Happily, we are not discussing the European courts at the moment. In case anyone did not know, I am entirely in favour of our membership of the European Union. I think we should keep the defence of people’s freedom by the Bill of Rights that we have in the European Union, invented after Winston Churchill. I could go on for a long time, but I will not be led there by my noble friend. The truth is that we are talking about British law, British judges, British courts and the British defence of freedom that is judicial review. I hope that your Lordships’ House will remember the words of the noble and learned Lord, Lord Woolf, when he remarked that this is part of the structure that saves us from having to have a written constitution. This is the mechanism that we have invented. As a mechanism, every now and again it is annoying to Ministers. That should be a judgment of its correctness. That is what it is there for: to make Ministers annoyed enough to make sure that they do the right thing. In that sense, I have in the past—as is bound to be true after 16 years as a Minister—been annoyed by the facts of judicial review, but it made me a better and fairer Minister because I had to think of the law and not of my opinion at a particular point.
I want to say just one other thing. My noble friend Lord Horam said we should trust the judges. That is precisely what those of us who support the amendments are asking. We are saying that we should not say the judge shall not; we should say that the judge has the right to decide. We think there ought to be discretion but the Government are saying that there should not. I find that unacceptable. I do not want the division of powers that one sees in the United States. I want the kind of elegant association of powers that we in this country have worked out over the years. However, an elegant association of powers is held in place by very delicate mechanisms, which we fiddle with at our peril. This is one of those very delicate mechanisms that we will not fiddle with without very considerable effects. Just in case anybody heard the comment about left-wing people misusing this, I remind the House of what happens in the United States where it is almost universally right-wing people who make life almost impossible for elected Governments by using their system of separation of powers. How extremely clever we have been over the centuries to produce something that works so well, is so delicate and interrelates so well. Having done that over centuries, let us be a bit careful about being too clever with it now.