Lords Sitting of 18 December 1995

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Bristol.

The Post Office: External Finance Limit
Lord Haskel Lord Haskel asked Her Majesty's Government:
Why the Post Office must remit £925 million to HM Treasury during the next three years, having previously agreed£534 million.
The Minister of State, Department of Trade and Industry (Lord Fraser of Carmyllie): My Lords, the £534 million to which the noble Lord refers is based on figures which are used for forward planning purposes and which are renewed each year in the public expenditure survey. The cash targets which the Post Office has now been set reflect an appropriate balance between the needs of the business and its ability to contribute to public finances.
Lord Haskel: My Lords, is the Minister aware that on 11th May 1995 the President of the Board of Trade said in another place:
"I am prepared to agree that in future we shall aim to set the EFL at about half the Post Office's forecast post-tax profit. I hope to make progress in that direction this autumn"—[Official Report, Commons, 11/5/95; col. 885.]
Perhaps I should explain what the EFL is to those noble Lords who, like me, do not know what it means. It means external finance limit, which is Whitehall jargon for how much money the Post Office pays over. Does the Minister agree that the Post Office was justified in accepting this statement for budgeting and planning purposes; otherwise, why would the Minister have made that statement? Can the Minister explain why, between May and November 1995, the Government have raised their demand for cash from the Post Office from about half to virtually all of its post-tax profit?
Lord Fraser of Carmyllie: My Lords, of course I am aware of the statement made by the previous President of the Board of Trade last May. The position is quite simply that, following on what was undoubtedly a difficult public expenditure round, no public body can be immune from the pressures on public finances. We had to balance the needs of the organisation with those of the public purse. The Post Office did extremely well last year with record profits of about£472 million. We take the view that it will be able to accommodate this additional call on what it has secured in profit.
Lord Campbell of Alloway: My Lords, can my noble and learned friend say whether or not the rumour is correct that it is the intention of the Post Office to raise the cost of postage stamps?
Lord Fraser of Carmyllie: My Lords, as I understand it, having had imposed on it a strictly negative external finance limit, the Post Office has indicated that it will
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want to look at a number of ways in which it can raise the money that it has to pay over. That will not be secured entirely by an increase in prices. It will be open to the Post Office to see what efficiencies it can achieve and what adjustments it can make to capital spending. That is certainly the public position which the Post Office has adopted.
Lord Shepherd: My Lords, putting it crudely, is it not right that the Post Office is being required to increase the cost of postage stamps not because of its inefficiency, but merely in order to balance whatever the Treasury requires in order to permit the Chancellor to make tax reductions at some later stage?
Lord Fraser of Carmyllie: My Lords., as I indicated at the outset, we need to balance the needs of the organisation with those of the public purse. It was a difficult financial round and we do not shrink from that: there has never been any attempt to do so. The decision has not yet been taken to raise the cost of stamps, but it is necessary to reflect that the current freeze on stamp prices, which expires at the very earliest in March next year, will have been the longest period of stability in stamp prices since the late 1960s. Given the level of profit that the Post Office secured last year, it seems to the Government that the Post Office is well enough positioned to ensure that the high level of efficiency it has achieved can be secured in the future.
Lord Mackie of Benshie: My Lords, if it seems to the Government that the Post Office is well enough provided with money for investment in the business, can the Minister give the Post Office's view? Does it agree with the Government's view?
Lord Fraser of Carmyllie: My Lords, I believe that the Post Office's attitude is fairly well known. Of course it would rather not pay over any money. It would make life very much easier for the Post Office if it had the totality of its profits to expend. However, it is reasonable enough, as others do, to contribute to the public purse. The Post Office has indicated that there are a number of ways in which it will achieve that figure. Some of it may be achieved by efficiency savings and there may be an adjustment a its capital programmes.
Lord Bruce of Donington: My Lords, is it not the case that what the Government are prevented from privatising they then pillage?
Lord Fraser of Carmyllie: No, my Lords, the Post Office has been required to pay over an additional sum next year and I believe that to be entirely appropriate. If it is being suggested that the Post Office should not have been required to do that and that other arrangements should have been made to secure the needs of the public purse, I should like to hear what they are. I understand that in another place the Opposition did not dispute the idea that we should take 1p off income tax.
Baroness Macleod of Borve: My Lords, is my noble and learned friend aware that there is grave disquiet throughout the country at the resiting of post offices? For instance, in two towns near me, one post office is

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now situated at the back of a haberdasher's and the other at the back of a grocer's shop, making it very difficult for elderly people, and pensioners in particular, to go to the post office.
Lord Fraser of Carmyllie: My Lords, I am, of course, aware that there have been a number of relocations of post offices throughout the country. However, I cannot see that any of those relocations, or the desirability or otherwise of them, is affected by the decision that formed part of the Budget. Although the noble Baroness indicates that she considers that in a number of cases such relocations have disadvantaged old age pensioners, there are other circumstances and other locations in which such changes have been widely welcomed as a significant improvement for such people.
Baroness Seear: My Lords, bearing in mind that we on these Benches opposed the cut in income tax, may I remind the Minister that there are other ways of raising public finances?
Lord Fraser of Carmyllie: My Lords, I do not think that I mentioned the party of the noble Baroness.
Lord Skelmersdale: My Lords, is my noble and learned friend as confused as I am as to why the Opposition complain about what is obviously a windfall tax?
Lord Fraser of Carmyllie: My Lords, my noble friend makes the point more elegantly than I could.
Lord Peston: My Lords, I did not realise that it was a windfall tax. Do we assume, therefore, that it will not be imposed again next year and that the Post Office will be allowed to keep future surpluses? If you believe that, you will believe anything. I also did not realise that the Government had admitted that this was part of the package which led to the cut of 1p in income tax. I thought that the Government had taken the view that these matters had nothing to do with each other, so I was interested to hear what the Minister said.
However, my main question is this: if the Post Office is such a marvellous milch cow—a £1 billion contribution to the Exchequer is quite a large sum of money—may I take it that we can forget about the desire of the previous President of the Board of Trade to privatise the Post Office because it is obviously much better to keep it in the public sector, to pull out those monopoly profits and to use them for tax cuts? Is that now the Government's policy?
Lord Fraser of Carmyllie: My Lords, the noble Lord asked first whether this arrangement applies only to next year. The answer is no. I think that the noble Lord will be aware from the statement that has been made that the targets are set not for one year, but always for three years. Those targets are £298 million, £317 million and £310 million over the next three years. I would not adopt the language which the noble Lord is prepared to use in describing the Post Office as a "milch cow". It has made significant profits and
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is an extremely efficient organisation. On that basis, it is only reasonable that it should make a significant contribution to the totality of public expenditure.

Legal Aid
2.46 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Who has authority to grant legal aid.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, decisions on the grant of civil legal aid are made by the Legal Aid Board. In criminal cases, the decision is taken by the court hearing the case but can be reviewed by the board where the court has refused legal aid on interests of justice grounds.
Lord Boyd-Carpenter: My Lords, in view of the great increase in the cost of legal aid over recent years, would it not be a good thing to restrict the number of people who are entitled to authorise it?
The Lord Chancellor: My Lords, some time ago I put out to consultation a Green Paper containing new proposals for legal aid among which are proposals about who might grant legal aid. The object would be to ensure that the amount predetermined as the amount to be spent on legal aid was satisfactorily related to the amount actually spent and to have regard to the interests of justice in terms of accessibility for those who would be entitled to legal aid.
Lord Molloy: My Lords, do lawyers have any responsibility to inform their clients if they feel they should have legal aid or to inform them how to go about getting it? Many people never hear of legal aid or how to get it until they find themselves in a difficult situation.
The Lord Chancellor: My Lords, lawyers have the responsibility to advise their clients on all the circumstances which may be relevant to their particular situation. Although this may not exactly arise out of the noble Lord's question, I should add that lawyers have a responsibility to inform the legal aid authorities if the case moves against their client in a way that is relevant as to whether legal aid should be continued. Lawyers have wide responsibilities in relation to legal aid.
Lord Boyd-Carpenter: My Lords, is not the suggestion that few people know about legal aid completely contradicted by the very substantial increase in the number of people actually drawing it?
The Lord Chancellor: My Lords, some 3.4 million people annually are beneficiaries of legal aid, which suggests at least that knowledge of legal aid is fairly widespread. There may be pockets of people who are ignorant of the possibilities, but I think such pockets are very isolated and rather small.
Baroness Mallalieu: My Lords, is the noble and learned Lord satisfied with the number and the stringency of the checks currently carried out on

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statements of means made by those who apply for legal aid? If he is not, what steps does he propose to take, and when, to ensure that people with the means to pay do not abuse the system at the expense of those who are currently falling through the net and therefore being denied access to justice?
The Lord Chancellor: My Lords, so far as concerns civil legal aid, the means assessments are done by the Benefits Agency. The detail of what it does in particular cases is something about which I cannot know in view of the confidentiality provisions. In criminal legal aid, the assessment is done by the court. We have had some problems over the years because of the difficulty experienced by those responsible in the courts in examining fully what is required in the way of support for the means statements of applicants for criminal legal aid. Some illustrations we have had recently of those with complicated financial affairs suggest that it would be wise to have a special unit with specialist knowledge and expertise available to try to unravel more fully than is possible at the moment the affairs of such people. As a result of the consultation carried out earlier on legal aid for the apparently wealthy, I have decided to introduce such a unit. I am advancing plans for it as speedily as I can.

Exhibition Space: Millennium Exhibition
2.51 p.m.
Viscount Waverley Viscount Waverley asked Her Majesty's Government:
Whether the United Kingdom's future requirement for permanent exhibition space will be taken into account by the Millennium Commission when considering a site for the Millennium Exhibition.
The Parliamentary Under-Secretary of State, Department of National Heritage (Lord Inglewood): My Lords, I understand that the long-term benefits generated by the Millennium Exhibition will be considered by the commission in its assessment of applications for grant towards the costs of the exhibition. If these benefits include the provision of permanent exhibition space, the Millennium Commission will take that into account.
Viscount Waverley: My Lords, I thank the Minister for that reply. Does he agree that additional exhibition space would greatly enhance our exporting prospects; and that by having no facility in the UK of 200,000 square metres a real advantage is handed to France and Germany?
Lord Inglewood: My Lords, there are those who feel that the country's prospects would be enhanced by having additional exhibition space. However, views vary as to where that space should be or whether it should be free-standing or built in conjunction with conference centre and hotel accommodation.
Lord Elton: My Lords, I declare a directorship of an Andry Montgomery company which has interests in using exhibition space but not in owning it. Does my noble friend realise that there are in Europe no fewer
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than eight exhibition centres bigger than the NEC at Birmingham; that the one at Hanover, which is the biggest, could accommodate the whole of the NEC twice over and still have room comfortably to accommodate Olympia, Earls Court and the Scottish Exhibition Centre; and that that represents a considerable competition handicap for UK plc? Does he agree that what is now urgently needed is comparable provision in this capital city of London which would attract immense benefit to it?
Lord Inglewood: My Lords, any such project which would be of benefit to London and the country is obviously to be greatly welcomed. But inherent in my noble friend's question are some of the problems which would face anyone bringing forward such a project. The devil lies in the detail with such ideas.
Lord Donoghue: My Lords, I trust that the main consideration in choosing the site would be access for the whole nation. However, while on the question of the lottery, have the Government—
Lord Hailsham of Saint Marylebone: My Lords, we are not on the lottery.
Lord Donoghue: My Lords, the millennium is linked directly to the lottery. If noble Lords were to look up the legislation they would find that to be so. Have the Government any Statement to make on any decision they may have made on the position of the regulator of the National Lottery? Whether they have or not—whoever holds that position—will the Minister assure the House that they will firmly inform the regulator that the main purposes of the lottery were to benefit prize winners and good causes and not the fat cats of Camelot?
Lord Hailsham of Saint Marylebone: My Lords, that is wholly out of order.
Lord Inglewood: My Lords, the noble Lord's question, if not entirely out of order, is very close to being so. My department has received a preliminary report from Mr. Davis. Officials have discussed it with him this morning. My right honourable friend the Secretary of State needs carefully to consider the issues raised. She does not intend to take precipitate action. It would be inappropriate and unfair to say more on the matter today. She will report to the House in due course.
Lord Ezra: My Lords, is it intended to have just one Millennium Exhibition Centre, or could there be more than one? Will the Minister consider that it might be desirable, quite apart from establishing a new exhibition centre, to build on a successful on-going centre such as Birmingham which was mentioned a moment ago? I understand that it has space for expansion. In view of the facilities that it has, it would be a good idea for that to be extended as well as developing some new centre.
Lord Inglewood: My Lords, decisions about the Millennium Exhibition are for the Millennium Commission. It is intended that there will be a wider millennium festival which will be focused on the exhibition itself.
Lord Beloff: My Lords, in relation to the question asked by my noble friend Lord Elton, does my noble

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friend agree that those who wish to export British goods would do far better to exhibit at Hanover or other continental centres rather than to ask prospective buyers to travel to Birmingham or elsewhere in the UK?
Lord Inglewood: My Lords, my noble friend makes a good point because it depends upon who attends the exhibitions, whether they be in Birmingham, Hanover or on the other side of the Atlantic.
Lord Elton: My Lords, would my noble friend find it reasonable to remind my noble friend Lord Beloff that people who attend exhibitions of the scale about which we are talking number in their tens of thousands and come from all over the world particularly to see British goods?
Lord Inglewood: My Lords, I am grateful to be able to say to my noble friend that I am delighted to be able to reply to him and to my noble friend that my noble friend is absolutely right.

Podiatry: Relocation of School
2.57 p.m.
Baroness Seear Baroness Seear asked Her Majesty's Government:
Following the answers given by Baroness Cumberlege on 5th December 1994 (H.L. Deb vol. 559, 789–790), whether negotiations have been held to relocate the London Foot Hospital and School of Podiatric Medicine, and what steps have been taken to preserve it as a centre of excellence in the teaching of podiatry.
The noble Baroness said: My Lords, in so asking, I declare an interest as the president of the Institute of Podiatry.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, discussions are continuing. National Health Service managers aim to improve the educational position and remedy the poor accommodation of the London Foot Hospital, while maintaining its high quality services for patients.
Baroness Seear: My Lords, I thank the Minister for that Answer, but I must say that I do not find it very informative. Can we rely upon the fact that the Government realise that it is important to keep the links with University College, which provides theoretical training and is close to the existing foot hospital; that it is essential for the proper training of podiatrists that they should have the best possible mix of theoretical and practical training; and that it is also essential to keep the highly specialist staff together there rather than have them dispersed throughout the country?
Baroness Cumberlege: My Lords, yes. I always find the noble Baroness a doughty debater. I should like to
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say that even more so since I understand that she is this year's joint winner of the Spectator special parliamentarian of the year award. I congratulate her.
Noble Lords: Hear, hear!
Baroness Cumberlege: My Lords, I congratulate also my noble friend Lady Trumpington, who I understand shares the award. The answer is yes.
Baroness Seear: My Lords, I am tempted to say that I do not think that the answer has anything to do with the question.
Baroness Cumberlege: My Lords, yes, to keeping close links with University College London; yes, to trying to keep the staff together; and yes, to trying to keep the standards as high as they are now.
Baroness Seear: My Lords, perhaps I may thank the Minister very much. That is a much better answer.
Baroness Gardner of Parkes: My Lords, is the word "podiatrist" becoming commonly used in this country? We have normally called people chiropodists. In Australia everyone is now a podiatrist. Is this new terminology widely in use here?
Baroness Cumberlege: My Lords, I understand that it is widely in use here, except for my late father-in-law who insisted on calling his chiropodist his corn merchant.

Police Bill [H.L.]
3 p.m.
The Lord Chancellor: My Lords, I beg to introduce a Bill to consolidate the Police Act 1964, Part IX of the Police and Criminal Evidence Act 1984, Chapter I of Part I of the Police and Magistrates' Courts Act 1994 and certain other enactments relating to the police. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(The Lord Chancellor.)
On Question, Bill read a first time, and to be printed.

Arbitration Bill [H.L.]
Lord Fraser of Carmyllie: My Lords, I beg to introduce a Bill to restate and improve the law relating to arbitration pursuant to an arbitration agreement; to make other provision relating to arbitration and arbitration awards; and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.— (Lord Fraser of Carmyllie.)
On Question, Bill read a first time, and to be printed.

Church of Scotland (Property and Endowments) Amendment Order Confirmation Bill
Considered on Report.

Criminal Procedure and Investigations Bill [H.L.]
3.3 p.m.
The Minister of State, Home Office (Baroness Blatch): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Blatch.)
Lord McIntosh of Haringey: My Lords, during the past couple of weeks I have been sorely tempted to move a procedural Motion to prevent the House moving itself into a Committee on the Bill. The way in which the House and Parliament have been treated as regards the introduction and first debates on the Bill is quite deplorable. The Bill was printed long before it was ready and before the supporting material necessary for proper debate in your Lordships' House was made available.
I shall deal first with the issue of whether the Bill was ready to be printed. On Second Reading the Minister said that there were three subjects on which the Bill needed to be amended. She properly gave notice that she would be proposing amendments on those three subjects. We now have almost 100 government amendments at the Committee stage of the Bill in the first Chamber. We are used to government departments consulting and producing amendments late in the proceedings of a Bill. We know that that happens and that sometimes there is good reason for it. However, for a Bill to be introduced and printed when almost 100 government amendments are needed immediately following Second Reading is not acceptable.
I deal secondly with the code of practice. On Second Reading many noble Lords, not only from these Benches and the Liberal Democrat Benches but from the Government Benches—the noble Lords, Lord Renton, Lord Alexander of Weedon and Lord Campbell of Alloway—and from the Cross-Benches the noble Viscount, Lord Runciman of Doxford, said that without the code of practice, which is the basis of Part II, it would not be possible to have a sensible debate on Part II. Of course, Part II, which deals with the initial preparation of the disclosure of material by the police and its disclosure to the prosecution, affects Part I, which depends on information that has not already been disclosed.
We wrote immediately to the Government Chief Whip and made it clear that in our view the code of practice should be made available in very good time before the Committee stage. Despite all the Minister's best efforts—I am sure that she used her best efforts and that the same is true of the Government Chief Whip—we received on Wednesday 13th December a document dated llth December which is the code of practice. That is quite inadequate to enable us to put down
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amendments to Part II, and therefore to Part I, and the major controversial matters on which the Bill is based. Already our debates on Parts I and II are less effective because we have not been given the material.
I return to the government amendments, which virtually rewrite large parts of the Bill from Part III onwards. We had prepared a number of amendments to those parts of the Bill. They have had to be torn up and thrown away, the Government having written in a large number of new clauses and a complete new schedule, presenting not a fixed target, which we could effectively address, but a moving target. That is not good enough.
Tomorrow we shall debate the code of practice. We have taken the initiative of making it available to your Lordships by writing it into the Marshalled List as a new schedule. However, that code of practice conflicts in a dozen, 20 or 30 places with the text of the Bill in Part II. Whereas the Bill in Part II is acceptable in many ways, the code of practice is much more vague and is not acceptable. In other words, as regards every part of the Bill, proper debate in your Lordships' House has been inhibited by the inefficiency of the Home Office and its unwillingness to delay printing and presenting it to Parliament until it was ready to do so properly. That is not satisfactory. We need at the very least pro found apologies from the Government.
Lord Rodgers of Quarry Bank: My Lords, on behalf of Members on these Benches, I strongly support what has been said by the noble Lord, Lord McIntosh. In some 25 years of parliamentary life I can remember no occasion on which a Bill that was not urgent has come forward so ill prepared and carelessly drafted. The noble Lord, Lord McIntosh, described the events of last week when the Government tabled 102 amendments in a single day. The Minister kindly sent to me copies of the letter which she wrote to the noble Lord, Lord McIntosh, as she had on the previous day when the code of practice became available. However, we are dealing not only with the convenience of this place but, as regards a Bill of this kind, the legitimate interests of outside organisations.
The Bill is not substantially controversial as between the political parties. I wish that we had a procedure by which such a Bill could be considered at leisure upstairs when outside organisations could make their representations. If for whatever reason that were not possible, this House should have been given a full opportunity to consider the amendments, to hear what the Minister had to say about them and to consult widely.
The truth is that the Bill has been rushed forward in a most extraordinary way. The disclosure consultation document was published in May and consultation continued until the end of July, which was entirely proper. However, those Members of your Lordships' House, and there are many, who have experienced these things, know that if consultation is completed at the end of July there must be interdepartmental discussions and decisions by Ministers before the Bill goes for drafting. On that timetable the Bill should not have received its Second Reading three weeks ago but should have been in the pipeline for Second Reading early in 1996.

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If for whatever reason the Government believed that the Bill should come forward earlier there was a simple solution which would have avoided many problems. If we were having the Second Reading today the Minister and her department would have had three weeks in which to bring forward the amendments incorporated in the delayed Bill. Then we would have proceeded to the Committee stage immediately after the Christmas Recess. The Government would have lost at most two days of parliamentary time, which could have been filled with other business. They could easily have restored the timetable of the Bill.
This is a deplorable proceeding. I wish only that the noble Lord, Lord McIntosh, had chosen, with our full support, to endeavour to prevent the Committee stage taking place today.
Earl Russell: My Lords, the rights of the House include the rights of Back-Benchers, and for the purposes of this Bill I speak as a Back-Bencher. I appreciate that the Minister has taken great trouble to make the code of practice available to those principally interested. When I arrived here today I understood that no code of practice had been made available. At lunch-time I discovered that it had been made available but that there were no copies in the Printed Paper Office. There was no copy in the Library. A copy was found for me but I have not discovered from where. It was made available to me after the noble Lord, Lord McIntosh of Haringey, had begun to speak. That is not sufficient time to judge the questions which that code of practice raises. Those questions are all the wider because of the very general and permissive way in which Clauses 6 to 19 are drafted.
Over and over again, those clauses repeat that the code of practice "may". In the time since the noble Lord, Lord McIntosh of Haringey, rose, I have been quite unable to establish whether the code of practice in fact "does". But those questions are of considerable importance as regards which amendments need to be tabled to the Bill. Those clauses savour of what I have christened the Cambyses clause, which says that the Secretary of State may, like King Cambyses of Persia, do whatever he likes. In those circumstances, the House deserves a proper opportunity to consider what was in the code of practice. I appreciate that the noble Baroness has done what she can about this, but for my part I am sorry to say that it is not enough.
Viscount Runciman of Doxford: My Lords, having heard what I have just heard, I feel bound to echo the concerns voiced by other noble Lords about the position with which we are confronted. I do so on the basis of having been extremely grateful to Ministers for the extent to which the recommendations of the Royal Commission bear directly on what we shall discuss this afternoon. Those matters should be given ample time for consideration and debate. It seems to me a great shame that this situation has arisen. At this stage, time is still necessary in order for this House to do what it does best; namely, to propose and discuss amendments which, in some important cases, I hope the Minister will consider seriously. Those amendments seek to achieve not only
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the objectives of the Royal Commission but also the Government's own legislation in the form in which it was debated in this Chamber on Second Reading.
I agree that it is deplorable that the opportunity for informed debate on some important issues should be foreshortened in the way that it appears, from what I have heard today, is likely to happen.
Lord Campbell of Alloway: My Lords, as my name has been mentioned, perhaps I may say that but for the good offices of the Government Chief Whip and the Minister we should not be in the position in which we are today even to be able to debate these issues.
Lord Shepherd: My Lords, I believe that the House would wish to have a reply from the Leader of the House. I believe that the noble Earl, Lord Russell, said that this is not a matter only for those on the Front Benches or those who are directly involved with the Bill. Sooner or later, as it is a Committee stage, the ordinary Back-Benchers may be called upon to participate in a Division.
I have listened extremely carefully to what is being said. I believe that this is a unique occasion because there is major unease in nearly every quarter of the House as to whether, in the interests both of the House and the legislation with which we are involved, we should proceed today.
I know that it is very difficult for the Leader of the House to say, "We will lose a day in Committee". It may well be that a whole day would not be lost if he were to meet the anxieties expressed by my noble friend on the Front Bench. This Bill is particular to this House. I do not believe that the other place, with all our respect for it, will be able to look at all the detail of the legislation which is now proposed. I am not talking in terms of the policy and what is behind it, but I listened to the Second Reading debate and anxiety was expressed as to the way in which the policy was to be implemented and the way in which it would affect those who had to implement it.
This is not party politics at all, but there is a sense of unease. Perhaps the Leader of the House would think it right to allow 10 minutes for consultation to see whether it would be possible to resolve and overcome the problems that have been mentioned. If that cannot be done, I should be one of the first to support my noble friend in the Division Lobby on the Motion before the House.
Baroness Blatch: My Lords, first, without reservation, I apologise to the House for what has been a difficult timetable. I should say also that on Second Reading I made absolutely no secret of the outstanding issues which would need to be addressed by amendment in Committee. There are no subjects which were not trailed on the Second Reading which arise for consideration now. Much has been made of the number of amendments but many of the amendments deal with one single point but are relevant to many different parts of the Bill. Therefore, many of the amendments are repetitious and deal with a single issue. That accounts for the number of amendments.

