THE QUEEN ON THE APPLIACTION OF SOUTHALL & ANR v SECRETARY OF STATE FOR FOREIGN & COMMONWEALTH AFFAIRS

The Court of Appeal refused permission to appeal against Silber J's refusal to permit an application for judicial review. The applicant sought multiple declarations that ratification of a proposed Treaty establishing a Constitution for Europe would amount to a new constitutional settlement for the United Kingdom requiring prior approval of the people by referendum or implied approval via a party manifesto. The court held there was no arguable legal basis to treat an Act of Parliament as unlawful for lack of a prior referendum and no satisfactory evidence of a binding constitutional convention requiring referendum approval before fundamental constitutional change. The court also found most declarations sought were too abstract or vague to be the subject of judicial pronouncement and declined, in any event, to exercise its discretion to make such declarations given the absence of a final treaty.

This was an appeal from Silber J in the Administrative Court, Queen's Bench Division, who had refused permission to apply for judicial review. The applicants sought declarations about the necessity of popular approval before the United Kingdom adopted a new constitutional settlement in consequence of a proposed European Constitution.

The background was the work of the European Convention and the production of a Draft Treaty establishing a constitution for Europe presented to the European Council on 20 June 2003. The applicants contended that ratification of such a treaty would effect a fundamental constitutional change for the United Kingdom and that it would be illegal or contrary to constitutional convention for the Secretary of State to present legislation for ratification unless prior approval had been given by the electorate (either by referendum or by electing a party whose manifesto contained the proposal).

The court identified the principal issues as:

• whether there is any legal basis in the common law or otherwise for treating an Act of Parliament as unenforceable because it had not been preceded by a referendum or by explicit electoral approval, and
• whether there exists a constitutional convention that fundamental constitutional changes cannot be made without prior popular approval and, if arguable, whether the court should declare its existence.

On the first issue the court observed that no Act of Parliament had been set aside on such a ground and that the applicant produced no statute or authority supporting the proposition; the examples relied upon (the European Communities Act 1972 and the Human Rights Act 1998) do not establish a common law power to refuse to recognise Acts of Parliament and, in any event, contain no requirement for a prior referendum. On the second issue the court found the material before it insufficient to establish a convention of the asserted breadth: referendums in recent practice had been authorised by Acts of Parliament rather than operating as preconditions and there was no consistent historical practice (for example, in relation to the European Communities Act) that would support the claimed convention. The court further held that most of the declarations sought were too high-level, vague or abstract to be judicially declared and, even if arguable, it would be inappropriate as a matter of discretion to make such declarations at a time when no final treaty had been agreed.

The court therefore refused permission to appeal and dismissed the application for judicial review as having no arguable prospects of success.

The appeal for permission to apply for judicial review was refused. The court held there was no seriously arguable legal basis to declare that Acts of Parliament would be unenforceable unless preceded by a referendum or manifesto approval; the applicant produced insufficient material to establish a constitutional convention of the asserted scope; many of the declarations sought were too abstract or vague to be judicially declared; and, in any event, it was discretionary and inappropriate to make such declarations given the absence of a final treaty.

Permission to apply for judicial review was refused by Silber J in the Queen's Bench Division, Administrative Court. The applicant sought permission to appeal to the Court of Appeal which, by judgment dated 14 July 2003 ([2003] EWCA Civ 1002), refused permission to appeal.