Can the Courts force politicians to keep their promises?

Getting underway just about now in Court 3 of the Royal Courts of Justice is Stuart Wheeler's case to force the Government to give the British people the referendum on Lisbon that our politicians promised but Parliament rejected.

Stuart Wheeler:

"I believe that there is an overwhelming moral case for a referendum on whether the UK should ratify the Lisbon Treaty because: (1) The Labour Party, as well as all major parties, promised a referendum and they should keep that promise and (2) The contents of the Treaty change our constitution so fundamentally that, irrespective of whether one is for or against ratification, one should be allowed a vote.

Fortunately there is a legal, as well as a moral, basis for demanding a referendum and I have instituted proceedings against the Prime Minister and the Foreign Secretary, in which I seek a judicial review and a declaration that the refusal to hold a referendum is unlawful."

In a statement to ConservativeHome he continued:

"The Liberal Democrats, who were instructed by their leader to abstain in the House of Commons on the question of a referendum, are to be instructed in the House of Lords to vote with the Government against a referendum.  This very odd decision will make it very hard, though not impossible, for an amendment in favour of a referendum to be carried.

The only other chance of a referendum in the UK is in my case.  It will not be easy to win it but, if I do, and if the referendum is then won by those who oppose ratification, we may well have saved for our country its right to govern itself.  We shall also have changed the course of European history because the Treaty cannot come into force unless every one of the 27 members of the European Union ratifies it."

For more details please visit Stuart's website.  A leader in today's Telegraph notes that Mr Wheeler has some key legal arguments on his side.

PS In case you missed it please read Nick Herbert MP's excellent article on the Conservative approach to the power of the judiciary.

Comments

[The truth]

Silly old man wasting his money

[Iain]

If trying to get a Government honour its electoral promises is silly, then our whole democratic process is 'silly' for its about accountability, and as such I don't think it is at all 'silly' to try and do that. In fact its a very honourable enterprise to engage in, and in light of the contempt EUphiles have for the democratic process, who will lie, cheat, deceive, and deny us any say in the enterprise they want to foist on us, I can only assume its a EUphile who saying that.

[Examiner]

"The Truth". Thank god for a few good men like Mr. Wheeler, we may yet be saved from the spineless Lab/Con/Lib-Dim ruling political class who are so determined to disposess the people of this country. This gang clearly expect a very deep Brussels feeding trough in exchange for thair acts of treachery.

[Justin Hinchcliffe]

There is no legal basis whatsoever. The Treaty is not the same as the Constitution plus an election promise is not legally binding. For that to happen, an individual, not a political party, has to enter into an agreement with another individual. A written agreement needs to be signed - as a verbal agreement don't always stand up in court (I have studied law, but I am sure Sean Fear could put it better than me).

As I've said before, there is very little in the Treaty. It certainly doesn't weaken nation states. And, for the first time, it allows members to leave the EU - something that I would have thought the anti-EU brigade would welcome?

I would have thought Mr Wheeler could have thought of better ways to spend his money...

[Iain]

"As I've said before, there is very little in the Treaty."

If its such a 'little' treaty why is the EU going to such lengths to hide the powers it wants to exercise before they get the Irish to vote for it?

[R.Baker.]

Justin Hinchcliffe and "The Truth",both pro European Unionist fans,have you already got your snouts in the EU trough,or are you just in the process of haggling for the mmoment.Do try to be upfront on here,you will probably end up being admired for being so.

[Justin Hinchcliffe]

The Irish have seen huge benefits from joining the EU and adopting the EU. That's why they will vote yes to it. The EU is only worried because a 'no' vote would take us back to square one (where we were when the Danes voted no), which would be a shame given the progress made to deal with the concerns of certain countries.

[Thatcherite]

Reluctantly, I have to agree that Mr Wheeler is easting his money. He is, however, appalled that the Conservative Party made no real attempt to halt the Lisbon Treaty. There was just half-hearted support for Open Europe's I Want a Referendum campaign and token opposition in Parliament. I am very concerned that David Cameron secretly supports the Lisbon Treaty.

[Justin Hinchcliffe]

Yes, I am a pro-European Conservative. I have never hidden that fact, as Tim and others will testify. As for "you already got your snouts in the EU trough", let me remind you that I am a loyal Conservative VOLUNTEER. If you want to know about people having their "snouts in the trough", look no further than your UKIP MEPs (one being in jail and still claiming his Euros!)

[Chad Noble]

Remember, Brown's case was not that he is under no obligation to keep his promise, but that the treaty is fundamentally different from the constitution.

