R v Transport Secretary, ex parte Factortame Ltd (No 2) [1991] 1 AC 603

 Key Points

  • An Act of Parliament was disapplied by the courts for the first time in the UK’s constitutional history.
  • The supremacy of EU law over Acts of Parliament was reaffirmed.
  • The disapplication of an Act of Parliament required an academic reconsideration of the form in which parliamentary sovereignty presently exists (or doesn’t exist).


  • Within the EU, the Common Fisheries Policy allocates a quota of fish that ships from each country is allowed to catch
  • Some Spanish vessels were registering in the United Kingdom in order to take advantage of the UK’s quota, despite the fact that these ships did not have genuine economic links to the UK economy
  • In an attempt to plug this loophole in the legislation, the Government passed the Merchant Shipping Act 1988 (MSA 1988), under which, UK-registered fishing vessels would need to be at least 75% owned by UK residents
  • Spanish sailors argued that the provisions in the MSA 1988 were contrary to European Community law, because they were effectively discriminatory on the grounds of nationality and sought interim relief
  • Factortame I, in which the House of Lords refused to grant the applicants interim relief on the basis that they did not have the capacity to do so, had seen an application made to the ECJ for preliminary ruling on the matter.
  • The ECJ ruling (Case C-213/89) held that national courts have a duty to grant interim relief to protect Community Rights in the face of potentially conflicting domestic law. This meant the court would be required to disapply any conflicting national law which would get in the way.

Held (House of Lords)

  • The MSA 1988 is in conflict with EC law; interim relief granted to disapply the Act

Lord Bridge

  • Because the UK Parliament had passed the European Communities Act 1972 which gave EU law supremacy, any constraints on the freedom of Parliament were “entirely voluntary” [p. 629 of judgment] and therefore did not represent an actual limitation on parliamentary sovereignty.


  • Taking Lord Bridge’s argument in isolation, it is very much logical and does not present a problem: constraints which are accepted and rejected voluntarily do not present any real problem to sovereignty
  • But, in a broader constitutional context, it is evident that Lord Bridge’s argument is flawed, because it presupposes that Parliament can accept constraints on its sovereignty, which is not necessarily true if we take parliamentary sovereignty as being ‘continuing’ i.e. Parliament cannot bind its successors, as set out by Dicey
  • Lord Bridge’s conception of parliamentary sovereignty means that parliamentary sovereignty is ‘self-embracing’ i.e. Parliament can bind its successors
Parliamentary Sovereignty cases
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