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At every opportunity since Second Reading until today, I have written to noble Lords with an update of the situation reached. I have copied the information to all interested Peers on all sides of the House. On every occasion I have made sure that a copy of what I have written has been placed in the Library to be available to all Members of the House. Therefore, I am perplexed by the matter raised by the noble Earl, Lord Russell, because my understanding is that a copy of the code of practice and the covering letter that was sent with it were placed in the Library of the House.
Having said that, and having admitted the difficulties that they impose on noble Lords, I have noticed no reticence on the part of noble Lords in coming forward with amendments. I did not see the amendments until Sunday evening when they were sent to me for consideration. Therefore, I too have burnt a good deal of midnight oil in considering the amendments, and there are a great number of them. We are about to begin the detailed Committee stage, when all the detail will be considered, as will both government and opposition amendments. There will then be a Report stage which 'will allow further opportunity for discussion.
It is not unprecedented that a code of practice does not accompany a Bill when it is first published. The code of practice will continue to change. It is not at all a definitive code of practice. It continues to be subject to consultation and to change as a result of debates in this House and what is said at all stages of the Bill. Even after that, the Bill is still a draft as it goes out in its definitive stage before it is approved by the House. I hope that the House will feel that we can now proceed with this Bill in Committee.
Lord McIntosh of Haringey: My Lords, before the Minister sits down, and if the House will allow me, she will know that I did not accuse her of any personal discourtesy and I thanked the Minister and the Chief Whip for their efforts to retrieve the situation. But that does not improve matters. It is still the case that it is the Government and the department who were responsible for the unsatisfactory situation in which we find ourselves.
I am sure that the noble Baroness will acknowledge also that we have made every effort to give her as much advance notice as possible of our amendments. The amendments which the Minister received only on Sunday afternoon were faxed to her office well before four o'clock on Friday afternoon. It is not our fault that it took 48 hours for the amendments to reach her.
If the Minister, the officials concerned, other Members of the House and I have to work over the weekend in that rushed way, that confirms and reinforces my view that the procedures and preparation are inadequate. It cannot be good for the House to have to work in that way. How much worse is it for the Minister to have to work in that way?
Baroness Blatch: My Lords, perhaps I may make two further points. First, the Bill has been in print. As I said, I trailed all the issues that would arise by amendment on Second Reading. Secondly, since I have appeared as a Front Bench spokesman on this side of the House, I have seldom seen amendments coming
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from the other side until something like a day or two before the next stage of a Bill. Indeed, it is not unusual for noble Lords to place amendments very late in the day and for me to have to do last minute work; that also applies to my colleagues on these Benches.
Lord Strathclyde: My Lords, perhaps I may briefly join the debate. The House will have heard my noble friend Lady Blatch apologise unreservedly for the way that the matter has been brought to the attention of the House. I entirely agree with her; it is regrettable when occasionally such issues arise. However, as regards the rest of the debate on the Bill as it goes through the House, I hope that noble Lords will feel that they can put the matter behind them and carry on dealing with the amendments in a constructive manner.
It may also be helpful to your Lordships if I announce that, at a convenient moment after 3.30 p.m., my noble friend the Leader of the House will, with the leave of the House, repeat a Statement that is to be made in another place on the outcome of the Madrid Summit.
On Question, Motion agreed to.
House in Committee accordingly.
[The PRINCIPAL DEPUTY CHAIRMAN OF COMMITIEES in the Chair.]
Clause 1 [Application of this Part]:
Lord McIntosh of Haringeymoved Amendment No. 1:
Page 1, line 8, leave out from ("applies") to end of line 20 and insert ("to any offence in respect of which a person charged has not already indicated an intention to plead guilty").
The noble Lord said: In moving the above amendment I should like, with the leave of the Committee, to speak also to Amendments Nos. 14, 19, 29, 61, 62 and 130. The amendments are designed—which I believe the Committee will find throughout the Bill—to help the Government to produce a sensible, rational and workable procedure for disclosure, rather than being wrecking or damaging.
We made it clear on Second Reading that we support the principle of the Bill and our concern is to ensure that it works properly. This is the classic case where inadequate thought has forced the department and the Government to propose something which is simply unworkable. The Bill proposes that there should be primary disclosure by the prosecution—we shall deal in later amendments with what that primary disclosure should be—only when the accused has pleaded not guilty to the charge or when the matter has been referred to the Crown Court. That is madness. If the defence is not going to receive the information from the prosecution as to the nature of the case until a plea of not guilty has been made, any solicitor in his right mind will advise his client to plead not guilty in order to get hold of the material.
Let us not forget that the Bill covers not only major cases in the Crown Court and major miscarriages of justice (which prompted the setting up of the Royal Commission in the first place) but also every single small case appearing before magistrates. It is a Bill which is about riding a bicycle without a light; indeed, it is a Bill which is about almost everything except tiny

1413
traffic cases which are dealt with outside the court. At present in nearly all of those cases the accused goes to the magistrates' court knowing what the charge is but hearing for the first time on that occasion the case against him and acting accordingly. In other words, the matter can very often—indeed, normally—be dispatched rapidly.
However, where the defendant has a solicitor or is smart enough himself he will say, "In normal circumstances I would let it go; I would assume that they had enough to convict me. I know what is in their case and, therefore, I shall leave it alone and let the normal procedures take place". But now, under the proposed procedures, the solicitor or the accused may say, "I don't know. It may be worth while pleading not guilty to see whether they have enough evidence". That is what he will do and the courts will be clogged up with all the minor cases which could have been disposed of in the speedy and effective way that they are now dealt with.
I can assure the Committee that we are trying to help the Government. We are trying to make it a workable Bill. The Minister said on Second Reading that the prosecution might be unable to prepare its evidence for disclosure at an earlier stage than that envisaged in the Bill. But, now we have seen the code of practice, we see from that document that once the investigation is over the police will be obliged to prepare a detailed schedule of evidence for the prosecutor and pass on material which supports or appears to undermine the prosecution case. Therefore, we now know from the code of practice what we did not know on Second Reading; namely, that the information will actually be there. It will have been produced to the prosecutor almost as soon as the investigation is over.
I turn now to Clause 34 which provides for the accused in either-way cases to indicate a plea in advance. The idea, very sensibly, is to make savings in preparation work which would be unnecessary if the accused were going to plead guilty. But the fact that the information will not be available from the prosecution until a plea of guilty has been entered means that Clause 34 will not work properly. Indeed, Clause 34 could actually be extremely effective if it were not for the Bill's provisions as presently drafted.
There is no good reason why that information which we now know will be available should not be passed on to the defence straight away, without waiting for a plea of not guilty. I urge the Government in their own interests to accept at least the principle of the amendments. They may be complex, but I am sure that they are right. I beg to move.
Lord Campbell of Alloway: The principle of the noble Lord's speech and of the amendment warrants serious consideration with reference to the code of practice and Clause 34 for the reasons that he gave. I only ask that that consideration may perhaps be given.
Baroness Blatch: My Lords, the amendments offer an alternative description of the circumstances in which Part I of the Bill is to apply. Instead of describing the circumstances with reference to the classification of the offence and the mode of trial, Amendment No. 1 would
1414
apply Part I to all cases where the accused has not indicated an intention to plead guilty. As I understand it, Amendments Nos. 19 and 20 are purely consequential on Amendment No. 1.
However, Amendments Nos. 14 and 130 would effect a serious change of substance. So far as concerns offences which are triable either way, the amendments between them would require the prosecutor to make primary prosecution disclosure, and to give the accused the schedule of non-sensitive material, in a period of time which begins when the accused is charged and ends when the mode of trial decision is taken under Clause 34 of the Bill. This means that a schedule would have to be prepared, and the prosecutor would have to consider what material needed to be disclosed and disclose it in all these cases whether or not the accused intended to plead not guilty. Either way, in cases where the accused intends to plead guilty, disclosure is not needed. That is why the Bill does not require primary prosecution disclosure under Clause 1(1) until a not guilty plea has been indicated and the court proceeds to summary trial. The amendments would place a heavy and completely unnecessary burden on the prosecutor.
Members of the Committee opposite have argued that the accused needs to know what the prosecutor thinks might undermine the prosecution case before he decides whether to plead guilty or not guilty, and that in the absence of prosecution disclosure he will simply plead not guilty to see what turns up. I disagree. The accused will have received advance information under the Magistrates' Courts (Advance Information) Rules 1985, consisting of either copies of the statements of proposed prosecution witnesses or a summary of the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings. That is designed to enable him to make an informed decision about mode of trial. He does not therefore also need to know what might undermine the prosecution case to determine whether he should plead not guilty and whether he should elect Crown Court trial.
I must also point out that Amendment No. 14 will fall if the Committee accepts the separate government amendment replacing Clause 3(8) and (9), which is Amendment No. 13 and which will be moved first. Although it may make no difference in practice, the amendments would also make a substantive change to Clause 14. They abolish most of the common law rules on disclosure, effective immediately before Part I is brought into force, from the moment a person is charged with an offence (rather than from when he pleads not guilty at a summary trial) or the proceedings are transferred to the Crown Court. For those reasons I hope that the amendment will not be pressed.
3.30 p.m.
Lord McIntosh of Haringey: I am disappointed, and the Committee will be disappointed, that the Minister has chosen to look at drafting considerations in later amendments rather than address the thrust of the most important amendment, which is Amendment No. 1. No attention whatever was paid in the Minister's reply to what I said about the process in a magistrates' court.

1415
There was no acknowledgement that if a full statement is available only after a plea of not guilty, a solicitor or an intelligent defendant is going to plead not guilty in order to obtain the statement of evidence, at the very least on the basis that the evidence may be incomplete in some way or may provide further support to a defence case. The Government, in rejecting these amendments in effect out of hand, are doing enormous damage to the practical effects of the. Bill and the chance of it working properly.
Baroness Blatch: I am grateful to the noble Lord for giving way. I have been accused of not referring at all to that particular point. In fact I did refer to it. said that the accused will have received advance information under the Magistrates' Courts (Advance Information) Rules 1985, consisting of either copies of the statements of proposed prosecution witnesses or a summary of the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings. That is designed to enable the accused to decide how to plead.
Lord McIntosh of Haringey: There is a considerable difference between information which is made available under rules which can be changed without parliamentary approval and a new wholly statutory provision—as there is in Part I—for primary disclosure by the prosecution. The opportunity should have been taken, following the report and the recommendations of the Royal Commission, and indeed following the consultation which took place on the publication of the consultation paper, to make sure that the facilities which are available to the defence under the principle of equality of arms should be made available by statute, as elsewhere in the Bill. The Minister's reply is not satisfactory; it is a self-contradictory response. I shall have to seek the opinion of the Committee on Amendment No. 1.
Viscount Runciman of Doxford: I am, I fear, doubly disadvantaged—
Noble Lords: Order!
Lord McIntosh of Haringey: I said I would have to seek the opinion of the Committee but I have not actually done so.
Viscount Runciman of Doxford: I am grateful to be spared an impending embarrassment. I must confess I am particularly disadvantaged because I did not see the amendments until the middle of this morning. I was not prepared to cancel my appearance at the Christmas head office lunch of a substantial multinational conglomerate which I chair in order to do some last minute homework which I think would have been inadequate in any case. Therefore I make my two points tentatively but I feel bound to make them.
My first point is one of principle. It would be disturbing if the effect of the Bill were that a person accused of a serious offence—I am particularly concerned with Crown Court offences—was expected to decide on plea before being fully informed of the nature of the offence. Surely that cannot be right. I
1416
should be grateful for some assurance from the Minister that that will not be the unintended consequence of a refusal to accept the amendment or a similar one.
The other point is the practical one. l endorse what the noble Lord, Lord McIntosh said. Within the Royal Commission we found that it was not merely helpful but essential, on these recommendations and others, to consult widely and as far as possible among experienced practitioners, asking about the effect upon the defence and its ability to look after, as it should, the interests of clients if there were to be change along the lines proposed. We recognise that duty to the client will—as up to a point it should—require defence solicitors and counsel to do whatever they can to avert the possibility of their client being prematurely pressed into disclosing his or her hand or proceeding in such a way as might undermine a legitimate defence at a later stage. In purely practical terms the criticism which the noble Lord, Lord McIntosh, has made of the Bill is a disturbing one. I do not feel entirely satisfied with the Minister's response.
Lord Campbell of Alloway: There are some practical problems. I shall speak briefly. I hope that we shall not have to divide at this stage on this amendment which involves an important question of principle which ought to be considered carefully. I hope that my noble friend the Minister may without commitment be able to say that she will at least meet, discuss and consider the practical implications. If she were to do so without commitment, the noble Lord, Lord McIntosh, might not take the opinion of the House.
Baroness Blatch: Before the noble Lord decides what to do about this matter, I wish to answer the question posed by the noble Viscount, Lord Runciman. It will not be a consequence of the Bill that a person has to decide plea without information on the case against him. It is only unused material that will be disclosable after plea.
Lord McIntosh of Haringey: The noble Lord, Lord Campbell of Alloway, is persuasive as always but he does not seem to realise that it is on issues of principle that we take the opinion of the Committee. That is exactly why we have the voting system in this Chamber. Whether there is subsequent consultation on the practicalities of the Bill is a matter for the Government and for those of us in the Chamber who are concerned with the issues. I can assure the noble Lord that, if I take the opinion of the Committee, whatever that opinion may be if there is any advantage in further consultation and discussion with the Government I shall seek that further discussion and consultation, as I always do. I am quite sure that the response from this Minister will be, as it always is, one of complete co-operation.
The issue has not been resolved by the answer given either to me or by the noble Viscount, Lord Runciman. As a result of the further exchange I am confirmed in my view that I should take the opinion of the Committee on Amendment No. 1.
3.40 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 90; Not-Contents, 118.

Division No. 1

CONTENTS

Ackner, L.

Ilchester, E.

Addington, L.

Jay of Paddington, B.

Airedale, L.

Jeger, B.

Annan, L.

Jenkins of Hillhead, L.

Archer of Sandwell, L.

Jenkins of Putney, L.

Ashley of Stoke, L.

Kilbracken, L.

Attlee, E.

Lovell-Davis, L.

Avebury, L.

McGregor of Durris, L.

Bancroft, L.

McIntosh of Haringey, L.

Barnett, L.

Mackie of Benshie, L.

Beaumont of Whitley, L.

McNair, L.

Berkeley, L.

Mallalieu, B.

Blackstone, B.

Mar and Kellie, E.

Blease, L.

Marsh, L.

Brain, L.

Mayhew, L.

Bridge of Harwich, L.

Merlyn-Rees, L.

Bruce of Donington, L.

Milner of Leeds, L.

Carmichael of Kelvingrove, L.

Molloy, L.

Carter, L. [Teller.]

Monkswell, L.

Cocks of Hartcliffe, L.

Morris of Castle Morris, L.

Craig of Radley, L.

Nelson, E.

Dahrendorf, L.

Nicol, B.

David, B.

Ogrnore, L.

Dean of Thornton-le-Fylde, B.

Peston, L.

Desai, L.

Prys-Davies, L.

Donaldson of Kingsbridge, L.

Richard, L

Donoughue, L.

Rodgers of Quarry Bank, L.

Dormand of Easington, L.

Runciman of Doxford, V.

Farrington of Ribbleton, B.

Russell, E.

Gallacher, L.

Sainsbury, L.

Geraint, L.

Sandwich, E.

Graham of Edmonton, L. [Teller.]

Seear, B.

Greenhill of Harrow, L.

Serota, B.

Greenway, L.

Shaughnessy, L.

Grey, E.

Shepherd, L.

Hanworth, V.

Simon of Glaisdale, L.

Hams of Greenwich, L.

Stallard, L.

Haskel, L.

Stedman, B.

Hayter, L.

Stoddart of Swindon, L.

Henderson of Brompton, L.

Strabolgi, L.

Hilton of Eggardon, B.

Taylor of Blackburn, L.

Hollis of Heigham, B.

Thomson of Monifieth, L.

Howie of Troon, L.

Tordoff, L

Hutchinson of Lullington, L.

White, B.

Hylton-Foster, B.

Williams of Elvel, L.

NOT-CONTENTS

Aberdare, L.

Brabazon of Tara, L.

Addison, V.

Braine of Wheatley, L.

Ailesbury, M.

Brougham and Vaux, L.

Ailsa, M.

Burnham, L.

Allenby of Megiddo, V.

Butterworth, L.

Ampthill, L.

Cadman, L.

Astor of Hever, L.

Campbell of Alloway, L.

Barber, L.

Campbell of Croy, L.

Belhaven and Stenton, L.

Carnegy of Lour, B.

Beloff, L.

Carnock, L.

Blaker, L.

Cavendish of Furness, L.

Blatch, B.

Chelmsford, V.

Blyth, L.

Chesham, L. [Teller.]

Boardman, L.

Clanwilliam, E.

Borthwick, L.

Colnbrook, L.

Boyd-Carpenter, L.

Courtown, E.

1418

Cox, B.

Mackay of Drumadoon, L.

Cranbome, V. [Lord Privy Seal]

Macleod of Borve, B.

Cuckney, L.

Manton, L.

Cullen of Ashbourne, L.

Merrivale, L.

Cumberlege, B.

Mersey, V.

De Freyne, L.

Montgomery of Alamein, V.

Dean of Harptree, L.

Moyne, L.

Dixon-Smith, L.

Munster, E.

Ellenborough, L.

Murton of Lindisfarne, L.

Elles, B.

Napier and Ettrick, L.

Elton, L.

Newall, L.

Faithfull, B.

Norrie, L.

Flather, B.

O'Cathain, B.

Forbes, L.

Orkney, E.

Fraser of Carmyllie, L.

Orr-Ewing, L.

Fraser of Kilmorack, L.

Oxfuird, V.

Gainford, L.

Park of Monmouth, B.

Gardner of Parkes, B.

Pearson of Rannoch, L.

Geddes, L.

Pender, L.

Gisborough, L.

Plummer of St. Marylebone, L.

Goschen, V.

Prentice, L.

Hailsham of Saint Marylebone, L.

Rankeillour, L.

Harding of Petherton, L.

Reay, L.

Hayhoe, L.

Renwick, L.

Henley, L.

Romney, E.

Holderness, L.

St. Davids, V.

HolmPatrick, L.

St. John of Fawsley, L.

Saltoun of Abernethy, Ly.

Inglewood, L.

Seccombe, B.

Johnston of Rockport, L.

Selborne, E.

Kimball, L.

Shaw of Northstead, L.

Knollys, V.

Skelmersdale, L.

Lane of Horsell, L.

Soulsby of Swaffham Prior, L.

Lauderdale, E

Strathcarron, L.

Leigh, L.

Strathclyde, L. [Teller.]

Lindsey and Abingdon, E.

Swansea, L.

Liverpool, E.

Swinfen, L

Long, V.

Terrington, L.

Lucas, L.

Trefgarne, L.

Lyell, L.

Vivian, L.

McConnell, L.

Wade of Chorlton, L.

Mackay of Ardbrecknish, L.

Wolfson, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Wynford, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
The Earl of Courtown: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

European Council, Madrid
3.48 p.m.
The Lord Privy Seal (Viscount Cranborne): My Lords, with the leave of the House I shall now repeat a Statement made in another place by my right honourable friend the Prime Minister on the Madrid European Council. The Statement is as follows:
"With permission, I shall make a Statement on the meeting of the European Council at Madrid which I attended with my right honourable friends the Foreign Secretary and the Chancellor of the Exchequer. I have placed the conclusions of the Council in the Library.
"I shall deal first with economic and monetary union and then with enlargement. The decisions

1419
which the European Union must take on these two issues over the next few years could be the most crucial steps for Europe since the European Community was founded. They will have a profound effect on the political and economic stability of our continent over the next generation.
"On economic and monetary union the Madrid Council decided on a name for a single European currency. "Euro" was not a name which attracted enthusiasm around the Council table. It will not ease the task of those seeking to market the idea of a single currency, but one or more of the member states had objections to each of the other names suggested.
"A more fundamental decision was to study the implications of seeking to introduce a single currency in 1999. As the House knows, I have for a long time argued that the introduction of a single currency by a small number of states would raise very serious questions about its economic consequences and about the way Europe functions.
"At the informal meeting at Mallorca in September there was general agreement that these questions needed to be examined carefully. At Madrid a study was formally commissioned.
"The Maastricht Treaty lays down strict criteria for entry to a single currency. It is now certain that on a proper interpretation of the criteria only a small number of member states will meet the criteria if a single currency is introduced in January 1999.
"Before taking such a step, the European Union needs to examine what it would mean in practice. It must consider its effect on the states outside the single currency area as well as those inside it. It must consider how decisions would be taken. It must ask whether the result would be divergence rather than convergence of European economies. It must consider the potential effects on employment and the demand for resource transfers.
"The risk of monetary instability is one of the questions to be examined. Some have argued for rigid linkages between those inside and those outside a single currency by reverting to an old-style exchange rate mechanism. This is a course which has already been tried and which failed. I have made clear to our partners that I would not recommend that sterling should return to such a system.
"Europe needs coherent answers to these and other questions and I am glad the Madrid Council decided to examine them. The opt-out I negotiated at Maastricht protects the United Kingdom from being forced into an unworkable system. But it is vital to our interests, and to the interests of Europe as a whole, that a single currency does not begin and then fail, thus causing economic turmoil across the continent.
"Let me turn now to enlargement. Ahead even of prosperity, the European Union exists to provide security and stability to the peoples of Europe. For that reason, I believe that enlargement is the most important task facing the European Union. Having
1420
demolished the Iron Curtain, we must never again have a dividing line running through the middle of Europe.
"Ten or more countries are hoping to negotiate entry to the European Union in the coming years. This is an historic opportunity to entrench stability through a union of democracies right across the continent—and one we must take. The Madrid Council gave further impetus to enlargement. The European Commission has been asked to produce opinions on all eastern and central European applicants as soon as possible after the end of the Inter-Governmental Conference. This is a necessary step towards full accession negotiations, which are likely to begin with at least the most advanced of the new applicants, as well as with Malta and Cyprus, in about two years' time.
"The Madrid Council considered reports from the Commission on the implications of enlargement for the European Union's policies. These are profound. To be affordable and to be consistent with the EU's obligations under the GATT, the common agricultural policy will have to be reformed when the Union enlarges. So will the structural cohesion funds. At my insistence, it was agreed that future meetings of the Council would examine the implications. The Madrid Council has therefore taken an important step towards combining policy reform with enlargement, both of which are essential to the European Union's future.
"Let me deal briefly with some of the other subjects discussed at Madrid. It was agreed that the Inter-Governmental Conference would start at Turin on 29th March. The conference will be conducted by meetings of foreign ministers, supported by a working party made up of a representative of each minister and of the President of the European Commission. No decisions were taken at Madrid on the substance of the IGC. Work on the agenda will be carried out under the Italian presidency by foreign ministers.
"The drive to promote subsidiarity was strongly in evidence again at Madrid and vigorously supported in informal discussion. The Commission has been instructed to examine the continued need for existing Community legislation and for proposals now on the table. It is now widely recognised that the United Kingdom was right to reverse the trend towards greater intrusiveness by the Commission.
"There was also support for our approach to job creation, flexible pay relating to performance, curtailing non-wage labour costs and the reform of social protection systems. Increasing emphasis is being given to small and medium enterprises and to the need to cut the burden of red tape and over-regulation. The campaign against fraud and for better financial management which I launched at the Essen Council a year ago gained further weight at Madrid.
"The House will welcome the higher priority being given to inter-governmental co-operation against drug-trafficking. At Madrid I presented, with President Chirac, an initiative to help Caribbean states crack down on the transhipment to Europe and

1421
elsewhere of huge quantities of drugs produced in Latin America. This initiative was agreed by the Council and is now part of the European Union's policy.
"On external affairs, the Council underlined the importance of successful implementation of the Bosnian peace agreement and gave support to Mr. Carl Bildt who will be leading the international civilian effort there. It also discussed the European Union's relations with Russia, Ukraine and Turkey, and welcomed the agreement at the recent European Union/United States summit to strengthen the European Union's relationship with the United States.
"This was a Council at which the key decisions for the future were identified rather than taken. The programme of work for the next five years, the Political Agenda for Europe, is set out in the Madrid Conclusions. It is a formidable programme. In this period Europe must review the treaty at the Inter-Governmental Conference; review the Union's policies, including the common agricultural policy and the structural funds; take decisions on a single currency; carry out enlargement negotiations; determine the Community's future financing; contribute to new European security arrangements; and develop its relations with neighbouring countries, especially Russia, Ukraine, Turkey and other Mediterranean countries.
"The decisions we take in this period will determine the shape of Europe well into the next century. They will vitally affect the United Kingdom's interests and our future security and prosperity. That is why at successive meetings of Heads of Government I have argued for cautious and careful consideration before decisions are finalised.
"The European Union must carefully weigh the practical consequences of all these issues. Its decisions must be securely grounded in reality. We need, above all, a Europe that works. In that respect, I believe that important steps were taken at Madrid, as they were at Mallorca. They would not have been taken if we had not been prepared to raise the difficult questions and to demand practical answers to real problems.
"In the interests of the United Kingdom, it is essential to continue taking a hard-headed approach at the centre of European policy-making, and I shall go on doing so."
My Lords, that concludes the Statement.
3.59 p.m.
Lord Richard: My Lords, I thank the Leader of the House for repeating a Statement made by his right honourable friend in another place. This is one of the more important European summits to take place in recent years. Quite frequently, Prime Ministers and heads of government go to these meetings and fly back with communiqués which are not over-precise. In this instance, it appears that certain very important decisions
1422
were made at the summit. It is very important for this country that that point is recognised and that we try to analyse them.
I make to the House a plea that I have made in respect of other Statements made by the Prime Minister when he has returned from other summits. I hope that your Lordships will read the communique and not rely merely upon the Statement. The communiqué is a somewhat lengthy but not too daunting a document, and it has been agreed to unanimously. I do not know what happens in the aeroplane on the way home from these summits. Recollections appear to be slightly disturbed and in the 24 or 48 hours that elapse between the end of the summit and the Statement by the Prime Minister certain things tend to be pushed to one side and a gloss is given to this or to that. Of course, none of it is directly misleading. Nevertheless, it is important that we look at the document and not just bathe ourselves in the rosy glow that all heads of government try to put upon what they have agreed to but perhaps do not particularly wish to own up to.
The fact is that at the Madrid Summit this country ended up isolated and alone on the essential points. It is very important that we accept that and see where the country should go to from here. Some parts of the communiqué and agreement are welcomed; for example, the issues of enlargement and subsidiarity. As far as enlargement is concerned, I ask the Leader of the House whether it is envisaged that negotiations with the applicant east European countries, who seem most ready for admission, will take place simultaneously with those conducted with Cyprus and Malta. Which countries do the Government see as being in the first batch of negotiations? As far as subsidiarity is concerned, I welcome what the Government and the communiqué have to say about that. However, I am bound to say that for the Government to go abroad trumpeting subsidiarity, in view of the treatment that they have meted out to local authorities in this country over the past five years, is a bit rich—but there we are! Perhaps we should not complain or be too surprised about the way in which this is presented. We also welcome what is said about Turkey, Caribbean drugs and the United States.
I turn to what are perhaps the two most important single issues: employment and European monetary union. Employment is dealt with in the Prime Minister's Statement in one small paragraph as if it is of no great account. I welcome what is said in the communiqué—that the European Council reaffirms that the fight against unemployment and for equal opportunities is the priority task for the Community and member states. I welcome, too, the list on page 11 of the communiqué. The communiqué urges member states to regard as priorities about a dozen spheres of action which are set out in the list. It would be nice to know at some stage the Government's thinking on these various items, not merely to have them all wrapped up as if the European Council agreed with the Government's approach to job creation and employment. I take but one example. Member states are urged to step up training programmes especially for the unemployed. The Prime Minister accepted it in Madrid. It is strange that he heads a

1423
government who have cut the training programme, especially for the unemployed. I suppose that we should not be too surprised at that slight difference between the communiqué and the Statement.
As regards European monetary union, the fact is that for all the Government's bluster before going to Madrid the European Council has agreed unanimously that the third stage should begin on 1st January 1999. It has reaffirmed all of the other criteria for its introduction. To all of this the Prime Minister has agreed. It is not as though he is in a minority of one. He has agreed to all of it happening. Could he have done otherwise? He probably could not, given the rough nature of domestic and international politics. But at least it stops all of the nonsense that we have heard for so long about our view gaining ground with our European partners. What happened to the prospective alliance with the French? They were to stand with us on European currency shoulder to shoulder against the Germans. What happened to the very successful foray to Rome last week when apparently the Italians were also to stand with us? The fact is that one thing Madrid has done is to strip away the illusion and destroy the fantasy. On the issue of the EMU, Britain finds itself isolated and alone in Europe. The only thing the Prime Minister came back with was the fig leaf of a study into the effects of the single currency.
Why are we in this position? I believe that, among other reasons, we are isolated and alone in Europe because nobody is quite sure what the Government mean. Is the Prime Minister in favour of a single currency and European monetary union but wants to get there rather more slowly and in a different way? I do riot know. Is he against the whole prospect and is desperately trying to hold out? I am afraid I have to say—because it is true—that our European policy is being dictated by the internal state of the governing party in the United Kingdom. This is a document and a policy that are designed to preserve as much unity as possible in the Conservative Party. In my view, it is not good for this country for us to stand isolated and alone in Europe against developments which, it is perfectly clear from the summit, wall take place.
Lord Jenkins of Hillhead: My Lords, I too, am grateful to the Leader of the House for having repeated the Statement and with such emphasis and animation. There was no question of his gabbling through it in his case. I agree with the noble Lord, Lord Richard, to the extent that this summit clearly marks a considerable strengthening of the probability of a European currency coming into operation by the appointed day. Ten days ago ex-Chancellor Schmidt of Germany told me that he thought the chances were fifty-fifty. Three days ago the British Chancellor of the Exchequer announced with a show of spirit, for a Minister of this Government, that he thought the chances were sixty-forty. The trend is strongly in that direction. Will it not now be sensible for the British Government to work on the assumption that it is more likely to happen than not, instead of trying to convince themselves that it will not and, therefore, constantly be operating on a false premise?
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There are several reasons why we ought to be very nervous about continuing to sing the old and dangerous British lullaby which we have sung for the past 40 years. I can never forget, because it is engraved on my mind, the report of the British delegate to the Messina Conference in 1955. He said that they would not agree but that even if they did it would not happen, and if it happened it would not work. That is the position that we have consistently taken.
Would it not be better to learn a little from experience? To make a mistake once is fully excusable, as in the case of the European Coal and Steel Community. To make the same mistake twice, as in the case of Economic Community, is a pity. To make it a third time, as in the case of EMS, looks more like pig-headed than carelessness. To make it a fourth time, in exactly the same form as the single currency, points to positive perversity.
I would still not predict with certainty that a single currency will come into being. But I say with certainty that any wise British Government ought now to treat it as more likely than not, instead of going on trying to pretend that it is all a chimera. I also predict with certainty that if a single currency comes into being, which I believe is now more likely than not, we shall repeat the dreary and consistent pattern that we have previously followed. We shall probably not join in 1999. We shall probably join about two or three years later, dragging our feet in the meantime and doing it uninfluentially and with the minimum of good will. We saw the result of this at Madrid.
I am sorry to have to say this, but I have the strong impression, speaking with some experience of European councils, that the Prime Minister was brushed aside like a fly.
Lord Stoddart of Swindon: That is a disgrace if he was.
Lord Jenkins of Hillhead: Listen to him, let him have his say, let him have his inquiry. But let the rest of us get on with the business. I do not like to see a British Prime Minister so treated. But that is the reality and it will continue to be so, so long as our European policy is like a feather in the wind.
I make one last point. The second issue that the Prime Minister raised in his Statement was enlargement. It is of great importance. I am strongly in favour of enlargement. But it is a great mistake to see enlargement and a reform of the common agricultural policy as a matter quite separate from a single currency and general European construction.
I make another prediction. If, as is still possible, the single currency collapses, and if Europe is set back on its heels, then I think it very unlikely that enlargement will take place with any speed. Europe will be in a state of stasis; certain countries will go into a defeated, bunker-like mood; and one or more countries will veto enlargement. Enlargement is by far the best hope of reforming the common agricultural policy, if only because of the weight and expensiveness of Polish agriculture.

