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England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [2003] EWCA Civ 1002

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Neutral Citation Number: [2003] EWCA Civ 1002
Case No: C1/2003/1024


Royal Courts of Justice
Strand, London, WC2A 2LL
14 July 2003

B e f o r e :



- and -



John Macdonald QC & Colin Braham (instructed by Jordan's Solicitors) for the Appellant
Philip Sales (instructed by Treasury Solicitor) for the Respondent
Hearing dates : 4 July 2003



Crown Copyright ©

    Lord Justice Schiemann :

  1. This is the judgment of the court. The applicant seeks permission to appeal from a judgment of Silber J who refused him, permission to apply for judicial review. The judge was not persuaded that there was an arguable case that the court should make any of six declarations sought by the applicant. Before us, the applicant applied to add a seventh declaration which he would ultimately wish the court to make. The declarations sought are follows:
  2. (i) The Court will recognise and protect certain fundamental rights as constitutional
    (ii) Amongst those rights is the right of citizens not to be subjected to a new constitution unless they have given their approval to it
    (iii) Such approval must be given through the ballot box
    (iv) Ratification of the proposed treaty establishing a constitution for Europe necessarily involves a new constitutional settlement for the U.K.
    (v) Such a constitutional settlement can lawfully be made only with the consent of Parliament and the people of the U.K.
    (vi) The consent of the people should be sought in a referendum held promptly in accordance with the Political Parties Elections and Referendums Act 2000 before the Treaty is ratified
    (vii) It is a convention of the constitution of the U.K. that a substantial constitutional change cannot be made (and therefore cannot be adopted) unless such a proposal has been approved by the electorate either as a result of the proposal being included in the manifesto of the party returned to government or in a referendum
  3. The background to the case is that the Council of the European Union met at Laeken in December 2001 and convened the European Convention on the future of Europe. That Convention produced a draft Treaty (the Draft Treaty") establishing a constitution for Europe which was presented to the European Council on 20 June 2003. There is a hope amongst the heads of government including our own that some time next year a treaty will be signed by each of the member states which would have four parts: Parts 1 and 2 dealing with the matters dealt with under the Draft Treaty, Part 3 dealing with detailed implementation of Union policy and the Union's institutional structure and Part 4 dealing with general and final provisions.
  4. It is common ground that it is still uncertain whether any Treaty will in fact be signed and even more uncertain what it will contain. Mr John Macdonald QC and Mr Colin Braham who appear for the applicant make the point that once these sort of intergovernmental conversations get under way and governments are presented with something as worked out as the Draft Treaty and governments have made positive noises indicating an enthusiasm in principle for the project there is a significant chance that something on the lines of the Draft Treaty will be supported by all the governments. We are content to proceed on the basis that the chance is not negligible and may well be higher.
  5. Most of the declarations sought are unsuitable to be to be the subject of a court pronouncement. They are framed at too high a level of abstraction or are too vague. In particular it is not clear whether or how it is to be established that the consent of the people of the U.K. has been given does this require unanimity, a majority, and if so how big a majority, of the electorate, a majority of those voting, or merely a sufficient number of votes to result in a government of one or more parties who include a proposal for a European Constitution in their manifestos? Any referendum held under the Political Parties Elections and Referendums Act 2000 must be held pursuant to an Act of Parliament which has yet to be enacted see s.101(2).
  6. Before us the main way in which Mr Macdonald's case developed his case was in two parts:-
  7. i) He submits that it is illegal for the Secretary of State to put before Parliament a draft bill enacting into our law a significant alteration in our constitutional arrangements unless that alteration has first either been expressly approved by the electorate in a referendum or it has impliedly been approved by the electorate electing a party which can command a majority in the House of Commons;
    ii) He submits that even if he fails to show illegality, there is an arguable case that the court should declare that it would be contrary to constitutional convention for the Secretary of State to act in such a manner.
  8. He, as he accepts, has not produced before us any Act of Parliament or case law to substantiate his submission of illegality. We know of none.
  9. Instead, he has posited a well known academic question : is there any law which Parliament could enact and which the Courts, exercising their power to apply the Common Law, would not recognise? He submits that the Common Law does give the courts the power to refuse to recognise some laws.
