Levicki, R (on the application of) v Secretary of State for Energy and Climate Change

A decision by the Crown to negotiate or enter into an international treaty is not justiciable in domestic judicial review proceedings. The court will not assess the political and foreign-relations considerations involved in making such an agreement. Treaty obligations do not form part of domestic law, and cannot confer or remove domestic rights, unless incorporated by legislation. A claim inviting the court to review the making of a treaty is therefore bound to fail and may properly be certified as totally without merit.

The claimant sought judicial review of the United Kingdom’s decision to enter into the United Nations Paris Agreement on Climate Change. He also sought interim relief because a signing ceremony was imminent. The Secretary of State opposed both applications on the ground that the decision was non-justiciable and applied for the claim to be certified as totally without merit. The court determined the permission application, the interim-relief application, certification and costs.

1. Permission and interim relief. The application for interim relief and the application for permission to apply for judicial review were refused. The decision to negotiate and agree the treaty involved the conduct of foreign relations and political considerations which the court could not assess by judicially manageable standards.
2. The court applied the principle stated in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418: the Crown’s treaty-making power is an exercise of the Royal Prerogative which cannot be challenged in municipal law, and a treaty is not part of English law unless incorporated by legislation.
3. The court also relied on Shergill v Khaira [2014] UKSC 33, including its explanation that an issue may be non-justiciable because it trespasses on the executive’s province in foreign relations and lacks judicial or manageable standards.
4. The claim had no legal merit. Its importance, its alleged impact on the well-being of large numbers of people, and the claimant’s asserted personal insight into the treaty’s effects did not address the legal rule of non-justiciability. The claim was completely misconceived and was certified as totally without merit.
5. The claimant was ordered to pay the Secretary of State’s costs of settling the acknowledgement of service in the sum of £4,601. The court accepted that the unusually high sum was justified by the exceptional work required to resist the claim.

This was a first-instance decision on a renewed application for interim relief and permission to apply for judicial review. The court also determined certification and costs.