By Tobias Thienel
We might all be forgiven for thinking that the Republic of Ireland will the only member state of the EU to hold a referendum over the Treaty of Lisbon. In fact, that’s very largely why Björn, tipping his hat to Killian O’Brien, recently posted a link to Irish coverage of the referendum campaign. Now it’s beginning to look like the United Kingdom might have to hold a referendum, too; but it really is only beginning to look like it. This is not because the government now intends to hold a referendum; it does not. However, a supporter of the Conservative party has begun legal action to get the High Court to rule unlawful the government’s refusal to hold a referendum. This is on the grounds that the previous Prime Minister has repeatedly made express promises that the people would decide, and even (a) put the promise in the Labour manifesto for the 2005 general election, and (b) introduced legislation in the House of Commons under which a referendum would be held on the then Constitutional Treaty (which came to nothing after that treaty was defeated in referendums in France and the Netherlands). This, the claimant now argues in the High Court, has created a legitimate expectation by which the government is now bound, in accordance with ordinary English administrative law. To my great surprise, that claim has now cleared its first hurdle. Mr Justice Owen has given permission to apply for judicial review: R (Wheeler) v Office of the Prime Minister [2008] EWHC 936 (Admin). This means, on the one hand, that the case will now proceed to full judicial review in the High Court, but on the other hand no more than that the claim is arguable. That clearly is a very low standard. The claim therefore may still fail, particularly on the grounds that the conclusion of treaties is not justiciable. For what it’s worth, I fully expect it to do just that, either in the High Court or on appeal. However, if the claim does succeed, I suspect the Treaty will be dead in the water, given the current British attitude to the EU and to the government. Not a nice prospect, is it?
Yes, that’s one of the arguments advanced by the government already at the permission stage (see paras. 36-40 of the decision of Owen J). They said, based on the fact that the two instruments are not the same, that no unambiguous promise of a referendum on the Treaty of Lisbon has ever been made (unambiguous government action is one of the prerequisites of the law of ‘legitimate expectation’).
That may not be the government’s most attractive argument, as I suppose you’d agree (?). Owen J simply found it arguable. He had to do nothing more than that, and will have thanked his lucky stars for that.
We’ll see what, if anything, the court(s) will make of the point. I guess the best way of resolving the case for them would be to simply hold the matter non-justiciable. That would relieve them from relying on the point made by your government, and also prevent them from denying the force of that argument.
That’s really interesting. I was thinking: Can the UK not use the very same argument that our Government consistently uses to justify not holding a referendum this time, i.e. that the ‘Treaty on European Union’ is something completely different from the ‘Treaty establishing a Constitution for Europe’. I mean, if you just look at the name!!! Only the latter contains the word ‘Constitution’….. 😉