R v HM Treasury, ex parte Smedley

JurisdictionEngland & Wales
Judgment Date19 December 1984
Judgment citation (vLex)[1984] EWCA Civ J1219-4
Docket Number84/0491
CourtCourt of Appeal (Civil Division)
Date19 December 1984
Her Majesty's Treasury,
Ex Parte William Oliver Smedley

[1984] EWCA Civ J1219-4


The Master of the Rolls

(Sir John Donaldson)

Lord Justice Slade


Lord Justice Lloyd







Royal Courts of Justice.

MR. LEOLIN PRICE, Q.C., MR. JOHN McDONNEL, Q.C. and MR. MICHAEL ASHE (instructed by Messrs. Bower Cotton & Bower) appeared on behalf of the (Applicant) Appellant.

MR. JOHN LAWS (instructed by the Treasury Solicitor) appeared on behalf of the (Respondent) Respondent.


Mr. William Oliver Smedley is, I am sure, a man of many parts. Today he seeks the assistance of the court in his capacity as Mr. Smedley, British Taxpayer and Elector. What troubles him is an expressed intention by H.M. Treasury to pay the European Community a sum in excess of £121.5 million out of the Consolidated Fund and to do so without seeking the authority of Parliament in the form of an Appropriation Act or other similar statute. Instead, it would seem that the Treasury proposes to operate the special procedure provided by section 1 of the European Communities Act 1972, which involves laying a draft Order in Council before Parliament and, if that draft Order is approved by affirmative resolution of both Houses of Parliament and an Order in Council is in fact made in those terms, to make the payment on the authority of section 2(3) of that Act.


On the 28th November Mr. Smedley obtained leave from Mr. Justice Hodgson to apply for relief by way of judicial review. His application came before Mr. Justice Woolf on the 6th December and was dismissed on the 7th December. His appeal to this court was heard on the 12th and 13th December and, but for the fact that we received a message to the effect that a judgment given today would be as satisfactory as one given earlier and we welcomed the opportunity to put our judgments in to writing, had intended to give judgment on the 14th December. Bearing in mind that at each stage the matter has been fully argued, there can be and is no complaint that the courts or the practitioners have been dilatory. Indeed in some other jurisdictions the timetable would be regarded with some surprise, not to say envy. I mention the matter not in any spirit of complacency, but merely in order to counterbalance the well justified complaints which are sometimes made of the law's delays.


Section 1(2) of the European Communities Act 1972 defines the expressions "the Treaties" and "the Community Treaties" as they appear in the Act. It does so by referring to certain scheduled pre-accession treaties and to three other categories of treaty. Two of these three categories cover respectively the United Kingdom Accession Treaty and the Council Accession Decision both of the 22nd January, 1972. The third category is "any other treaty entered into by any of the Communities, with or without any of the member States, or entered into, as a treaty ancillary to any of the Treaties, by the United Kingdom".


Section 1(3) of the Act then provides as follows:

"If Her Majesty by Order in Council declares that a treaty specified in the Order is to be regarded as one of the Community Treaties as herein defined, the Order shall be conclusive that it is to be so regarded; but a treaty entered into by the United Kingdom after the 22nd January 1972, other than a pre-accession treaty to which the United Kingdom accedes on terms settled on or before that date, shall not be so regarded unless it is so specified, nor be so specified unless a draft of the Order in Council has been approved by resolution of each House of Parliament."


The word "treaty" as distinct from "the Treaties" is defined for the purposes of subsections (2) and (3) as including "any international agreement, and any protocol or annex to a treaty or international agreement".


Section 2(3) provides the Treasury with authority to charge on and issue out of the Consolidated Fund or, as the case may be, the National Loans Fund the amounts required to meet any Community obligation to make payments to any of the Community or member States. In this context the expression "Community obligation" means any obligation created or arising under the Treaties.


