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Lord Peyton of Yeovil: If it is clearly the noble and learned Lord's intention to reject the amendment, I will take it away and think about it and perhaps come back with a repetition on Report. First, it conveys an impression which is not very nice and, secondly, the words which would remain in the clause are quite sufficient to stop any kind of influence by Ministers anywhere, and this adds nothing. However, in the circumstances, I am content to ask leave to withdraw the amendment.
The noble Lord said: Amendment No. 9 is grouped with Amendments Nos. 10 to 13 and Amendment No. 16. Amendment No. 9 is intended to bridge what appears to me to be a gap between two positionsto call them "extreme" might be putting it a little highwhich are some way out of the middle ground. As I said, Amendment No. 9 is intended to bridge that gap, and so is Amendment No. 19, which was partly spoken to yesterday.
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In Clause 1(4) the Government state that the Minister must have regard tothe key words are "have regard to"the need to defend the independence of the judiciary, the need to provide support for the judiciary and the need for the public interest to be represented in decisions affecting the administration of justice. I believe that the words "have regard to" in the context are extremely and undesirably feeble. Regard can be had to all sorts of matters. For example, regard may be had to the outcome of next week's by-election.
Lord Goodhart: I was speaking in a general sense. The words "have regard to" do not indicate any priority for the defence of judicial independence over other factors. On the other hand, I believe that Amendments Nos. 10 to 13 go too far the other way by imposing duties on the Minister which appear to be justiciable. Amendment No. 16 goes further still because the use of the word "unlawful" makes it plain that the relevant duties are intended to be justiciable.
If that is a justiciable duty, it could be for the court to decide whether the Minister had provided the support needed by the judiciary in the event of a dispute. I do not know how, in those circumstances, one could possibly find an impartial court to decide that issue. But if one could, it would then extend the existing powers of the court to control powers of spending by the Government. That is an undesirable step towards government by judges rather than by elected representatives.
Amendment No. 9 replaces the words, "have regard to" with "respect" in relation to the independent judiciary. Amendment No. 19 creates similar wording in relation to the rule of law. I believe that "respect" is stronger than "have regard to". It creates a higher benchmark for the Minister to apply when he or she is making a decision, but it leaves that decision on issues such as the needs of the judiciary within the discretion of the Minister. It does not create an objective test that can be examined and enforced by the courts. I think that that is the right balance. I beg to move.
Lord Windlesham: Amendment No. 10 is tabled in my name also. I support what was said by the noble Lord, Lord Goodhart. It seems to me that "respect" is somewhat stronger than "have regard to". These are very fine distinctions and it is highly unlikely that we will find cases before the court in which the Secretary of State of the day has to justify the significance of the word that is used in the statute. On the other hand, in a way, these are demonstrative. They indicate the seriousness of purpose, the gravity, of the clause. I would hope that the noble and learned Lord the
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Lord Chancellor might be willing to consider them very carefully. If he believes that there are substantial differences in practice, perhaps he would tell us.
Viscount Bledisloe: Amendment No. 10, which appears also in my name, does two things. First, it incorporates into Clause 1(4) the rule of law point. At this stage that is inappropriate because a decision was not reached on that last night. Therefore, I cannot press Amendment No. 10 today. However, more importantly for this purpose, it deals with the question of the right word. I could not agree more with the noble Lord, Lord Goodhart; the words "have regard to" are ridiculously mealy-mouthed for the duty to defend the independence of the judiciary.
I do not think that the question of the change of wording in any way affects justiciability. That matter is dealt with by Amendment No. 16, which I apprehend the noble and learned Lord, Lord Lloyd of Berwick, will want to deal with separately, rather than in this group.
Will the noble and learned Lord the Lord Chancellor do two things: first, accept that "have regard to" is too weak; and, secondly, agree to consider what the appropriate phrase is to make the provision more meaningful? Whether or not one wants justiciability, this is not the right way to get it, without risking incorporating justiciability by the back door. I do not think Amendment No. 10 does that, but the noble Lord, Lord Goodhart is concerned about it.
Some form of wording must be put in Clause 1(4) which is vastly stronger than just saying, "Yes, we take the independence of the judiciary into account, but we take into account a lot of other things. We have taken that into account, but we have dismissed it and come to this conclusion although it will grossly infringe the independence of the judiciary". The phrase is just far too weak.
The Earl of Erroll: Although a layman, I have listened to many debates on this kind of subject. I totally agree that "having regard to" is far too weak. It is the equivalent of saying "must consider". One says, "Well, I have considered it", but with no duty as to the outcome of that consideration. The consideration has to be in a particular direction. I think that certainly one, if not more, noble and learned Lord made that same point in the report. I think that the phrase is far too weak and that something must be done about it with one of the amendments.
Lord Lloyd of Berwick: I support what has just been said by the noble Earl, Lord Erroll. I stand by the spirit of Amendment No. 10, even though at the moment it may not be possible to agree it.
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Lord Mayhew of Twysden: I support Amendment No. 10 and distance myself from Amendment No. 9. The noble Lord, Lord Goodhart, a few minutes ago spoke of the need to find a word which was justiciable. It is awfully difficult to think of how the verb "to respect" can be justiciable.
Lord Goodhart: I apologise to the noble and learned Lord. I was really raising quite the opposite point: I was seeking a word which I regarded as having a symbolic value, but which was not justiciable.
Lord Mayhew of Twysden: This is all rather head of a pin stuff. I think that Amendment No. 10 is better, for the reasons that have been advanced, although I am always a little diffident about legislating for all necessary steps to be taken. However, since the amendment has the support in particular of the noble and learned Lord, Lord Lloyd of Berwick, I am prepared to go along with it with some confidence, unless the noble and learned Lord the Lord Chancellor can come up with a word that meets all these objections.
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