|Judgment - Regina v. Chief Constable of Sussex EX Parte International Trader's Ferry Limited continued|
The existence of a discretion of such breadth seems to me incompatible with the criteria for direct effect. Mr. Roth submitted that there were cases in which direct effect had been attributed to the obligation of a Member State under Article 5 in conjunction with the Articles on competition. I have not pursued the question because I am willing to assume that this may be so. There is no reason why certain positive obligations should not be sufficiently clear and unconditional to have direct effect. But we are concerned with the particular obligation to maintain free movement of goods in the face of civil disturbance by citizens of a Member State. I say only that this seems an unlikely candidate for direct enforceability.
If the decision of the Chief Constable was not an infringement of Article 34 standing alone and if the positive obligation created by Article 5 does not have direct effect, then there is no European dimension to the present case at all. There has been no infringement of a Community right of which I.T.F. can complain. This analysis would go far to explain why it has proved so difficult, on the assumption that there has been a prima facie infringement of Article 34, to apply the European jurisprudence on the justifications in Article 36. The difficulty lies in the fact that Article 36 involves a balancing of, on the one hand, the legitimate interests of the Member State falling within the categories specified in Article 36 and, on the other hand, the Community interest in free movement of goods. Measures taken by a Member State which prima facie contravene Article 30 or Article 34 must be proportionate in the sense that they must not restrict the free movement of goods more than is necessary to protect such a legitimate interest. But the considerations taken into account in this balancing process are quite different from those involved in the domestic decision as to whether the Chief Constable acted reasonably in balancing the interests of I.T.F. with the policing demands of the rest of Sussex. In European law, justification is seen in terms of the legitimate interests of the Member State as a whole and for this purpose, all the institutions of the State are aggregated and treated as a single entity. In a number of cases the European Court has said that a Member State "may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with its obligations under Community law": see for example Joined Cases 227 to 230/85 Commission of the European Communities v. Kingdom of Belgium  E.C.R. 1, 11, para. 10. Similarly in Case 231/83 Cullett v. Centre Leclerc Toulouse  E.C.R. 305 the French Government imposed minimum prices on the sale of imported petroleum products, thereby preventing importers from deriving a competitive advantage from their lower costs. The French Government attempted to justify this regime under Article 36 on the ground that there was a "threat to public order and security represented by the violent reactions which would have to be anticipated on the part of retailers affected by unrestricted competition."
The Court rejected the argument out of hand (p. 324, para. 33):
The Court was plainly not concerned with any internal divisions of responsibility or jurisdiction among the French law-enforcement authorities. The responsibility for compliance with the Treaty was that of the Member State with all the resources at its disposal.
This reasoning is entirely appropriate when the question is the existence of justification for some measure taken by the Member State or one of its institutions which prima facie infringes the prohibition in Article 30 or Article 34, or the compliance by the Member State with its positive obligation under Article 5 in proceedings under section 169 to which the Member State itself is a party. In the former case, the issue is simply whether the validity of the measure has been struck down by Article 30 or Article 34 as supreme law. There is no question of the court ordering anything positive to be done. In the latter case, the court will declare that the Member State, taken as a whole, has failed to comply with its obligations under Article 5. But the reasoning makes little sense in proceedings brought against the Chief Constable, asserting a duty on his part to take positive steps which involve the use of resources. Mr. Roth saw the difficulty in making the cases on Article 36 fit his contentions on the liability of the Chief Constable and suggested that, pursuant to the principles stated in cases like Cullet, the Chief Constable should be deemed to have access to all the resources of the United Kingdom. But I think it would be absurd for a court to make an order against an individual Chief Constable requiring him to take certain steps on the assumption that he has at his disposal all the resources of the United Kingdom. He plainly could not comply with such an order. The need for I.T.F. to advance such an argument reinforces my view that Article 34 has no application to this case.
