcing the particular part of the Act. However, on 22 March , 1989 , this was overturned by the Court Of Appeal Of England And Wales on the basis that the constitution did not give any court the right to suspend Acts of Parliament, and this was confirmed by the House Of Lords , the highest court in the UK.

The House of Lords ruling that they did not have the power to suspend Acts Of Parliament was then referred to the European Court of Justice by the House of Lords in 1990 , as was legally required. The ECJ in June 1990 ruled that national courts could strike down laws which contravened EU law. Consequently, the House of Lords ruled in favour of Factortame, meaning that in effect the Merchant Fishing Act 1988 was struck down.

This appears to be a breach of Parliamentary Sovereignty , which holds that Parliament is the supreme law making body and no-one can override its legislation. Factortame is an example of law courts not acting by the law created by Parliament. Effectively, the House of Lords have been given the power to strike down Acts of Parliament which contravene EU law.

With regards to sovereignty, the case can be interpreted in more than one way. It can be interpreted as not being an erosion of Parliament's (and therefore the UK's) sovereignty, because Parliament could repeal the European Communities Act (''i.e.'', leave the EU) with a majority vote. However, as this seems very unlikely to happen either now or in the future, it can be interpreted as a permanent loss of political sovereignty. Although legally the UK could leave the EU, politically that is very unlikely, especially considering how complex it would be to disentangle the UK from the EU, and also how damaging withdrawal could be both economically and to the UK's reputation within Europe. In conclusion, it seems that although the UK still has legal sovereignty, its political sovereignty was very much reduced by the ruling.

The Factortame case is often cited as evidence for the erosion of UK sovereignty and independence by movements such as the Referendum Party .

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Factortame Case