I ask the same question of the noble Lord, Lord Tebbit. If he thinks that Ministers, not judges, should make the judgment, then we are in wholly different places. The answer to the question of the noble Lord is that in the end it is for Parliament to make the laws, it is for the Executive to administer the laws, but it is ultimately for the courts to decide and to declare what the law is when it comes to public law, as for any other kind of law.
It is important to emphasise, for the benefit of the noble Lord, Lord Horam, in particular, that there is no automatic right to judicial review. It has to be applied for. It is granted only if the administrative court is satisfied that the application raises a properly arguable case by someone with a sufficient interest—not a mere busybody—who has exhausted any effective alternative remedy, such as a planning appeal.
The application has to be made without inordinate delay. The concerns of the noble Lord, Lord Horam, about delay are, therefore, met by the strict requirements of the administrative court. If the application succeeds, the court has a broad discretion that the remedy is necessary and proportionate. It will not permit the procedure to be abused. It will punish any abuse of procedure with an appropriate cost order.
If, as the Justice Secretary contends,
“‘left-wing’ campaigners have exploited the process of judicial review to frustrate government initiatives”,
—dear me!—the courts have ample powers to ensure that judicial review is not abused, including making cost orders against those who abuse the procedure.
It is an ancient principle, probably going to back to Magna Carta, that under the common law, which is at the heart of our system, no one shall be judge in his own cause. In seeking to interfere with the powers of the courts, and to place obstacles and handicaps in the way of application for judicial review, the Justice Secretary and the other Members of the Government—Liberal Democrat as well as Conservative—are judges in their own cause. They have a political self-interest in what is in Part 4.
But this House is in a different position. We have a vital constitutional role in protecting the rule of law and the accountability in law of Ministers and of government departments and of all public authorities. The House has the opportunity this afternoon to fulfil that role by placing the wider public interest against party-political interest. That is why, though I do not enjoy being a rebel, if there are Divisions on any of these amendments in the name of the very distinguished supporters of this one, I shall cross the floor and shall vote with them.