Two laughable challenges to the EU Reform Treaty are currently going through this country’s esteemed legal process. The first, by Tory donor Stuart Wheeler, is a judicial review of the Government’s failure to grant a referendum on the treaty. He is arguing that this is in breach of a "legitimate expectation" held by the people. As I’ve commented on James Graham’s post:
"Watch that judicial review get thrown out of a court by a judge giggling his tits off at the idea the courts can overturn an Act of Parliament."
Quite simply, judges can’t strike down Acts of Parliament* and the EU Reform Treaty will be passed into British law by an Act of Parliament. Unfair maybe, but there it is, and the thought that the High Court will do anything other than soil itself due to laughter induced loss of control is plain silly.
I hadn’t spotted this until now, but there is also another challenge to the Government:
"In a separate case, to be heard at Brighton County Court on 7 February, former Labour activist Stuart Bower, now a member of the UK Independence Party, is claiming the government broke its promise to hold a referendum on the European Constitution.
"The court will have to decide whether the government’s refusal to hold one is a breach of contract with Labour voters at the 2005 general election. "
Rumour has it that the judge will be hearing the case from behind sound-proof glass, so as not to disturb legal arguments with his or hers howls of derision.
* Exception: Those Acts of Parliament incompatible with EU law, but even this is done in accordance with a previous Act of Parliament.
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9 responses so far ↓
1 James Graham // Jan 29, 2008 at 4:27 pm
The second one would is fascinating. As you say, totally barmy, but then you could say the same thing about the Salisbury Convention which works on a similar fundamental principle. I can at least see an argument that we need some clarity here.
If it were passed of course, expect every NGO in the country to table at least three legal challenges each on their pet issues. Referendum on PR perchance?
2 Gavin Whenman // Jan 29, 2008 at 4:31 pm
One of many reasons it won’t get through the court. I wish I had more time to really lay into this, but both of them boil down to, as you say, parliamentary sovereignty and the court’s role in deciding how legislation should be applied.
3 Richard Holloway // Jan 29, 2008 at 6:07 pm
Actually both of these challenges are perfectly sane if you look at them both as delaying exercises.
The Constitution (I refuse to call it a treaty) cannot be ratified while there is an ongoing judicial review of it. If it is not ratified before the next general election then the Conservatives get in (fingers crossed) and everyone gets the referendum we were all promised (yes Clegg & Brown, you both promised).
It does rely on a long drawn out legal process which the government will do everything it can to speed up.
But then that can’t be too difficult to do, if we’re good at anything in this country, it’s a long drawn out judicial review. The bloody Sunday inquiry anyone?
4 Antony Hook // Jan 29, 2008 at 7:59 pm
The JR won’t delay the Bill’s passage at all.
The Court will not order interim relief in this case (i.e. a stay of proceedings against the Bill’s passage in Parliament). Proceedings in Parliament are immune to any judicial interference, under the Bill of Rights 1688.
In any event, interim relief is only granted if the claimant has a legally arguable case, which he doesn’t because in addition to Parliamentary independent from judicial action, the making of Treaties is a matter of Royal Perogative, which also cannot be touched by a judicial review. Thirdly, to have an arguable case he would have to prove that the action he seeks to stop is either irrational, unreasonable, or ultra vires, which it is not.
Stuart Wheeler might like to ask Lord Rees-Mogg who failed in an identical attempt to stop by judicial review the signing of the Maastricht Treaty.
More to the point, it is not a long drawn out exercise. Judicial Review in the English High Court is not a long drawn out exercise. It will probably take a few hours of court time at the most. Bloody Sunday was not a JR. It was a fact-finding exercise, whereas this is just a legal argument.
Actually, the English High Court brings a huge amount of money into this country. International respect for the court means that many international trade deals and contracts between non-English companies have clauses that any disputes will be resolved under English Law in the English High Court.
5 James Graham // Jan 30, 2008 at 10:25 am
The Constitution (I refuse to call it a treaty)
Is that because you are a bit dim, perchance? You can call it a banana for all I care but it’s still a treaty.
6 Richard Holloway // Jan 30, 2008 at 10:41 am
I refer you to Shakespeare:
“A rose by any other name would smell as sweet”
or in this case: “The Constitution by any other name would smell as foul.”
7 Realpolitik 12: Breaking News // Jan 31, 2008 at 12:28 pm
[...] The EU Reform Treaty gets two silly challenges. [...]
8 Christopher Woodward // Feb 8, 2008 at 9:50 pm
The EU is illegal under the British Constitution, Magna Carta 125 and the Bill of Rights and Declaration of Rights 1688 and 89. MPs who’ve supported EU treaties should be tried for Treason. I support any legal challenge to stop the EU and was in the public gallery of the Stewart Bower case yestarday. The judge should have considered the moral and ethical grounds on what Gordon Brown is doing, not just the technicalities. The government’s lawyer simply repeated tired old New Labour mantras to convince the judge to let the government off the hook. Please all do something ot stop the treaty, and stop us becoming part of an EU police state. Parliament will be abolished soon after the treaty is signed and national political parties will be banned and replaqced by EU parties. Tell that to your MP, tell them their job is in jeopardy under the treaty. WE MUST GET OUT QUICK!!!
9 Gavin Whenman // Feb 9, 2008 at 11:01 am
“The EU is illegal under the British Constitution, Magna Carta 125 and the Bill of Rights and Declaration of Rights 1688 and 89″
For so many reasons, no it isn’t. There is not a single provision of any of those instruments that states “the EU [or regional pacts of this ilk] is illegal”.
“The judge should have considered the moral and ethical grounds on what Gordon Brown is doing, not just the technicalities.”
No, the judge shouldn’t have done. The judge applied the law, as judges should.
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