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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Blackburn v The Attorney General  EWCA Civ 7 (10 May 1971)
Cite as:  CMLR 784,  EWCA Civ 7,  2 All ER 1380,  WLR 1037,  1 WLR 1037
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COURT OF APPEAL.
Appeal by plaintiff from judgment of Mr. Justice Eveleigh
on 27th February, 1971.
B e f o r e :
LORD JUSTICE SALMON and
LORD JUSTICE STAMP.
| ALBERT RAYMOND BLACKBURN
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C. 2.)
Mr. GORDON SLYNN (instructed by the Treasury Solicitor) appeared on behalf of the Respondent*
Crown Copyright ©
THE MASTER OF THE ROLLS: In this case Mr. Blackburn - as he has done before - has shown eternal vigilance in support of the law. This time he is concerned about the application of Her Majesty's Government to join the Common Market and to sign the Treaty of Rome. He brings two actions against the Attorney-General, in which he seeks declarations to the effect that, by signing the Treaty of Rome, Her Majesty's Government will surrender in part the sovereignty of The Crown in Parliament and will surrender it for ever. He says that in so doing the Government will be acting in breach of the law. The Attorney-General has applied to strike out the Statements of Claim on the ground that they disclose no reasonable cause of action. The Master and the Judge have struck them out. Mr. Blackburn, with our leave, appeals to this Court. He thinks it is important to clear the air.
Much of what Mr. Blackburn says is quite correct. It does appear that if this country should go into the Common Market and sign the Treaty of Rome, it means that we will have taken a step which is irreversible. The sovereignty of these islands will thenceforward be limited. It will not be ours alone but will be shared with others. Mr. Blackburn referred us to a decision by the Court of Common Market Costa v. E.N.E.L. (1964 Common Market Law Reports, 425) in February, 1964, in which the European Court in its judgment said that:
".....the member states, albeit within limited spheres, have restricted their sovereign rights and created a body of law applicable both to their nationals and to themselves".
Mr. Blackburn points out that many regulations made by the European Economic Community will become automatically binding on the people of this country: and that all the Courts of this country, including the House of Lords, will have to follow the decisions of the European Court in certain defined respects, such as the construction of the Treaty.
I will assume that Mr. Blackburn is right in what he says on those matters. Nevertheless, I do not think these Courts can entertain these actions. Negotiations are still in progress for us to join the Common Market. No agreement has been reached.
No Treaty has been signed. Even if a treaty is signed, it is elementary that these Courts take no notice of treaties as such. We take no notice of treaties until they are embodied in laws enacted by Parliament, and then only to the extent that Parliament tells us. That was settled in a case about a treaty between the Queen of England and the Emperor of China. It is Rustomjee v. The Queen (1876 2 QBD 69). Lord Coleridge, the then Chief Justice said at page 74:
"She" - that is The Queen - "acted throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own Courts".
Mr. Blackburn acknowledged the general principle, but he urged that this proposed treaty is in a category by itself, in that it diminishes the sovereignty of Parliament over the people of this country. I cannot accept the distinction. The general principle applies to this treaty as to any other. The treaty-making power of this country rests not in the Courts, but in the Crown; that is, Her Majesty acting upon the advice of her Ministers. When Her Ministers negotiate and sign a treaty, even a treaty of such paramount importance as this proposed one, they act on behalf of the country as a whole. They exercise the prerogative of Crown. Their action in so doing cannot be challenged or questioned in these Courts.
Mr. Blackburn takes a second point. He says that, if Parliament should implement the Treaty by passing an Act of Parliament for this purpose, it will seek to do the impossible. It will seek to bind its successors. According to the Treaty, once it is signed, we are committed to it irrevocably. Once in the Common Market, we cannot withdraw from it. No Parliament can commit us, says Mr. Blackburn, to that extent. He prays in aid the principle that no Parliament can bind its successors, and that any Parliament can reverse any previous enactment. He refers to what Professor Maitland said about the Act of Union between England and Scotland. Professor Maitland in his Constitutional History of England said at page 332:
"We have no irrepealable laws; all laws may be repealed by the ordinary legislature, even the conditions under which the English and Scottish Parliaments agreed to merge themselves in the Parliament of Great Britain".
We have all been brought up to believe that, in legal theory, one Parliament cannot bind another and that no Act is irreversible. But legal theory does not always march alongside political reality. Take the Statute of Westminster; 1931, which takes away the power of Parliament to legislate for the Dominions. Can any one imagine that Parliament could or would reverse that Statute? Take the Acts which have granted independence to the Dominions and territories overseas. Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away. Legal theory must give way to practical politics. It is as well to remember the remark of Lord Sankey, Lord Chancellor, in British Coal Corporation v. The King (P.C. 1935 AC 500) at page 520:
"The Imperial Parliament could, as matter of abstract law, repeal or disregard Section 4 of the Statute of Westminster. But that is theory and has no relation to reality".
What are the realities here? If Her Majesty's Ministers sign this treaty and Parliament enacts provisions to implement it, I do not envisage that Parliament would afterwards go back on it and try to withdraw from it. But, if Parliament should do so, then I say we will consider that event when it happens. We will then say whether Parliament can lawfully do it or not.
Both sides referred us to the valuable article by Professor H.W.R. Wade in the Cambridge Law Journal, 1955, at page 196, in which he said that "sovereignty is a political fact for which no purely legal authority can be constituted". That is true. We must wait to see what happens before we pronounce on sovereignty in the Common Market.
So, whilst in theory Mr. Blackburn is quite right in saying that no Parliament can bind another, and that any Parliament can reverse what a previous Parliament has done, nevertheless so far as this Court is concerned, I think we will wait till that day comes. We will not pronounce upon it today.
A point was raised as to whether Mr. Blackburn has any standing to come before the Court. That is not a matter upon which we need rule upon today. He says that he feels very strongly and that it is a matter in which many persons in this country are concerned. I would not myself rule him out on the ground that he has no standing. But I do rule him out on the ground that these Courts will not impugn the treaty-making power of Her Majesty, and on the ground that insofar as Parliament enacts legislation, we will deal with that legislation as and when it arises.
I think the statements of claim disclose no cause of action, and I would dismiss the appeal.
LORD JUSTICE SALMON: Whilst I recognise the undoubted sincerity of Mr. Blackburn's views, I deprecate litigation the purpose of which is to influence political decisions. Such decisions have nothing to do with these Courts. These Courts are concerned only with the effect of such decisions if and when they have been implemented by legislation. Nor have the Courts any power to interfere with the treaty-making power of the Sovereign. As to Parliament, in the present state of the law, it can enact, amend and repeal any legislation it pleases. The sole power of the Courts is to decide and enforce what is the law and not what it should be - now, or in the future.
I agree that this appeal should be dismissed.
LORD JUSTICE STAMP: I agree that the appeal should be dismissed; but I would express no view whatsoever upon the legal implications of this country becoming a party to the Treaty of Rome. In the way Mr. Blackburn put it I think he confused the division of the powers of the Crown, Parliament and the Courts. The Crown enters into treaties; Parliament enacts laws; and it is the duty of this Court in proper cases to interpret those laws when made; but it is no part of this Court's function or duty to make declarations in general terms regarding the powers of Parliament, more particularly where the circumstances in which the Court is asked to intervene are purely hypothetical. Nor ought this Court at the suit of one of Her Majesty's subjects to make declarations regarding the undoubted prerogative power of the Crown to enter into treaties.
Mr GORDON SLYNN: My Lord, there has been leave to appeal on each of these appeals, and these appeals will be dismissed?
THE MASTER OF THE ROLLS: Yes.
Mr GORDON SLYWN: I ask that the appeals both be dismissed with costs.
THE MASTER OF THE ROLLS: The appeals must be dismissed with costs, Mr. Blackburn.
Mr GORDON SLYNN: I am much obliged, my Lord.