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It is therefore a great pity to see these matters in isolation. How can Britain believe, being as isolated on the central issue as it was in Madrid, not merely that it can be at the heart of Europe—that sounds ridiculous these days—but that it can have any influence proportionate to that which a country of the United Kingdom's standing ought to exercise?
Viscount Cranborne: My Lords, I am most grateful to the noble Lord, Lord Jenkins of Hillhead, for his approval of the principle of enlargement, and that he subscribed to my right honourable friend's view of the importance of endeavouring to enlarge the Community. I am also grateful to him for stating in terms that enlargement is the best hope of reforming the CAP. That objective, as the noble Lord knows, is very much shared by Her Majesty's Government.
I was most interested, if not altogether surprised, to hear the mantra repeated by the noble Lord, Lord Richard, suggesting that we should (I paraphrase) not listen to the Statement but rather read the communiqué. I was particularly interested to hear the noble Lord issue what has now become his standard recommendation in the context of the importance of employment creation and how that was identified as a priority task by the heads of state and government who met in Madrid.
The noble Lord referred to page 11 of the presidency conclusions, which he has in front of him. I shall not weary the House by reading out all the employment action recommended on page 11 of those conclusions. However, virtually every single one, including training programmes, is entirely and fully in step and consistent with Her Majesty's Government's existing policies and negotiating objectives in Europe. Indeed, since Essen it has become perfectly clear that it is Europe that has finally realised—perhaps through looking at our own employment and unemployment figures—what policies are needed by developed economies (or indeed any economy) in order to achieve the sort of growth in employment and the decrease in unemployment which we are beginning to see in this country and which are in at least some favourable contrast to the employment figures obtaining in the economies of our European partners.
With the greatest respect to the noble Lord, Her Majesty's Government need no lectures from him on this matter. If he is implying that we are isolated on the policies needed for the priority task, as identified at Madrid, we can pronounce ourselves well satisfied at seeing our partners in Europe wholly with us on what creates employment. Perhaps we should underline that it is the Labour Party that is out of step. In the unlikely event that it ever finds itself in government, it will be interesting to see whether they will be isolated as the only government in Europe peddling socialist policies on employment creation rather than the ones that are prudent and work.
One has only to look at the other principal issues—subsidiarity, deregulation, competitiveness, the single market, enlargement (as I mentioned, as did the noble Lord, Lord Jenkins) and the fight against fraud—to see a litany of issues initially tabled by this country that we
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are delighted to see our European partners taking seriously after some years of persuasion on our part. A few years ago the United Kingdom alone would have been pushing those issues. Now they are common ground. The noble Lord is right to draw our attention to the presidency conclusions. From them it is clear that that is the case.
The noble Lords, Lord Jenkins and Lord Richard, both talked with some intimation of derision about the Government's position on economic and monetary union. I deduce from the noble Lord's remarks—I hope he will correct me if I am wrong—that were the Labour Party to come to government, they would immediately sign up to a single currency. From the noble Lord's present state of immobility, I imagine I am right in assuming that that is what a Labour Government would do.
It is worth emphasising, as the noble Lords, Lord Jenkins and Lord Richard, intimated, that it is perfectly possible that a number of countries will sign up to the third stage of EMU in 1999. What I am not entirely clear about—perhaps the noble Lord, Lord Jenkins, is a little clearer than I—is just how many countries will do so. It is perfectly clear that the Maastricht criteria will still apply. They will not be loosened in any way. There was no mention in the presidency conclusions of that being so. In that case, though we cannot be certain, it appears that the number of countries which will be in a position to join at the third stage in 1999 will not be even a majority of the members of the European Union.
I suggest that it is therefore only prudent for my right honourable friend to draw to the attention of his colleagues, the heads of state and government in the European Union, the questions that must be asked and addressed before 1999 comes along. What is the relationship between those countries that choose to join, and indeed are able to join because they satisfy the Maastricht criteria, and those which do not choose to join? Britain may well be one of them; after all, we secured an opt-out on this, unlike our European partners. But it is at least fair to ask what the relationship will be between the members of a single currency in 1999 and during the transitional phase between 1998 and 1st January 1999; how it will be possible to address the relationship; and, indeed, whether in fact the beginning of a hard-core single currency will not lead to the economies of Europe being driven apart rather than being brought closer together.
I suggest that it is entirely sensible for my right honourable friend to ask those tough questions and for this country to play a full part in the negotiations leading up to the final decisions being taken. They matter not only to those who join but also to those who do not join. Since it is this country which is concerned with the pragmatic questions, it seems only right that this country should ask them.
The noble Lord, Lord Jenkins, suggested that my right honourable friend the Prime Minister was brushed aside like a fly. That is some fly! It is a fly with a remarkable buzz, capable of making clear—and obtaining the agreement of his colleagues—that these matters have to be addressed and will be addressed urgently. Indeed, we

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shall begin to see some of the answers emerge at the next council in Florence towards the end of the Italian presidency. It is perhaps not Her Majesty's Government who are indulging in wishful thinking but rather the two Opposition parties, which hope against hope that Her Majesty's Government will be found not to be the effective negotiator and pragmatist in European matters that they are in fact turning out to be.
4.22 p.m.
Lord Beloff: My Lords, does my noble friend the Minister know of any other country of the European Union where, immediately following a summit meeting, the conclusions have been brought to the attention of the national parliament and discussed by it? Is not the fact that we are probably alone in doing that an additional reason for clinging to our parliamentary democracy and repudiating the idea of a European superstate which, the German Government have informed us, is the real and only reason for pressing for a single currency?
Viscount Cranborne: My Lords, perhaps fortunately I am not responsible to your Lordships' House for the proceedings and procedures of other parliamentary assemblies within the European Union. Therefore, I must ask your Lordships to draw your own conclusions from my noble friend's remarks. However, it is extremely fortunate, above all, that your Lordships are in a position to examine closely and with authoritative detail the directives that are sent our way from Brussels, and indeed that we are able to give these matters the degree of parliamentary scrutiny which perhaps, dare I say it, is a matter of some pride and self-congratulation for this place.
With regard to the general point made by my noble friend, I note with keen approval the frequent allusions of my right honourable friend Mr. Douglas Hurd, during his most distinguished tenure as Foreign Secretary, to his objective of building a Europe of nations.
Lord Barnett: My Lords, I should like to take up the point raised by the noble Lord, Lord Beloff, a moment ago. In discussing the agenda for the IGC, the Reflection Group unanimously made clear that it was not in favour of a superstate.
Reverting to the point made by the Prime Minister about economic and monetary union, can the Minister confirm that, however many states go in at the outset, under Maastricht if all those states—or even a minority of those states—meet the criteria, there will be a single currency? Perhaps he would confirm that for us.
Secondly, the Minister raised the issue of whether a Labour Government would automatically go into a single currency by 1999. I cannot speak for a future Labour Government. But will the Minister make quite clear that the Prime Minister has not ruled out—at least the Chancellor of the Exchequer has not ruled out—that they would possibly join a single currency (which I gather is now called a European currency for a number of reasons) and might well join a single currency by 1999, if we meet the criteria, as now seems extremely likely? Will he confirm that?
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Perhaps the Minister will also answer another question. He may know that only the Members of your Lordships' House are discussing the important issue raised by the Prime Minister; namely, the issue of the ins and outs. That is to say, if there is to be a single currency, what will be the consequences for countries, like the United Kingdom, if they do or do not join? There would be consequences, as I am sure the Minister is aware. The all-party Select Committee which I have the honour to chair is looking at precisely that question which the Prime Minister raised. It is a vital question. Would the noble Lord the Leader of the House be willing to come and give evidence to that Select Committee, or would he persuade the Prime Minister to come and give evidence to it? I am sure that all the members of the committee would be delighted to hear from them.
Viscount Cranborne: My Lords, I am sure that if a number of members of the European Union qualify under the Maastricht criteria and decide to proceed with a single currency, it is possible that the single currency will happen. As the noble Lord knows—none better—unless that transition is accomplished with care, there could be some very serious consequences for both those who join and those who do not join, which could do a great disservice to the idea of an economically prosperous and stable Europe. We do not differ about that.
The noble Lord asked whether my right honourable friend has ruled out a single currency. I point out to him—again he knows far better than I do—that no parliament can bind its successor. That is axiomatic in our parliamentary proceedings. It is perfectly sensible for my right honourable friend and the Government as a whole to keep their options open. It would have been extremely foolish for any government to have said, "We shall opt out of the single currency no matter what happens", if only for the obvious negotiating reason that, contrary to what the noble Lord, Lord Richard, said, nobody would take us as seriously as they do in the councils of Europe. They would not do so if it were not clear that we are vitally interested and are taking a central part in the negotiations, particularly of the kind of matters that the noble Lord mentioned and what he called the ins and outs.
With regard to giving evidence to his committee, it would be very unwise for any Leader of your Lordships' House to dream of saying no to such an invitation, although I suspect that there may be people more technically qualified than I who are able to answer the questions of his committee with the assurance that he would expect of Members of the Government. Nevertheless, if the noble Lord invites me, certainly I shall not have the nerve to refuse. So far as concerns my right honourable friend the Prime Minister, I shall of course transmit his kind invitation in principle. No doubt my noble friend will answer any particular invitation with his usual empressement and courtesy.
Lord Shaw of Northstead: My Lords, it has been said that the Prime Minister was in a lonely position at Madrid. Is it not a fact that leaders who are giving a lead often find themselves in a lonely position? The crux

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must be whether in fact the lead that is being given will be followed by others in the months and years ahead. I am convinced that the value of what the Prime Minister has done at Madrid will be appreciated more and more.
Perhaps I may ask my noble friend a question relating to the IGC. I understand that it is to start on 29th March. Will it be of limited duration or a continuing conference? I have in mind that Italy's presidency will finalise in June. It is sometimes unfortunate that at the end of a presidency there is felt a need to produce a final statement when conditions are not always right for that final statement. It would be better, in my view, to allow the conference to be ongoing rather than seek to bring it to an end at a specific time.
Viscount Cranborne: My Lords, I am grateful to my noble friend for his remarks in relation to the qualities of leadership being shown by my right honourable friend the Prime Minister. I wholly concur with what he said. It is worth underlining the changed nature of the discussions being conducted in European forums, substantially as a result of the practical questions which my right honourable friends and ministerial colleagues ask. With regard to the duration of the IGC, it is fair to say that we can be pretty sure that it will last rather longer than the expected end of the Italian presidency. It will probably spill over into 1997.
Lord Bruce of Donington: My Lords, I am sorry that the noble Lord, Lord Jenkins, is not in his place. I feel sure that the whole House would not wish to endorse his remarks that if one is isolated, one is essentially wrong. There have been many times in our island's history when we have dissented from most of the countries of Europe and indeed other countries as well. Those with some experience of these matters in the 1930s will not be unaware that we have been known to be right. Therefore, to argue about this matter on the basis that we must be wrong because we are isolated is a lot of nonsense. It is unworthy of any intellectual appreciation with which one would normally credit the noble Lord, Lord Jenkins of Hillhead.
What seems to have escaped the noble Viscount opposite and, because of the pressures of time, has not yet been picked up by my noble friend on the Front Bench, is the fact that the whole of the proceedings in Madrid were dominated by the German Government. There can be no doubt about that. Anyone who saw the press reports knows perfectly well that it was Herr Kohl who laid down how the proceedings should go. He embarked upon a unique criticism of the President of the Commission and generally thought that the world—and in particular the United Kingdom—would have to do exactly what it was told or else. That is hardly the way in which international conferences ought to be conducted.
I am bound to draw to the attention of the noble Viscount and remind the House as a whole, though Members are probably aware of it, that on 22nd January 1963 the treaty of Elysé was entered into between Germany and France. It bound the two countries together to consult and determine their position before any matters were raised before the European Economic
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Community. The core of Europe is already there, enshrined in a treaty. It would be odd if we were able to enter it now. Surely it is possible to adopt a more rational attitude.
I was surprised that in the recent budget negotiations, whether or not qualified majority voting was applied, Her Majesty's Government voted£41 million to the Commission in order to popularise throughout Europe the whole question of the single currency. It is surprising also that£5 million of British taxpayers' money is to be devoted to propagating a cause by the Commission when the Government and the Opposition are not clear whether they want to enter it.
I hope that those matters can be clarified. They are of great importance. When one reads through the communiqué one finds—I am bound to say that I agree with my noble friend on the Front Bench, a unique occurrence—that the Government assented by supporting the document (there is no question of majority voting) that binds them hook, line and sinker. Unfortunately, in the absence of dissent from the noble Lord representing Labour interests, we have no indication that it would have dissented either.
Viscount Cranborne: My Lords, our debates in the wake of Statements of this kind would be the poorer were it not for the contributions of the noble Lord, Lord Bruce. However, I am not clear to what he thinks the Government have been bound "hook, line and sinker". If it is to economic and monetary union, I refer him to the opt-out, which we and the Danes are the only ones to enjoy.
I wholly follow the noble Lord's logic on the question of isolation. I always say to my children that just because everybody does it does not mean that it is right. I am pleased to find that, as I tried to say a few moments ago, our isolation on key matters is becoming much less of a factor as our partners come closer to us, particularly on the key matter of unemployment and what economic measures need to be taken in order to reduce it and, if possible, eliminate it.
With regard to the domination of the German Government, I wonder whether our Spanish friends would have agreed as they scurried round Europe trying to fix the agenda and give priority to those matters, particularly relationships with Latin America, which played such a large part in the arrangements. It would be a little discourteous for me to go along with the noble Lord. Domination by Germany is not part of our agenda; partnership is.
On the matter which the noble Lord thought so surprising, I confess that I find it surprising also.
Lord Stoddart of Swindon: My Lords, I too am sorry that the noble Lord, Lord Jenkins, is not in his place. He alleged that the British Prime Minister had been "brushed aside". I hope that the Leader of the House can give us an assurance that the British Government, which represents 60 million people, are never brushed aside; will not allow themselves to be brushed aside; and would say that this is not a partnership where the majority, whatever it may be, brushes one of the other partners aside. I want that assurance and I want it this afternoon.

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Further, is the noble Viscount aware that we should not allow ourselves as a country to be driven by German political ambition into the madness of EMU and a single currency? In that connection, can he say what is meant on page 7 by,
"irrevocable fixing of conversion rates".
What does that mean? We were able to opt-out of the ERM when it was claimed that it was destroying our economy. According to:his document, apparently we cannot ever opt-out of a single currency and the EMU even if it is plain for everyone to see that they are destroying our economy. Can the noble Viscount comment on that?
Finally, will the committee which is to look into the matter consider the taxation implications for the British people, particularly if expansion goes on towards the east? Those countries will need enormous subsidies if they are ever to be able to join the new European monetary union and a single currency. Those are some of the matters that need to be addressed not only by noble Lords and the Government opposite, but also by my own Front Bench. The sooner the whole country, including political parties, gets down to a realistic examination of this problem, the better it will be.
Viscount Cranborne: My Lords, I can certainly give the noble Lord the unequivocal assurance he needs that this country will certainly not be "brushed aside"—to use his phrase and that of the noble Lord, Lord Bruce. As I have tried to explain, that has been the tenor of the Government's approach. It is an assurance which his own noble friends are quite incapable of giving him
I am sure that the country as a whole will note that.
As regards the single currency point, paragraph 4 on page 7 says:
"The scenario"—
always a ghastly word to use—
"provides for transparency and acceptability, strengthens credibility and underlines the irreversibility of the process".
I understand that that means that once the exchange rates have been fixed during the transitional period, that is irreversible; otherwise the exchanges themselves would be subject to some pretty powerful market forces of a kind which would destroy the process. That is my understanding of the word "irreversibility" which, I am advised, has a particular Euro-jargon meaning in matters of this kind.
As regards the taxation implications, I am beginning to wonder whether the noble Lord should cross the Floor and join us because that is precisely what has been worrying my right honourable friend. He wants to make absolutely sure that the desirable expansion of the European Community does not lead to a vast increase in the expense of the CAP or of the cohesion funds. That is going to be one of our principal bargaining objectives in the months and years to come. I fully
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expect that other partners will see the justice of that, particularly as so many of them are now net contributors like ourselves.

Criminal Procedure and Investigations Bill [H.L.]
4.42 p.m.
House again in Committee on Clause 1.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 2:
Page 2, line 1, at end insert ("or not").
The noble Lord said: In moving this amendment I shall speak also to Amendment No. 101. This is a much more simple amendment and one which should cause the Committee and, I hope, the Government, no difficulty. I believe that it is generally recognised that the role of the police, or any other body involved in an investigation, is not simply to collect material which would indicate the guilt of an accused, but to collect material which will enable the court to decide whether the accused is guilty or not. That should be the basis on which the police investigation is carried out and it should be the wording in the Bill. Yet, curiously, Clause 1(4) states,
"For the purposes of this section, a criminal investigation is an investigation which police officers or other persons have a duty to conduct with a view to it being ascertained—

(a) whether a person should be charged with an offence, or

(b) whether a person charged with an offence is guilty of it".

Surely, in reality it should be whether a person charged with an offence is guilty of it "or not". Before and after the decision is made to charge somebody, it is still the responsibility of the police or the investigators to be as objective as possible in the way in which evidence is collected. I am very well aware, not only as a non-lawyer, but as a market researcher, that one gets more accurate answers to a question which asks, "Do you think that this should happen or not?" rather than asking a question which is implicitly one-sided; namely, "Do you think that X should happen?". Surely the same applies to police investigations. The alternative is there and it should be included. I beg to move.
Lord Campbell of Alloway: Surely this amendment is unnecessary. Clause 1(4) states,
"with a view to it being ascertained".
If one tries to ascertain something, then one is trying to ascertain whether a person is guilty or not. I wish to give an explanation to the Committee. I supported the Government on the previous amendment although I had considerable misgivings. I realised that if I did not I would break wide open the structure of Part I of the Bill. My noble friend the Minister has done her very best to provide us with a mass of material to follow the principles of each amendment satisfactorily, but I have found that very difficult to do because of the state of the material which we have.
Baroness Blatch: I am grateful for the intervention from my noble friend. He is right in that I believe that

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we can allay the concerns of the noble Lord. The process of considering whether a person is guilty of an offence must also include considering whether he is not guilty. In fact, the key word in Clause 1(4)(a) and (b) is "whether" and that is the first word in each line. It would be a different matter if the Bill defined a criminal investigation in terms of ascertaining that a person was guilty of an offence rather than whether he was guilty, but it does not. Therefore, these amendments are unnecessary.
Lord Rodgers of Quarry Bank: I believe that the arguments of the noble Lord, Lord McIntosh, are important and the burden of his message clear. I hope that the Committee will endorse it. Can the Minister say whether the form of words on the face of the Bill is a convention in parliamentary drafting? If it is, then I shall certainly not want to press the argument further, but if it is a departure from convention in comparable circumstances, then we need a further explanation.
Baroness Blatch: I cannot give an absolute answer to that. However, if one asks whether a person is guilty of an offence, then in asking whether they are guilty one is implicitly asking whether they are not guilty of it. I have stood here many times answering the point. I am reminded that this House is not always impressed with the argument that because something has always been done in a certain manner, that it should always be done like that. The important factor is whether the wording here reflects what we want it to reflect; namely, that it is subsumed in that a person may be guilty or not guilty.
Lord McIntosh of Haringey: Perhaps I may refer first to the words of the noble Lord, Lord Campbell of Alloway. He is of course fully entitled to take whatever view he wishes about the previous amendment. However, I do not believe that he is right to say that Amendment No. l would have broken open the whole structure of Clause 1. Its structure is complicated and on it depends the introduction of a number of other clauses, and Clauses 3 to 5 in particular. We took care to make sure that the structure of Part I of the Bill, which is more important, survived the amendment which we thought was necessary. I do not take too kindly to the implication that we have not thought about our series of amendments.
My response to the Minister as regards Amendment No. 2 and the subsequent amendment, can only be that she does not really recognise the English language "as she is spoke". We do say, "Whether or not" and "Guilty or not". We do that perhaps with an element of repetition, but in order to make clear that our minds are open as to the outcome of any investigation. It is simply not good enough to say that "whether" implies "whether or not" when the noble Baroness knows as well as I do that the English language commonly consists of putting the two alternatives. It is particularly important that the two alternatives should be put into a description of police investigations because it is particularly important that Parliament should insist that police investigations are objective and that they seek the truth rather than that they seek a particular outcome which is convenient to the police and the prosecution.
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I note that the Minister was not able to tell the noble Lord, Lord Rodgers, that the omission of the words "or not" is common in legislation. I do not feel that that issue has been adequately answered. However, as it may be considered a higher level drafting issue, it is not one on which I wish to seek the opinion of the Committee. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 3:
Page 2, line 4, leave out ("made by statutory instrument").
The noble Baroness said: It may be for the convenience of the Committee if in moving Amendment No. 3, I speak also to Amendments Nos. 13, 27, 30, 35, 50, 53, 57, 98, 104, 126, 129, 131 to 134, 141, 151, 156 and 159.
All of those amendments are designed to tidy up the Bill by removing unnecessary duplication in the way in which the Bill provides for orders or regulations to be made. They achieve this by adding one new clause after Clause 46 and removing or re-drafting other provisions in consequence.
First, in Clauses 1, 18, 21, 32 to 38, 44 and 45, the Bill refers to a day appointed by the Secretary of State by order made by statutory instrument. The amendments remove the words "made by statutory instrument" from all these clauses. They reappear in subsection (2) of the new clause after Clause 46, which provides that orders made under the Bill are to be made by statutory instrument.
Secondly, Clauses 3, 5, 6 and 7 each require the prosecutor or the accused to comply with the requirements of the clause before the end of a certain period. The period is described as consisting of a number of days to be prescribed, starting on the relevant day. The relevant day is different in each case: in Clause 3 it is where the accused pleads not guilty at a summary trial or where proceedings are transferred to the Crown Court. In Clauses 5 and 6 the period begins on the day when the prosecutor complies with Clauses 3. In Clause 7 the period begins on the day when the accused complies with Clauses 5 or 6. The number of days is to be specified in an order made by statutory instrument subject to the negative resolution procedure. The amendments to these clauses provide that the prosecutor or the accused must act within a period beginning and ending with such days as are prescribed by the Secretary of State by regulations. Subsection (3) of the new clause after Clause 46 provides that the regulations are to be made by statutory instrument subject to the negative resolution procedure. I should explain that we now take the view that the most appropriate means of prescribing the period is by regulations rather than by order, just as, for example, custody time limits are specified in regulations, and the amendments provide accordingly.
Clause 10 currently refers to the specified period described in Clauses 5 and 6. The three amendments to Clause 10 are consequential on the amendments to Clauses 5 and 6 which I have just described.
Finally, subsection (1) of the new clause after Clause 46 provides that the power to make appointed day orders, and regulations under Clauses 3, 5, 6 and 7, may be exercised differently in relation to different cases or classes of case. In particular, the power may be exercised differently in relation to different areas, enabling the Secretary of State to bring Part III of the Bill into force on different days for different places, that is, for different Crown Court centres. The amendment to Clause 21 removes subsection (2) in consequence. I beg to move.
Lord McIntosh of Haringey: The whole issue of order-making powers and regulation-making powers exercised the Delegated Powers Scrutiny Committee, which received a lengthy memorandum from the Home Office on the subject. The very fact that we are now considering 19 amendments—and therefore 19 different provisions in the Bill—is evidence that this is one of those pieces of legislation which relies heavily on delegated powers. However, the Delegated Powers Scrutiny Committee concluded that since most of those powers are already part of delegated legislation (because they refer to the operation of the courts) this is an appropriate use of order and regulation-making powers and continues the same procedures.
As the Minister said, Amendment No. 159 is the important amendment. It introduces a new clause. The Committee should note that that new clause states that it is the power to make regulations rather than orders which is exercisable by statutory instrument subject to annulment—in other words, by the negative procedure. One never likes a Bill which contains so much delegated legislation, but I think that we can accept that in this case what is now proposed is a tidying up and that there is no particular threat in the new clause which it is proposed to insert after Clause 46.
Lord Rodgers of Quarry Bank: I would not dissent from the conclusion of the noble Lord, Lord McIntosh, but in view of the exchanges that took place before the committal of the Bill, perhaps I might say that I too was immensely grateful for the courtesy and helpfulness of the Minister in making papers available, including the comparison, for which I asked on Second Reading, between the Royal Commission report, the disclosure consultation document arid the Bill. That must have required an immense amount of work and the whole Committee should be grateful for that.
However, the fact that It and others take that view of the Minister's contribution does not absolve us from still regretting that the Bill was drafted in the form that it was. As the Minister said—and as she stated in her initial letter in which she set out the changes that the Government are making—the present Bill contains an unnecessary duplication and, to follow both the Minister's words and those of the noble Lord, Lord McIntosh, a process of tidying up is taking place. I do not want to dissent from that, but I see no reason whatsoever why that tidying process should be necessary now. It would have been an easy drafting
1436
point to ensure that those separate provisions within the Bill were contained in a single clause. That is being done now, but it should have been done earlier.
Lord Campbell of Alloway: May I seek clarification on one aspect? I raised this point on Second Reading. Is the code of practice to be introduced by an order under subsection (2) by statutory instrument, but not be subject to any parliamentary scrutiny? Is that the position?
Baroness Blatch: Yes, it is.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Clause 2 agreed to.
Clause 3 [Primary disclosure by prosecutor]:
Lord Airedale Lord Airedale moved Amendment No. 4:
Page 2, line 20, leave out ("prosecution material") and insert ("material in his possession").
The noble Lord said: We are invited to discuss Amendments Nos. 4 and 6 together. We now come to Clause 3, which deals with primary disclosure by the prosecutor. In paragraph (a) of Clause 3(1) we find the expression "prosecution material". To begin with, I do not regard that as the language of statute. Surely "material in the possession of the prosecutor" would be preferable. Furthermore, "prosecution material" leads one to suppose that you are talking about material which is in favour of the prosecution, but that clearly is not the case because paragraph (a) refers to,
"prosecution material which...might undermine the case for the prosecution".
That does not seem to make much sense.
In Amendment No. 6 I have tried to get rid of the expression about undermining the case for the prosecution. It is just a question of relevance: whether the material in the prosecutor's possession is relevant. He does not have to consider whether or not it undermines his case. He does not have to consider whether he thinks that it is useful material or material which is not worthy of much belief. If it is relevant, he has to disclose it. That is what the amendment does. It substitutes relevance for the untidy wording about undermining the prosecution's case.
On Second Reading, the noble Lord, Lord Renton, said:
"I welcome the Bill in substance but must say that, although the drafting seems to achieve its intended legal effects, it is a little spun out and laborious. I am quite sure that it could have been drafted more succinctly".—[Official Report, 27/11/95; col. 479.]
I hope that Amendments Nos. 4 and 6 take us a little way along the road that the noble Lord, Lord Renton, would like to see us go. I beg to move.
5 p.m.
Lord Campbell of Alloway: On Amendment No. 6, it is essential that the words,
"which in the prosecutor's opinion might undermine the case of the prosecution against the accused",

1437
remain. That is a safeguard and must surely be retained. As to Amendment No. 4, it is a question of grammar. I understand what is said.
Baroness Blatch: On the first amendment tabled by the noble Lord, Lord Airedale, I am not sure whether he intended it but it has the effect of narrowing the range of material to which the disclosure duty in Clause 3 applies. It restricts it to material in the possession of the prosecutor, thereby excluding any material in the possession of the police rather than the prosecutor but which the prosecutor has inspected. As Clause 3(2) makes clear, both kinds of material are intended to be subject to the disclosure test. As it stands, the amendment weakens the protection for the accused provided by the Bill.
The second amendment has significant implications for the disclosure scheme in the Bill. Clause 3 currently requires the prosecutor to disclose prosecution material which he thinks might undermine the prosecution case. The amendment would widen that test significantly to require the disclosure of material which the prosecutor thought might be relevant. This is very similar to the disclosure test operating under the current law.
I can understand why the noble Lord wants to amend the clause in that way. He believes that it would reduce the risk of a wrongful conviction if the accused had access to all relevant prosecution material rather than just material which might undermine the prosecution case. But I believe that the provisions in the Bill are themselves adequate to guard against a wrongful conviction. The disclosure tests we have provided focus attention on material which might undermine the prosecution case or which might reasonably assist the defence disclosed by the accused. The prosecutor must disclose all material falling within the tests, subject to considerations of public interest, or provide a written statement that there is no such material. At the time of primary prosecution disclosure he must give the accused a schedule listing all material which has been retained and which is not subject to public interest considerations. The police will have to certify to the prosecutor that they have complied with the requirements imposed on them under the code of practice.
What is more, I am afraid that the amendments proposed by the noble Lord have some significant drawbacks. These are the same as those applying to the current disclosure test. We explained in the consultation paper on disclosure which we issued earlier this year what those drawbacks were and why we intended to narrow the test for prosecution disclosure in the way we have done. I will summarise the reasons, because it is important to put them on the record.
First, a test of relevance includes everything which might possibly have a bearing on the case. But that is very different from whether it has a bearing on the defence which the accused actually relies upon in court. The effect of the current test is that the police often have to photocopy and deliver large volumes of material to the accused, much of it unnecessary in that it is completely irrelevant to the actual defence. Where it is unnecessary it
1438
is also inefficient. It imposes significantly higher burdens on the police than the test we propose, and diverts police resources away from their primary task of fighting crime.
Secondly, a test as wide-ranging as "relevance" does nothing to narrow the issues in dispute in the case. The test we propose contributes to that by focusing on material which the prosecutor thinks might undermine the prosecution case. In conjunction with defence disclosure, and secondary prosecution disclosure of material which might reasonably assist the defence, our proposals will ensure that cases are much better prepared for trial than at present.
Thirdly, a test of "relevance" is inconsistent with the rest of the disclosure scheme. If the prosecutor discloses everything which might be relevant, there is no point in requiring secondary prosecution disclosure of material which might reasonably assist the defence, because there will be nothing left to disclose. The accused will accordingly be deprived of the benefit of the prosecutor reconsidering undisclosed prosecution material in the light of defence disclosure to assess whether any particular items of material might reasonably assist the defence case.
For all of those reasons, I hope that the amendment will not be pressed. The noble Lord referred to "prosecution material", and said that it was not statutory language. "Prosecution material" is defined in Clause 3(2) in terms which incorporate the language in the amendments tabled by the noble Lord, Lord Airedale. It goes further and includes material that the prosecution has been allowed to inspect.
Lord Airedale: I must say that I have had a full and thorough answer from the Minister. That may be partly because I put down my amendments in good time. One does not cure an inelegant phrase by defining it somewhere else in the Bill. However that may be, this is not the first time that I will have disagreed with something said by the noble Lord, Lord Campbell of Alloway. Nevertheless, I must read what the Minister said. In the meantime, I beg leave to withdraw the amendment.
Baroness Blatch: Before the noble Lord sits down, perhaps I may put on record that I believe that the noble Lord said that it is no good defining the phrase in another part of the Bill. It is in fact defined in Clause 3(2) which states:
"For the purposes of this section prosecution material is material—

(a) which is in the prosecutor's possession, or

(b) which he has been allowed to inspect in pursuance of a code operative under Part II".

