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Lord Goodhart: We have a number of amendments in this group. Amendments Nos. 173, 174 and 175 were intended to produce a slightly different solution from that proposed in Amendment No. 172. The Lord Chancellor, while still involved in making the rules, should be required to obtain the consent of the Lord Chief Justice rather than merely to consult him. However, having considered this matter further, we have decided not to move our amendments but instead to support Amendment No. 172, moved by the noble Lord, Lord Kingsland.

Amendment No. 176 proposes that there should be the use of the affirmative resolution procedure which is strongly advocated by the Delegated Powers and Regulatory Reform Committee and which the noble and learned Lord, Lord Mayhew, has just supported. However, we have considered the need, which I can understand, for rules to be brought into operation very quickly indeed, which would conflict with the need to make use of the ordinary form of the affirmative procedure.

We therefore intend to put down an amendment on Report which will introduce an unusual, but not unprecedented, form of affirmative resolution procedure for use in emergency situations. That means that the noble and learned Lord the Lord Chancellor will be able to bring his rules into force immediately the legislation comes into effect, but those rules will cease to have effect unless they are approved by a resolution of both Houses within 40 days. That seems to strike an appropriate balance between allowing the noble and learned Lord to introduce the rules with all necessary speed while requiring the use of an affirmative resolution after the event by both Houses and not simply having to rely on praying against the negative resolution procedure.

The Duke of Montrose: I support my noble friend Lord Kingsland in this amendment. I am very much in favour of the rules being made by the Lord Chief Justice after consulting the Lord Chancellor. However, I rise with slight diffidence because I wish to raise another point.

Tonight's rather strange groupings have a certain creative element to them. My noble friend's Amendments Nos. 193 and 195 are consequential on this one. As it
 
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happens, I have two amendments in that group which are rather similar. Going by the experience of the noble and learned Lord the Lord Chancellor this evening, one could very easily find that if you blink more than twice, the Liberal Democrats will have moved an amendment which would remove the clause to which you wish to speak.

If and when my noble friend gets the chance to move Amendments Nos. 193 and 195 to replace "Lord Chancellor" with "Lord Chief Justice", I am hoping to move amendments proposing that in Scotland it should be the Lord President.

10.30 p.m.

Lord Falconer of Thoroton: Beginning with the making of the first set of rules in relation to the control order procedures, the provisions made in the Bill involve the Lord Chancellor, after consulting with the Lord Chief Justice, making the rules for both England and Wales and for Northern Ireland. In Scotland, the Lord President makes the rules. That procedure is proposed because, in relation to each of the three jurisdictions, the rules are, in practice, required to be effective as soon as possible. The Part 4 powers lapse at midnight on 13 March, which is Sunday evening.

As for the proposal that if the Lord Chancellor makes the rules he should consult everyone that the Civil Procedure Rules Committee would consult in England and Wales and the Northern Ireland Civil Procedure Rules Committee would consult, that is not remotely practical. It is important that rules are in place. The critical question seems to be what is the best way to get there in a way that produces rules, as the noble Lord, Lord Kingsland, said, that are, in practice, judicial rules rather than in any way motivated by politics.

There are rules for the SIAC hearings at the moment which, although not identical, will be quite similar to the rules that will be applied in relation to this procedure. The best and most practical course in relation to getting rules that everyone consents to in England and Wales and in Northern Ireland, is for the Lord Chancellor to propose them, for the Lord Chief Justices in both those jurisdictions to consider them and then for all of us to reach agreement. I am sure that that is what will happen in practice. That will produce rules that are acceptable. But, as I said, these rules will need to be looked at very quickly thereafter because these are rules ultimately that we envisage being made by the Civil Procedure Rules Committee in both those countries.

How do we get to that point? The right course is for us to agree upon a procedure for the purposes of Parliament that the rules can come into effect straightaway but that they can, in some way or another subsequently, be reviewed by this House—the sort of procedure proposed by the noble Lord, Lord Goodhart. There could be an affirmative resolution procedure of an unusual sort, which the noble Lord suggested, or a negative procedure whereby this House could pray against the rules. I am not clear at the moment what the difference would be in
 
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practice, although I notice that the noble Lord, Lord Garden, is shaking his head, so he is aware of what the difference between the two is.

I cannot see at the moment what the difference is, but we would need to consider some process by which the rules come into effect straightaway but that both Houses have a chance to look at them.

While that process is going on, no doubt the normal procedures will be gone through for the Civil Procedure Rules Committees in Northern Ireland and in England and Wales to produce appropriate rules. That way, we have covered the short-term problem. We have allowed Parliament to have a look at the rules and we have a process in place whereby eventually we get more permanent rules that apply.

Scotland is in a separate category. That was made clear in the course of the debates before the dinner hour adjournment. The Lord President will make the rules there, not the Lord Chancellor, on the basis that the rules of procedure of the Court of Session are a reserved matter not a matter for the Westminster Parliament or the Westminster government. The Lord President is confident he can produce rules within the time required. If further amendments are required, it is a matter for the Lord President to determine how those are dealt with.

This is a practical problem. I have sought in my proposal to accommodate all ranges of opinion around the House. It is not perfect but it is a sensible and workable solution. In those circumstances, I invite noble Lords to withdraw their amendments.

Lord Kingsland: I am most grateful to the noble and learned Lord the Lord Chancellor for what he has said. I will withdraw my amendment tonight but I do not undertake not to bring it back tomorrow.

I am most grateful for the amendment that has been tabled by the noble Lord, Lord Goodhart, with respect to parliamentary approval. It seems to me that it would work. I can foresee no circumstances in which we would not support it tomorrow. I shall reflect carefully on what the noble and learned Lord, Lord Mayhew, said about all these matters to see whether we should add or alter our draft in any way.

One thing that I have gleaned from what the noble and learned Lord the Lord Chancellor said tonight is that he is keenly aware of the importance of this matter and I think has expressed an intention to be as helpful as possible. However, the fact is that these rules will be decided judicially in Scotland and Northern Ireland, but essentially politically here. I accept that the Lord Chancellor does not have the intention of injecting a political ingredient.

Lord Falconer of Thoroton: I did not even seek to assume that the noble Lord was not abusing me in some way. I simply said that Northern Ireland is in the same category as England and Wales. Northern
 
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Ireland and England and Wales are being dealt with by the Lord Chancellor; the Lord President is dealing with Scotland.

Lord Kingsland: I misunderstood what the noble and learned Lord said earlier. But despite all that we still believe that these rules must be seen to be judicially made. In those circumstances we find our solution inescapable. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mayhew of Twysden had given notice of his intention to move Amendment No. 172A:

The noble and learned Lord said: I listened with my usual attention to the noble and learned Lord the Lord Chancellor. He dismissed as being fairly impracticable my suggestion that the Lord Chancellor when making these rules should be under the same obligation as is imposed upon the Civil Procedure Rules Committee. If it is impracticable, it is solely because of the absurd and grotesque speed with which this legislation is being pursued. That point has been adequately laboured tonight and I shall not repeat it. In the circumstances I shall not move this amendment or Amendment No. 176A.

[Amendment No. 172A not moved.]

[Amendments Nos. 173 to 176A not moved.]


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