It is a great privilege for me to give this lecture in honour of Lord Mackenzie-Stuart. I frequently had the privilege of appearing before him as counsel when he was judge at the European Court of Justice and also from 1984 to 1988 when he was President of the Court. It was on his departure from the Court in 1988 that I went to the Court as advocate general.

Lord Mackenzie-Stuart, who has long been interested in the influence of European Community law on public law in the United Kingdom, had recently published a paper entitled “Recent developments in English administrative law—the impact of Europe?” In returning to that theme this evening I should like to update the story of developments in English administrative law where there may be a European impact. I will also venture, perhaps over-ambitiously, to look briefly at the new constitutional reforms, and to see if there may be a European impact there too.

Government by the people presupposes that citizens are fully aware of public matters and properly informed. Nowadays, this is well understood and increasingly accepted. However, there is still disagreement as to how citizens are to check their government and what the limits of such control should be. In my view, it is essential that this scrutiny is generally available to all citizens and that it is provided in binding legal terms, the application of which is subject to legal appeal. However, a less stringent standard of scrutiny is often provided. Indeed, confusion between concepts is patent in this field and overshadows what is really at issue—the recognition of a fundamental right for citizens, which forms a basis for the exercise of several other rights. The right of citizens to review the exercise of public power is ultimately the foundation of both the principle of democracy and popular sovereignty.

We, human beings and human societies, become what we think we are. If we have conflicting ideas of what we are, we become a puzzle to ourselves and to others. If we have no clear idea of what we are, we become what circumstances make us. Conceptual dissonance and conceptual drift have been characteristics of the life-story of the three societies (called European Communities) which are now contained in a society called the European Union. A member of a select but ominous class of international social systems which also includes the Holy Roman Empire and the League of Nations, the European Union is a paradoxical social form, namely, an unimagined community.

One of the principal achievements of the 1994 Agreement establishing the World Trade Organization was the new mechanism for dispute settlement, embodied in the Understanding on Rules and Procedures Governing the Settlement of Disputes. While its predecessor, the General Agreement on Tariffs and Trade of 1947 (and the 1979 Agreements resulting from the Tokyo Round of Multilateral Trade Negotiations) had already evolved, to a considerable degree, from a negotiating forum for the conduct of world trade diplomacy to a “judicial” system properly so called, the WTO Dispute Settlement Understanding nevertheless marked a decisive step forward.

It was born, with much rejoicing, at a party near a quiet Luxembourg village; it died, alone and unlamented, on a desk in a non-descript Brussels office. On May 1, 1999, the fourteen-year old Schengen legal order finally breathed its last; but nothing quite became its life as the ending of it. For it was immediately reincarnated, with much confusion, into a legal system born in Rome over forty years ago. Long a byword for obsessive secrecy, unaccountability and complexity, the Schengen legal system has with one stroke moved from the “black market” of European integration into the mainstream.

In Grant v. South-West Trains, the European Court of Justice ruled that an employer’s refusal to grant an employee concessionary travel for her samesex partner on the company’s trains—when such a concession was readily available to employees with opposite-sex partners—did not constitute sex discrimination contrary to Article 141 of the EC Treaty. From the standpoint of Community law, the Grant decision has been criticised from a number of angles: for example, it has been suggested that the decision contains an ungenerous approach to the Community law principles of respect for fundamental rights and equality, that it is inconsistent with the Court’s earlier decision in P v. S and Cornwall County Council, and that—given the weight attached by the Court of Justice to European Convention on Human Rights case law—it has been undermined by the later decision of the European Court of Human Rights in Smith v. United Kingdom.

One of the most notable changes in the forty years since I left Cambridge at the end of my Law Tripos has been the growth in importance of a number of legal subjects previously either totally unknown, known but disregarded, or of interest only to an enthusiastic minority. Competition law certainly fell into one of these categories, not then being taught as a separate subject or even perhaps referred to by any lecturer, except on occasion in the context of “contracts in restraint of trade”. But now the subject has truly come of age and, like some other important commercial law topics which have deservedly earned a place within the regular syllabus of the L.L.M, finds itself referred to constantly not only in academic and professional literature but in the media. Its influence on our daily lives as citizens and consumers means that it is often the subject of headline reports (not always accurate) quite apart from its economic and political significance in the regional, national, European and world context. For example, to mention only one or two current issues, we have had the court case brought by the Office of Fair Trading against the Premier League challenging its collective sale to BSkyB of the television rights to Premier League football matches, and, major changes proposed in the UK defence industries as a result of the proposed acquisition by British Aerospace of the GEC defence businesses.

The European Union is faced with many challenges as the new millennium dawns. These range from highly political issues, such as the challenge of enlargement, to highly technical questions arising in areas such as regulation of anti-competitive behaviour. This article will examine one narrow, but topical, issue falling within the ambit of competition policy—how the rules of the EC Treaty on State aid should be applied in the area of broadcasting as it enters the new “Digital Age”.

