This week’s Supreme Court hearing on the Article 50 judicial review is being comprehensively covered elsewhere, including a live blog by the UKSC Blog. The judgments are likely to raise some interesting issues of international law, along with fundamental issues of domestic constitutional law.
The British press have also been following the case keenly, and earlier this week had cause to make a satirical reference to an old Privy Council decision. Commenting on the styles of advocacy before the Court, The Guardian observed that Lord Pannick QC cited:
some 1892 precedent about raiding a lobster preservation factory in Newfoundland. No one thought to ask him whether it was entirely germane to the proceedings because it was all rather fun and no one dares to interrupt the master in full flow.
The case in question is Walker v Baird [1892] AC 491, an 1892 decision of the Privy Council. The UK and France had entered into a treaty about the lobster fisheries on the coast of Newfoundland, to avoid a serious conflict which was brewing on the subject. The treaty provided, among other things, that no new lobster factory should be established in a particular area after 1 July 1889, without the consent of the Commanders of the British and French naval stations.
Mr Baird, the captain of a British patrol boat, was given the job of enforcing this agreement. He seized the lobster factory of Mr Walker on the basis that it had been established after that date, without the Commanders’ consent. Mr Walker sued for trespass. The Privy Council gave short shrift to the argument of the Attorney-General, on Mr Baird’s behalf, that “the Court was not competent to inquire into a matter involving the construction of treaties and other acts of State” (an argument still frequently advanced on behalf of the Government), describing this as “wholly untenable”.
The Attorney-General argued on Mr Baird’s behalf that, given that the Crown has the power to make treaties, “there must of necessity also reside in the Crown the power of compelling its subjects to obey the provisions of a treaty”. The Privy Council ducked the issue, holding that whether interference with private rights can be authorised other than by Parliament was a “grave question upon which their Lordships do not find it necessary to express an opinion.” They decided the case narrowly on the facts, finding for Mr Walker, the aggrieved owner of the lobster factory.
Given the vast range of rights which are now conferred on UK residents by EU law, the question of whether interference with private rights can be authorised other than by Parliament is not one which the Supreme Court will be able to avoid as easily in 2016 as the Privy Council did in 1892.
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