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Blackburn v Attorney-General

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Organización Territorial Blackburn v Attorney-General 1
Blackburn v Attorney-General
THE MASTER OF THE ROLLS: In this case Mr. Blackburn - as he has done beore - has
sho!n eternal "i#ilance in su$$ort o the la!. This ti%e he is concerned about the a$$lication
o Her Ma&est'(s )o"ern%ent to &oin the *o%%on Market and to si#n the Treat' o Ro%e. He
brin#s t!o actions a#ainst the Attorne'-)eneral+ in !hich he seeks declarations to the eect
that+ b' si#nin# the Treat' o Ro%e+ Her Ma&est'(s )o"ern%ent !ill surrender in $art the
so"erei#nt' o The *ro!n in ,arlia%ent and !ill surrender it or e"er. He sa's that in so doin#
the )o"ern%ent !ill be actin# in breach o the la!. The Attorne'-)eneral has a$$lied to strike
out the State%ents o *lai% on the #round that the' disclose no reasonable cause o action.
The Master and the -ud#e ha"e struck the% out. Mr. Blackburn+ !ith our lea"e+ a$$eals to this
*ourt. He thinks it is i%$ortant to clear the air.
Much o !hat Mr. Blackburn sa's is .uite correct. It does a$$ear that i this countr' should #o
into the *o%%on Market and si#n the Treat' o Ro%e+ it %eans that !e !ill ha"e taken a ste$
!hich is irre"ersible. The so"erei#nt' o these islands !ill thenceor!ard be li%ited. It !ill not
be ours alone but !ill be shared !ith others. Mr. Blackburn reerred us to a decision b' the
*ourt o *o%%on Market *osta ". E./.E.L. 01234 *o%%on Market La! Re$orts+ 4567 in
Februar'+ 1234+ in !hich the Euro$ean *ourt in its &ud#%ent said that:
8.....the %e%ber states+ albeit !ithin li%ited s$heres+ ha"e restricted their so"erei#n ri#hts and
created a bod' o la! a$$licable both to their nationals and to the%sel"es8.
Mr. Blackburn $oints out that %an' re#ulations %ade b' the Euro$ean Econo%ic *o%%unit'
!ill beco%e auto%aticall' bindin# on the $eo$le o this countr': and that all the *ourts o this
countr'+ includin# the House o Lords+ !ill ha"e to ollo! the decisions o the Euro$ean *ourt
in certain deined res$ects+ such as the construction o the Treat'.
I !ill assu%e that Mr. Blackburn is ri#ht in !hat he sa's on those %atters. /e"ertheless+ I do
not think these *ourts can entertain these actions. /e#otiations are still in $ro#ress or us to
&oin the *o%%on Market. /o a#ree%ent has been reached.
/o Treat' has been si#ned. E"en i a treat' is si#ned+ it is ele%entar' that these *ourts take
no notice o treaties as such. 9e take no notice o treaties until the' are e%bodied in la!s
enacted b' ,arlia%ent+ and then onl' to the e:tent that ,arlia%ent tells us. That !as settled in
a case about a treat' bet!een the ;ueen o En#land and the E%$eror o *hina. It is
Rusto%&ee ". The ;ueen 01<=3 5 ;.B.>. 327. Lord *olerid#e+ the then *hie -ustice said at
$a#e =4:
8She8 - that is The ;ueen - 8acted throu#hout the %akin# o the treat' and in relation to each
and e"er' o its sti$ulations in her so"erei#n character+ and b' her o!n inherent authorit'? and+
as in %akin# the treat'+ so in $eror%in# the treat'+ she is be'ond the control o %unici$al la!+
and her acts are not to be e:a%ined in her o!n *ourts8.
Mr. Blackburn ackno!led#ed the #eneral $rinci$le+ but he ur#ed that this $ro$osed treat' is in
a cate#or' b' itsel+ in that it di%inishes the so"erei#nt' o ,arlia%ent o"er the $eo$le o this
countr'. I cannot acce$t the distinction. The #eneral $rinci$le a$$lies to this treat' as to an'
Organización Territorial Blackburn v Attorney-General 2
other. The treat'-%akin# $o!er o this countr' rests not in the *ourts+ but in the *ro!n? that is+
Her Ma&est' actin# u$on the ad"ice o her Ministers. 9hen Her Ministers ne#otiate and si#n a
treat'+ e"en a treat' o such $ara%ount i%$ortance as this $ro$osed one+ the' act on behal o
the countr' as a !hole. The' e:ercise the $rero#ati"e o *ro!n. Their action in so doin#
cannot be challen#ed or .uestioned in these *ourts.
Mr. Blackburn takes a second $oint. He sa's that+ i ,arlia%ent should i%$le%ent the Treat' b'
$assin# an Act o ,arlia%ent or this $ur$ose+ it !ill seek to do the i%$ossible. It !ill seek to
bind its successors. Accordin# to the Treat'+ once it is si#ned+ !e are co%%itted to it
irre"ocabl'. Once in the *o%%on Market+ !e cannot !ithdra! ro% it. /o ,arlia%ent can
co%%it us+ sa's Mr. Blackburn+ to that e:tent. He $ra's in aid the $rinci$le that no ,arlia%ent
can bind its successors+ and that an' ,arlia%ent can re"erse an' $re"ious enact%ent. He
reers to !hat ,roessor Maitland said about the Act o @nion bet!een En#land and Scotland.
,roessor Maitland in his *onstitutional Histor' o En#land said at $a#e AA5:
89e ha"e no irre$ealable la!s? all la!s %a' be re$ealed b' the ordinar' le#islature+ e"en the
conditions under !hich the En#lish and Scottish ,arlia%ents a#reed to %er#e the%sel"es in
the ,arlia%ent o )reat Britain8.
