Why Britain needs a referendum on the Lisbon Treaty

richard j

Brown and Mugabe - same disregard for democracy.

David Boothroyd

Here are three good reasons why democracy requires Stuart Wheeler's action fails.

1) Democracy in the United Kingdom is expressed through the Crown in Parliament. It is Parliament which has the burden of making decisions in the national interest. The referendum as an instrument is only of use if creating or abolishing an institution of governance, which is not the case here.

2) Leaving aside whether there is a legitimate argument that the Lisbon Treaty is substantially the same as the Constitutional Treaty (on which I am in disagreement with Stuart Wheeler), the argument that a manifesto commitment is in any sense legally binding is dangerous to democracy because it treats the legislature as a group of delegates rather than representatives. It is now generally accepted that Members of Parliament are free to change their mind in representing their constituents interest.

3) The lower House of Parliament has already agreed that the Lisbon Treaty should be ratified and no referendum should be held. It is wrong in principle that any legal action should overturn a decision of Parliament and there is no precedent for so doing.

This third point is the most fundamental. British sovereignty is expressed through Parliament. In seeking to uphold British sovereignty, Stuart Wheeler has to destroy it.

Trumpeter Lanfried

Some of Brown's tricks are due to pig-headed stupidity and a stubborn refusal to acknowledge his own limitations. But the pretence that the treaty is not a constitution is in a different category. It is thoroughly dishonest; a squalid lie which brings the government into contempt.

cuffleyburgers

Far be it from me to say Mr Boothroyd doesn't know what he is talking about, as he plainly believes he does.

The fact is that a referendum was promised on a document substantially the same as the present one, and it is clear that if this is passed then parliament as sovereign body effectively ceases to exist since ever increasing amounts of legislation will come from Brussels and Westminster will be powerless to stop it. The so-called red lines have already been found to be worthless.

It is also true and right that the courts do have a right and a duty to prevent the executive acting illegally.

This is such an exceptional case for the above reason (ie the impending demise of Great Britain as a sovereign entity) that the legal side of it is surely very interesting and it is right that it be tested.

I don't know why they are getting their knickers in such a twist about it, anyway. 95% of the treaty's provisions have already been enacted, the Irish referendum result has been declared by Brussels to be irrelevant just in case, and a British one would be too.

What is actually required of course is a tax strike by the UK.

If the govt were unilaterally to cease to make any further payments until the EU (or ideally an independent team of British) auditors signed of the EU spending then perhaps the British electorate might be more prepared to hand over their sovereignty to these unelected incompetent and corrupt men from Brussels.

Until then we/they are right to resist tooth and nail.

David Boothroyd

In the United Kingdom constitution, the executive does not have the power to call a referendum. Only Parliament can do so. No court has power to order Parliament but that is what Stuart Wheeler is seeking to do.

(Also please note Great Britain is not a sovereign entity; the United Kingdom is, and that status is not threatened)

Mark

Mr Boothroyd is wrong. Democracy is exercised by the voters when they cast their votes. MPs are our democratically elected representatives.

Mr Wheeler's case is not based upon manifesto promises, but upon many statements made by this government which, says Mr Wheeler, gave rise to a legitimate expectation that there would be a referendum.

It is, I suggest, rather shocking that a government can make such promises before and during an election and then - as a government and not just as MPs - renege on them. The result is that democracy is denied: the voters will never get the chance to vote for a government which will actually be willing and able to introduce legislation for a referendum unless - fingers crossed - the good people of Eire vote "no", delaying ratification until after the next general election here. And voters who voted for this government in the reasonable belief that there would be a referendum might have voted differently had they known the true position.

Ian C

Leaving aside David Boothroyd's arguments at 1) and 3) above, for a moment, his argument is that MP's are representatives not delegates may be constitutionally correct in the past. But, in this case, MP's have dropped their representative duties for which they were elected, thus becoming delegates of the government in parliament for at least these specific purposes.

The facts have not changed yet the government's promised actions have and the electorate have not had a legitimate chance to vote on the Treaty.

This is surely the key in the circumstances of the fundamental altering of the constitutional regime under which the UK will find itself being ruled if the Treaty is enacted. So the past constitutional status quo is set to, indeed must, be re-aligned in the context of these proposed changes.

Andrew

@David Boothroyd; The Lisbon Treaty contains almost all of the EU Constitution intact, albeit jumbled up, renumbered and obfuscated. This is a fact which, if you have about 20 hours spare, I can take you through, Article by Article. The pertinent question is what, in the EU Constitution, required a referendum, but is no longer in the Treaty of Lisbon? This has never been answered. To concentrate on the politician's trick issue of saying the Lisbon Treaty is substantially different from the EU Constitution is to forget the EU Constitution is almost entirely contained by a slightly bigger treaty; of course the extra bits are different!