So the definition is included within the same clause.
Lord Airedale: I do not mind where the phrase is defined. Defining something does not make it an elegant expression. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 5:
Page 2, line 21, leave out ("in the prosecutor's opinion").
The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 9, 10 and 43. With Clause 3(1)(a) we come to what are perhaps the most important few lines in the Bill. They are important, first, because they use the phrase:
"material which has not previously been disclosed".
Of course, what has been previously disclosed depends upon Part II and the code of practice, which goes only to confirm the view I expressed on Second Reading that Parts I and II of the Bill are back to front. In chronological and logical terms, and to make it easier to understand, we should be pursuing the process from the investigation through to conviction or acquittal and indeed afterwards.
Part I is spelt out in great detail but it is dependent on the code of practice, which is the substance of Part II. We must debate Part II having already debated Part I. That opinion is reinforced by the Minister's reminder that the definition of prosecution material is contained in Clause 3(2)(b), which states:
"which he has been allowed to inspect in pursuance of a code operative under Part II".
If we are to understand the meaning of that we should be dealing with a code operative under Part II before we deal with the statutory provisions contained in Part I. We have tabled a number of amendments to Clause 3(1)(a) which seek to clarify and strengthen the definition of what must be disclosed by the prosecutor at the primary disclosure stage.
Incidentally, I was most taken aback by what the Minister said in response to the noble Lord, Lord Airedale. She said that if the primary disclosure were to be too wide it would make it impossible to have an effective secondary disclosure. I do not see that at all. It seems to me that one has a primary disclosure which is as wide as is necessary to make the defence disclosure effective. There is no reason why there should be a subsequent secondary disclosure, except when other information has come to light as a result of the primary disclosure. That will still be the case. A three-stage process is not being pursued for the sake of doing so. If it can be cut down one cuts it down. One retains with the secondary disclosure procedure the opportunity for either the defence or the prosecution to make sure that the material which should be disclosed is in fact disclosed. I was not at all impressed by the argument that one must restrict primary disclosure for that purpose.
The particular issue with which we are concerned in these four amendments is the phrase which occurs four times, and which we seek to leave out four times, "in the prosecutor's opinion". It cannot be right for the statutory test of what is disclosed to be in the prosecutor's opinion. Of course the prosecutor must form an opinion, but the statutory test ought to be that which, to use the phrasing of Clause 3(1)(a),
"might undermine the case for the prosecution".
Otherwise, the prosecutor will form an opinion, however well or badly he may reach that conclusion, and there is no appeal or argument against it. If it turns out to be wrong his defence is, "That was my opinion. I don't hold to it now but it was my opinion at the time and
1440
it was the basis on which I withheld that material or information". That cannot be satisfactory. It must be the case that in all such proceedings there is in the end, and in the event of challenge, an objective test. It must be possible for the court to decide whether the material was relevant or not and not simply be turned aside by the historical fact that the prosecutor at that time formed the opinion that it was not relevant or did not fall within the terms of Clause 3. I beg to move.
Lord Campbell of Alloway: There is an inter-reaction with paragraph 2(d) of the code of practice, which is a draft code. There the prosecutor is defined as:
" the authority responsible for the conduct of criminal proceedings on behalf of the Crown".
That authority—an authority—does not have an opinion but, according to the code, it may delegate particular duties to individuals. On delegation, that individual has an opinion. It does not read very happily in context with the way in which the code has been drafted.
Lord McIntosh of Haringey: Perhaps I may respond to that point. I do not believe that my argument for the amendments depends on who the prosecutor is. In introducing them I made it clear that I accept that the prosecutor will have an opinion. That is the case whether there is one prosecutor or a prosecutor delegating his responsibilities to other people. The point is that, unless there is an objective test, when there is a challenge as to whether something falls within the conditions of the clause, as the Bill is drafted there will be a complete answer saying, "That was my opinion. I do not hold to that opinion but that was the case at the time".
Lord Campbell of Alloway: I did not misunderstand the noble Lord. As he put the matter then, he put it quite clearly previously. All I am seeking to show is that, as drafted, if the code goes in the prosecutor is defined as the authority. The authority as such does not have an opinion. The person who has the opinion is the person to whom it is delegated. It is not a nit-picking point. It is a point which, with respect, ought to be addressed.
5.15 p.m.
Baroness Blatch: The point is that the prosecutor has an obligation to disclose. It is for the prosecutor to make a judgment as to what should be disclosed. That must meet the code of practice and the obligations under the law as it would be if the Bill passed into statute.
As I understand it, the main purpose of these amendments is to change the test for primary prosecution disclosure from a subjective test, reliant on the opinion of the prosecutor, to an objective test. In effect, material would be disclosed if in the opinion of a reasonable person it might undermine the prosecution case, rather than if the prosecutor thought it might have that effect.
The effect of an objective test would be to make the decision of the prosecutor subject to review in the courts. If the accused wanted to, he could challenge the decision on whether material undermined the

1441
prosecution case by seeking a judicial review. I do not think he would succeed in relation to Crown Court cases because the prosecutor's decision would seem to fall within the category of matters relating to trial on indictment which are excluded from judicial review. But no such exclusion applies in summary cases. There would be the potential for delay in a large number of summary cases if the accused sought a review of the prosecutor's decision. Similar considerations apply to the second and third amendments to Clause 3 and also to the amendment to Clause 9.
I also believe that there is a distinction to be drawn between the test for primary prosecution disclosure in Clause 3 and secondary prosecution disclosure in Clause 7. In Clause 3 the prosecutor is required to consider the effect of undisclosed prosecution material on the prosecution case. The only criterion that he can apply is his own judgment. But in Clause 7 the prosecutor is required to consider the effect of undisclosed prosecution material on something other than the prosecution case; that is, on the defence case as disclosed in a defence statement. This makes it easier to consider objectively rather than subjectively what might reasonably assist the defence that has been disclosed. And because the test in Clause 7 is an objective test it is open to challenge in the courts. Clause 8, accordingly, provides for the accused to make an application to the court.
In the light of this explanation, I hope that the amendment will not be pressed.
Lord Campbell of Alloway: That does not quite work. On analysis, it is not a question of judicial review, objective or subjective, or anything like that. As regards non-disclosure in Clause 19(3) there is a sanction for breach of the code. We are not concerned with judicial review at all. My noble friend has not dealt with the curious form of drafting in which an authority has an opinion. That was the point to which I was addressing my criticism.
Baroness Blatch: Of course, we are at an early stage of the Bill and I shall always take back points which have been raised and continue to inspect the drafting. My understanding is that the prosecutor is under a duty to disclose information which he believes will undermine the prosecution case, whereas I understand that the effect of the amendment would be for the prosecutor to stand in the shoes of a third reasonable person and make judgments about what a reasonable person might consider to be disclosable material. That could be challenged and could give rise to judicial review.
Lord McIntosh of Haringey: I hope that the effect of a challenge would not be a judicial review. That would be a gross abuse of that process, which is already being abused too often in our legal system. Judicial review should be the last resort when a piece of legislation is inadequately drafted. And I suspect that this legislation is inadequately drafted.
The noble Lord, Lord Campbell of Alloway, made a good point which I did not appreciate the first time that he made it. I am grateful to him for making the point
1442
so clearly the second time; namely, that it is extremely difficult for an authority, as opposed to an individual, to have an opinion. I am sure that, in turn, he will recognise that I have made it easier for the Committee to understand the point which he makes by including the whole text of the code of practice in Amendment No. 162 so that it is available to all Members of the Committee.
The fundamental point has not been answered; namely, in this series of amendments there should be an objective test of what is and what is not relevant. The Minister describes that as the prosecutor putting himself in the place of a reasonable Person. I do not dissent from that. If that is the way in which an objective test is defined in law, so be it. It is right for the prosecutor to do that.
It should not be that the opinion of the prosecutor cannot be challenged subsequently in any way, whether by judicial review or as part of the process of the case with which the disclosure is concerned. It should not be possible for the prosecutor to say subsequently to anybody, whether to a judge making a judicial review or a trial judge, "I may have been wrong but that was my opinion and you cannot do anything about that because the law says that it is only my opinion which matters". That cannot be right. I am not satisfied with the Minister's answer and I should like to test the opinion of the Committee.
5.22 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 67; Not-Contents, 111.

Division No. 2

CONTENTS

Addington, L.

Jay of Paddington, B.

Airedale, L.

Jeger, B.

Archer of Sandwell, L.

Jenkins of Hillhead, L.

Barnett, L.

Jenkins of Putney, L.

Beaumont of Whitley, L.

Kilbracken, L.

Birk, B.

Kirkhill, L.

Bruce of Donington, L.

Longford, E.

Carmichael of Kelvingrove, L.

Lovell-Davis, L.

Cocks of Hartcliffe, L.

McGregor of Durris, L.

Craig of Radley, L.

McIntosh of Haringey, L.

Dahrendorf, L.

McNair, L.

David, B.

Mallalieu, B.

Dean of Thornton-le-Fylde, B.

Mar and Kellie, E.

Desai, L.

Mason of Barnsley, L

Donaldson of Kingsbridge, L.

Merlyn-Rees, L.

Dormand of Easington, L.

Milner of Leeds, L.

Falkender, B.

Monkswell, L.

Falkland, V.

Morris of Castle Morris, L [Teller]

Farrington of Ribbleton, B.

Geraint, L.

Ogmore, L.

Graham of Edmonton, L. [Teller.]

Peston, L.

Grey, E.

Prys-Davies, L.

Hamwee, B.

Rea, L.

Hanworth, V.

Richard, L

Hams of Greenwich, L.

Rodgers of Quarry Bank, L.

Howell, L.

Russell, E.

Howie of Troon, L.

Seear, B.

Hughes, L.

Sefton of Garston, L.

Hutchinson of Lullington, L.

Serota, B.

1443

Shepherd, L.

Turner of Camden, B.

Stoddart of Swindon, L.

White, B.

Taylor of Blackburn, L.

Williams of Mostyn, L.

Thomas of Walliswood, B.

Winchilsea and Nottingham, E.

Thomson of Monifieth, L.

Young of Dartington, L.

NOT-CONTENTS

Aberdare, L.

Kenyon, L.

Abinger, L.

Kinnoull, E.

Addison, V.

Lane of Horsell, L.

Ailsa, M.

Lauderdale, E.

Aldington, L.

Leigh, L.

Alexander of Tunis, E.

Lindsey and Abingdon, E.

Astor of Hever, L.

Long, V.

Barber, L.

Lucas, L.

Belhaven and Stenton, L.

Lyell, L.

Biddulph, L.

McColl of Dulwich, L.

Blaker, L.

Mackay of Ardbrecknish, L.

Blatch, B.

Mackay of Clashfern, L. [Lord Chancellor.]

Blyth, L.

Boardman, L.

Mackay of Drumadoon, L.

Borthwick, L.

Macleod of Borve, B.

Boyd-Carpenter, L.

Manton, L.

Brabazon of Tara, L.

Marlesford, L.

Brain of Wheatley, L.

Merrivale, L.

Burnham, L.

Mersey, V.

Butterworth, L.

Milverton, L.

Cadman, L.

Monk Bretton, L.

Campbell of Croy, L.

Montgomery of Alamein, V.

Carnegy of Lour, B.

Mountgarret, V.

Cannock, L.

Moyne, L.

Chesham, L. [Teller.]

Munster, E.

Clanwilliam, E.

Murton of Lindisfarne, L.

Courtown, E.

Nelson, E.

Craigavon, V.

Newall, L.

Cumberlege, B.

Orkney, E.

Dean of Harptree, L.

Orr-Ewing, L.

Denton of Wakefield, B.

Pender, L.

Dixon-Smith, L.

Pym, L.

Elles, B.

Quinton, L.

Elton, L.

Rankeillour, L.

Faithfull, B.

Rees, L.

Ferrers, E.

Rennell, L.

Flather, B.

Renwick, L.

Fraser of Carmyllie, L.

Romney, E.

Gardner of Parkes, B.

St. John of Bletso, L.

Geddes, L.

Seccombe, B.

Gisborough, L.

Selborne, E.

Goschen, V.

Shaw of Northstead, L.

Hailsham of Saint Marylebone, L.

Skelmersdale, L.

Harding of Petherton, L.

Soulsby of Swaffham Prior, L.

Harmsworth, L.

Stewartby, L.

Harrowby, E.

Strathcarron, L.

Hayhoe, L.

Strathclyde, L. [Teller.]

Henley, L.

Swansea, L.

Hogg, B.

Swinfen, L.

Holderness, L.

Thomas of Swynnerton, L.

HolmPatrick, L.

Torrington, V.

Hooper, B.

Vivian, L.

Howe, E.

Wakeham, L.

Inchcape, E.

Westbury, L.

Inglewood, L.

Wynford, L.

Kenilworth, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.31 p.m.
[Amendment No. 6 not moved.]
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 7:
Page 2, line 23, after ("accused") insert ("or assist the defence case so far as it is known").
The noble Baroness said: As the Committee knows, Clause 3 sets out the duties of the prosecutor in respect of primary disclosure. As I understand it, its purpose is in part to enable the issues between prosecution and defence to be clarified before trial. The purpose of the amendment is, in effect, to clarify the obligations of the prosecutor at that stage and also to seek to clarify the issues between the parties as early as possible.
Clause 3(1), as amended by the amendment, would require the prosecutor to disclose to the accused not just material which would undermine his case but also any material which would assist the defence case "as it is known". If the defendant has maintained his right to silence and said nothing upon arrest or during later interview, or if he has answered questions but has played his cards close to his chest and not shown his defence, then the amendment would have no effect. The prosecution would be able only to guess what the likely defence would be.
However, where the defence, as is usual practice since the Criminal Justice and Public Order Act came into force, has answered the questions put, and, indeed, has revealed the defence clearly to the Crown, it must surely make sense for the prosecution to disclose the material in its possession which assists the defence case.
Judging by her answer to my noble friend Lord McIntosh of Haringey in relation to Amendment No. 5, the Minister seems to be set upon a subjective test for the prosecutor at that stage. The noble Baroness must appreciate, or try to follow, the difficulties which a prosecutor will be placed in by the clause as currently drafted. Perhaps I may just give some instances of the difficulties involved.
A prosecutor faced with the clause unamended will have to decide whether to disclose material which at present he would disclose without question under the existing common law rule. For example, should he or should he not disclose to the defence previous statements made by a witness upon whom he is going to rely whether or not they are inconsistent? Should he disclose earlier accounts by witnesses which are made in the form of notes by investigators or drafts of statements which are later prepared? That is the sort of material which Mr. Justice Henry (as he then was) ordered should be disclosed in the Guinness trial and which has been disclosed subsequently in criminal cases. Should he or should he not show, for example, information in his possession which demonstrates that the complainant—or, indeed, another witness—has been paid or has sought reward for the account that he will give at the trial?
Should or should not the prosecutor disclose unusual situations of which he is aware and on which he has related material; for example, where a witness has been through his evidence in rehearsal for a television programme or has given his evidence as a result of hypnosis? That may sound far fetched, but there are quite a number of cases coming before the courts now where recovered memory syndrome is relevant and hypnosis has led to the initial complaint.
Under the Bill as drafted the prosecutor's decision as to whether to disclose at that primary stage is subjective. Clearly it is for him to try to determine—and a difficult

1445
task he will have in all those instances and many others—what material undermines his case. The result will inevitably be a considerable degree of inconsistency as between one prosecutor and another. It seems to me that the situation is not only inevitable but also potentially very fraught with danger. I do not pretend that the amendment that I now propose the Committee should consider would remove that danger. However, it does at least give some assistance to a prosecutor who already, from the material before him, knows the nature of the defence. It enables him to ensure that the defence has access to the relevant material to assist it at an earlier stage.
I suggest that it would be ironic if legislation which was intended to prevent what has sometimes been described as the poker game of the defence playing its cards close to its chest and not disclosing the issues were to be turned in effect into a poker game where the Crown was required to withhold material which it knew was relevant to the defence until a later stage in the proceedings. Where material is clearly relevant to a defence of which the Crown is aware, in our submission it must clearly be right that that should be disclosed at as early a stage as reasonably possible so that the issues can be clarified and the establishment of the truth facilitated. I beg to move.
Lord Campbell of Alloway: With respect, would not material known to assist the defence inevitably, as a general rule, undermine the case for the prosecution? If that is right, and although I accept everything that the noble Baroness said about disclosure and its desirability, is it really necessary?
Baroness Blatch: The amendment tabled by the noble Lords, Lord McIntosh of Haringey and Lord Williams of Mostyn, but spoken to by the noble Baroness, Lady Mallalieu, would widen the test for prosecution disclosure but in a different way to the amendments tabled by the noble Lord, Lord Airedale. It would require the prosecutor to disclose under Clause 3 not only material that he thought might undermine the prosecution case but also material that he thought might assist the defence case as far as it was known.
Having considered the matter carefully, I do not believe that it would add anything of substance to the current test in the Bill. The amendment would also introduce an element of uncertainty into what is intended to be a clear and ordered scheme for prosecution and defence disclosure. Let us suppose that the accused has indicated to a police officer an explanation for the offence with which he has been charged. That will be passed on to the prosecutor and will tell him something about what the defence case might be. But if that material points away from the accused, it is very likely to undermine the prosecution case and fall within the existing disclosure situation, which I believe was partly the point made by my noble friend Lord Campbell of Alloway.
Alternatively, let us suppose that the prosecutor does not have material of that kind. Under the wider test, if he tries to guess what the defence might be, based on a rumour or second-hand information, he may have to
1446
disclose all sorts of material which may have no bearing at all on the actual defence. I have to say that I find that both inefficient and unnecessary. The proper means of defence disclosure is a defence statement given under Clause 5 or Clause 6 of the Bill. Until that happens, the prosecutor has no firm indication of what undisclosed material will assist the defence that the accused actually intends to advance. When a defence statement has been given, the prosecutor is then able to assess properly whether he has any undisclosed material which might reasonably assist that defence. I hope that the amendment will not be pressed.
Baroness Mallalieu: I am bound to say that the impetus for this amendment comes from a former senior Treasury counsel prosecuting at the Central Criminal Court. I am concerned because although I fully accept what the noble Lord, Lord Campbell of Alloway, said and that in most cases it will not be difficult for a prosecutor to look at the material and say to himself, "This will undermine my case if the defence see it, and therefore it should be disclosed at the primary stage", there will be other pieces of material where doubt will arise. I have given some instances and I believe that both of us could think of others without great difficulty. Far from being certain as regards the way the clause is presently drafted, in my view it is likely to lead not only to considerable inconsistencies as between one prosecutor and another but also to prosecutors retaining material which might well resolve the issues and, who knows, at the end of the day save a great deal of court time and prevent investigative time as regards the defence from being wasted, most of which is likely to be funded by public funds. I feel that this is a matter of principle. I wish to test the opinion of the Committee.
5.41 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 69; Not-Contents, 99.

Division No. 3

CONTENTS

Ackner, L.

Hamwee, B.

Addington, L.

Hanworth, V.

Airedale, L.

Harris of Greenwich, L.

Archer of Sandwell, L.

Haskel, L.

Beaumont of Whitley, L.

Howell, L.

Blease, L.

Howie of Troon, L

Broadbridge, L.

Hughes, L.

Carmichael of Kelvingrove, L.

Hylton-Foster, B.

Craig of Radley, L.

Jay of Paddington, B.

Dahrendorf, L.

Jeger, B.

David, B.

Jenkins of Hillhead, L.

Dean of Thornton-le-Fylde, B.

Jenkins of Putney, L.

Desai, L.

Kennet, L.

Dormand of Easington, L.

Kilbracken, L.

Falkender, B.

Kirkhill, L.

Falkland, V.

Longford, E.

Farrington of Ribbleton, B. [Teller.]

Lovell-Davis, L.

McIntosh of Haringey, L.

Geraint, L.

McNair, L.

Graham of Edmonton, L. [Teller.]

Mallalieu, B.

Grey, E.

Mar and Kellie, E.

Halsbury, E.

Mason of Barnsley, L.

1447

Merlyn-Rees, L.

Serota, B.

Milner of Leeds, L.

Shepherd, L.

Monkswell, L.

Simon of Glaisdale, L.

Morris of Castle Morris, L.

Stoddart of Swindon, L

Ogmore, L.

Taylor of Blackburn, L

Peston, L.

Thomas of Walliswood, B.

Prys-Davies, L.

Thomson of Monifieth, L.

Rea, L.

Turner of Camden, B.

Richard, L.

Whaddon, L.

Rodgers of Quarry Bank, L.

White, B.

Russell, E.

Williams of Mostyn, L.

Seear, B.

Winchilsea and Nottingham, E.

Sefton of Garston, L.

Young of Dartington, L.

NOT-CONTENTS

Abinger, L.

Howe, E.

Addison,V.

Inchcape, E.

Ailsa, M.

Inglewood, L.

Aldington, L.

Jeffreys, L.

Alexander of Tunis, E.

Kenyon, L.

Ashbourne, L.

Kinnoull, E.

Belhaven and Stenton, L.

Lane of Horsell, L.

Biddulph, L.

Lauderdale, E.

Blaker, L.

Leigh, L.

Blatch, B.

Long, V.

Blyth, L.

Lucas, L

Boardman, L.

McColl of Dulwich, L.

Borthwick, L.

Mackay of Ardbrecknish, L

Boyd-Carpenter, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Brabazon of Tara, L.

Braine of Wheatley, L.

Mackay of Drumadoon, L.

Burnham, L.

Macleod of Borve, B.

Butterworth, L.

Marlesford, L.

Cadman, L.

Merrivale, L.

Caithness, E.

Mersey, V.

Campbell of Croy, L.

Milverton, L.

Carnegy of Lour, B.

Monk Bretton, L.

Carnock, L.

Montgomery of Alamein, V. [Teller.]

Chesham, L. [Teller.]

Moyne, L.

Clanwilliam, E.

Munster, E

Colwyn, L.

Murton of Lindisfarne, L.

Courtown, E.

Nelson, E

Craigavon, V.

Newall, L.

Craigmyle, L.

Orkney, E.

Cumberlege, B.

Orr-Ewing, L.

Dean of Harptree, L.

Pearson of Rannoch, L.

Denton of Wakefield, B.

Pender, L.

Dixon-Smith, L.

Quinton, L.

Elles, B.

Rankeillour, L.

Faithfull, B.

Rees, L.

Ferrets, E.

Rennell, L

Flather, B.

Renwick, L.

Fraser of Carmyllie, L.

Romney, E.

Gardner of Parkes, B.

Selborne, E

Gisborough, L.

Shaw of Northstead, L.

Goschen, V.

Skelmersdale, L

Harding of Petherton, L.

Soulsby of Swaffham Prior, L

Harmar-Nicholls, L

Stewartby, L.

Harrowby, E.

Strathcarron, L.

Hayhoe, L.

Strathclyde, L. [Teller.]

Henley, L.

Swansea, L.

Hogg, B.

Thomas of Swynnerton, L.

Holderness, L.

Vivian, L.

HolmPatrick, L.

Westbury, L.

Hooper, B.

Wynford, L

Resolved in the negative, and amendment disagreed to accordingly.
5.49 p.m.
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 8:
Page 2, line 25, at end insert ("and (except as may be ordered by the court not to be disclosed) disclose to the accused the written witness statements which have been taken so far by the investigator.").
The noble Baroness said: I fully accept that the wording of this proposed amendment may appear to take matters further than I intend. However, I hope that the noble Baroness will look at the amendment, see the mischief at which it is aimed, and, if it needs some tidying up, will undertake that that should happen.
The purpose of the amendment is to ensure that in summary cases the prosecution must disclose to the accused the evidence which it intends to call before the accused is required to serve a defence statement. At present, in many cases no witness statements are served before the trial in a magistrates' court. Advance information may simply require the service on the accused of a statement of the case but no actual witness statements.
Under the Bill as presently drafted an obligation is placed on the prosecution to disclose statements or material which undermine its case but not those which support it. It would, of course, be a nonsense if a prosecutor chose to follow that course, but that is the course which the Bill as presently drafted appears to indicate.
If the wording appears to oblige the prosecutor to serve all material in his possession, that goes very much further than I intend. However, I hope that the noble Baroness will respond favourably to the need to include some provision in this legislation. If the defence is required to serve a statement, the prosecution should serve on it, or at the very least disclose, those statements which will form its case rather than simply those which undermine the case which it proposes to adduce. I beg to move.
Baroness Blatch: Again, as I understand it, the amendment requires the prosecutor, in addition to disclosing material which meets the test for disclosure under Clause 3, to disclose to the accused any witness statements so far taken by the police. The requirement would apply in both Crown Court and magistrates' court cases.
In so far as witness statements form part of the case against the accused, they will already have been provided in Crown Court cases. They may have been provided earlier as part of advance information in respect of offences which are triable either way. There is no such requirement in relation to summary offences, but the great majority of these are straightforward and are currently dealt with extremely quickly. It would not materially assist the accused to have copies of witness statements in advance. Having to provide them would represent a new and unnecessary burden on the prosecutor and would slow down the delivery of justice in magistrates' courts.
In so far as witness statements do not form part of the case against the accused, they will in any event be disclosed to the accused if they might undermine the prosecution case.