My Lords, I have taken some time to explain why I feel some reluctance about dealing with the European aspect of the case on the assumptions accepted by the Divisional Court and the Court of Appeal. I think that it is a false basis. But if I am obliged to do so, then I prefer the view of the Court of Appeal. If it can be assumed legitimate to examine the public policy justification in Article 36 on the basis that we are concerned only with the obligations of the Chief Constable, then I have no difficulty in agreeing that he acted in pursuance of a legitimate head of public policy and that the degree of restriction on exports cannot be shown to have been disproportionate. I would therefore dismiss the appeal.
LORD COOKE OF THORNDON
To begin by disposing of a minor point which might not otherwise be mentioned in the speeches on this appeal, I note that in the Case for the respondent Chief Constable some purely incidental support was claimed from article 35.5 of the Consolidated Version of the Treaty on European Union. Article 35.5 is among the provisions to be introduced by the Treaty of Amsterdam. Like the other new provisions and the renumbering which is to take place, it will not come into force until the Treaty of Amsterdam itself comes into force. It reads:
Somewhat similar provisions are to appear in the renumbered articles 64.1 and 68.2. Although none of these provisions are yet in force, the suggestion apparently was that they might reflect a continuing theme, evidencing that the Member States have exclusive competence as regards public order and that the European Court of Justice is prohibited from examining the validity of police decisions per se.
A perusal of the Treaty of Amsterdam makes it clear, however, that the new provisions are confined to the respective titles in which they appear (Title Vl, Provisions on Police and Judicial Cooperation in Criminal Matters and Title lV, Visas, Asylum, Immigration and other Policies related to Free Movement of Persons). In their own spheres they will operate to exclude entirely any jurisdiction of the European Court of Justice. I do not think that they can have any significant bearing on the present articles 5 (to be renumbered 10), 34 (to be renumbered 29) and 36 (to be renumbered 30) of the Treaty Establishing the European Community, nor on the present article 177 (to be renumbered 234) of that Treaty insofar as it confers on that court jurisdiction to give preliminary rulings concerning the interpretation of those articles. Likewise the direct effect of those articles, and the consequent duties of national courts to remedy breaches of them, must remain, as I see it, unmodified by the Treaty of Amsterdam.
To turn now to matters of more present importance, I.T.F. attacks the decisions as to policing policy contained in the Chief Constable's letters of 10 and 24 April 1995. It is appropriate to read each letter as a whole and in the context of the history of the demonstrations at Shoreham. The essence of the policy announced in the first letter and reiterated in the second was that no policing would be provided to protect the transport of livestock to Shoreham for shipment by the applicant to France, save on two consecutive days a week or four consecutive days a fortnight, excluding in any case Fridays, weekends and bank holidays. There were other conditions: lorries were restricted to one movement per day and any movement of lorries was to consist of not less than seven or more than ten vehicles.
My Lords, since experience had shown that, without policing, lorries were unlikely to get through at all regularly, and since it was undoubtedly the Chief Constable's purpose (however reluctantly formed) to prevent or at least severely limit livestock shipments by the applicant outside the permitted days and conditions, I think that the terms so laid down were in the ordinary use of language measures having effect equivalent to quantitative restrictions on exports. No doubt the Chief Constable did not wish to have to adopt these measures. He considered that they were forced on him by the tactics of law-breaking protesters and the need to deploy his resources in a balanced way. This explains his policy but cannot alter its effect. It is effect, not motive, with which the second limb of the present article 34 of the E.C. Treaty is concerned. In Commission v. France (9 December 1997) there was no corresponding promulgation of policy. It would be stretching words to describe as "measures" the turning of a blind eye in the Anglo-Saxon idiom or a shrug of shoulders in the Gallic. A Minister's statement that he did not contemplate intervention by the police can hardly pass muster as a "measure." Hence the emphasis which it was thought necessary by the Advocate General and the Court in that case to place on the present article 5. In the Shoreham case, by contrast, I am not persuaded that it is necessary to look beyond articles 34 and 36.
