England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		15 April 2016

1. MRS JUSTICE ELISABETH LAING: This is a renewed application for interim relief. At the beginning of the hearing I asked the parties whether they were content for me to deal with the application for permission to apply for judicial review. Mr Levicki, who appears in person, after some discussion with me, said that he was happy for me to deal with that application. So on the basis that the Secretary of State has invited me to deal with the issue of permission, these are my decisions both on the application for interim relief and on the application for permission to apply for judicial review.
2. The decision to be judicially reviewed, as described in the claim form, is the United Nations Paris Agreement on Climate Change. The date of that decision was said to be 12 December 2015 and the claim form was issued only just inside the 3-month period on 11 March 2016.
3. Mr Levicki applied for interim relief and Miss Thornton, who has represented the Secretary of State this morning and to whom I am grateful for her succinct oral submissions and very helpful acknowledgement of service, tells me that the signing ceremony of the treaty is to take place next Friday in New York and that a Minister of the United Kingdom Government is due to attend that ceremony. In those circumstances, the Secretary of State resists the application for interim relief.
4. The position in relation to this claim is that the claimant, Mr Levicki, sent a pre-action protocol letter to the Secretary of State, to which the Secretary of State gave a very detailed reply in January 2016. A point that the Secretary of State took in that letter was that the decision to enter into the treaty was not a justiciable decision. In the course of the letter the Secretary of State referred to the decision of the Supreme Court in Shergill v Khaira [2014] UKSC 33 and to Lewis J's textbook about remedies in judicial review. An extract from that textbook was supplied to the claimant.
5. The claimant has therefore had a long opportunity to consider before lodging his application for judicial review whether or not this decision was properly justiciable. It is an opportunity which he does not appear to have taken up to any great effect because his documents served in the course of these proceedings simply do not engage with the point in any sensible way.
6. In his oral submissions this morning the main point that Mr Levicki made in his restrained and moderate submissions was that his position was that the impact of the treaty as he perceived it to be should determine the court's approach as to whether or not the court intervened in any way in relation to the decision to enter into the treaty. That position simply fails to engage with the law on this, which is summarised in Miss Thornton's summary grounds.
7. Essentially, the position of the High Court has always been that the court simply will not review either a decision to make a treaty or the way in which a state has performed obligations under a treaty. Miss Thornton refers in her summary grounds to the decision of the House of Lords in the Tin Council case of JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418. She quotes from the speech of Lord Griffiths in that case, where he said:

i. "On the domestic plane, the power of the Crown to conclude treaties with other sovereign states is an exercise of the Royal Prerogative, the validity of which cannot be challenged in municipal law: see: Blackburn v [1971] 1 WLR 1037. The Sovereign acts 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: Rustomjee v The Queen (1876) 2 QBD 69, 74, per Lord Coleridge C.J.

ii.

iii. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant."

9. Miss Thornton also refers to a passage in Shergill v Khaira from paragraphs 41 to 43, which it is unnecessary for me to recite in this short judgment. She relies on a passage in paragraph 40 of that decision which explains this non-justiciability rule as follows:

i. "The issue was non-justiciable because it was political. It was political for two reasons. One was that it trespassed on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations. The lack of judicial or manageable standards was the other reason why it was political."