9e ha"e all been brou#ht u$ to belie"e that+ in le#al theor'+ one ,arlia%ent cannot bind
another and that no Act is irre"ersible. But le#al theor' does not al!a's %arch alon#side
$olitical realit'. Take the Statute o 9est%inster? 12A1+ !hich takes a!a' the $o!er o
,arlia%ent to le#islate or the >o%inions. *an an' one i%a#ine that ,arlia%ent could or !ould
re"erse that StatuteB Take the Acts !hich ha"e #ranted inde$endence to the >o%inions and
territories o"erseas. *an an'one i%a#ine that ,arlia%ent could or !ould re"erse those la!s
and take a!a' their inde$endenceB Most clearl' not. Freedo% once #i"en cannot be taken
a!a'. Le#al theor' %ust #i"e !a' to $ractical $olitics. It is as !ell to re%e%ber the re%ark o
Lord Sanke'+ Lord *hancellor+ in British *oal *or$oration ". The Cin# 0,.*. 12A6 A.*. 6DD7 at
$a#e 65D:
8The I%$erial ,arlia%ent could+ as %atter o abstract la!+ re$eal or disre#ard Section 4 o the
Statute o 9est%inster. But that is theor' and has no relation to realit'8.
9hat are the realities hereB I Her Ma&est'(s Ministers si#n this treat' and ,arlia%ent enacts
$ro"isions to i%$le%ent it+ I do not en"isa#e that ,arlia%ent !ould ater!ards #o back on it
and tr' to !ithdra! ro% it. But+ i ,arlia%ent should do so+ then I sa' !e !ill consider that
e"ent !hen it ha$$ens. 9e !ill then sa' !hether ,arlia%ent can la!ull' do it or not.
Both sides reerred us to the "aluable article b' ,roessor H.9.R. 9ade in the *a%brid#e La!
-ournal+ 1266+ at $a#e 123+ in !hich he said that 8so"erei#nt' is a $olitical act or !hich no
$urel' le#al authorit' can be constituted8. That is true. 9e %ust !ait to see !hat ha$$ens
beore !e $ronounce on so"erei#nt' in the *o%%on Market.
So+ !hilst in theor' Mr. Blackburn is .uite ri#ht in sa'in# that no ,arlia%ent can bind another+
and that an' ,arlia%ent can re"erse !hat a $re"ious ,arlia%ent has done+ ne"ertheless so ar
as this *ourt is concerned+ I think !e !ill !ait till that da' co%es. 9e !ill not $ronounce u$on
it toda'.
Organización Territorial Blackburn v Attorney-General 3
A $oint !as raised as to !hether Mr. Blackburn has an' standin# to co%e beore the *ourt.
That is not a %atter u$on !hich !e need rule u$on toda'. He sa's that he eels "er' stron#l'
and that it is a %atter in !hich %an' $ersons in this countr' are concerned. I !ould not %'sel
rule hi% out on the #round that he has no standin#. But I do rule hi% out on the #round that
these *ourts !ill not i%$u#n the treat'-%akin# $o!er o Her Ma&est'+ and on the #round that
insoar as ,arlia%ent enacts le#islation+ !e !ill deal !ith that le#islation as and !hen it arises.
I think the state%ents o clai% disclose no cause o action+ and I !ould dis%iss the a$$eal.
LOR> [email protected]*E SALMO/: 9hilst I reco#nise the undoubted sincerit' o Mr. Blackburn(s
"ie!s+ I de$recate liti#ation the $ur$ose o !hich is to inluence $olitical decisions. Such
decisions ha"e nothin# to do !ith these *ourts. These *ourts are concerned onl' !ith the
eect o such decisions i and !hen the' ha"e been i%$le%ented b' le#islation. /or ha"e the
*ourts an' $o!er to interere !ith the treat'-%akin# $o!er o the So"erei#n. As to ,arlia%ent+
in the $resent state o the la!+ it can enact+ a%end and re$eal an' le#islation it $leases. The
sole $o!er o the *ourts is to decide and enorce !hat is the la! and not !hat it should be -
no!+ or in the uture.
I a#ree that this a$$eal should be dis%issed.
LOR> [email protected]*E STAM,: I a#ree that the a$$eal should be dis%issed? but I !ould e:$ress no
"ie! !hatsoe"er u$on the le#al i%$lications o this countr' beco%in# a $art' to the Treat' o
Ro%e. In the !a' Mr. Blackburn $ut it I think he conused the di"ision o the $o!ers o the
*ro!n+ ,arlia%ent and the *ourts. The *ro!n enters into treaties? ,arlia%ent enacts la!s?
and it is the dut' o this *ourt in $ro$er cases to inter$ret those la!s !hen %ade? but it is no
$art o this *ourt(s unction or dut' to %ake declarations in #eneral ter%s re#ardin# the $o!ers
o ,arlia%ent+ %ore $articularl' !here the circu%stances in !hich the *ourt is asked to
inter"ene are $urel' h'$othetical. /or ou#ht this *ourt at the suit o one o Her Ma&est'(s
sub&ects to %ake declarations re#ardin# the undoubted $rero#ati"e $o!er o the *ro!n to
enter into treaties.
Mr )OR>O/ SLE//: M' Lord+ there has been lea"e to a$$eal on each o these a$$eals+ and
these a$$eals !ill be dis%issedB
Mr )OR>O/ SLE9/: I ask that the a$$eals both be dis%issed !ith costs.
THE MASTER OF THE ROLLS: The a$$eals %ust be dis%issed !ith costs+ Mr. Blackburn.
Mr )OR>O/ SLE//: I a% %uch obli#ed+ %' Lord.

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