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VII. The Pattern of Preliminary References from United Kingdom Courts

There remains one final question to consider, namely the patterns of references from British courts to Luxembourg. The figures illustrate that it is the three senior courts - the High Court, the Court of Appeal and the House of Lords- rather than the junior courts who provide most of the Court of Justice's work. This is both seen in the proportion of references that come from these courts. They account for 61.24% of the references. It is also seen in the number of references that emanate from these courts as a proportion of their reported total activity in the field of EU law. The High Court referred 31.29% of the reported cases before it and the House of Lords (which is formally obliged to refer by Article 234(3) EC wherever a point of EC law is necessary for it to give judgment) 40%. The Court of Appeal was much lower, referring only 17.76% of the cases. If one ignores the statistics for the most junior courts on the grounds that they tend only to be reported where a reference is being made, that figure is still higher than other junior courts. The figure for the VAT & Duties Tribunal was 8.15% and for the Employment Appeals Tribunal, which made 7 references, 6.03%. Similarly, whilst there was a very heavy level of refusals to refer from the Court of Appeal, 47.22% of the instances in which it was sought, there was a similar unreceptiveness on the part of the Employment Appeals Tribunal, which refused 41.67% of the references sought.

Whilst the High Court is clearly the central locus for references to the Court of Justice, closer examination of the cases revealed that it was wrong to treat this as a simple matter of bureaucratic politics. Much depends upon the nature of the relationship between the judge and the parties.

In criminal cases it appears that the preferences of the national judge are more central in determining whether a reference is made. In such instances the relationship between the judge and defendant is even more explicitly hierarchical than in civil cases. Judgment operates as an administrative process of subjection in which the legal subject is treated as a passive object. To be sure, she will be entitled to certain procedural rights, but the central frame is not whether the court should aid her in pursuit of furtherance of some private interest but rather why the full sanction of the State should not fall upon her. Less account is therefore likely to be taken of the defendant's preferences in particular in deciding whether to make a reference.

As such, references become largely influenced by judicial receptiveness to supranational authority. They consequently paralleled general receptiveness to EU law in this area. There is thus a reticence to refer where EU law appears to diminish the capacity of British institutions to secure the criminal law. From 26 cases, only 2 references were made, whilst there were 8 instances of courts refusing to make a reference despite being asked by one of the protagonists to do so. By contrast where EC law provides further bases for sanctioning criminal behaviour, despite two Court of Appeal cases indicating that British courts should not normally refer in criminal cases,¹⁴⁸ out of 50 cases, 18 references were made with only 9 refusals to refer.

The position is very different with regard to civil cases. Here the litigants play a far more prominent role. To be sure, courts are not merely a relay for the parties' wishes, but they are obliged to consider arguments advancing the litigants' interests and remedies proposed by the litigators. They thus occupy a more reactive position, which is further entrenched by British legal doctrine on the reference procedure. This perceives the question of reference, despite being a matter of judicial discretion, as essentially one for the parties. A court will not refer of its own motion, but only if asked by one of the parties,¹⁴⁹ and will always refer if both parties agree on the need for a reference.¹⁵⁰ Even where the reference is contested between the litigants, the legal doctrine disposes the courts towards referring:

' if the facts have been found and the Community law issue is critical to the court's final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should ordinarily refer.'¹⁵¹

Consequently,in civil cases, a total of 238 references were made,and there were only 69 instances where a British court was asked to make a reference by one of the parties, but refused. To be sure, this may be one of those instances where reported cases are not representative of judicial decisions more generally. Even so, the proportion of references is high. Compared with the most analogous action in English law, leave to apply for judicial review, one finds that the latter was given in only 58% of cases in 1998.¹⁵² If one were to compare it with appeals, one finds that 193/264 applications for leave to appeal in 1998 to the House of Lords were refused.¹⁵³ In the case of references, it would seem, therefore, that the litigator-Court of Justice relationship is more central than the national court-Court of Justice one. Any explanation of the pattern of references has to start by looking at who is litigating and the remedies, legal and non-legal, that they are pursuing.

