Criminal Procedure and Investigations Bill [H.L.]

HL Deb 19 December 1995 vol 567 cc1518-99

3.20 p.m.

The Minister of State, Home Office (Baroness Blatch)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)

On Question, Motion agreed to. House in Committee accordingly.

[The PRINCIPAL DEPUTY CHAIRMAN OF COMMITILES in the Chair.]

Lord McIntosh of Haringey moved Amendment No. 63:

Before Clause 15, insert the following new clause—

CODE OF PRACTICE

(". In this Part references to a code of practice are to the code set out in Schedule (Code of Practice).").

The noble Lord said: In rising to move Amendment No. 63 I wish to speak also to Amendments Nos. 97, 99, 100 and 162. Amendment No. 63 is a paving amendment in the right place to introduce a new schedule which consists of the text of the code of practice. We had a certain amount of debate on the Motion of Commitment yesterday afternoon as regards the code of practice and there was a considerable amount of debate on the code of practice at Second Reading during which, I remind the Committee, a large number of noble Lords from all parts of the Chamber complained that Part II is almost entirely an enabling provision for a code of practice which had not yet been produced. There was a widespread feeling on Second Reading and yesterday that there was something wrong with having a code of practice of this kind not available at the time of Second Reading and available, as we learnt, only a few days before the Committee stage.

I remind the Committee that we received the code of practice only at midday on Wednesday 13th December; in other words, only two working days before the Committee was due to sit. I also remind the Committee that the draft we received on 13th December was dated 11th December. Whether that means that it had been prepared and had been sitting around for two days, or someone had forgotten to change the date, I have no way of knowing. However, the fact of the matter is that we had little time between Wednesday midday and the time the Chamber rose at 4.30 p.m. on Thursday to put down amendments which could have been accessible to the Chamber for full debate. In practice, we had to table our amendments by four o'clock on Friday, which meant that they were starred in yesterday's Marshalled List.

When I heard the Minister complain, in response to the first debate yesterday, that she only had access to our amendments on Sunday afternoon I thought that was a little rich. We slogged hard to treat the code of practice seriously and to produce amendments to it in a short period of time. For the Minister then to complain that we were not reticent—I believe that was the word she used—in coming forward with amendments and that she had to consider them at the last minute does not reflect badly on the Opposition but extremely badly on government business management in that we were forced to behave in that way and to produce amendments at such short notice. However, we have done so.

The first thing we thought to be necessary was that the Committee should have direct access to the wording of the code of practice. The noble Earl, Lord Russell, complained yesterday that he could not get hold of a copy of the document when he went to the Printed Paper Office, although I know that it was placed in the Library. From Friday morning it was available in a list of amendments and has been available all this week in the Marshalled List of amendments because I put it there. I took the view that the Committee had the right to know the substance of this matter; Part II of the Bill is only the shell. I make no apology for taking up the time of the parliamentary printers in producing and reproducing this code of practice because I believe that this afternoon's debates will make it clear that the wording of the code of practice is essential to the understanding and interpretation of Part II of the Bill. As Part II of the Bill, which is concerned with criminal investigations, precedes in chronological order in the criminal justice system Part I, the code of practice is essential for understanding the great bulk of the important part of this rather disparate Bill.

I go further and remind the Committee of the conclusions of this Chamber's Select Committee on the Scrutiny of Delegated Powers. That committee remarked that noble Lords had said at Second Reading that the Bill was nothing without the code. It cites six different references at Second Reading in relation to that phrase. The committee made a comment which deserves this Committee's full attention. Paragraph 16 of the Scrutiny of Delegated Powers Committee's report of 5th December states: The majority of codes authorised by statute are not subject to Parliamentary control; and the Department's Memorandum argues that there is no need for such control in the case of this new code because it 'does not affect the liberty of the individual and is purely procedural'. However, correct procedure in the criminal law is indispensable to the process of a fair trial, and there is an obvious comparison here with the codes issued under sections 60 and 66 of the Police and Criminal Evidence Act 1984. That Act requires the Secretary of State to publish codes in draft, to consider representations about their content, and to lay the final draft before Parliament for affirmative resolution. Another comparison is with the scheme provided for in the Criminal Injuries Compensation Act 1995, which requires a draft of the scheme to be laid before Parliament for approval by both Houses".

The Chamber has only recently debated the Criminal Injuries Compensation Act 1995. The committee concluded that, two additional procedural safeguards are needed—provision in the bill for consultation about the content of the code; provision for subjecting the code, when it is laid before Parliament, to affirmative resolution procedure".

Amendments in this group provide for both of those recommendations. Amendment No. 97 provides for the affirmative resolution procedure. Amendment No. 99 prohibits casual revision of the code. I can assure Members of the Committee that they will see from the Bill that casual revision is indeed possible. Amendment No. 100 provides for consultation in the terms asked for by the scrutiny committee.

The minimum requirement for this Chamber to do its job properly as a revising Chamber is that it has access in good time to the material which is necessary for an understanding of the Bills which come before it. The minimum requirement for a Bill which provides genuine legislative support for political or other initiatives is that the Bill itself should be explicit about the most important aspects of its provisions. Part I of the Bill is extremely explicit about the disclosure procedures immediately before and leading up to a trial in a criminal case. Some would even argue that it is too explicit. Part II is not at all explicit because it depends entirely on a code of practice which is not subject to parliamentary scrutiny, as was confirmed by the Minister in answer to the noble Lord, Lord Campbell of Alloway, yesterday.

We have devised a series of amendments, running up to and including Amendment No. 96, which seek to bring out the important aspects of the code and subject them to parliamentary debate. If that takes a number of hours this afternoon I do not apologise, because that is what we are here for. In the first instance it is important that the code of practice should be available for inspection.

I certainly do not propose to seek the opinion of the Committee on Amendment No. 162 which contains the text of the code of practice. However, it is important that we should recognise the principle that the code is available for parliamentary scrutiny, subject to consultation—in the words of the scrutiny committee—and that its enactment and changes to it are subject to parliamentary scrutiny by means of the affirmative resolution procedure. It is on that basis that I beg to move Amendment No. 63.

3.30 p.m.

Lord Campbell of Alloway

At Second Reading I raised the status of the code of practice in terms of legal efficacy. I have been interested in the subject for some time, and introduced a debate in this House many years ago.

I thought that under Clause 18 as it stood the code of practice would have had such legal efficacy as is conferred by statutory instrument. However, I was mistaken, as it appears that the intention was merely to lay it before Parliament. As my noble friend the Minister indicated yesterday when I sought clarification, the code will not have parliamentary approval, as is proposed in Amendment No. 97. I believe that it should. I am bound to support Amendment No. 97. The scrutiny committee appears to consider that that is the appropriate way in which the status of the code should be cast. I have always deferred to that committee, although I expressed a personal opinion in that direction before its report was issued.

However, I do not believe that the code should be entrenched in the Bill in the form of a schedule having the quality of primary legislation as proposed in Amendments Nos. 63 and 162. I shall therefore oppose those amendments in due course.

