Western Sahara Campaign UK v Secretary of State for International Trade
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 28 June 2021 |
| Neutral Citation | [2021] EWHC 1756 (Admin) |
| Docket Number | Case No: CO/971/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1756 (Admin)
Mr Justice Chamberlain
Case No: CO/971/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Victoria Wakefield QC and Conor McCarthy (instructed by Leigh Day Solicitors) for the Claimant
Sir James Eadie QC and Paul Luckhurst (instructed by Government Legal Department) for the Defendants
Hearing date: 17 June 2021
Approved Judgment
Introduction and outline of the claim
The Claimant is an independent voluntary organisation which campaigns on matters of public interest concerning Western Sahara, a territory over which Morocco asserts sovereignty. The Claimant contends that, under international law, Morocco has no right to exercise sovereignty over Western Sahara or to exploit its resources unless acting with the consent of the people of that territory and for their exclusive benefit; and that it owes duties as an occupying power, which have not been fulfilled.
The Claimant seeks relief relating to two instruments made by the Treasury under s. 9 of the Taxation (Cross-border) Trade Act 2018 (“the 2018 Act”), which confers power to “give effect” to international arrangements between the UK and another country or territory setting preferential tariffs for goods originating in the country or territory. By s. 9(3), this power is exercisable only on the recommendation of the Secretary of State.
When exercising the s. 9 power, s. 28 of the 2018 Act applies. This requires the Treasury and the Secretary of State to “have regard to international arrangements to which Her Majesty's government in the United Kingdom is a party that are relevant to the exercise of the function”.
The instruments in question in these proceedings are the Customs (Tariff Quotas) (EU Exit) Regulations 2020 (SI 2020/1432) and the Customs Tariff (Preferential Trade Arrangements) (EU Exit) Regulations 2020 (SI 2020/1457), together referred to as “the 2020 Regulations”. These brought into force the Morocco Preferential Tariff, version 1.0 (“the Tariff”) and the Morocco Origin Reference Document, version 1.0 (“the Reference Document”), both dated 7 December 2020, with effect from 11pm on 31 December 2020.
The 2020 Regulations purport to give effect to the UK-Morocco Association Agreement, concluded on 26 October 2019 (“the UKMAA”), one of a series of “short form” trade agreements designed to replicate EU association agreements from which the UK ceased to benefit at the end of the transition period following Brexit. It incorporates by reference, mutatis mutandis, the provisions of the EU-Morocco Association Agreement (“EUMAA”).
The UKMAA and EUMAA provide for preferential tariff treatment for certain products originating in Morocco. They expressly apply to products originating in Western Sahara and subject to Moroccan customs controls. So do the Tariff and Reference Document.
In essence, the Claimant's case is as follows:
(a) The UKMAA must be read in accordance with established principles governing the interpretation of treaties. This means that, despite its express terms, it must be read as not applying to products originating in Western Sahara (at least for the time being, until Morocco complies with its obligations as an occupying power). The relevant interpretive principles include Article 53 of the Vienna Convention on the Law of Treaties (“the Vienna Convention”), which provides that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of international law (jus cogens). The principle of self-determination is such a norm. It prevents Morocco from exploiting the resources of Western Sahara except with the consent of its people and for their exclusive benefit. The arrangements in the UKMAA were not made with the consent of the people of Western Sahara and are not for their exclusive benefit, despite the recent manifestly inadequate consultation exercise undertaken by the European Commission and the European External Action Service. Any contrary view is wrong and, to the extent that it is necessary to say so, untenable.
(b) That being so, the Tariff and Reference Document must be read as not applying to products originating in Western Sahara, because:
(i) as domestic legislation whose express purpose is to “give effect” to an international treaty, they must be interpreted in the same way as the treaty;
(ii) if they cannot be interpreted in that way, insofar as they apply to products from Western Sahara, they do not “give effect” to the treaty and are, to that extent, ultra vires s. 9 read with s. 28 of the 2018 Act and so void. The void provisions are severable.
