QUEEN'S BENCH DIVISION
B e f o r e :
LORD JUSTICE MANN
MR JUSTICE AULD
|CROWN OFFICE LIST|
|R E G I N A|
|SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS|
|EX PARTE LORD REES MOGG|
Official Shorthand Writers to the Court)
MR S KENTRIDGE QC, MR S RICHARDS and MR D ANDERSON (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Friday, 30th July 1993
LORD JUSTICE LLOYD: The applicant in these proceedings, the Rt. Hon. Lord Rees Mogg, seeks inter alia a declaration that the United Kingdom may not lawfully ratify the Treaty on European Union signed at Maastricht on 7th February 1992. Mr Pannick QC advances three main arguments on his behalf. First, by ratifying the Protocol on Social Policy the Government of the United Kingdom would be in breach of section 6 of the European Parliamentary Elections Act 1978. Secondly, by ratifying the Protocol, the Government would be altering the content of Community Law, without Parliamentary approval. Thirdly, by ratifying Title V of the Treaty, the Government would be transferring part of the Royal Prerogative to community institutions without statutory authority, namely, the power to conduct foreign and security policy.
Before considering each of these arguments in turn, it is as well to be clear what this case is not about. At the outset of his submissions, Mr Pannick disclaimed any intention to question proceedings in Parliament, contrary to Article 9 of the Bill of Rights 1688, or to impeach its privileges in any way. Mr Kentridge QC for the Secretary of State for Foreign and Commonwealth Affairs, the nominal respondent to the proceedings, readily accepted that by bringing these proceedings the applicant has not infringed those privileges. In the end it is, of course, for Parliament to say whether its privileges have been infringed. But we have had heard nothing to support, or even suggest, that that is the case.
With the great increase in the number of applications for judicial review, the judges who sit in the Divisional Court of the Queen's Bench are all conscious of the need to confine judicial review within its proper sphere. As Sir John Donaldson MR said in R v H.M. Treasury ex parte Smedley 1985 1 QB 657 at 666
"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."
In the present case we have been concerned, and concerned solely, with the legality of Government actions and intentions. That is the common coin of applications for judicial review. 1 The issues in the present case are as clearly within the proper sphere of judicial review, as questions of policy are within the sphere of Parliament.
1. Of the 4,333 applications for judicial review received between 1987 and 1989, Ministers of the Crown were respondents is 1,558, or 36%. Local authorities were respondents in 1,119, or 25%. Between 1989 and 1992 the total number of applications rose by 54%. We have no reason to suppose that the ratios have not remained much the same. Source: Judicial Review in Perspective 1993 by Maurice Sunkin and others.
any of the lengthy extracts from Hansard contained in Lord Rees Mogg's affidavit. There are passages in that affidavit, and in Form 86A itself, which refer to the "deliberate" amendment by Parliament of the Bill as originally presented, and the "conscious" and "deliberate" exclusion of the Protocol on Social Policy from section 1(1) of the Act. But Mr Pannick has not relied on those passages. Indeed he has not referred to the affidavit at all. The case thus wears a very different aspect from what it did when leave was granted.
We do not doubt that the questions we are asked to decide in this case are of great moment, because of the consequences either way. But it is in our view an exaggeration to describe it as the most important constitutional case for three hundred years.
There is no dispute as to the applicant's locus standi, and in the circumstances it is not appropriate to say any more about it, save to refer to the observations of Slade LJ in ex parte Smedley at page 669. It is suggested by Mr Kentridge that these proceedings are no more than a continuation by other means of arguments ventilated in Parliament. Be that as it may, we accept without question that Lord Rees Mogg brings the proceedings because of his sincere concern for constitutional issues.
THE FIRST ISSUE
"(1) No treaty which provides for any increase in the powers of the European Parliament shall be ratified by the United Kingdom unless it has been approved by an Act of Parliament.
(2) In this section 'treaty' includes any international agreement, and any protocol or annex to a treaty or international agreement".