There is a reasonable sanction in Clause 93, which Amendment No. 99 proposes to omit. I support Amendments Nos. 93 and 97 but oppose Amendments Nos. 63 and 162.

I support Amendment No. 100 relating to consultation before the code is laid before Parliament. Again I follow the recommendations of the scrutiny committee, but that was my own approach in any event.

I agree with the noble Lord, Lord McIntosh, that Part II is in a sense an enabling provision for the code of practice. It should have parliamentary approval. I agree that it is essential to an understanding of Part II of the Bill. I know that my noble friend the Minister will be disappointed at my qualified opposition to the position of the Government, but there it is.

Lord Rodgers of Quarry Bank

My Lords, the discussion seems to me to illustrate an unsatisfactory element in our procedures. We have before us the draft code of practice, and I shall refer to its timetable shortly. We are in the difficult position of wishing to discuss it and consider whether it is adequately drafted but are unable to do so except by following the procedure adopted by the noble Lord, Lord McIntosh of Haringey, and attempting to write its provisions on to the face of the Bill.

As the noble Lord said, it is wholly unsatisfactory that the code was not available until Wednesday of last week. Indeed, at Second Reading a number of us made clear that if it had not been available by yesterday the Committee stage should hot have proceeded.

I am concerned that the code is still a draft. In a letter the noble Baroness, Lady Blatch, said that although the code had been the result of consultation with the police, the CPS and other investigators and prosecutors the Government were still considering its detailed provisions, and it might need further refinement before a final draft was ready for publication. Therefore, in so far as we seek to discuss the code today, we are discussing a draft which may be at a relatively early stage. If we sought, for example, to query whether the design of the code, with definitions which are not complete on the first page and many separate questions to be asked about wording on subsequent pages, not only would it delay our proceedings but we might find ourselves working on a draft which in any event the Minister sought later to amend.

One of the principal claims of this House, which is generally accepted even by those who would seek to change the House, is its record of scrutiny. We go through Bills in great detail, and legislation benefits from the role that we perform. However, not only are we faced with the Bill itself, which, as we said yesterday, was available for the Committee stage much too soon, but we are faced with this code of practice. I support everything that the noble Lord, Lord McIntosh, said about the unsatisfactory position we face.

Baroness Blatch

Taking Amendments Nos. 63 and 162 first, I believe that it would be better if the code remained a code of practice rather than being enshrined in primary legislation. I say that for the following reasons.

First, this is a code of practice for police officers which resembles more than anything else the codes of practice issued under the Police and Criminal Evidence Act 1984. Like those codes it goes into detail about everyday police practice. Therefore, I do not see in principle why this code of practice should be on the face of a statute whereas those codes are not.

The second reason is that the Royal Commission on Criminal Justice recommended that the detail of the supporting arrangements on disclosure should be in subordinate legislation or a code of practice. On that point we agree with the Royal Commission. I seem to recall the noble Lord, Lord McIntosh, saying earlier in the debate on the Address that in so far as the Bill followed the recommendations of the Royal Commission it would have his support. Therefore, I am a little disappointed that this is yet another point on which the noble Lord does not support the Royal Commission.

Thirdly, I think it very likely that as a result of debates in Parliament and further consultations we shall need to refine the code of practice before placing it before Parliament.

Fourthly, once a provision is on the face of an Act it is no small matter to change it. We would need to introduce primary legislation to effect any necessary changes on points of detail, however minor, and there may well be such changes. Clause 18 foresees the need for such changes by enabling the Secretary of State to revise the code of practice previously brought into operation under Part II. The code may need to be changed in the light of developing case law, developments in police practice or procedures, or other legislative changes.

Perhaps I may cite the PACE codes of practice again. We brought into operation revised codes earlier this year to replace those brought into operation in 1991. There were many changes to that code, partly because of the legislative changes in the Police and Criminal Evidence Act 1984 and partly in the light of experience with the code since 1991. When consulting on draft revised codes, we received of the order of 600 suggestions for amendment. It would have been much harder to revise the codes if they had been enshrined in primary legislation. However, that is what will happen to this code of practice if it goes into the Bill. I do not believe that anyone concerned with managing the business of this House would welcome that.

Accordingly, we prefer to keep the code of practice as a code of practice. We have published it in draft form at an early stage in the parliamentary proceedings, and we shall of course try to take into account the comments we receive from this House, from another place and from outside this House.

I turn now to Amendments Nos. 97,99 and 100. Perhaps I may explain why the provisions of Clause 18 are as they are. We do not believe that this code of practice needs to be subject to the affirmative resolution procedure, as is the case with the PACE codes of practice, because in our view this code of practice is a purely procedural code which does not affect the liberty of the subject in the way that the PACE codes do. But nor did we believe that it was necessary in the Bill to require a consultation process, primarily because it is obvious that this code cannot be prepared without consulting others with an interest. Indeed, we have already started that process of consultation on the present draft code.

However, having said that, I should like to take away Amendments Nos. 97, 99 and 100 and reflect on them in the light of the comments of the scrutiny committee. I have to say that I only had sight of the scrutiny committee report as the noble Lord opposite spoke to the amendment. Through my office I have tried in vain to obtain a copy. I do not know why I do not have a copy. I think that I heard the noble Lord refer yesterday to having seen a copy of the scrutiny committee report.

Lord McIntosh of Haringey

The Delegated Powers Scrutiny Committee report was published on 5th December. It has been available since then in the Printed Paper Office. There seems to be an extraordinary lack of co-ordination in the Minister's office.

Baroness Blatch

That is a matter for me to follow up. However, until coming into the Chamber today I have been asking for a sight of the scrutiny committee report. I have been asking what it says; I have been told that it is not available. I had it passed to me as the noble Lord opposite was on his feet. It is for me to find out why that should be so.

In summary, I believe that the code of practice should remain a code of practice and should remain outside the Bill. In the light of the report, and of what has been said in the debate by noble Lords opposite and by my noble friend, I should like to take the other amendments away and come back at Report stage.

Lord McIntosh of Haringey

It is good to know that a Minister is willing to take away other amendments in the group. I have to say that someone should be sacked because the scrutiny committee report was published. It covers a number of Bills as well as this Bill. It was ordered to be printed on 5th December. I do not have my copy because I have passed it to Hansard so that it can correctly reproduce my quotations from it. But something is very seriously wrong if the Minister cannot and could not obtain the report despite asking for it. I should be looking for a few heads to roll.

The Minister said something very strange. I wrote the words down as best I could. She said that she would be taking the opportunity to refine the code before placing it before Parliament. However, as she rightly recognised, Clause 18(1) only provides for it to be laid before Parliament, not to be scrutinised. I appreciate that she then said she would consider the nature of parliamentary consideration. For that also I am grateful. But the issue as to whether we should have this code available for discussion for this Committee stage, and the fact that it was available at such a late stage is important. Although I would not wish to press Amendment No. 162, nevertheless Amendment No. 63 will serve to show the displeasure that we feel at the way in which this place has been treated. I propose to take the opinion of the Committee on Amendment No. 63.