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The noble Baroness will note that I reject the amendment, but she posed a question. I am prepared to say that we shall continue to look at the wording, but at the moment, on the face of it, I believe that the amendment is not acceptable.
Baroness Mallalieu: I appreciate that the noble Baroness has had very little time to consider the amendment carefully. However, I suggest that when she does so she will see the nonsense which results from the Bill as presently drafted. I make it clear that I am dealing only with summary trials where the accused may not see the statements which will be used in relation to the witnesses relied on by the Crown. It must be a nonsense for a prosecutor in such a case, when he does not serve those statements on which he will rely, to be required under the Bill to serve the statements which undermine that material.
I hope that the noble Baroness will look carefully at the Bill in the light of what has been said, as she indicated that she will. I hope that she will feel it right, if necessary, to take steps to introduce her own amendments at a later stage to remedy what is at present an absurdity. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 9 and 10 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 11:
Page 3, line 6, leave out ("believes") and insert ("concludes").
The noble Baroness said: It may be for the convenience of the Committee if in moving Amendment No. 11, I speak also to Amendments Nos. 33, 40 and 45, which have the same effect.
The amendment to Clause 3 is a minor amendment improving the description in the Bill of what a court does in considering whether it is in the public interest to disclose material brought before it for a ruling.
The court must weigh the competing public interests involved. For example, there is a public interest in not revealing the identity of persons who give information to the police which assists the detection of crime. There is also a public interest in disclosing material which would enable a defendant to put forward a tenable case in its best light. As the noble and learned Lord the Lord Chief Justice stated in the 1994 case of Keane, if the material may prove the defendant's innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it. However, the court must examine each case on its merits in the light of the particular circumstances. The degree of relevance of the material to the defence is obviously one factor which the court will bear in mind.
Given that the court must conduct a balancing exercise between the competing interests and come to a decision, we think that it is more accurate to say that material must not be disclosed if the court concludes that it is not in the public interest to disclose it than that the court believes that it is not in the public interest to disclose it. Accordingly, Amendment No. 11 replaces "believes" with "concludes" in Clause 3(6), and we have
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tabled identical amendments—Amendments Nos. 33, 40 and 45—to Clauses 7(5), 8(4) and 9(8) to achieve the same effect.
Although he is not in his place, I understand that the noble and learned Lord the Lord Chief Justice also takes the view that "concludes" is a better word to use than "believes" in this context. I beg to move.
Lord McIntosh of Haringey: Who am I to go against the Lord Chief Justice?
This series of amendments serves to propagate the belief that the courts are entirely rational. They do not believe things, they conclu4e them after an exhaustive process of ratiocination. I wish that were the case. I do not believe that it is true, but I am quite content to go along with the pretence which is contained in the amendments.
Viscount Colville of Culross: I entirely agree with this and the subsequent amendments. However, I should like the noble Baroness to confirm one point.
I am looking at paragraph 6.6 of the draft code of practice. I hope that there is no suggestion that the word "believes" there will be changed to "concludes", because it is very important that the prosecutor should be put under a duty to look very carefully and determine what he believes to be in the public interest to disclose. It is crucial that the prosecutor should put before the court all the material in his possession for the court to decide what is or what is not in the public interest to disclose. I hope that there will be no consequential amendment to the code of practice, because that is a totally different matter when it is in the hands of the prosecutor rather than in the hands of the court.
Baroness Blatch: It is my understanding that the noble Viscount is right in his assumption. However, at this stage the code of practice is not a definitive document and will be subject to change. On this particular point I believe that the noble Viscount is right.
On Question, amendment agreed to.
6 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 12:
Page 3, line 8, leave out ("need") and insert ("must").
The noble Baroness said: In speaking to Amendment No. 12 I shall speak also to Amendments Nos. 34, 41 and 46.
Amendment No. 12 is a minor amendment to Clause 3 to make its provisions on intercepted material more consistent with the Interception of Communications Act 1985. As drafted, Clause 3(7) provides that material need not be disclosed if it has been intercepted in obedience to a warrant issued under Section 2 of the 1985 Act or if it indicates that such a warrant has been issued or such material has been intercepted. The intention was to disapply the requirements for disclosure in the Bill as regards intercepted material or material indicating that a warrant had been issued or interception had taken place. Section 6 of IOCA requires the Secretary of State when issuing a warrant to make arrangements to secure that the dissemination of intercepted material is kept to a minimum and that it is

1451
destroyed as soon as it is no longer necessary to retain it in relation to the purposes for which it is issued. Your Lordships sitting in a judicial capacity decided in the recent case of R. v Preston and Others that the destruction of intercepted material was not only a permissible act but one which those responsible were hound by Section 6 to perform. For this reason, on reflection we have decided that it would be more consistent with the terms of the 1985 Act, as considered in that case, to provide that the prosecutor must not, rather than need not, disclose intercepted material. In addition to this amendment, we have tabled identical amendments—Amendments Nos. 34, 41 and 46—to Clauses 7(6), 8(5) and 9(9). I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Broadbridge): I must inform the House that if Amendment No. 13 is agreed to I cannot call Amendment No. 14.
Baroness Blatch Baroness Blatch moved Amendment No. 13:
Page 3, line 13, leave out from ("section") to end of line 24 and insert ("during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.").
The noble Baroness said: I beg to move.
Lord Airedale Lord Airedale: I do not understand the words:
"a period beginning and ending with such days as the Secretary of State prescribes".
Surely, Secretaries of State prescribe dates "on which" things are to happen, not "with".
Baroness Blatch: The noble Lord raises a particularly pedantic point. However, I shall go away and look at the wording. I hope that in promising to look at the word "with" the amendment will be passed.
On Question, amendment agreed to.
[Amendment No. 14 not moved.]
Clause 3, as amended, agreed to.
The Deputy Chairman of Committees: I must inform the Committee that Amendments Nos. 16, 17 and 18 are amendments to Amendment No. 15. The Marshalled List contains a printer's error. Line 5, to which Amendment No. 16 refers, has been placed on the wrong line of Amendment No. 15. It should be one line higher up.
Baroness Blatch Baroness Blatch moved Amendment No. 15:
After Clause 3, insert the following new clause—
PRIMARY DISCLOSURE: FURTHER PROVISIONS
(".—(1) This section applies where—

(a) the prosecutor acts under section 3, and

(b) before so doing he was given a document in pursuance of provision included, by virtue of section 17(3), in a code operative under Part II.

(2) In such a case the prosecutor must give the document to the accused at the same time as the prosecutor acts under section 3.").
The noble Baroness said: The government new clause after Clause 3 is designed to replace Clause 4. As currently drafted, Clause 4(1) requires the prosecutor, when he makes primary prosecution disclosure, to give the accused a document that indicates the nature of
1452
undisclosed prosecution material relating to the offence which the prosecutor believes is not sensitive. Subsections (2) and (3) then define what is meant by "prosecution material" and "sensitive". Because there is no direct reference to what is done in pursuance of a code of practice under Part II, the clause implies that this is a separate document prepared by the prosecutor on the basis of the material obtained by the police. What happens at present—and what we intend to happen in future—is that the prosecutor gives the accused the schedule of non-sensitive material prepared by the police rather than creating a separate document. The new clause after Clause 3 replaces Clause 4 in its entirety. It applies where the prosecutor makes primary prosecution disclosure under Clause 3 and, before doing so, has been given the schedule of non-sensitive material referred in Clause 17(3). He is to give that schedule to the accused at the same time that he makes primary prosecution disclosure. I beg to move.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved, as an amendment to Amendment No. 15, Amendment No. 16:
Line 5, after ("section") insert ("17(2A) and").
The noble Lord said: I indicated a desire to take together Amendments Nos. 16 to 18 and 88. Somehow, in the groupings, Amendments Nos. 15 and 88 have been separated, although clearly they should not be. Amendment No. 16 has to be debated before Amendment No. 15 can be agreed.
I recognise that in some respects the new Clause 4 is a better clause than the one in the Bill as printed. On this occasion I do not refer to the constitution of the Labour Party. The advantage of the new Clause 4 as proposed in Amendment No. 15 is that makes clear that the document to be disclosed is to be produced by the police, not compiled by the prosecutor from police material. That is very welcome. It is also true that the new clause is considerably simpler than the existing clause. I suppose that, even in the absence of the noble Lords, Lord Renton and Lord Campbell of Alloway, we must he grateful for that.
There are still very substantial defects in the new Clause 4, and very substantial ways in which the document referred to is not securely the schedule to which the Royal Commission referred and to which the Minister was good enough to refer in letters to me before Second Reading. It is important that this should not simply be a document which indicates the nature of material, as provided in Clause 17(3), but that it should be specifically a schedule, that it should be complete, that the police should have the duty to ensure that what they provide is complete, that the prosecutor should have the duty to ensure that the disclosure document that he issues is complete, and that the accused should have adequate power to demand the relevant information. That is what my amendments provide for.
Amendment No. 16 is a paving amendment for Amendment No. 88 which provides in Clause 17 a further condition that the prosecutor must be given any material prepared under subsection (2) referred to in new Clause 4, must have access to the material indicated in it, though not necessarily have it in his possession, and may amend the document having himself reviewed

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whether or not it is in the public interest that it should not be disclosed to the accused. The importance of this is that the Bill as drafted, and as it is being redrafted, still provides that it is the police who decide what is sensitive and what is or is not in the public interest rather than the prosecutor. In our view, the prosecutor should make that decision, not the police. In later amendments we deal further with the issue of sensitive material. We have amendments in Part II which spell out in more detail what is listed in the code of practice as sensitive material. It will be seen that the list is very wide. The decision as to what is sensitive and to what is not and what is in the public interest and what is not is a matter of considerable public importance. It should be the prosecutor rather than the investigator who has that responsibility. That is the purpose of Amendments Nos. 16 and 88.
Amendment No. 17 provides that the prosecutor has the responsibility to ensure that the document lists all the material relevant to the offence, the offender or the surrounding circumstances of the case, whether or not the prosecution intend to rely upon the material, in sufficient detail to enable the material to be correctly identified. This is the crux of the matter as far as the schedule is concerned. This is what a schedule is for. It is a complete list of documents compiled in such a way that they can be identified so that the defence can interpret what they mean. On the basis of those documents and only on that basis, the defence can make an adequate disclosure in response. I believe that the wording in Amendment No. 17 is much closer to the original intention of the Royal Commission than either the consultation paper published earlier this year or this Bill. Despite the well meaning and helpful words of the Minister, we would wish the provision for an adequate schedule to be on the face of the Bill.
Thirdly, Amendment No. 18 is again an amendment to Amendment No. 15. It would allow the accused to have increased power to demand material:
"in order to determine the full circumstances of the case before determining appropriate defence disclosure".
The accused may therefore apply to the court. It is not a matter for negotiation between prosecution and defence; it is a matter where the accused would apply to the court for further material to be made available. The purpose of all that is not to try to make life more difficult for the prosecution. Far from it. Its purpose is to ensure that a defence disclosure is properly made in the light of the facts that ought to be available to the defence in order to make a defence disclosure.
It has been our position all along that there should be a defence disclosure, although we shall come to the terms of that disclosure later. However, it must be on the basis of the necessary information from the prosecution in the first place. So although we welcome the thrust of some of the amendments in the new clause and the improvements which are made in it, there are still a number of significant points on which the Bill needs to go further than it does. I beg to move Amendment No. 16.
Baroness Blatch: The amendments would provide for the prosecutor to be given the schedule of sensitive
1454
material and to have access to all material listed on it and would allow him to amend the schedule in the light of his own decision about whether it was in the public interest to disclose the material listed.
The amendments would also insert a reference to the sensitive schedule, which may have been amended, into subsection (1)(b) of the new clause after Clause 3. In conjunction with subsection (2), that would mean that the prosecutor would have to give the accused both the non-sensitive and the sensitive schedules. The amendments would also require the prosecutor to ensure that the document he was given listed all material relevant to the offence or the offender or the surrounding circumstances of the case, whether or not the prosecution intends to rely upon the material, in sufficient detail to enable the material to be correctly identified.
The amendments would also enable the accused to apply to the court for the disclosure of undisclosed material on the document if he reasonably believed that he needed to see it in order to determine the full circumstances of the case before making a defence disclosure. That amounts to a very different disclosure scheme from the one in the Bill. There are a number of serious difficulties with it.
The accused would automatically have the schedule of sensitive material, listing details of informants, covert surveillance techniques and other methods of fighting crime. That would significantly impede the fight against serious crime. Despite all the developments in the law on disclosure in the past few years, no responsible person has ever questioned the need to protect sensitive material such as that. I cannot believe that the noble Lords intended their amendments to have that effect.
On the other hand, if the sensitive schedule is not to be given to the accused, the amendment to Clause 17 is unnecessary. The draft code of practice already provides for the prosecutor to receive the sensitive schedule and to have access to all sensitive material. There is no need to amend the schedule if it is not to be given to anyone. The proper course is for the prosecutor to consider whether any sensitive material falls within the tests for disclosure and, if it does, to seek a court ruling on whether it should be disclosed. Depending on the court ruling, the prosecutor then acts accordingly. If sensitive material does not fall within the disclosure tests, then it is effectively protected by not disclosing either the material or the sensitive schedule.
Also, the accused would effectively have access to all prosecution material if he could make out a case for it to the court. How is the court to know whether the belief of the accused that he needs to see prosecution material is reasonable? At that stage the accused will have disclosed no information about his defence; there is no criterion by which to judge the reasonableness of any request.
More generally, if the accused has access to all prosecution material before making a defence disclosure, we have returned to the current disclosure regime. It would be open to the accused to trawl through all the material in the hope of finding something which the prosecution could not disclose, thereby forcing the abandonment of the proceedings, or simply to elicit

1455
promising lines of inquiry rather than material supporting his own version of events. I am afraid that that is completely contrary to the principles underlying Part I of the Bill. I may say too that it is a bit at odds with the sentiments expressed by the noble Lord, Lord McIntosh, when he spoke at Second Reading, because it seriously changes the nature of the Bill.
The noble Lord made a point about the police deciding themselves what should be sensitive. The police will, of course, take an initial view on whether material is sensitive for the purposes of preparing the schedules. But it will still be for the prosecutor to decide whether material should be disclosed and whether material from all that is retained needs to be put before the court for a ruling because of its sensitivity. For those reasons, I hope that the Committee will reject the amendments.
6.15 p.m.
Lord McIntosh of Haringey: I have listened carefully to what the Minister said. She has certainly pointed out a major respect in which the amendments go further than I had intended. For that, I apologise to the Committee. It was never my intention to secure that a schedule of sensitive material should be made available to the accused. My intention was to ensure that the police were not responsible for the final decision about what was sensitive and what was not. The prosecutor is responsible for that decision.
Again, I have listened to what the Minister said. If she is right that it is the responsibility of the prosecutor, then she will hear no more of this. I am riot sure what is meant by the initial view taken by the police and what force that has in the interaction. Of course, we must now talk about "revealing" and riot "disclosing".
I believe that, as in Amendment No. 17, it is right that the prosecutor should have the responsibility of ensuring that the disclosure document is complete. I recall that the Royal Commission said that both parts of the process—the compilation of a schedule by the investigator and the compilation of a schedule by the prosecution—should be subject to a signed certificate. We shall come to that point when we deal with the issue of the named officer.
I also believe that it is right, as in Amendment No. 18, for the accused to have the increased power to demand material. However, it was never my intention—and I apologise for the fault in the wording—that the accused should have access to a schedule of sensitive material. As the Minister said, in many ways that would undermine the force of the proposals made in the Bill. I do not wish to do that and, on that basis, I beg leave to withdraw Amendment No. 16.
Amendment No. 16, as an amendment to Amendment No. 15, by leave, withdrawn.
[Amendments Nos. 17 and 18, as amendments to Amendment No. 15, not moved.]
On Question, Amendment No. 15 agreed to.
Clause 4 [Primary disclosure: further provisions]:
On Question, Whether Clause 4 shall stand part of the Bill?
Baroness Blatch: I beg to move that this clause do not stand part of the Bill.
Clause 4 negatived.
Clause 5 [Compulsory disclosure by accused]:
[Amendment No. 19 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 20:
Page 4, line 3, leave out ("or purports to comply with it").
The noble Lord said: This is a probing amendment. It is in one sense defective in that there ought to be another amendment in the same terms to Clause 6 (page 5, line 13). We simply do not understand what is the force of the phrase,
"or purports to comply with it".
I understand that the prosecutor complies with the provisions, but I cannot understand what is the significance of "purports to comply with it". To me, "purports" means that the prosecutor does not really mean to comply, that he pretends to comply. Perhaps I misunderstand the thrust of the phrase in legal language. I beg to move.
Baroness Blatch: I hope I can be helpful here. Clause 5(1)(b) provides that Clause 5 applies where the prosecutor complies with the requirement to make primary prosecution disclosure in Clause 3 "or purports to comply with it". The amendment removes those words and is a probing amendment, as the noble Lord confirmed.
This formulation is needed because, although the prosecutor may genuinely believe that he has disclosed all material which he thinks undermines the prosecution case, he may not in fact have disclosed all such material. There might be some material in the possession of the police which he has not inspected, although he would be entitled to inspect it, and which (if he had inspected it) he might think undermined the prosecution case. In cases where there is this kind of inadvertent non-disclosure, the prosecutor does not actually comply with Clause 3 but only purports to do so. I notice that the noble Lord looks perplexed at the moment, as I did when I first read this explanation. But even if this does happen in respect of one item of material, the prosecutor will have disclosed all other material which he thinks may undermine the prosecution case, and the requirements in Clause 5 should still apply.
In the light of that explanation, I hope that the noble Lord will agree to withdraw this amendment. The noble Lord still appears perplexed.
Lord McIntosh of Haringey: I can perfectly well understand that the prosecutor can make a mistake, and that he may think he has complied, may intend to comply, may want to comply and may fail to do so. That is perfectly clear. But the word "purports" puzzles me. Surely, the normal phrase that would be used is, "has used his best endeavours to comply", or something of that sort. But "purports to comply" means to me that he is pretending to comply when he has not really done so.

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It is a matter of the meaning of words in the English language. I did not take the opportunity to look up any of the relevant words in the dictionary; perhaps I should have done.
If I am right about the word "purports", I may return to it at a later stage. In the meantime, I am grateful for the explanation and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 21:
Page 4, line 5, leave out ("condition in subsection (2) is") and insert ("conditions in subsections (2) and (2A) are").
The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 24 and 28. These amendments are concerned with the detailed written case statement which we suggest the prosecution should prepare. This is not the same as the "written witness statements" dealt with in the amendment moved by my noble friend Lady Mallalieu. This is, as it were, the analysed prosecution case statement.
The reason for requesting it is, as I said when speaking to an earlier amendment, not that we want to make life more difficult for the prosecution; on the contrary, we want to make sure that the defence disclosure is adequate because it is based on the proper prior information.
The Bill as drafted requires the defence to set out the nature of its defence, the matter on which it takes issue with the prosecution and the reasons for taking issue with the prosecution, in order to obtain secondary disclosure. If the defence does not produce an adequate defence statement, it may be subject to adverse influence at the trial; or indeed, if the defence is changed after the provision of the defence statement, that may be subject to adverse comment at the trial. So far, so good. That depends on the ability of the defence to produce a proper statement. That in turn depends on a requirement for the prosecution to set out its case at this stage.
I believe I am right in saying that at Second Reading the Minister gave the impression that she thought Clause 5 already provided for that. It is true that in cases to be tried at the Crown Court the defence will have been served with the indictment, evidence which goes to the prosecution case, evidence which appears to undermine the prosecution case, and the schedule of unused and non-sensitive information. But it will not have been provided with a full statement of the prosecution case.
If the defence is required to produce all of that, surely the principle of equality of arms requires that it should apply to the prosecution as well. I use the phrase "equality of arms" deliberately. It is used in Article 6 of the European Convention on Human Rights; and we have been assured that everything in this Bill is in accordance with that convention.
The wording used in these amendments is in the same terms as the wording of what is required for preparatory hearings. So it already has some legitimacy in legislative terms. We believe that there should be the possibility of
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adverse comment if it is not done, as there is the possibility of adverse comment for faults in the defence disclosure. All of this will be dealt with in more detail when we come to Clause 10 of the Bill.
We believe it is important that the defence case should be well enough informed for it to be comparable with the prosecution case, for both of them not to be changed without good reason, and for the prosecution to have been so codified. I do not mean that every single decision has to be made in advance; but the prosecution case has to be set out in such a way that the prosecution does not go on a fishing expedition and build or shape its case on the basis of the defence disclosure. In other words, the same rules must apply to both. That is the purpose of these amendments. I beg to move.
6.30 p.m.
Lord Ackner: This amendment seems to overlap with my Amendment No. 23 and should perhaps be grouped with it. As might have been anticipated, my amendment is less ambitious than that of the noble Lord, Lord McIntosh. It arises in the same way, although I emphasise it in a somewhat different way.
One should bear in mind that the Government's proposals in regard to the obligation cast upon the defence has gone considerably further than that proposed by the Royal Commission. In paragraph 68 (page 99) the Royal Commission reported as follows:
"In most cases disclosure of the defence should be a matter capable of being handled by the defendant's solicitor (in the same way that alibi notices are usually dealt with at present). Standard forms could be drawn up to cover the most common offences, with the solicitor having only to tick one or more of a list of possibilities, such as 'accident', 'self-defence', 'consent', 'no dishonest intent', `no appropriation', 'abandoned goods', 'claim of right', 'mistaken identification' and so on. There will be complex cases which may require the assistance of counsel in formulating the defence".
The proposal here has gone a great deal further. Clause 5(3) casts upon the accused the obligation to give a defence statement. That is a statement which—I quote from subsection (4)—sets out:
"in general terms the nature of the accused's defence"—
that is according to the Royal Commission—
"indicating the matters on which he takes issue with the prosecution, and … setting out, in the case of each such matter, the reason why he takes issue with the prosecution".
I do not in any way differ from the proposal to widen the obligation put upon the defence. But what, apparently, is being sought to be done is almost to assimilate the criminal procedure to the civil procedure, whereby the defendant in a piece of civil litigation puts in a defence to a statement of claim which sets out in detail the nature of the claim. That is not done in this case. What is relied upon (under Clause 5(2)(b)) is:
"a copy of the notice of the prosecution case [served] on the accused under section 5 of the Magistrates' Courts Act 1980".
The prosecution's case is defined in that section as obliging the specification of the charge or charges and the inclusion of a set of documents containing the evidence. That is all. So when the defendant comes to plead to that statement he has probably to infer just how the prosecution is basing its case. What is required—my

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amendment is in a briefer form than that provided by the noble Lord, Lord McIntosh—is an obligation to set out the material facts:
"a detailed statement of the facts relied upon and the inferences to be drawn".
I have not included all the various matters which would be ordered at a preparatory hearing, anticipating that it might be said that that places too great a burden upon the prosecution. If the prosecution do provide what I respectfully suggest is the bare minimum—namely:
"a detailed statement of the facts relied upon and the inferences to be drawn therefrom"—
that will enable the defendant, who is anxious to carry out his duty, in particular to indicate (Clause 5(4)):
"the matters on which he takes issue with the prosecution, and … in the case of each such matter, the reason why he takes issue with the prosecution".
To expect him to perform those two functions purely on the basis of a statement of the charge and the statements of witnesses is, I believe, asking too much and spoils the whole basis of the operation, which is to say clearly to the defendant, "This is our case. To what extent do you take issue with it?"
That is what the prosecution seeks to find out and I support it in its quest. But if the prosecution wants to find that out effectively, it must set out the nature of its case and the inferences which it wishes to draw from the facts that it specifies.
Therefore, I support the principle behind the noble Lord's amendment, though in due course I should have suggested my amendment: in lieu of his if his proved too ambitious.
Viscount Runciman of Doxford: I thank the noble and learned Lord for voicing those concerns a great deal more eloquently than I was about to do. I should like merely to endorse them. On the basis of what I said earlier, I am not close enough to the detail of what we are discussing this afternoon to do more than ask the Minister to take seriously certain worries which are shared quite widely throughout the Committee.
It is a matter of considerable concern if defence disclosure is to be taken to the point that a defendant is required to set out in detail the reasons why he takes issue with the prosecution point by point. I entirely agree with the noble and learned Lord, Lord Ackner, that to assimilate in that way the criminal to the civil procedure runs a serious risk, in practice, of undermining what is common ground throughout the House—the principles of the burden and standard of proof. That cannot be right.
There is a further matter which will need to be addressed later. I mention it now because it arises directly out of the issues which the noble and learned Lord, Lord Ackner, raised. It is not clear to me—unless there is some passage in the Bill or the amendments with which I am not yet up to speed, so to speak—what prevents the prosecution from varying its case in the light of information obtained from the defence under the proposed requirement on the defence to set out in detail the reasons why issue is taken with the prosecution.
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It seems to me, but here I obviously defer to practitioners with direct experience, that in the great majority of cases the crucial issue is likely to turn, certainly in many serious criminal cases, on the credibility of the witnesses. If the amendment of the noble and learned Lord, Lord Ackner, were acceptable to the Minister, that would meet both the concerns which are certainly shared on this side of the House and the concerns which the Royal Commission had very much in mind in its proposals, not going so far as the Bill does now.
As I said, I should like to thank the noble and learned Lord, Lord Ackner, for what he said, to endorse it and ask the Minister to consider it very seriously.
Baroness Blatch: I preface my response to the amendment by saying that of course I want to take away what has been said during the course of the debate and study it very carefully. But, as has been said, there is already a statutory requirement to supply certain information about the prosecution case. In respect of either way offences, the Magistrates' Courts (Advance Information) Rules 1985 require the prosecutor to provide either copies of the statements of proposed prosecution witnesses or a summary of the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings before a decision on mode of trial. In Crown Court cases, the prosecution must serve a notice of the prosecution case or a notice of transfer with documents containing the evidence on which the charges are based. Clause 5(2) refers to the provision of that information as a condition which must be met before the accused is required to provide a defence statement.
These amendments would accordingly require the prosecutor to prepare and give the accused an additional document containing information which, in some respects, duplicates what has already been given. I do not believe that it is necessary to provide that additional information in order to enable the accused to comply with the requirements of defence disclosure in Clause 5. It would place an additional and unnecessary burden on the prosecutor, and serve only to delay the delivery of justice.
The content of the prosecution case statement would be the same as in a preparatory hearing. Such a case statement would be required in all cases. But a preparatory hearing is designed only for potentially long or complex cases where the judge believes that substantial benefits might accrue. In those cases the benefits will outweigh the burdens imposed on both sides by the preparatory hearings regime. That cannot be said of the generality of cases.
As I said, I believe that the burden on the prosecution of complying with that requirement in all Crown Court cases, where the prosecutor has already served information about the prosecution case on the accused, would outweigh any benefit to the accused. But, as I have said, I shall take this matter away and read

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carefully what has been said. If we believe that the Bill is not right as presently drafted, I shall reconsider at the next stage.
Viscount Colville of Culross: If the noble Baroness intends to take this matter away, I shall be obliged if she will also consider the practicalities.
Under Clause 5, subsections (3)and (4), the accused has to give a detailed statement. I can envisage—not in the case that needs a preparatory hearing of the complicated kind to which the Minister referred, but in the ordinary straightforward case where it is to be dealt with on a plea and directions hearing—that the prosecution may say that the defence has not indicated the matters with which it takes issue and the reason why it takes issue because it has not known what it must take issue with. We therefore conduct a tiresome hearing which could have been obviated if the prosecution had been a little fuller in setting out what was the prosecution case in the first place and one would not then have to spend a great deal of time on PDHs dealing with something which, in one shape or form, is to be covered either by this amendment or that of my noble and learned friend Lord Ackner.
I shall be grateful if the noble Baroness will look at the practicalities. That process will happen day after day in the Crown Court unless we know exactly what the prosecution has to produce before the defence submits its statement.
Baroness Blatch: First, I repeat my willingness to take the matter away and think about it. However, it is important to distinguish between the words on the page of the amendments we started to discuss before bringing in Amendment No. 23 tabled by the noble and learned Lord, Lord Ackner. Amendment No. 24 imposes the same requirements as the prosecutor in a preparatory hearing. We are now talking about something less prescriptive but more informative. Without prejudice, I shall take the matter away and think about it.
Lord McIntosh of Haringey: This may have been a helpful 22 minutes. I am grateful to the noble and learned Lord, Lord Ackner, for linking his amendment with my three amendments. I had no right to separate them and he is right to say that the subject matter overlaps considerably. I am prepared to be convinced that his wording, apart from being shorter and simpler, is better than mine. I am prepared to be convinced also that it is not appropriate to bring in the wording from Clause 24, as my Amendment No. 24 does, but to use the simpler form of words that he proposed.
I am grateful also to the noble Viscount, Lord Colville. He points out, as the Minister recognises, the interlinking of the requirements for the prosecution and the requirements of the defence in subsection (4) of Clause 5. I shall beg leave to withdraw Amendment No. 21 and shall not move the other linked amendments, but, because of the statements of the Minister, it may be as well for me not to move Amendment No. 26 which seeks to restrict the disclosure obligations of the defence.
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A balance must be kept between the prosecution and the defence. I suspect that the Minister recognises that the present wording does not reflect that balance. It is not prescriptive enough in terms of the prosecution and/or too prescriptive in terms of the defence. It does not achieve the equality of arms for which we are all looking.
I shall take up any opportunity that is available to discuss this matter with the Minister, her colleagues and officials. I am grateful for her offer and for the terms of her reply to the amendment.
Viscount Bledisloe: Before the amendment is withdrawn, perhaps I might suggest—as a person who has worked with crime, though not for a long time—that perhaps subsection (4) is over elaborate for simple cases. The Minister said that these amendments are asking the prosecution to do something complicated which is not necessary in simple cases. Perhaps the answer is that subsection (4) has gone too far for simple cases and one should revert to something more like the passage read out by my noble and learned friend Lord Ackner from the Royal Commission report for those simpler cases. It may be that then both the prosecution and defence could do simple things rather than complicated things in simple cases.
Lord McIntosh of Haringey: I am attracted by that proposition. The noble Viscount said more clearly what I intended to say when I said that I intended to throw Amendment No. 26 back into the melting pot together with the others.
If we are to achieve equality, it is right that we should seek to achieve it with a lower level of disclosure and a greater simplicity rather than by complicating matters on both sides. If that is to be achieved by simplifying the defence disclosure requirements rather than by complicating the prosecution disclosure requirements, that would be an admirable outcome. I am sure that the noble Viscount, Lord Runciman, would agree that that would be closer to the intention of the Royal Commission in its recommendations. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 22:
Page 4, line 7, leave out paragraph (a).
The noble Baroness said: Amendment No. 22 is a minor amendment designed to remove an unnecessary provision in Clause 5(2).
Clause 5 provides that the accused need not make defence disclosure in Crown Court cases until he has been served with some information about the prosecution case under the existing statutory provisions. Subsections (2)(a) to (d) refer to those. If the case is transferred to the Crown Court for trial, the accused will in all cases receive one of the notices described in subsections (2)(b) to (d)—which, as it happens, contain more information than would have been provided under subsection (2)(a). Since Clause 5 only applies where the proceedings have been transferred to the Crown Court,