(This is Ground 1.)
(c) Alternatively, the decision to make the instruments involved a justiciable misdirection as to the proper scope of the UKMAA. As a “continuity agreement”, this had to be interpreted in accordance with the EUMAA which – as a matter of EU law – had to be read subject to peremptory norms of international law.
(This is Ground 2.)
The specific relief sought includes declarations that:
“(a) the proper interpretation of [the UKMAA] is that it may only apply to products originating in Western Sahara if the conditions imposed by international law for the exploitation of the resources of a non-self-governing territory have been met;
(b) those conditions have not been met; and
(c) [the 2020 Regulations] accordingly do not apply to such goods.”
In the alternative, the Claimant seeks a quashing order to quash the 2020 Regulations insofar as they apply to products originating in Western Sahara.
The issues for determination at the permission stage
On 12 May 2021, Mostyn J adjourned the question of permission to an oral hearing with a time estimate of 1 day. He indicated that the court would want to hear full argument on justiciability. The hearing took place on 17 June 2021 before me.
Despite Mostyn J's reference to “full argument”, and although I heard much more detailed argument than would be normal at a permission hearing, the parties agreed that the issue before me was simply whether the claim was arguable. As Sir James Eadie QC put it, this meant that the Defendants needed a “knock-out blow”.
In attempting to deliver such a blow, Sir James concentrated his attacks exclusively on steps (b) and (c) in the argument summarised at [7] above. For the purposes of permission, he accepted that step (a) was arguable. In other words, he accepted that it was arguable that, as a matter of international law, and notwithstanding its express terms, the UKMAA does not apply to products originating in Western Sahara.
Sir James's case is that, even so, the domestic instruments challenged are clear; the Claimant's “interpretation” would amount to rewriting them; and no domestic law principle of construction could permit that. In addition, Sir James contends that the claim is an impermissible attempt to challenge indirectly the terms of the UKMAA. He also submits that the case advanced by the Claimant necessarily involves the proposition that a foreign sovereign has violated international law and that the claim is therefore barred by the foreign act of State doctrine.
I have considered the Claimant's two grounds separately.
Is ground 1 arguable?
Ms Wakefield candidly accepts that the “interpretation” of the Tariff and Reference Document which she advances involves striking out legislative words or reading in a qualification not present on the face of those instruments. If the words were in primary legislation, I would have no difficulty in accepting that no process of interpretation could achieve that result, whatever the true meaning of the UKMAA. This is because – as a matter of domestic law – Parliament can, if it so chooses, legislate contrary to international law. The interpretive rule that legislation is to be read in accordance with international law therefore applies only where the legislation is ambiguous. The primary duty of fidelity owed by the domestic courts is to Parliament, not to international law.
But the instruments in question here are not primary legislation. They are secondary legislation made under a power granted by Parliament in s. 9 of the 2018 Act. Fidelity to Parliament requires the court to focus, in the first instance, on the terms of that provision. Parliament could simply have conferred a broad discretion to set preferential tariffs “having regard to” any relevant international arrangements. It did not. Instead, it conferred power on the executive to “give effect” to certain international arrangements. The true scope of those words in this context may be a matter for debate. How far from the substance of the international arrangement can the domestic instrument go before it ceases to “give effect” to it? Questions such as these were considered in the context of the differently worded implementing power in s. 2 of the European Communities Act 1972 in Oakley Inc. v Animal Ltd [2005] EWCA Civ 1191, [2006] Ch 337.
At this stage, however, I am only concerned with the question of arguability. It seems to me to be at least arguable that a domestic instrument which applies to products originating in territories A and B does not “give effect” to an international arrangement which applies only to products originating in territory A. Since Sir James has conceded that it is arguable that the UKMAA, properly construed, does not apply to products originating in Western Sahara, it follows that it is arguable that the domestic instruments are ultra vires insofar as they purport to do so.
Sir James argued that a domestic instrument which reproduces in precisely identical terms the material part of the international arrangement can hardly...
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