Baroness Blatch

Before the noble Lord sits down—and this is in no way to detract from his intentions—perhaps I may say this for the purposes of the record. Whether the code of practice is laid before the House as a matter of information prior to my right honourable friend using his order-making powers to bring it into effect, or whether the suggestions made by my noble friend Lord Campbell of Alloway, or those contained in Amendments Nos. 97, 99 and 100, are brought into effect, it is absolutely right that the code of practice—it will be the operational manual for implementing these procedures—should be subject to the comments in debate in this House and in another place, and of those people outside who will have to operate under it. All those comments should be taken into account. When it comes before the House for approval, the code should be in a definitive form and should benefit from all that consultation.

Lord McIntosh of Haringey

I entirely accept that. Our amendments to Part II of the Bill reflect our willingness to consider the text of the code and the important matters raised in it, and to subject them to parliamentary scrutiny in the hope that by those means the provisions can be improved.

I do not expect to win a Division on this amendment. If I do not win a Division, I can assure the noble Baroness that, in the light of her assurances on Amendment Nos. 97, 99 and 100, I shall not press them to a vote. However, I wish to express my displeasure, and the displeasure of my noble friends. I want to take the opinion of the Committee.

Lord Campbell of Alloway

Inevitably I shall oppose Amendment No. 63. I have every sympathy with my noble friend the Minister. I think that she has been let down very badly. I am sure that Members of the Committee have the same sympathy. But is it really right to express displeasure at the way in which she has been let down by supporting the amendment? Is that the right approach to a serious amendment? For that reason I would ask Members of the Committee to think twice before supporting the amendment.

Lord McIntosh of Haringey

I do not know whether the question is addressed to me. My displeasure is much greater than as regards the way in which the Minister has been let down on one specific point. It is the way in which the whole matter has been dealt with before noble Lords. I fully recognise the right of the noble Lord not to vote with us, but I shall still take the opinion of the Committee.

3.48 p.m.

On Question, Whether the said amendment (No. 63) shall be agreed to?

Their Lordships divided: Contents, 64; Not-Contents, 133.

Division No. 1
CONTENTS
Airedale, L.	Judd, L.
Ampthill, L.	Kilbracken, L.
Ashley of Stoke, L.	Kirkhill, L.
Avebury, L.	McIntosh of Haringey, L.
Barnett, L.	McNair, L.
Blease, L.	Mallalieu, B.
Broadbridge, L.	Mar and Kellie, E.
Brooks of Tremorfa, L.	Milner of Leeds, L.
Bruce of Donington, L.	Molloy, L.
Carmichael of Kelvingrove, L.	Monkswell, L.
Carter, L.	Morris of Castle Morris, L. [Teller.]
Clinton-Davis, L.
Cocks of Hartcliffe, L.	Murray of Epping Forest, L.
Donaldson of Kingsbridge, L.	Plant of Highfield, L.
Donoughue, L.	Prys-Davies, L.
Ezra, L.	Rea, L.
Falkland, V.	Richard, L.
Fitt, L.	Rochester, L.
Gallacher, L.	Rodgers of Quarry Bank, L.
Geraint, L.	Russell, E.
Graham of Edmonton, L. [Teller.]	Sainsbury, L.
Grey, E.	Sefton of Garston, L.
Harris of Greenwich, L.	Stallard, L.
Haskel, L.	Stoddart of Swindon, L.
Hilton of Eggardon, B.	Strabolgi, L.
Hollis of Heigham, B.	Taylor of Blackburn, L.
Holme of Cheltenham, L.	Thomas of Walliswood, B.
Hooson, L.	Tordoff, L.
Hughes, L.	Turner of Camden, B.
Hutchinson of Lullington, L.	Whaddon, L.
Jay of Paddington, B.	Williams of Elvel, L.
Jenkins of Putney, L.	Williams of Mostyn, L.
	Winchilsea and Nottingham, E.

NOT-CONTENTS
Aberdare, L.	Caldecote, V.
Addison, V.	Campbell of Alloway, L.
Ailesbury, M.	Carnegy of Lour, B.
Ailsa, M.	Carr of Hadley, L.
Alexander of Tunis, E.	Cavendish of Fumess, L.
Allen of Abbeydale, L.	Chelmsford, V.
Allenby of Megiddo, V.	Chesham, L [Teller.]
Archer of Weston-Super-Mare, L.	Chorley, L.
Ashbourne, L.	Clanvvilliam, E.
Astor of Hever, L.	Clark of Kempston, L.
Barber, L.	Colnbrook, L.
Barber of Tewkesbury, L.	Courtown, E.
Belhaven and Stenton, L.	Cranborne, V. [Lord Privy Seal.]
Beloff, L.	Cross, V.
Bethell, L.	Cuckney, L.
Blaker, L.	Cumberlege, B.
Blatch, B.	Dacre of Glanton, L.
Blyth, L.	Davidson, V.
Boardman, L.	De L'Isle, V.
Borthwick, L.	Dean of Harptree, L.
Boyd-Carpenter, L.	Denton of Wakefield, B.
Brabazon of Tara, L.	Dixon-Smith, L.
Braine of Wheatley, L.	Ellenborough, L.
Brigstocke, B.	Elliott of Morpeth, L.
Brookeborough, V.	Elton, L.
Brougham and Vaux, L.	Faithfull, B.
Burnham, L.	Gainford, L.
Butterworth, L.	Geddes, L.
Cadman, L.	Gilmour of Craigmillar, L.

Goschen, V.	Nelson, E.
Gray of Contin, L.	Newall, L.
Greenhill of Harrow, L.	Norrie, L.
Greenway, L.	Northesk, E.
Hailsham of Saint Marylebone, L.	Orkney, E.
Hardinge of Penshurst, L.	Orr-Ewing, L.
Harlech, L.	Palmer, L.
Harmar-Nicholls, L.	Pearson of Rannoch, L.
Henderson of Brompton, L.	Pender, L.
Henley, L.	Perry of Southwark, B.
Hertford, M.	Peyton of Yeovil, L.
Holderness, L.	Pym, L.
HolmPatrick, L.	Quinton, L.
Howe, E.	Radnor, E.
Inglewood, L.	Rankeillour, L.
Johnston of Rockport, L.	Rawlinson of Ewell, L.
Killearn, L.	Reay, L.
Kinnoull, E.	Renwick, L.
Knollys, V.	Rippon of Hexham, L.
Lauderdale, E.	Romney, E.
Lucas, L. [Teller.]	Rosslyn, E.
Lyell, L.	Saint Albans, D.
Mackay of Ardbrecknish, L.	St Davids, V.
Mackay of Clashfern, L. [Lord Chancellor.]	Saltoun of Abernethy, Ly.
Mackay of Drumadoon, L.	Seccombe, B.
Macleod of Borve, B.	Shaw of Northstead, L.
Marlesford, L.	Skelmersdale, L.
Masham of Ilton, B.	Stodart of Leaston, L.
Merrivale, L.	Strathcarron, L.
Mersey, V.	Sudeley, L.
Middleton, L.	Suffolk and Berkshire, E.
Milverton, L.	Terrington, L.
Monk Bretton, L.	Teviot, L.
Mountevans, L.	Teynham, L.
Moyne, L.	Tugendhat, L.
Munster, E.	Vivian, L.
Murton of Lindisfarne, L.	Wynford, L.
	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

3.57 p.m.