Of course, it is possible that in article 34 "measures" has some special and more limited meaning. If it were necessary to decide that point, I would share the view of my noble and learned friend Lord Slynn of Hadley that it should be referred to the European Court of Justice under the present article 177. I am content now to assume, however, that what I have called the ordinary meaning is the correct one.
On that assumption certain consequences follow. First, as the present article 34 contains a clear and unconditional prohibition and so has direct effect (Van Gend en Loos  E.C.R. 1), the announced policy was prima facie an actionable breach of that article but is open to justification under the present article 36 on grounds of public policy or public security. Secondly, although in the argument of this case it was found convenient to deal with domestic law and community law as separate heads, the rights of ITF under article 34 will be directly enforceable in the United Kingdom by virtue of section 2(1) of the European Communities Act 1972. In truth article 34 becomes part of domestic law and to the extent of any inconsistency prevails over such domestic law as would otherwise apply. If anything, scrutiny under article 36 is more rigorous than scrutiny under ordinary domestic law, so the latter may be treated as subsumed in the former.
My Lords, I have said "if anything" because I agree with the proposition of Lord Lester of Herne Hill Q.C. that on the particular facts of this case the European concepts of proportionality and margin of appreciation produce the same result as what are commonly called the Wednesbury principles. Indeed in many cases that is likely to be so. It seems to me unfortunate that Wednesbury and some Wednesbury phrases have become established incantations in the courts of the United Kingdom and beyond. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation  1 K.B. 223, an apparently briefly--considered case, might well not be decided the same way today; and the judgment of Lord Greene M.R. twice uses (at 230 and 234) the tautologous formula "so unreasonable that no reasonable authority could ever have come to it." Yet judges are entirely accustomed to respecting the proper scope of administrative discretions. In my respectful opinion they do not need to be warned off the course by admonitory circumlocutions. When, in Secretary of State for Education and Science v. Tameside Metropolitan Borough Council  A.C. 1014, the precise meaning of "unreasonably" in an administrative context was crucial to the decision, the five speeches in the House of Lords, the three judgments in the Court of Appeal and the two judgments in the Divisional Court all succeeded in avoiding needless complexity. The simple test used throughout was whether the decision in question was one which a reasonable authority could reach. The converse was described by Lord Diplock (at 1064) as "conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt." These unexaggerated criteria give the administrator ample and rightful rein, consistently with the constitutional separation of powers.
Similarly, in the present field, it is said by the European Court of Justice in Commission v. France (at para. 33) that "The Member States, which retain exclusive competence as regards the maintenance of public order and the safeguarding of internal security, unquestionably enjoy a margin of discretion in determining what measures are most appropriate . . ." For practical purposes in this case I think that the Chief Constable must enjoy a margin of discretion that cannot differ according to whether its source be found in purely domestic principles or superimposed European principles. The Wednesbury judgment itself confirms (at 229) that the administrative authority must direct himself properly in law. In the field now relevant he must therefore give weight both to his duty to enforce the rule of law as far as reasonably practicable and to the principle that, as stressed by the European Court in Commission v. France (at para. 24), the free movement of goods is one of the fundamental principles of the Treaty.
Nevertheless, under both the ordinary United Kingdom and the broader European systems, public policy or public security may justify restrictions on a lawful trade. Whatever the rubric under which the case is placed, the question here reduces, as I see it, to whether the Chief Constable has struck a balance fairly and reasonably open to him.
Insofar as the facts have been traversed by other members of your Lordships' Appellate Committee it would be superfluous to repeat them, but there are aspects on which I would say something. One relates to the view of the Divisional Court that the Chief Constable might have had "the beginning of a defence under article 36" if the Home Office had been asked for and had refused a special grant. On the evidence it would seem to have been always unlikely that such a request would have been met. The Home Secretary's letter of 11 August 1995, written after the Divisional Court judgment and quoted by Kennedy L.J. in  Q.B. at 491, confirms as much. But the fact must be faced that the Home Secretary's position was that the Sussex Police Authority had other sources of funds which should be sufficient. This position was taken implicitly in the letter of 11 August 1995 and explicitly in a news release by the Home Secretary of 16 January 1995 and an answer by him on 19 January 1995 to a question in the House of Commons.