Smiley

If Mr Wheeler were to lose his case, but have an appeal held up by the European court, would the entire continent vanish in a puff of irony?

Roger Helmer

I recall that Tony Blair said explicitly that you could not take the failed Constitution and bring it back under a different name. But that's what they've done. Well done Stuart Wheeler for taking the case this far.

Prodicus

Mr Boothroyd is demonstrably and doubly mistaken in saying 'It is wrong in principle that any legal action should overturn a decision of Parliament and there is no precedent for so doing'.

First of all, that principle was finally abolished the moment the Human Rights Act was passed, (having been under incremental attack for years, not least from Lord Denning.
Secondly, there is precedent in abundance. The will of Parliament has had to bend to British and foreign courts many times, especially in the last ten years, with legislation being overturned and rewritten in consequence, and even allegedly dangerous who had been persons imprisoned under statute law being released regardless of both the dangers involved and public outrage.

This unfortunate and undemocratic state of affairs will become even more acute if, under Lisbon, the government insists on ceding even more of Parliament's sovereignty than it already has to other parties, including courts.

The juridical and parliamentary thinking which underpins the EU are quite alien to British tradition. De Gaulle knew this and was right to say No to the very blinkered but obsessive Edward Heath. In those traditions, parliaments are not sovereign. Courts - and therefore judges - are.

Quite deliberately, Europe's parliaments have been made increasingly irrelevant ever since the EU was merely the twinkling of its founders' eyes. And understandably so.

The *elective* fate of Germany after WW1 created a permanent distaste for the very dangerous practice of democracy (although of course this must always be denied) which can so easily raise up tyrants and police states, *with democratic approval*.

These stark historical facts colour all the deliberations in and developments of the European Union, except in Britain. The nations of mainland Europe do not trust their parliaments or their governments so they seek to shackle them with treacle-mine processes and governance by an oligarchy of bureaucrats who will never (be allowed to) have a democratic mandate, for that way lies the risk of personality cults and another Hitler event.

I have every sympathy with the aims of our European neighbours. I have close friends and family all around Europe. However, neither sympathy nor affection can change the fact that Britain’s constitutional temper is incompatible with those of her neighbours.

Good fences are called for.

Craig Strachan

David Boothroyd is quite right - expecting politicians to keep their promises would be disastrous to democracy. They must feel free to treat the electorate like suckers at every turn, and do they ever!

Adrian Drummond

I think David Boothroyd is misunderstanding the nature of Stuart Wheeler's action. Stuart Wheeeler is - as I understand it - bringing his case against the executive (Brown/Milliband) and NOT against the legislator (Parliament) on the grounds of 'reasonable expectation' based on previous umambiguous promises on having a referendum. This case is not about challenging the supremacy of Parliament as David Boothroyd seems to be suggesting.

David Parker

David Boothroyd emphasises the importance of his third point,
That British sovereignty is expressed through Parliament.
Sovereignty means the supreme power to enact and enforce legislation. Constitutionally and democratically Parliament has no power to abrogate this sovereignty in favour of an unelected foreign body.
However, the ratification of the Lisbon treaty would involve the abrogation of a large number of Parliaments remaining sovereign powers.
This is quite clearly a constitutional issue, upon which the people have not been consulted and does require a referendum.

David Boothroyd is also wrong in stating that the Lisbon treaty does not create an instution of governance. In granting executive (as opposed to merely advisory, as was formerly the case) status to the European Council the treaty does create an institution of governance.

Finally, Boothroyd claims, under his first heading, that Parliament has the exclusive power of making decisions "in the national interest". Leaving aside the question of whether it would be in the national interest to refuse a referendum which is wanted by an overwhelming majority of the people, it is precisely this exclusive power which will be lost to Parliament if the Lisbon Treaty is ratified.

Nick Kaplan

David Boothroyd’s argument confuses British sovereignty with parliamentary sovereignty two different concepts which the ‘Yes’ camp deliberately confuse so as to dishonestly get their way. Parliament not the people are constitutionally sovereign in Britain, but this sovereignty exists in so far as the people are willing to delegate to parliament that sovereignty. This principle (as laid forth by Locke) derives from the natural autonomy of all people which makes it their right to decide who it is that govern them (a decision that must be made collectively). Thus while parliament is the body which is constitutionally recognised as sovereign this does not give them the right to give away that sovereignty as MPs are merely guardians of that sovereignty on behalf of the people to whom it truly belongs. The Lisbon treaty, being an issue of governance and a transfer of sovereignty (even if it is only minor transfer) is thus a decision that can only be taken by the people as a whole, whether they were promised or not (which they were, but that is an additional reason for a referendum not the primary one).

THX1138

richard j- Sorry but I think that is a vile comparison to make.

Herbert Thornton

David Boothroyd writes -

" In seeking to uphold British sovereignty, Stuart Wheeler has to destroy it."

