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.
Decision/Outcome
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.
Updated 21 March 2026
This case note accurately summarises the 2008 Administrative Court decision in R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin), in which permission to apply for judicial review was granted. Readers should be aware of the subsequent procedural history: following the permission stage, the full judicial review claim did not succeed. The court ultimately declined to grant any substantive relief, finding that the legitimate expectation argument could not be sustained on the facts and that justiciability concerns remained significant obstacles. The Treaty of Lisbon entered into force on 1 December 2009, and the UK ratified it without a referendum. The European Union (Amendment) Act 2008 provided the statutory basis for ratification. The broader constitutional landscape has since changed materially: following the UK’s withdrawal from the European Union (effected via the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020), the Treaty of Lisbon no longer applies to the United Kingdom. The legal principles illustrated by this case — concerning legitimate expectation in a public law context, justiciability of prerogative powers, and parliamentary privilege — remain part of English constitutional and administrative law, though the specific EU treaty context is now of historical interest only. Students should read this note as illustrating those principles at the permission stage rather than as a final determination of the merits.