It follows that if Her Majesty by Order in Counci, the draft of which had previously been laid before and approved by resolution of each House of Parliament, were to declare that an international agreement is to be regarded as one of the Community Treaties, the Treasury would without further authority be entitled to make any payments called for by that agreement.


The Treasury took the first step down this procedural path when on or about the 19th November, 1984 a draft Order in Council was laid before both Houses of Parliament. This draft specified the "Undertaking made by the Representatives of the Governments of the member States meeting within the Council on the 2nd and 3rd October, 1984 to make payments to the Community in 1984 to finance supplementary and amending budget No. 1 (Cmnd. 9395)" as being a treaty to be regarded as a Community Treaty as defined in section 1(2) of the 1972 Act.


Before considering Mr. Smedley's objections to this course and to the obvious intention to advise Her Majesty to make an Order in Council in the same terms if the draft is approved by both Houses of Parliament, I think that I should say a word about the respective roles of Parliament and the courts. Although the United Kingdom has no written constitution, it is a constitutional convention of the highest importance that the legislature and the judicature are separate and independent of one another, subject to certain ultimate rights of Parliament over the judicature which are immaterial for present purposes. It, therefore, behoves the courts to be ever sensitive to the paramount need to refrain from trespassing upon the province of Parliament or, so far as this can be avoided, even appearing to do so. Although it is not a matter for me, I would hope and expect that Parliament would be similarly sensitive to the need to refrain from trespassing upon the province of the courts.


Against that background, it would clearly be a breach of the constitutional conventions for this court, or any court, to express a view, let alone take any action, concerning the decision to lay this draft Order in Council before Parliament or concerning the wisdom or otherwise of Parliament approving that draft. Equally, as I made clear during the course of the argument, so far as I can see there can be no possible constitutional objection to Parliament debating this draft merely because this court is seized of Mr. Smedley's complaint. The exercise upon which Parliament would be engaged and that upon which we are engaged are essentially different. That much is, I think, common ground.


However Mr. Laws, appearing for the Treasury, took the matter a little further when he submitted that, at the present stage when no Order in Council has been or could yet be made, it is premature for the court to consider Mr. Smedley's application. There is obvious force in this submission, but it requires some further examination. It is the function of Parliament to legislate and legislation is necessarily in written form. It is the function of the courts to construe and interpret that legislation. Putting it in popular language, it is for Parliament to make the laws and for the courts to tell the nation, including members of both Houses of Parliament, what those laws mean. Furthermore, whilst Parliament is entirely independent of the courts in its freedom to enact whatever legislation it sees fit, legislation by Order in Council, statutory instrument or other subordinate means is in a quite different category, not being Parliamentary legislation. This subordinate legislation is subject to some degree of judicial control in the sense that it is within the province and authority of the courts to hold that particular examples are not authorised by statute, or as the case may be by the common law and so are without legal force or effect.


At the present moment, there is no Order in Council to which Mr. Smedley can object as being unauthorised. All that can be said is that it seems likely that if both Houses of Parliament approve the draft Order in Council, Her Majesty will be advised to make and will make an Order in the terms of the draft, whereupon the courts would without doubt be competent to consider whether or not the Order was properly made in the sense of being intra vires.


In many, and possibly most, circumstances the proper course would undoubtedly be for the courts to invite the applicant to renew his application if and when an Order was made, but in some circumstances an expression of view on questions of law which would arise for decision if Parliament were to approve a draft may be of service not only to the parties, but also to each House of Parliament itself. This course was adopted in Rex v. Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 K.B. 171. In that case an inquiry was in progress, the cost of which would have been wholly wasted if, thereafter, the Minister and Parliament had approved the scheme only to be told at that late stage that the scheme was ultra vires.


Similar considerations apply in the present case. It is apparent from the terms of the undertaking that the provision of the money is considered a matter of urgency. If we defer consideration of Mr. Smedley's application until after both Houses of Parliament have considered the somewhat different...

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