Gerry Moynihan QC delivers speech at Four Jurisdictions Law Conference: Cross border issues.
3 May 2008
Differential implementation under a devolved constitution
In 1701 life was simpler with the judiciary resigned to Parliamentary sovereignty, though not uncritically:
"... an Act of Parliament can do no wrong, though it may do several things that look pretty odd; ..." (City of London v Wood (1701) 12 Mod.Rep. 669, 687-688, per Holt C.J.)
We can leap over the fact that that statement was uttered 6 years before the union of the Parliaments of Scotland and England because as late as 1980 it was applied in the House of Lords (in Duport Steels Ltd. v Sirs  1WLR 142) roundly to criticise an eminent bench in the Court of Appeal which had granted an interim injunction to restrain secondary picketing contrary to the then scope of Trade Union immunity from civil liability under the Trade Union and Labour Relations Act 1974.
By 1980 the scope of (Westminster) Parliamentary sovereignty had been curtailed by the European Communities Act 1972 and it has since been further undermined by the New Labour agenda of constitutional reform that, in 1998, gave us the Human Rights Act, the Scotland Act, the Government of Wales Act and the Northern Ireland Act.
The fundamental change brought about by this legislation was to be seen in Whaley v Watson 2000 SC 340, in which members of the fox hunting community sought to persuade the court to forbid the introduction of a Bill in the Scottish Parliament prohibiting mounted fox hunting. This particular action failed, essentially on the grounds of prematurity. In due course the Bill, enacted as the Protection of Wild Mammals (Scotland) Act 2002, was subjected to judicial review, though to date its validity has been upheld: see Whaley v Lord Advocate 2007 SLT 1209. The challenge to both the Bill and the Act may have failed but it has afforded an opportunity for a close consideration of the new constitutional arrangements and, in particular, has led to recognition that the Scottish Parliament is not sovereign and is, accordingly, subject to the rule of law.
"Some of the arguments of counsel for the first respondent appeared to suggest that it was somehow inconsistent with the very idea of a parliament that it should be subject in this way to the law of the land and to the jurisdiction of the courts which uphold the law. I do not share that view. On the contrary, if anything, it is the Westminster Parliament which is unusual in being respected as sovereign by the courts. And, now, of course, certain inroads have been made into even that sovereignty by the European Communities Act 1972. By contrast, in many democracies throughout the Commonwealth, for example, even where the parliaments have been modelled in some respects on Westminster, they owe their existence and powers to statute and are in various ways subject to the law and to the courts which act to uphold the law. The Scottish Parliament has simply joined that wider family of parliaments. Indeed I find it almost paradoxical that counsel for a member of a body which exists to create laws and to impose them on others should contend that a legally enforceable framework is somehow less than appropriate for that body itself." (Lord President (Rodger) in Whaley v Lord Watson 2000 SC 340, at page 349)
As is well known, the competence of the devolved administrations is circumscribed by a duty to act in accordance with Community Law and Convention rights. For the Scottish Parliament the reference is to section 29(2)(d) of the Scotland Act, and for Scottish Ministers (i.e. the Scottish Government) it is section 57(2).
In her article on "Devolution and Community Law" in "A True European. Essays for Judge David Edward" (ed. Hoskins & Robinson, 2003) Christine Boch asks the question whether Community Law's general principle of equality might limit the discretion of the devolved administrations in relation to the implementation of Community Law. She initially tentatively suggests that where the Community legislature has left some discretion to Member States there does not appear to be any reason why each devolved administration should not be entitled to exercise the discretion separately but ultimately seems to regard the question as unresolved (see pages 57-58). Her doubt has since been taken up in a reference to the ECJ by the English Courts in R (Horvath) v Secretary of State for Environment, Food and Rural Affairs  EWCA Civ 620,  Eu LR 770.
Before considering this question it is necessary to set the scene.
Plainly devolution was intended to promote more local decision-making but it has also effected radical constitutional shifts in the traditional separation of powers.
