I am grateful to the noble and learned Lord. The difficulty with that is that the Strasbourg jurisprudence recognises that although of course little weight should be given to these factors in many cases, there will be other cases where considerable weight should be given to these factors in the individual circumstances. They may be unusual or rare cases but the Strasbourg court is not saying that it is a rule that in every case involving family or private life, little weight shall be given to these factors. The difficulty about Clause 14 is that it purports to suggest that little weight must always be given to these factors, whatever the circumstances of the case. It does not say “other than in exceptional circumstances” or “normally”; it says that little weight shall be given to these factors. If the Minister wishes to come back on Report with an amendment that recognises a degree of judicial discretion, I shall be delighted to welcome it but that is what Clause 14 says at the moment.
The difficulty that the Minister faces is that he must recognise that there will inevitably be cases where a tribunal or a court, looking up at the facts of the case, decides that greater weight should be given to these factors. If I understood him correctly, the Minister accepted that if the court or tribunal decides in applying Article 8 that more than little weight is required to be given to these factors, then Article 8 must prevail. So Clause 14 is simply illogical and self-contradictory. It does not even achieve what the Minister says it is designed to achieve.
In introducing this group of amendments, I said that the Joint Committee on Human Rights had been unable to identify any precedent for legislation telling the courts what weight to give to relevant factors. I do not think that the Minister or indeed the noble and learned, Lord Brown of Eaton-under-Heywood, with their combined expertise and experience, have pointed to any precedent upon which Clause 14 should be based. I think that this is a constitutional novelty, and we will be creating a very unfortunate precedent by telling the courts what weight to give to relevant factors, when that must depend on all the circumstances of the case.
I am sure that we will be returning to this topic on Report. I ask the Minister to reflect on this matter and to see whether it is possible to meet the concern that has been expressed today, without doing any violence to the object of Clause 14, by putting in some wording that recognises in the Bill the retention of judicial discretion in this matter. For the moment, though, I beg leave to withdraw the amendment.