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

Ratification of an international treaty operates on the international plane. It cannot alter United Kingdom domestic law unless Parliament incorporates it. A challenge to ratification based on anticipated changes in domestic constitutional law is therefore inapt. The courts have no general power to quash or declare invalid an Act of Parliament. The limited rule illustrated by Factortame and Equal Opportunities Commission, under which domestic legislation gives way to EU rights through section 2(4) of the European Communities Act 1972, does not create such a power. The court left open whether a particular future European measure might fall outside the general words of section 2(2) because of conflict with a fundamental constitutional right. Permission to appeal was refused.

The claimants sought permission to appeal against Maurice Kay J’s refusal on 17 December 2002 of permission to seek judicial review. They challenged the ratification of the Treaty of Nice by depositing the instrument of ratification on 25 July 2002, and the subsequent refusal to withdraw it.

They argued that the European Communities (Amendment) Act 2002 unlawfully transferred or ceded governmental and law-making power and that the treaty and Act were constitutionally ineffective. The High Court held the claim unarguable because treaty-making powers were non-justiciable and the courts could not disapply primary legislation. The central issues were whether ratification could be challenged for its anticipated domestic effects and whether the Act could be quashed or declared invalid.

Permission to appeal was refused. Laws LJ gave the principal reasons. Arden LJ and Pill LJ agreed.

1. Treaty ratification. The claimants’ real complaint concerned prospective changes to United Kingdom domestic and constitutional law. Ratification of the Treaty of Nice was an act on the international plane. A treaty could not change domestic law unless and until Parliament incorporated it. It was therefore inapt to attack the treaty itself as a means of challenging anticipated domestic consequences. The authorities cited on treaty-making powers, including McWhirter v Attorney General [1972] CMLR 882, CCSU v Minister for the Civil Service [1985] AC 375 and Abbasi [2002] EWCA Civ 1598, supported the conclusion that the application disclosed no viable arguable case.
2. Primary legislation. The court could not quash or declare invalid the European Communities (Amendment) Act 2002. Parliamentary sovereignty remained the governing principle. Parliament could repeal or amend that Act and the European Communities Act 1972, which provided the ultimate constitutional safeguard. Pickin v British Railways Board [1974] AC 765 was cited as authority for the established immunity of primary legislation from judicial review.
3. European-law qualification. Factortame [1991] 1 AC 603 and Equal Opportunities Commission [1994] 1 WLR 409 concerned a special situation in which domestic legislation gave way to an EU right through section 2(4) of the European Communities Act 1972. They did not establish a general power to invalidate primary legislation.
4. Issue left open. The court did not decide whether a particular future European measure might be so offensive to domestic constitutional law that the general words of section 2(2) of the European Communities Act 1972 were insufficient to incorporate it. That question could be considered only if it arose in a concrete case.
5. Public interest. Although the issues were important and had generated substantial interest, the matter had been properly ventilated. There was no other compelling reason under rule 52.3(6)(b) to grant permission. The respondent was awarded the costs of the application.

• Court of Appeal (Civil Division): refused permission to appeal and ordered the proposed respondent to have the costs of the application.
• High Court (Administrative Court): Maurice Kay J refused permission to seek judicial review on 17 December 2002, holding the claim unarguable because treaty-making powers were non-justiciable and the courts could not disapply primary legislation.