I am grateful to all noble Lords who have spoken in this fascinating debate. Clause 70 has been defended by the noble Lords, Lord Horam and Lord Tebbit, and by the Minister, whom I thank for his very full response to these amendments, on the basis that there is too much judicial review, it takes too long and is too expensive, and that something needs to be done about it. However, as so many of your Lordships have explained this afternoon, that fails to recognise the threat that Clause 70 poses to the rule of law. As we have heard, that is not something, as the Minister was suggesting, that only lawyers are concerned about.
For my part, I am perfectly prepared to accept greater powers for the courts to throw out abusive cases. I am happy that we should speed up the legal process and make it less expensive. My concern is that Clause 70 is a blunt instrument. It would impose a duty on the judge to dismiss cases which raise issues of public and legal importance. That is why Amendment 146 proposes that Clause 70 should confer a discretion rather than impose a duty; the Minister repeatedly referred to a “fair balance”, and that is a fair balance.
As the noble and learned Lord, Lord Woolf, said this afternoon, if the judge is to do justice in this important and sensitive context, he or she must retain a discretion so that judges can continue to decide issues of great public importance. That is what is at stake here. Should an Act of Parliament say that the judge has no power to rule that a governmental exercise of power is unlawful? With all due respect to the Minister, that is not a modest reform. I invite your Lordships to retain judicial discretion. The Minister spoke of mutual respect between Parliament and the courts. I think that mutual respect is best maintained by writing judicial discretion into Clause 70.
I am sorry that the Minister should suggest today that this House performing its vital role of scrutiny of the Bill by retaining judicial discretion is somehow an inappropriate challenge to the elected House. It is nothing of the sort.