Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg: Admn 30 Jul 1993

The applicant, a former editor of the Times, sought judicial review of the decision by the respondent to ratify the EU Treaty (Maastricht), saying that it would increase the powers of the European Parliament without it having been approved by Parliament, and would transfer the Royal Prerogative power to enter into treaties without parliamentary approval.
Held: Judicial Review was refused. The 1993 Act had referred to ratification of the protocols, and therefore Parliament had approved them. The social policy protocol had been excluded from ratification and was not to be incorporated into domestic law. Domestic law was not therefore amended. Whilst the court had jurisdiction to consider the ratification of Title V of the Treaty relating to foreign and social policy, it involved no question of domestic law. Ratification was an exercise of the prerogative power, not its abandonment. In a rare case a public-spirited individual may be permitted to apply for judicial review in relation to a matter in which he has no direct personal interest separate from that of the population as a whole.
Lloyd LJ recorded one argument proposed before him: ‘He submits that by ratifying the Protocol on Social Policy, the Government would be altering Community law under the EEC Treaty . . It is axiomatic that Parliament alone can change the law. Mr Pannick accepts, of course, that treaties are not self-executing. They create rights and obligations on the international plane, not on the domestic plane. He accepts also that the treaty-making power is part of the Royal Prerogative … But the EEC Treaty is, he says, different. For section 2(1) of the European Communities Act 1972 provides
If the Protocol on Social Policy is ratified by all member states, it will become part of the EEC Treaty, which is one of the Treaties referred to in section 2(1): see the definition of ‘the Treaties’ in section 1(2) of the Act of 1972. Accordingly the Protocol will have effect not only on the international plane but also, by virtue of section 2(1) of the Act of 1972, on the domestic plane as well. By enacting section 2(1), Parliament must therefore have intended to curtail the prerogative power to amend or add to the EEC Treaty. There is no express provision to that effect. But that is, according to the argument, the necessary implication … Where Parliament has by statute covered the very same ground as was formerly covered by the Royal Prerogative, the Royal Prerogative is to that extent, by necessary implication, held in abeyance: see Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508; Laker Airways Ltd v Department of Trade [1977] QB 643, 718,720, per Roskill LJ.’ He countered, saying: ‘We find ourselves unable to accept this far-reaching argument. When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms, such as one finds in section 6 of the Act of 1978. Indeed, as was pointed out, if the Crown’s treaty-making power were impliedly excluded by section 2(1) of the Act of 1972, section 6 of the Act of 1978 would not have been necessary. There is in any event insufficient ground to hold that Parliament has by implication curtailed or fettered the Crown’s prerogative to alter or add to the EEC Treaty.’

Lloyd, Mann, Auld LJJ
[1993] 3 CMLR 101, [1994] 2 WLR 115, [1994] 1 ALL ER 457, [1994] QB 552, [1993] EWHC Admin 4
European Communities (Amendment) Act 1993, European Communities Act 1972, European Parliamentary Elections Act 1978 6
England and Wales
Cited by:
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd QBD 1995
A British consortium looked for assistance in providing a hydro-electric project on the Pergau river. One interested government department advised that it was not economical and an abuse of the overseas aid programme, but the respondent decided to . .
CitedRegina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
CitedGoodson v HM Coroner for Bedfordshire and Luton and Another (No 2) CA 12-Oct-2005
The applicant intended to appeal refusal of her challenge to the verdict of the coroner. For the first time at appeal she sought a protective costs order.
Held: The Corner House case established that a request for a protective costs order . .
CitedRegina v Secretary of State for Foreign Affairs ex Parte the World Development Movement Ltd Admn 10-Nov-1994
The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It . .
CitedMiller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
CitedGood Law Project Ltd and Others, Regina (on Application of) v Secretary of State for Health and Social Care Admn 18-Feb-2021
Failure to Publish Contracts awards details
Challenge to alleged failures by the Secretary of State to comply with procurement law and policy in relation to contracts for goods and services awarded following the onset of the COVID-19 pandemic.
Held: The contracts had been awarded under . .

Lists of cited by and citing cases may be incomplete.

Administrative, European, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.222182