[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales High Court (Administrative Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> R. v Secretary of State for Foreign and Commonwealth Affairs ex p. Rees-Mogg [1993] EWHC Admin 4 (30 July 1993) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1993/4.html Cite as: [1993] EWHC Admin 4, [1994] 2 WLR 115, [1993] 3 CMLR 101, [1994] QB 552, [1994] 1 All ER 457 |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Strand London WC2 |
||
B e f o r e :
LORD JUSTICE MANN
and
MR JUSTICE AULD
____________________
CROWN OFFICE LIST | ||
R E G I N A | ||
v | ||
SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS | ||
EX PARTE LORD REES MOGG |
____________________
Official Shorthand Writers to the Court)
MR S KENTRIDGE QC, MR S RICHARDS and MR D ANDERSON (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
____________________
Crown Copyright ©
Friday, 30th July 1993
LORD JUSTICE LLOYD: The applicant in these proceedings, the Rt. Hon. Lord Rees Mogg, seeks inter alia a declaration that the United Kingdom may not lawfully ratify the Treaty on European Union signed at Maastricht on 7th February 1992. Mr Pannick QC advances three main arguments on his behalf. First, by ratifying the Protocol on Social Policy the Government of the United Kingdom would be in breach of section 6 of the European Parliamentary Elections Act 1978. Secondly, by ratifying the Protocol, the Government would be altering the content of Community Law, without Parliamentary approval. Thirdly, by ratifying Title V of the Treaty, the Government would be transferring part of the Royal Prerogative to community institutions without statutory authority, namely, the power to conduct foreign and security policy.
"It therefore behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament or, so far as this can be avoided, even appearing to do so."
1. Of the 4,333 applications for judicial review received between 1987 and 1989, Ministers of the Crown were respondents is 1,558, or 36%. Local authorities were respondents in 1,119, or 25%. Between 1989 and 1992 the total number of applications rose by 54%. We have no reason to suppose that the ratios have not remained much the same. Source: Judicial Review in Perspective 1993 by Maurice Sunkin and others.
any of the lengthy extracts from Hansard contained in Lord Rees Mogg's affidavit. There are passages in that affidavit, and in Form 86A itself, which refer to the "deliberate" amendment by Parliament of the Bill as originally presented, and the "conscious" and "deliberate" exclusion of the Protocol on Social Policy from section 1(1) of the Act. But Mr Pannick has not relied on those passages. Indeed he has not referred to the affidavit at all. The case thus wears a very different aspect from what it did when leave was granted.
There is no dispute as to the applicant's locus standi, and in the circumstances it is not appropriate to say any more about it, save to refer to the observations of Slade LJ in ex parte Smedley at page 669. It is suggested by Mr Kentridge that these proceedings are no more than a continuation by other means of arguments ventilated in Parliament. Be that as it may, we accept without question that Lord Rees Mogg brings the proceedings because of his sincere concern for constitutional issues.
THE FIRST ISSUE
"(1) No treaty which provides for any increase in the powers of the European Parliament shall be ratified by the United Kingdom unless it has been approved by an Act of Parliament.
(2) In this section 'treaty' includes any international agreement, and any protocol or annex to a treaty or international agreement".
"1 (1) In section 1(2) of the European Communities Act 1972, in the definition of "the Treaties" and "the Community Treaties", after paragraph (j) (inserted by the European Communities (Amendment) Act 1986) there shall be inserted the words "and
(k) Titles II, III, and IV of the Treaty on European Union signed at Maastricht on 7th February 1992, together with the other provisions of the Treaty so far as they relate to those Titles, and the Protocols adopted at Maastricht on that date and annexed to the Treaty establishing the European Community with the exception of the Protocol on Social Policy on page 117 of Cm 1934.
(2) For the purpose of section 6 of the European Parliamentary Elections Act 1978 (approval of treaties increasing the Parliament's powers) the Treaty on European Union signed at Maastricht on 7th February 1992 is approved".
THE TREATY
Title I contains Common Provisions
Title II contains provisions amending the Treaty of Rome
Title III makes provision for amending the Treaty establishing the European Coal & Steel Community
Title IV makes a provision for amending the Treaty establishing the European Atomic Energy Community
Title V contains provisions on a Common Foreign and Security Policy. We shall return to Title V when we consider Mr Pannick's third argument.
Title VI contains Provisions on Co operation in the Fields of Justice and Home Affairs.
Title VII contains Final Provisions, one of which, Article R, provides
"(1) This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the government of the Italian Republic.
(2) This Treaty shall enter into force on 1st January 1993, provided that all the instruments of ratification have been deposited, or failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step."
Title VII concludes
"Done at Maastricht on 7th day of February in the year One Thousand Nine Hundred and Ninety Two."
Beneath the date appear the signatures of the Plenipotentiaries of the High Contracting Parties.
