A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments signed by the Secretary of State amending primary legislation, are not necessarily the law, but are rather assertions of the executive’s belief as to what the law is. The 2001 Regulations belatedly purported to apply the 1998 Directive, by amending the 1949 Act but ‘So many, so detailed are the amendments that it is like a sculptor crafting a cat out of a dog. ‘ The philosophies of the 1949 Act and of the Directives are not the same. As to the 1972 Act, ‘section 2(2) combined with section 2(4) is an instance of what is sometimes known as a ‘King Henry VIII clause’ . . It is a power granted by Parliament to the Executive to make subordinate legislation which itself counts as if it were primary legislation.’ and ‘Now, is that a paradox? For Parliament is supposed to be supreme . . Therefore, when Parliament has enacted a King Henry VIII clause, by what right do the courts apply a restrictive interpretation? How is it that any doubts must be resolved against the Executive, seeing that Parliament has said that the Executive can make law as if it were Parliament itself? I believe it all depends on what it means to say that Parliament is supreme and on what Parliament is actually taken to have claimed. At bottom, all effective constitutions depend on legitimacy. In the United Kingdom the pre-eminent source of legitimacy is Parliament – what is called the Queen in Parliament – and that has been taken to be so for 350 years at least. Because of that fact it would be extraordinarily difficult to overthrow our constitution by force, yet it is one of immense flexibility and on the whole it has served to protect fundamental rights.’ Could s2(2) of the 1972 Act be used to implement a provision which went beyond what was required by European law? It was essentially a practical section, not one intended to allow the executive substantial extra powers, and ‘section 2(2)(b) does not enable the Executive to make secondary legislation, with the potential to amend or repeal even an Act of Parliament, and to achieve a result not required by a Community obligation, just because its purpose is in some way related to or arises out of that obligation. ‘ The Regulations were ultra vires to the extent that they went beyond the Directive. It was not for the courts to make substitutional legislation. Never has the ECJ suggested that a derogation can somehow be implemented so as to bring about results contrary to Community law.
Peter Prescott QC
[2005] EWHC 210 (Ch), Times 10-Mar-2005
Bailii
Registered Designs Act 1949 8(5), Directive 98/71/EC of 13 October 1998 on the legal protection of designs, Registered Designs Regulations 2001, European Communities Act 1972 2
England and Wales
Citing:
Cited – Ipswich Clothworkers’ Case; Ipswich Taylors v Sherring 1614
The king’s power to create corporations and to order trade did not include a power to make a monopoly, for that is to take away free trade which is the birthright of every subject. A trader creating a new invention could be granted a charter by the . .
Cited – East India Co v Sandys (or Sands); The Case of Monopolies 1602
It is the nature of a patent to enable persons acting as a corporation ‘to enjoy and apply to trade all the privileges derived from being a body corporate. . .
Cited – The British Broadcasting Corporation v Johns (HM Inspector of Taxes) CA 5-Mar-1964
The BBC claimed to be exempt from income tax. It claimed crown immunity as an emanation of the crown. The court had to decide whether the BBC was subject to judicial review.
Held: It is not a statutory creature; it does not exercise statutory . .
Cited – McKiernon v Secretary of State for Social Security CA 26-Oct-1989
A statute granting a power to be amended by a subordinate instrument can only do so by an express power: ‘Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination . .
Cited – Regina v Secretary of State for Social Security, Ex parte Britnell (Alan) HL 1991
The applicant claimed and was paid benefits. There was later determined to have been an overpayment. A sum was recovered by deductions, but then he was granted only supplementary allowance. No deductions could be made from that, but the respondent . .
Cited – Thoburn v Sunderland City Council etc Admn 18-Feb-2002
Various shopkeepers appealed convictions for breach of regulations requiring food sold by weight to be described in metric amounts. They claimed that the Regulations made under the 1985 Act, to the extent that they were inconsistent with it . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – Flaminio Costa v ENEL (Procedure) ECJ 15-Jul-1964
‘The transfer by the states from their domestic legal system to the Community legal system of their rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
All Public Law Challenges are For a Nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Hayward v Cammell Laird Shipbuilders Ltd (No. 2) HL 1988
A woman complained that she was not being paid as much as male colleagues who were doing work of equal value. An Act of Parliament had made certain provisions in that regard. Later, that Act had been amended for the purpose of complying with . .
Cited – Betts and others v Brintel Helicopters Ltd and KLM Era Helicopters (UK) Ltd CA 26-Mar-1997
There was no transfer of undertaking where only the employees and no other assets of the business had been transferred. . .
Cited – Commission v United Kingdom (Judgment) ECJ 8-Jun-1994
ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for . .
Cited – Regina v Secretary of State for Trade and Industry ex parte Unison 1996
The 1978 Directive required consultation in the case of collective redundancies. Acts had incorrectly incorporated this requirement into English law. The error was corrected in the 1995 Regulations.
Held: Anything is ‘related to’ a Community . .
Cited – Addison v Denholm Ship Management (UK) Ltd EAT 1997
An issue before the EAT was whether regulations made under section 2(2) of the 1972 Act applied to the crew of a floating hotel/ship in the North Sea.
Held: According to European law the UK could choose whether or not to apply employment . .
Cited – Attorney General and Another v Great Eastern Railway Company HL 27-May-1880
An Act of Parliament authorised a company to construct a railway. Two other companies combined and contracted with the first to supply rolling stock. An injunction was brought to try to restrain this, saying that such a contract was not explicitly . .
Cited – Regina v Secretary of State for Trade and Industry ex parte Orange Personal Communications Ltd and Another Admn 25-Oct-2000
Once rights by way of licences had been granted to a party by virtue of a statute, an amendment to those licences required the Secretary to be explicit with Parliament when altering the licences. The Act provided clear rules for making amendments to . .
Cited – Perth and Kinross Council v Tony Donaldson and 14 Others Newtown Construction Scotland Ltd Meldru EAT 30-Oct-2003
EAT Transfer of Undertakings – Acquired rights directive
The European Acquired rights directive sought to protect the rights of employees on the a transfer of a business to another employer. It was . .
Cited – Betts and others v Brintel Helicopters Ltd and KLM Era Helicopters (UK) Ltd CA 26-Mar-1997
There was no transfer of undertaking where only the employees and no other assets of the business had been transferred. . .
Cited – Director of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith HL 12-Jul-1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when . .
Cited – Daymond v South West Water Authority HL 1976
A statutory instrument required a rating authority to collect a charge referable to sewerage services ‘from every person who is liable to pay the general rate in respect of a hereditament’. A householder whose property was not connected to a sewer . .
Cited – Panagiotis Markopoulos and Others v Ypourgos Anaptyxis and Soma Orkoton Elegkton. ECJ 7-Oct-2004
The ECJ considered the interpretation of Article 15 of a directive (84/253/EEC) concerning who could be allowed to audit companies’ annual accounts, intended to harmonise the national laws of the member states and to require that none but approved . .
See Also – Oakley Inc v Animal Ltd. and others PatC 16-Mar-2005
. .
Cited by:
See Also – Oakley Inc v Animal Ltd. and others PatC 16-Mar-2005
. .
Appeal from – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.222796