Clause 15 [Introduction]:

Lord McIntosh of Haringey moved. Amendment No. 64:

Page 10, line 32, after ("officers") insert ("or officers of another investigating agency").

The noble Lord said: With this amendment we start a series of amendments to Clauses 16 and 17. I have not apologised for the amendments and I shall not do so. They seek to bring out into the open the areas of the code of practice which are not satisfactory and which will need amendment in whatever form the proposals are produced, whether they are laid before Parliament or, in the light of the Minister's recent statement, possibly subject to the approval of Parliament. In any case, the wording will have to be changed because the code of practice is simply not good enough.

An immediate example of the way in which the code is not good enough is that it appears to apply only to police investigations. The definition in paragraph 2 of the code is that, the investigator is any police officer involved in the conduct of a criminal investigation".

That does not reflect the real world. The real world is that all kinds of other people are quite properly involved in criminal investigations. The most obvious example is Customs & Excise, but there are many others. It is entirely proper that the code of practice should be drafted in such a way as to enable it to recognise the involvement of other agencies than the police in the criminal investigations process.

Amendment No. 64 proposes that Clause 15 should state that: a criminal investigation is an investigation conducted by police officers or officers of another investigating agency".

It is important that we are clear about this. The investigator is a very important person in the process—not because he is himself important in the process, but because of the responsibilities and powers that befall him when he is, in particular, producing a schedule of evidence to go to the prosecution.

In later amendments we shall point out the unsatisfactory fact that an investigator for this purpose can be any police officer. It could be the most junior police officer on the investigation team. It could, of course, be the only police officer on the investigation team in very simple cases. That would be perfectly acceptable. But there is insufficient provision to make sure either that the definition of the investigating team is wide enough, or that the person responsible ultimately to the court and to the criminal justice process for the preparation of material leading up to the criminal justice process is of sufficient seniority and responsibility. Many of our amendments will touch on those points.

I venture to think that this amendment is relatively simple. We are looking for the code to be redrafted to cover investigating agencies other than the police. We are perhaps looking forward to a Bill that will further involve the security services in the investigation of crime although we do not know whether or when such legislation will come. In either event we believe that this is a helpful and constructive amendment in relation to the provisions for the code of practice. I beg to move.

4 p.m.

Baroness Blatch

I hope completely to allay the noble Lord's concerns on this matter. The amendment widens the definition of a criminal investigation in Clause 15 to include investigations conducted by officers of another investigating agency as well as by police officers. Because Clause 16 refers to criminal investigations, the amendment ensures that the code of practice prepared under Clause 16 is a code for all investigators as well as for the police. That means officers of Her Majesty's Customs and Excise, Serious Fraud Office inspectors, local authority trading standards officers and many others.

There are two difficulties with the amendment. First, the Secretary of State who will prepare the code is my right honourable friend the Home Secretary. He will do so because under the Bill at present it is a code for police officers. It will be binding on police officers, and my right honourable friend is accountable to Parliament for their actions. If the code is for all investigators, then it is binding on them as well. It would require them to record information, to retain records of information and other material and to disclose it to the prosecutor. But my right honourable friend is not accountable for the actions of other investigators such as those I mentioned. It would not be proper for him to prepare a code of practice which imposed responsibilities on investigators for whom he was not accountable. This amendment would accordingly require all Secretaries of State who were accountable for the actions of the officers of any investigating agency to prepare separate codes of practice, all of which would have to conform to the requirement set out in Clause 16. I am not sure that that is what the noble Lord has in mind.

Secondly, there is an important distinction between the police and other investigating agencies. The police do not prosecute criminal offences; that is the responsibility of the Crown Prosecution Service. But other agencies both investigate and prosecute. In some cases investigative and prosecutorial functions will fall to different persons in the same agency. In others, the same person may both investigate and prosecute. If the code of practice applied generally, an investigating officer would find himself certifying to his colleague next door that he had complied with the requirements of the code. He might even end up giving himself such a certificate.

To avoid those difficulties, we have chosen a different approach. The code is for police officers. But other investigators are to have regard under Clause 19 to any relevant provisions. That will enable them to adapt its requirements to their own particular circumstances.

Also, Clause 19 describes the persons who are to have regard to the code as persons other than police officers who are charged with the duty of conducting an investigation with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it. That is the same investigation as the criminal investigation which police officers are charged with the duty of conducting.

The noble Lord will see in Clause 19(1) that, A person other than a police officer who is charged with the duty of conducting an investigation with a view to it being ascertained… whether a person should be charged with an offence, or… whether a person charged with an offence is guilty of it, shall in discharging that duty have regard to any relevant provision of a code which would apply if the investigation were conducted by police officers".

The clause goes on to describe failure to comply with the code. Clause 19 therefore meets the particular concerns that the noble Lord has; other investigators will not escape having to have regard to the code.

Lord McIntosh of Haringey

I am about to make some disobliging remarks. Before I do so, I acknowledge that the Minister is right in drawing attention to Clause 19(1) and the fact that that brings other investigating officers under the scope of the code of practice. To that extent, and it is very considerable, my amendment is misconceived and I shall not pursue it.

I see from Clause 19(1), which I should have examined more closely, that the obligation on persons other than police officers is only to "have regard to" any relevant provision of the code. I have been involved in too many debates across this Table on the significance of the phrase "have regard to" not to know that there is a difference between having regard to something and conforming to something, complying with something, or other phrases to the same effect. When we argued that people should "comply" with a code or with a direction from a department, we, were told very firmly, no, it should be "have regard to" rather than "comply". I am therefore prompted to think that at the next stage of the Bill we shall have to return with an amendment to Clause 19(1) to strengthen the obligation on persons other than police officers.

I want to say a word about the Minister's argument about the Secretary of State not being responsible for other than police officers. My understanding is that in legislation there is only one Secretary of State and the Secretary of State is responsible for all aspects of any legislation that comes before Parliament whichever particular department may be promoting the Bill. The expression of the noble and learned Lord, Lord Hailsham, confirms me in that view.

