McWhirter & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs

1. LORD JUSTICE LAWS: This is an application for permission to appeal against the judgment of Maurice Kay J given on 17th December 2002 when he refused the applicants permission to seek judicial review of two decisions which had been identified in the claim form as follows:

"(1) The decision to bring to operative effect the provisions of the European Communities (Amendment) Act 2002 by the depositing with the Italian government on 25 July 2002 an instrument of ratification of the Treaty of Nice and

(2) the decision on 21 October 2002 not to withdraw the said instrument of ratification with their consequent implication and effect on the European Communities (Amendment) Act 2002."

2. On 4th February 2003, on consideration of the papers, I adjourned the application to be restored in court on notice to the proposed respondent Secretary of State. The applicants are Mr Norris McWhirter and Mr John Gouriet, who I am sure will not object if I describe them as vigorous campaigners for the constitutional rights of the Queen's subjects. A flavour of their concerns in this application may be got from this passage in their grounds, which was also set out by Maurice Kay J:

"In as much as the Treaty of Nice and the European Communities (Amendment) Act 2002 purport to alienate or cede or achieve the alienation or cession of the government of the United Kingdom and its people and institutions (including the exercise of executive power and law-making functions) to, or in favour of, the governing institutions of the European Union which

(a) are not accountable to Parliament nor to the Government of the United Kingdom nor subject to dismissal by the electorate of the United Kingdom, and

(b) constitute in operation and effect a substitute or superior government of the United Kingdom, its people and institutions,

they are invalid and without effect under the United Kingdom's constitutional arrangements, and contrary to the law."

3. The depth of concern felt by those who would support this application is, if I may say so, very evident. The judge below refused permission, holding that the claim was unarguable for two reasons. First, the court was being invited to review the treaty making powers of the Crown, but it was established by a long line of high and binding authority that the exercise of such powers was not justiciable. Second, the court was in effect being asked to disapply or prohibit the application of primary legislation in the shape of the European Communities (Amendment) Act 2002, but it was equally firmly established that the court has no power to do any such thing.

4. The European Communities (Amendment) Act 2002, which hereafter I will refer to as "the 2002 Act", provides for the incorporation of the provisions of the Treaty of Nice into the law of the United Kingdom by way of amendment of the European Communities Act 1972. The 2002 Act received the Royal Assent on 26th February 2002, but was only to have effect when the Treaty of Nice came into force on the first day of the second month after the last instrument of ratification had been lodged. Pursuant to that procedure, we are told by Mr Price QC who represented the applicants today, that the Treaty in fact came into force on 1st February 2003.

5. The provisions contained in the Treaty of Nice are summarised in paragraph 43 of the judicial review grounds, and described in greater detail in the witness statement of the applicant Mr McWhirter. The Treaty extends the principle of qualified majority voting to a considerable number of areas where it did not previously apply, including -- and I take just three examples -- "justice, police and judicial cooperation", "measures on illegal immigrants" and "industrial policy". The Treaty, moreover, changes the weighting of votes on the Council, reducing the United Kingdom's weighting to 8.4 per cent of the total vote. It also reduces the United Kingdom's seats on the European Parliament from 87 out of 626 to 72 out of 732, and it reduces the number of United Kingdom commissioners at Brussels from two to one with effect from 2005; and by other provisions will produce a result whereby there may be periods when the United Kingdom has no sitting commissioner at all. The effect of the changes is expressed in the grounds at paragraph 44 thus:

"The consequence of the changes effected by the Treaty and by virtue of the Treaty, the European Communities (Amendment) Act 2002, would be that the people of the United Kingdom will be subject to new laws, which may not have their assent, nor the assent of anyone representing them, but to which they may not object. Legislation would be created at European Community level and would be binding on the United Kingdom, notwithstanding that the United Kingdom Government (represented in Council by the relevant Minister) has not assented to that and Parliament has not expressed its consent on behalf of the people of the United Kingdom, to be so bound; and the people of the United Kingdom voting in the United Kingdom's general elections will not have any power to dismiss the makers of such legislation."

6. This state of affairs is said to violate basic constitutional principles to be found either in the common law or in a series of constitutional statutes beginning with the Magna Carta. The essence of it is that the British people are to be governed by the legislature and the executive of the United Kingdom under the Queen, and enjoy the fundamental right to participate in government by the electoral process. Here is paragraph 54 of the grounds:

"The United Kingdom Parliament may discharge the fundamental responsibility for law-making for the United Kingdom by vesting in a subsidiary delegate power to make regulations, orders or other subordinate legislation having all the force and effect of an Act of Parliament. It is impermissible, however, for Parliament to transfer or abrogate the responsibility for law-making and government in respect of the United Kingdom."

