2020 – 004 Fishing, Factortame and British sovereignty.

Nearly two years after the UK voted by a narrow margin to leave the EU, the government is still working out how it will “take back control” from Brussels.

The fragile relationship that the UK has had with the trading bloc over the vexed issue of sovereignty was epitomised by the long-running Factortame case in the 90s, which concerned the rights of Spanish fisherman to fish in British waters. When and if we do finally leave the EU, lawyers think that the case’s principles will once again be thrown into the spotlight.

In 1988, the Eurosceptic Conservative government introduced the Merchant Shipping Act to negate the impact of the EU’s common fisheries policy. It restricted access to British waters and prevented foreign-owned vessels from re-registering as British ships in order to sell their catches in Europe, but count them against the British fishing quota (a practice known as “quota-hopping”).

However, the European Court of Justice ruled that this legislation broke European law. It said that the act, which provided that only British-owned boats were entitled to a share of the national fishing quota, was inconsistent with the most basic principles of European law: the freedom of movement and capital, and the right of establishment.

Five law lords in the House of Lords unanimously ruled that the breach was serious enough to entitle the fisherman to claim compensation.

Before Factortame that fact had not been widely understood, even though it had been decades since the UK had joined the European Economic Community in 1973. After the judgments, says Pannick, there was no longer any excuse for ignorance.

David Greene is a senior partner at Edwin Coe, whose firm acted in the case. He more recently represented the hairdresser Deir Tozetti Dos Santos, who took the case with Gina Miller to the Supreme Court, successfully arguing that parliament had to legislate before triggering Article 50. When the case heard by the Court of Appeal, it led to the infamous Daily Mail headline branding the three judges – the lord chief justice, Lord Thomas, the master of the rolls Sir Terence Etherton, and Lord Justice Sales – “enemies of the people” for what the paper claimed was the court’s attempt to block Brexit.

Greene recalls how badly the establishment and commentators reacted to the Factortame decision at the time, painting it as an attack on British sovereignty by the ECJ and an attack on parliamentary sovereignty by the courts. “Not too unlike the Article 50 case, it did not make the judges the ‘enemies of the people’, but it did put into question sovereignty,” he says.

“As in the Article 50 case, parliament had conceded in the Rome Treaty and the European Communities Act the supremacy of EC law and ceded sovereignty to the community. The judgment simply reflected that – but many saw it otherwise.”

He says the case is now seen as “groundbreaking but not revolutionary”, and suggests its principles will be wheeled out again and again if we leave with a deal, because the withdrawal agreement and withdrawal bill are based on the supremacy of EU law in the transition period (even though we will not then be a member).

Carl Gardner, a former government lawyer who has negotiated for the UK and defended the government in the European courts, says that while the decision came as a shock to the British legal system, it came as “even more of a shock to the political system”.

He suggests that along with the Maastricht Treaty in the early 90s, the decision in Factortame helped stoke Euroscepticism.

“The experience made politicians more defensive of sovereignty,” he suggests. He also believes the “scars Factortame left” are reflected in the Human Rights Act, which carefully avoided letting judges disapply acts of parliament. “If we’re tempted to think we’ll soon be free of Factortame, we’re wrong,” he says. “Any withdrawal agreement is likely to prevail over our own law.

“I’m not sure we’ll ever hear the last of Factortame, which leaves as permanent a mark on our law and politics as any case ever decided by the court.”