QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MACKAY
| The Queen (on the application of Wheeler)
|- and -
|(1) Office of the Prime Minister
(2) Secretary of State for Foreign and Commonwealth Affairs
- and -
Speaker of the House of Commons
Jonathan Sumption QC, Philip Sales QC, Julian Milford and Ian Rogers (instructed by The Treasury Solicitor) for the Defendants
Clive Lewis QC and Eleanor Grey (instructed by The Treasury Solicitor) for the Interested Party
Hearing dates: 9-10 June 2008
Crown Copyright ©
Lord Justice Richards :
This is the judgment of the court.
"It is right to confront this campaign head on. Provided that the treaty embodies the essential British positions, we shall agree to it as a Government. Once agreed … Parliament should debate it in detail and decide upon it. Then, let the people have the final say.
The question will be on the treaty, but the implications go far wider – as I believe we all know. It is time to resolve once and for all whether this country, Britain, wants to be at the centre and heart of European decision making or not; time to decide whether our destiny lies as a leading partner and ally of Europe or on its margins. Let the Eurosceptics, whose true agenda we will expose, make their case. Let those of us who believe in Britain in Europe … make our case, too. Let the issue be put and battle be joined."
In response to a question, he stated (at col 164) that the referendum should go ahead even if another member state held a referendum first and rejected the constitution.
"The Constitution will come into force once ratified under the constitutional arrangements of each Member State. In the UK, this will be by legislation considered by both Houses of Parliament and then endorsement in a referendum."
"We don't know what is going to happen in France, but we will have a referendum on the constitution in any event – and that is a government promise."
"The hon. Gentleman asked me whether we are intending to introduce any part of the constitution by the back door. The answer to that is no, we are not, but there is a question here … There is a real 'but' for serious Members of the House. I understand the points of engagement and of controversy about this constitution. I would have looked forward to that engagement in the country as a whole. However, many parts of the constitution were reforms that were widely agreed in all parts of the House. For example, there were the proposals to give real flesh to the idea of subsidiarity, the proposals to give national Parliaments a new and better say over EU legislation, and the proposals to provide for yellow cards.
If the Commission or the Council were themselves to suggest that we should introduce these things by other means, it would be absurd to put such proposals to a referendum. We ought to agree them straight away.
We are not proposing that this constitutional treaty – the only constitutional treaty before Europe or before this country – should be agreed by this country save by a referendum" (cols 994-995).
"Now, in my view if people want an agreement this week we have to go back to a conventional amending treaty …. Europe needs to work more effectively. What it does not need is a Constitutional Treaty or a treaty with the characteristics of a constitution …. In my view, we should be very clear about this – and it gives me an opportunity today to make this absolutely clear – here and also to our European colleagues. First, we will not accept a treaty that allows the Charter of Fundamental Rights to change UK law in any way. Secondly, we will not agree to something which displaces the role of British foreign policy and our foreign minister. Thirdly, we will not agree to give up our ability to control our common law and judicial and police system. Fourthly, we will not agree to anything that moves to Qualified Majority Voting, something that can have a big say in our own tax and benefit system, we must have the right in those circumstances to determine it by unanimity. Now, those are four major changes, obviously, in what was agreed before ….
… If we achieve those four objectives I defy people to say what it is that is supposed to be so fundamental that could require a referendum."
"Well of course there's going to be a debate about this, but my judgement is that if we were to get these four red lines achieved, and my judgement is that we have achieved these four really demands that Britain had of the European Union, that that means that just in the case of all the other amending treaties, the Nice and Maastricht and so on, that the people would not therefore expect there to be a referendum …."
The claimant's case
Was there an implied promise of a referendum in respect of the Lisbon Treaty?
i) The first concerns the opt-out for the United Kingdom in the area of freedom, security and justice (Protocol 21 to the treaties as amended by the Lisbon Treaty): the opt-out is extended so as to cover matters of policing and criminal law in addition to matters of immigration and civil law which were covered by the corresponding opt-out in the Constitutional Treaty. Mr Singh did not deny that there was an extension, but referred to the existence of opt-in provisions in Articles 3 and 4 of Protocol 21 and submitted that the scope of the extended opt-out was limited by a declaration made by the United Kingdom on Article 75 of the Treaty on the Functioning of the European Union (the new name given to the EC Treaty by the Lisbon Treaty). Limited though it may be, the extension of the opt-out cannot in our view be dismissed as obviously immaterial.
ii) The second example was presented in terms of the conferment of additional powers on national parliaments to delay or resist EC legislation by reference to principles of subsidiarity. The point turns on a new provision, in Article 7(3) of Protocol 2 to the treaties as amended by the Lisbon Treaty, whereby the Commission must review a measure if there is a majority of votes from national parliaments that the measure does not comply with the principle of subsidiarity. In addition, the period of response for national parliaments has been extended from 6 weeks to 8 weeks. Mr Singh made the cogent point that it is unlikely in practice that a majority of national parliaments will respond with the required reasoned opinions even within an 8 week time-frame, and that even if they do it alters the procedure but not necessarily the outcome. Again, however, we do not think that the change can be dismissed as obviously immaterial.
