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Law Report: Maastricht Treaty may be ratified: Regina v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Rees-Mogg - Queen's Bench Divisional Court (Lord Justice Lloyd, Lord Justice Mann and Mr Justice Auld), 30 July 1993

The United Kingdom may lawfully ratify the Treaty on European Union signed at Maastricht on 7 February 1992.

The Divisional Court dismissed Lord Rees-Mogg's application for judicial review of the Foreign Secretary's decision to ratify the Maastricht Treaty.

The first argument was that by ratifying the Protocol on Social Policy, the United Kingdom would be in breach of section 6 of the European Parliamentary Act 1978, which provides that treaties which increase the powers of the European Parliament must be approved by an Act of Parliament, since the European Communities (Amendment) Act 1993 which by section 1(2) approves the Maastricht Treaty specifically excludes in section 1(1) the Protocol on Social Policy.

The second argument was that by ratifying the Protocol, the Government would be altering Community law under the Treaty of Rome without Parliamentary approval, in breach of section 2(1) of the European Communities Act 1972 which it was argued curtailed the prerogative power to amend or add to the Treaty of Rome.

The third argument was that by ratifying Title V of the Treaty, which establishes a common foreign and security policy among member states, the Government would be transferring part of the Royal Prerogative, to community institutions without statutory authority.

David Pannick QC, Keith Lindblom, Rhodri Thompson and Jeremy Callman (Gouldens) for Lord Rees-Mogg; Sydney Kentridge QC, Stephen Richards and David Anderson (Treasury Solicitor) for the Foreign Secretary.

LORD JUSTICE LLOYD, giving the court's judgment, said that the case did not question proceedings in Parliament or impeach its privileges in any way. It was concerned with legality of government actions and intention. Its issues were clearly within the proper sphere of judicial review, as questions of policy were within the sphere of Parliament. The questions raised were of great moment, but it was an exaggeration to describe the case as the most important constitutional case for 300 years.

The court would hesitate before holding the Protocols were not intended to be part of the Maastricht Treaty. The Protocols were ancillary or incidental or supplementary to the Treaty and ratification of the Treaty would automatically involve ratification of the Protocols.

The purposes of section 1(1) and section 1(2) of the 1993 Act were quite different. The purpose of section 1(1) was to incorporate certain parts of the Maastricht Treaty in English domestic law. The purpose of section 1(2) was to ensure that the Treaty as a whole, including the Protocols, could be ratified by the UK without breach of the 1978 Act. Treaty in section 1(2) included all the Titles, all the Protocols and all the Declarations. The first argument must be rejected.

Turning to the second issue, when Parliament wished to fetter the Crown's treaty-making power, it did so in express terms, such as in section 6 of the 1978 Act. If the Crown's treaty making power in relation to Community law were impliedly excluded by section 2(1) of the 1972 Act, section 6 of the 1978 Act would not have been necessary. The Protocol on Social Policy was not intended to apply to the UK. The Protocol was not one of the treaties covered under section 2(1) of the 1972 Act by which Community treaties had force in domestic law. The UK's obligation under the Protocol was on the international plane, not the domestic plane. The second argument was rejected.

The third and last argument was the most interesting jurisprudentially but also the weakest. Assuming the court had jurisdiction to consider the questions raised and assuming the Government could not lawfully transfer any part of the Crown's prerogative powers in relation to foreign affairs without statutory enactment, Title V could not be regarded as a transfer of prerogative powers.

Title V did not entail an abandonment or transfer of prerogative powers but an exercise of those powers. No one had ever suggested that the Charter of the United Nations or of the North Atlantic Treaty Organisations involved a transfer of prerogative powers. Title V should be read in the same light. The third argument was rejected.

Ying Hui Tan, Barrister