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Lord Goodhart: My Lords, we too support the amendment moved by the noble Lord, Lord Kingsland. We feel it is very important that the making of the rules should be in the hands of the judiciary, and not be merely a matter of consultation. We also feel that it should be subject to parliamentary approval;
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that will come with our Amendment No. 33, in a later group. However, on this point, we entirely support the amendment that has just been moved.
Lord Falconer of Thoroton: My Lords, we have talked about this before. I would strongly recommend that we do not vote on it at this stage. There are three reasons why the Lord Chancellor should make the rules on this particular occasion. First, the Bill is not talking about the Lord Chancellor making the rules in the long term. Only on the first occasion is he proposing that these rules be made.
Secondly, in the circumstances that currently existwith the rules being put together quicklythere is much to be said for the Lord Chancellor taking responsibility for them at this stage. It is best that the Lord Chancellor commits himself, as I do, to ensuring that they are proper rules; rules to give a fair procedure, rules in respect of which he will consult with the Lord Chief Justiceas I am in the process of doing. It is most sensible that the Lord Chancellor should take that responsibility. If I cannot persuade noble Lords of that now, I hope I can persuade them that this is the best thing to do if I speak to them privately.
Thirdly, there is the matter raised by the noble Lord, Lord Goodhart. The noble Lord is right that these rules should be subject to parliamentary procedure. It is my intentionthough I have not yet been able to transmit it to the noble Lord, Lord Goodhart, for which I apologiseto accept his later amendment in relation to parliamentary procedure. Because of the timing, because it is better that the Lord Chancellor takes the responsibility, and because there is to be a parliamentary procedure, I earnestly ask noble Lords not to press this matter to a vote. Under all the circumstances, it would not be appropriate.
Lord Forsyth of Drumlean: My Lords, before the noble and learned Lord the Lord Chancellor sits down, could he deal with something? I am rather bewildered by that response, although I welcome the parliamentary scrutiny which he said he will concede. Could he explain why it is all right for the Scots to have a judge determining this and why it can be done within the timetable in Scotland, but the same cannot be done in England? That was the point which my noble friend made. The implication of what the noble and learned Lord the Lord Chancellor is saying is that something would go wronggiven the urgencyif it were left to a judge, rather than to the Lord Chancellor. Where does that leave Scotland?
Lord Falconer of Thoroton: My Lords, it is not a matter for this Parliament to determine what the provisions of the rules of the Court of Session can be in Scotland. Thanks to devolutionand this is a good thingwe do not have power in practice to intervene in a devolved area; that is, we do have power but we should not exercise it. I am quite satisfied, on the basis of what I have been told, that the rules of court that will be made in Scotland will be entirely satisfactory.
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Lord Lester of Herne Hill: My Lords, before the noble and learned Lord sits down, I gave notice to his office only this morning that I would ask whether there are draft rules that could be seen by the House. I was told that there were not. However, can the noble and learned Lord say whether there are draft rules in existence on which he is in the process of consulting the Lord Chief Justice? I think the noble and learned Lord just said that he was in the process of doing so. Is there some kind of draft which is being seen by the noble and learned Lord, Lord Woolf, at the moment?
Lord Falconer of Thoroton: My Lords, yes, there is. We are having to consult together on it. It is obvious to everybody in the House what the timing is, and obvious that England and Wales will be the focus of the initial orders. Everybody knows that the Part 4 powers come to an end on a particular datewhich is next Sunday. The truth is that there are drafts which have been sent to the Lord Chief Justice. I do not want, at this stage, to show what the drafts are without there first being some consultation with the Lord Chief Justice, which I think is the appropriate way of dealing with it.
Lord Forsyth of Drumlean: My Lords, just before the noble and learned Lord sits down, while I do not wish to detain the House, this is an important matter. I cannot get my mind around why it can be right to have one set of rules which apply in Scotland, and another set of rules which apply in England on a matter which concerns terrorism. I keep being told by the noble Baroness, Lady Scotland, that it is not a devolved matter. I understand, of course, that the rules of court are a devolved matter, arising because of what the Government did in respect of devolution.
Surely, if we have different rules north and south of the Borderand different treatment of people who represent a threat to the whole of the United Kingdomthat would be nonsense. Surely, the rules should be the same north and south of the Border, insofar as is practicable. If the principle is that north of the Border it will be done by a judgeand, with all due respect to the Lord Chancellor, not by a politicianwhy does that principle not apply south of the Border? I cannot understand it.
Lord Falconer of Thoroton: My Lords, the rules are made by different bodies in Scotland and England. The significance of what is happening in England and Wales at present is that the urgency is greater there than in Scotland, because it would be anticipated that orders would need to be made first in England and Wales. I have absolutely no desire to make the rules in Scotlandindeed, I have agreed with the noble and learned Lord, Lord Cullen of Whitekirk, that he, as the Lord President, will do so there. They might well differ in their precise format from those in England and Wales. However, the basis on which we operate is that
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there is a separate legal system in Scotland from that in England and Wales. We proposeand it has not been broadly challenged in this Housethat the separate legal systems should deal with the questions that the Bill poses to them. I strongly support the proposition that the precise procedure that they adoptsubject to the terms of the Actis a matter for each individual jurisdiction to adopt. That has always been the position between England and Wales, and Scotland. I believe it should continue for a long time to come.
Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his response. On the question of equivalence between ourselves and Scotland, my noble friend Lord Forsyth has simply added great weight to the argument that I advanced when opening the debate on this amendment. The noble and learned Lord the Lord Chancellor says that this will be the first and only time that the rules will be made by the Lord Chancellor. That may be so; however, this is the Bill we are looking at nowand the first and only time is the way that the rules will be made in relation to the Bill. So, with great respect, I do not believe that that is an argument against our amendment.
On the contrary, the Bill is being put through with great speed. It is even more important that somebody standing outside the political process, such as the Lord Chief Justice, should be taking the lead as a check that the Government have got due process absolutely right. There is not a shred of evidence on the Bill that the Government have really paid any attention to due process. That is not really surprising, since the Bill was intended for a system under the Secretary of State, and not the judge. Yet now that the judge is there, it must followas night follows daythat we have a proper set of rules, made by our most senior judge. Despite what the noble and learned Lord the Lord Chancellor generously said about Amendment No. 33, I wish to test the opinion of the House.
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