Therefore, it is not good enough for the Minister to say, "My Secretary of State is the Home Secretary and he does not have responsibility for other departments of state". In legislation the Secretary of State has responsibility for all departments of state. If he then wishes to issue subordinate legislation, it will of course be proper for him to do so, in conjunction with the Secretary of State for the Environment, for trading standards officers or whomsoever it may be, and therefore for other investigating officers. But the whole basis of the executive responsibility to Parliament is that the Government as a whole are representative of Parliament. If Parliament wants something to be done, departmental boundaries will not inhibit its being done. I ask the Minister to look again at the brief with which she was provided. I ask her to consider whether it represents the way in which she or any other government Minister wants to introduce legislation before Parliament because in my view it is not only mistaken but damaging to the power of government to seek commitments from Parliament to legislative change.

Having made those disobliging comments, I return to my obliging comments. The Minister is right about Clause 19, and I was wrong. There is work still to be clone, but in recognition of the correctness of her response on that matter, I beg leave to withdraw Amendment No. 64.

Amendment, by leave, withdrawn.

[Amendment No. 65 not moved.]

Lord McIntosh of Haringey moved Amendment No.66:

Page 10, line 39, at end insert ("including samples").

The noble Lord said: This is simply a probing amendment. A definition of "material" in paragraph 2(e) of the code states: material of any kind, including information and objects, which is obtained in the course of the criminal investigation".

I believe that there has been legal debate about whether that in fact includes samples. I know that the code refers to "material of any description", but I should be grateful for confirmation that it includes samples of material as well as the original material itself. I beg to move.

Baroness Blatch

I believe that I am able wholly to satisfy the noble Lord on this point. Since "material" includes "objects of all descriptions", it includes objects which may be described specifically as samples. There would have to be some particular reason for singling out samples rather than any other object and I am not sure that I understand what that would mean anyway. The noble Lord will be aware that the Police and Criminal Evidence Act 1984 already makes specific provision for the retention of samples in accordance with its provisions and for their destruction in certain circumstances. If the noble Lord takes the view that objects do not include samples unless expressly defined to include them, the amendment will not ensure that samples are disclosed to the accused. That is because it does not affect the definition of "material" for the purposes of the disclosure provisions in Part I. I can say that samples are subsumed in the definition.

Lord McIntosh of Haringey

I am indeed wholly satisfied with that answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Clause 16 [Code of practice]:

Lord McIntosh of Haringey moved Amendment No. 67:

Page 11, line 2, leave out ("designed").

The noble Lord said: Clause 16 introduces a code of practice for the first time. It does so in rather curious words. Subsection (I) states: The Secretary of State"—

not the Home Secretary— shall prepare a code of practice containing provisions designed to secure … (a)",

and so on. The code is "designed to secure".

Does that mean that the provisions are allowed to fail to secure and the code is not to be held to account if they fail to secure? I cannot see what the word "designed" adds to the meaning of that clause, unless it is to imply a weakening of the intention to secure the objectives of the code of practice. I cannot see why we should support what, in effect, are weasel words—words which do not help the definition or the efficacy of the code of practice. I do not believe that anything would be lost and feel that a considerable amount would be gained if this amendment were agreed to. I beg to move.

Lord Campbell of Alloway

I support the noble Lord. The only effect of that word is to qualify the efficacy of the intendment of this section. There is no justification at all for it.

Baroness Blatch

I am not so sure that the amendment has any practical effect. It seems more natural to me to say that a code of practice contains provisions which are designed to secure certain things rather than that the provisions secure them themselves. The code secures nothing. It is designed to make sure that the processes that follow secure what is designed by the code.

Since Clause 16(1) requires the Secretary of State to prepare a code of practice which at that time has no effect in law and since the things to which the provisions relate are all in the future, I cannot see how its provisions can properly be said to secure anything, although the code may be designed to secure it. That is the reason for designing. The code itself does not secure it. It is the practice that follows according to the code which secures the proper practices.

4.15 p.m.

Lord Campbell of Alloway

But, with respect, it has an effect in law under Clause 19(3). Any breach of that code has to be taken into account in such a manner—I paraphrase—as the judge considers appropriate to the question in issue. It has a legal effect. I hope that it will have parliamentary approval. With the greatest respect, I believe that my noble friend's brief is again adrift on this point.

Lord McIntosh of Haringey

I feel that there ought to have been a reply from the Minister to that point. I still feel that there should be a reply.

Baroness Blatch

I can only rest my case by saying that the code is designed to secure a proper process. People must have regard to it. Of course, the code will be designed and come before the Chamber for approval. Its primary aim is to secure a proper process.

Lord McIntosh of Haringey

The noble Lord, Lord Campbell of Alloway, rightly referred to Clause 19(3) which states that: In all criminal and civil proceedings a code in operation at any time by virtue of an order under section 18 shall be admissible in evidence". That means that it has legal status. It is no good saying that the code is not designed to do anything but its provisions are designed to do something, which was the Minister's first argument, because the code consists of its provisions, nothing more and nothing less. Nor is it enough to say, as the Minister said in her second argument, that because the phrase is in the future—the Secretary of State "shall prepare"—it does not secure anything until it has been passed in whatever form it is approved.

Legislation is designed—I nearly said "designed to secure" and that would have been very dangerous—to put something on the statute book; to create laws. It is not there at the time of enacting the legislation, but when the legislation is enacted all parts of that legislation have effect, whether they are on the face of the Act or in codes of practice which follow on the Act. Since the Bill specifically states in Clause 19(3) that the code of practice is admissible in evidence we need to have the strongest possible words for the intention of the Government in drawing up that code of practice. To my mind, that involves removing the word "designed" which, as the noble Lord, Lord Campbell of Alloway, recognised and agreed, weakens and serves only to weaken the intention of the Government in drawing up the code of practice.

I do not want to divide the Committee on this matter and had not intended to do so but I should like to have a better answer from the Minister than we have heard so far.

Baroness Blatch

It is not my intention—nor is it my nature—to be pedantic about a particular word. Of course I shall take the matter away and look to see whether there is anything of substance in what the noble Lord said. If there is, the word will be left out.

Lord McIntosh of Haringey

I am most grateful to the Minister‥I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 68:

Page 11, leave out lines 3 and 4 and insert—

("(a) that when information is obtained or inspected in the course of a criminal investigation it is recorded at the time it is obtained or inspected or as soon as practicable after that time;").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 91. These issues are of considerable importance in the code because the code rightly goes into a great deal of detail about the way in which a schedule of material yet to be revealed to the prosecution—I believe that I can use the word "yet", although we have not considered the amendment on the wording—should be carried out. We are concerned that there does not appear to be adequate provision in the code for the material to be collected, gathered and put into a schedule contemporaneously; in other words, in the words of the amendment, "as soon as practicable" after the time that it has been obtained or inspected. Amendment No. 68 seeks to insert: when information is obtained or inspected… it is recorded at the time it is obtained or inspected or as soon as practicable after that time".

Amendment No. 91 states that: The code shall provide that a document shall be prepared under subsection (3) in every case except where the accused has indicated an intention to plead guilty".