The ruling of the European Court of Justice in C-212/97 Centros Ltd v. Erhvervs- og Selskabsstyrelsen suggests that the right of establishment enshrined in Article 43 (ex Article 52) of the EC Treaty includes the right to incorporate a company in the EC Member State with the most favourable company laws. The case provides a platform for arguing that choice of place of incorporation within the European Union is at the absolute discretion of business operators, after which point branches may be set up in any other Member State. Even if all activities are conducted in the Member State where the branch is situated, rather than in the Member State of incorporation, no abuse of Article 43 will arise, and the Member State in which the branch is located may be in no position to impede the establishment of a business which has utilised the vehicle of a foreign company.

There is a growing debate about the desirability of allowing greater scope for regulatory competition inside the European Union. The argument for doing so is that competition between the Member States in the production of legal rules will lead to greater economic efficiency than can be achieved through the harmonisation of standards. The Court’s ruling in Centros appears to mark a significant move in the direction of inter-state competition in company law. In deciding that a company founded by Danish citizens in the UK, thereby avoiding Danish minimum capital requirements, could not be denied the right to register an overseas branch in Denmark for the purposes of trading there, the Court has rekindled a long-running debate about the siège réel doctrine.

Although, in the history of the European Community, the period 1958 to 1985 will not be remembered for remarkable achievement as far as the freedom to provide transport services is concerned, the nineties have redressed the balance, even though a complete Common Transport Policy (CTP) has not yet been achieved. This paper seeks to summarise the current status of the CTP and to focus on two longstanding problems. These problems are the proposals to finance, and then maintain, transport infrastructures and the debate on the Community’s external competence in the field of transport, particularly sea and air transport. However, an appreciation of what has been achieved in the nineties cannot be done without recalling briefly some of the historical background.

Freedom of information is an idea which has been high on the political agenda of western democratic societies for many years. It has been cultivated, propagated and sometimes misused in self-interested fashion by the media. Its meaning, always imprecise, has fluctuated. It has been recycled under the American terms of “openness” and “Government in the Sunshine”. Recently it has been once more recycled under the fashionable term “transparency”. In the European context, this imprecision has been detrimental to the development of logical and sturdy principles concerning transparency and access to information. What has emerged from the conceptual confusion has been a reliance on the more restricted administrative law rights of access to information in contexts where a constitutional right to transparency would have been more appropriate, with a consequential impoverishment of the transparency concept in EC law.

There is without doubt a radical difference between the culture of open government in Sweden and the until recently prevailing culture of secrecy in Britain and within the European Union. From a classic British sceptic’s perspective, “public access to official documents is deemed unnecessary, since British democracy has functioned for so long without it”. The British “have always relied heavily, although not always successfully, on the concept of ‘ministerial responsibility’ to Parliament in order to secure public trust in government”. The mainstream of eighteenth-century British political thought held that the nation’s political well-being required the foundation of an informed gentleman citizenry. By the middle decades of the eighteenth-century, the movement away from the idea of a citizenry composed exclusively of gentlemen was firmly established on both sides of the Atlantic. It became increasingly acknowledged that men of the “meaner sort” should have the right to hold opinions on public affairs and ought to be allowed to protest against governments and laws they deemed improper.

In the course of attempts by the Thatcher administration to restrain the publication of Spycatcher, the memoirs of a former member of the security and intelligence services, the United Kingdom’s most senior civil servant, the Cabinet Secretary, was subjected to several days of intense cross-examination before Justice Powell in New South Wales and in the High Court in London. Sir Robert Armstrong’s testimony ranged across the recent history of government reactions to the proposed publication of sensitive information by former members of the security services and has since become a significant piece in the jigsaw of the British constitution.

My paper on the Corpus Juris project in the first volume of this Yearbook closed by saying, in effect, “Watch this space!” At the end it told how, at the time of writing, the European Parliament and Commission had re-engaged the original team that drafted the proposals, plus some others, and constituted them as a Comité du suivi with instructions to find out how hard or easy it would be to integrate the Corpus scheme into the existing legal systems of the Member States. And it also told how the House of Lords Select Committee on the European Communities had begun to carry out a study of the Corpus project.

The judgments of the Community judicature are often subject to intense scrutiny by the media and by academic writers. The European Court of Justice, in particular, is regularly accused of being by and large an “activist” court, namely a court that construes EC law in the light of the objective the judges are trying to pursue. In particular, it is argued that the European Court uses the teleological method of interpretation to enhance the effectiveness of Community law at the expense of the written legal texts. Several studies have been published on the supposed “activist” role of the European Court and as many (or more) have been written in defence of the Court. The common denominator of all these works is that they are selective.