![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> McWhirter & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 384 (05 March 2003) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2003/384.html Cite as: [2003] EWCA Civ 384 |
[New search] [Printable RTF version] [Help]
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT LIST
(MR JUSTICE MAURICE KAY)
Strand London, WC2 |
||
B e f o r e :
LORD JUSTICE LAWS
LADY JUSTICE ARDEN
____________________
MR NORRIS DEWAR MCWHIRTER | ||
and | ||
MR JOHN GOURIET | Claimants | |
-v- | ||
HM SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS | Defendant |
____________________
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR D LLOYD JONES QC (instructed by The Treasury Solicitor) appeared on behalf of the Defendant
____________________
Crown Copyright ©
"(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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."