The point about Amendment No. 91—I did not read the whole of it—is that we do not seek a proto-schedule to be prepared in every single case even when it is obvious that it will not be necessary because the accused has either pleaded guilty already, admitted the fact or, when caught in the act, not denied it. So we do not ask for an intolerable burden. We feel that when it is obvious that a schedule is going to be necessary, it should be as immediate, actual and therefore as accurate as possible. I beg to move.

Baroness Blatch

This is the first of a series of amendments which provide for Clauses 16 and 17 to specify a number of additional matters to be included in the code of practice prepared under Clause 16. Some of these incorporate provisions of the draft code of practice issued recently, without any changes. Others incorporate amended provisions of the draft code, or include new provisions.

It may be for the convenience of the Committee if I make some general comments in this debate, which apply to all the related amendments on this subject tabled by noble Lords opposite.

As I explained in the debate on the new clause before Clause 15, I do not in principle believe that it would be desirable to place the provisions of the draft code of practice, amended or not, on the face of the Bill. It takes up time in this Chamber and another place if the provisions need to be amended in the light of reflection, as they probably will. It requires the introduction of new primary legislation if the provisions need to be amended after they are enacted. Nor do I understand why some parts of the draft code are deemed sufficiently important to be included in primary legislation, whereas others are to be left to secondary legislation. The criteria are not obvious when reading through the amendments.

In so far as these amendments incorporate provisions of the draft code into the Bill, their effect is to place the same or similar provisions in both primary legislation and secondary legislation. In my view, the proper course is to leave all of the provisions of the draft code as they are, and to put in the Bill those enabling powers which are needed to ensure that what the code provides is notultra vires.

I do not propose to comment in detail on these or other related amendments. Where they incorporate the provisions of the draft code without changes, there is nothing I can add to the general remarks I have just made. Where they do amend the provisions of the draft code, or make new provision, we shall take that into account in considering the next version. For those reasons I invite the Committee to reject the amendment.

Lord Campbell of Alloway

I thank my noble friend for her constructive attitude to the related amendments, particularly because—as I have already said—in my view the criteria as to what should or should not be in primary legislation is of cardinal importance. That is why I could not support the provision for bringing the matters in the code into a schedule of the Bill.

The sensible way must be the way advanced by my noble friend the Minister; that is, to deal with all related matters on the basis that they will be included in a revised code. The drafting of these two amendments is far more useful and efficacious than the way in which the clause is worded. However, we can spend hours tinkering around. It is surely better that these matters are discussed by all those interested, who can then find some accommodation.

Lord McIntosh of Haringey

We will be happy to do that. However, the noble Lord, Lord Campbell, will recognise that we have hardly had an opportunity for discussion between the time the code was published and the time that we had to meet to consider the matter in Committee.

The Minister said, and the noble Lord echoed, that these are issues as between primary and secondary legislation. As the Bill is drafted, they are not; they are issues between primary and tertiary legislation. Tertiary legislation, if I am defining it for the first time, is legislation which may be laid before Parliament but is not subject to either the negative or the affirmative procedure. There may even be quaternary legislation, which is not even laid before Parliament.

The events of the past hour have secured that, by proposing to put the matter on the face of the Bill—to which the Committee decided not to agree—we succeeded, with the help of the noble Lord, Lord Campbell, in obtaining an undertaking from the Minister to consider whether something more than tertiary legislation is appropriate status for the code of practice. The Minister said that now she has seen the recommendations of the Delegated Powers Scrutiny Committee she will go away and think about it. We can then perhaps debate it and come back at a later stage. So we have achieved something by opening this debate in relation to the issue of primary, secondary or tertiary legislation. I am not apologetic for starting that process.

We come to the detailed consideration of the code of practice. The only way in which we can consider the code of practice as a revising Chamber is by drawing attention to the provisions in the code of practice which we consider to be important—it may he that we are wrong in our judgment about what is important, but we have made our judgment on that point. If we agree with the provisions and think that they are important, then we bring them before the Committee to have them elevated in status. If we do not feel that they are satisfactory, we bring them forward with amendments. That is what we have done in several subsequent amendments.

Again, I do not apologise for that procedure. That is the right way to do it. At one stage I had to write an entire code of practice in as an amendment and amend it myself as a way of bringing the issues before the Chamber. I did not apologise for that, though many people misunderstood it. We are doing the right thing. We are drawing attention to important issues.

The Minister gave a general reply and indicated her support for the wording in Amendments Nos. 68 and 91, which are drawn directly, without amendment, from the code of practice. The difference between us is not whether the wording is right, but what should be the status of the wording. In view of the undertaking to consider further the issue of secondary status of affirmative or negative resolutions, I shall not press the difference between us because it is so narrow. On that basis, and on that basis alone, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 69:

Page 11, line 6, at end insert ("both in a durable form and so far as practicable in its original form").

The noble Lord said: Amendment No. 69 suggests a change in the wording of the code of practice, which says that material shall be preserved in a written or other durable form.

The point we are making may be a minor one, but there may be a distinction between "durable form"—for example, the transcript of a telephone conversation—and the original material. The transcription into a durable form, which is necessary, may involve some distortion. The amendment suggests that where possible, and as far as practicable, it should be in its original form.

For example, a 999 call to the police or to the ambulance service may be critical evidence in identifying somebody who drew attention to a crime or was involved in the crime in some way, perhaps as a perpetrator or as the victim. No transcription can do justice to the tone of voice, the background noises and all the surrounding circumstances of a 999 call, which may be critical. Of course the call must be transcribed into a durable form. Of course that transcription must be maintained, and the code of practice allows for that, but surely the original should be kept as well. I beg to move.

Lord Campbell of Alloway

I thank the noble Lord, Lord McIntosh, for his constructive attitude. Again, he may agree that we are discussing whether this provision should be dealt with in the code of practice and whether that is the appropriate way of dealing with the substance of the amendment. Primary legislation may be left as it stands and what is proposed in Amendment No. 69 could be dealt with by way of amplification in the code of practice. But in bringing this matter to our attention in this way he has served an invaluable purpose.

4.30 p.m.

Baroness Blatch

I have made clear that I believe the code of practice to be the best place for such amendments. I have also made clear that where new amendments or modifications are suggested they will be taken into account in refining the code. To that end, it is useful. I hope that the noble Lord and his team will continue to make suggestions if they feel that the code can be improved. That is the process of consultation, and we value it.

Lord McIntosh of Haringey

I ask the Minister what she thinks about this suggestion.

Baroness Blatch

As a non-professional, it would be quite inappropriate for me to discuss the refinement of the code of practice. What is absolutely essential is that all suggestions that are made to modify, refine or improve the code of practice must at least be the subject of professional advice as to the effect and impact they will have and how they will interact with other parts of the code. Therefore, I will not personally discuss the details other than to say that they will be taken into account in refining the code.