Among the points made by the Home Secretary were that the County Councils were "underfunding" the Sussex Police by £4 million, which would automatically attract a Home Office grant of another £4 million, together more than enough to cover the full cost of special policing at Shoreham, as sought by I.T.F., for five days a week. Further, in a letter to Mr Leavey of the National Farmers Union, dated 5 December 1995, the Home Secretary pointed out that the Sussex police's published annual policing plan provided for £7.25 million (5 per cent. of budget) being put into reserves. A new Sussex Police Authority took over from 1 April 1995; from the report and accounts for 1995/6 it appears that, in the event, during the year £8.052 million was in fact transferred to reserves. Also the Authority became "debt free" by paying off long-term borrowing previously shown at £1.216 million.
The agreed statement of facts and issues records that the additional costs of policing the port, including all related operations, from 6 April to 22 June 1995 (with effect from 24 April on two days per week) were £517,145. The Police Authority estimated that it would have cost at least £89,430 per week to finance a further three days policing using officers supplied under the mutual aid scheme. Extrapolated over a full year the latter figure would be £4.65 million. It assumes (perhaps improbably) that the size of the protests would not have declined.
In the light of the figures and the Home Secretary's position, it would not be right to approach the case on the footing that the extra cost of the full police protection sought by I.T.F. would have been prohibitive for the Chief Constable. His case cannot be put quite so high. Rather his position is that he would make special provision for I.T.F. to the extent of two days a week or four a fortnight, and that this is a reasonable and proportionate response when weighed with his other responsibilities. It emerged during the argument in your Lordships' House that his two day or four day proposal is not shown to have been based on any precise mathematical calculation or ratio. For example it was not possible to pinpoint why he offered two days a week instead of one or three. Perhaps his aim was to offer something sufficiently substantial to be clearly more than a mere gesture, but to go no further. But that is speculation. And, however that may be, although the company insists that it would need five days a week, there is no ground in the evidence for suggesting that the Chief Constable did not make a genuine attempt at a fair compromise.
The strongest ground for questioning the lawfulness of the Chief Constable's policy is the one that at all stages of the case Mr Roth Q.C. has put in the forefront of his argument. If the policy is upheld, the case is a defeat for the rule of law and a victory for mob rule. Emotive though such descriptions may seem, they are no more than the truth. It is not a question of the rights of peaceable protesters against the rights of a lawful trader. It is the lawless elements acting on the side of the protesters who have won the day. That unpalatable fact must be acknowledged. A decision to that effect cannot be justified except for most cogent reasons. In the end, however, I do not differ from the opinions of my noble and learned friends and the Court of Appeal that such reasons do exist here. Essentially they are threefold and closely linked.
In the first place there is the reason captured by Lord Hoffmann's reference to the citizens of Brighton and Rottingdean. That is to say, the case can equally be seen as a conflict, not between the company and the lawbreakers but between the policing needs of the company and those of all the rest of the public of Sussex, including in the latter the need to make at least some relatively modest provision for reserves to meet contingencies. In the second place it has to be borne in mind that the company's needs are purely commercial. The company is carrying on a lawful trade but one of a kind apt to arouse opposition in modern society. In effect the company is asking the public to subsidise it to a total extent of more than £7 million a year in order to enable it to make a private profit. In the third place the entire issue relates to one port only. Shoreham may often be more convenient for the company's operations, but other ports, notably Dover, are available.
Bearing in mind in particular those factors among all the circumstances of the case, I am forced to conclude that the Chief Constable struck a fair and reasonable balance which survives scrutiny under purely domestic law and European--originating domestic law alike; and I too would dismiss the appeal.