Talk:Thoburn v Sunderland City Council

message: Made this page as i thought wiki was lacking here. Please modify as you see fit Will 13:22, 9 January 2007 (UTC)
thread_title: start of article

message: :"The Appellants also argued, relying on a 19th century decision of the Australian High Court"
The High Court of Australia wasn't created until 1903. Someone who knows this case might want to edit that. Perhaps it was the supreme court of an British colony in Australia, or a 20th century decision?
—Felix the Cassowary 15:12, 3 August 2009 (UTC)
replies: text: Goodwin v Phillips [1908] 7 CLR 1.  Appropriate changes have been made. Tevildo (talk) 23:38, 6 November 2009 (UTC)
thread_title:  Australian High Court 

message: I have edited this page as parts of it were tendentious and argumentative.   It is incorrect, for example, to suggest that the court did not follow Factortame.  As for Hansard references, this was not a Pepper v Hart case.  Laws LJ explained this clearly in his judgment.  The advice from the law officers provided in 1972 was not available to the court and in any event was not an authority.  Tina Redhead. 23 12 2012
This text was moved to the end of the page as per Wikipedia convention by me Martinvl (talk) 08:02, 23 December 2012 (UTC)
replies: text: I notice that the article was thoroughly rewritten in 2007 [] and that in 2009 an IP claiming to be the lead barrister for Thorburn et al, the barrister and conspiracy theorist Michael Shrimpton, gave a powerful endorsement above. Tina Redhead and TheRedPenOfDoom's excisions of tendentious text produced in that rewrite and so endorsed are entirely appropriate. On reading the judgment, it seems that some excised text is not merely original research but even misrepresentation.  NebY (talk) 19:11, 23 December 2012 (UTC)
replies: text: My apologies for placing my comment in the wrong place.     Thanks for your support of my editing.  The tendentious parts of the article appeared to have been written by someone with a less than neutral perspective.   Tina Redhead.  — Preceding unsigned comment added by Tina Redhead (talk • contribs) 23:26, 23 December 2012 (UTC)
replies: text: I have added a few more edits.  I have referred to Laws LJ as such, in accordance with the usual convention for describing English Judges.  I have also edited the reference to Factortame and implied repeal with a view to offering what i hope is a clearer summary of the point, and have tidied up the style in that passage.  Tina Redhead (talk) 23:39, 23 December 2012 (UTC)
replies: text: Wikipedias Manual of style does NOT support the use of such honorifics. -- TRPoD aka The Red Pen of Doom 01:03, 24 December 2012 (UTC)
replies: text: My apols, and noted.  I have made a few more edits, addressing one controversial point about an alleged concession, and making the point that, strictly speaking, the Constitutional statute observations were obiter, but I shall leave it now, as otherwise it will be as overcooked as a Christmas turkey!Tina Redhead (talk) 06:04, 24 December 2012 (UTC)
replies: text: Indentation of previous postings. Martinvl (talk) 07:16, 24 December 2012 (UTC)
thread_title: Changes of 23 December 2012

message: Using an indirect selective quote from the publication of an advocacy group might give a false impression of partisanship, so I have referenced the original source more directly, though –unfortunately – also a copy hosted by an anti-metrication advocacy group, rather than a neutral institution. This, at least, gives the reader the opportunity of reading all of the original judgment. 
I have also included a longer quote from the original judgment that includes the important "has agreed to be bound by the rules and regulations of the club", and better illustrates the the judge's rationale for the primacy of European law, based on an act of parliament (and thus the dualistic approach to international law).
--Boson (talk) 13:40, 4 April 2014 (UTC)
thread_title:  Quotation from original judgment in Sunderland 

