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Lord Lloyd of Berwick: At some stage—

Viscount Bledisloe: May I be allowed to finish what I started?

Lord Lloyd of Berwick: Perhaps I may suggest to the Committee that the noble Lord, Lord Peyton, should move Amendment No. 6, to which I should certainly like to add a comment.

Lord Carter: The noble Lord cannot move Amendment No. 6. He moved Amendment No. 5 and that must be dealt with before we reach Amendment No. 6. As they are grouped, it would be easier if the two amendments were debated together and then the noble Lord could dispose of Amendment No. 5, followed by Amendment No. 6.

Lord Peyton of Yeovil: I think that it is the will of the Committee that I speak briefly to Amendment No. 6. I am very happy to do so, and I apologise to all concerned if I made it in any way awkward for them by my failure to do so before.

The words,

are, first, rather suggestive that people have a habit of making secret approaches to the judiciary. I think that that is totally unjustified. Secondly, without those words, the clause means all that one wants it to mean, and I cannot see that anything is gained by adding those words to it. I shall be most interested to hear what the noble and learned Lord says, but I cannot think that the words are necessary and it is my intention, in due course, to move that amendment.

Lord Lloyd of Berwick: As my name is added to Amendment No. 6, I, too, want to say that I cannot see any reason that the obligation under Clause 1(3) should be restricted to cases where the Minister has "special access to the judiciary", whatever those words may mean. So far as I am concerned, they do not have any obvious meaning.

In any event, the restriction is undesirable because it may suggest that Ministers can seek to influence particular judicial decisions when they are not taking advantage of special access. Is that really what the Government intend? I am sure that that is not the case.

Viscount Bledisloe: I can now complete what I was trying to say. I would put the point rather higher than the noble and learned Lord, Lord Lloyd. If one says that Ministers cannot seek to influence particular judicial decisions through any special access to the judiciary, one is accepting that they can seek to influence particular judicial decisions by any other
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means. There is only one possible way in which it is proper for the Government to seek to influence particular decisions and that is by addressing the court either as a party to the case or as an amicus curiae if they are allowed to appear as such. But there is no other way in which it is proper for the Government to seek to influence particular judicial decisions. The words should be removed from the clause and then we would not need the words in Amendment No. 5.

The Earl of Erroll: First, as a layman, I have listened to many debates in this House and I have always gathered that when extra words are added to a measure in this way, thus qualifying it, that immediately implies that anything not included in those words is then allowed. Therefore, as it stands, the clause specifically allows other influence to take place.

Secondly, I think that the wording is intended to deal with the concordat, which we do not know much about. It is trying to say that in the concordat between Ministers and the judiciary there should not be any mechanism by which one can influence the other. I was concerned when I heard about the concordat earlier because I thought that it should be subject to parliamentary scrutiny. At present, the judiciary should be responsible to Parliament and not to a Minister in another place. We are not talking about a true separation of powers, and I think that this is one of the hidden, underlying examples of where the powers are not separated because we have a concordat that is not subject to parliamentary scrutiny.

Lord Carter: With regard to—

Lord Campbell of Alloway: Amendment No. 6—

Lord Evans of Temple Guiting: Perhaps we may hear from my noble friend Lord Carter.

Lord Carter: To answer the point made by the noble Earl, the concordat is printed in full as an annex to the report. The amendments that needed to be made to the Bill as a result of the concordat were either inserted into the Bill in the Select Committee or the Lord Chancellor said that he would do so.

The Earl of Erroll: I thought that a concordat could be changed subsequently without parliamentary scrutiny—that is, it is a side agreement. Although the concordat may be as it is at present, future changes to it would not necessarily be subject to parliamentary scrutiny. But I do not understand these matters properly.

Lord Carter: I am sure that if elements of the concordat were not in the Bill and it needed to be changed, it would be fully debated. If they were in the Bill, one would need primary legislation in order to alter it.

Lord Campbell of Alloway: I rise only to support Amendment No. 6—for some of the reasons that have been given.

Lord Falconer of Thoroton: I start by making two procedural points. First, the speech made by the noble
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Lord, Lord Peyton, yesterday was a little acidic, but I have always thought that the point of the noble Lord was his acid. I hold him in the highest possible affection and did not take any offence whatever yesterday in relation to his speech.

Secondly, with regard to the Committee stage yesterday evening and, again, this afternoon, perhaps I may say as a spectator—I feel like a bit of a spectator in this—that our proceedings are becoming somewhat private. No one appears to be able to make a speech from beginning to end; everyone who speaks is primarily a member of the committee; and everyone else who then intervenes is treated like an outsider. I do not know what other noble Lords think, but it may be more sensible for us to proceed in the conventional, rather than the unconventional, way.

I turn to the points raised in the two amendments tabled by the noble Lord, Lord Peyton, and, first, to the words,

The subsection was expressed in that way precisely for the reason given by the noble Viscount, Lord Bledisloe. There are cases in which, quite legitimately, a Minister will wish to influence the court. As the noble Viscount, Lord Bledisloe, said, one such occasion is when he is appearing as a party in the proceedings. He will seek to influence, and that is why the clause is worded in that way.

The noble Lord, Lord Crickhowell, expressed the fear that public campaigns might be used to seek to put pressure on the judiciary. That is dealt with by the Contempt of Court Act. The courts have been robust in stating those things that they can resist. This is slightly different. Where juries are involved, the courts have quite rightly been much more susceptible and tried to ensure that no sort of campaign is started. But broadly I do not think that there is much dispute between us as to what we seek to achieve; namely, no undue influence on the judges; that it is plainly quite legitimate to argue one's case in court; and not to start campaigns or behave improperly in relation to that, but that is dealt with by the Contempt of Court Act.

Amendment No. 5 seeks to insert the words,

Following up what the noble Earl said, it is best not to insert words that are unnecessary. To insert those words after the words "must not" would not add anything to the Bill. "Must not" is absolute. It does not need further clarification. Amendment No. 5 is unnecessary to achieve the purpose that the noble Lord wishes to achieve. In those circumstances, I hope that the noble Lord will feel able to withdraw his amendment.

Viscount Bledisloe: In the light of what the noble and learned Lord said about representations, would he be prepared at the next stage to delete the words,

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and insert, "save by legal representations made in court"?

Lord Falconer of Thoroton: I think that it is okay the way that it is done.

Lord Peyton of Yeovil: I am grateful to the noble and learned Lord. I am not really surprised. I agree that on the whole the words do not add anything. I just wanted them to underline what the Government have said. After all that has happened, one sometimes has doubts, if I may put this gently, as to the durability of the Government's intentions. I say no more than that. I am content to beg leave to withdraw the amendment. However, before I do that, as Amendment No. 6 is grouped with this amendment, I am not at all sure what the noble and learned Lord said; that is, whether he is willing to accept Amendment No. 6 or whether he will take it away and think about it. I did not gather what his intention was.

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