(i) References are Traditionally Rare where the Remedy Sought is Predominantly Financial: Intuitively, it would seem that references will rarely be made where the remdy sought is essentially pecuniary in nature. Cases in which compensation is sought, unless they are test cases or representative actions, are concerned only with the outcome as it applies to the narrow factual context in hand. References generate additional, and, from this point of view, unnecessary multiple judicial hearings, which increase the financial risks for the parties in terms of the legal costs that may have to be borne.. The delay involved can aggravate the amount of damage suffered and the amount, in the form of interest, that must eventually be paid. Even for successful parties, such as transferees who find they enjoy no liability in the case of TUPE, the uncertain can stymy new iniatives. It also presents a large window of opportunity for settlement by the parties. This seems to be configured by the figures. Taxation, competition and TUPE cases, which are predominantly concerned with financial resettlement between the parties all have low rates of reference. It also explains the low level of requests for references from the Employment Appeals Tribunal. For in a case which is neither a representative action nor test case, the logic above applies with equal force to disputes about pay or conditions of employment between a woman and her employer.

(ii) The Growth of Judicial Review as a Motor for Preliminary References: On its face, there does seem to be a correlation between the growth of incidence in judicial review in the United Kingdom and the growth of references. The former has grown from 160 applications in 1974 to 4,539 in 1998.¹⁵⁴ The latter has grown from 14 references in the period 1974-1978 to 104 in the period 1994-1998. There would, moreover, seem good reason for this. The remedies sought in judicial review, namely to force the administration to do or refrain from doing some particular act, are those, par excellence, where parties are struggling to imprint a particular vision on the political system. For such parties the seeking of a reference has further political advantages. A favorable judgment secures legal certainty, as it cannot be overturned by any higher domestic court. The process also maximises publicity and secures reputation and standing, both through the repeat hearings and the more newsworthy `European' dimension

The correlation between judicial review and preliminary reference would also partly explain the prominence of the High Court as a motor of references. For it, as the court with jurisdiction over judicial review in the first instance, has become the laboratory for the growth and growth of this process in English law. It is both has been responsible for relaxing rules of standing and for confronting the huge rise in applications for judicial review. Finally, of the 104 references made in the period 1994-1998, the most intense period for judicial review and references in the time-frame studies, 42 involved formal exparte judicial review hearings, 40.38% of the total. This was notwithstanding that these hearings made up only 19.06% (106/556) of the reported cases for this period.

(iii) The Dual Logics of Preliminary References: Part of the explanation for the increase in references therefore lies in those wider processes that have led to the explosion of judicial review. These are two-fold.

The increasing development of specialisation in this field amongst practitioners and the growth of the regulatory agencies in this period has led to litigation being used as part of a commercial strategy to influence the relationship between regulators and industry.¹⁵⁵ The last 15 years have witnessed an explosion of judicial review by commercial actors in the United Kingdom. Applications from companies shot up four fold during the 1980's, for example.¹⁵⁶ This would also explain a quirk in the figures. Whilst references from the field of taxation have, in proportionate terms, been low, of the 34 references, 22 were made in the period 1994-1998. Even allowing for the increase in reported case law, this is a very sharp transformation. It has resulted in an area, almost untouched by references becoming one of the central sources for references. As the relationship between undertakings and fiscal authorities parallels, in many ways, that between them and regulatory authorities, this is perhaps evidence of a spill-over of these strategies into more general dealings between large undertakings and the authorities.

References sponsored by commercial interests in either tax cases or judicial review proceedings accounted for 47 references in the 1994-1998.¹⁵⁷ Of these, 42 were brought by single undertakings. This seemed to fly in the face of arguments that private litigants are less able to pursue references than groups because of their inability to forum-shop for sympathetic judges and their disinclination to pursue litigation strategies which overreached the dispute in hand.¹⁵⁸ There was little evidence that a central motivation in such cases was wide-sweeping reform of the law. Parties seeking references had longstanding relations with either the regulatory or fiscal authorities, which transcended the period of the litigation. In such instances, advantages enhured to lengthy litigation, as the continual presence of litigation altered the mechanics of negotiation not just over the issue in dispute by increasing the costs in enforcement and setting boundary markers about where cooperation will break down. Judges, moreover, seemed to be alive to this, as this was the only area, other than that affecting the State's ability to secure repressive conformity, where there was significant judicial resistance to references. Sceptical, perhaps, of undertakings' motives for seeking references, British courts have refused requests in 20 instances (13 in tax, 7 in judicial review).