  10. He points, ironically enough, to the willingness of the Courts to strike down legislation which is incompatible with our obligations as members of the European Union. That however, as he accepts, is achieved by the application of the European Communities Act 1972 and not a matter of applying the Common Law.
  11. He points to the Human Rights Act 1998. However that proceeds on the premise that Acts of Parliament are to be enforced even if clearly at variance with the rights set out in the Act. It provides a mechanism for a declaration of incompatibility. It is to be noted that it contains no mention of any need for a prior referendum or mandate to validate any non-conforming legislation. So that advances his case no further. Again there is no question of a Common Law power being exercised by the courts.
  12. He submits that one of the functions of the courts is to determine the lawfulness of any Acts of Parliament and thus the extent of any Parliamentary power. This is clearly right in so far as if the courts are faced with a claim that a particular Act is unlawful it will be for the courts to determine the lawfulness of the Act. However as such the acceptance of this proposition does not rule out the possibility that the courts will always in their determination answer that question by saying that the Act of Parliament is lawful because it is an Act of Parliament. Such has been the traditional stance of the courts for the last century or so. Some regard this as unsatisfactory because politicians can be more easily swayed by popular opinion than judges. Others regard it as desirable for much the same reason : they maintain that we live in a society where we abide by rules fixed by Parliament and that is how the people of this country traditionally express their will. The fact is that so far no court in the last century and more has set aside any provision of an Act of Parliament as being unlawful save in the circumstances set out in the European Communities Act.
  13. In our judgment there is no seriously arguable case that a court would determine that an Act of Parliament passed without first having been the subject of a referendum or being included in a party manifesto would for that reason be unenforceable as a matter of law. Mr Macdonald does not suggest that, if a referendum were held and the votes came down in favour of the draft constitution, an appropriate Act could not be passed. So we say nothing, because we need say nothing, about what has been much discussed in the legal literature, namely, whether the courts could in some circumstances refuse to enforce an Act of Parliament which said that all babies under two years of age should be slaughtered. That is not this case.
  14. Probably because he saw the difficulties we have outlined, before us Mr Macdonald concentrated on the alternative formulation of his case based on convention. He submitted that there was a convention that no Act of Parliament would be passed which altered our constitution in a fundamental way without it first having received the approval of the electorate either through a general election or a referendum. He submitted that if the court considered that it was arguable that there was such a convention then it would be right for the court so to declare.
  15. He has not put before us material capable of substantiating that any such convention has the force of law. There is material which indicates that referendums, unknown to our forefathers, have been held of late prior to some constitutional changes. However, these referendums have been the result of Acts of Parliament rather than preconditions for the lawfulness of any Act of Parliament. Moreover, he has been unable to demonstrate that every significant constitutional change has been preceded as he suggests. In particular, he has not shown that this was the case before the European Communities Act and the many amendments of it which incorporated parts of various treaties signed since 1972 were passed. We are therefore not persuaded that it is arguable that there is any constitutional convention of the breadth asserted by Mr Macdonald.
  16. We recognise that a political case can be made for Parliament requiring a referendum before enacting the necessary legislation but that it seems to us is a matter for political judgment and not for the courts.
  17. We know of no occasion when in this country declarations similar to those sought have been made by the courts. If we were to make such declarations we would be making just such a constitutional change as Mr Macdonald maintains requires the consent of Parliament and the people.
  18. Even if we accepted that in principle the court could for the first time make a declaration as to a constitutional convention and even if we were persuaded that it was arguable that such a convention was in play in the present case, we would not think it appropriate as a matter of discretion to make such declarations at the present time. There is as yet no draft treaty to which all the relevant governments have given their consent and it is thus not possible to evaluate what if any material changes in our constitutional arrangements the implementation of such a treaty would involve.
  19. Counsel for the Secretary of State has made a number of other submissions designed to persuade us not to allow this appeal, but the foregoing is more than enough to persuade us that this application for Judicial Review has no arguable prospects of success.
  20. This application for permission to appeal is therefore refused.

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