Chapter 8, which deals with the sources of administrative powers, includes a reference to the law of the European Union, the EU. When the UK became a member of the EC (the pre-Maastricht name for the collection of Member States which recognised the Treaty of Rome), it was agreed that the Treaty of Rome would apply to and be observed in the UK. It will be seen in Chapter 8 that the Treaty of Rome provides the basis for the constitutional and legal framework of the EU. This is now recognised by the European Communities Act 1972 by which Parliament accepts that EU law is superior to UK law and will apply to the exclusion of the latter whenever there is an overlap. The European Communities (Amendment) Act 1986 now extends the scope of the Community following the signing of the Single European Act in February 1986, creating a new single market. Moreover, the European Communities (Amendment) Act 1993 has incorporated the Treaty on European Union (the so-called ‘Maastricht Treaty’), into UK national law and has hence arguably made it a little more likely that the original Treaty of Rome’s goal of an ‘ever closer union among the peoples of Europe’ will be achieved. Consequently, it is necessary to identify three things:
(1) the object of the EU for the purpose of indicating the areas of law where the UK Parliament has accepted the superiority of EU law;
(2) the nature of EU law; and
(3) the characteristics of administrative law and administrative powers as they are affected by EU law.
7.2.1 The object of the EU
Article 2 of the Treaty of Rome specifies that the EU is an economic and mone- tary union of Member States. In general terms, this means that EU law must relate in some way to the economic relationship between Member States.
Accordingly, the more important areas of EU law relate to economic competi- tion, the free movement of goods and the free movement of workers. An exam- ple of EU law in operation is seen in its environmental protection policy and various items of law which have been legislated since 1973 by reference to Articles 2 and 100 of the Treaty, among others. Environmental protection is now recognised explicitly as an area of competence in the Union. Article 100 pro- vides for the harmonisation of such legislation among Member States as affects the establishment or functioning of the Union. The apparent intention behind the EU law in this area is the harmonisation or reconciliation of the pollution laws in the Member States in order to reduce or eliminate disparity between
INTRODUCTION TOADMINISTRATIVELAW
their respective laws in this field. In this way, it is less likely that there will be great disparity in the costs of industrial production in Member States according to the relative laxity of their respective pollution laws. EU law deals with the pollution problem both specifically, in relation to particular problems, and gen- erally. In this latter context of general EU laws, the UK has promoted much leg- islation in recognition of the numerous directives from the Union on the subject of environmental protection. For example, the Directive on Assessment of the Environmental Effects of Major Developments was legislated as regulations under the Town and Country Planning Act.
7.2.2 The nature of EU law
The outstanding characteristic of EU law is that it sets legal standards which are to be observed by and, sometimes, enforced against, governments of Member States, individuals and organisations. In some instances, EU law gives legally enforceable rights and it is often the case that such rights can be enforced in the UK courts, whether the matter is civil or criminal. In pursuing their duty to recognise and implement EU law, the UK courts may find problems in inter- preting that law. The Treaty of Rome states that in these circumstances any such court may, or, in circumstances where there is no judicial remedy under national law against the decision of the court, shall refer the problem of inter- pretation to the European Court of Justice. EU law as interpreted by the Court of Justice will be applied to the facts of the case by the court dealing with the case in the UK. By way of an illustration of the essential nature of much of EU law, one can turn to Article 48 of the Treaty of Rome. Among other things, Article 48 stipulates that there shall be freedom of movement for workers as between the Member States and that there shall be no discrimination for this purpose in relation to employment, remuneration and conditions of employ- ment. This important area of EU law would be infringed where an organisation in one of the Member States has a requirement that its employees shall be nationals of that Member State, for example. Any national of a Member State excluded from employment by such an organisation could well claim a legal right to challenge the legality of the organisation’s employment restriction as being contrary to Article 48 of the Treaty of Rome. There are exceptions to Article 48, and one EU Directive states that it does not apply in various situa- tions, eg where a person is expelled from a Member State and the expulsion is referable to his personal conduct in relation to matters of public policy, public security or public health. Consequently, a deportation order served by the Home Secretary against a national of a Member State under his powers in the Immigration Act 1971 will be perfectly lawful as long as it can be justified under any of the exceptions to Article 48. If the order was challenged in the High Court, it would be found to be ultra viresas contrary to Article 48 if one or more of the exceptions could not be established. The Immigration Act 1988 now ensures that domestic immigration law is fully consistent with EU law. This is
achieved through a statement in the Act that a person shall not require consent to enter or remain in the UK where he has an entitlement to do so by virtue of an enforceable Union right.
