An abuse of the constitution

Stuart Wheeler (picture Stuart Wheeler/Euro Realist Newsletter)

An attempt to undermine the parliamentary process is underway today. A court case has been brought by a eurosceptic to overturn the decision of the House of Commons to ratify the Lisbon treaty without recourse to a referendum. Stuart Wheeler claims that his case is directed at the executive on the grounds of “legitimate expectation”: a referendum was promised on the constitutional treaty and one should therefore be held on the Lisbon treaty instead.

However, it is the legislature, not the executive, that has the power to bring the treaty into UK law and also to convene a referendum, and the legislature has decided in favour of the former but against the latter.

Stuart Wheeler did not get the outcome he wanted in parliament, so he is now resorting to extra-parliamentary means to change that decision. It was wrong when the coal miners tried it: it is wrong now.

Not only is it an abuse of the constitution, it is also an abuse of the parliamentary process. He claims to rely on reports from the European Scrutiny and Foreign Affairs committees in the House of Commons. But what did those committees actually say?

The European Scrutiny report, it is true, concluded that “Taken as a whole, the Reform Treaty produces a general framework which is substantially equivalent to the Constitutional Treaty” (para 45), but there is a difference between the general framework and the overall content.

An attempt was made by Bill Cash to insert into the report an explicit statement that “The Reform Treaty, as compared to the Original Constitutional Treaty, requires a referendum of the electorate of the United Kingdom because it is the equivalent to the Constitutional Treaty, even if not the same.” This proposal was rejected by the committee, 7 votes to 3. So the European Scrutiny committee did not, contrary to reports, support the notion that the Lisbon treaty was similar enough to the constitutional treaty as to require a referendum.

The Foreign Affairs committee report, too, concluded “We conclude that there is no material difference between the provisions on foreign affairs in the Constitutional Treaty which the Government made subject to approval in a referendum and those in the Lisbon Treaty on which a referendum is being denied.” (para 29)

But again, an amendment to that report was proposed as follows – “We therefore conclude that the Government should reflect on the fairness of relying on the distinction it draws between the Constitutional Treaty, and the “amending” nature of the Lisbon Treaty, when refusing to submit the latter document to a referendum.” – which was rejected by 8 votes to 2. So the Foreign Affairs Committee cannot be called in support of the pro-referendum case, either.

The Daily Telegraph is happy to suggest that “legitimate expectation” is “a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public”. In which case, perhaps the eurosceptics can start by no longer telling lies about the European Union. They should not demand from others what they are not willing to do themselves.

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