1. Firstly, the legislature that has responsibility for lawmaking in Scotland across substantial areas of daily living is directly subject to judicial control. The Scottish Parliament "may make laws" (Scotland Act 1998, section 28(1)) but the Act proceeds rather quaintly to say that an Act of the Scottish Parliament "is not law so far as any provision of the Act is outside the legislative competence of the Parliament" (section 29(1)). Courts considering, for example, the Convention compatibility of Scottish legislation can go beyond the political act of declaring it to be incompatible to the ultimate legal remedy of declaring it not to be law either from the outset or (under section 102 of the Act) from some later date if it is felt appropriate to mitigate the impact of a retrospective finding of nullity. Thus, when the fox hunting challenges went before the House of Lords the objective of the English hearing (at least so far as it depended on human rights) was only a declaration of incompatibility, whereas in the Scottish appeal (Whaley v Lord Advocate 2007 SLT 1209) the courts were being asked at their own hand to lift the ban.
2. It is little known that this enhanced opportunity for judicial control extends, to some extent, to Westminster legislation. Section 57(2) of the Scotland Act provides that "A member of the Scottish Executive has no power to make any subordinate legislation, or do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law". Apart from the Lord Advocate in her role as prosecutor (to which section 57(3) applies), members of the Scottish Government cannot invoke the defence under section 6(2) of the Human Rights Act that they are acting in implement of Westminster legislation, with the result that Westminster legislation which is dependent on executive action by the Scottish Government cannot be implemented in Scotland if implementation would be incompatible with Convention rights. In that regard the Scottish Government is placed at a comparative disadvantage relative to other UK public bodies, including other Scottish public bodies, but the explanation may simply be that in relation to devolved matters the Scottish Government (acting through the Parliament) has the freedom to amend the Westminster legislation and is, therefore, not bound to implement it.
3. The constitutional settlement in Scotland has also resulted in a differential implementation of the Human Rights Act. The Human Rights Act provides domestic remedies for the enforcement of Convention rights, subject to a time bar of one year, extendable in equitable circumstances: section 7(5). In Scotland Convention rights were rendered domestically enforceable some 18 months earlier by subjecting the competence of both the Scottish Parliament and the Scottish Executive (now the Scottish Government) to a requirement of compliance with Convention rights: sections 29(2)(d) and 57(2) of the Scotland Act. Neither of those sections, nor the remedy provision in section 100 of the Act, has an equivalent time bar restriction and the House of Lords has held (in Somerville v Scottish Ministers 2007 SLT 1113) that the section 7(5) time bar has no relevance to claims for human rights violations against the Scottish Government under the Scotland Act. It follows that the Scottish Government is exposed to claims for human rights violations over a longer period than any other UK public body.
Different legislative choices
It is of the essence of a project of devolution that it not only may result in different legislative measures in each part of the United Kingdom but it is, in fact, intended to facilitate just such a result as a means of giving expression to the principle of democratic subsidiarity.
The question is to what extent the scope for legislative choice is curtailed by controls on legislative competence through the requirements to comply with Convention rights and Community Law.
Quite apart from the reference in Horvath to which I will refer, this is a topical subject because of the wide ranging opinion of Advocate General (Sharpston) in Case C-212/06 Government of the French Community & Walloon Government v Flemish Government (28 June 2007) questioning the justification for the principle that Community law does not apply to purely internal situations. The Court, in its judgement dated 1st April 2008, affirmed the traditional rule (see paragraph 38) but plainly the issue has been raised.
It is a familiar proposition that the European Court of Human Rights accords Member States a margin of appreciation in implementation of human rights, the scope of the permissible margin varying according to circumstance, including the significance of the right in question.
The domestic equivalent is sometimes referred to as the discretionary area of judgment (see Lord Hope in R v DPP, ex p. Kebilene  3 WLR 972 at pp. 993-4). That is to be preferred to the language of "deference" (see, e.g., R (ProLife Alliance) v BBC  1 AC 185, at paras 74-77, per Lord Hoffmann; and Huang v Home Secretary  2AC 167, at para. 16, per Lord Bingham). The problem with the latter term is that it implies subservience or servility and a measure of reluctance to discharge functions incumbent on the courts, whereas the former more accurately reflects the jurisprudential basis for the margin afforded to decision makers: it is consequential on the nature of the courts' supervisory jurisdiction, being confined to checking the legality, rather than the merits, of the decision reached.