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and since the provisions described in subsections (2)(b) to (d) apply in all those cases, the reference in subsection (2)(a) to information given before transfer is unnecessary. I beg to move.
On Question, amendment agreed to.
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No. 23:
Page 4, line 12, at end insert ('together with a detailed statement of the facts relied upon and the inferences to be drawn therefrom,').
The noble and learned Lord said: I thank the Minister for agreeing to look at this matter again. Speaking for myself, I am not in favour of boxes being ticked. I do not believe they give much information and the amendment is designed to clarify the position of what the case is all about. One does not discover what the case is all about if one has a little box which says 'mistake', 'provocation' or whatever may be the short epithet used to describe the nature of the defence without any detail. In those circumstances I shall not move the amendment.
[Amendment No. 23 not moved.]
[Amendment No. 24 not moved.]
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 25:
Page 4, line 22, at end insert ('unless in the opinion of the court it is not in the interests of justice for him to do so.').
The noble Baroness sand: Clause 5(3), as at present drafted, makes a requirement:
'The accused must give a defence statement to the prosecutor'.
The amendment adds the words,
'unless in the opinion of the court it is not in the interests of justice for him to do so'.
I know that I speak for both sides of the legal profession when I say that there is real concern about the danger of this legislation saddling criminal practitioners with a mass of procedural requirements which, in some cases, everyone agrees, are neither desirable nor necessary. Nor are they in the interests of justice. The purpose of the amendment is to enable the court in an appropriate case to cut this procedure short—in other words, to cut away the bureaucracy.
In a very simple, straightforward case where the accused, for example, has in interview made his defence plain, it would surely be a nonsense if the judge could not say, 'This is a case in which the interests of justice do not require the time, trouble and expense'—and I stress, usually public expense—'of all the following steps being taken'.
There will also be cases—they are ones which trouble me greatly—where the accused is unrepresented. In some instances the judge may well take the view that it is not in the interests of justice that an unrepresented accused should be required to undertake an important form of criminal proceeding. There may also be cases where an accused person is represented but may be under a disability or, for some reason, unable to give coherent instructions. In such a case a judge may take a similar view.
The amendment is intended simply to deal with those cases where the elaborate procedure which is required to be followed can be short-circuited. A judge who
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thinks it appropriate will have the ability to do so. I hope that the noble Baroness will feel that the amendment is a helpful addition to the legislation. I beg to move.
Baroness Blatch: First, the policy underlying the Bill is that the issues in dispute between the two parties should be narrowed and clarified as far as possible before the trial starts. That will promote the efficient and effective management of the trial. it would be inconsistent with that principle to create exceptions to the requirement to give a defence statement.
Secondly, the amendment provides no procedure for the court to consider the question whether it is in the interests of justice to give a defence statement. I suppose that it would be necessary for the accused to apply to the court and for there to be a hearing. There would be nothing to stop the accused making an application in all cases to be tried in the Crown Court. The number of additional hearings required could bring the business of the courts to a standstill. Because the amendment would insert an additional stage into the disclosure process, it would delay the start of the trial. That is also undesirable.
If the prosecutor comments at trial on the failure to give a defence statement, it will be for the jury to decide what inference may be properly drawn. In so doing it will have the benefit of the summing-up by the trial judge in which he can direct what inference it is proper to draw. If it really is not in the interests of justice for the accused to have given a defence statement, that is bound to affect what inference it is proper to draw, so even in those cases I believe that the Bill does provide. For the reasons that I have given I hope that the amendment will not be pressed.
Viscount Colville of Culross: The noble Baroness really should think again. I quite see that, in the generality of cases she has been talking about, she may be right. But she should consider the possibility of exceptions. For instance, if the issue is going to end up as one of fitness to plead, which is not all that uncommon, there is no point in the defence trying to produce a defence statement. Indeed, it may be impossible to get one because the hypothesis is that the defence will be unable to put forward anything sensible. Therefore, it will be impossible to comply with the subsection in Clause 5.
I believe that there are circumstances where the matter could be brought before the Crown Court on a perfectly simple application or even as a mention, which would enable this provision to be dispensed with because of the particular circumstances of the case. That will not be possible as the clause is currently drafted because it is mandatory and universal. I do not believe that it should be.
Lord Harris of Greenwich: As regards the point made by the noble Baroness, Lady Mallalieu, can the Minister say what will happen if a defendant is not legally represented? Who is going to draw the attention of the accused to the fact that he has to produce a defence statement to the prosecutor? Who has the obligation of informing the unrepresented defendant

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what his responsibilities are? Some of these people are at best semi-literate. It is not at all clear how some of these people are going to undertake the task.
Baroness Blatch: My Lords, the defendant would be represented in court or would represent himself. If a statement of defence were not made it would be for the judge to advise the jury what inference should be drawn. If it was because the defendant was incapable or inadequate for one reason or another, and they were good reasons, that would be a matter on which the judge should advise the jury. I shall read this debate very carefully, as I always do, between the stages of the Bill.
The amendment adds another judicial stage to the process and would cause undue delay. I am saying that in a particular case where there is a disadvantage there is a mechanism within the Bill and the procedure to deal with it.
Lord Williams of Mostyn: Does the Minister agree that that mechanism comes in too late? This is not a partisan point. The criticism which the noble Baroness, Lady Mallalieu, put forward is based—as everyone who has ever practised in a criminal court recognises—on very real problems. The Minister says that an unrepresented defendant is not represented because he is representing himself. I have heard better points in my time. An unrepresented defendant is at a gross disadvantage. Prosecutions in the Crown Court or the magistrates' court are always conducted by professionally qualified people. The burden of this suggestion is one of economy and efficiency of practice. The judge who is controlling the fairness of the procedure should be entitled to waive this condition. In other words, it is trusting the judiciary, in a minority of cases, to waive the absolute necessity which the Bill presently requires.
Viscount Bledisloe: The noble Baroness is in fact saying that here we have an absolute obligation to give a defence statement. Some people will be unable to do it or will have good reason for not doing so. When the judge comes to sum up, he will say, 'Members of the jury, you should not take into account at all the fact that there is not a defence statement because it would have been impossible for the defendant to give one and, indeed, it would have been ludicrous to have required him to. But, unfortunately, the statute gave me no power earlier to tell him not to bother'. So he is saying, 'Parliament has said that this is obligatory, but it is a ridiculous thing not to do and therefore, members of the jury, do not take it into account'. I suggest to the noble Baroness, with the greatest respect, that that is not very good legislation.
Baroness Blatch: I have given my answer and I have also given an undertaking to read this debate very carefully. If my answer is insufficient and I believe that something has to be done, that follows the whole process of proceeding in this way through Parliament. I repeat what I said earlier. There is no procedure provided in the amendment for the court to consider the question of whether it is in the interests
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of justice to give a defence statement. I suppose therefore that it would be necessary for the accused to apply to the court and for there to be a hearing. I am trying to suggest that the mechanisms that would have to accompany these amendments would simply add and overlay more procedures. However, I shall consider very carefully all that has been said.
7 p.m.
Baroness Mallalieu: I am grateful to the Minister for what she has just said. She has heard from four noble Lords who are either practitioners or former practitioners, one of whom is now a member of the judiciary, about the real problems to which the absence of such a provision is likely to lead. If the Minister feels, on reflection, that there should be some way of saving time and money and ensuring that justice is done by making such a small amendment, I hope that the Home Office will take that step—even if it requires some additional amendments to provide the mechanism, which could be done in relation to the preparatory hearing stage although perhaps it is more advisable that it happens earlier.
If the Minister does not feel that she can introduce such an amendment I am bound to tell her that I shall have to return to this matter at a later stage. I should be grateful if the Minister could look carefully at what has been said by a number of noble Lords who know a great deal about these matters. However, at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 26 not moved.]
The Deputy Chairman of Committees: I must inform the Committee that if Amendment No. 27 is agreed to, I cannot call Amendment No. 28.
Baroness Blatch Baroness Blatch moved Amendment No. 27:
Page 4, line 43, leave out from ('section') to end of line 10 on page 5 and insert ('during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.').
On Question, amendment agreed to.
[Amendment No. 28 not moved.]
Clause 5, as amended, agreed to.
Clause 6 [Voluntary disclosure by accused]:
[Amendment No. 29 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 30:
Page 5, line 18, leave out from ('it') to end of line 26 and insert ('during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.').
On Question, amendment agreed to.
Clause 6, as amended, agreed to.
The Earl of Courtown: My Lords, I beg to move that the House do now resume. In moving this Motion,

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I suggest that the Committee stage begin again not before 8.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Consolidated Fund Bill
7.2 p.m.
Brought from the Commons, endorsed with the Certificate of the Speaker that the Bill is a money Bill.
The Earl of Courtown: My Lords, I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.— (The Earl of Courtown.)
Lord Boyd-Carpenter: My Lords, I hope that my noble friend the Minister realises the farce in which she is taking part. The Consolidated Fund Bill is an immensely important Bill which we are inhibited from debating as a result of a very unwise decision by the Procedure Committee. When the Bill's First Reading is moved, it is just as well that the House should bear in mind that it is deprived of the very proper duty that it would otherwise have of analysing a Bill of such great importance.
On Question, Bill read a first time, and to be printed.

Duration of Copyright and Rights in Performances Regulations 1995
7.3 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie rose to move, That the draft regulations laid before the House on 20th November be approved [2nd Report from the Joint Committee].
The noble and learned Lord said: My Lords, these regulations amend the Copyright, Designs and Patents Act 1988 in order to implement all of the main provisions of a Council directive (93/98/EEC) harmonising the term of protection of copyright and related rights in the European Union. This became due for implementation on 1st July this year, and we very much regret that the complexities of the regulations have meant that we have been unable to complete their preparation in time to meet that date. Indeed, work still remains on legislation to implement Article 4 of the directive, which requires introduction of a new form of protection for unpublished works in which copyright has expired. That article is not, therefore, covered by the present regulations. We intend, however, to deal with that remaining aspect as soon as possible.
The 1988 Act already complies with one of the main requirements of the directive—a 50-year period of protection for copyright in sound recordings and broadcasts and for the rights of performing artists. In bringing the duration of those rights to the same level in the rest of the EU as in the UK, the directive should
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be of significant benefit, particularly to the UK sound recording industry. The area is of considerable economic importance to the UK, and where up to now terms of protection have been much shorter in several other member states, including Germany.
The directive does, however, mean that the 1988 Act has to be amended to increase the basic term of copyright in literary, dramatic, musical and artistic works. This will rise from the present Life of the author and 50 years after death, to life plus 70 years. Although this term previously applied only in one member state, Germany, two others also had terms longer than the UK—Spain with life plus 60, and France with life plus 70 in the case of musical works. Harmonisation at life plus 50 would therefore have been difficult since it would have meant reductions in protection in three member states. Moreover, the directive was subject to qualified majority voting, and it became clear that most other member states were willing to accept harmonisation at life plus 70. In those circumstances, therefore, the UK agreed, reluctantly, to accept the increased term. It follows, however, that there will also be increases in most other member states, and UK authors, composers and artists should benefit from this at least as much as those from other EU countries.
The directive also means that the duration of copyright in films, at present 50 years from making or release, is changed by the regulations and is put on a similar footing to the term for literary and like works. Copyright in films will now last for 70 years from the death of the last to die of the principal director, the authors of the screenplay and dialogue, and the composer of any music specifically for the film. The underlying reason for the change in approach is that several other member states already protect films on a 'life plus' basis rather than for a fixed period.
I should also explain that the directive requires the increased copyright terms it sets to apply not only to future works but also to existing ones. This means that the copyright of works currently in protection in the UK will be extended. Revival of copyright will also occur in the case of works which, although in the public domain in the UK, are still protected elsewhere in the EU. However, the terms set by the directive essentially apply only to works from the EU. Those from outside the EU will receive the term granted in the country of origin, which in most cases will be less than the EU term.
A number of the regulations concern transitional provisions in relation to extended and revived copyrights. The Government are well aware of the difficulties which revival could cause. But without this approach there would be no effective harmonisation for a considerable period, and UK sound recordings and performances would suffer from remaining out of protection in several other member states.
Moreover, we have tried to do as much as possible to ensure that there are adequate safeguards to protect users who would otherwise be adversely affected by revival of copyright. Clearly, it would be wrong if anything done before the regulations come into force and copyrights revive were retrospectively to constitute an

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infringement of the revived rights, and this will not be the case. But, necessarily, the safeguards go much further than this; for example, where arrangements for exploitation of a work in which copyright will revive have been made prior to 1st January 1995, nothing done in pursuance of those arrangements after the regulations come into force will infringe the revived rights. That means, for example, that if a publisher has entered into commitments to produce an edition of an affected work before the date I have indicated, he will be able to fulfil his commitments without incurring any liability to copyright owners.
We have also had to establish who is to own extended or revived rights. That is not dealt with by the directive but is a matter which has to be resolved since otherwise it would be unclear who is entitled to authorise particular acts or benefit from them, with the result that future use of works could be inhibited. On that aspect we have tried to take an approach which is both fair and produces the greatest legal certainty. In essence, we have concluded that those objectives are best met by providing that the current owner of copyright will own the rights extended by the regulations and that the last owner of the original copyright will own revived rights.
The House will realise from this introduction that the directive raises difficult questions of balance between competing interests. I am confident, however, that the solutions we have arrived at are fair and workable.
Finally, there is one matter upon which I should comment. It is the date upon which the regulations are due to come into force; namely, 1st January 1996. I am aware that there is concern among interested parties as to whether that means that copyrights due to expire on 31st December this year are extended as opposed to being revived. I should like to take the opportunity to assure your Lordships that the effect of the regulations is that those copyrights will continue in force and will be extended. I beg to move.
Moved, That the draft regulations laid before the House on 20th November be approved [2nd Report from the Joint Committee].—(Lord Fraser of Carmyllie.)
7.12 p.m.
Lord Brain: My Lords, in giving the statutory instrument a guarded welcome, I must declare a number of interests. I am treasurer of the British Copyright Council, and chairman of the British Photographers Liaison Committee, both of which bodies have consulted the intellectual property section of the DTI and actively made representations to the European Commission. It is possible also that my family may benefit in due course from the extension of copyright provided by the statutory instrument. So I declare those interests.
I congratulate the Minister on his explanation of this SI, which is longer than many Bills, and I accept fully the point that he has just made, that copyright which people feel expires at the last minute of this year is, because of the way the SI is worded, in copyright at that moment, immediately before the SI comes into force. That is acceptable. It is genuinely extended copyright.
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The Minister has admitted that there are parts of the appropriate directive which have yet to be dealt with. I may come to that in a minute. He has said also, with regret—I accept that—that it should have been brought into force by 1st July. I would just draw attention to the fact that members of the British Copyright Council saw the Minister on 2nd November 1994 to discuss implementation of the directive. I have a slight feeling that, rather than dealing with an SI, an elephant was being conceived in those days, and that the calf has been born in a bit of a rush. When it all arrived, we were given less than three weeks to deal with all the final complications of the last draft. Even then, when it was first placed before the House it took me two days to obtain a copy of the instrument. It was considered by a joint committee. I have been awaiting the report of that joint committee. I managed to pick one up this morning in the Printed Paper Office. We have already had comments about delays of that sort in the House today. I would just add that to the list of problems.
I shall talk about the problems of photographers in particular. Those who have heard what the Minister said will realise that the photographs which were taken in 1945, which was a great year for this country, would have fallen out of copyright on 31st December. That copyright is now extended, but those photographs were taken under the Copyright Act 1911, which was then extended by the Copyright Act 1956, which was then further extended by the Copyright, Designs and Patents Act 1988, Schedule 1, paragraph 11(2)(a).
So the person who commissioned the photograph owns the copyright on 31st December this year, and therefore, quite correctly, it goes on from 1st January as his property, if he still exists. I shall come to whether or not his existence is important in a moment. Looking at the extension for things like films, because the people who were granted the extension of copyright were receiving copyright extended in a somewhat peculiar way and the directive granted them and others more protection, it is clear in the SI when the extended copyright expires.
I have looked through with great care, and because in most cases the extension of copyright of artistic works is now the author's death plus 70 years, I have been unable to find the date of expiry of extended photographic copyright. I may not have used a sufficiently good magnifying glass. I am happy to be told by the Minister when he replies that I have made a mistake. Regulation 18 of the SI, which deals with the extension of the copyright, is fine when one is considering the extension of copyright of an author or the extension of copyright in a film, but, because copyright was held by the commissioner, it does not apply so easily to photography, especially if the copyright was held by a limited company which has been taken over innumerable times, and such things.
Regulation 19, however, which deals with revived copyright, conveniently deals with those points. It is a great pity that Regulation 18 does not contain a somewhat similar provision for photographs. If I have made a valid point on either of those two matters, I hope that, when the Minister replies, because he has already said that there are matters outstanding on the directive

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to be dealt with later, he may find a way of covering in a future SI the point I have raised. I leave that, and welcome what he says.
I have one other query on the SI. Under what section of the directive do the Government have power to implement the reasonable royalty provision under Regulation 24(1)? I ask that question especially, because I have received an indication that that type of royalty may be in contravention of the Berne Convention.
Finally, will the Government give an indication of the date on which the next statutory instrument relating to duration and the statutory instruments on rental and lending and the cable and satellite directives are likely to be laid before the House and, it is to be hoped, given an unhurried implementation, bearing in mind that the latter two instruments are some 18 months late?
7.20 p.m.
The Earl of Kinnoull: My Lords, unlike the noble Lord, Lord Brain, I have nothing to declare in respect of copyright law. Indeed, I have been struggling to understand the few words of the regulations. I wish first to congratulate my noble and learned friend on introducing the regulations in his usual skilful way and on making a complicated matter look simple.
In general, one applauds the harmonisation of copyright as set out in the 1993 directive and the benefits that will flow to British authors and publishers from 1st January 1996. I expect that all noble Lords have spoken on behalf of one particular factor but my intervention follows a discussion that I had with members of the Composers' Estates Group. The group represents approximately 15 estates of some of the most famous British composers; for example, Elgar, Delius, Ho1st, Britten, Walton and Vaughan Williams, to name just a few.
Many of the estates were formed as charitable trusts on the death of the composer. Today the trust income provides a welcome benefit to future generations of struggling composers, the training of youth orchestras and even the funding of the Aldbury Theatre in Suffolk. One would think that such heirs of great composers would significantly benefit, together with authors and publishers. That was the obvious intention of the 1993 directive which stated:
'Their protection ensures the maintenance and development of creativity in the interests of authors/composers, cultural institutions, consumers and society as a whole'.
One could find nothing more positive than that. Yet, despite these fine objectives, the heirs and estates of composers are unlikely, as I understand it, to benefit very much from harmonisation due to the drafting of the regulations before us.
The main concern of the group is its future interests in the ownership of the extended and revived copyrights. In the case of the extended copyright, its ownership interests under the regulations appears to be limited to the terms of the original agreement. That may have been written more than 50 years ago and have little bearing on today's conditions. I suggest that such a restriction becomes unworkable.
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It is interesting to note that musical rights fall broadly into three categories; the performing rights, the mechanical rights and the publishing rights. Surely a fairer formula of benefit could be devised. A similar unfairness appears to arise under the regulations as regards revived copyright. Here the benefit goes to the immediate owner before the copyright expired. That may seem reasonable for authors who traditionally hang on to their copyright ownership. However, as regards composers it is known that traditionally the publisher owns their copyright.
Thus, because of market conditions, the composers' heirs and estates are unlikely ever to be able to benefit from the windfall designed for them under the directive. Why cannot some equitable remuneration be introduced in the regulations in view of those well-known traditional practices?
I turn to the exploitation of revived works. Here the regulations seem to depart somewhat from the directive. First, the dates differ and the directive is more simple to understand. Secondly, when judging whether a person is due to pay or not pay a royalty for revived works the directive uses the expression 'in good faith' but the regulations use the expression 'in pursuance of arrangements'. My legal friends tell me that the phrase 'in pursuance of arrangements' is baffling and has no precise legal definition. To substitute 'arrangement' for 'agreement' would be understood. I hope that my noble friend will give an assurance that that will not lead to wasteful litigation. Furthermore, it appears that there is no mechanism for the exploiter to have to declare his arrangements, which is a minus factor for the states attempting to protect their interests.
My final question relates to compulsory licences, which I understand first arose in copyright legislation back in 1911. I am advised that in 1988 the Government abolished the compulsory licences as being incompatible with the Berne Convention and likely to cause problems with the export of records to member states. Why are the Government introducing such a provision and re-opening these old worries?
I return to where I began. The 1993 directive is to be welcomed for the intellectual property of our country and for the windfall benefits that will accrue. However, I am unhappy that part of that intellectual property—our famous composers and their heirs—should be unfairly handicapped by the regulations. After all, without composers the music world would be a sterile place.
I hope that tonight my noble and learned friend can offer some assurances and clarifications about how a group such as the Composers' Estates Group, which does such immense good, will not be penalised by any inept drafting of the regulations and that if their case is proved some modifications can be made in future regulations.
7.26 p.m.
Lord Monson: My Lords, will the noble and learned Lord say whether, as has been widely reported, Germany in effect bullied other EU countries, which initially were extremely reluctant, into agreeing to extend the period of literary copyright by 20 years?

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Secondly, will he give an estimate of how much this regrettable step, as he himself explicitly agreed, will increase the price of low-priced reprints of popular classics, which have been such a welcome feature of our publishing scene during the past five years or so?
7.27 p.m.
Baroness Hamwee: My Lords, I too must start by declaring an interest. I am a solicitor and a partner in a firm of solicitors many of whose clients are authors and owners of copyright material, performing artists and licensees of such material.
My first question is a general one relating to the form in which the regulations are introduced. I understand that the directive could have been implemented by primary legislation rather than by statutory instrument. Given the anxieties that have been expressed tonight, which reflect discussions and debates on some difficult matters, will the Minister explain to the House why the Government decided to go ahead with regulations in this form, because the statutory instrument is not capable of amendment? Had we been dealing with a Bill, it would have been possible to discuss the anxieties in the shape of amendments and possibly to have implemented some amendments.
Noble Lords who have already spoken have covered the major points and I apologise for repeating some of them. First, perhaps I may ask the Minister about matters in the directive which have not been implemented. He has already mentioned Article 4, so I shall not ask about that. But I understand that Article 2(1) provides for authorship of cinematographic or audio-visual work, the author to be the principal director of that work. The regulations do not amend the 1988 Act to provide for authorship of those works.
Secondly, Article 3(3) requires that the producer of the first affixation of a film shall enjoy rights for a period of 50 years. Again, the regulations do not deal with that. In parenthesis, I apologise to the Minister for not giving him notice of these questions. I was not aware of the questions until shortly before the debate.
The issue of what in effect will happen in practice in the extra 20 years has been dealt with by the noble Earl, Lord Kinnoull. He referred to old-fashioned forms of publishing agreements. Over a number of years of practice, I have seen agreements which, to modern eyes, seem extraordinarily outdated and unfair to the composers and authors. Royalty levels may be very low or, indeed, there may be no royalties at all. The agreements may not be so outrageous that they may be challenged as being unenforceable or, indeed, they may be open to challenge but there is neither the wherewithal nor the will to do so. But certainly, they are often quite unsatisfactory. They inevitably fail to deal with technological progress. The possibility of exploitation using modern technology was not even a twinkle in anybody's eye when many of the agreements were written. I share the noble Earl's anxieties about the continuation of such terms for another 20 years.
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The noble Earl has also talked about anxieties as to the extent of what is permitted when revived works are exploited. In referring to arrangements undertaken in good faith, the Minister used the word 'commitments'. Perhaps he will expand a little on that.
In the real world, a publisher may have decided in December of last year to bring out an edition of a work which was then in the public domain. Being sensible, he would have decided to print copies to meet demand. After all, publishers do not wish to hold excessive stocks. The copyright then revives. Will the publisher continue to print and market that edition indefinitely on the basis that it was an arrangement made within the regulations? I should be grateful to the Minister if he could help your Lordships and those in the industry who are concerned as to where the lines are to be drawn.
The question of compulsory licences has also been raised. I share the concerns that have been expressed. The directive dealt with exclusive rights and protection of exclusive rights. Having the benefit of a licence which one is compelled to grant is not the same as being in control. The blanket licences are not, to my mind, the same as the control and protection which was anticipated by the directive.
The Berne Convention has been mentioned by the noble Lord, Lord Brain. I have been advised that there may be also a question of ultra vires in connection with the European Communities Act. Section 2(2) of the European Communities Act 1972 empowers the Minister to make certain provisions but there is no obligation on the United Kingdom under the directive to establish a right to a reasonable royalty. I am advised that the right may be contrary to the obligation which the directive imposes; in other words the restoration of the exclusive right. Therefore, there is also a concern in that connection in relation to the Berne Convention.
Also in connection with compulsory licences, it is not only the income which is material—the licence charge—but other conditions which the licensor may wish to impose. The copyright tribunal has powers to fix the reasonable licence fee if the parties cannot reach agreement but that is the extent of the tribunal's powers. In the minds of the parties there are no doubt other details as to the extent of use which are important but which are not catered for if the parties cannot reach agreement.
7.36 p.m.
Lord Peston: My Lords, I join other noble Lords in thanking the Minister for introducing the regulations. When I was preparing my notes, I did not realise, although it is now clear to me, that as I am the author of several books I must declare an interest. I can only add that I hear from my publishers once a year when they say, 'Your total royalties earned this year are less

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than the minimum we pay and we accumulate them for subsequent years.' Thai. is accumulating very slowly. Therefore, I do not have much of an interest to declare.
Baroness Hamwee: My Lords, the noble Lord may be aware that the embarrassment that might be caused when such interests had to be declared in detail was a concern of some Members of this House.
Lord Peston: My Lords, I thank the noble Baroness. I must also join with other noble Lords in a note of complaint. We are dealing with a matter of enormous importance. In particular, the restoration of copyright, with one notable and almost notorious exception, seems to me quite unique. The Minister is aware that I am grievously unhappy that we are dealing with such a significant matter in the dinner hour, late in the year. These matters deserve detailed and lengthy scrutiny.
I echo the remarks of the noble Baroness, Lady Hamwee. If this were a Bill, my guess is that it would take us a day to scrutinise it; in fact, a day merely in terms of asking the Minister to explain various matters. It is, to put it at its mildest, rather unattractive to be dealing with the matter as we are. The Minister persuaded me that it had to be done this way because of the 1st January date. I am advised that that is not the case but I must bow to the Minister's advice that we must deal with it.
I add a further complaint. We should never have been put in this position as regards a matter of this significance. I hope that it will not happen in respect of the other directives to which the noble Lord, Lord Brain, referred. I am responding moderately today but I shall not behave so well in future, in particular in relation to the rental and related rights directive, if we are not given ample time in terms of notice and availability to debate it. I say that without wishing unduly to criticise the department. In my judgment, within limits and given the difficulty of the issue, the department has done a good job. I agree with the Minister about that. But there is a difference between doing, a good job and doing a perfect or an amendable job. That was the point made by the noble Baroness, Lady Hamwee. As she rightly said, we cannot amend any of the material before us, even when some of us believe that the advice given is wrong. The Minister does not have to agree but I hope that he will take on board the point that if some of it does turn out to be wrong in the sense that it does not meet the directive, is unworkable or has other flaws, we shall come back to it in some way or another and put the matter right because that is vital.
I have two further issues to raise. First, apart from the extension of copyright being mildly unusual, it is extraordinarily generous. To add 20 years to what is a generous form of law is extraordinary. Your Lordships may compare it with another branch of intellectual property—patent law. That is at the other extreme. Many inventors find it difficult to procure any years of patent protection. Therefore, the extension we are considering is very generous.
Nevertheless I take the point, although the bullying element had not occurred to me. If we are to harmonise, it would be much easier to harmonise upwards than to ask the Germans to come down to 50 years. I should be
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most interested to know whether bullying was involved. I am certainly not one of those who would have gone out of his way, if we had not been asked to harmonise in that direction, to say that there was some national interest in extending copyright by a further 20 years.
The related question is: can we be assured that we have met all the points of the directive? I say that because on previous directives we were told we had but suddenly discovered that that was not the case. In particular, on the balance question, I understood the point of the directive was not merely to harmonise but also to protect the author and the next two generations of his or her family. That is the point at issue. Yet in no sense do the rights in the document revert to the author's heirs: they revert, as the Minister said, either to the current owner or to the last owner. That is quite a different matter. As the noble Baroness said, people may have sold their rights not realising that they were giving something away that was a good deal more valuable than it appeared at the time. Again, I shall be interested to know whether the Minister has been advised that there is no possibility of litigation in that respect. That is not something we would like to see arise.
I have talked about the problem of dealing with such a complex document in the manner that has been proposed today but I have to tell your Lordships that I find Regulation 23 completely incomprehensible. I have put in a good deal of work, but I do not believe that it could be comprehended by anyone. It is totally beyond me even to work out what the paragraph is trying to say, let alone what it actually says. If we were discussing a normal clause in a Bill, I would have tabled several amendments, the objective of which would be to see whether it made any sense.
I hasten to tell the Minister that I am not demanding that he makes an enormous speech telling me what Regulation 23 means—especially as I have already said that I do not believe that that can be done—but I have to say that Regulation 24 also concerns me. The Minister is entirely right to say that there is a question of balance involved. Certainly, someone—for example, a publisher—who in good faith published a work which was out of copyright should not be regarded as infringing because it has now been put back into copyright. However, I believe that Regulation 24 says that, from now on, such a publisher will have to pay royalties on the work. I am not, however, 100 per cent. certain in that respect.
I will give your Lordships a further example. A new publisher wants to publish exactly the same work which was out of copyright but is now back in it. That publisher will not treat the owners of the copyright as if the work were in copyright; as I understand it, the system under Regulation 24(1) will operate under the 'reasonable royalty' rule which is a different matter. In other words, it is rather like the point made by the noble Earl, Lord Kinnoull. The owners will not be given back what they thought they had. Therefore, I believe that we may have the balance wrong in two different ways.
I should add—and this is rather more acid—that I am sorry to see that, inevitably, the Copyright Tribunal will be brought in at that point. From my knowledge of that

