Referendum issue a political one, say UK judges

British eurosceptic millionaire Stuart Wheeler clearly failed to establish that the British government promised a referendum on the EU’s Lisbon Treaty, two senior High Court judges ruled today.

Even if he had, the question of a referendum belonged “in the realm of politics, not of the courts”, they said.

It would now be “inappropriate as well as futile” to require the prime minister and the foreign secretary to raise the issue with parliament again.

Lord Justice Richards and Mr Justice Mackay’s strong comments appear in their joint written judgment handed down today in which they reject the spreadbetting tycoon’s legal bid to force the government to order a vote.

They said that to order government ministers to introduce a bill for a referendum into parliament in their capacity as MPs “would plainly trespass impermissibly on the province of parliament”.

They said Mr Wheeler’s reformulated application was seeking to require ministers to introduce into parliament a bill, or an order, providing for a referendum.

Mr Wheeler claimed that a legitimate expectation of a vote arose because one had been promised by former premier Tony Blair in relation to the failed EU Constitution.

Mr Wheeler’s lawyers argued there were no “material differences” between the Constitutional Treaty – rejected by voters in France and the Netherlands in 2005 - and the Lisbon Treaty which replaced it.

The judges said closer analysis of the case revealed that it faced “insurmountable obstacles”. No promise of a referendum could be implied, and Mr Wheeler’s case “falls at the first hurdle”.

The Lisbon Treaty was “a distinct treaty”, agreed more than three years later than the Constitutional Treaty.

It stemmed from a separate mandate and set of intergovernmental negotiations.

The decision to hold a referendum involved “a sensitive political judgment” that depended on “wider prevailing circumstances”.

The factual history showed that, once doubts were cast on the Constitutional Treaty by the French and Dutch referendums, “the government declined to give any advance commitment in relation to whatever alternative might emerge”.

The judges also said: “There are undoubted differences between the two treaties.”

The Lisbon, unlike the Constitutional, did not purport to lay down a constitution for Europe.

It did not repeal existing treaties and replace them by a single text, but amended them.

It left in place the European Union’s existing institutions – save that the European Community was subsumed into the EU – rather than replacing them with a new legal entity.

Professor Steve Peers, of the University of Essex, identified 35 differences of substance between the two treaties, although they had been the subject of debate between Lord Blackwell and Baroness Ashton, Leader of the House of Lords.

The court had considered five specific examples that could not obviously be dismissed as immaterial.

They included the UK opt-out in the area of freedom, security and justice; additional powers for national parliaments to delay or resist EC legislation; and changes with regard to the application of the Charter of Fundamental Rights to the UK.

They also included an amendment to the Treaty on European Union providing that the EU respects the essential state functions of member states, including ensuring territorial integrity, maintaining law and order and safeguarding national security; and an amendment by the Lisbon Treaty limiting the scope for EU measures in the field of foreign and security policy.

The judges said they had expressed their views cautiously because whether the differences were significant depended primarily “on a political rather than a legal judgment”.

However, they were far from persuaded that the government’s assessment that the differences did not warrant a referendum was “an unreasonable one”.

The decision on the holding of a referendum “lay with parliament, and it was for parliament to decide whether the government should be held to any promise previously made”.

The judges said: “In our view, a promise to hold a referendum lies so deep in the macro-political field that the court should not enter the relevant area at all.”

If the government made promises affecting the public at large, the consequences of going back on them would be a matter for parliament, “and, when the next opportunity arose, for the electorate to determine”.

To order government ministers to introduce a bill into parliament in their capacity as MPs “would plainly trespass impermissibly on the province of parliament”.

The fact that the claim would involve an interference by the court with the proceedings of parliament was a further decisive reason why Mr Wheeler’s claim must fail.

Parliament has now passed the European Union (Amendment) Act 2008 and expressly rejected amendments that would have provided for a referendum.