A matter of interpretation? Garland v British Rail (1983) Th e issue before their Lordships in Garland115 was whether the Sex Discrimination Act 1975 prohibited gender discrimination in relation to concessionary travel facilities 112 Ibid. 113 An excellent analysis is off ered in Allan T (1983) Parliamentary sovereignty: Lord Dennings dexter114 3 All ER 325 at 329, CA. ous revolution OJLS 22. 115 2 AC 751. 380

THE EUROPE AN ECONOMIC COMMUNIT Y 19571986 extended to British Rails retired employees. Such discrimination seemed as though it might contravene Art 119, so the prospect again arose of a confl ict between EEC law and a subsequent domestic statute. Somewhat peculiarly, Lord Diplock (for a unanimous House) made an extensive reference to how he would approach the question if the EEC was an ordinary international law treaty: it is a principle of construction of United Kingdom statutes . . . that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom are to be construed, if . . . reasonably capable of bearing such a meaning, as intended to carry out the obligation and not to be inconsistent with it.116

Th is technique would be incompatible with Van Gends new legal order principle, and would thus breach the ECA 1972 s 3. It would be not irrelevant,117 as one commentator put it, but legally indefensible from the ECJs perspective.

Lord Diplock perhaps made this point to highlight the innovative nature of EEC law, for he did not decide the case on that basis. Rather he suggested that the ECA 1972 s 2 had introduced a new rule of statutory interpretation to which the courts were now subjected. A UK court should construe all domestic legislation in a manner respecting EEC obligations: however wide a departure from the prima facie meaning of the language of the provision might be needed in order to achieve consistency.118 In this case, the 1975 Act could be interpreted as compatible with EEC law without any undue straining of the ordinary meaning of the language used.119 In that respect, Diplock shared Dennings sentiment in Macarthys. He also agreed with Denning that UK courts must obey a statute breaching EEC law in express positive terms. He was more circumspect about the doctrine of implied repeal: this was not an appropriate case to decide that question.