7. If he will allow me to say so, it was with very great eloquence that Mr Price QC has expanded upon these propositions this morning.

8. Authorities tending to show that the Treaty making power is not justiciable include McWhirter v Attorney General [1972] CMLR 882, which was concerned with the Treaty of Accession to the Treaty of Rome; CCSU v Minister for the Civil Service [1985] AC 375, to which Mr Price made specific reference this morning; and, more recently, Abbasi [2002] EWCA Civ 1598. As regards the immunity of statute from judicial review, the sovereignty of Parliament has been accepted in our law since the 17th century. The judge found it necessary only to cite Pickin v British Railways Board [1974] AC 765.

9. Mr Price however says that the Treaty making power may be justiciable where the ratification of the Treaty in question effects an alteration in the domestic law of the United Kingdom. He says that a statute may be struck down if it interferes with fundamental constitutional rights.

10. I do not think that there is any authority to support the first of those propositions. As to the second, relating to legislation, Mr Price has relied on Factortame [1991] 1 AC 603, and Equal Opportunities Commission [1994] 1 WLR 409. But these were instances of a special case, in the circumstances perhaps ironic. The case arises where a statute appears to negate or violate a right arising under the law of the European Union. In such a case, the statute gives way to the European right. The mechanism by which it does so was explained by Lord Bridge in the Factortame case, and it arises by force of section 2(4) of the European Communities Act 1972. Other statutes are to be read by virtue of that subsection subject to legal rights arising under the law of the Union.

11. Mr Price refers in the grounds to a judgment, as it happens given by myself, in the Divisional Court in Thorburn [2002] 3 WLR 247, in which at paragraph 62 and following there is some discussion of the notion of constitutional statutes. In view of the conclusion I have reached on this application, however, perhaps I may be allowed to cite a further and different short passage from that case at paragraphs 68 and 69:

"68. I would recognise for reasons I have given that the common law has in effect stipulated that the principal executive measures of the 1972 Act [that is, of course, the European Communities Act 1972] may only be repealed in the United Kingdom by specific provision, and not impliedly. It might be suggested that it matters little whether that result is given by the law of the EU (as Miss Sharpston submits) or by the law of England untouched by Community law (as I would hold). But the difference is vital to a proper understanding of the relationship between EU and domestic law.

"69. In my judgment the correct analysis of that relationship involves and requires these following four propositions. (1) All the specific rights and obligations which EU law creates are by the 1972 Act incorporated into our domestic law and rank supreme: that is, anything in our substantive law inconsistent with any of these rights and obligations is abrogated or must be modified to avoid the inconsistency. This is true even where the inconsistent municipal provision is contained in primary legislation. (2) The 1972 Act is a constitutional statute: that is, it cannot be impliedly repealed. (3) The truth of (2) is derived, not from EU law, but purely from the law of England: the common law recognises a category of constitutional statutes. (4) The fundamental legal basis of the United Kingdom's relationship with the EU rests with the domestic, not the European, legal powers. In the event, which no doubt would never happen in the real world, that a European measure was seen to be repugnant to a fundamental or constitutional right guaranteed by the law of England, a question would arise whether the general words of the 1972 Act were sufficient to incorporate the measure and give it overriding effect in domestic law. But that is very far from this case."

12. I will just add a couple of sentences from paragraph 70:

"I consider that the balance struck by these four propositions gives full weight both to the proper supremacy of Community law and to the proper supremacy of the United Kingdom Parliament."

13. In the result, I find myself in agreement with Maurice Kay J that judicial review permission should not be given in this case, although I would express my reasons rather differently. The applicants' real complaint is as to prospective changes in the law, particularly the constitutional law, of the United Kingdom. To vindicate that complaint, it is inapt, in my view, to seek to attack the Treaty of Nice itself, since like any treaty it cannot change the domestic law of the United Kingdom until and unless it is incorporated into that law by Parliament.