Whatever term is applied, however, is of secondary importance. The fact is that a variable margin is accorded to decision-makers.
One interesting example of the margin of appreciation is the case of Handyside v United Kingdom (1979-1980) 1 EHRR 737 because it involved not only (a) differences as between the United Kingdom and other States but also (b) variations as between different jurisdictions within the UK.
The case concerned the distribution of a translation of a sex manual (The Little Red Book) intended to be read by children. The book was freely available in a variety of languages in the majority of Member States of the Council of Europe but it occasioned controversy in the UK and was the subject of a prosecution and conviction in England. No action was taken in Northern Ireland. In Scotland there was a prosecution but the accused was acquitted. The convicted publisher took his case to Strasbourg relying on, among other rights, interference with his freedom of expression. The UK relied upon the Article 10(2) exception in favour of the protection of morals but the publisher argued that the differential approaches as between the various jurisdictions within the UK and between the UK and other States was inconsistent with the view that a restriction on publication could be justified as being "necessary in a democratic society".
The European Court of Human Rights rejected the publisher's argument and strongly affirmed the State's right to reach independent moral judgments based on local considerations. I quote from paragraph 48:
"The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (judgment of 23 July 1968 on the merits of the "Belgian Linguistic" case, Series A no. 6, p. 35, para. 10 in fine). The Convention leaves to each Contracting State, in the first place, the task of securing the rights and liberties it enshrines. The institutions created by it make their own contribution to this task but they become involved only through contentious proceedings and once all domestic remedies have been exhausted (Article 26) (art. 26).
These observations apply, notably, to Article 10 para. 2 (art. 10-2). In particular, it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the "necessity" of a "restriction" or "penalty" intended to meet them. The Court notes at this juncture that, whilst the adjective "necessary", within the meaning of Article 10 para. 2 (art. 10-2), is not synonymous with "indispensable" (cf., in Articles 2 para. 2 (art. 2-2) and 6 para. 1 (art. 6-1), the words "absolutely necessary" and "strictly necessary" and, in Article 15 para. 1 (art. 15-1), the phrase "to the extent strictly required by the exigencies of the situation"), neither has it the flexibility of such expressions as "admissible", "ordinary" (cf. Article 4 para. 3) (art. 4-3), "useful" (cf. the French text of the first paragraph of Article 1 of Protocol No. 1) (P1-1), "reasonable" (cf. Articles 5 para. 3 and 6 para. 1) (art. 5-3, art. 6-1) or "desirable". Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of "necessity" in this context.
Consequently, Article 10 para. 2 (art. 10-2) leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator ("prescribed by law") and to the bodies, judicial amongst others, that are called upon to interpret and apply the laws in force (Engel and others judgment of 8 June 1976, Series A no. 22, pp. 41-42, para. 100; cf., for Article 8 para. 2 (art. 8-2), De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93, and the Golder judgment of 21 February 1975, Series A no. 18, pp. 21-22, para. 45)."
That passage more naturally reads as permitting two different States to adopt different policies but it is equally applicable to different discretionary judgments taken by subordinate authorities within the one State, as is evident from the more specific discussion at paragraph 54.
"A series of arguments which merit reflection was advanced by the applicant and the minority of the Commission concerning the "necessity" of the sentence and the forfeiture at issue.
Firstly, they drew attention to the fact that the original edition of the Schoolbook was the object of no proceedings in Northern Ireland, the Isle of Man and the Channel Islands and of no conviction in Scotland and that, even in England and Wales, thousands of copies circulated without impediment despite the judgment of 29 October 1971.