message: This article remains far too reliant upon primary sources and even participants.
Today I reverted an edit which reversed the sense of the lead. The editor's edit summary was "As leading junior counsel for the appellants I have corrected a major error of law. The court noticeably declined to follow Factortame, which was wrongly decided" and my reversal summary was "Per WP:NPOV and WP:RS, Wikipedia cannot rely on the opinion of an IP who claims to have been a counsel for the appellants." to which I should have added - given space - that our WP:V, WP:OR and WP:COI policies apply too.
I did review the judgment; my lay reading is that both sides offered (among many others) arguments based on Factortame and the court did not fully accept such arguments from either side, but it is not clear that the court declined completely to follow Factortame. The further text inserted into the article, "holding that the question of which system of law was to prevail had to be decided exclusively by reference to English law", is at least selective and a poor summary of Laws' four propositions, but appears also to be tendentious and reflect a point of view apparently still held by some counsel (see Talk:Thoburn_v_Sunderland_City_Council#Australian High Court and Talk:Thoburn_v_Sunderland_City_Council#Changes of 23 December 2012 above) that this case as well as Factortame was wrongly decided.
If we cannot follow WP:V then it might be best to consider whether the lead should give any account given in Wikipedia's editorial "voice" concerning the court's attitude to Factortame or attempt any one-line summary of the judgment's four propositions. NebY (talk) 15:29, 10 August 2014 (UTC)
replies: text: I have attempted to take account of the objections by rewording and by reference to a secondary source. Hope that helps. I take it that the main objection is that in Thoburn it was held that ECJ jurisprudence cannot be entrenched in UK law but supremacy must be explained in terms of the common law.  It still boils down to Parliament voluntarily accepting the supremacy of EU law with the ECA etc. I have cited Craig et al. 4th edition (which I have here). I believe there is now a 5th edition, but I doubt that part has changed (except the page number).  --Boson (talk) 23:11, 10 August 2014 (UTC)
replies: text: That looks much more appropriate; it speaks to the lay reader about how the judgment left the law rather than the details of which precedents the court followed. And properly sourced too! I've tidied up a little at the other end of the article. I haven't touched the tags, on the basis that much of the body still depends on primary sources and doesn't directly cite the texts listed as references. NebY (talk) 09:41, 11 August 2014 (UTC)
replies: text: As a practising public lawyer (but not a participant in this case), I suggest that it is plain from the judgment that the Court applied Factortame.  See in particular paragraph 61:
"The present state of our domestic law is such that substantive Community rights prevail over the express terms of any domestic law, including primary legislation, made or passed after the coming into force of the ECA, even in the face of plain inconsistency between the two. This is the effect of Factortame (No 1) [1990] 2 AC 85. To understand the critical passage in Lord Bridge's speech it is first convenient to repeat part of ECA s.2(4):
"The provision that may be made under subsection (2) above includes… any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of the section."
In Factortame (No 1) Lord Bridge said this at 140:
"By virtue of section 2(4) of the Act of 1972 Part II of the [Merchant Shipping] Act of 1988 is to be construed and take effect subject to directly enforceable Community rights... This has precisely the same effect as if a section were incorporated in Part II of the Act of 1988 which in terms enacted that the provisions with respect to registration of British fishing vessels were to be without prejudice to the directly enforceable Community rights of nationals of any member state of the EEC."
So there was no question of an implied pro tanto repeal of the ECA of 1972 by the later Act of 1988; on the contrary the Act of 1988 took effect subject to Community rights incorporated into our law by the ECA. In Factortame no argument was advanced by the Crown in their Lordships' House to suggest that such an implied repeal might have been effected. It is easy to see what the argument might have been: Parliament in 1972 could not bind Parliament in 1988, and s.2(4) was therefore ineffective to do so. It seems to me that there is no doubt but that in Factortame (No 1) the House of Lords effectively accepted that s.2(4) could not be impliedly repealed, albeit the point was not argued."
Mr Tangle (talk) 20:54, 19 October 2014 (UTC)
replies: text: I add that there is no reputable body of opinion that Factortame was wrongly decided.  It is routinely applied in English Courts, and is indeed used as a basis for damages claims against the Statehttp://ec.europa.eu/eu_law/infringements/pdf/jur_09_30385_en.pdf.  Some of the suggested edits made (apparently) by Mr Shrimpton appear to be an attempt to re argue the case on WikipediaMr Tangle (talk) 05:54, 20 October 2014 (UTC)
thread_title:  Policies, sources and Factortame 

message: I have removed the comments said to derive from the Appellant's counsel about events during and after argument, as they appear to be based on participant recollection and are in any event not relevant to a neutral description of what the case decided.
I have also deleted the suggestion that Laws rejected the Respondents' argument about consolidating statutes, as he did not (paragraph 52 of the judgment).Mr Tangle (talk) 06:17, 20 October 2014 (UTC)
thread_title:  Further edits 20 October 2014 

message: The judgment of the Divisional Court can be used as a source for summaries of the arguments, and for what was decided.  The arguments themselves are not available online.  The section on the arguments is probably over detailed anyway. 193.108.78.10 (talk) 10:30, 29 October 2014 (UTC)
thread_title:  References for High Court section 

message: The judgment is the best reference for the facts.  193.108.78.10 (talk) 11:51, 29 October 2014 (UTC)
thread_title:  Reference for facts section