The second reason for the explosion of judicial review has been the relaxation of standing requirements which has led to judicial review proceedings being increasingly used as a forum for interest group politics by a variety of non governmental organisations and quangos. This style of politics is not confined to judicial review. In the field of sex discrimination, the overwhelming majority of references are test cases brought against a private or public employer, but sponsored by the Equal Opportunities Commission or non-governmental organisations.¹⁵⁹ This category represents the second main source of references. Sex discrimination references sponsored by the Equal Opportunities Commission and judicial review proceedings brought by non-commercial interests accounted for a further 22 references. These two categories combined therefore accounted for 66.35% of total references in the period 1994-1998. Whilst the references may be fewer in number in the second category, as the primary intention of the litigation is to affect law reform rather than resolve the dispute per se, this litigation tends to be more broadly felt as it impacts upon a series of generalisable interests extending well beyond the case in hand.

A feature of this category is that it is, in institutional terms, an extremely crowded sector. This is so even if one discounts number of groups who have not sponsored references, but could counted as potential sponsors on the grounds of their use of EC law in domestic proceedings and merely looks at actual sponsors of references. In the field of sex discrimination, much has been made of the strategy of the Equal Opportunities Commission in bringing test cases, but even here it is not a sole player. Going back to 1988, one finds that the Foster and Neath actions were financed and supported by the respective unions, NALGO¹⁶⁰ and MSF.¹⁶¹ The Child Poverty Action Group sponsored Cresswell.¹⁶² The Campaign for Equal State Pensions supported Richardson and Atkins.¹⁶³ Stonewall, a non-governmental organisation promoting homosexual rights, was behind the bringing of the Grant judgment.¹⁶⁴ If one moves to other fields, the one reference on consumer law was brought by the Consumer Association.¹⁶⁵ In the field of environmental law, actions have been brought directly by the Royal Society for the Protection of Birds and Compassion in World Farming.¹⁶⁶ In free movement of persons, the political party, Sinn Fein, has also sponsored a reference.¹⁶⁷

Of these groups there is only one, the Equal Opportunities Commission, that has any kind of litigation strategy that involves developing a case law over time by probing for new opportunities on the basis of past victories.¹⁶⁸ The others all used the Court of Justice only occasionally, either because they were actors who campaigned on a very narrow set of issues or because the case law of the Court of Justice affected their activities only tangentially. The consequence of this was that, in political terms, the politics of references to the Court of Justice ressembled a 'garbage can' model. Issues were brought up in ad hoc, unpredictable manner with relatively small (in terms of resources) institutional actors able to command the agenda, albeit for a small period of time, and the attention of the Court of Justice.

The disorderly manner in which references bring about legal and political change - irrespective, one might add, of the internal quality of the legal reasoning of the Court of Justice - is all the more destabilising for the British political and legal settlements - as these actors are only pursuing these references because of the absence of opportunity denied domestically. They are the outsider elites mentioned earlier. Yet there is a reason in the British case why this is doubly so. This is because this form of litigation has been pursued almost exclusively by postmaterial or non-material interest groups. Of the 47 references brought by commercial actors, only 5 were brought by industrial combines or associations, and all these were brought in the narrow sectors of agriculture and fisheries. Other than one famous isolated incident,¹⁶⁹ there was no real incidence of commercial repeat actors. Only one undertaking was behind more than one reference in the 1990s.¹⁷⁰ This feature of the British legal scene exacerbates the precarious situation of the Court of Justice. It is not only associated with outsider elites, but becomes ideologically tarred. Quite simply, references will not be made, such as in areas such as TUPE, where EC law is perceived as favoring non-material interests. All the Court will be asked to do, by contrast, is adjudicate in those areas where non-commercial interest groups perceive it could advance their interests further.