The Court recalls that section 5 (3) of the 1959/1964 Acts provides that they shall not extend to Scotland or to Northern Ireland (paragraph 25 in fine above). Above all, it must not be forgotten that the Convention, as is shown especially by its Article 60 (art. 60), never puts the various organs of the Contracting States under an obligation to limit the rights and freedoms it guarantees. In particular, in no case does Article 10 para. 2 (art. 10-2) compel them to impose "restrictions" or "penalties" in the field of freedom of expression; it in no way prevents them from not availing themselves of the expedients it provides for them (cf. the words "may be subject"). The competent authorities in Northern Ireland, the Isle of Man and the Channel Islands may, in the light of local conditions, have had plausible reasons for not taking action against the book and its publisher, as may the Scottish Procurator Fiscal for not summonsing Mr. Handyside to appear in person in Edinburgh after the dismissal of the complaint under Scottish law against Stage 1 in respect of the revised edition (paragraph 19 above). Their failure to act - into which the Court does not have to enquire and which did not prevent the measures taken in England from leading to revision of the Schoolbook - does not prove that the judgment of 29 October 1971 was not a response to a real necessity, bearing in mind the national authorities' margin of appreciation.
These remarks also apply, mutatis mutandis, to the circulation of many copies in England and Wales."
The Court was prepared to assume that the authorities in the various other parts of the UK may have had "plausible reasons" for inaction "in the light of local conditions". A difference in treatment in like circumstances has to be objectively justified but, plainly, the Court was not expecting uniformity throughout the UK; quite the reverse.
Other ECHR cases may be cited as illustrations of the same tolerance of differences in legislative regimes within the UK, differences between the various jurisdictions being viewed as geographically based and therefore not raising a question of "status" such as to engage Article 14. They include:
• Nelson v UK (1986) 49 DR 170 (young offender detained in Scotland allegedly more harshly treated than a comparable English convicted minor)
• Magee v UK (2001) 31 EHRR 35 (rights of a person detained by police to consult a solicitor and inferences drawn from silence).
The foxhunting litigations may also be cited in this context.
There were two challenges to the validity of the Scottish legislation: the Protection of Wild Mammals (Scotland) Act 2002. Both were primarily advanced on Convention grounds and neither featured any Community Law argument. The first (Adams v Scottish Ministers 2004 SC 665 and 2003 SC 171) was at the instance of various interests acting under the auspices of the Countryside Alliance and those proceedings did not go to the House of Lords. It was the second judicial review (reported as Friend v Lord Advocate 2006 SC 121 - in the Court of Session - and Whalley v Lord Advocate 2007 SLT 1209 (HL)) that ultimately went to the House of Lords. It was initially brought by two individuals who acted on their own behalf, Mr. Whalley and Mr. Friend, though Mr. Whalley in fact dropped out after the hearing at first instance
By the time the second judicial review began its progress through the Scottish courts the English Hunting Act 2004 had been passed and when the two Acts came up for consideration by the House of Lords nothing was thought to turn on the differences in detail between them. The two Acts were viewed as simply variants of one common legislative judgment that traditional mounted fox hunting should be banned on moral grounds (compare Whaley v Lord Advocate 2007 SLT 1209; and R (Countryside Alliance) v A-G  3 WLR 922). The second judicial review, accordingly, tells us nothing about differential legislation.
However, there is considerably more significance in the first judicial review (i.e. Adams). Both at the time when the Scottish Act was passed and when the first judicial review was considered by the Scottish Courts it was not clear whether there would be any legislation in England, let alone that Westminster would opt for a corresponding ban, as opposed to some form of regulation of the pursuit. Both at first instance and on appeal in the Court of Session the legislation was upheld by reference to Handyside as a legitimate exercise of moral judgment by the Scottish Parliament. Given that the judges reached that conclusion not knowing if there would be any corresponding legislation in England, it is clear that the decisions of the Court of Session in Adams are authority for the proposition, consistent with Handyside, that one devolved administration may give effect to its own local policy judgment even if that results in a difference in the law relative to other parts of the UK.
Community Law: the downside of devolution
Devolution may have its own bureaucratic inconveniences.