Lord McIntosh of Haringey

I do not believe that we have yet reached agreement about what we are trying to do here. Of course, the Minister does not respond personally but responds for the Government. The Government are introducing a code of practice which, we are reminded, is admissible in evidence under paragraph 8. If it is to be admissible in evidence it has to be as good as possible. The only way in which this House can be consulted about the code of practice, which has legal status and which will, under the Bill as drafted, be laid before Parliament, is to raise the issues here and seek the reaction of the Government. I ask the Minister to tell the Committee whether the Government believe that there is anything in my argument. Unless I am outraged by her answer, I do not propose to push the matter to a Division and seek to have the agreement of the Committee that it be put on the face of the Bill. But, as the noble Lord, Lord Campbell, recognised, moving amendments is the right way to secure debate. It is no good having a dialogue des sourds. The Minister has to reply. What do the Government think about my suggestion? They have had an opportunity to consider it.

Baroness Blatch

I came to the Dispatch Box prepared to accept these amendments for what they were. This amendment seeks to put a certain matter on the face of the Bill. I have responded to it saying that that is not the appropriate place for it. I have responded both to this amendment and to the previous one by saying that it is a matter for the code of practice. Almost daily we receive from all the key interested parties ideas about the code of practice. It is still out for a consultation. The debate here and in another place will continue to inform those who will compile the code of practice. They will be in receipt of professional advice. I have responded in the best way possible. The ideas that will emerge from this series of amendments, whether they simply repeat the code of practice, modify it or suggest new ideas for it, will be considered seriously, and I shall respond to the noble Lord.

Lord McIntosh of Haringey

The Minister says that she will respond but she is not doing so. She does not tell me what she thinks about this amendment which proposes a new idea for the code of practice. I am sorry to repeat that all of us are in agreement that it is not the intention of this debate to write details of the code of practice onto the face of the Bill because we have already achieved an undertaking to discuss making it more effective secondary legislation. I have no intention of pressing any of these amendments to a Division, but I am entitled to ask for a response to a particular point which the Minister has had time to consider. She may have had a short time but that is not my fault. Amendment No. 70 incorporates a lengthy quotation from paragraph 5(3) of the code of practice. I have made amendments to it. When I come to move the amendment, I shall draw attention to those matters. I shall expect the Minister to say whether she thinks the amendments are helpful or that they are at least worth considering. I will not be put off by being told that the Committee is not entitled to a response from government to a code they have drawn up and which has legal effect.

Baroness Blatch

First, the amendment before the Committee is a proposal to be placed on the face of the Bill. I have responded to that. I have said that I believe the code of practice should be a code and that it should sit outside the Bill. Secondly, it is not only courteous but proper form that professionals and others, who have to have regard to, and be subject to, the code of practice should have an opportunity to comment on any suggested changes to the code. Not only have I said that all these ideas are worth considering; I have also said that we will consider them very seriously and take the views of those who will have to operate the code. That is the proper way to arrive at a definitive code of practice which will then be put before the House for approval.

Lord Campbell of Alloway

To save time on this and all related amendments, with respect to the noble Lord, Lord McIntosh, he asks the Minister, quite rightly, not for her answer but the answer of the Government. She obviously cannot give it at the moment. All she can say is what she has said. The Minister could give the noble Lord her personal reactions. If he wishes to have mine, which are totally worthless, I believe the proposal to be a perfectly reasonable one, but that is of no use to anybody. I speak for no one. Perhaps the noble Lord, Lord McIntosh, could lay off a little and give the Minister some accommodation on the issue.

Lord McIntosh of Haringey

I am very anxious to lay off. I am not anxious to be tedious. I hope that I am not often tedious. However, I entirely recognise that the Minister says that in the end the code of practice has to be workable. Part of the issue as to whether or not it is workable will be the judgment of the practitioners. Anything that the Government say in Committee is subject to further consultation on any changes that may be made.

I do not resile from what I said. The only way in which we can bring these matters to the attention of the House is by amendments which put them on to the face of the Bill, because there is nowhere else to put them. Both we and the Government know that it is a device, but the Government must not hide behind the fact that it is a device to avoid debating a substantive issue. If all that I am to get is a statement from the Minister that she will take it away and consider it, I suppose that I will have to put up with it, but I do not believe that as a general principle the Minister should say in all debates of this kind that because the amendment is in the form of an amendment to primary legislation she will not give an opinion on it. In previous amendments she has given opinions on matters which she thinks ought not to be in primary legislation. There is no contradiction there. It would be helpful and sensible if this debate were two-sided, not one-sided. That is all I ask for. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 70:

Page 11, line 6, at end insert ("including—

1. (i) crime reports (including report forms, relevant parts of incident report books or police officers' notebooks);
2. (ii) both draft and final versions of witness statements, including any exhibits mentioned (unless these have been returned to their owner on the understanding that they will be produced in court if required);
3. (iii) interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects);
4. (iv) reports of work carried out by experts such as forensic scientists, and schedules of scientific material prepared by such an expert for the purposes of criminal 1538 proceedings, including samples, materials on which the report was based, analytical data, working notes and calculations;
5. (v) any material casting doubt on the reliability of a confession; and
6. (vi) any material casting doubt on the reliability of a witness.").

The noble Lord said: We now come to a precise case. In paragraph 5(3) and (4) of the code of practice there are detailed and, to my mind, very helpful specifications of the kind of material which may be included in a schedule. We believe that two particular improvements can be made. We put this to the Committee in order that anybody else who has a view on the matter can express that view. If the Government have a view on the matter they can express it. In that way, we will have a sensible debate on issues which are of relevance to the legislation, even though none of us wants to put them on the face of the Bill.

The first change that we propose is in sub-paragraph (ii) of the amendment. As drafted, the code of practice refers simply to "witness statements, including any exhibits mentioned". We are suggesting that it should refer to both draft and final versions of witness statements.

Anyone who has been involved with these things—most people have been involved with them more than I have—knows that witness statements are often inadequate, unclear or incomplete when they are first made and that the investigating officer has to say at the end of the interview, "In order to make this clear, shall we go through it again, write it down and try to make it more logical and more complete?". That is the version which, under the code as drafted, is the only version which would be included in the schedule. We are suggesting that changes may take place between the first draft, or first drafts, and the final version which may be relevant and may be helpful to the prosecutor and, or course, in certain circumstances, helpful to the defence. We are suggesting that that should be allowed for.

Sub-paragraph (iv) states, reports of work carried out by experts such as forensic scientists",

and so on. Those are in the code of practice. We are suggesting that that should be amplified by the wording of the last two lines, which state, including samples, materials on which the report was based, analytical data, working notes and calculations".

We think that these are constructive and helpful suggestions of the kind that may be made by anyone, whether or not expert in the law or police work. Without wishing to press the amendment to a Division, we invite the opinion of Members of your Lordships' Committee and of the Government. I beg to move.

Lord Campbell of Alloway

As a practitioner, my opinion about sub-paragraph (ii) is that there are problems about the draft. So often in practice, where there is an illiterate accused, the draft is prepared by the police officer and the accused then says "No". I do not think that that is a very good idea. However, sub-paragraph (iii) is an excellent idea. All these matters require consideration.

