Southall & Anor, R (on the appliaction of) v Secretary of State for Foreign & Commonwealth Affairs

An Act of Parliament is not rendered unenforceable merely because it was enacted without a prior referendum or electoral mandate in a party manifesto. The traditional position is that an Act is lawful because it is an Act of Parliament, subject to the distinct statutory position under the European Communities Act 1972.

A claimed constitutional convention requiring popular approval for substantial constitutional change must have an arguable legal foundation. Evidence that referendums preceded particular statutory changes, without being legal preconditions, and that significant changes were not uniformly preceded by them, did not establish such a convention. Whether a referendum is politically desirable is for Parliament.

The applicant sought permission to appeal from Silber J’s refusal of permission to apply for judicial review. The proposed declarations concerned fundamental constitutional rights, the effect of a proposed European constitutional treaty, the need for parliamentary and popular consent, and a referendum or electoral mandate before substantial constitutional change.

On appeal, the applicant added a declaration framed as a constitutional convention. The central questions were whether the proposed declarations disclosed a seriously arguable legal basis and whether declaratory relief was appropriate while the treaty negotiations remained uncertain.

The court refused permission to appeal. It held that the proposed judicial review claim had no seriously arguable prospects of success.

1. Form of the declarations. Most of the declarations were unsuitable for judicial determination because they were framed at too high a level of abstraction or were vague. In particular, the proposed requirement of popular consent gave no clear standard for determining what level or form of approval was required. Any referendum under the Political Parties Elections and Referendums Act 2000 would also require authority in an Act of Parliament not yet enacted.
2. Legality of legislation without a referendum. The applicant identified no Act of Parliament or case law supporting the proposition that legislation making substantial constitutional changes would be unenforceable merely because it had not first been approved by referendum or included in a party manifesto. The courts’ traditional position was that an Act was lawful because it was an Act of Parliament. The statutory mechanism concerning incompatibility with European Union obligations under the European Communities Act 1972 did not establish a general common-law power to refuse enforcement. The Human Rights Act 1998 likewise proceeded on the basis that Acts of Parliament remained enforceable, subject to a declaration of incompatibility.
3. Constitutional convention. The evidence did not make it arguable that a convention of the asserted breadth existed. Recent referendums had resulted from Acts of Parliament rather than operating as legal preconditions, and the applicant had not shown that every significant constitutional change had been preceded by a referendum or electoral mandate.
4. Political judgment and discretion. Whether Parliament should require a referendum was a political question, not one for the courts. In any event, even if such a declaration were theoretically available, the court would have declined to make it while there was no agreed treaty and its constitutional consequences could not be evaluated.

The application for permission to appeal was therefore refused.

• Court of Appeal (Civil Division): refused permission to appeal: [2003] EWCA Civ 1002.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Silber J refused permission to apply for judicial review; no citation was stated.