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

A claim challenging a decision not to hold a referendum may be justiciable where it concerns departure from a promise about the procedure preceding the exercise of the prerogative power to ratify a treaty, rather than the lawfulness of ratification itself.

At the permission stage, a claimant need only show an arguable case. A claim framed as a narrow challenge to a failure to honour a legitimate expectation may also be arguable without trespassing upon parliamentary privilege, particularly where only declaratory relief is sought. It was likewise arguable that a promise concerning one treaty extended by implication to a later treaty said to have substantially equivalent effect.

The claimant sought permission to apply for judicial review of the defendants’ decision not to hold a referendum before ratification of the Treaty of Lisbon. He relied on repeated governmental statements promising a referendum on the Constitutional Treaty and contended that the Lisbon Treaty was materially equivalent.

The defendants argued that the claim was not justiciable because it concerned the prerogative power to ratify treaties, infringed parliamentary privilege, and relied on no clear promise concerning the Lisbon Treaty. The court considered whether those objections provided a complete answer at the permission stage.

1. Permission granted. The claimant’s case was arguable on each of the three principal issues advanced.
2. The court accepted as arguable the distinction between a direct challenge to treaty ratification and a challenge to a decision to resile from a promise concerning the procedure to be adopted before ratification. The decisions in R (McWhirter and Gouriet) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 384 and R (Southall) v Secretary of State for Foreign and Commonwealth Affairs [2003] EWCA Civ 1002 therefore did not provide a complete answer.
3. It was also arguable that a narrowly framed claim seeking declaratory relief for frustration of a legitimate expectation did not violate parliamentary privilege. R v HM Treasury, ex p Smedley [1985] QB 657 concerned judicial interference with the laying of subordinate legislation before Parliament and did not conclusively determine the present issue.
4. The claimant’s reliance on the legitimate-expectation principles stated in Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363, R v Education Secretary, ex parte Begbie [2000] 1 WLR 1115 and R v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd [1990] 1 WLR 1545 raised an arguable case. It was arguable that repeated promises concerning the Constitutional Treaty extended to a document with a different name but equivalent effect.

This was a first-instance application for permission to apply for judicial review. On 19 March 2008 Stanley Burnton J adjourned the permission application to an oral hearing. Owen J granted permission after the hearing on 22 April 2008.