"1 (1) In section 1(2) of the European Communities Act 1972, in the definition of "the Treaties" and "the Community Treaties", after paragraph (j) (inserted by the European Communities (Amendment) Act 1986) there shall be inserted the words "and
(k) Titles II, III, and IV of the Treaty on European Union signed at Maastricht on 7th February 1992, together with the other provisions of the Treaty so far as they relate to those Titles, and the Protocols adopted at Maastricht on that date and annexed to the Treaty establishing the European Community with the exception of the Protocol on Social Policy on page 117 of Cm 1934.
(2) For the purpose of section 6 of the European Parliamentary Elections Act 1978 (approval of treaties increasing the Parliament's powers) the Treaty on European Union signed at Maastricht on 7th February 1992 is approved".
Mr Pannick submits that the Protocol on Social Policy provides for an increase in the powers of the European Parliament. Accordingly it cannot lawfully be ratified by the United Kingdom without Parliamentary approval. Section 1 sub section 2 of the 1993 Act approves the Treaty on European Union, ("the Union Treaty".) But according to Mr Pannick it does not approve the Protocols, and in particular does not approve the Protocol on Social Policy, which is specifically excluded from the operation of section 1(1) of the Act.
Mr Kentridge accepts for present purposes that the Protocol may increase the powers of the European Parliament to a slight degree. But he submits that section 1(2) of the Act contains a clear and unambiguous approval by Parliament of the Union Treaty as a whole, including all the Protocols.
In support of his argument Mr Pannick makes a number of points, some in relation to the Union Treaty and others in relation to the construction of section 1 of the Act. We start with the Treaty. It contains the following provisions.
"(1) This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the government of the Italian Republic.
(2) This Treaty shall enter into force on 1st January 1993, provided that all the instruments of ratification have been deposited, or failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step."
"Done at Maastricht on 7th day of February in the year One Thousand Nine Hundred and Ninety Two."
On the next page, and bound up in the same issue of the Official Journal of the European Communities dated 29th July 1992, there follow 17 Protocols. The Protocol on Social Policy is No. 14. It notes that eleven of the Member States, that is to say all except the United Kingdom, have adopted among themselves an Agreement on Social Policy. By paragraph 1 of the Protocol, the twelve High Contracting Parties, including the United Kingdom, authorised the eleven Member States to have recourse to Community institutions for the purpose of giving effect to their Agreement. By paragraph 2 of the Protocol it was provided that acts adopted by the Council pursuant to the Protocol, and the financial consequences of such acts, other than the costs of administration, should not apply to the United Kingdom. Finally under paragraph 3 it was provided that the Protocol should be annexed to the Treaty of Rome.
The only other Protocol we need mention is no. 17, which relates to Article 40.3.3 of the Constitution of Ireland. Unlike all the other Protocols, it was provided that Protocol 17 should be annexed to the Union Treaty as well as the Treaty of Rome.
"The Conferences of the Representatives of the Governments of the Member States....have adopted the following texts:
THE TREATY ON EUROPEAN UNION
[and it then sets out the titles of the 17 Protocols. It then continues]
"The Conferences agreed that the Protocols referred to in 1 16 above will be annexed to the Treaty establishing the European Community and that the Protocol referred to in 17 above will be annexed to the Treaty on European Union and to the Treaties establishing the European Communities.
Mr Pannick submits that the Protocol on Social Policy is not a part of the Union Treaty. How can it be, he asks, when it is annexed to the Treaty of Rome, and not the Union Treaty? Thus when the preamble to the Protocol refers to "this Treaty" it does not mean the Union Treaty; it means the Treaty of Rome. The contrast with Protocol 17, which is annexed to the Union Treaty as well as the Treaty of Rome speaks for itself.
Moreover the Final Act identifies three separate texts, (i) the Treaty on European Union (ii) the Protocols and (iii) the Declarations. This shows, says Mr Pannick, that the Protocols are not part of the Treaty. He accepts that the Treaty contains a number of cross references to the Protocol. But it is significant, he says, that all such cross references are in Title II of the Treaty. Title II contains the amendments to the Treaty of Rome. There is no mention of the Protocols in any of the other Titles.
