European Union Bill

Debate between Stephen Phillips and Wayne David

Monday 24th January 2011 Commons Chamber

[Mr David]

No, I will not give way.

I asked the House of Commons Library whether a judicial review was likely. The European Scrutiny Committee’s conclusion was that

“re-course to Judicial Reviews is a more illusory safeguard than the Explanatory Notes imply.”

That is important. Surely it would be sensible for the Government to set out clear criteria for reviewing the reasonableness of a Minister’s decisions. More importantly, the European Scrutiny Committee report tells us that the courts have already ruled that decisions by Government on whether to hold referendums are political decisions and that the courts have therefore been reluctant to get involved.

That was borne out by the Wheeler case in 2008, in which the divisional court was asked to review the previous Government’s decision not to hold a referendum on the Lisbon treaty. It concluded that the issue lay

“so deep in the macro-political field that the Court should not enter the relevant area at all”.

If that was the case in the past, it is certain to be the case in the future.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

Is not the distinction that the Bill envisages that, were a Minister to decide that something was not of significance, even though it was of significance, that could be reviewed by the courts in a judicial review? Surely the hon. Gentleman would agree that it is those provisions in the Bill that create the difference and distinguish the Wheeler case and that it is for that reason that the explanatory notes are to at least some extent correct.

[Mr David]

Part of the problem, as was mentioned earlier, is that we are talking about a Government making subjective decisions, and the courts have ultimately said that such decisions are political. Given the lack of clarity and the level of obfuscation in the Bill, my contention is that the courts are likely to come to exactly the same conclusion in future.