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tribunal, I must say that I am less than impressed by it in every possible way. For example, I am not impressed with its expertise or its good judgment; and I am certainly not impressed with its ability to act with any degree of speed which I believe may be relevant. Therefore, I have to go on record as being both confused by, and unhappy with, Regulations 23 and 24 in so far as I understand anything at all.
I shall not prolong the discussion any further except to put one further question to the Minister. If he is not able to answer tonight, perhaps he will write to me on the matter. We are, of course, dealing with intellectual property and, therefore, we are dealing with an asset. When the composer or author of the case that we have in mind died, I assume that the estate was valued for probate according to the copyright vested in it at that point based on the assumption that you looked forward 50 years, and no doubt tax was paid on that. My question is: what happens now when a greater value will be created? It was never a value that was there for tax purposes for probate. My probate lawyers tell me that the matter cannot be re-opened once it has been agreed. Nonetheless—putting it at its mildest—we have a very definite tax anomaly here; namely, that someone has got some value which, in a sense, ought to have been taxed earlier but which will now never be taxed.
I do not raise a purely intellectual argument; I raise a serious example of the consequences of going down the route suggested. I reinforce my point to the Minister. I do not expect that question to be answered tonight. However, if anyone in the Minister's department is able to sort out the matter for me, I shall be more than usually obliged. Having said that, we must of course agree the regulations. I do not believe that there is any point in delaying the matter further.
7.46 p.m.
Lord Fraser of Carmyllie: My Lords, I am most grateful to those speakers who have contributed to tonight's extraordinarily erudite debate. I compliment them on their grasp of the detail of the statutory instrument now before us. I shall attempt to respond to most of the points raised, but, if I fail to do so, I shall look at the Hansard record of the proceedings tomorrow and write to noble Lords if there are any points that I fail to answer.
I was asked in general terms whether this was an appropriate way to proceed. Yes, in the circumstances, I do believe that it was right to have resort to such a procedure. There may be a complaint that the instrument has come forward to your Lordships at rather short notice, especially as the 31st December and 1st January crossover point is extremely important. However, in an area as arcane as this, I must point out that the critical aspect of it is that there should have been widespread consultation. I believe that the noble Lord, Lord Brain, indicated that as far back as two years ago he was engaged in consultation over the matter. It is possible that we have the balance slightly wrong. However, it is not often in your Lordships' House that the complaint is made that we have consulted too much rather than too little.
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I was asked by the noble Lord, Lord Monson, whether Germany had bullied the United Kingdom into accepting life plus 70 years. I see that the noble Lord wishes to respond. I give way.
Lord Monson: My Lords, I am much obliged. I referred to the fact that Germany may have bullied other countries; in other words, all the other EU countries and not just the United Kingdom.
Lord Fraser of Carmyllie: My Lords, well, perhaps I should say, bullied the United Kingdom or other countries.
As I sought to indicate in my opening remarks, not only Germany but two other member states have copyright terms longer than our present one of life plus 50 years. I also sought to stress—whether or not it was a result of bullying or otherwise, I know not—that every indication was that other member states were willing to accept harmonisation at life plus 70 years. In those circumstances—and I hope that I put a sufficiently heavy emphasis upon it—we reluctantly agreed. In other respects, Germany is having to increase its term to that which already exists in the United Kingdom. As in the case of sound recordings, the directive is a compromise between the various national laws.
Both the noble Lord, Lord Brain, and the noble Baroness, Lady Hamwee, asked about the licence of right or the compulsory licence. The directive leaves considerable flexibility to determine how best to safeguard the interests of users who will be affected by the revival of copyright. In that context, it is specifically mentioned in respect of legitimate expectations. We feel that existing users and the public at large might reasonably have expected that, having once entered the public domain works would remain available for use. We consider therefore that the licence of right is permissible and strikes the fairest balance. I am grateful to the noble Lord, Lord Peston, for appreciating that there is a balance to be struck. The fairest balance to achieve was between the interests of the public and those of right owners who will still receive payment for the use of their works during the new and unexpected period of protection these will now receive. We do not consider that it is outside the powers of the European Communities Act to introduce the licence of right.
I was asked a number of extremely difficult questions about photographs. In Regulation I9(2)(b) 'author' has the meaning given to it in Section 9(1) of the 1988 Act. We intend that photographs should be treated in this regulation no differently from the case of photographs which are offered to film directors. I am aware of the detail of this matter as regards the 1911 and the 1956 Act. However, as I understand the way the regulation is drafted, the defect that has been hinted at is not there. We are certainly not aware of any deficiency. The term of copyright in the case of photographs will be the life of the author plus 70 years unless the transitional provisions of the 1988 Act produce a term which is longer than that, in which case that will continue to apply.

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My noble friend Lord Kinnoull asked a number of questions about the ownership and the balance between extended and revived rights. We recognise that there is an argument that extended or revived rights should belong to the author or to his successors. I shall certainly not engage now in a discussion about what enters into revived or new probate. However, we certainly understand that argument. But where copyright has been sold outright by an author or his successors no further benefit can have been expected and it is appropriate, in our view, that the present or last owner of the copyright, as the case may be, should be entitled to the rights. Again, we are trying to strike a balance. What is important is that this approach also offers the greatest legal certainty as regards ownership. In a broader way that is extremely important, for without that the future use and availability of works could be inhibited as it would be unclear who is entitled to authorise or benefit from the particular acts of exploitation.
My noble friend and the noble Baroness, Lady Hamwee, asked me about the term 'in pursuance of arrangements which were made before 1st January 1995'. I believe there has been some suggestion that that phrase has not appeared previously, but it appears in the 1988 Act. There are a wide variety of circumstances which can occur in practice and the wording of the legislation has of necessity to be fairly general. We do not think it possible to define the kinds of acts which will be permitted more precisely. Where dispute occurs it will be for the courts to determine whether or not this has been done genuinely in pursuance of arrangements made before the specified date.
I was asked whether I anticipated legislation. I am bound to say as a lawyer that I think it would be quite extraordinary if this important but complicated matter at some point did not give rise to regulation. We have certainly done what we can to ensure that, so far as possible, difficulties which might have arisen have been ironed out. The noble Baroness, Lady Hamwee, also asked about Article 2(1) which states that the principal director should be regarded as the author of the film. However, the article also provides for the implementation of this provision to be deferred up to 1st July 1997. We intend to introduce the change when the so-called 'rental directive' is implemented. I was asked to give a precise indication of when that would be. I can say no more than that we hope that will be in the near future.
I conclude by saying that we believe these regulations comply fully with the directive. I hope, notwithstanding the time that has been available to discuss this matter, that I have been able to answer most of the questions that have been asked. This is certainly an extremely complicated statutory instrument but I hope that the long time that has been taken up in consultation has ensured that in the main it has achieved the objectives of the directive other than in those respects where I have already indicated it will be necessary to return to regulation.
Baroness Hamwee: My Lords, before the noble and learned Lord sits down, I hope he will answer
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this point. I apologise to the House for prolonging this matter. The noble and learned Lord referred to the term 'arrangements' by analogy with their use in the 1988 Act. I do not expect an answer just now but I hope that the noble and learned Lord will write to me on this point. I am certainly aware of the use of the term 'arrangements' in making arrangements for a film that determines the copyright ownership of a film. No doubt the term is used elsewhere. I hope that the noble and learned Lord can write to me on the detail of the analogy.
Lord Fraser of Carmyllie: My Lords, I am certainly prepared to do that. I believe the phrase occurs in more than one context in the 1988 Act. Rather than prolong the debate at this moment I shall certainly write to the noble Baroness.
On Question, Motion agreed to.
Lord Chesham: My Lords, I beg to move that the House do now adjourn until five past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.55 to 8.5 p.m.]

Criminal Procedure and Investigations Bill [H.L.]
House again in Committee.
Clause 7 [Secondary disclosure by prosecutor]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 31:
Page 5, line 33, at end insert ('and which could be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case, or which raised or possibly raised a new issue whose existence was not apparent from the evidence the prosecution intended to use, or which held out a real as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue').
The noble Lord said: In moving Amendment No. 31 I shall speak also to Amendments Nos. 36 and 44. These amendments are inextricably linked to the amendments that we have already dealt with relating to primary prosecution disclosure and defence disclosure. We now move on to the issue of secondary prosecution disclosure in Clause 7.
The problem with Clause 7 is that it is very narrowly drafted. It creates only two gateways for disclosure of material to the defence. One is, as we have seen, material which the prosecution considers undermines its case. The second is material which the prosecution considers may assist the defence case as disclosed in the initial statement of defence. Those are the two criteria for primary and secondary disclosure. They are the only bases on which the court can order disclosure of unused material which the defence requests to see.
The problems with those criteria are, first, there may be material which is relevant but which the prosecution, in all good faith, does not realise could be of assistance to the defence although the defence recognises that it is of assistance; and, secondly, if there is a change in the

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defence case—and there is some provision for a change in the defence case—there is no obligation on the prosecution to disclose information which is relevant to the new defence case. More seriously, the court cannot order its disclosure, even if it recognises that the change in the defence case is reasonable and should not be commented on adversely.
Then there is the problem of the relevant material which does not fall into those two categories. There could be other lines of investigation which are pursued and then abandoned. There could be trails which the defence realises could lead to important evidence or to a genuine defence which might not otherwise be apparent.
All of those are cases where it is necessary to have a wider requirement for prosecution disclosure. I reiterate that it is not our intention to increase the burdens on the prosecution, merely to make the defence disclosure, and its effect on the trial, more effective than it would be under the Bill as drafted.
Fortunately, there is a precedent for this. They may not be the terms used by parliamentary draftsmen, but in the case of Keane in 1994, to which the Minister has already referred this evening, the Lord Chief Justice used words which we have adopted in Amendments Nos. 31, 36 and 44. Because wording in legislation is so boring, and because the Lord Chief Justice is certainly not boring, I hope that the Committee will forgive me if I read what he said, because it contains a lot more oomph than one normally finds in Bills. He said:
'and which could be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case, or which raised or possibly raised a new issue whose existence was not apparent from the evidence the prosecution intended to use, or which held out a real as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue'.
I know that we do not use the words 'sensible' or 'fanciful' in legislation, but the noble and learned Lord the Lord Chief Justice made his point. He pointed out that the gateways were far too narrow, that they could well be widened, that secondary disclosure by the prosecutor was an important element in the just and effective conduct of the trial, and that such disclosure would not be an obstruction to the judicial process. I do not believe it can be said that these criteria, since they have been spoken by the Lord Chief Justice himself, can possibly be an obstruction to the criminal law process. We believe that they, or something like them, perhaps couched in more diplomatic terms, will be a valuable addition to the Bill. I beg to move Amendment No. 31.
Baroness Blatch: Amendment No. 31 would expand Clause 7(2)(a) so that the prosecutor was required to disclose to the accused any prosecution material which had not previously been disclosed to the accused, and might be reasonably expected to assist his defence as disclosed by the defence statement, and could be seen on a sensible appraisal by the prosecution to be relevant, or possibly relevant, to an issue in the case, or which raised, or possibly raised, a new issue whose existence was not apparent from the evidence the prosecution
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intended to use, or which held out a real, as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue.
As the amendment is drafted, the prosecutor is not required to disclose material unless it satisfies all three elements. This is because the amendment is introduced with the word 'and' rather than 'or'. Because the existing test in (ii) is more restrictive than the new test in (iii), material which may be relevant but which does not assist the defence will not need to be disclosed. The same is true of Amendment No. 36 in relation to the description of prosecution material which the accused may apply to have disclosed.
Amendment No. 44 differs from the other two in beginning with the word 'or' rather than 'and'. It has the effect of creating two separate conditions for the test of prosecution disclosure under the continuing duty in Clause 9. If either condition is satisfied—if the material may reasonably assist the defence or may be relevant or raise a new issue—the prosecutor will be required to disclose it. This considerably widens the test for prosecution disclosure in the circumstances in which Clause 9 applies. I think this is what the noble Lords want to achieve in relation to Clauses 7 and 8 also. Of course, it is not achieved by those amendments. If that is their intention there are problems with that. The test of relevance to an issue in the case is considerably wider than the tests for prosecution disclosure currently in the Bill. The prosecutor would be required to disclose considerably more material than had been disclosed to the accused by way of primary prosecution disclosure under Clause 3. As the Bill is currently drafted, the accused receives the bulk of prosecution disclosure before he makes defence disclosure. If the amendments had their intended effect, he would receive the bulk after defence disclosure rather than before.
Furthermore, the new test is the same as the current test for prosecution disclosure as set out by the Court of Appeal in the 1994 case of R. v. Keane. It requires the prosecutor to disclose in effect all material relevant to an issue in the case, whether or not it has any bearing on the defence actually chosen by the accused. As I explained earlier in the debate on the amendments to Clause 3 tabled by the noble Lord, Lord Airedale, this imposes heavy burdens on the police and prosecution relating to the disclosure of material which may be completely irrelevant to the actual defence. In the light of this, I hope that the noble Lord will agree to withdraw the amendments.
Lord McIntosh of Haringey: The Minister has given a very strange answer. We were told in reply to earlier amendments that the risk we ran in expanding primary disclosure by the prosecution was that there would be no point in secondary disclosure because everything would have been disclosed at the first stage. We are now told that to expand secondary disclosure will, in some sense that is not understood, endanger primary disclosure. I do not believe that the two can possibly be made to fit together.
As was recognised by your Lordships in a wide-ranging debate, with a lot of well-informed contributions, primary prosecution disclosure and

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defence disclosure should, as far as possible, be balanced. We did not agree about how they should be balanced, whether they should be balanced by placing increasing burdens on the prosecution to match the burdens on the defence, or whether the burdens on the defence should be reduced to match the prosecution. That is a matter which remains for discussion.
The issue of secondary prosecution disclosure is closely related to the two issues that we have already discussed and are themselves inextricably linked. Surely it is necessary to have a wider definition of what is relevant at the secondary disclosure stage, if only because at that stage it is more apparent both to the defence and the prosecution, because of the nature of the disclosures that have already taken place, what is relevant. Yet, curiously, there is very little change in the definitions of what is relevant and what should be disclosed. The Bill provides that the criteria are the material which the prosecution consider undermines its case, which comes from the primary prosecution disclosure, and the material which the prosecution consider may assist the defence case, which the noble Lord, Lord Campbell of Alloway, thought was not different in any significant way from the first criterion.
What is proposed here is nothing very dramatic. We say that things may happen both in the understanding of the defence and prosecution and the development of investigations, or understanding of the relationship between one investigation and other investigations. To that degree, it means that the criteria should be more relaxed. We do not propose to put in dreadfully revolutionary words. They are the words used by the Lord Chief Justice himself in the case of Keane.
I acknowledge that technically the Minister has a point in suggesting that we should have used the word 'or' rather than 'and' in the first two amendments. On that basis, I do not propose to press the three amendments in this group to a Division. However, the point is still valid and is related to the earlier discussions which it has been agreed will take place. I hope that those discussions will be widened to consider the criteria for secondary prosecution disclosure as well as the earlier matters that are now on the table. On that basis, I beg leave to withdraw Amendment No. 31.
Amendment, by leave, withdrawn.
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 32:
Page 5, line 36, at end insert—
('() The prosecutor may disclose to the accused any prosecution material which he considers it to be in the interests of justice for the accused to see.).
The noble Baroness said: Amendment No. 32 seeks to insert a discretion into Clause 7, which deals with secondary disclosure by the prosecution. Having dealt with the situation in which the prosecutor must make disclosure, the amendment inserts in sub-paragraph(iii):
'The prosecutor may disclose to the accused any prosecution material which he considers it to be in the interests of justice for the accused to see.'
I make clear to the noble Baroness that this is in the nature of a probing amendment. I preface my remarks by saying that the amendment is prompted at the
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particular request and as a result of very strong representations made to me by senior members of the Bar who prosecute in serious criminal cases.
There is acute concern that this piece of legislation, as presently drafted, may have the opposite effect of what is intended. Instead of releasing the Crown from the burden of much of the disclosure which they are presently required to make, prosecutors may find themselves saddled with a different burden which will adversely affect their ability to prosecute cases to proper conviction. What they are required to do is to look at the unused material at the time of primary disclosure, after the defence statement, and then, as I understand it, throughout the trial from the defence point of view.
A prosecutor will have to keep the unused material under constant review to ensure that nothing which assists the defence is withheld during the course of the trial. That task will, in many serious criminal cases, be a vast one. It is almost standard practice now in an investigation which, for example, concerns a murder, for a large number of statements to be taken initially from witnesses that ultimately are never used by the Crown. There may be many thousands of pages of unused material consisting of both statements and exhibits. The prosecution in a murder case in which a number of different people are accused—and this is an everyday occurrence at the Central Criminal Court and other major court centers—may as a result of the defence statement under those provisions have to keep in mind a number of different defences.
Perhaps I may give a hypothetical illustration. In a murder case in which there are five separate defendants, a killing may have resulted from a fight. One defendant may have served a defence statement indicating an alibi as his defence; another, self-defence; a third that he was present but did nothing; a fourth that he was present and involved in the fight but lacked any knowledge of a weapon which had been used by someone else to inflict the fatal injury; and the fifth may even indicate provocation. It may be that when the prosecutor looks through the unused material at the time of primary disclosure, he sees nothing in it which, in his view, helps him; and nothing in it, so far as he can see, which helps the defence either. The course that he may well wish to adopt, and which is done day in day out at present in criminal trials, is to say to the defence: 'You may see anything you wish. You may make an appointment at the police station where you will be shown into a room where the exhibits are by the officer'. That happens day after day. Junior counsel and solicitors, one or the other, visit the station by appointment and sit reading through the material. If anything is required in the way of a copy, then it can be done at the expense of the defence.
If the prosecutor takes that course now and takes it following this Bill reaching the statute book, he will know that he cannot later be accused of failure to disclose. He cannot later be accused of having missed something. He cannot face a successful appeal later on the basis of non-disclosure, when a proper conviction may be overturned. Above all, he will not have to keep taking his eye off the ball when he is prosecuting the case; in other words, constantly trying to review the case and the evidence from the point of view of the defence.

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He may take that course; and, indeed, does so at present. He must be able to take that course, if he sees fit, when this legislation reaches the statute book.
I said that it is a probing amendment. It raises a matter which should possibly appear in the Bill both at the stage of primary disclosure and, as I indicated in the amendment, at the stage of secondary disclosure; or the noble Baroness might consider enshrining that discretion in the code of practice in paragraph 10.1.
At Second Reading of the Bill, I and other noble Lords sought reassurance from the Minister that prosecuting counsel would retain a discretion at both those stages to let the defence have access to additional material, if they chose to do so. When the noble Baroness dealt with the matter at Second Reading (at col. 505 of Hansard for 27th November 1995), her reply was:
'My noble friends Lord Alexander of Weedon and Lord Campbell of Alloway referred to the discretion of the prosecutor to make further disclosure than is required. The Bill does not prevent the prosecution going further than is required under Part I, but I am not sure what circumstances would justify the prosecution wanting to show the accused all the material the police have gathered. I do not see how it would improve the current arrangements. After all, the prosecutor is under an obligation to make available all material which, in his opinion, could undermine his case and also to make available to the defence material which could support the defendant's case, as disclosed. The prosecutor is required to certify that both obligations have been met'.
I should like to see that discretion enshrined either in the Bill or, at the very least, in the code of practice rather than leaving it to prosecution counsel to trawl through the pages of Hansard for guidance in situations like the one I have outlined. It would be an irony if a Bill, which was born of a desire to help the prosecution avoid burdens of disclosure about which the police, quite understandably, were complaining, resulted in the substitution of a burden on the prosecution which adversely affected their ability to conduct prosecution cases effectively and efficiently.
To prosecute a case of the nature that I have indicated—by no means an unusual occurrence—usually means that the Crown may have a junior counsel to assist; each of the defence is likely to be separately represented, often with two counsel. Each of those pairs of counsel have nothing to do but to devote their attention to their individual client, while the prosecutor has to prosecute a number of different cases. To require him to do so, as this legislation does at the moment, without making it clear that there is a way in which he can ease his burden, is to place a burden on him which can only distract him from doing his job; that is, in essence, to prosecute the case.
I ask the noble Baroness to say that the discretion, which she kindly indicated on Second Reading would remain, can be enshrined in some part of the Bill, either on the face of the statute or in the code of practice. I beg to move.
Baroness Blatch: I hope that the only thing that divides the noble Baroness and myself is a misunderstanding about what the Bill provides for. The amendment provides expressly that the prosecutor may disclose prosecution material to the accused if he thinks
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it is in the interests of justice to do so. But there is nothing in the Bill as currently drafted which prevents the prosecutor from doing that and a prosecutor is under a common law duty to secure a fair trial. It is worth recording that the prosecuting counsel, for example, are bound by the Bar's code of conduct which sets out that:
'Prosecuting counsel should not attempt to obtain a conviction by all means at his command. He should not regard himself as appearing for a party. He should lay before the Court fairly and impartially the whole of the facts which comprise the case for the prosecution and should assist the Court on all matters of law applicable to the case'.
The code of conduct for Crown prosecutors provides in the introduction that:
'Fair and effective prosecution is essential to the maintenance of law and order'.
In the section headed 'General Principles', the code stipulates that:
'The duty of the CPS is to make sure … that all relevant facts are given to the court',
and that,
'Crown prosecutors must be fair'.
The Bill sets out only what the prosecutor is specifically required to do for the purposes of this scheme of disclosure. Thus, for all the reasons I have given—an obligation under the Bill to disclose, consistent with the requirements of the Bill and also an obligation to abide by the code by which all the key agents are bound—I believe that the amendment is not necessary. As always, of course, I shall go away and read Hansard carefully following this stage of the Bill.
Baroness Mallalieu: I am in part much reassured by what the noble Baroness has said. Nevertheless, I ask her that when she looks at the draft code of practice—and she indicated again today that it is a draft—to consider whether it ought to be made clear in paragraph 10.1, which deals with the disclosure of the material to the accused, that nothing in the code or in the legislation restricts that ultimate discretion. It would be helpful to those who are practitioners. I am grateful to her and ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 33:
Page 6, line 2, leave out ('believes') and insert ('concludes').
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendments Nos. 34 and 35:
Page 6, line 4, leave out ('need') and insert ('must').
Page 6, line 9, leave out from ('section') to end of line 16 and insert ('during a period beginning and ending with such days as the Secretary of State prescribes under this subsection by regulations.').
On Question, amendments agreed to.
Clause 7, as amended, agreed to.
Clause 8 [Application by accused for disclosure]:
[Amendment No. 36 not moved.]
8.30 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 37:
Page 6, line 28, leave out ('or').
The noble Baroness said: These are minor amendments designed to ensure that the procedure in Clause 8 under which the accused may apply to the court for the disclosure of additional prosecution material works properly.
Clause 8 provides for the accused to apply to the court for the disclosure of undisclosed prosecution material which he has reasonable cause to believe might reasonably be expected to assist the defence disclosed. Prosecution material is defined in terms of material which is in the possession of the prosecutor or which is in the possession of the police and which the prosecutor has inspected. The definition does not include material which is in the possession of the police and which the prosecutor has chosen not to inspect. But the accused needs to be able to apply to the court in relation to all material which has been retained and which is in the possession of the prosecutor or the police.
The definition of prosecution material in Clause 8 needs to be expanded to cater for this. These two amendments achieve this be referring not only to material which the prosecutor either has in his possession or has been allowed to inspect, but also to material which the prosecutor is entitled to inspect—which encompasses all material retained by the police. I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 38:
Page 6, line 28, at end insert—
('() which is in the possession of a third party and which may contain information which is relevant to the offence or to the offender or to the surrounding circumstances of the case.').
The noble Lord said: This amendment is relatively straightforward. It is based on the possibility of conflict between a third party and the public interest. Quite a lot of material that is relevant to a case could be in the possession of a third party, and there is a natural tendency for the third party to have an interest in keeping it confidential. 'The amendment provides that information in the possession of a third party should be disclosed if it is in the third party's possession and the public interest in disclosing it overrides the third party's confidentiality interest.
That may mean that the defence has to inspect the document to assess whether it contains information which is material. This is an addition to the provision in Clause 8(3) for the definition of prosecution material as being that,
'which is in the prosecutor's possession, or…which he has been allowed to inspect in pursuance of a code operative under Part II'.'
I may not in the time available fully have appreciated the nuances of all of the code of practice. If that is the case and I have got this wrong, I apologise. But I have seen nothing in the code of practice that allows the concern expressed in Clause 8(3)(b) to override the third party's confidentiality interest. Clearly, in the interests of justice and the proper prosecution of a criminal case,
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it is important that there should be no let-out on information that is relevant and is in the possession of a third party. I beg to move.
Baroness Blatch: I hope again that there is some misunderstanding. The amendment would require the prosecutor to disclose, on a court order, material in the possession of a third party which he may never have seen. It is not defined as material in his possession or material which he has been allowed to inspect. I simply do not see how or why the prosecutor can be expected to disclose material about which he knows nothing.
Further, if the accused wishes to obtain material held by a third party, a means of doing so already exists. He may apply to the court for a witness summons under Section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965. The third party must attend court and produce any document specified in the summons, although he can apply for the summons to be set aside.
Also, there is something inherently objectionable in defining material held by third parties as prosecution material. This amendment does not define what is meant by a third party, so it presumably includes everyone who is not a party to the proceedings. Why should a doctor, a lawyer or a social worker who have had nothing to do with the prosecution be regarded as possessing material which ranks as prosecution material for these proceedings? Why, for example, should a witness for the defence in other proceedings which have concluded be regarded as possessing material which ranks as prosecution material for these proceedings?
Finally, the House will recall that in the debate at Second Reading I gave notice that the Government intended to bring forward amendments as soon as we could on the whole subject of third party disclosure. That is still our intention. Among other things, we intend to reform the procedures for the accused to obtain material from a third party. In the light of that, I hope that the amendment will not be pressed.
Lord McIntosh of Haringey: Again that is a curious answer. The Minister relies on the definition of the phrase 'prosecution material' to suggest that the kind of material to which I refer is not prosecution material. But in replying to the amendment moved earlier by the noble Lord, Lord Airedale, she made it clear that in her view there was nothing significant about prosecution material. The noble Lord wanted different wording but the Minister thought there was nothing sinister in the existing phrase and that it did not mean, as the noble Lord thought, material collected for the purpose of the prosecution. It could be material which is relevant to the case but has not been collected for the purpose of the prosecution.
The Minister also gave examples of what she considered to be material in the possession of a third party. She gave the example of doctors and lawyers. I recognise that there could be examples of conflict between the professional rules of some of those people and the interests of the court. Indeed, I believe this is the issue at the moment between President Clinton and the Senate inquiry into Whitewater, namely, what is confidential information between a lawyer and his client.