We would hesitate long and hard before holding, on the internal evidence to which Mr Pannick drew attention, that the Protocols are not intended to be part of the Union Treaty. The arguments the other way are much stronger. For example, the only provision relating to ratification is Article R of Title VII. There is no separate provision calling for ratification of the Protocols or the Declarations. It is inconceivable that the High Contracting Parties did not intend Article R to cover ratification of the Protocols as well as ratification of the Treaty. If so, it follows they were using the word "Treaty" to include the Protocols.
This is borne out by what has happened in practice. The instruments of ratification already lodged by France, Spain, Portugal, Ireland, the Netherlands and Denmark contain no references to the Protocols. They simply ratify the Treaty. We were told that this is how Her Majesty's Government will draw up the instrument of ratification by the United Kingdom.
We attach little weight to the fact that the Protocols are to be annexed to the Treaty of Rome. This does not show that they are not also part of the Union Treaty. Indeed the Irish Protocol, on which Mr Pannick relied so strongly, seems to show that a Protocol can be part of two separate treaties. So the point is at best neutral.
"It is, however, correct to say that the protocol is now used principally as an instrument subsidiary to a treaty or convention, usually (but not necessarily) drawn up by the same negotiators, and dealing with ancillary or incidental matters such as the interpretation of particular articles of the main treaty or any supplementary provision of a minor character. Ratification of the Treaty or Convention will normally ipso facto involve ratification of any supplementary or additional protocol of this nature."
This bears out our view that the Protocols here are ancillary or incidental or supplementary to the provisions of the Treaty, and that ratification of the Treaty will automatically involve ratification of the Protocols.
We now turn to Mr Pannick's arguments on the construction of the 1993 Act. "Treaty on European Union" in section 1(2) must, he says, mean the Treaty without the Protocols, because that is the meaning which it bears in section 1(1). If the word "Treaty" in section 1(1) was intended to included the Protocols, then it would have been unnecessary to refer to the Protocols. The words from "and" at the end of third line of insertion (k) to "European Community" in the 5th line would have been otiose.
But the purposes of section 1(1) and section 1(2) are quite different. The purpose of section 1(1) is to incorporate certain parts of the Union Treaty in English domestic law. It was necessary to refer to Titles II III & IV of the Treaty, because Titles I, V, VI and VII are not incorporated. It was necessary to refer to the Protocols, because the Protocol on Social Policy is not incorporated. But for the exclusion of Titles I V, VI & VII (save in so far as they relate to Titles II, III, IV) and but for the exclusion of the Protocol on Social Policy, section 1(1) would have referred to the Treaty in the same way as section 1(2).
The purpose of section 1(2) is, of course, quite different. It is to ensure that the Treaty as a whole, including the Protocols (see section 6(2) of the 1978 Act) could be ratified by the United Kingdom without breach of the 1978 Act. It is plain, almost beyond argument, that this is what section 1(2) means. If Mr Pannick's argument were correct, and the reference to the Treaty in section 1(2) does not include the Protocols, then all the Protocols would have been left hanging in the air. Without being able to ratify the Protocols, the United Kingdom would have been unable to ratify the Treaty, and the whole exercise on which Parliament was engaged would have been reduced to futility. What could have been the point of incorporating all the Protocols, in English domestic law, save only Protocol 14, unless it was intended by Parliament that the Protocols should be approved for ratification? It follows that the Treaty in section 1(2) cannot bear the narrow meaning for which Mr Pannick contends. It must, and does, include all the Titles, all the Protocols and all the Declarations.
"An Act to make provision consequential on the Treaty on European Union signed at Maastricht on 7th February 1992."
The days are long since past when courts declined to regard the long title as an aid to construction. Prima facie, "Treaty on European Union" in section 1 should have the same meaning as in the long title. But in the long title it must include the Protocols, because otherwise many of the provisions contained in sections 2 5 which are clearly consequential on the Protocols, would not be consequential on the Treaty. Thus section 2 contains provisions which are consequential on Protocol 11. That is the Protocol which concerns the United Kingdom's other opt out, namely, the opt out from the third stage for achieving economic and monetary union. If it be said that section 2 of the Act is also "consequential on" the Treaty, namely, chapter 4 of Title II this only shows how closely, and indeed inextricably, the Treaty and the Protocols are intertwined. We need not multiply examples.
