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 20 March 2026
This case summary accurately describes the permission stage decision in R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin). Readers should be aware that the article covers only the permission stage. The substantive judicial review was subsequently heard and dismissed: the Administrative Court held that although the legitimate expectation argument was arguable at the permission stage, it ultimately failed on the merits. The court found that the Labour Party manifesto commitment related specifically to the EU Constitutional Treaty, not to the Treaty of Lisbon, and that no sufficiently clear and unambiguous representation had been made to ground a legitimate expectation of a referendum on the Lisbon Treaty. The Lisbon Treaty was duly ratified by the United Kingdom in 2009.
The broader constitutional position on treaty ratification has since been placed on a statutory footing by the Constitutional Reform and Governance Act 2010, which codified the Ponsonby Rule and sets out the parliamentary procedure for ratification of international treaties. The UK’s subsequent withdrawal from the European Union under the European Union (Withdrawal) Act 2018 and related legislation means that the specific EU law context of this case is now of historical interest rather than ongoing practical significance. The underlying legal principles concerning legitimate expectation and justiciability of prerogative powers discussed in the case remain good law.