Bearing in mind that the Lisbon Treaty is part of the continuing process of destroying British sovereignty, that accusation is breath-takingly rich.

Hair splitting distinctions between British sovereignty and Parliamentary sovereignty aside, the solution sought by Stuart Wheeler is - and certainly ought to be - entirely legitimate.

Verity

Number plate - Agreed. The comparison is odious. Sarah Brown doesn't jet to Paris for the collections.

David Boothroyd

Several points have been raised which deserve to be refuted. First, although Stuart Wheeler claims to be targeting the executive and not Parliament, that is a constitutional nonsense and a deliberate attempt to evade the roadblock of Article 9 of the Bill of Rights. The Executive cannot, within its own power, call a referendum. The only way it could do so is to seek to persuade Parliament to enact one. It is specious to try and elide the difference.

Secondly the reason the United Kingdom is part of the European Union is that Parliament enacted the European Communities Act 1972 and has since declined to repeal it. Like it or not, British membership of the European Union is entirely constitutional. Those opposed to this point have this challenge: show any way in which United Kingdom membership of the European Union could be achieved in a way you would accept.

Finally for now, Andrew has misremembered his own case and got it backwards. The claim was not that everything substantial from the Constitutional Treaty is to be found in the Lisbon Treaty, but that all substantial parts of the Lisbon Treaty are in the Constitutional Treaty. Try comparing two texts, one of which consists of the first chapter of Jane Eyre, and the other of which consists of the entire book of Jane Eyre. Everything that is in the first chapter is in the entire book, but not everything in the book is in the first chapter.

So it is with the Lisbon Treaty and the Constitutional Treaty: the Lisbon Treaty contains only some minor changes made as part of the Constitutional Treaty rather than the whole thing. They are minor and unexceptional changes which just make the EU run better. It should be ratified regardless of any debate about continued British membership.

Tina

I totally admire Stuart Wheeler in his attempt to hold this corrupt government to account. I wish the Tories would be more like him.

adrian drummond

TO: David Boothroyd

A constitutional nonsense? You may not like or agree with the law of legitimate expectation but I'm afraid you are not in a position to choose.

LS

Good old David Boothroyd, toeing the party line as usual.

The Labour manifesto promised us a referendum on this; ergo we should have one. QED.

David Boothroyd

The 2005 Labour Party manifesto contained no promises about the Lisbon Treaty, because it did not exist at the time. The concept of 'legitimate expectation' does not apply here, and does not in any case overule Article 9 of the Bill of Rights 1689.

LS' point is not a legal one; see Lord Diplock in Bromley LBC v Greater London Council [1981] UKHL 7 who observes that elected members must not "treat themselves as irrevocably bound to carry out pre-announced policies contained in election manifestos even though, by that time, changes of circumstances have occurred that were unforeseen when those policies were announced". The ditching of the Constitutional Treaty and negotiating of the Lisbon Treaty is just such an unforeseen development.

Mark

Perhaps Mr Boothroyd could enlighten us as to which substantial parts of the constitution are not in the Lisbon Treaty?

The Government's initial response to Stuart Wheeler's claim (which can be read on Stuart Wheeler's website) does not seek to challenge the allegation that the constitution and the Lisbon Treaty are substantially the same. No doubt the Government did not want to have a judge find that they are the same.

Merda taurorum animas conturbit

For all David Boothroyd's attempts at constitutional sophistry, the simple truth is that a majority of people in Britain (and increasingly elsewhere in Europe) simply don't want their futures determined by a bureaucratic superstate over which thet have only minimal influence.
Stuart Wheeler gets that; Boothroyd and the federasts don't. Enough said!

Andrew

I'm sorry that David Boothroyd cannot follow an argument without misrepresenting it afterwards. To keep things simple, there's only one case to address, that made by Brown and Miliband that the promise of a referendum doesn't apply to the Treaty of Lisbon because it's substantially different from the Treaty Establishing a Constitution for Europe.

Brown and Miliband, like conmen dazzling a mark, talk only of form, not content, when saying the constitutional concept has been abandoned.

It defies belief that in the 21st century, we cannot create a consensus over whether or not one text is substantially different or not from another. It's not rocket science!

I have compared the texts in full, having spent several months full-time doing so, and I can tell you they are almost exactly the same. For Brown or Miliband to argue otherwise is to either lie to the British people or admit ignorance, and thereby negligence in performance of their duties.

For anyone who thinks the treaties are substantially different, compare them yourself - or at least use an existing comparison like Open Europe's. This much shouldn't need to be debated, and to keep it so is to create confusion in the majority of the population who don't have time to compare the treaties themselves.

amg

The basic point is we don't have legally enforceable electoral manifesti - that is the problem trhe Wheeler case illuminates for us.

The law of contract should be able to fix this, if any politician or party so wished.

I have gone into the nuts and bolts on my site www.amcguinness.com