So, it needs only for the judge to agree that the two documents are fundamentally similar to blow Brown's refusal to pieces.

Remember, if the treaty brings no constitution change, then why are Ireland having a vote?

Oh yes, it's because they are obliged to vote on laws that cause constitutional changes... d'oh!

[R.Baker.]

I am a Conservative Justin Hinchcliffe of more than 44 years,and an anti-European Unionist and also very pro European,and you are a pro European Unionist and a pro-Europeanist.Why are all these pro EU fans absolutely terrified to speak the "UNION"word?Some exposure is needed on this pro EU body that is declining within our midst,and maybe the time is near when that will happen.

[George Hinton]

Good try, doomed to failure.
NuLab has politicsed the judiciary, so they know where their bread is buttered.

[ukipwebmaster]

"Silly old man wasting his money"
Well, this "Silly old man" has donated a small fortune to the Tories over the years. We'd be glad if he 'wasted' his money on us.

[Rod Sellers]

Why are the 'pro EU Tories ' so afraid of a referendum ? Thank God for Stuart Wheeler.

The claim that the Lisbon Treaty is materially different to the failed Constitution - has been blown out of the water by every impartial enquiry. Just as has the myth that large scale immigration has benefitted individual Britons. Immigration and the EU are now becoming intertwinded in the public conciousness - and about time !!

[Thatcherite]

Justin Hinchcliffe, Ashley Mote is not a UKIP MEP. He could not removed as a UKIP regional candidate but he has never received the UKIP whip in the European Parliament.

Of course, there was a certain Conservative candidate for London Mayor who was convicted of perjury. His main adviser was Stefan Shakespeare whom, I believe, funds Conservative Home. Hmmmm.

David Mellor, whilst MP for Putney, left his ill wife for rich woman after a story of an "actress" in Chelsea shirt. Jimmy Goldsmith did us a favour in getting rid of that slimy creep. Then there was Stephen Milligan, Tory MP for Eastleigh, was found hanging in ladies underwear with an orange stuck in his month.

I should also mention Tim Smith, former Conservative MP for Beaconsfield, and Jonathan Sayeed, for Conservative MP for Mid-Beds. They left the Commons in disgrace after various misdeeds. Perhaps Justin may wish to justify their conduct.

UKIP looks perfectly respectable compared to these sleazy individuals.

[Curly]

Nice try, nice publicity but it's going nowhere, however:

I can hear the theme tune for the next election already

"Shakira-ing all over!"

[Observer]

Hope it works but I'm not optimistic.

It is disappointing though that the only way to try to secure a referendum is through the courts.

With modern technology and a more informed electorate, is now the time to think about introducing a law like I think the Swiss have that the electorate can require Governments to hold a referendum on issues. I'd be interested to know if it is the Swiss who have that law and how useful or otherwise it is for them.

[Miranda]

Justin Hinchcliffe.

Please be so good as to list all the positive things for Britain about the treaty of Lisbon. And what we will have to give up for these positive things.

If, this treaty is 'so good' for us, then why not make the argument and put it to the vote. Instead of building up seething layer of discontent in the country. Going through the democratic process would we so much better for everyone!! Mr Wheeler is to be congratulated for trying to put the democratic train back on the track. Whereas your asertion that an election promise is not binding - is a nail in the democratic coffin. "My word is my bond" - only rogues need it in writing!!

[Angelo Basu]

Whatever sympathy you might have for the argument that there should be a referendum, the legal action is doomed to failure. For Wheeler to win, the Court would have to overturn its well-established position that manifesto commitments are not legally binding and the Court's equally well-established position that the ratification of Treaties is not justiciable (ie not a matter of domestic law which can be enforced by the Courts).

However strongly one might yearn for a referendum, it would be catastrophic for the case to succeed. Every manifesto would become legally binding on election. The Government of the day could never sign a Treaty (eg a criminal who might face extradition to Country X would be given the legal right to challenge us signing an extradition treaty with Country X). While the Human Rights Act has convincingly been argued on here and elsewhere to be one of the vectors for Judges making quasi-political decisions and challenging the sovereignty of Parliament (as is also the case under the EC Treaty following the Factortame case), if Wheeler were to win, it would make every political promise, not just legislation that has been through Parliament but which conflicts with the aim of other legislation, will be something which Judges will be able to decide whether to order to be implemented.

Giving the Government a bloody nose might be fun and the issue of a referendum is a serious one, but the means adopted are fundamentally wrong and infinitely more damaging to the sovereignty of Parliament than anything in the Treaty/Constitution.

