My Lords, I rather agree that “appropriate” is not particularly desirable. I wonder whether putting “helpful” in Clause 6(2) would more accurately reflect the way that courts generally consider law from other jurisdictions in developing the law—one always invites courts if they find a particular decision to be helpful—whereas I understand that “appropriate” is considered perhaps to have too much of a political charge. However, I do not wholly understand why the noble Lord, Lord Pannick, finds the initial words of Clause 6(2) rather offensive, where it says:
“A court or tribunal need not have regard”.
All that is saying is that they are not obliged to have regard—I do not think it says any more. I personally read no particular charge in it, and I think that the noble and learned Lord, Lord Hope, would agree.
There is something of an irony about these amendments, in that the only way to have real certainty would be to tell the court either to disregard it or to follow it. In a sense, we are dealing with an imperfect situation. We are trying, as the noble and learned Lord, Lord Neuberger, said, to craft something which helps judges by reducing any political element in their decision-making but which—I am sorry to use a political expression—allows our courts to take back control. In order to take back control, I am happy that they should have a great deal of freedom to do so without in any sense involving them in a political decision.
Amendment 56 from the noble Lord, Lord Pannick, and others is of course much longer than the original wording, with three subsections as opposed to one. Respectfully, I say that using words such as “relevant” is only quite helpful, because in any event a court will ignore matters that are irrelevant. I feel similarly about the word “significance”: a court will itself have to decide significance. That of course may offend the political element but, if something is insignificant, the court will disregard it in any event. Although I understand what lies behind this amendment, I am not sure that it really does the trick.
It is not just out of nominative loyalty that I turn to the amendment of the noble Lord, Lord Foulkes, but because he may be on to something. I agree with the use of “may”, which was endorsed by the noble and learned Lord, Lord Hope. I am not quite so sure about “persuasive”, but I will listen to what the noble and learned Lord says. However, I like the succinct nature of the amendment and it seems to me to allow our courts the freedom that we have, as it were, granted them by the decision that the country has made in the referendum, but nevertheless not to compromise them.