iii) The third example relates to changes with regard to the application of the Charter of Fundamental Rights to the United Kingdom. The Charter formed an integral part of the Constitutional Treaty, whereas under the Lisbon Treaty the position is more complex. The Charter is not part of the treaties, but the amended Article 6(1) of the Treaty on European Union provides that the Union recognises the rights, freedoms and principles set out in the Charter "which shall have the same value as the Treaties". However, Article 1 of Protocol 30 provides that the Charter does not extend the ability of the Court of Justice or national courts to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms; and in particular, that nothing in Title IV of the Charter (concerning economic and social rights) creates justiciable rights applicable to the United Kingdom "except in so far as … the United Kingdom has provided for such rights in its national law". The precise legal consequences of those provisions will have to be worked out by the courts. Again, however, we take the view that the differences in this respect between the two treaties cannot be dismissed as obviously immaterial.
iv) The fourth example concerns an amendment by the Lisbon Treaty to Article 4(2) of the Treaty on European Union, which provides inter alia that the Union shall respect the essential state functions of member states, "including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security". As a result of the amendment this is followed by an additional sentence: "In particular, national security remains the sole responsibility of each Member State". Mr Singh submitted that the addition of that sentence did not amount to a substantive change, both in the light of the preceding sentence, which was contained in identical form in the Constitutional Treaty, and in the light of the further provision in Article 72 of the Treaty on the Functioning of the European Union, as amended by the Lisbon Treaty, that Title V of Part Three (on the area of freedom, security and justice) "shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security": that provision, too, was contained in identical form in the Constitutional Treaty. Although the additional sentence in Article 4(2) does seem relatively minor, we do not think it possible to conclude that an express statement that national security remains the "sole" responsibility of the member states is of no materiality.
v) The final example concerns Article 352 of the Treaty on the Functioning of the European Union, as amended by the Lisbon Treaty. The article confers residual powers for the adoption of measures necessary for the attainment of treaty objectives where the treaties have not otherwise provided the necessary powers. Article 352(4) provides that the article "cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy and that any acts adopted pursuant to this Article shall respect the limits set out in Article 40, second paragraph, of the Treaty on European Union". No such limitation was contained in the corresponding provision of the Constitutional Treaty. Mr Singh submitted that the limitation is likely to have limited, if any, substantive significance. In our view, however, one cannot dismiss as obviously immaterial a provision of this kind limiting the scope for European Union measures in the field of foreign and security policy.
"It shows that, in accordance with the IGC Mandate, the Reform Treaty will introduce into the existing Treaties all the 'innovations' resulting from the 2004 IGC (apart from I-8 on symbols). It also shows that wherever the Constitutional Treaty restated the provisions of the EU and EC Treaties in an amended form, those amendments have been taken up in the Reform Treaty. Taken as a whole, the Reform Treaty produces a general framework which is substantially equivalent to the Constitutional Treaty. Even with the 'opt-in' provisions on police and judicial cooperation in criminal matters, and the Protocol on the Charter, we are not convinced that the same conclusion does not apply to the position of the UK under the Reform Treaty. We look to the Government to make it clear where the changes they have sought and gained at the IGC alter this conclusion in relation to the UK."
On a narrower issue, the House of Commons Foreign Affairs Committee, in a January 2008 report on Foreign Policy Aspects of the Lisbon Treaty (HC 120-I), stated at para 27 of its conclusions:
"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."
In addition, the claimant has quoted statements made by a number of political leaders and institutions across Europe to the effect, as he puts it, that the Lisbon Treaty and the Constitutional Treaty are substantially the same and that any changes do not affect the core elements.
"The Council concludes that the proposed Reform Treaty will be a treaty whose content, methodology and goals are in keeping with the EU's constitutional development as described in Section 3.1 Taken individually, many of the differences between the proposed Reform Treaty and the Treaty establishing a Constitution for Europe amount in strictly legal terms to shifts in emphasis, changes of form and abolition of symbols; the same was true, but in reverse, of the Treaty establishing a Constitution for Europe in relation to earlier treaties. Taken together, more far-reaching significance should be attached to changes such as the abandonment of the idea of a single written constitution, the decision not to include the whole of the Charter of Fundamental Rights, the sharper delimiting of the Union's competences (including those in the protocol on services of general interest and of general economic interest) and the decision not to include the symbols of European unification.
The purpose of all these changes is to rid the proposed Reform Treaty as far as possible of the elements from the Treaty establishing a Constitution for Europe which could have formed a basis of the development of the EU into a more explicit state or federation. This means that the proposed
Reform Treaty is substantially different from the Treaty establishing a Constitution for Europe."
Can a promise of this kind give rise to an enforceable legitimate expectation?
"As it seems to me the first and third categories explained in the Coughlan case … are not hermetically sealed. The facts of this case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, although unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear. The local government finance cases, such as R v Secretary of State for the Environment, ex p Hammersmith and Fulham London Borough Council  1 AC 521, exemplify this. As Wade and Forsyth observe (Administrative Law, 7th ed (1994), p.404):
"Ministers' decisions on important matters of policy are not on that account sacrosanct against the unreasonableness doctrine, though the court must take special care, for constitutional reasons, not to pass judgment on action which is essentially political."
In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in the Coughlan case … that few individuals were affected by the promise in question. The case's facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court's condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power.
There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court's supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by the earlier policy."
The implications of the privileges and role of Parliament
"These authorities demonstrate that the law of Parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our Constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature. These basic principles lead to the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts."