My Lords, many Members of your Lordships’ House will understand that I very often come to debates on legal matters in order to make sure that legally trained people do not have it all their own way. I have always felt it a danger of this House that legal issues are debated by judges, who, it is often suggested, may have ulterior motives. I speak today because I think the judges are entirely right, and the concern that I have is a concern for my own historic profession of politician.
I well remember the occasion on which I was able to use the fact of judicial review to get my civil servants to understand why I would not accept a particular appeal on a planning matter. It was because it was quite clear to me that the very powerful interests, whose infrastructure aim I entirely approved, had failed in their duty to look for alternatives to the proposal that they were putting forward. They had not, therefore, fulfilled the law. Now, sometimes it is easy for a Minister to make such a decision, but sometimes it is inconvenient. It is
important that embarrassment and inconvenience should not be allowed to go so far that it means that Ministers make decisions which are unlawful. Somebody has to decide when a decision is lawful and when it is not. That is what judicial review is about; it is a very simple concept.
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I am sad today to disagree with my noble friend Lord Horam, with whom I do not think I have ever disagreed on any subject, even at a time when he was not a member of the Conservative Party, but I think that my noble friend has misdirected himself—if I may use a phrase which I understand is widely understood by legal persons. My noble friend referred to the importance of a whole range of infrastructure projects. I happen to agree with him that they are changes that we need, but I still think that it is unacceptable if we have a system whereby, if the Government have behaved illegally, they cannot be brought to account in the courts.
I look at this particular change and I say to myself, “Well, first of all, I thought we had an argument with King Charles the Martyr”—your Lordships will see which side of the Civil War I would have been on—“about who was above the law”. Clearly, no one is above the law, but someone has to decide when they have tried to be above the law, and we cannot avoid that. We ask judges to make that decision, and it is a proper decision for judges to make. My problem with the changes which are proposed in Clause 70 is that we are asking the judges to make an improper decision. We are saying, “Do not make the judgment as to whether this is lawful or unlawful”. We are saying, “Make the judgment that, if the Minister had acted in this way, the outcome would be the same whether it were lawful or unlawful”. I do not think that that is a judicial decision at all; that seems to me a matter of opinion. It is very dangerous, as my noble friend Lord Tebbit would agree, to give judges the role of making a decision as vague as that. They are after all supposed to be judging not what is but what might have been. My own experience is that judging what might have been is a very dangerous activity. Most of us would be paralysed in our lives if we thought about what might have been if we had done something different.
It is not therefore sensible to ask judges to make a decision other than the proper judicial decision about whether the law has been carried out. “Well”, say the Government, “we are not stopping that. All we are saying is that judges should not be in that position unless the issue is important enough for it to merit that position”. This is where I really disagree with the Government. It is perfectly possible for a person to have been misjudged, for an issue to have been decided not in accordance with the law and for the outcome to be the same as had the law been carried through, but for it still to be an important part of freedom to ensure that the law is upheld. That is the issue of considerable importance.