11. Miss Thornton submitted orally today (and made the point in her summary grounds) that the treaty which Mr Levicki seeks to challenge is what she describes as a paradigm example of political considerations which the court is ill-equipped to assess. She refers to the fact that 195 countries were involved in the negotiation of this treaty, to the fact that it has taken several years and to the fact that in order to reach agreement it was necessary to take account not only of the state parties but also of the EU, which is also a party to the treaty. All of that involved a number of highly political considerations, including of course the risk, to which she draws attention, that no agreement at all would be reached.
12. In short, it seems to me that there is no conceivable basis on which the court could possibly intervene either by way of judicial review or, it follows, by interim relief in relation to the negotiation or agreement of this treaty. For those reasons, I refuse the application for interim relief and I also refuse permission to apply for judicial review.
13. Mr Levicki, Miss Thornton has asked me to certify that these applications are totally without merit and she has reminded me that in the January letter the Secretary of State warned you that if you did proceed with this application the Secretary of State would be applying for it to be certified as totally without merit. Is there anything you would like to say about that?
14. THE CLAIMANT: Yes, your Ladyship. The first point is I bring this case because I have got a unique insight into the impacts of the Paris Agreement and it is impossible for me to ignore that and not bring it to the court's attention. What the court does with that information is something that we will discuss now. My financial situation is not one which I have any funds to pay for --
15. MRS JUSTICE ELISABETH LAING: Mr Levicki, I am not addressing the issue of costs at the moment, I am addressing the question whether this claim was totally without merit.
16. THE CLAIMANT: And my view is based -- I do believe that there is extreme merit in the claim, it is one of, you know, the future of (Inaudible), it relates to the well-being of 7 billion people, it's extremely important to bring this in front of the court, I am very disappointed that the court has not felt able to deal with the matters that I feel should be dealt with by the court. It is such an extreme matter which has not been dealt with appropriately and there's substantial grounds for bringing the case and the case should continue. There is no reason, I feel, for this case not to be heard and that's something which I still unfortunately, with deepest respect, feel. I would prefer to rely in the same way as the court states some cases they rely on the written statements, I rely really on my written statements, I am too inexperienced in court to really rely on more than some things said at this abridged moment in time. I have dealt with the matter of costs in my letter.
17. MRS JUSTICE ELISABETH LAING: Mr Levicki, we have not got onto the question of costs yet. We are just dealing with whether this claim should be certified as totally without merit. Is that all you want to say about that?
18. THE CLAIMANT: Yes.
19. MRS JUSTICE ELISABETH LAING: Miss Thornton, is there anything you would like to add?
20. MISS THORNTON: No, my Lady.
21. MRS JUSTICE ELISABETH LAING: I am asked by Miss Thornton on behalf of the Secretary of State to certify this claim as totally without merit. Mr Levicki, the claimant, resists that application on the basis that he brought the claim because he has a unique insight into the impacts of this treaty and in the light of that insight it was impossible for him not to bring the claim to court. He contends that the case has "extreme merit" because it affects the well-being of 7 billion people and because of that it is very important that the court should make a decision on it.
22. I have considered those submissions. With all respect to Mr Levicki, they simply do not engage with the reason why this claim failed, which is that it is a claim that seeks to invite the court to make an assessment of a treaty and that is a question which on the highest possible authority it is clear is not justiciable. There never was any legal merit in this claim and I have not been persuaded by Mr Levicki's submissions that I should do anything other than to certify the claim as being totally without merit. It was bound to fail from the outset. It was completely misconceived. So for those reasons I do certify the claim as totally without merit.
23. Any other applications?
24. MISS THORNTON: Thank you, my Lady. The Secretary of State makes an application for costs. Before I do that, could I alert your Ladyship to one very minor point of detail in the judgment. The Paris Agreement will be signed, the signing ceremony is, next Friday in New York.
25. MRS JUSTICE ELISABETH LAING: I have misread my note.
26. MISS THORNTON: My Lady, the Secretary of State seeks the costs of the acknowledgement of service. Mr Levicki has been served with the schedule. I do not know whether your Ladyship has a copy.
27. MRS JUSTICE ELISABETH LAING: I may well have.
28. MISS THORNTON: It is attached to the summary grounds of resistance.
29. MRS JUSTICE ELISABETH LAING: Just give me a moment, please, to find the summary grounds. Yes, I have got that.
30. MISS THORNTON: The amount sought is £4,600. My Lady, that is a high sum.
31. MRS JUSTICE ELISABETH LAING: I was going to say it is a lot for an AOS.
32. MISS THORNTON: It is, my Lady, and that is accepted. The reasons are, my Lady, that, firstly, the Government simply could not take the risk of not defending this claim properly given the implications of not being able to turn up next Friday to the signing ceremony. It was of paramount importance that this claim was resisted strongly. It required, therefore, a lot more work than would normally be expected because of the lengthy grounds, which were 52 pages in length and changed, the versions changed during the proceedings and so it required the department, given the arguments were in part that the UK Government was not taking enough action on climate change or 2020, it required a departmental-wide response on all the matters of policy that the Government has in play already and that is what you see in annex 1 of the summary grounds and that is basically broadly the whole of the Department for Energy and Climate Change's work. So those are the main reasons, my Lady, why the costs have been incurred as they have. Given the argument on non-justiciability it also required some liaison with the Foreign Office, although that is not a material amount of costs.
