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[1991] 1 All E.R. 70.
The Times, June 21, 1990.
The nationality requirements laid down in the Merchant Shipping Act 1988, section 14.
Case 246/89R [1989] E.C.R. 3125; [1989]3 C.M.L.R. 601.
The Merchant Shipping Act 1988 (Amendment) Order 1989; SI 1989/2006.
[1991] 1 All E.R. 70, judgment of the H.L. at 106.
[1991] 3 All E.R. 769.
For an account of the story so far, plus interesting commentary, see Nigel Gravells, “Dissaplying an Act of Parliament pending a Preliminary Runing: Constitutional Enormity or Community Law Right”, [1989]Public Law 568, and “Effective Protection of Community Law Rights: Temporary Disapplication of an Act of Parliament”, [1991]Public Law 180.
Still manifested in Prerogative Orders in Council, which came into the limelight inCouncil of Civil Service Unions v.Minister for the Civil Service [1985] A.C. 763.
(1611) 12 Co. Rep. 74.
Marbury v.Maddison 1 Cranch 137 (1803). See also C.B. Swisher,Historic Decisions of the Supreme Court, Van Nostrand, 1979, Case 1.
The Scottish Courts had no such tradition of deference. See, for example, the judgment of Lord President Cooper inMacCormick v.Lord Advocate (1953) S.L.T. 255.
The apotheosis of this traditional approach being found inBritish Railways Board v.Pickin [1974] A.C. 765.
The War Damage Act 1965 being an infamous example.
This is implicit in their Lordships' judgments inR. v.Secretary of State for Transport, Ex parte Factortame (no.2)[1991] 1 All E.R. 70 (see, for instance, Lord Bridge at 107–108), but it had already been clearly foreshadowed in the judgment of Lord Diplock inGarland v.B.R.E.L. [1983] A.C. 751 and, indeed, inR. v.Secretary of State for Transport, Ex Parte Factortame [1989] 2 ALL E.R. 692; [1990] 2 AC 85.
As indeed are Common Law rules that impede the protection of Community rights. See paras. 20 and 21 of the judgment of the Court of Justice inR. v.Secretary of State for Transport, Ex parte Factortame (No. 2) [1991] 1 All E.R. 70, at 105.
See the judgment of Lord Diplock inGarland v.B.R.E.L. [1983] A.C. 751.
S.A. de Smith and R. Brazier,Constitutional and Administrative Law, Penguin Books, 6th ed., 1989, 82.
Judgment of the Court of Justice inAmministrazione delle Finanze dello Stato v.Simmenthal SpA (no. 2) [1978] 3 C.M.L.R. 263, at 283.
As manifested inNV Algemene Transport — en Expeditie Onderneming van Gend en Loos v.Nederlandse administratie der belastingen Case 26/62 [1963] E.C.R. 1.
As inVan Duyn v.Home Office [1975] Ch. 358.
And inR. v.Secretary of State for Transport, Ex parte Factortame (No. 2) [1991] 3 All E.R. 769, the Court of Justice has ruled that the offending parts of the Merchant Shipping Act 1988 should be neither.
Sir Ivor Jennings,The Law and the Constitution (5th ed.), London University Press, 1959, 170–171.
At Manchester Crown Court, Mr. Justice Morland declined jurisdiction to try Mr. Leslie Huckfield on charges under the Theft Act 1968, for alleged cheating on expenses whilst he was an M.E.P., on the ground that this would be an infringement of the sovereignty of the European parliament. (The Times, September 5, 1991. Reported as an item of Home News).
De Smith and Brazier,supra n.22 at 75.
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Dexter, R. Supremacy of parliament or sovereignty of the people — Just what is the Court of Justice supposed to be threatening?. Liverpool Law Rev 13, 167–176 (1991). https://doi.org/10.1007/BF01079905
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DOI: https://doi.org/10.1007/BF01079905