Scottish Court of Session Decisions

In his opinion of 12 August 1999, with which the other members of the court agreed, the Lord President indicated that the case should be put out By Order to give counsel an opportunity to make any further submissions as to whether the court should make a reference to the Court of Justice on the point identified in the opinion.

At the By Order hearing, the Solicitor General explained that, as had been foreshadowed during the hearing on 2 July, the petitioners had in the meantime amended the pleadings so that the Scottish Ministers now stood as respondents in place of the Secretary of State for Scotland. The Solicitor General therefore appeared for the Scottish Ministers. He indicated that he was content for a reference to be made and did not wish to make any further submissions on the point.

On behalf of the petitioners Mr. Clarke did not seek to persuade us that the question should not be referred to the Court of Justice. Dealing with the matter raised in the Lord President's opinion, he indicated that he did not consider that the opinion of Laws J. in R. v. Ministry of Agriculture, Fisheries and Food ex parte First City Trading Ltd. [1997] 1 C.M.L.R. 250 or the opinion of Maurice Kay J. in R. v. Customs and Excise ex parte Lunn Poly [1998] Eu. L.R. 438, which simply followed the opinion of Laws J., were of assistance in resolving the issue before this court. Laws J. had drawn a clear line ([1997] 1 C.M.L.R. at p. 267) between cases where a Member State takes measures solely by virtue of its domestic law and other cases where a Member State takes measures which it is authorised or obliged to take by force of the law of the Community. Here, said Mr. Clarke, the court had rightly taken the view that we were concerned with the second type of case since the powers which the Minister and the Secretary of State had exercised were powers under Community law. In that situation Mr. Clarke did not consider that the reasoning of Laws J. would add anything to the analysis already undertaken by this court.

In the light of these submissions we are satisfied that a reference should now be made to the Court of Justice. Counsel indicated that they would prefer the reference to include a question designed to deal with the situation which would arise if the Court of Justice held that Community law did apply. Admittedly, the Court had indicated in ex parte Bostock and in ERL that they would furnish the criteria of interpretation needed by a national court to determine whether the national rules were compatible with the fundamental rights enshrined in Community law. Both parties considered, however, that the matter should not be left to chance and that the Court's attention should be directed specifically to this matter. Even though we see no real need for such a question, we have no objection to including it so as to make the position quite clear.

The parties asked for three weeks in which to take steps to prepare a draft reference with draft questions. The case will be put out By Order in four weeks to allow the court to consider the draft reference and to adjust it in the light of any submissions by counsel.