14. That brings me to the 2002 Act. Despite the extra judicial writings to which Mr Price has referred, I am bound to say that in the events which have happened here I cannot see that the law as it stands today allows us to quash or declare invalid the Act. In my judgment, it is of the first importance to have in mind that it is fully open to Parliament to repeal or amend the 2002 Act, just as it may repeal or amend the European Communities Act 1972. That is the ultimate guarantee of constitutionality which is in place here. Moreover, there may be another issue which would be for the future, if it were to arise at all. If some particular European measure is brought into being under the powers of the Treaty of Nice, there could be a question whether it is so offensive to our domestic constitutional law that the general words of section 2(2) of the European Communities Act 1972 are insufficient to incorporate it. That would be a question for the future. I decide nothing about it today.

15. I am, however, in the light of that background, inclined to agree with paragraph 25 of the respondent Secretary of State's skeleton argument in the court below:

"The Claimants' submission is that the ECAA [that is the Act of 2002] is ineffective to bring about the 'transfer' of sovereignty of which they complain. Even if that is so, it does not render unlawful the quite separate step of ratification of the Treaty of Nice. Ratification is a step taken on the international plane, and is not governed by domestic law nor operative at the level of domestic law. The UK has ratified numerous treaties which have no force in domestic law and the fact that a treaty is not to be implemented into domestic law is no obstacle to its ratification. Accordingly, whether or not the ECAA is effective to give force in domestic law to EC legislation adopted pursuant to the Treaty of Nice is a matter which ought not to be tested by way of an abstract challenge to ratification, but should be tested as and when such legislation falls for consideration in the domestic courts."

16. For all these reasons, it seems to me there is not a viable arguable case here, and Maurice Kay J was right to refuse permission. I have considered whether having regard to Civil Procedure Rules, rule 52.3(6)(b), there is any other compelling reason for leave to be granted, resting on the plain public interest in the case. I adjourned this case into court rather than deal with it on paper, as I have said, because it was very evident that these matters are important and excite much interest. We have heard Mr Price for the greater part of the morning, and his clients, though they will disappointed in the result, should know that we have read with very considerable care the voluminous documentation, not least the grounds for judicial review, that has been put in in support of the application. The matter has, in my judgment, been properly ventilated, and I would not give permission on this exceptional ground. For all these reasons, for my part, I would refuse permission to appeal.

17. LADY JUSTICE ARDEN: I agree that the application must be dismissed, for all the reasons which my Lord has given. The supremacy of Parliament is not limited by a principle that Parliament cannot transfer or abrogate responsibility for law making and government in respect of the United Kingdom. It is not suggested that Parliament could not, if it wished, enact legislation in the future in contravention of the European Communities Act 1972 or the European Communities (Amendment) Act 2002. I, too, wish to leave open the question whether there are fundamental rights for which Parliament has not transferred power to make laws to European institutions by virtue of the terms of the European Communities Act 1972, any more than it can itself legislate in general terms in violation of such rights: see generally R v Lord Chancellor, ex parte Lightfoot [2000] QB 597, and the authorities cited therein.

18. LORD JUSTICE PILL: I also agree, for the reasons given by Lord Justice Laws. Not surprisingly, in view of the authorities to which Laws LJ has referred, Mr Price QC in his submissions has emphasised the Treaty of Nice as being distinct from other treaties which have become part, through domestic legislation, of the law of this country. Mr Price has described the Treaty as "a treaty too far" or "a step too far" or "a transfer of power too far". He has referred, for example, to the fact that there are a considerable number of fields in the Community in which majority voting will apply, and that the United Kingdom representation in the organs of the Community is reduced as a percentage.

19. In my judgment, this falls far short of a situation which would permit this court to intervene, if that power exists at all. We are very far from the territory contemplated by distinguished judges, to whose writings outside court Mr Price has referred. Reference was made to the article by Lord Woolf, entitled "Droit Public - English Style", published in Public Law in 1995. Lord Woolf stated at page 69:

"However, if Parliament did the unthinkable, then I would say that the courts would also be required to act in a manner which would be without precedent."

20. The European Communities Act 2002 was enacted by a democratically elected legislature. Notwithstanding the eloquent and forceful submissions of Mr Price, we are, in my judgment, very far from the territory in which that principle of intervention by the courts could be followed. The "step too far" argument, even upon analysis, does not establish such conduct by Parliament which would permit the courts to consider intervention, and it is not arguable that this court would intervene to declare that the statute is of no effect.

21. I would add that the court has come to the conclusion that the application would not be refused on the ground of delay alone. We have considered it on its merits.

ORDER: Permission to appeal refused. The proposed respondent to have his costs of the application