Take the Commission Directive 2006/141/EC of 22 December 2006 on infant formulae and follow-on formulae feedstuffs. Its predecessor was issued pre-devolution in 1991 and was implemented throughout Great Britain by a single Statutory Instrument. Despite the fact that there was relative uniformity in the market for infant feedstuffs throughout the UK the updated 2006 Directive was implemented by 4 sets of regulations, one for each country. The domestic regulations were based on the same model and in each case prohibited sale of feedstuffs with non-compliant labelling from 11th January 2008, whereas the Directive had allowed a transitional period to 31 December 2009. Because the Directive had been implemented by 4 sets of regulations the UK trade association had to raise separate proceedings in Northern Ireland, England (& Wales) and Scotland. Interim suspension of the regulations was granted in Northern Ireland and by the High Court in England (covering both the English and Welsh Regulations) but refused by the Court of Session in Scotland (The Infant & Dietetic Foods Association Ltd, Petitioners 2008 SLT 137), the Scottish decision turning on an assessment of the balance of convenience, the court not being satisfied that there was a sufficiently realistic prospect of a prosecution in the few weeks between the interim orders hearing and the full hearing on the application for judicial review.
The English and Welsh Regulations have subsequently been found to have failed properly to transpose the Directive into domestic law (see The Infant & Dietetic Foods Association v Secretary of State for Health  EWHC 575 (Admin)) and the decision of the Court of Session, following a full hearing, is awaited.
The multiplication of effort by implementing the one Directive through 4 similar sets of regulations is hardly one of the successes of devolution, particularly since it necessitates multiple litigations in the event of a challenge, and certainly is undesirable if it exposes parties to inconsistent decisions in the courts.
Community Law: differential implementation
The infant formulae cases reflect a bureaucratic multiplication of effort involving no separate legislative choice. That raises no issue of constitutional principle. A more relevant case in point is R (Horvath) v Secretary of State for Environment, Food and Rural Affairs  EWCA Civ 620,  Eu LR 770, which specifically addresses the validity, from a Community Law perspective, of differences in the domestic application of Community Law.
The background is, to paraphrase May LJ, the less than snappily entitled Common Agricultural Policy Single Payment & Support Schemes (Cross Compliance) (England) Regulations 2004 passed to implement, in England, the provisions of Council Regulation (EC) No. 1782/2003. Eligibility for payments under the Common Agricultural Policy depends on farmers maintaining their land in accordance with minimum standards for good agricultural and environmental condition. The Council Regulation requires the relevant minimum standards to be set by Member States "at national or regional level ... taking into account the specific characteristics of the areas concerned, including soil and climatic condition, existing farming systems, land use, crop rotation, farming practices, and farm structures". Again the Regulation was implemented by a series of country specific statutory instruments but on this occasion there were local variations. The English Regulations included within the minimum standards a requirement relating to maintenance of public rights of way, which has no equivalent in, for example, the equally inventively named Scottish Statutory Instrument, the Common Agricultural Policy Single Farm Payment & Support Schemes (S) Regulations 2005.
Mr. Horvath, a Suffolk farmer, challenged the validity of the English Regulations on two grounds: the first being that the maintenance of public rights of way was beyond the scope of the Community Regulation; and the second was that the imposition of this additional requirement uniquely in England amounted to unlawful discrimination. At first instance ( EWHC Admin 1833 and  Eu LR 123) Crane J decided to make a reference to the ECJ on both points. He was appealed only in relation to the discrimination issue and the Court of Appeal upheld the reference on the view that the point could not be regarded as acte claire.
Two points are clear.
1. There is no doubt that, despite devolution, it is the UK Government that is answerable to the ECJ and other Community authorities for what is done in any part of the UK. What is more, the UK Government is directly answerable for the end result, there being no need to consider whether the problem arose because of lack of guidance from the UK Government to the devolved administrations or because those administrations chose to act independently. Those propositions follow from the decision in Commission v Germany (1988) Case 8/88 ECR 1990 page 1-02321.
2. Secondly, the question only arises where there is a margin for appreciation in the implementation of Community Law domestically. If different solutions would be equally valid as between two Member States, is there any reason in principle why they should not be similarly valid if enacted by two competent authorities within the one Member State?