148 R v Plymouth Justices exparte Rogers [1982] 3 CMLR 221; Portsmouth v Richards [1989] 1 CMLR 673.

149 R v Secretary of State for the Environment exp. Greenpeace Ltd [1994] 4 All ER 352.

150 Rochdale v Anders [1988] 3 CMLR 431; R v Ministry of Agriculture, Fisheries and Food ex parte Portman Agrochemicals Ltd [1994] 3 CMLR 18

151 R v. International Stock Exchange of the United Kingdom and the Republic of Ireland ltd., ex parte ELSE [1993] 2 WLR 70, 76.

152 Lord Chancellors Department, Judicial Statistics: Annual Report 1998 (1999, Government Statistical Service, London) Table 1.13.

153 Ibid., Table 1.3.

154 Supra n.152.

155 J. Black & P. Muchlinski, `Introduction' in J. Black, P. Muchlinski & P. Walker (eds) Commercial Regulation and Judicial Review (1998, Hart, Oxford).

156 L. Bridges, G. Meszaros & M. Sunkin, Judicial Review in Perspective (1995, Cavendish, London) 35-36.

157 These involved 28 commercial judicial review cases and 22 tax cases. 3 of the 22 tax cases involved formal judicial review proceedings, however.

158 K. Alter & J. Vargas supra n. 17.

159 Of the 14 references, which emanated from `private disputes', made in the field of sex discrimination in the period 1994-1998, 7 were offered assistance by the Equal Opportunities Commissio (see Annex II of Equal Opportunities Commission, Annual Reports 1994-1998 (EOC, Manchester, 1995-1999) and 1 was sponsored by Stonewall, a non-governmental organisation.

160 Case C-188/89 Foster v British Gas [1990] ECR I-3133. P. Wynn Davies, 'Women win claim on forced retirement' Independent, 13 July 1990, p.8.

161 Case C-152/91 Neath v Steeper [1993] ECR I-6935. I. Cowie, 'The European court is to rule on whether equal pension rights apply retrospectively' Daily Telegraph, 13 November 1991

162 C. Dyer, 'Benefit Tussle for UK to Decide' Guardian, 16 May 1992, p. 7

163 Case C-137/94 R v Secretary of State for Health ex parte Richardson [1995] ECR I-3407, C. Dyer, 'Prescription charge test case would cost NHS £ 60M a year' Guardian 20 April 1994, p. 8. Case C-228/94 Atkins v Wrekin DC [1996] ECR I-3633, T. Shaw, 'Bus claim pensioner wins bus pass victory' Daily Telegraph, 1 May 1996.

164 Case C-249/96 Grant v South West Trains [1998] ECR I-621. See C. Bremner, 'Gay workers have no right to equal benefits' Times 18 February 1998, C. Dyer, 'Lesbian couple loses test case on perks at work: European Court of Justice rejects equality plea by railway worker' Guardian, 18 February 1998, p. 9.

165 Case C-82/96 R v Secretary of State for Trade and Industry, ex parte Consumers Association, Judgment of 28 February 1996 (information provided by ECJ).

166 Case 44/95 R v Secretary of State for the Environment ex parte RSPB [1996] ECR I-3805; Case C-1/96 R v MAFF ex parte Compassion in World Farming [1998] ECR I-1251.

167 R v Secretary of State for the Home Department ex parte Adams [1995] All ER (EC) 177.

168 On the EOC see K. Alter & J. Vargas supra n. 17. This strategy involves selection of a discrete number of issues which are then pursued through a variety of courts and tribunals. It is published every year in the EOC's legal report, eg Equal Opportunities Commission, Annual Report for 1998 (1999, EOC, Manchester) 56-66.

169 This was the Sunday trading saga where a group of DIY retailers engaged in continual litigation to bring about a change in Sunday opening hours. See R. Rawlings supra n 11.

170 This is British Telecom, C-392/93 R v HM Treasury ex parte BT [1996] ECR I-1631; C-302/94 R v Secretary of State for Trade & Industry ex parte BT [1996] ECR I-6417.

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