This is something that came up in the comments on the recent post on the future (if any) of the Lisbon Treaty.
We noted that there was a case requesting judicial review pending in the English High Court against ratification by the United Kingdom of the Lisbon-Reform Treaty in the absence of a referedum. There was something of a spat as the government tried to force ratification through so that any court judgment would be rendered useless. The government then undertook not to deposit the instruments of ratification until judgment.
The High Court delivered its judgment yesterday in Wheeler v Office of Prime Minister dismissing the application for judicial review of the decision not to hold a referendum.
The judgment is an interesting one, not least because it compares certain salient provisions of the Lisbon Treaty with those of the now defunct Constitution.
The High Court concluded:
"For the reasons we have given, we are satisfied that the claim lacks substantive merit and should be dismissed. Even if we had taken a different view of the substance of the case, in the exercise of the court's discretion we would have declined to grant any relief, having regard in particular to the fact that Parliament has addressed the question whether there should be a referendum and, in passing the European Union (Amendment) Act 2008, has decided against one.
At a late stage in the proceedings, a few days before we expected to hand down judgment, we were informed by the Treasury Solicitor that, following Royal Assent to the European Union (Amendment) Act 2008, the government "is now proceeding to ratify the Treaty of Lisbon". We were concerned that the government might be intending to pre-judge or pre-empt the decision of the court by ratifying the treaty while the lawfulness of doing so without a referendum was still in issue before the court. The Prime Minister, however, acted promptly to remove our concern by making clear that ratification would not take place before the judgment was handed down.
In the event, the decision of the court is itself clear. We have found nothing in the claimant's case to cast doubt on the lawfulness of ratifying the Lisbon Treaty without a referendum."