As the Court of Appeal notes, there is one domestic authority in point and it is a decision of the Northern Ireland Court of Appeal in An Application by Joseph McPartland for Judicial Review  NICA 22.
The case concerned an individual who had been convicted of firearms and explosives offences and sentenced to 10 years imprisonment and who subsequently applied for a licence to operate a bus service. Eligibility for such a licence had been harmonised by Council Directives 74/562/EEC and 89/438/EEC and was subject to a fit and proper person test, the content of which was to be determined in part by Member States. Under the Northern Ireland test the applicant was absolutely disqualified by reason of his conviction but in England a Traffic Commissioner would have had discretion to disregard it, if sufficient time had elapsed since conviction. The applicant challenged the validity of the Northern Ireland rules because of this difference but the Court of Appeal dismissed his case. The judgment is that of Carswell LCJ and the crux of the decision is in these terms.
"We consider that Directive 89/438 left it open to Member States to apply either their own domestic rehabilitation legislation or some other measure having an equivalent effect. As Mr Barling pointed out, the Community has consistently left matters relating to the criminal law to Member States and they are free to adopt any type of rehabilitation legislation. We do not think that if a Member State has a formal rehabilitation statute it is bound to use that exclusively as a standard in the present context; if it chooses to allow the application of a more lenient standard, as was the case in England, it is in our view free to do so.
It is, we agree, surprising, and it might be regarded as undesirable, that the law should differ markedly between two different constituent parts of the United Kingdom. But we would regard that as a matter of policy for the Government to address, determining whether differences in social or other conditions justify the maintenance of a different provision in each jurisdiction. It is sufficient for present purposes that the harmonising imperative contained in the Directive does not in our view invalidate the law of either merely because they differ."
The EU Treaty now incorporates the principle of subsidiarity (see Article 5 EU) and that is very much consistent with the proposition that, if there is room for different discretionary decisions, regional legislatures within one Member State can be left to determine what is best for local circumstances. One has to factor in the principle of equality, which is to the effect that like cases should be treated alike and different cases treated differently; but that begs the question who is to determine whether two cases are alike or different. As is implicit in the judgment of Carswell LCJ, differences in social or other conditions as between the constituent parts of the UK may well justify the adoption of a different measures in each jurisdiction and, if they do, there is no reason in principle why the legal systems may not differ. There is no reason in principle why Scots Law should not differ from English Law, just as both may differ from French Law, provided that is that the differences fall within the margin of appreciation.
There is ECJ authority consistent with the conclusion reached in McPartland: Case 34/79 R v Henn & Darby  ECR 3795; and C 145/88 Torfaen BC v B & Q plc  ECR 3851.
Like Handyside, the case of Henn & Darby concerned the varied domestic prohibitions relevant to the importation of pornographic literature attacked under (now) Article 28 EU and defended by the UK on the grounds of public morality under (now) Article 30 EU (formerly Article 36). The question whether the derogation in favour of public morality had to be uniformly applied in each of the constituent parts of the UK was central to the case and the ECJ ruled that uniformity was not required.
"15. Under the terms of article 36 of the Treaty the provisions relating to the free movement of goods within the Community are not to preclude prohibitions on imports which are justified, inter alia, "on grounds of public morality." In principle, it is for each member state to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory. In any event, it cannot be disputed that the statutory provisions applied by the United Kingdom in regard to the importation of articles having an indecent or obscene character come within the powers reserved to the member states by the first sentence of article 36.
16. Each member state is entitled to impose prohibitions on imports justified on grounds of public morality for the whole of its territory, as defined in article 227 of the Treaty, whatever the structure of its constitution may be and however the powers of legislating in regard to the subject in question may be distributed. The fact that certain differences exist between the laws enforced in the different constituent parts of a member state does not thereby prevent that state from applying a unitary concept in regard to prohibitions on imports imposed, on grounds of public morality, on trade with other member states.
