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R (on the application of Wheeler) v Office of the Prime Minister (2008)

CONSTITUTIONAL LAW – REFERENDUM – TREATY RATIFICATION – EQUIVAENT EFFECT – LEGITIMATE EXPECTATION

Facts

The claimant (W) applied for permission to seek judicial review of the decision of the Office of the Prime Minister and Secretary of State for Foreign and Commonwealth Affairs (D) not to hold a referendum on whether the United Kingdom should ratify the Treaty of Lisbon.

W sought to argue that the commitment made in the European Union Bill, and in the Labour Party manifesto, to hold a referendum on whether to pass the Constitutional Treaty into law ought to extend to the Treaty of Lisbon, as the successor to the failed Constitutional Treaty. As the new European Union Bill did not contain a commitment to hold a referendum on ratification, and as the Foreign Secretary stated that no plebiscite would be held, W contended that his legitimate expectation that he would be able to vote on the matter had been frustrated.

Issues

Whether there was an unambiguous and unqualified representation to hold a referendum on the Lisbon Treaty; whether the issue raised by the claim was justiciable or, in the alternative, whether the claim would be a violation of parliamentary privilege, insofar as it potentially challenged the exercise of the Crown’s prerogative powers to conclude treaties.

Held

In granting W permission to apply for judicial review, the court found that the question as to whether there was an unambiguous and unqualified representation that a referendum on the Lisbon Treaty would be held was arguable, as was the justiciability issue; in the instant case the challenge was to the decision to resile from a promise as to the procedure to be adopted prior to the exercise of the power to ratify and not to the exercise of the power itself. Moreover, it was arguable that the narrow ambit of the claim did not amount to a violation of parliamentary privilege; D had not taken any steps that would be protected from challenge in the courts on that basis.


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