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Published online by Cambridge University Press: 27 October 2017
It is a great privilege for me to give this lecture in honour of Lord Mackenzie-Stuart. I frequently had the privilege of appearing before him as counsel when he was judge at the European Court of Justice and also from 1984 to 1988 when he was President of the Court. It was on his departure from the Court in 1988 that I went to the Court as advocate general.
Lord Mackenzie-Stuart, who has long been interested in the influence of European Community law on public law in the United Kingdom, had recently published a paper entitled “Recent developments in English administrative law—the impact of Europe?” In returning to that theme this evening I should like to update the story of developments in English administrative law where there may be a European impact. I will also venture, perhaps over-ambitiously, to look briefly at the new constitutional reforms, and to see if there may be a European impact there too.
1 Capotorti, F. and others (eds) The Liber Amicorum Pierre Pescatore (Baden-Baden, Nomos 1987), 411 Google Scholar.
2 See Hand, G.J. “A.V. Dicey’s unpublished materials on the comparative study of constitutions”, in Droit sans Frontières: Essays in honour of Brown, L. Neville (Holdsworth Club, Birmingham 1991), 77 Google Scholar.
3 This section draws on material contained in my article published in [1999] Public Law, 232.
4 Case 26/62 [1963] ECR 1.
5 Case 6/64 [1964] ECR 585.
6 Wade, H.W.R. and Forsyth, C.F. Administrative Law, 7th ed. (Oxford, Clarendon, 1994), 541-2Google Scholar; see also de Smith, S., Woolf, Lord and Jowell, J. Judicial Review of Administrative Action, 5th ed. (London, Sweet & Maxwell, 1995), 457 ffGoogle Scholar.
7 At 23.
8 Case 222/86 [1987] ECR 4097.
9 See most recently the Opinion of Advocate General Ruiz-Jarabo Colomer in Joined Cases C-65/95 and C-111/95 Shingara and Radiom [1997] ECR I-3343.
10 Case C-18/88 GB Inno-BM [1991] ECR I-5941, see also Joined Cases C-46/90 and C-93/91 Lagauche [1993] ECR I-5267.
11 De Smith, Woolf and Jowell above n 6 at 457, 472–3.
12 Neill, P. “The Duty to Give Reasons: the Openness of Decision-making”, in Forsyth, C. and Hare, I. (eds), The Golden Metwand and the Crooked Cord (Clarendon, Oxford, 1998), 161 Google Scholar.
13 See Bell, , “Mechanisms for Cross-fertilisation of Administrative Law in Europe”, in Beatson, J. and Tridimas, T. (eds), New Directions in European Public Law (Hart, Oxford, 1997)Google Scholar.
14 Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629, para. 21.
15 Case 222/84 [1986] ECR 1651.
16 Council Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ 1976 L 39/40.
17 Para. 20.
18 Hoffmann, , “A Sense of Proportion”, in Andenas, M. and Jacobs, F.G. (eds) European Community Law in the English Courts (Clarendon, Oxford, 1998), 158 Google Scholar.
19 Hodgson v. Commissioners of Customs and Excise [1997] EULR 116.
20 See the Justice/All Souls’ Review Administrative Justice: Some necessary reforms (Oxford, Clarendon, 1988), 153.
21 See Woolf, Lord, “Protection of the Public—A new Challenge” (41st Hamlyn Lectures, London, Sweet & Maxwell, 1990), 21 ffGoogle Scholar.
22 Case C–213/89 [1990] ECR I–2433.
23 [1994] 1 AC 377.
24 On the distinction between the Crown and a Minister of the Crown, see Sir Stephen Sedley “The Crown in its Own Courts” in Forsyth and Hare above n 12 at 253.
25 Fennelly, N. “Legal Interpretation towards Free Movement of Principles”, in Andenas, M. (ed.) English Public Law and the Common Law of Europe (Key Haven Publications, 1998), 7 Google Scholar.
26 Forsyth, C.F. “The Provenance and Protection of Legitimate Expectations” [1998] Cambridge Law Journal, 238 Google Scholar.
27 Case C-271/91 Marshall v. Southampton and South-West Hampshire Area Health Authority [1993] ECR I-4367.
28 Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority [1986] ECR 723.
29 Woolwich Building Society v. IRC [1993] AC 70.
30 Case 33/76 Rewe [1976] ECR 1989 and Case 45/76 Comet v. Produktschap voor Siergewassen [1976] ECR 2043.
31 Joined Cases C–6/90 and C–9/90 Francovich & Others [1991] ECR I–5357.
32 Case 148/84 Deutsche Genossenschaftsbank v. Brasserie du Pêcheur [1985] ECR 1981.
33 See e.g. Craig, P. “Once more into the Breach: the Community, the State and Damages Liability”, and Andenas and Fairgrieve, “Sufficiently Serious? Judicial Restraint in Tortious Liabilities of Public Authorities and the European Influence”, both in Andenas (ed.) English Public Law and the Common Law of Europe; Craig, “The Domestic Liability of Public Authorities in Damages: Lessons from the European Court”, in Beatson and Tridimas, op. cit.
34 In [1998 ] Public Law at 229.
35 Factortame I above n 22.
36 Marshall v. Southampton and South-West Hampshire Area Health Authority (No. 2) [1994] QB 126.
37 R v. Secretary of State for Employment, ex p. Equal Opportunities Commission [1995] 1 AC 1.