By Tobias Thienel

A few weeks ago, I reported on this blog that a High Court case had been brought to force the British government to hold a referendum on the Treaty of Lisbon, which is to reform the European Union. Judgment in the case was delivered today, in which the Court (Richards LJ and Mackay J) dismissed the claim. The government is now under no obligation to hold a referendum. It appears, failing further decisions conditional on any appeal, that it will now proceed to declare the ratification of the Treaty. The relevant legislation has already been through Parliament, and has received the Royal Assent. All that remains is for the government to declare ratification on the international level. The outcome of R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin) perhaps wasn’t all that surprising. Even so, my earlier guess of how the claim would be dismissed has not quite been confirmed. The claim was not in terms declared to be non-justiciable. However, the Court’s reasoning wasn’t a million miles from that option. It held that the original government promise of a referendum on the Treaty Establishing a Constitution for Europe did not contain an implicit promise that the same would be done for any later treaty containing much the same terms, which the claimant argued was the Treaty of Lisbon. The promises on the old, later demised treaty could not carry any such implication, because the later treaty could not possibly have been expected at the time. The Court further held – and this is where I think there is a strong link to the justiciability issue – that it was in no position to say that the Treaty of Lisbon was practically the same as the Treaty Establishing a Constitution for Europe. That assessment, the High Court said, ‘depend[ed] primarily (…) on a political rather than a legal judgment.’ There were ‘no judicial standards by which the court [could] answer the question’ (para 34). The Court further doubted in terms that the matter was ‘justiciable at all’, and said that the assessment by a House of Commons committee and, interestingly, by the Dutch Council of State, was in any event not unreasonable in the sense of English administrative law (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). Note that the High Court was careful not to pass judgment directly on the political issues. It did not nearly criticise either the British or the Dutch government. It was always unlikely that it would do anything of the sort. Taking the matter to court never was a very promising plan. [The Court also let on that the claim might have failed on a number of other grounds, on which it did not elaborate.] So, the present European crisis has not been exacerbated by the High Court. I, for one, would have been stunned had it been.