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Lord Falconer of Thoroton had given notice of his intention to move Amendment No. 30:

The noble and learned Lord said: My Lords, this amendment has been pre-empted. It was to make sure that there should be proper disclosure to the court. However, in the light of the amendment that has just been agreed to, this amendment cannot now be made.

[Amendment No. 30 not moved.]

[Amendment No. 31 not moved.]

Lord Falconer of Thoroton moved Amendment No. 32:

"Application for anonymity for controlled person 4A"

The noble and learned Lord said: My Lords, this amendment is a drafting amendment. It clarifies which paragraphs and sub-paragraphs to the schedule deal with anonymity issues. For that reason I urge noble Lords to accept the amendment. I beg to move.

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 33:

(8) "Rules of court under this paragraph in relation to proceedings in England and Wales—
(a) must be laid before Parliament after being made; and
(b) if not approved by a resolution of each House of Parliament before the end of 40 days beginning with the day on which the order was made, cease to have effect at the end of that period."

The noble Lord said: My Lords, the purpose of this amendment is to impose a parliamentary involvement in the rules. The original provision was that the rules would simply involve the negative resolution procedure which applies to rules of court generally. The Delegated Powers and Regulatory Reform Committee recommended strongly that the matter should be dealt with by the affirmative resolution procedure. The noble and learned Lord the Lord Chancellor wrote a letter in response to that pointing out that it would be necessary—I quite accept that it is necessary—for the rules to come into force as soon as the Act itself comes into force, and that therefore there would be no time for the affirmative resolution procedure.

In those circumstances I recall that there is what I might call an emergency version of the affirmative resolution procedure which I recollected having seen somewhere before. I discovered that the most recent place I had seen it was in Clause 5(5) of this Bill. The emergency procedure is that the order comes into force as soon as it is made but it then has to be laid before Parliament and ceases to have effect 40 days after the date when it is made unless it has during that period been approved by a resolution of both Houses. I understood from what the noble and learned Lord said
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earlier that the Government intend to accept this amendment. Therefore, I think I need say nothing further about it. I beg to move.

Lord Dahrendorf: My Lords, if all Members of your Lordships' House read the report of the Delegated Powers and Regulatory Reform Committee very carefully, they will notice that the committee said that an affirmative resolution procedure should be chosen. We were well aware of the urgency and therefore of the need to use the emergency procedure which has just been described by the noble Lord, Lord Goodhart.

I add for the record that it would have been improper for the committee or its chairman to accept the invitation of the noble and learned Lord the Lord Chancellor to engage in negotiations as it were because it is our task to report to the House. Once we have reported to the House, it is for the House to decide. Naturally, members of the committee are not displeased when they discover that their recommendation has in one way or another been adopted.

8 p.m.

Lord Kingsland: My Lords, my name is also on this amendment, and for the reasons given by the noble Lord, Lord Goodhart, we entirely support it.

Lord Falconer of Thoroton: My Lords, I should make it clear that I agree with what the noble Lord, Lord Dahrendorf, said. There is no question of negotiations in these matters. The Delegated Powers Committee says what the position is and individual government departments then respond, or not, to this House, as they see fit. I accept the noble Lord's view on that.

I am very grateful to the noble Lord, Lord Goodhart, for tabling this amendment and I accept that it should be made. There is a slight wrinkle in it now that the rules are being made by the Lord Chief Justice, who is not a Minister, but the amendment should be made now and, as I have indicated privately to the noble Lord, Lord Goodhart, if the other place replaces the Lord Chief Justice with the Lord Chancellor the problem will not arise and if the Lord Chief Justice remains, then we may have to have some conduit. But we accept the amendment in principle and we think that the right course is to make it now so that what this House wants is clear.

On Question, amendment agreed to.

The Duke of Montrose moved Amendment No. 34:

The noble Duke said: My Lords, in speaking to Amendment No. 34 I shall speak also to Amendment No. 35.

As noble Lords will perhaps remember, at a rather late hour last night I expressed my interest in these matters, even though I did not move some similar
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amendments at that time. That was largely because the noble and learned Lord the Lord Chancellor had spent some time that evening expressing the reliance and value he placed on the powers, position and person of the Lord President in the courts. Therefore, I thought it better to consult Hansard to see how that applied to the amendments that I had tabled at that time.

This amendment ensures that in Scotland the Lord President, Scotland's most senior judge, will determine the use of advisers for those proceedings. It also probes the function and role that advisers are anticipated to have in this context. Paragraph 5 to the schedule provides for the court to call in one or more advisers appointed by the Lord Chancellor. If such advisers are to be used in Scotland, the Law Society of Scotland suggests that the Lord President should be responsible for their appointment. The society questions why it is necessary for a court of law to appoint such advisers in these circumstances, their relationship to the court and their effect upon the impartiality of the proceedings.

I believe that one of the areas where the Lord Chancellor might wish to appoint advisers is on matters of intelligence, but if he can form a judgment that an intelligence adviser is needed, why is that not within the powers of judgment of the Lord President? Or, if the Lord Chancellor has to be the one to appoint advisers, should appointments not be subject to acceptance by the Lord President, who is the authority for the conduct of the courts? I beg to move.

Lord Falconer of Thoroton: My Lords, as I made clear, I am second to none in my admiration of the noble and learned Lord the Lord President.

This paragraph deals with appointing and paying lay advisers. The Bill specifies that the Lord Chancellor should appoint lay advisers because there are already people who play an equivalent role in the Special Immigration Appeals Commission and it was therefore thought appropriate that someone with experience of such appointments should make the appointments.

As far as paying lay advisers is concerned, I have not suggested that the Lord President should pay lay advisers and I suspect that he would not regard Amendment No. 35 as particularly helpful.

I have carefully considered the points raised by the noble Duke, but I think that it is more sensible to leave these matters to the Lord Chancellor. I think that the Lord President would thank the noble Duke if he did not press the amendments that ask him to pay for lay advisers.

The Duke of Montrose: My Lords, that was a revealing and interesting response. In due course, we may find out in which areas these advisers are likely to be called upon. In the light of the noble and learned Lord's response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
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[Amendment No. 35 not moved.]

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