7.2.3 Administrative law, administrative powers and EU law
From the previous section it can be seen that an exercise of statutory administra- tive powers may be subject to the limitations of EU law. Where statutory admin- istrative powers are conferred on any administrative agency and are exercisable for purposes which overlap with EU law then those powers must be exercised consistently with EU law. An example from the Immigration Act and Article 48 was given in the previous section and in one of the leading cases, van Duyn v Home Office(1977), the issue related to those immigration powers which permit an immigration officer to refuse entry to the UK. Miss van Duyn was a member of the Church of Scientology which was regarded by the UK government as being an undesirable organisation, for a number of reasons. The government’s attitude to the Church had been made known publicly as had its intention to take steps to curb its activities. As a Dutch national, ie a national of a Member State of the EU, Miss van Duyn sought to enter the UK in order to take up employment at the Church’s college in Sussex. Entry was refused, whereupon Miss van Duyn applied to the High Court for a declaration that she was law- fully entitled to enter the UK to take up employment with the Church.
Following a referral on a matter of interpretation to the European Court of Justice by virtue of Article 177 which was alluded to in the previous section, the basis of the domestic court’s decision to refuse to grant the declaration was that Miss van Duyn’s exclusion came within the ‘public policy’ exception to the legal rights conferred by Article 48. As a result, a government of any Member State can lawfully discriminate against the nationals of another Member State in rela- tion to Article 48, even though the same action might not be taken lawfully against one of its own nationals. Another example goes back to what was said in Chapter 6 about public corporations and, in particular, the agricultural mar- keting boards. It was seen in Chapter 6 that the various agricultural marketing schemes are approved by the Minister of Agriculture and operated by the boards concerned. It was suggested in Potato Marketing Board v Robertsons(1983) that the potato marketing scheme was contrary to certain provisions of EU law.
The issue arose when the Board sued Robertsons, a registered potato producer, for payment of a levy which was due under the scheme. In answer to Robertsons’ claim it was decided by the court that, among other provisions of the Treaty of Rome, the scheme (which provided for quantitative marketing restrictions) did not contravene Article 34 which provides that quantitative restrictions on exports, and all measures having equivalent effect, shall be pro- hibited between Member States. One of the technical reasons for this part of the decision was that the relevant parts of the scheme did not have as their specific object the restriction of patterns of exports.
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A final, more recent example of a case in which it was argued that the exer- cise of statutory administrative powers was subject to the limitations of EU law was the decision in R v London Boroughs Transport Committee, ex p Freight Transport Association Ltd(1991). In this particular case, the applicants, transport associations and operators, sought judicial review of a condition contained in delegated legislation which required the holder of a permit to drive goods vehi- cles in excess of 16.5 tonnes in restricted areas to minimise the noise emitted by the vehicle’s air brake system by the fitting of a noise level suppresser where such a device was capable of being fitted. It was contended on behalf of the applicants that the condition was unlawful since it was, inter alia, incompatible with the requirements of two EU directives on vehicle brake devices and sound levels with which their vehicles complied. However, it was held by the House of Lords that the condition was not unlawful since it did not conflict with either of the Directives which were in fact concerned with matters other than the regu- lation of traffic. Moreover, the condition was lawful under EU law since it reflected the EU’s wider policy of seeking to ensure the protection of the envi- ronment.