Blackburn v Attorney-General
| Jurisdiction | England & Wales |
| Judgment Date | 10 May 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0510-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 May 1971 |
[1971] EWCA Civ J0510-2
The Master of the Rolls (Lord Denning),
Lord Justice Salmon and
Lord Justice Stamp.
In The Supreme Court of Judicature
Court of Appeal
Appeal by plaintiff from Judgment of Mr. Justice Eveleigh on 27th February, 1971
The Appellant, Mr. Blackburn, appeared in person.
Mr. GORDON SLYNN (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
In this case Mr. Blackburn - as he has done before - has shown eternal vigilance in support of the law. This time he is concerned about the application of Her Majesty's Government to join the Common Market and to sign the Treaty of Rome. He brings two actions against the Attorney-General, in which he seeks declarations to the effect that, by signing the Treaty of Rome, Her Majesty's Government will surrender in part the sovereignty of The Crown in Parliament and will surrender it for ever. He says that in so doing the Government will be acting in breach of the law. The Attorney-General has applied to strike out the Statements of Claim on the ground that they disclose no reasonable cause of action. The Master and the Judge have struck them out. Mr. Blackburn, with our leave, appeals to this Court. He thinks it is important to clear the air.
Much of what Mr. Blackburn says is quite correct. It does appear that if this country should go into the Common Market and sign the Treaty of Rome, it means that we will have taken a step which is irreversible. The sovereignty of these islands will thenceforward be limited. It will not be ours alone but will be shared with others. Mr. Blackburn referred us to a decision by the Court of Common Market Costa v. E. N. E. L. ( 1964 Common Market Law Reports, 425) in February, 1964, in which the European Court in its judgment said that:
".….the member states, albeit within limited spheres, have restricted their sovereign rights and created a body of law applicable both to their nationals and to themselves".
Mr. Blackburn points out that many regulations made by the European Economic Community will become automatically binding onthe people of this country: and that all the Courts of this country, including the House of Lords, will have to follow the decisions of the European Court in certain defined respects, such as the construction of the Treaty.
I will assume that Mr. Blackburn is right in what he says on those matters. Nevertheless, I do not think these Courts can entertain these actions. Negotiations are still in progress for us to join the Common Market. No agreement has been reached. No Treaty has been signed. Even if a treaty is signed, it is elementary that these Courts take no notice of treaties as such. We take no notice of treaties until they are embodied in laws enacted by Parliament, and then only to the extent that Parliament tells us. That was settled in a case about a treaty between the Queen of England and the Emporer of China. It is ( Rustomjee v. The Queen 1876 2 Q. B. D. 69). Lord Coleridge, the then Chief Justice said at page 74:
"She" - that is The Queen - "acted throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own Courts".
Mr. Blackburn acknowledged the general principle, but he urged that this proposed treaty is in a category by itself, in that it diminishes the sovereignty of Parliament over the people of this country. I cannot accept the distinction. The general principle applies to this treaty as to any other. The treaty making power of this country rests not in the Courts, but in the Crown; that is, Her Majesty acting upon the advice of her Ministers. When Her Ministers negotiate and sign a treaty, evena treaty of such paramount importance as this proposed one, they act on behalf of the country as a whole. They exercise the prerogative of Crown. Their action in so doing cannot be challenged or questioned in these Courts.
Mr. Blackburn takes a second point. He says that, if Parliament should implement the Treaty by passing an Act of Parliament for this purpose, it will seek to do the impossible. It will seek to bind its successors. According to the Treaty, once it is signed, we are committed to it irrevocably. Once in the Common Market, we cannot withdraw from it. No Parliament can commit us, says Mr....
To continue reading
Request your trial
-
Table of cases
...131 Benin v. Whimster [1976] 1 QB 297 (CA) .........................................................239 Blackburn v. Attorney-General [1971] 1 WLR 1037 (CA) ................................123 Bloxam v. Favre (1883) 8 PD 101 (CA) ..........................................137–38, 171, 176 Br......
-
Juridical and Constitutional Implications of CARICOM Treaty Practice
...f.ns. 70 & 72 infra. 75. Parlement Belge (1878) 4 P.D. 129, 154-5, AG for Canada v AG for Ontario [1937] AC 326, 347-8, Blackburn v AG [1971] 1WLR 1037, 1039 (per Lord Denning MR). 76. I. A. Shearer, Stark’s International Law , 11th ed. (Butterworths, 1994) page 71. 77. R v SS for Home Depa......
-
Reconceptualising ‘Justiciability’: Crafting a Coherent Framework for Australia’s Unique Constitutional Context
...[2005] FCA 664 (‘Humane Society’).73. Buttes Gas (n 24); Ex parte Molyneaux [1986] 1 WLR 331, 336; Blackburn v Attorney-General [1971] 1 WLR 1037,1040 (Denning LJ).74. Dominic McGoldrick, ‘The Boundaries of Justiciability’(2010) 59(4) The International and Comparative LawQuarterly 981, 1004......
-
Reconceptualising ‘Justiciability’: Crafting a Coherent Framework for Australia’s Unique Constitutional Context
...[2005] FCA 664 (‘Humane Society’).73. Buttes Gas (n 24); Ex parte Molyneaux [1986] 1 WLR 331, 336; Blackburn v Attorney-General [1971] 1 WLR 1037,1040 (Denning LJ).74. Dominic McGoldrick, ‘The Boundaries of Justiciability’(2010) 59(4) The International and Comparative LawQuarterly 981, 1004......