My Lords, I am very much in favour of the idea that lies behind the amendment of the noble Lord, Lord Trees, and Amendment 41A, which the noble Baroness has just addressed us to. However, I have a technical problem with the amendment. In making this point, I wish to make it absolutely clear that I am not in any way criticising subsection (1) of the proposed new clause in Amendment 40 or the idea that lies behind it. My point is directed at proposed new subsections (4), (5) and (6), which, as I think the noble Lord hinted at, are designed to exclude judicial review as a means of holding Ministers to account. As the amendment is worded, it is for the Parliament,
“exclusively in the exercise of absolute discretion, to hold”,
Ministers to account. I think that the word “exclusively” is there to make it clear that there is to be no other remedy except to raise the matter before Parliament.
I recall arguments about 15 or 20 years ago when there was a real risk that the Government of the day would put provisions into Bills excluding the possibility of judicial review. There were occasions when the judges made their position clear and they were very unpopular as a result. There was a real risk of the Government taking that measure, and I think that that risk was diminished through various representations made through the Lord Chancellor and others. Eventually it was established as a convention that the Government would not seek to exclude judicial review. They might limit it in some respects, as they have done, by the length of time that can elapse before a petition is
brought, and there have been other ways in which the opportunity for judicial review has been narrowed, but they have never excluded judicial review, because it is one of the essential protections of individuals against the state.
We are talking here not about people but about animals, and I can quite see that there is room for some difference, but I respectfully suggest that it would set an unfortunate precedent for us to pass a measure that excluded judicial review. If that were to be picked up later by a Government in areas where individual rights were involved, I think that we would greatly regret it.
I am sorry to raise that technical objection. I wish that we were not on Report but in Committee, where this matter could be sorted out. However, I feel it necessary to make that point clear at this stage.