R (Wheeler) v Office of the Prime Minister
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson |
| Judgment Date | 18 July 2008 |
| Neutral Citation | [2008] EWCA Civ 949 |
| Docket Number | Case No: C1/2008/1646 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 July 2008 |
[2008] EWCA Civ 949
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
(LORD JUSTICE RICHARDS)
QUEEN'S BENCH DIVISION
Lord Justice Dyson
Case No: C1/2008/1646
Mr L Price QC (instructed by Burges Salmon) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
In these proceedings Mr Wheeler originally sought a declaration that the defendant's refusal to hold a referendum on whether the United Kingdom should ratify the Lisbon Treaty, which was signed on 13 December 2007, was unlawful, as being a breach of his legitimate expectation that such a referendum would be held.
Recognising that the final decision whether to hold a referendum lies with Parliament, Mr Wheeler modified his claim in the court below so that the breach of legitimate expectation was said to lie in the decision of the executive not to take all reasonable steps within its power to give effect to the promise that a referendum would be held, that is to say by introducing a bill into Parliament or moving to amend an existing bill so as to provide for a referendum.
By a decision handed down on 25 June, the Divisional Court concluded that the claim lacked substantive merit and should be dismissed. They also said, at paragraph 57, that even if they had taken a different view of the substance of the case, in the exercise of the court's discretion they would have declined to grant any relief, having regard in particular to the fact that Parliament has addressed the question whether there should be a referendum and, in passing the European Union (Amendment) Act 2008, has decided against one.
In summary the Divisional Court dismissed the claim for the following reasons. First, the promise related specifically to the constitutional treaty signed in October 2004 and not to the Lisbon Treaty. The claimant's case depended on reading into the statements about holding a referendum in respect of the constitutional treaty an implied representation that there would be a referendum in respect of any treaty having an equivalent effect. The Divisional Court said there was no room for such an implication.
Secondly, even if there were such an implied representation, the claimant had to show that the Lisbon Treaty had equivalent effect to the constitutional treaty so as to come within the scope of the implied representation. There were a significant number of differences of substance. The more important of these were set out by the Divisional Court at paragraphs 32 and 33 of their judgment. The court said that the materiality of those differences depended on political judgment and for that reason was not justiciable. If materiality was a matter for the courts, the question should be approached on a Wednesbury basis. The claimant failed to satisfy the court that the differences were material even if that question was justiciable, and failed to satisfy the court that the Lisbon Treaty was to be regarded as having equivalent effect to the constitutional treaty for the purposes of the putative implied representation as to the holding of a referendum.
Thirdly, the implied representation relied on lacked the precision that was needed if it was to be capable of being enforced by the court as a matter of public law. Fourthly, a promise to hold a referendum lies so deep in the macropolitical field that the court should not enter the relevant area at all and, fifthly, the relief sought requiring the defendants to introduce a bill into Parliament would involve an impermissible interference by the court with the proceedings of Parliament.
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