[Iain]

Angelo Basu I believe there is a legal ruling which states that an advertised claim can be said to be a contractual undertaking, so it could quite easily said that an advertised promise at an election is a contractual undertaking.

[Chad Noble]

"if Wheeler were to win, it would make every political promise, not just legislation that has been through Parliament.."

No, you are completely missing the point.

Brown did not argue that he is not bound to manifesto commitments (he is clearly not as parties break promises all the time), he argued that a referendum was not needed as the treaty was not fundamentally the same as the constitution upon which the referendum pledge was based.

If a judge rules that the two docs are in effect the same, then it will publicly destroy Brown's argument for not holding a referendum.

If Brown had argued that manifesto commitments are not binding, and he had changed his mind, then your point would hold, but he didn't, he based it on the claimed fundamental differences between the two.

Legally proving Brown's reason to reject a referendum to be false seems to a good way of forcing a review.

[Stewart Geddes]

We cannot have judges forcing a Government to implement manifesto commitments. Actually we have judges to do that already. It is us. Every four or five years we have the opportunity to judge politicians and we can sack them if we choose. Let's stick with that.

On the other hand if a judge were to say that the treaty and constitution were in effect the same documents it would deal Gordon Brown a fatal blow. Now, that would be worth it.

[Prentiz]

It's a noble cause, but there is no way in hell its going to work. As the Truth said, possibly for the wrong reasons, its a shame to see the money spent on this go to waste. There is no prospect at all of judges ruling that the commitment to a referendum is binding. Not only would it be spectacular judcial legislating, which parliament would overturn, it would also end the careers of any judges involved in it.

The money could be used much more powerfully if channelled into campaigning, either on a bi-partisan basis, or directly into the Conservative party in exchange for clarity on the postition post-ratification. this legal action is windmill tilting at best.

[Bruce]

The criticisms of the lawsuit miss the point of the lawsuit completely.

In the modern political world, the filing of a lawsuit such as this is as much or more for publicity than it is an attempt to bring about a legal ruling.

The left in the U.S. and other countries have long since realized this. The center-right in Britain should realize this is what you do in the 21st century to force the media to cover your cause.

Stuart Wheeler is creating publicity for a point of view that the media would otherwise be ignoring. For that, the center-right should be praising him.

[Serf]

And, for the first time, it allows members to leave the EU - something that I would have thought the anti-EU brigade would welcome?

Prior to the passing of this treaty, was it impossible for us to leave the EU? Of course not, this is a red herring. What the treaty does is to force you to paythe costs of membership for 2 years whilst waiting in purgatory.

Right now, all we have to do is pass a law repealing the laws that made us a member and bound us to certain treaties.

The Treaty is not the same as the Constitution

Why is it that Europhiles feel obliged to make it up as they go along. All of the major leaders in the EU have admitted that this is basically the same document.

Euosceptics like myself would have far more respect for opposing viewpoints if they fought their corner, rather than claiming that there is nothing to fight about.

[Paul Oakley]

Actually, a promising end to the day. His lordship reserved judgment at 2.45 which means that no decision has yet been made. Rabinder Singh QC had a fairly easy time of it in the course of his arguments but treasury counsel took a bit of stick from the court. Watch this space.

[Justin Hinchcliffe]

Miranda, if you want to know why the Treaty is good for Britain, follow the link: http://www.coalitionforreformtreaty.org.uk/research_articles/Policy_Brief.pdf

The document is far too large to 'cut and paste'.

Ashley Mote stood for UKIP and was elected for UKIP. You cannot re-write history. Meanwhile, others in the UKIP group (and one or two Conservatives for that matter) continue to claim money for themselves and their party whilst disrupting sessions, posturing and failing to stand up for Britain's interests.

[Chad Noble]

"...failing to stand up for Britain's interests"

rotfl. Not sure if you or Jack have given me the best laugh today.

[Stephen Tolkinghorne]

"posturing and failing to stand up for Britain's interests"

I'd be interested to hear what you think is in the 'British interest'. No doubt it won't be what I and other normal British people consider it to be.

[Justin Hinchcliffe]

Stephen, I'm sorry you think it's funny to stand up for Britain's interests in Europe. What are they, you ask. Follow the link and find it.

[Stephen Tolkinghorne]

"Stephen, I'm sorry you think it's funny to stand up for Britain's interests in Europe."

Perhaps you could point to the bit where I was trying to be 'funny'.

I did follow your link to the Tottenham Conservatives link, but I couldn't find anything about Britain's national interest - only some tired old flannel about Boris Johnson. Still, you must be happy, as I must have doubled the normal number of visitors to your website for this week.