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	United Kingdom House of Lords Decisions
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: [1989] COD 531, [1989] 2 WLR 997, [1990] 2 AC 85, [1989] UKHL 1, [1989] 2 All ER 692, [1989] 3 CMLR 1

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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] AC 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 -