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The Divisional Court (Males LJ and Bourne J) has dismissed a judicial review challenge brought by US musicians’ unions against recent changes to UK copyright law.
The claim centred on arguments that the changes were incompatible with the UK’s obligations under three international treaties: the Rome Convention, the WIPO Performances and Phonograms Treaty (WPPT), and the recently ratified Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).
None of these treaties have been incorporated by Parliament and the Court held that the grounds alleging non-compliance with them were non-justiciable.
The judgment reaffirms orthodox constitutional principle that, within the UK’s dualist legal system, domestic courts do not have jurisdiction to determine whether the executive has correctly complied with such treaties. In reaching that conclusion the Divisional Court undertook a detailed analysis of the key authorities, and concluded that the exception arising under the Launder line of caselaw is narrowly confined. The Court also accepted the Secretary of State’s argument that, because the arguments were non-justiciable, it should not give any view on whether the Government’s legal position was tenable.
The judgment provides valuable guidance on the limits of public law challenges that allege non-compliance with unincorporated international treaty obligations. The analysis is particularly notable because – unlike recent cases in this area (e.g. the Al Haq arms exports to Israel challenge) – it does not arise in a national security context.
The Court also rejected a vires argument, and refused permission to advance a challenge to the underlying consultation process.
The judgment is available here.
Ewan West KC and Will Perry acted for the Secretary of State.