17. The answer to the second and third questions must therefore be that the first sentence of article 36 upon its true construction means that a member state may, in principle, lawfully impose prohibitions on the importation from any other member state of articles which are of an indecent or obscene character as understood by its domestic laws and that such prohibitions may lawfully be applied to the whole of its national territory even if, in regard to the field in question, variations exist between the laws in force in the different constituent parts of the member state concerned.
Fourth, fifth and sixth questions
18. The fourth, fifth and sixth questions are framed in the following terms:
"4. If a prohibition on the importation of goods is justifiable on grounds of public morality or public policy, and imposed with that purpose, can that prohibition nevertheless amount to a means of arbitrary discrimination or a disguised restriction on trade contrary to article 36? ....
19. In these questions the House of Lords takes account of the appellants' submissions based upon certain differences between, on the one hand, the prohibition on importing the goods in question, which is absolute, and, on the other, the laws in force in the various constituent parts of the United Kingdom, which appear to be less strict in the sense that the mere possession of obscene articles for non-commercial purposes does not constitute a criminal offence anywhere in the United Kingdom and that, even if it is generally forbidden, trade in such articles is subject to certain exceptions, notably those in favour of articles having scientific. literary, artistic or educational interest. Having regard to those differences, the question has been raised whether the prohibition on imports might not come within the second sentence of article 36.
20. According to the second sentence of article 36 the restrictions on imports referred to in the first sentence may not "constitute a means of arbitrary discrimination or a disguised restriction on trade between member states."
21. In order to answer the questions which have been referred to the court it is appropriate to have regard to the function of this provision, which is designed to prevent restrictions on trade based on the grounds mentioned in the first sentence of article 36 from being diverted from their proper purpose and used in such a way as either to create discrimination in respect of goods originating in other member states or indirectly to protect certain national products. That is not the purport of a prohibition, such as that in force in the United Kingdom, on the importation of articles which are of an indecent or obscene character. Whatever may be the differences between the laws on this subject in force in the different constituent parts of the United Kingdom, and notwithstanding the fact that they contain certain exceptions of limited scope, these laws, taken as a whole, have as their purpose the prohibition, or at least the restraining, of the manufacture and marketing of publications or articles of an indecent or obscene character. In these circumstances it is permissible to conclude, on a comprehensive view, that there is no lawful trade in such goods in the United Kingdom. A prohibition on imports which may in certain respects be more strict than some of the laws applied within the United Kingdom cannot therefore be regarded as amounting to a measure designed to give indirect protection to some national product or aimed at creating arbitrary discrimination between goods of this type depending on whether they are produced within the national territory or another member state.
22. The answer to the fourth question must therefore be that if a prohibition on the importation of goods is justifiable on grounds of public morality and if it is imposed with that purpose the enforcement of that prohibition cannot, in the absence within the member state concerned of a lawful trade in the same goods, constitute a means of arbitrary discrimination or a disguised restriction on trade contrary to article 36."
The Henn & Darby case may be viewed as one where the various countries arrived at essentially the same practical result by different routes but the same is not true of Torfaen BC v B & Q plc, the Sunday trading case. This concerned the legality of a prosecution under sections 47 and 59 of the Shops Act 1950 for trading on a Sunday in circumstances that would have been lawful in Scotland. The legislation was defended as being in defence of "the traditional English Sunday", which is a little odd given that the shop was in Wales, but that is beside the point. The critical fact was that there were variations in trading arrangements within the UK. The Court held that there was no contravention of (now) Article 28 EU and therefore did not have to answer question 3 which touched on arbitrary discrimination but the fact that so much emphasis had been placed on the different practice in Scotland gives poignancy to the Court's conclusion (at para. 14) that Member States had freedom "to ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics" (para.14 - emphasis added). The reference to "regional" socio-cultural characteristics can only be a reference to differences between Scotland and England & Wales and it is to be observed that the Advocate General (Van Gerven) followed Henn & Darby and stated:
"The fact that within a single member state the rule is not uniformly applicable or enforced may well provide a cause of action under national law, but not under Community law." (para. 32)
As Scots authority currently stands a legislative choice by the Scottish Parliament can only be challenged on one of the competency grounds specified in the Scotland Act and not on traditional common law grounds: Adams v Advocate General 2003 SC 171, at paras 62-63, per Lord Nimmo Smith. Accordingly, it is not thought that lack of uniformity as such would give a cause of action under domestic law. Plainly, though the Advocate General did not consider that lack of uniformity was in conflict with Community Law.
