R (Wheeler) v Office of the Prime Minister

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeThe Honourable Mr Justice Owen,Lord Justice Richards
Judgment Date25 June 2008
Neutral Citation[2008] EWHC 1409 (Admin),[2008] EWHC 936 (Admin)
Date25 June 2008
Docket NumberCase No: CO/1915/2008

[2008] EWHC 1409 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards and

Mr Justice Mackay

Case No: CO/1915/2008

Between:
The Queen (on The Application Of Wheeler)
Claimant
and
(1) Office Of The Prime Minister
(2) Secretary Of State For Foreign and Commonwealth Affairs
Defendants
Speaker Of The House Of Commons
Interested Party

Rabinder Singh QC and Jessica Simor (instructed by Burges Salmon) for the Claimant

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

Approved Judgment

Lord Justice Richards

This is the judgment of the court.

1

The Treaty establishing a Constitution for Europe (“the Constitutional Treaty”) was signed in October 2004 but required ratification by all member states before it came into effect. The then Prime Minister, Tony Blair, promised a referendum on whether the United Kingdom should ratify it; and the European Union Bill introduced into Parliament following signature of the treaty provided for the treaty to be given effect in domestic law subject to the outcome of a referendum. In the event, however, following “no” votes in referendums held in France and the Netherlands, the European Union instituted a period of reflection in relation to the treaty, and the domestic Bill did not proceed to a second reading. In due course, in June 2007, the European Council agreed a mandate for a new treaty, and subsequent negotiations led to the signing of the Treaty of Lisbon (“the Lisbon Treaty”) in December 2007. The British Government made clear that it did not intend there to be a United Kingdom referendum in relation to the Lisbon Treaty, and no provision for a referendum was included in the European Union (Amendment) Bill introduced into Parliament to provide for the treaty to be given effect in domestic law. The present proceedings are directed towards securing such a referendum.

2

The claimant contends that the promise to hold a referendum in relation to 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. It is said that the Lisbon Treaty is a treaty having equivalent effect to the Constitutional Treaty and that the failure to hold a referendum in relation to it, or at least to take steps towards the holding of a referendum, is a breach of the claimant's legitimate expectation. The claim is brought against the Prime Minister and the Foreign Secretary, whose essential stance is that the claimant's case is a fundamentally misconceived and unsustainable attempt to get the court involved in a purely political and Parliamentary matter. The Speaker of the House of Commons has intervened in the proceedings in order to ensure that the relevant law of Parliamentary privilege is properly understood and applied.

3

The hearing took place just before a referendum on the Lisbon Treaty was held in Ireland. That referendum resulted in a “no” vote which has serious implications for the future of the Lisbon Treaty. When questioned about this possibility, however, counsel for the parties did not accept that a “no” vote in the Irish referendum would render the present case academic. Since the United Kingdom Parliament has subsequently approved the treaty and the British Government has made clear its intention to ratify it notwithstanding what has happened in Ireland, it is plainly right for us to proceed to a judgment in the case.

The facts

4

The Constitutional Treaty was the subject of prolonged negotiation in an intergovernmental conference between October 2003 and June 200Political agreement was reached on the text in June 2004 and the treaty was signed in Rome on 29 October 200As its full title indicates, the treaty was to establish a constitution for Europe. It was to rescind the existing EC and EU treaties in their entirety and substitute for them a single instrument, which would replace the existing entities of the EC and EU with a new legal entity, the European Union, with its own attributes and institutions.

5

On 20 April 2004 the Prime Minister made a statement to the House of Commons about the negotiations (see Hansard, cols 155 etseq.). We do not understand there to be any objection to reference to this and other Parliamentary statements as part of the history: we will consider later the further use to which such material can properly be put in these proceedings. In his statement the Prime Minister said that the proposed treaty “is designed both to answer the challenge of enlargement and to bring together in one treaty what is currently found in two separate treaties” and that it “does not and will not alter the fundamental nature of the relationship between member states and the European Union”. He expressed the view that if the treaty contained certain essentials it would be in Britain's interest to sign it, but he also said that since its inception the “myths” propagated about it had multiplied in certain quarters hostile not just to the treaty but to Britain playing a central role in Europe, and he referred to an “unrelenting, but … at least partly successful campaign to persuade Britain that Europe is a conspiracy aimed at us, rather than a partnership designed for us and others to pursue our national interest properly in a modern, interdependent world”. He continued:

“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.

6

In a White Paper on the Treaty establishing a Constitution for Europe, dated September 2004, the then Foreign Secretary stated in the preface:

“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.”

7

On 25 January 2005 the European Union Bill was introduced into Parliament. Pursuant to the government's earlier commitment, it provided for effect to be given to the Constitutional Treaty in domestic law if ratification was approved in a referendum. The Bill did not complete its progress through Parliament before the general election in May 2005. The Labour Party manifesto for the election repeated the commitment to hold a referendum. Following the general election the government's policy of holding a referendum was confirmed in Parliament. In accordance with that policy the European Union Bill, still containing provision for a referendum, was reintroduced into Parliament on 24 May 2005.

8

The promise to hold a referendum was also repeated on numerous occasions to the media in the context of newspaper, radio and television interviews and press conferences. For example, the Prime Minister was reported in the Sun newspaper on 13 May 2005 as saying:

“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.”

9

In referendums held on 29 May and 1 June 2005 respectively, the French and Dutch rejected the Constitutional Treaty. The Foreign Secretary stated in the House of Commons on 6 June 2005 that the government did not consider it sensible for the European Union Bill to proceed to a second reading until the consequences of the French and Dutch referendums were clear. He was asked in terms for an assurance “that there will be no attempt to introduce any part of this constitution by the back door, and that any further transfer of power away from the British people will result in a referendum” (col 993). He gave no such assurance, but made clear on the contrary that the commitment to a referendum related specifically to the Constitutional Treaty:

“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...

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