MUCH has been written about the uniqueness of Community law and the significance of the fact that the European Community is a supranational system, its hallmark being the creation of rights and duties for individuals and the supremacy of Community law over national law in the event of a conflict.2 It is clear that Community law reaches parts of the domestic legal system which other kinds of international law3 cannot reach. Lord Denning once stated:
'The treaty does not touch any of the matters which concern solely the mainland of England and the people in it. They are still governed by English law. They are not affected by the treaty. But when we come to matters with a European element, the treaty is like an incoming tide. It flows up the estuaries and up the rivers. It cannot be held back'.4
More than twenty years on, however, it is apparent that the domestic impact of Community law is not confined to cases with a European element. Already there are several examples of what might be called the pervasive influence of Community law in the United Kingdom, particularly in the sphere of public law.
Ever since the entry into force of the European Communities Act 1972,5 British judges have been required (in the absence of a reference to the European Court of justice under Article 177 EC) to determine 'any questions as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument..in accordance with the principles laid down by and any relevant decision of the European Court'.6 A similar requirement is laid down by s 3(1) of the Civil jurisdiction and Judgments Act 19827 in respect of the 1968 Brussels Convention on jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, which the European Court regards as part of the Community legal order.8
Above all, this means adopting a schematic and purposive (teleological) approach to interpretation rather than a literal and historical approach.9 As David Pannick QC has put it:
'To examine where the commas have been placed in the relevant provisions of the treaty in an effort to identify their precise meaning is to misunderstand the way in which Community law operates. The role of the European Court is to add spirit to the words of Community texts. When interpreting those provisions of the treaty from which the United Kingdom has not opted out, the court will consider itself entitled..to assess what the concept of a community requires having regard to the social, economic and political realities of the day'.10
Not surprisingly, judicial adjustment to purposive interpretation was not without its difficulties.11 The Court of Appeal's approach to the construction of Article 30 EEC in R v Henn and Darby12 remains one of the best examples of how not to interpret Community law. When that case came before the House of____________________