33. MRS JUSTICE ELISABETH LAING: So the total, where do I find the total? I see. £4,601.
34. MISS THORNTON: Then over the page, my Lady, is the work on papers. My fees were £825. That is the page before. Then over the page, after the total, a schedule of work done on documents by the Treasury Solicitor, and then the remaining amount is attendance on others. To be clear, my Lady, we do not seek the costs of attending today.
35. MRS JUSTICE ELISABETH LAING: Mr Levicki, what would you like to say about that?
36. THE CLAIMANT: I think I have stated many times in the documentation to the court I think this is a case where one-way costs are appropriate.
37. MRS JUSTICE ELISABETH LAING: Sorry, I cannot hear you.
38. THE CLAIMANT: I have stated many times in my documentation this is case where one-way costs should be agreed.
39. MRS JUSTICE ELISABETH LAING: Sorry, what do you mean by that?
40. THE CLAIMANT: I should not be in a position where I should have the pay the costs.
41. MRS JUSTICE ELISABETH LAING: Why on earth not though? Because the Secretary of State explained very fully in the January letter why your claim was misconceived and you pressed on with it.
42. THE CLAIMANT: The only argument in that letter was with regards to the treaty issue.
43. MRS JUSTICE ELISABETH LAING: No, it was not the only argument in the letter. It was a very detailed letter.
44. THE CLAIMANT: I wouldn't get into a situation where I would deal with your Ladyship as if I was dealing with the party who I filed against. I do not know if your Ladyship feels that way.
45. MRS JUSTICE ELISABETH LAING: I just would like you, Mr Levicki, to answer two questions. Firstly, why in principle should I not make an order for costs and, secondly, what should the amount of that order be if I decided to make an order for costs?
46. THE CLAIMANT: This case, I had no choice but to bring this case. If you see a piece of luggage left somewhere and you think that's a danger, you have to do something and that's what I've done, which is why I think one-way costs are appropriate.
47. MRS JUSTICE ELISABETH LAING: All right, so that is your answer on the question of principle. What do you say about the amount of costs the Secretary of State is claiming?
48. THE CLAIMANT: It's impossible for me to give an opinion because I don't know the levels of fees or what the Government would charge. It doesn't seem particularly unreasonable, it doesn't seem particularly reasonable. I'm disappointed that the Government has sought costs. That's all I can say.
49. MRS JUSTICE ELISABETH LAING: But you cannot be disappointed because I am fairly sure, I will be corrected if I am wrong, that the Secretary of State said in the January letter that if you issued a claim the Secretary of State would seek costs.
50. THE CLAIMANT: I believe that the Government should welcome people who bring to their attention issues such as this.
51. MRS JUSTICE ELISABETH LAING: No, because you caused the Government to spend £4,600 resisting a claim which I have held to be totally without merit, and that, ultimately, is money that could have been spent on something more productive.
52. THE CLAIMANT: I think in the long run --
53. MRS JUSTICE ELISABETH LAING: The Government just does not have piles and piles of money to spend.
54. THE CLAIMANT: No-one's suggesting that, no-one's wishing to waste the Government's money but the money is going to get wasted when climate change occurs and the Government loses billions and billions of pounds. That's where the losses will occur and me failing to bring that to their attention would be much more costly than me bringing it to their attention. So I really do not accept that me bringing this case has cost money, I believe that I'm trying to save the Government money, I'm trying to save everyone money, I'm trying to save everyone a lot of money. I'm disappointed that your Ladyship has not accepted my argument. It seems to me that the fundamental basis of the case has not been accepted by your Ladyship and there's nothing I can do about that.
55. MRS JUSTICE ELISABETH LAING: No, you are right. All right. Thank you very much.
56. Is there anything else you would like to say about costs, Miss Thornton?
57. THE CLAIMANT: No, my Lady.
58. MRS JUSTICE ELISABETH LAING: Miss Thornton applies for the costs of settling the acknowledgement of service in this case, although not the costs of her attendance at the hearing today. The costs claimed are £4,601. As she rightly accepted, that is a large amount for the settling of an acknowledgement of service, a much higher amount than one normally sees for the settling of that document. Nonetheless, this is an unusual case and one which, I accept, it was incumbent on the Government to resist strongly. I also accept that it was an unusual case in that settling the acknowledgement of service involved a great deal more work by a much larger number of people than is normally the case in an acknowledgement of service.
59. So far as the principle of awarding costs is concerned, Mr Levicki submits I should not award costs because he had no choice but to bring the case. I do not accept that. It was explained in considerable detail to Mr Levicki in the Secretary of State's letter of January this year why his claim had no merit and he was also warned that if he pursued it the Secretary of State would apply for costs. It therefore seems to me that it is correct to make an order for costs in principle.
60. As to the amount of costs, Mr Levicki felt that he was unable to give an opinion and volunteered the observation that he did not see that the bringing of this claim had caused the Government to waste any money. Again I do not accept that submission and for the reasons that I have already indicated it seems to me that this is an unusual case and that the relatively high costs of settling the acknowledgement of service which are claimed are justified.
61. So I order you, Mr Levicki, to pay the Government's costs of settling the costs of the acknowledgement of service in the total sum of £4,601.
62. Is there anything else I can usefully deal with?
63. MISS THORNTON: No, my Lady.
64. MRS JUSTICE ELISABETH LAING: Thank you both very much.