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I accept that it will be very difficult to find a form of words which resolves that conflict in all circumstances. Nevertheless, it is a lack in the Bill as drafted that there is no specific provision for access to information that is in the possession of a third party.
I do not believe it is relevant that the prosecutor may not know about the material. If it comes to the ear of the accused that there is material which somebody else holds and which may let him off, even though it is not part of the investigation—it could, for example, be a confession by somebody else in a totally different case—then surely that information, which has not been included in the prosecution material as the Minister defines it, should be available to the defence. I rather suspect that a number of the miscarriages of justice cases that have been overturned in the period running up to and following the Royal Commission rely on precisely that point. Here is material which is relevant to the case but does not fall within the definition prescribed in the Bill.
I am very interested in the Minister's remarks about the 1985 Act and other rules. I shall of course read them very carefully before deciding what to do at a later stage. This is not an issue on which, in the absence of confirmation that is firm on one side or the other, I wish to seek the opinion of the Committee. However, it is an issue that is quite live and deserves further attention. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 39:
Page 6, line 30, at end insert (', or
(c) which falls within subsection (3A).
(3A) Material falls within this subsection if in pursuance of a code operative under Part II the prosecutor must, if he asks for the material, be given a copy of it or be allowed to inspect it.').
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendments Nos. 40 and 41:
Page 6, line 32, leave out ('believes') and insert ('concludes'). Page 6, line 34, leave out ('need') and insert ('must').
On Question, amendments agreed to.
Clause 8, as amended, agreed to.
Clause 9 [Continuing duty of prosecutor to disclose]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 42:
Page 6, line 41, leave out from ('it') to end of line 43.
The noble Lord said: This amendment seeks the simple removal from page 6, line 41 of the Bill of the words:
'and…before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned'.
It relates to a very important consideration indeed. Clause 9 is concerned with the continuing duty of the prosecutor to disclose. Subsection (2), which is the substantive subsection in Clause 9, refers to the duty of the prosecutor to keep material under review. However, that is constrained by subsection (1), which states that it applies only between the time of compliance with
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Section 3—that is the primary disclosure. I now realise that I should have tabled an amendment to take out the words 'purports to' as well, but I failed to do so. But the duty stops at the time of acquittal, conviction or a decision not to proceed with the case.
I turn back to what I said on a previous amendment. A very substantial number of the miscarriages of justice which rightly gave rise to public concern and then to setting up the Royal Commission related to evidence which became available after conviction. Because there was no procedure for continuing obligations, those miscarriages of justice have had to be dealt with in a most unsatisfactory way. There have had to be appeals to the Appeal Court and to the Home Secretary for directions for the matter to be brought before the Court of Appeal again and those procedures have taken not months but years—in some cases many years—before they resulted in a correct conclusion. Some of them have not yet come to a conclusion.
This amendment states that there is a continuing responsibility on the prosecutor after acquittal or conviction, or after a decision not to proceed. It may be asked: who is the prosecutor who can do that? As was pointed out earlier, the prosecutor is an authority—in other words, the prosecutor is, in effect, for this purpose the Crown Prosecution Service. Surely it is not impossible for the Crown Prosecution Service to have a continuing obligation to review matters which might cast doubt on a previous conviction.
In legislation over the past two years we have dealt with other aspects of the miscarriage of justice. I suspect that this is an issue that has been overlooked. It would in fact be economical and efficient to continue the obligation for review on the prosecutor rather than resort to the remedial measures which are provided for in other legislation.
If my interpretation is wrong, I shall listen, as always, to what the Minister says. But it seems to me that there is at least a possibility or probability that this legislation is not in line with other legislation which has been reviewed by this Chamber in recent years. I beg to move.
8.45 p.m.
Baroness Blatch: I hope that I am able to allay the noble Lord's fears. In particular, this measure needs to be taken in conjunction with other legislation.
Clause 9 imposes a continuing duty on the prosecutor to keep prosecution material under review and to disclose it if he thinks that it might undermine the prosecution case. Subsection (1) sets out when the duty starts and when it ends. It starts when the prosecutor makes primary prosecution disclosure. It ends when the proceedings are concluded either with an acquittal or a conviction, or because the prosecutor abandons the case.
This amendment removes the end point. It means that the duty to keep material under review and disclose any material which might undermine the prosecution case continues for ever. The prosecutor must keep all his case files open even though the case has ended, and must keep them all under review in case something happens

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in future which leads him to conclude that material not disclosed during the trial now might undermine the prosecution case—if indeed there was still a case to undermine. He would have to do this even if the accused was acquitted. That is an impossible task for the prosecutor to perform.
As the Bill is drafted, the disclosure requirements in Part I end when the trial ends. If there are subsequent proceedings, for example, because the accused has appealed against conviction, the Court of Appeal will have access to all papers in the case and will be able to decide for itself whether prosecution material should have been disclosed. Even if there are no subsequent proceedings, if the prosecutor becomes aware that undisclosed prosecution material might have rendered a conviction unsafe, he will take whatever action is appropriate, such as bringing the material to the attention of the Criminal Cases Review Commission. But that is very different from requiring him to keep all case files open and all cases under review for ever, as this amendment would require. As I have said, it is impossible for the prosecutor to do that.
In the light of that explanation about taking this Bill in conjunction with other measures that are appropriate if someone finds himself in that position, I hope that the noble Lord will not press his amendment.
Lord McIntosh of Haringey: I readily accept that the amendment is defective in the sense that it provides for indefinite retention and disclosure of material after acquittal or after a decision has been taken not to proceed. It is quite difficult to ask the Minister to try to draft something which provides for the duty to continue only after conviction.
I am still worried about this matter. It seems to me that there are still elements of the prosecution case whose importance only becomes apparent when new evidence becomes available after conviction. We might think about having a restriction—a closing date ending after a decision has been made not to go to appeal or after all rights of appeal have been exhausted. That might be a solution to the problem. But I cannot believe that there is any doubt that much of the justified concern about miscarriages of justice has been about cases in which the new material becomes available which may or may not under the rules of the Court of Appeal lead the case to be referred to the Court of Appeal; or may or may not under the legislation for the criminal cases review authority lead it to be considered by that authority; but which might be hindered if the information available to the prosecution at the time before conviction was no longer able to support or refute it.
I feel that there is an issue here which needs further consideration. It may be that it is a matter to which we shall have to return. For those who are in prison and believe that they have been wrongly convicted, the idea that when files are closed there is no continuing duty on the prosecution to help them seek justice is a deeply unpleasant and damaging thought. We have to bear in mind, as I said earlier, the concerns which have properly existed about miscarriages of justice and we have to make sure that we do not land up in the same position
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in which we found ourselves before the Royal Commission and the legislation following the Royal Commission: that there are technical obstacles to the retention and disclosure of evidence which is relevant to an appeal whether or not the information was gathered before the conviction took place.
As I said, I shall read carefully what the Minister said. I ask leave to withdraw the amendment, but I cannot say that I am entirely satisfied.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 and 44 not moved.]
Baroness Blatch Baroness Blatch moved Amendments Nos. 45 and 46:
Page 7, line 32, leave out ('believes') and insert ('concludes'). Page 7, line 34, leave out ('need') and insert ('must').
The noble Baroness said: I have already spoken to Amendments Nos. 45 and 46 and, with the leave of the Committee, will move them en bloc. I beg to move.
On Question, amendments agreed to.
Clause 9, as amended, agreed to.
Clause 10 [Faults in disclosure by accused]:
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 47:
Page 7, line 39, leave out ('the accused') and insert ('either party').
The noble Baroness said: Clause 10 deals with faults in disclosure by the accused and provides sanctions where the accused fails either to give a statement or to produce a statement within the specified period; or where he sets out inconsistent defences in that statement or at trial puts forward a defence which is different from that set out in the defence statement given. There are additional provisions in relation to alibis.
For the convenience of the Committee, when moving Amendment No. 47 I shall speak also to Amendments Nos. 48, 49, 51, 52, 55 and 56. I do not pretend that they are perfectly drafted. I can see at once that there are a number of clear errors. But I hope that they will flag for the Minister a point of principle which needs attention when she and her department consider what has been said in the course of the Committee stage.
The present Clause 10 provides for sanctions to be applied where the accused fails to give a statement, does so late, gives one which contains inconsistent defences or, at trial, advances a different defence from that contained in the defence statement. I do not quarrel with any of that. However, as presently drafted, the Bill contains no equivalent provisions for the prosecution. If the object is to be even-handed as between the defence and the Crown; if it is to ensure that the scales of justice are evenly balanced or—to borrow a phrase used by my noble friend Lord McIntosh earlier in this Committee stage—to provide 'equality of arms', then there must be sanctions which apply also to the Crown for similar transgressions. If it is right to provide the power for there to be adverse comment where the defence depart from the defence as indicated in the defence statement at trial, surely such sanctions must also be available in relation to the Crown.
These amendments propose simply to put the prosecution and defence on an equal footing and to ensure that similar sanctions apply to the failures of the Crown. The sanctions provided under this section are that the court, or any other party with the leave of the court, may make adverse comment about them; and that that the court or jury may draw such inferences as seem proper in deciding whether or not the accused is guilty.
I hope that the noble Baroness will feel that, in the light of what was said in particular by a number of noble Lords at Second Reading, this is a point that requires attention even though the amendments may not be in perfect form. I beg to move.
Baroness Blatch: I can understand why Members of the Committee tabled these amendments. On the face of it, the sanctions in Clause 10 appear to be rather one-sided. An inference may be drawn if the accused fails to comply with the requirements of defence disclosure in several respects, but no inference may be drawn from any failure by the prosecutor. I shall try to explain why the provisions in Clause 10 are as they are.
The Royal Commission on Criminal Justice recommended that the accused should be required to disclose information about his case. It foresaw the possibility of the accused attempting to evade the requirement in some way. And so it recommended sanctions in the form of the drawing of inferences in certain circumstances. Those were putting forward a defence at trial without giving any indication in advance; or relying on a different defence at trial from the one disclosed earlier; or disclosing in advance a number of inconsistent defences (recommendation 136). The Government accepted that recommendation, and Clause 10(1)(a), (c) and (d) gives effect to it. These amendments depart from the Royal Commission in applying sub-paragraphs (a) and (d) to both parties to the proceedings, and removing sub-paragraph (c) altogether.
In relation to sub-paragraph (c), the effect of removing it is that it will be open to the accused to set out any number of inconsistent defences in a defence statement, so as to trigger the maximum possible disclosure of additional material by the prosecutor, whether or not he intends to rely on any of those defences, and to do so without any sanction. The Royal Commission disapproved of that abuse and so do we. The noble Baroness will correct me if I am wrong, but I seem to recall the noble Lord, Lord McIntosh, saying on an earlier occasion, during the debate on the humble Address, that in so far as the Bill followed the Royal Commission it would have his support.
In relation to the other amendments, the Bill does not provide for an inference to be drawn if the prosecutor fails to serve any information about the prosecution case, or serves information late, or departs from his case. There are good reasons for that. The prosecutor is already required to serve a notice of the prosecution case or a notice of transfer under existing statutory provisions. If he does not do so, two consequences follow. One is that the accused is not required to make defence disclosure in Crown Court cases at all, and no
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inference can be drawn. That is the effect of Clause 5(1)(c). The second, and more likely, consequence is that the case will not be allowed to proceed. Similarly, if the prosecutor serves the information late—that is, has not done so before the appropriate time for defence disclosure—the accused is not required to give a defence statement. That is because the time limits for these procedures will link defence disclosure to the disclosure of unused material by the prosecutor rather than to the service of the prosecution case. The prosecutor will need to ensure that he complies with the other statutory requirements in relation to the service of his case in good time.
The position is a little different in relation to a departure from the prosecution case. In the light of new information after pre-trial disclosure has taken place, the case for the prosecution may change. If there is new evidence against the accused, the prosecutor is under a separate and long-standing duty under the existing law to serve it on the accused so that he is not taken by surprise at trial. If the prosecutor does not do that, the accused may apply for an adjournment. If there is new prosecution evidence or a change in the prosecution case, the defence case may change. But the Bill already caters for that in Clause 10(4), by requiring the court to have regard to the extent of the difference from the defence statement and the reason for it, before deciding whether to comment or draw an inference. If the change is a consequence of something done by the prosecution, it is unlikely that the court will allow an inference to be drawn. On the other hand, if the change results simply from a desire by the accused to surprise the prosecution, and the prosecution case itself has not changed, it is more likely that the court will allow an inference to be drawn.
I have spoken at some length to the amendments and hope that, in the light of that lengthy explanation, the amendments will not be pressed.
Baroness Mallalieu: Before the noble Baroness completes her response, can she say what is the sanction under the Bill as presently drafted if the Crown departs at trial from the case that is set out in its case statement? I cannot see any such sanction, despite what the noble Baroness indicated.
Baroness Blatch: I mentioned some of the sanctions, though they are not sanctions as such. For instance, the case may be adjourned or it may be abandoned; the defence can challenge as to why the case departed from the statement and why the prosecution is not following the lines it set out in its statement of case. I gave some arguments against it. Perhaps the noble Baroness will read what I said, just as I shall read carefully what she said. If necessary we can return to the matter.
Baroness Mallalieu: I shall certainly read what was said and I am grateful to the noble Baroness for indicating that she will look at what was said on this side also. As presently drafted, as the Minister conceded when she began to deal with this series of amendments, the clause appears to be one-sided. I am not entirely satisfied that what she said allays my fears. However, I

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shall look at it and return to the matter in due course if the noble Baroness does not. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 and 49 not moved.]
9 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 50:
Page 7, line 42, leave out ('specified period') and insert ('period mentioned in section 5(7)').
On Question, amendment agreed to.
[Amendments Nos. 51 and 52 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 53:
Page 8, line 12, leave out ('specified period') and insert ('period mentioned in section 6(3)').
On Question, amendment agreed to.
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 54:
Page 8, line 24, after second ('court') insert ('following the making of an application made in the absence of the jury').
The noble Baroness said: The purpose of this amendment is to set out what shall happen when a party makes an application to the court for leave to comment adversely in the circumstances set out in Clause 10. The words which it is sought to insert in Clause 10(3)(a) are,
'following the making of an application made in the absence of the jury'
If such an application were to be made by the Crown to comment adversely on, for example, a change of tack in the defence case and that application were to be made in the presence of the jury, but to be rejected by the court, then clearly prejudice would result which might well result in the trial itself being aborted. So all this amendment seeks to do is to clarify the procedure that is to be followed whenever there is a suggestion that any other party, as opposed to the court itself, will either wish to comment or seek to draw inferences in the course of the trial. I beg to move.
Baroness Blatch: I am not sure that this amendment achieves the intended effect. Let us examine what will happen in practice. The accused will advance a defence in court which is different from a defence in the defence statement. After he has finished, the prosecutor will turn to the judge and ask for the jury to be sent out. Some time later the jury will return. Either the trial will carry on as if nothing had happened or the first thing the prosecutor will do will be to comment adversely on the fault in disclosure by the accused. It will not be very long before juries realise that they are being sent out because the prosecutor intends to seek permission to comment on such a fault. They will know that there has been some fault in disclosure by the accused, which they are not allowed to know about. It is not difficult to imagine the subconscious effect on the jury as they ponder their verdict. This would defeat the purpose of the amendment.
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In my view it would be better for the prosecutor to comment in open court and for the judge to direct the jury in his summing-up about the inference they may -properly draw. That seems to be fairer to the accused than the consequence of this amendment.
Baroness Mallalieu: I do not know whether the noble Baroness and I are at cross-purposes. She indicated, as the subsection does, that it will be necessary for the prosecutor to seek the leave of the judge before making any comment and indicated that a prosecutor would ask for the jury to go out, in following my amendment. I am bound to say that I would have thought that most prosecutors would have taken that course any way, given the likely prejudice that will result if the application is heard in front of the jury. However, it seems to us to be worth while making it plain on the face of the statute that that is the procedure.
It is of course right that when juries are sent out they quickly become aware that matters of law are being dealt with. It is abundantly clear that many juries are aware that matters of admissibility of evidence, for example, are being dealt with. There seems to be no way around that. I cannot believe that it is right, in effect, to place the matter in front of the jury at the outset when prejudice is certain, rather than to say that it will be possible for them to speculate if they are kept out while the legal argument takes place.
The normal rule is that matters of law are for the judge. When those have to be dealt with, and if there is any prospect of the jury's view of the facts being contaminated by the argument, the jury go out. All that we seek to do with this amendment is to state on the face of the statute that that will be the normal procedure in dealing with what is in effect a matter of law for the judge to determine—in other words, whether the circumstances of this case mean that the provisions of Clause 10 and the adverse comment should be permitted. When the noble Baroness comes to look at what I have said, I hope she will feel that there is some merit in the suggestion I make. With that hope, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 55 and 56 not moved.]
Baroness Blatch Baroness Blatch moved Amendment No. 57:
Page 8, line 36, leave out subsection (6).
On Question, amendment agreed to.
Clause 10, as amended, agreed to.
Clause 11 [Public interest: court to review orders]:
Lord Williams of Mostyn Lord Williams of Mostyn moved Amendment No. 58:
Page 8, line 45, at end insert—
('(IA) In summary proceedings the duties set out in this section shall fall on the clerk and 'the court' shall be construed accordingly.
(1B) The clerk to the justices to whom subsection (IA) applies shall be present on all occasions when the court makes an order under sections 3(6), 7(5), 8(4) or 9(8) and should see all relevant information.').
The noble Lord said: I hope that this is an amendment of practical utility, which deals with the problems which will undoubtedly arise in the magistrates.' courts. They

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are entirely different to the Crown Courts, where, in most large centres these days, as is well known, there is a liaison presiding judge who is likely to be present on many occasions in a given year. The problem in the magistrates' courts is that the magistrates are not full time and therefore are not likely to be in a position to carry out this work of review.
We have looked at the present clause and commend, of course, the provision of continuous review, but inquire and offer remedy as to who can actually keep matters under review. We suggest that it is fruitless to simply leave it to the magistrates' courts. Everyone who has practised in them knows that on different occasions the Bench will be differently constituted. In the smaller courts it is quite impossible to have the same constitution for one set of reasons, and in the larger courts for different sets of reasons, and again problems arise.
Therefore this is a mechanical amendment to bring about what it seems the Government desire; namely, that there shall be effective, continuous review. On that basis we have suggested that it is better for the clerk to the court to have the specific responsibility of continuous review rather than' the court, which can consist of different trios of magistrates on different occasions. We suggest to the Committee that it is quite impossible to expect a Bench of magistrates, perhaps over a period of nine months, 12 months or more, to keep the matter under constant and continuous review. The clerk is much more likely to be able to carry out the work efficiently, consonant with the spirit of the clause as we understand it. I beg to move.
Baroness Blatch: The decision whether it is in the public interest to disclose sensitive material to the accused in criminal proceedings has so far been reserved to a judge or magistrate. Given the difficulty and importance of that decision, I think it is right that it should he taken by a judge or magistrate. The effect of this amendment is that in some circumstances that decision will be taken by a clerk to the justices. Although the clerk may be very experienced in the law, and may advise the justices, he has no judicial authority to determine questions of law or to determine guilt or innocence. I simply do not believe that he is the right person to decide whether sensitive material should be disclosed.
This amendment would also set the authority of the clerk higher than the authority of the justices themselves. The original decision whether disclosure is in the public interest under Clauses 3, 7, 8 or 9 is made by the court, rather than by the clerk. Clause 11 is concerned with a review of that decision. If the clerk decides on reflection that the court has got it wrong, he will order disclosure. There will be no opportunity for the court itself to consider the matter.
The noble Lord may have in mind the difficulties that can arise when a magistrates' court is asked to rule on the disclosure of sensitive material which clearly demonstrates the guilt of the accused. In such cases they are likely to take the view that the public interest in protecting the source of the information must prevail.
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The material will not be disclosed and will not be part of the prosecution case against the accused. But they will be aware of it when they come to decide whether the accused is innocent or guilty. This problem does not arise in the Crown Court because the jury will not know about sensitive material in these circumstances.
This is a problem which the courts already have to grapple with. As the law stands at present, magistrates who hear an application for the non-disclosure of sensitive material have a discretion in the interests of justice to order that the case should be tried by a different Bench. That was the decision in a judicial review earlier this year, R v. South Worcestershire Magistrates, ex pane Lilley. With respect, that seems to me to be the proper course, rather than providing for such decisions on disclosure to be taken by the clerk to the justices. This is not simply an administrative matter; it is a matter of justice, and the clerk to the justices is not an appropriate person to whom such work should be devolved.
Lord Williams of Mostyn: I entirely understand the reasoning which the Minister put forward. Unfortunately, it is not reasoning directed to the problem which I sought to identify. There are problems when a Bench of magistrates looks at material which points to guilt which is then not disclosed. I entirely agree with the Minister that it is appropriate in those circumstances that justice should be seen to be done. Therefore, an alternative Bench of magistrates must try the substantive issue of whether or not guilt is proved. However, that is not my point.
My point—I must return to this because I believe that many magistrates throughout our countries of England and Wales share my concern—is whether, when one speaks of the court keeping under continuous review, the Minister intends that that court—namely, three magistrates—should have the same constitution on every occasion. If not, the system cannot work. I ventured to suggest on an earlier occasion that there will be endless problems in the magistrates' courts, which try significantly more than 95 per cent. of criminal cases in this country. Those significant problems will be added to unless the Minister thinks carefully about this.
I think that there is a sensible argument that questions of public interest disclosure should always be tried by a Crown Court judge rather than by magistrates. If that is not to be allowed for in the Government scheme of things, how will it work? Are the three magistrates to be identical? If not, the work of review is extremely difficult, if not impossible.
I am grateful for the Minister's response, but it is not the whole cause of my concern. I entirely take the point that it may not be seemly or appropriate that a clerk to the justices could overrule his own Bench. What one wants is efficiency in the continuity of review. That is why we tabled the amendment. We simply wanted to alert the Government in a spirit of good nature and seasonal good will, which is always found—certainly from me.
Baroness Blatch: I can concur with that. The noble Lord has suggested that this is a problem. Perhaps I

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could go away and think about the nature of the problem and whether there needs to be a response to it. If I need to, I shall contact the noble Lord between the two stages of the Bill. If not, I have no doubt that the noble Lord will return to this at a later stage.
Lord Williams of Mostyn: I am most grateful for that approach which reciprocates ours. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch moved Amendment No. 59:
Page 9, line 10, leave out ('and the accused').
The noble Baroness said: I shall speak also to Amendment No. 60. The amendment to Clause 11, and the related amendment to Clause 12, are designed to remedy a deficiency relating to applications to the court for rulings on whether it is in the public interest to disclose material.
The current procedure for such applications derives from the 1993 case of Davis, Johnson and Rowe. Depending on the level of sensitivity of the material, the prosecution either tells the defence it is applying for a disclosure ruling, indicating the category of material in question; and the defendant has an opportunity to make representations to the court at an inter partes hearing; or if the material is more sensitive, tells the defence it is applying for a disclosure ruling, without indicating the category of material in question; and the application is heard ex parte; or in a highly exceptional case, makes an ex parte application to the court without giving any notice to the defence. Those procedures have worked well and we intend to embody them in rules made under Clause 12.
As the Bill stands at present, if the court decides, having reviewed the matter, that it is no longer not in the public interest to disclose certain material, it must make an order for disclosure and inform the prosecutor and the accused of its order. But a difficulty would arise if the material were so sensitive that the prosecutor initially made an ex pane application and the court decides on review that the material must be disclosed. In such cases the prosecutor may want to abandon the proceedings without the accused knowing that an ex parte application had been made, so as to protect the source of the material. Clause 11 does not allow him to do that because the accused must be informed of the order, which would defeat the purpose of making an ex parte application in the first place.
Accordingly, Amendment No. 59 to Clause 11(4) provides that, if the court does order disclosure, it must inform the prosecutor but not the accused of its order. That will give the prosecutor an opportunity to decide whether or not to abandon the proceedings. If he decides to continue with the proceedings, it will of course be necessary to disclose the material to the accused, and to inform the accused of the order made by the court.
Amendment No. 60 to Clause 12 completes what is needed by providing for rules of court also to be made governing the practice and procedure to be followed in relation to an order made under Clause 11(4). I beg to move.
9.15 p.m.
Lord Williams of Mostyn: I can feel the ghost of the late, revered Franz Kafka sitting on my shoulder. I see that the noble Lord, Lord Lyell, points behind me, but it is not visible at the moment. I dissent from the proposition, as I believe most criminal practitioners would, that ex parte applications to courts work well at the moment. They do not. They cause a good deal of trouble and concern, not least to the judiciary. Secrecy is the enemy of justice, and secrecy, if it is required, should be dealt with in very small packets indeed.
I suggest that there is no difficulty in the present circumstances, with the present draft Clause 11, in making a notification to the accused that the court now no longer believes that it is not in the public interest to disclose material. To put it at its kindest, I find severe internal contradictions in the Government's approach. This again, if I may ask the Minister to do this, is an occasion when there should be some rethinking of whether an accused's rights must always be subordinate, and whether or not the balance is not in danger significantly of slipping too far away from the accused's interests, which, in fact, should be coincident with the interests of the community as a whole.
Baroness Blatch: The noble Lord has me at a disadvantage, in that some considerable thought has been given to these changes. I have no reason to dissent from the system not working well at the moment. I bow to the noble Lord's considerable experience in these matters. Given that we have another stage of the Bill, I invite the Committee to accept the amendment now, and no doubt the noble Lord will return to the issue at a later stage of the Bill.
On Question, amendment agreed to.?
On Question, Whether Clause 11, as amended, shall stand part of the Bill?
Lord McIntosh of Haringey: I shall speak briefly on Clause 11 stand part at the behest of the noble Viscount, Lord Colville of Culross, who, I believe, has been in discussions with the Minister on the point to which I am now going to refer. He is concerned that there are many cases before the courts in which the particular case is, or may be, part of a larger inquiry or investigation. At the beginning of the case it may appear that the case is separate from the larger inquiry, but, as investigations proceed, it becomes clear that the inquiry is larger and wider, and that material in the hands of the police may not have been collected as part of the original investigation, but may become relevant to the case as it develops.
The noble Viscount has suggested that there should be amended wording to what I thought I took down as paragraph 7.4 of the code, but I do not believe that that can be right. The wording he suggests is:
'Relevant material should include any other material which derives from activities of the police or investigating authority in the course of investigations which led to the prosecution'.
The noble Viscount has left to write a summing-up speech in a case now before his court and therefore I am not able to consult him on the detail. The Minister knows of it as a result of the meetings which she has

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had with him. I do not wish to hold up the Committee at this stage but I ask that the Minister gives further consideration to the case which the noble Viscount made to her and considers whether he or she should propose further amendments at a later stage of the Bill.
Baroness Blatch: I am grateful to the noble Lord, Lord McIntosh, for pressing the point on behalf of the noble Viscount, Lord Colville. Not only have we been in correspondence but we have met, and I thought that he was satisfied about the matter.
All material that police have is to be given to the prosecutor and therefore there is no discretion to hold back material. Clause 11 requires the court to keep under review whether it is still not in the public interest to disclose material which it has ordered should not be disclosed. This requirement applies at all times after the court has ordered that it is not in the public interest to disclose certain prosecution material and before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case. If the court at any time no longer believes that it is not in the public interest to disclose material it shall so order. That continuing duty is also a feature of the current law which is preserved by the Bill.
The particular point on which I believe the noble Viscount was satisfied was that of certification. There will be formal certification of the police having handed the material over and of the prosecution handling it in a way that is consistent with the code of practice.
Clause 11, as amended, agreed to.
Clause 12 [Rules of court]:
Baroness Blatch Baroness Blatch moved Amendment No. 60:
Page 9, line 21, at end insert ('or in relation to an order made under section 11(4) (whether or not in pursuance of an application)').
On Question, amendment agreed to.
Clause 12, as amended, agreed to.
Clause 13 agreed to.
Clause 14 [Common law rules as to disclosure]:
[Amendments Nos. 61 and 62 not moved.]
On Question, Whether Clause 14 shall stand part of the Bill?
Lord Williams of Mostyn: Perhaps I may inquire of the Minister what she says the effective consequence of Clause 14(1) will be.
Baroness Blatch: It may be better if I speak to the whole of Clause 14 because I understood that it was to be generally opposed. It provides for common law rules as to disclosure, with one exception, no longer to apply.
The rules of common law which were effective before the appointed day and which relate to the disclosure of material by the prosecutor will no longer apply regarding things falling to be done after the relevant time in relation to an alleged offence; that is, when the accused pleads not guilty in a summary trial or when the proceedings are transferred to the Crown Court.
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However, this does not affect the common law rules as to whether disclosure is in the public interest. These relate to the consideration by the court of different aspects of the public interest in relation to the disclosure of certain information. For example, the court may balance the public interest in not disclosing the identity of a police informant against the public interest in ensuring that the accused receives a fair trial, in considering whether particular material needs to be disclosed.
Members of the Committee opposite do not believe that Clause 14 should stand part of the Bill. If it were removed the existing common law rules on disclosure would continue to apply alongside the statutory scheme created by this Bill. We would then have two disclosure systems; the current, unsatisfactory system, which was roundly condemned by the Royal Commission and which is based on developments in case law which themselves depend on common law rules, and the statutory scheme created by this Bill.
I believe that that would create immense problems for the courts in interpreting the law and for parties to criminal proceedings in applying it. The statutory scheme would generate its own case law, which would run parallel and in conflict with the case law developed under the existing scheme. That would be profoundly unsatisfactory.
Subsection (1) provides for the rules of common law which were effected by the appointed day and which relate to the disclosure of material by the prosecutor no longer to apply regarding things falling to be done after the relevant time in relation to an alleged offence.
Lord Williams of Mostyn: I am grateful to the Minister but perhaps I may repeat my question. What do the Government say is the effective consequence of Clauses 14(1)(a) and (b)? I ask that in particular because, when my noble friend Lady Mallalieu spoke to Amendment No. 32, the Minister was at pains to say that the common law duties of prosecutors relating to disclosure would continue. I believe that she read out the ethical duties of a member of the Bar and the ethical duties of a member of the Crown Prosecution Service. That being so, my inquiry is simple—and I respectfully repeat it. What is specified to be the effective consequence of Clause 14(1)(a) and (b)?
Baroness Blatch: I do not understand the point which the noble Lord is trying to make. Clause 14(1) states:
'Where this Part applies as regards things falling to be done after the relevant time in relation to an alleged offence, the rules of common law which … were effective immediately before the appointed day, and … relate to the disclosure of material by the prosecutor, do not apply as regards things falling to be done after that time in relation to the alleged offence'.

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What is the specific point which the noble Lord seeks to make on this issue?
Lord Williams of Mostyn: I am sorry that I have not made myself clear and I am sure that it is my fault. What will be the consequence of Clauses 14(1)(a) and (b)? I cannot make my question more specific.
Baroness Blatch: I am not sure that I can give an answer which will satisfy the noble Lord. Perhaps he will allow me to take away his question and return to it between now and Report stage.
Lord Williams of Mostyn: Of course, and I am most grateful.
Clause 14 agreed to.
The Earl of Courtown: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-eight minutes past nine o'clock.