For the reasons we have given, we would hold that "the Treaty on European Union" in section 1(2) means the whole Treaty, including the Protocols. It follows that Mr Pannick's first main argument must be rejected.
PEPPER V HART
If we had thought that the language of section 1(2) was ambiguous, which we do not, Mr Kentridge invited us to look at Hansard in order to resolve the ambiguity. The circumstances in which we are permitted to do so were laid down by the House of Lords in Pepper v Hart 1992 WLR 1032. We need not quote from the speech of Lord Browne Wilkinson in that case.
Mr Kentridge drew our attention to the observations of the Foreign Secretary in the House of Commons on 5th May 1993 Hansard column 203 204. In answer to a question from Sir Peter Tapsell Mr Hurd said
My Hon. friend is indeed I do not blame him for this because I have wandered through his tracks myself showing himself to be a layman. The opt out is in the Treaty. The Protocol is attached to the Treaty. The Protocol is part of the Treaty. Its status in the Treaty is not affected by the amendment. I am seeking to show following the advice from my Rt. Hon. and learned friend the Attorney General that the effect of the amendment is simply on the question whether the opt out Protocol should be embodied in domestic law. Its status in the Treaty and its value as an opt out are not affected by the amendment, because the opt out remains in the Treaty."
"Clause 1(2) of the bill satisfies the requirement in the 1978 European Parliamentary Elections Act that treaties increasing the powers of the European Parliament should be approved by an Act of Parliament before U.K. ratification. Clause 1(2) gives a global approval to all three pillars of the Treaty, and to all the Protocols."
Mr Pannick argued that to rely on these passages would be to go beyond anything in Pepper v Hart for two reasons. First, the question whether the Protocols are part of the Union Treaty is a question of fact and law. If the Protocols are not in fact and law part of the Union Treaty, then thinking cannot make it so. Secondly, Mr Hurd's thinking in particular was explicitly based on the advice of the Attorney General. In Mr Pannick's submission the Attorney General was simply wrong.
There is nothing in the first of these points. The question here is not whether the Protocols are in "fact and law" part of the Union Treaty. The question is what Parliament intended when enacting section 1 of the Act.
As to the second point, it would, if correct, undermine the utility of Pepper v Hart in every case to which it would otherwise apply. Ministers act on advice. It cannot make any difference whether or not the source of the advice is made explicit. Parliament has enacted section 1(2) in the light of clear statements made in both Houses as to its intended scope. If there had been any ambiguity, which there is not, we would have regarded this as an appropriate case in which to resort to Hansard, in accordance with the principles stated in Pepper v Hart.
THE SECOND ISSUE
We come now to the second of Mr Pannick's arguments. He submits that by ratifying the Protocol on Social Policy, the Government would be altering Community law under the Treaty of Rome. Community law is now, he says, the fundamental law of the United Kingdom. It is axiomatic that Parliament alone can change the law. Mr Pannick accepts, of course, that treaties are not self executing. They create rights and obligations on the international plane, not on the domestic plane. He accepts also that the treaty making power is part of the Royal prerogative. Thus to talk of Parliamentary ratification of a treaty is, as the textbooks point out, a constitutional solecism.
"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties....are without further enactment to be given legal effect....in the United Kingdom".
Mr Pannick emphasises the words "from time to time", which look to the future as well as the past. If the Protocol on Social Policy is ratified by all Member States, it will become part of the Treaty of Rome, which is one of the treaties referred to in section 2(1): see the definition of "the Treaties" in section 1(2) of the Act. Accordingly the Protocol will have effect not only on the international plane but also, by virtue of section 2(1) of the Act, on the domestic plane as well. By enacting section 2(1), Parliament must therefore have intended to curtail the prerogative power to amend or add to the Treaty of Rome. There is no express provision to that effect. But that is, according to the argument, the necessary implication.
The same implication is said to arise from section 2(2) of the Act which makes express provision for the implementation of Community obligations by Order in Council. Where Parliament has by statute covered the very same ground as was formerly covered by the Royal Prerogative, the Royal Prerogative is to that extent, by necessary implication, held in abeyance: see Attorney General v De Keyser's Royal Hotel Ltd 1920 AC 508, Laker Airways Ltd v Department of Trade 1977 1 QB 643 per Roskill LJ at page 718 720.
We find ourselves unable to accept this far reaching argument. When Parliament wishes to fetter the Crown's treaty making power in relation to Community law, it does so in express terms, such as one finds in section 6 the 1978 Act. Indeed, as was pointed out, if the Crown's treaty making power were impliedly excluded by section 2(1) of the 1972 Act, section 6 of the 1978 Act would not have been necessary. There is in any event insufficient ground to hold that Parliament has by implication curtailed or fettered the Crown's prerogative to alter or add to the Treaty of Rome.
Would the ratification of the Protocol on Social Policy alter the content of domestic law? The Protocol itself makes clear that it was not intended to apply to the United Kingdom. Nor is the United Kingdom party to the Agreement which is annexed to the Protocol. The Protocol is not one of the treaties (which for this purpose includes protocols: see section 1(4)) included within the definition of "the Treaties" in section 1(2) of the 1972 Act. For it is specifically excluded by section 1(1) of the 1993 Act. It follows that the Protocol is not one of the treaties covered under section 2(1) of the Act by which alone Community treaties have force in domestic law. It does not become one of the treaties covered by section 2(1) merely because, by the Union Treaty, it is annexed to the Treaty of Rome: see section 1(3).
Mr Pannick argues that under paragraph 1 of the Protocol, the United Kingdom has agreed to authorise the other eleven Member States to have recourse to the Community institutions for the purpose of giving effect to the Agreement. But this is an obligation on the international plane, not the domestic plane.
He further argues that the Protocol may have indirect effect on our domestic law, because some of the matters covered by the Agreement are covered elsewhere in Community law. Thus Article 6 of the Agreement, which enshrines the principle of equal pay for equal work, follows the language of Article 119 of the Treaty of Rome. Accordingly a decision of the European Court on the meaning of Article 6 might affect, so it is said, the application of Article 119 so as to influence the development of United Kingdom domestic law. But in our view, this possible indirect effect is far too slender a basis on which to support Mr Pannick's argument. We conclude that the Government would not, by ratifying the Protocol, be altering or affecting the content of domestic law without Parliamentary approval.
THE THIRD ISSUE
"The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations. The Council shall ensure that these principles are complied with".
Under Article J.2.2 the Council is obliged to define a common position, whenever it deems it necessary. Member states must then ensure that their policies conform to the common position. Article J.4.1 provides
"The common, foreign and security policy shall include all questions related to the security of the Union, including the eventual framing of a common defence policy, which might in time lead to a common defence".
Under Article J.5.1 the Presidency represents the Union in matters coming within the common foreign and security policy. There are other important provisions. But we have quoted enough to give the flavour. Unless otherwise agreed under Article J.3.2, the decisions of the Council must be taken unanimously.
Title V is not, of course, included in section 1(1) of the 1993 Act, since it is an inter governmental Agreement, which could have no impact on United Kingdom domestic law. The arguments advanced by Mr Pannick under this head are therefore of a very different nature from the arguments so far considered.
In support of his general proposition, Mr Pannick quotes a number of old authorities, starting with the Case of the King's Prerogative in Saltpetre (1606) 12 Coke's Reports 12. He also relies on a very recent decision of the Irish Supreme Court in relation to the Single European Act whereby the court held, by a majority, that it was not competent for the Government of Ireland to ratify Title III of the Act without a referendum: see Raymond Crotty v An Taoiseach 1987 2 CMLR 666. We quote simply from the headnote
"It would be quite incompatible with the freedom of action in foreign relations conferred on the Government by the Irish Constitution for the Government to qualify it or to inhibit it in any manner by formal agreement with other states to do so. That freedom does not carry with it the power to abdicate the freedom or to enter into binding agreement with other states to exercise the power to decide matters of foreign policy in a particular way or to refrain from exercising it save by particular procedures and so to bind the state in its freedom of action in its foreign policy. Title III of the Single European Act requires such limitations on the Government's freedom of action in foreign relations and therefore may not be ratified without a referendum".
