Rejection of Lisbon Treaty Referendum Claim

25 Jun 2008

R (on the application of Stuart Wheeler) v Office of the Prime Minister & Anor [2008] EWHC 1409 (Admin)

On 25 June, the Divisional Court (Richards LJ and Mackay J) gave judgment in favour of the Defendants, the Office of the Prime Minister and the Foreign & Commonwealth Office in the claim for judicial review brought by Mr Stuart Wheeler.

The Court explained that the claim failed for several reasons.

Mr Wheeler failed to establish the existence of the implied promise upon which his case of a legitimate expectation depended, namely a promise to hold a referendum on the Lisbon Treaty.

As to the issue of the differences between the Lisbon Treaty and the Constitutional Treaty, the Court stated, “Unlike the Constitutional Treaty, the Lisbon Treaty does not purport, either by its title or in its terms, to lay down a constitution for Europe. Unlike the Constitutional Treaty, it does not repeal the existing treaties and replace them by a single text, but proceeds by way of amendment of the existing treaties; and it leaves in place the existing entities and institutions (save that the European Community is subsumed into the European Union) rather than replacing them with a new legal entity. We see no basis for dismissing such differences as obviously immaterial even if they are treated as differences of form rather than of substance. There are also, on any view, differences of substance.”

The court noted that an assessment of the substantiality or materiality of such differences as exist depends on political perspective and political judgment and made observations as to the justiciability of the issue. At best the review of the Government’s assessment had to be approached on a Wednesbury basis, and as such, the Court was “far from persuaded that the assessment is an unreasonable one”.

As to the question of whether a promise of this kind could give rise to an enforceable legitimate expectation, the Court held, “The subject-matter, nature and context of a promise of this kind place it in the realm of politics, not of the courts, and the question whether the government should be held to such a promise is a political rather than a legal matter.”

Furthermore, the Court held that the fact that the claim would involve an interference by the court with the proceedings of Parliament was a further decisive reason why the claim must fail.

To view the judgment, please click here.

Ian Rogers appeared on behalf of the Office of the Prime Minister and the Foreign and Commonwealth Office.

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