Wheeler, R (on the application of) v Office of the Prime Minister & Anor

A governmental promise generates an enforceable legitimate expectation only if it is sufficiently clear, unambiguous and unqualified. A proposed implication which depends upon an essentially political assessment lacks the precision required for judicial enforcement.

A promise to hold a national referendum lies within the macro-political field. Whether the government should be held to it is a matter for Parliament and the electorate, rather than the courts. Judicial relief cannot require ministers, acting as Members of Parliament, to introduce legislation. Such an order or declaration would impermissibly interfere with proceedings in Parliament.

The claimant sought judicial review of the Government’s refusal to secure a referendum on the Lisbon Treaty. He argued that earlier promises of a referendum on the Constitutional Treaty implied a corresponding promise for any later treaty having equivalent effect. That promise was said to create a procedural legitimate expectation.

The defendants contended that no such implied promise existed, that the subject was political and non-justiciable, and that the requested relief would interfere with Parliament. The central questions were whether the Lisbon Treaty fell within a sufficiently clear promise, whether such a promise could be enforced through legitimate expectation, and whether relief could properly require the introduction of referendum legislation.

1. The claim was dismissed. The promise made by the Government related specifically to the Constitutional Treaty. It contained no implied commitment to hold a referendum on every later treaty having equivalent effect. Decisions about referendums involve sensitive political judgments which depend upon the particular measure and the circumstances prevailing at the time.

2. Even if the alleged implication existed, the claimant had not established that the Lisbon Treaty had equivalent effect. There were differences of form and substance between the treaties which could not be dismissed as immaterial. The significance of those differences depended primarily upon political judgment, for which there were no suitable judicial standards. At most, the Government’s assessment was reviewable for Wednesbury unreasonableness, and it was not unreasonable.

3. A representation capable of founding a legitimate expectation must generally be clear, unambiguous and unqualified. An alleged promise whose application depended upon a political assessment of whether two treaties were materially equivalent lacked the necessary precision.

4. In any event, a promise to hold a national referendum was not capable of creating a legitimate expectation enforceable in public law. It lay deep within the macro-political field, affected the electorate generally and concerned a decision belonging ultimately to Parliament. Whether the Government should be held to such a promise was therefore a matter for Parliament and, subsequently, the electorate.

5. The introduction of a Bill is part of proceedings in Parliament. An order requiring ministers to introduce referendum legislation would trespass upon Parliament’s constitutional province. A declaration would have the same impermissible practical effect. Parliament had also enacted the European Union (Amendment) Act 2008 after expressly rejecting referendum amendments. That fact would independently have justified refusing discretionary relief.

not stated in the judgment.