Governments – Implied promises – Legitimate expectation – Parliamentary privilege – Referendums

R (on the application of Wheeler) (claimant) v (1) Office of the Prime Minister (2) Secretary of State for Foreign and Commonwealth Affairs (defendants) & Speaker of the House of Commons (interested party) (2008): DC (Lord Justice Richards, Justice Mackay): 25 June 2008

The claimant (W) applied for a ­declaration by way of judicial review that the decision of the defendant Office of the Prime Minister (O) not to hold a ­referendum on the ratification of the Lisbon treaty was unlawful.

A treaty establishing a constitution for Europe had been signed in 2004. In the UK, the then foreign secretary and incumbent prime minister went on record to state that the UK would only give effect to it if ratification was approved in a referendum; that ­promise was thereafter repeated by members of the government on numerous occasions. However, in 2005, the French and Dutch peoples rejected the constitutional treaty and the UK Parliament did not continue with its reading of the relevant bill. Consequently, a new treaty, designed to implement the innovations behind the constitutional treaty, was promulgated (the Lisbon treaty). In the UK, the incumbent prime minister, and later his successor, stated that the Lisbon treaty was a conventional amending treaty and so its provisions did not require a referendum. The ­government introduced the European Union (Amendment) Act 2008 into Parliament with no provision for a ­referendum on the Lisbon treaty. Shortly afterwards, the bill completed all the requisite parliamentary stages and received Royal Assent.

W submitted that the government’s promise to hold a referendum on the constitutional treaty involved an implied representation that a referendum would be held in relation to any treaty having equivalent effect, giving rise to a legitimate expectation that such a referendum would be held. W argued that the Lisbon treaty was a treaty having equivalent effect to the constitutional treaty and that the ­failure to hold a referendum in relation to it was a breach of W’s legitimate expectation; indeed, by refusing the referendum, the government was acting in breach of that legitimate expectation, and that that was a justiciable error of law which, on the ordinary principles of public law, would flaw any decision taken by the government to ratify such a treaty.

Held: (1) Promises dispensed by members of the then incumbent government in relation to the constitutional treaty related specifically to that treaty and not the subsequent Lisbon treaty, which was necessarily beyond their contemplation at the time. One could not have expected an advance commitment to be given in relation to such a potential future treaty. Indeed, after the defeat of the constitutional treaty, the government’s express statements were inconsistent with the implied representation for which W now contended. Thus, the court was not convinced that those promises had given rise to an implied representation of the sort now contended for by W.

(2) Even if the implied representation had been accepted, W had failed to show that the Lisbon treaty had equivalent effect to the constitutional treaty. Indeed, there were undoubted differences between the two treaties and there was no basis for dismissing such differences as obviously immaterial.

(3) In any event, there was a real question as to whether the materiality of any differences between the two treaties was a justiciable issue within the purview of the justice system. At best, it was a matter to be approached on a Wednesbury basis, and on that basis the court was not persuaded that the government’s own assessment of the differences was unreasonable. If, however, contrary to those views, it was for the court to make the primary assessment, not just of the factual differences between the two treaties, but also of the materiality of those differences, W had still failed to satisfy the court that the differences were immaterial and that the Lisbon treaty should be regarded as having equivalent effect to the constitutional treaty.

(4) Even if the courts had accepted that the relevant ministerial statements had the effect of a promise to hold a referendum in respect of the Lisbon treaty, such a promise would not have given rise to a legitimate expectation enforceable in public law entitling the courts to interfere with it, R v Secretary of State for Education and Employment Ex p Begbie (2000) 1 WLR 1115 CA (Civ Div), R v Secretary of State for the Home Department Ex p Fire Brigades Union (1995) 2 AC 513 HL and R v Secretary of State for Wales Ex p Emery (1998) 4 All ER 367 CA (Civ Div) applied.

(5) The fact that the claim would, if successful, involve an interference by the court with the proceedings of Parliament was a further reason why the claim was destined to fail, R v Parliamentary Commissioner for Standards Ex p Al-Fayed (1998) 1 WLR 669 CA (Civ Div), R v HM Treasury Ex p Smedley (1985) QB 657 CA (Civ Div), Prebble v Television New Zealand Ltd (1995) 1 AC 321 PC (NZ) and Office of Government Commerce v Information Commissioner (2008) EWHC 737 (Admin) applied.

Judgment for the defendants.

Rabinder Singh QC, Jessica Simor (instructed by Burges Salmon) for the claimant; Jonathan Sumption QC, Philip Sales QC, Julian Milford, Ian Rogers (instructed by the Treasury Solicitor) for the defendants; Clive Lewis QC, Eleanor Grey (instructed by the Treasury Solicitor) for the interested party.