After the Protocols there comes the Final Act. It provides as follows
"The Conferences of the Representatives of the Governments of the Member States....have adopted the following texts:
I
THE TREATY ON EUROPEAN UNION
II
PROTOCOLS
[and it then sets out the titles of the 17 Protocols. It then continues]
"The Conferences agreed that the Protocols referred to in 1 16 above will be annexed to the Treaty establishing the European Community and that the Protocol referred to in 17 above will be annexed to the Treaty on European Union and to the Treaties establishing the European Communities.
III
DECLARATIONS
Moreover the Final Act identifies three separate texts, (i) the Treaty on European Union (ii) the Protocols and (iii) the Declarations. This shows, says Mr Pannick, that the Protocols are not part of the Treaty. He accepts that the Treaty contains a number of cross references to the Protocol. But it is significant, he says, that all such cross references are in Title II of the Treaty. Title II contains the amendments to the Treaty of Rome. There is no mention of the Protocols in any of the other Titles.
We would hesitate long and hard before holding, on the internal evidence to which Mr Pannick drew attention, that the Protocols are not intended to be part of the Union Treaty. The arguments the other way are much stronger. For example, the only provision relating to ratification is Article R of Title VII. There is no separate provision calling for ratification of the Protocols or the Declarations. It is inconceivable that the High Contracting Parties did not intend Article R to cover ratification of the Protocols as well as ratification of the Treaty. If so, it follows they were using the word "Treaty" to include the Protocols.
"It is, however, correct to say that the protocol is now used principally as an instrument subsidiary to a treaty or convention, usually (but not necessarily) drawn up by the same negotiators, and dealing with ancillary or incidental matters such as the interpretation of particular articles of the main treaty or any supplementary provision of a minor character. Ratification of the Treaty or Convention will normally ipso facto involve ratification of any supplementary or additional protocol of this nature."
THE ACT
But the purposes of section 1(1) and section 1(2) are quite different. The purpose of section 1(1) is to incorporate certain parts of the Union Treaty in English domestic law. It was necessary to refer to Titles II III & IV of the Treaty, because Titles I, V, VI and VII are not incorporated. It was necessary to refer to the Protocols, because the Protocol on Social Policy is not incorporated. But for the exclusion of Titles I V, VI & VII (save in so far as they relate to Titles II, III, IV) and but for the exclusion of the Protocol on Social Policy, section 1(1) would have referred to the Treaty in the same way as section 1(2).
The purpose of section 1(2) is, of course, quite different. It is to ensure that the Treaty as a whole, including the Protocols (see section 6(2) of the 1978 Act) could be ratified by the United Kingdom without breach of the 1978 Act. It is plain, almost beyond argument, that this is what section 1(2) means. If Mr Pannick's argument were correct, and the reference to the Treaty in section 1(2) does not include the Protocols, then all the Protocols would have been left hanging in the air. Without being able to ratify the Protocols, the United Kingdom would have been unable to ratify the Treaty, and the whole exercise on which Parliament was engaged would have been reduced to futility. What could have been the point of incorporating all the Protocols, in English domestic law, save only Protocol 14, unless it was intended by Parliament that the Protocols should be approved for ratification? It follows that the Treaty in section 1(2) cannot bear the narrow meaning for which Mr Pannick contends. It must, and does, include all the Titles, all the Protocols and all the Declarations.
In reaching this view we are fortified by consideration of the long title. It reads
"An Act to make provision consequential on the Treaty on European Union signed at Maastricht on 7th February 1992."
The days are long since past when courts declined to regard the long title as an aid to construction. Prima facie, "Treaty on European Union" in section 1 should have the same meaning as in the long title. But in the long title it must include the Protocols, because otherwise many of the provisions contained in sections 2 5 which are clearly consequential on the Protocols, would not be consequential on the Treaty. Thus section 2 contains provisions which are consequential on Protocol 11. That is the Protocol which concerns the United Kingdom's other opt out, namely, the opt out from the third stage for achieving economic and monetary union. If it be said that section 2 of the Act is also "consequential on" the Treaty, namely, chapter 4 of Title II this only shows how closely, and indeed inextricably, the Treaty and the Protocols are intertwined. We need not multiply examples.
PEPPER V HART
My Hon. friend is indeed I do not blame him for this because I have wandered through his tracks myself showing himself to be a layman. The opt out is in the Treaty. The Protocol is attached to the Treaty. The Protocol is part of the Treaty. Its status in the Treaty is not affected by the amendment. I am seeking to show following the advice from my Rt. Hon. and learned friend the Attorney General that the effect of the amendment is simply on the question whether the opt out Protocol should be embodied in domestic law. Its status in the Treaty and its value as an opt out are not affected by the amendment, because the opt out remains in the Treaty."
"Clause 1(2) of the bill satisfies the requirement in the 1978 European Parliamentary Elections Act that treaties increasing the powers of the European Parliament should be approved by an Act of Parliament before U.K. ratification. Clause 1(2) gives a global approval to all three pillars of the Treaty, and to all the Protocols."
THE SECOND ISSUE
"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties....are without further enactment to be given legal effect....in the United Kingdom".
The same implication is said to arise from section 2(2) of the Act which makes express provision for the implementation of Community obligations by Order in Council. Where Parliament has by statute covered the very same ground as was formerly covered by the Royal Prerogative, the Royal Prerogative is to that extent, by necessary implication, held in abeyance: see Attorney General v De Keyser's Royal Hotel Ltd 1920 AC 508, Laker Airways Ltd v Department of Trade 1977 1 QB 643 per Roskill LJ at page 718 720.
For the above reasons we would reject Mr Pannick's second main argument.
THE THIRD ISSUE
Title V of the Union Treaty establishes a common foreign and security policy among the Member States. The objectives are set out in article J.1.2. Article J.1.4 provides
"The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations. The Council shall ensure that these principles are complied with".
"The common, foreign and security policy shall include all questions related to the security of the Union, including the eventual framing of a common defence policy, which might in time lead to a common defence".
Title V is not, of course, included in section 1(1) of the 1993 Act, since it is an inter governmental Agreement, which could have no impact on United Kingdom domestic law. The arguments advanced by Mr Pannick under this head are therefore of a very different nature from the arguments so far considered.
In support of his general proposition, Mr Pannick quotes a number of old authorities, starting with the Case of the King's Prerogative in Saltpetre (1606) 12 Coke's Reports 12. He also relies on a very recent decision of the Irish Supreme Court in relation to the Single European Act whereby the court held, by a majority, that it was not competent for the Government of Ireland to ratify Title III of the Act without a referendum: see Raymond Crotty v An Taoiseach 1987 2 CMLR 666. We quote simply from the headnote
"It would be quite incompatible with the freedom of action in foreign relations conferred on the Government by the Irish Constitution for the Government to qualify it or to inhibit it in any manner by formal agreement with other states to do so. That freedom does not carry with it the power to abdicate the freedom or to enter into binding agreement with other states to exercise the power to decide matters of foreign policy in a particular way or to refrain from exercising it save by particular procedures and so to bind the state in its freedom of action in its foreign policy. Title III of the Single European Act requires such limitations on the Government's freedom of action in foreign relations and therefore may not be ratified without a referendum".
Mr Pannick submits that, by the same token, the effect of Title V of the Union Treaty is, or will be, that the Crown has transferred its prerogative power in relation to foreign policy, security, and ultimately defence, to the Council without statutory enactment. But we do not consider that the Raymond Crotty case affords any real assistance, because the issues there turned solely on the provisions of the Irish Constitution.
Mr Kentridge's first answer is that the questions raised under this head are simply not justiciable in the English courts. A similar point arose in Blackburn v The Attorney General 1971 1 WLR 1037. In that case Mr Raymond Blackburn sought a declaration that by signing the Treaty of Rome the Government would be surrendering forever a part of the sovereignty of the Crown in Parliament, and that by so doing it would be in breach of the law. There was an application to strike out the action. The application succeeded both at first instance and on appeal. Lord Denning set out the general principle in relation to treaties and continued
"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 the Crown. Their action in so doing cannot be challenged or questioned in these courts".
The authority of Blackburn v The Attorney General has recently been confirmed by the House of Lords in J H Rayner Ltd v Department of Trade 1990 2 AC 418 per Lord Oliver at page 499 500. Mr Kentridge submits that what was true in 1971 before the Treaty of Rome was signed is as true today in relation to Title V of the Union Treaty. Since no question of domestic law is involved, the court has no jurisdiction even to consider the questions raised by Mr Pannick under this head.
So we will assume, contrary to Mr Kentridge's argument, that we are entitled to consider the questions raised by Mr Pannick. We will also assume (what was not in dispute) that the Government could not lawfully transfer any part of the Crown's prerogative powers in relation to foreign affairs without statutory enactment. Where does that take us? It takes us to this: that even if one reads Title V with an eye most favourable to Mr Pannick's argument, it cannot be regarded as a transfer of prerogative powers. As Mr Kentridge succinctly put it, Title V does not entail an abandonment or transfer of prerogative powers; but an exercise of those powers. We agree. So far as we know, nobody has ever suggested that the Charter of the United Nations, for example, or of the North Atlantic Treaty Organisation, involves a transfer of prerogative powers. Title V should be read in the same light. In the last resort, as was pointed out in argument, though not pursued, it would presumably be open to the Government to denounce the Treaty, or at least to fail to comply with its international obligations under Title V.
For the reasons given the applicant is not entitled to any of the declarations for which he asks.
LORD JUSTICE LLOYD: Nothing more, Mr Kentridge? Mr Pannick, I notice you have four counsel yourself.
LORD JUSTICE LLOYD: Thank you very much.
LORD JUSTICE LLOYD: Thank you both very much.
© Crown Copyright