Lord Lilley: My Lords, does not the fact that the Appeal Court has disagreed with the High Court, and within the Appeal Court the Chief Justice has disagreed with two of his colleagues, illustrate that essentially we have handed over to the judiciary subjective political decisions? I submit that that is bad for the judiciary and a derogation of the obligations of this Parliament. I appreciate that the Minister cannot suggest any change in that legal status from his position at the Dispatch Box, but will he recognise that there will be growing calls, not just from me, for Parliament to take back the right to make these decisions and relieve the judiciary of an unwelcome role which politicises it?
Lord Murray of Blidworth: I thank my noble friend. As the Lord Chief Justice made clear in his summary of the judgment which he gave earlier today, the decision taken by the court was founded on a perception of a possible breach of Article 3 of the European convention. Under the effect of the Human Rights Act 1998, that meant that the decision was unlawful. It is unquestionably right that that was the basis for the Court of Appeal’s decision today. Be that as it may, the point remains that even that thin basis for the decision was made by only two of the three judges. For that reason, it is entirely appropriate that the Government appeal the decision.