Mr Pannick submits that, by the same token, the effect of Title V of the Union Treaty is, or will be, that the Crown has transferred its prerogative power in relation to foreign policy, security, and ultimately defence, to the Council without statutory enactment. But we do not consider that the Raymond Crotty case affords any real assistance, because the issues there turned solely on the provisions of the Irish Constitution.
Mr Kentridge's first answer is that the questions raised under this head are simply not justiciable in the English courts. A similar point arose in Blackburn v The Attorney General 1971 1 WLR 1037. In that case Mr Raymond Blackburn sought a declaration that by signing the Treaty of Rome the Government would be surrendering forever a part of the sovereignty of the Crown in Parliament, and that by so doing it would be in breach of the law. There was an application to strike out the action. The application succeeded both at first instance and on appeal. Lord Denning set out the general principle in relation to treaties and continued
"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, even a treaty of such paramount importance as this proposed one, they act on behalf of the country as a whole. They exercise the prerogative of the Crown. Their action in so doing cannot be challenged or questioned in these courts".
The authority of Blackburn v The Attorney General has recently been confirmed by the House of Lords in J H Rayner Ltd v Department of Trade 1990 2 AC 418 per Lord Oliver at page 499 500. Mr Kentridge submits that what was true in 1971 before the Treaty of Rome was signed is as true today in relation to Title V of the Union Treaty. Since no question of domestic law is involved, the court has no jurisdiction even to consider the questions raised by Mr Pannick under this head.
It would be possible for us to accept this argument, and leave it at that. But Mr Pannick pointed out in reply that the principle of non justiciability is not universal and absolute. There are exceptions. Thus it is clear from section 6 of the 1978 Act that the court would be entitled, and indeed bound, if required, to consider whether any Treaty which the Government proposed to ratify involved an increase in the powers of the European Parliament. Fortunately we have had not been concerned with that problem in this case.
Similarly in Re Molyneux & Others 1986 1 WLR 331 Taylor J, as he then was, considered the text of the Inter governmental conference established between the Government of the United Kingdom and the Government of the Republic of Ireland in November 1985, to see if it contravened any statute or rule of common law, or any constitutional convention. He held that it did not.
So we will assume, contrary to Mr Kentridge's argument, that we are entitled to consider the questions raised by Mr Pannick. We will also assume (what was not in dispute) that the Government could not lawfully transfer any part of the Crown's prerogative powers in relation to foreign affairs without statutory enactment. Where does that take us? It takes us to this: that even if one reads Title V with an eye most favourable to Mr Pannick's argument, it cannot be regarded as a transfer of prerogative powers. As Mr Kentridge succinctly put it, Title V does not entail an abandonment or transfer of prerogative powers; but an exercise of those powers. We agree. So far as we know, nobody has ever suggested that the Charter of the United Nations, for example, or of the North Atlantic Treaty Organisation, involves a transfer of prerogative powers. Title V should be read in the same light. In the last resort, as was pointed out in argument, though not pursued, it would presumably be open to the Government to denounce the Treaty, or at least to fail to comply with its international obligations under Title V.
MR KENTRIDGE: My Lord, in the circumstances I would apply for the costs of the application. My Lord, may I I believe that I must do this ask that any order include the costs of three counsel. This case may have been a relatively short one, but it took quite a lot of work at short notice.
MR PANNICK: There is nothing I can say, my Lords, to assist your Lordships in relation to the main issue. It is for your Lordships' discretion whether this case really deserves an order for costs for three as opposed to two counsel.
MR KENTRIDGE: Before your Lordship rises, I believe that this will be the last time that your Lordship is sitting on this bench and indeed in this court. I am sure I speak for all Members of the Bar and all solicitors present in congratulating your Lordship on your Lordship's new appointment and in wishing you well in your new status.
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