Devolution is of profound constitutional significance but it is not federalism. The process is not irreversible and Westminster has the right to legislate even on devolved matters. In particular, UK Ministers have residual power to secure compliance with Community Law: see section 57(1) of the Scotland Act. However, behind the bare bones of the devolution legislation is a more comprehensive Memorandum of Understanding between the UK Government and the devolved administrations in Scotland, Wales and Northern Ireland containing a concordat on Community Law. That concordat certainly proceeds on the assumption that there is scope for differential implementation of Community Law within the UK and because, as Carswell LCJ recognised in McPartland, differences among the domestic jurisdictions require careful management, the concordat lays down procedures for co-operation.
The Memorandum is itself a rather strange creature, declared to be only "a statement of political intent ... binding in honour only", but it is no less significant for that fact. The essentials of the Community Law concordat can be summed up in seven propositions.
1. Community Law is ultimately the responsibility of the Westminster Parliament and the UK Government.
2. That said, the UK authorities will consult with the devolved administrations even in relation to the formulation of policy.
3. There is recognition of the need for co-ordination, through consultation, in relation to the implementation of Community Law.
4. Any dispute can be resolved politically through discussion at the Joint Ministerial Committee or legally through a reference to the Privy Council.
5. Though the primary responsibility for the implementation of Community Law in relation to devolved matters falls on the devolved administrations, there is no universal commitment to separate implementation. By agreement implementation may be achieved by common British or UK legislation.
6. Equally, there is no requirement for uniform implementation. Where a devolved administration is considering separate implementation there is a requirement to consult with the lead Whitehall Department "to ensure that any differences of approach nonetheless produce consistency of effect and, where appropriate, timing".
7. One particular paragraph in the concordat merits quotation because it deals with one specific situation in which there may be local variations.
"B4.19. Where EU legislation provides, in relation to matters falling within the responsibility of the devolved administrations, for the possibility of local measures or derogations within Member States, subject to Commission approval, and where such legislation is being implemented separately in Scotland, Wales or Northern Ireland, the relevant devolved administrations will first consult the lead Whitehall department on whether there are wider UK policy implications. Whitehall departments will also inform the devolved administrations of any similar plans they might have. If, following such consultation, a devolved administration wishes to proceed with such local measures, the request for approval will be routed through UKRep, involving the lead Whitehall Department as necessary, and copying to them in any event.
That there is scope for variations between Member States is clear from Article 249:
"A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."
Plainly the concordat assumes that that margin passes down to the local level of the various devolved administrations.
Horvath is an unfortunate case in a number of respects, not least for the fact that the English authorities proceeded with the imposition of the disputed requirement despite an impact assessment that showed a high risk of successful challenge. Secondly, it is not clear why the English Regulations imposed this additional requirement. If one asks whether there is a relevant difference between the Scottish and English legal systems the answer would be yes: a landowner whose land is crossed by a public right of way would appear to have some obligations under English Law to maintain the right of way but his Scottish counter-part has no such obligation. However, that difference may not justify the additional English requirement. The Davidson Review on Implementation of EU Legislation reported on perceived over-implementation of Community Law and one mischief discussed was "double-banking". If maintenance of public rights of way is already suitably covered by English Law it is questionable whether there was a justified need to duplicate that regulation by dragging the same requirement in to the regime for Common Agricultural Policy payments. It may, accordingly, be that the answer to Horvath lies in the first question referred, which is whether the public right of way condition is within the scope of the Regulations, and that the cased does not represent a good example of justified differential implementation of Community Law within the UK.
It is suggested that Christine Boch was correct to say that where the Community Law affords some discretion to Member States there does not appear to be any reason why each devolved administration should not be entitled to exercise the discretion separately. However given the reference in Horvath we can conclude with hindsight that she was probably wise to state that proposition tentatively.
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