My Lords, the genesis of this debate is at least in part the evidence that the former President and current President of the Supreme Court gave to the Constitution Committee of your Lordships’ House. We had a good debate in Committee. It is clear that the judges wanted clarity as to how they should approach decisions of the European Court of Justice post Brexit, perhaps not least because of the difficulty they had relating to the Human Rights Act in determining what “taking into account” meant. Clarity would certainly have followed if they were told either to follow or to ignore the decisions, but that would not have been sensible or what the Government wanted.
As a result, we were engaged in something of a struggle to find the right formulation. The word “appropriate” in the original Bill received an almost unanimous no. “Relevant” is clearly important, but in some senses it is hardly necessary because the court will not take into account a decision that is irrelevant. I tabled an amendment, which is before the House, saying “relevant and helpful”. I readily concede that “helpful” is not a word that often finds its way into statute. However, I was quoting precisely what the noble and learned Baroness, Lady Hale, recently said about how the court would regard, for example, foreign
law and whether it would follow it because the reasoning was persuasive, rather than because it was bound to follow it.
Therefore, “relevant” on its own is, frankly, suboptimal, but I have been nevertheless persuaded by what my noble and learned friend said. It is the result of a number of heads being put together and the best conceivable solution being found. I was particularly reassured by his answer to the four points raised by the noble Lord, Lord Pannick, not least his answer to his fourth point about the position of the Lord Chancellor, which I am sure everybody in this House would support.