My Lords, as the noble and learned Lord, Lord Irvine, was speaking, I was trying to cast my mind back to a certain event. I think the noble and learned Lord said that politicians should take action only after due and proper thought, and I seem to recollect an occasion when this House was impaired in its meeting because the Prime Minister had accidentally kicked the Lord Chancellor off the Woolsack. I wonder whether that was what the noble and learned Lord had in mind when he was speaking just now; certainly it is what came back to my mind.
I find myself concerned about a number of matters before us today. The noble Lord, Lord Pannick, talked about the “legality” of Ministers’ words and about “unlawful conduct” of Ministers. The noble and learned Lord, Lord Woolf, spoke of “unlawful actions”. That is all fine. I think that there should be the capability for judicial review in such circumstances. But those circumstances conform to my understanding of the only three grounds on which judicial review used to be granted: that the act or decision of the Minister or official concerned was contrary to law; that the act or decision was ultra vires; or that no reasonable man could possibly have reached such a decision.
I would be much happier if I could be assured—not only by my noble friend who will answer the debate, but by some of the distinguished lawyers who have spoken—that that remains the case. I have had the impression recently, when reading about some cases in which judicial review has been granted, that a judge has decided that a rather better decision might have been the one that he proposes to make now. I am glad that the noble and learned Lord, Lord Woolf, shakes his head at that, but I think that he understands a little of my anxiety, and that of a number of others. It seems to me that it would not be right for judges to substitute their judgment for that of officials or Ministers who lawfully took a decision.
Even worse, the noble Lord, Lord Beecham, quoted a judge who said that he thought that Parliament might not have the right to change the law that it had made. That seems a very peculiar doctrine. In that case, who does have the right to change such a law? Would it be the judges, or would it be, I do not know, a mob in the street, perhaps? Surely it is only Parliament, which has made a law, that has the right to change it.
The noble and learned Lord, Lord Woolf, spoke of the dangers of elected dictatorship. Of course those dangers are there. I do not like elected dictatorships, but in this country there is a very good mechanism for getting rid to them—at the next election. I would rather do it that way than have some judicial process for getting rid of them. I hope we shall hear no more talk about that, because I do not like unelected dictatorships either, even if they sit in law courts.
I have some very clear worries about the manner in which judicial review has developed in recent years. I hope that we will be able to come to a conclusion here, all of us, that we should go very firmly back to those three criteria alone and no others—no talk about judges perhaps deciding that there is an elected dictatorship and something should be done about it; otherwise, their places on their benches might be at risk.