Courts – ‘We Can’t Stop Parliament Ratifying Dead Treaties’

Bill Cash rightly states that the Irish referendum result stops the Lisbon Treaty from having legality, as it had to be ratified by all its signatories to have force of law. He is also right that when the 2005 Constitutional Treaty was rejected in the French and Dutch referendums, Blair immediately abandoned attempts to ratify the Treaty in Britain as it could not acquire legal effect after its failure to be ratified in France and Holland. The Irish rejection is no different.

The High Court, however, held that if Parliament wishes to waste its time ratifying Treaties that cannot have final effect due to the non-ratification by others, it is no business of the court to stop them. In essence that is a political decision, which Parliament is entitled to take. Cash’s action was therefore rejected.

Here is the communication from The European Foundation telling the story –

Bill Cash’s application for judicial review on Lisbon Treaty at High Court is refused

On 17th June, Conservative MP, Bill Cash, sought a judicial review in the High Court to ensure that the Lisbon Treaty should not be ratified, given David Miliband’s decision to continue the ratification of the Treaty in the UK (statement on 16th June) after the ‘No’ outcome of the Irish referendum vote (on 13th June). Bill Cash has now heard from Mr Justice Collins that permission has been refused. Shown below is the original detailed statement of grounds, the Order by the Honourable Mr Justice Collins, the next step of the Bill in Royal Assent, and Mr. Cash’s view.

Original detailed statement of grounds
Decisions under the prerogative are in principle subject to judicial review (CCSU v The Minister for Civil Service [1985] AC 374) and although many prerogative powers, including the making of Treaties would not be justiciable, the Courts may rule on the legality of action taken in the course of foreign policy R v. Foreign Secretary EXP Rees-Mogg [1994] QB 552 – decision to ratify Treaty on European Union reject on the merits of that case because Government was exercising prerogative power not relinquishing it.

The Treaty of Lisbon was signed on 13th December 2007 by the Prime Minister on behalf of Her Majesty’s Government and the 26 other Member States also signed the Treaty, including the Republic of Ireland. The Treaty is not ratified in the United Kingdom.

The claimant contends that the legal consequence for the United Kingdom of the ‘No’ vote on the Lisbon Treaty in the referendum held in the Republic of Ireland notified on Friday 13th June under Article 29 of the Constitution of Ireland 1937 (which is direct binding legislation) against the coming into force of the Treaty of Lisbon in the Republic of Ireland is that as from 13th June, the performance of the Treaty in relation to the UK (because of supervening impossibility and change of circumstances preventing the accomplishment of the original object or purpose and transforming the original consent of the parties to the terms of that Treaty) is now otiose, terminated and therefore no longer an available lawful use of the Prerogative in the UK.

Furthermore, under the principles of customary international law the Treaty of Lisbon should be stayed (Clausula Rebus Sic Stantibus).

As admitted by the Foreign Secretary in his statement to the House of Commons at 5pm on 16th June “All 27 Member States must ratify the Treaty for it to come into force.” The Republic of Ireland can no longer do so in respect of this Treaty under their Constitution, thereby vitiating the object or purpose of the Treaty as between all 27 Member States including the United Kingdom and in these circumstances and for want of proper and lawful justification the continuing assertion by Her Majesty’s Government that the Treaty is effective in the UK is an abuse of prerogative power and is therefore justiciable by the Courts of the United Kingdom.

In accordance with Article IX of the Bill of Rights, this claim is directed at the decision to continue to ratify the Lisbon Treaty in the exercise of prerogative power and does not question the proceedings in Parliament.

Mr Justice Collins made the following order:
Permission refused

Since I am refusing permission to seek judicial review, it follows that I decline to make any interim order.
The claim is misconceived. There is no reason why the government should not ask Parliament to continue to deal with the European Union (Amendment) Bill despite the refusal of Ireland to ratify the Lisbon Treaty. It will be for Parliament, not the court, to decide whether the Bill should be passed having regard to the Irish decision. The assertion that the decision to continue the ratification process is an exercise of the prerogative power and so justiciable is not correct. In reality, this claim seeks to prevent the parliamentary process from reaching its conclusion and as such is not justiciable. In any event, there may well be a value in the government knowing that they Treaty in its present form has been ratified by Parliament or by a referendum is a matter of political not judicial decision.
It follows that this claim is not arguable. It is indeed totally without merit since it is an attempt to pursue a political agenda through the court.

Royal Assent
Royal Assent will take place today and it is not known when instruments of ratification will be delivered.

Bill Cash’s view
As Bill Cash said in the House of Commons yesterday, and on Monday, he regards the Government’s behaviour in continuing with this Treaty disreputable because this Treaty cannot be ratified by Ireland by virtue of the direct binding legal nature of the ‘No’ vote which cannot be changed by the Government or the Dail under the Irish Constitution itself.

Even Tony Blair as Prime Minister abandoned the original European Constitutional Treaty Bill when the French and the Dutch voted ‘No’ because he knew that that Treaty could not be ratified. The same principle clearly should have been applied to this Treaty and this Bill, as Bill Cash pointed out in yesterday’s European affairs debate.

Bill Cash is considering grounds for an oral hearing which he is entitled to do.

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