Wheeler v The Office of the Prime Minister the Secretary of State for the Home Department (Rev 1)

The European Union Act 2011 creates a specific statutory code identifying decisions that require parliamentary approval and a referendum. A proposed notification under Article 10(5) of Protocol 36 is not converted into a referendum-triggering decision merely because it may have an eventual connection with a European Public Prosecutor’s Office. Nor may generalised parliamentary purpose or alleged transfer of sovereignty enlarge the express statutory triggers. The exceptional power to correct drafting mistakes applies only where the statutory purpose, inadvertent failure, and necessary correction are all clear. A political promise to hold a parliamentary vote or referendum is not, in this context, enforceable as a legitimate expectation. Judicial relief requiring Parliament to organise its business in a particular way would impermissibly enter the political realm and risk breach of parliamentary privilege and Article 9 of the Bill of Rights 1689.

The claimant sought permission to bring judicial review proceedings concerning the Government’s proposed notification under Article 10(5) of Protocol 36 that the United Kingdom wished to participate in measures including the European Arrest Warrant Framework Decision.

He argued that the European Union Act 2011 required a referendum before the notification, principally because of its possible relationship with a future European Public Prosecutor’s Office. He also alleged that ministerial and governmental statements created an enforceable legitimate expectation that a parliamentary vote would be held on participation in the European Arrest Warrant.

The court considered the statutory scheme, the distinction between Article 10(5) of Protocol 36 and Article 4 of Protocol 21, the exceptional construction jurisdiction identified in Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586, and constitutional limits arising from parliamentary proceedings.

1. Permission refused. The claimant had shown no arguable ground for challenging the proposed notification, and questions of interim relief therefore did not arise.
2. Section 6 of the European Union Act 2011 is a detailed and comprehensive code. A referendum is required only where one of the circumstances expressly specified by section 6 is present. General statements of parliamentary intent, the preamble, or explanatory material cannot add a further trigger.
3. The proposed notification was under Article 10(5) of Protocol 36, not Article 4 of Protocol 21. The reference in Article 10(5) to relevant provisions of Article 4 being applicable was procedural and did not change the legal character of the notification for section 6(3).
4. Even if section 6(3) applied to the notification, it concerned a notification relating to participation in an EPPO or an extension of its powers. The relationship relied on between the European Arrest Warrant and a possible future EPPO was too remote and contingent. The phrase relating to could not assimilate a notification concerning the European Arrest Warrant to one concerning the EPPO. Nor did the possible future issue of warrants amount to an extension of EPPO powers within section 6(3), which reflected Article 86(4) and concerned extending powers to serious cross-border crime.
5. The proposed correction of section 6(5) under Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586 failed. The statutory purpose, inadvertent drafting failure, and substance of the correction were not abundantly clear. The precise wording of section 6 meant that judicial reformulation would cross the boundary from interpretation into legislation.
6. Assuming that a promise of a parliamentary vote had been made, it could not create a legitimate expectation enforceable in public law. The subject matter and context were political, and Parliament remained responsible for deciding whether the Government should be held to such a promise. Requiring a vote as a condition of executive action would also require the court to assess parliamentary proceedings and votes, contrary to Article 9 of the Bill of Rights 1689 and the law of parliamentary privilege.