Baroness Blatch

That is probably the best example I can think of for saying that there is already a division of opinion in the Committee. It is important to take these ideas away and have proper reflection and discussion with those who have to operate the code to see what the effect would be in practice. It is important to achieve a workable code and one which will receive accommodation by the Committee. Therefore, I stand by what I said earlier. I do not wish to see this provision on the face of the Bill. I rest my case.

Lord Rodgers of Quarry Bank

I hesitated to intervene in the earlier exchanges between the noble Lord, Lord McIntosh of Haringey, and the Minister when he was seeking to persuade her to be a good deal more forthcoming than she had been up to that point. However, I think I must now do so because, as the noble Lord, Lord McIntosh of Haringey, said, this amendment includes specific proposals which go beyond, or in some respects are different from, paragraph 5(3) of the draft code of practice.

I fully understand what the Minister said and I am sure it will be the wish of the Committee that she should consult further on the draft document, although, as I said earlier in today's proceedings, it is quite wrong that a draft should be brought before the Committee which is so short of what we believed to be its final form and with consultation still to take place. However, that having been said, I would believe it to be improper for the Minister to have brought before the Committee a draft code of practice which did not represent her department's present view of what the final draft should contain. I mean by that—as I have already said, as the noble Baroness said earlier and as the noble Lord, Lord McIntosh, has fully acknowledged—that the draft code may be modified in a number of important respects before it finally comes before the House. But when it finally comes before the House we will not be capable of amending it, so this is the only occasion on which we can express a meaningful view about the details of the code itself.

Speaking as someone with some experience of these procedural matters within a department, I do not understand—I want to emphasise that—why the Minister cannot give a substantive reply to the questions which the noble Lord, Lord McIntosh, has asked and which are expressed in this and other amendments. I see no reason why she should not say that she believes either that the proposal is an interesting and attractive one which in the circumstances she is prepared to write into a further draft or, having considered the draft before the Committee, that she and her department have considered the matter fully and they do not believe that such a change should be made. This is a very straightforward matter. With the greatest respect to the Minister, if she is not more forthcoming it will open up to ridicule the whole difficult procedure which we are following. As long as this House has no other way of considering the code of practice—perhaps we should find one—except by putting down amendments, we are in a position in which all Members might feel highly frustrated.

It is arguable—I put this as a proposition but I shall explain in a moment why I think it is impractical—that what the Minister should do is accept an amendment to contain within the Bill the whole of the code of practice, then allow the Committee to amend it, but, having amended it, withdraw it at the final stage of the Bill. The draft would then have on it the amendments which the House had felt desirable and yet at the same time the Minister would then have the opportunity to introduce the order separately. That would be a totally cumbersome procedure and it would be hazardous as well. But if we are not to have any procedure other than the one which the Committee is now following, I ask the Minister—if my suggestion is not accepted I think there is a case for not following further these proceedings today—to be a great deal more forthcoming on the substance of the amendment and the matters raised from this side and, perhaps, from the other side of the Committee.

4.45 p.m.

Baroness Blatch

We saw the amendments on Friday, or at least they were tabled on Friday. As noble Lords know, I did not see them until Sunday. Even if the issues had not been as vexed as noble Lord opposite have claimed, in the normal course of taking a Bill through the House I would have seen them only on Thursday. As I have already said, it is not only courteous but proper form not to take a definitive view about a code and to make sure that there is proper consultation about the suggested changes with those who have to operate under the code, for whom it will be an operational necessity and a requirement. That is what we intend to do. They will be considered and we shall respond in the normal way. I shall write to noble Lords, as I have done in the past. But it is right that we should seek advice from those who have to operate the code.

It is also a great discourtesy, if I may say this to the noble Lord, Lord Rodgers, to dismiss all the work that has been done on the code. It has twice been out for consultation among all the key people who will have to operate under the code and who have lent their own professional advice. That has already been incorporated. The code is substantially the result of a great deal of work that has been done so far and a great deal of advice that has been gained from the judiciary, the police, the Crown Prosecution service and others. We would want them to see these.

Whether the noble Lord puts his ideas in the form of an amendment or whether the noble Lord writes to us with suggestions about the code, whatever form he chooses, those ideas will be considered. That is proper consultation. But what is before me today, as the Minister responding at the Dispatch Box, is a set of amendments to incorporate on the face of the Bill some proposals which simply copy what is in the code of practice and others which modify parts of the code of practice. There are also some wholly new suggestions to add to the code of practice. They will be considered and they will be consulted upon. We shall reflect on those ideas but it is not the purpose of this stage to consider in detail the code of practice. It would be no more than academic if across the Dispatch Box I discussed these proposals in detail at this time.

Lord Rodgers of Quarry Bank

With respect to the Minister—

Lord Campbell of Alloway

May I make—

Lord McIntosh of Haringey

If noble Lords will forgive me, perhaps I may ask the Minister a direct question. How does she think that we can consider the code of practice? It was said by the scrutiny committee and by many noble Lords on Second Reading to be the core of the Bill, so how can we consider Part II of the Bill unless we consider the code of practice? How, procedurally, can we consider the code of practice in any other way than that which we have tried? How can we get answers from the Government to our observations?

Baroness Blatch

I have explained how the noble Lord can get answers to the suggestions that he has made. I shall respond in detail to the noble Lord's suggestions about improvements to the code of practice. I shall do that and I shall take counsel on it. Earlier today I said that I would take away the amendments which suggested that there should be a different procedure, the affirmative resolution procedure, whereby both Houses would approve the code of practice. I mean that. I shall take away the amendments, reflect seriously on them and report back on Report. Therefore, we are talking in a vacuum; first, in terms of the procedure that is laid down in the Bill at the moment; secondly, on the amendments that were tabled earlier today; and, thirdly, about my response to those amendments, which I shall consider. I shall notify the noble Lord of my response.

Lord Campbell of Alloway

May I make a constructive suggestion to the noble Lord, Lord McIntosh of Haringey? Obviously, my noble friend the Minister cannot answer today. Obviously, I take the point that this is the only way in which an answer can be sought from the Government and that noble Lords opposite—indeed, noble Lords anywhere—are entitled to a response from the Government. If that response cannot be given today—obviously it cannot—and as the personal opinion of my noble friend the Minister is not what is sought—and would not be any use anyway—if some undertaking could be given that the substance of the amendments could be dealt with on Report when there has been an opportunity for my noble friend to take advice and to come to the House to give the Government's response, would that be a constructive and acceptable way of dealing with this matter? I do not know whether it is acceptable to my noble friend. I do not know whether it is acceptable to any of your Lordships, but it seems to be the only way out of this difficulty.

Lord Rodgers of Quarry Bank

Perhaps I may say something about the Minister's earlier remarks in response to my own. By no stretch of the imagination can there be any possible discourtesy in referring to the draft in the way that I did. I entirely appreciate that it represents consultation with a number of important bodies and for that reason I take it seriously.

However, there are two important points here. First, although the Minister did not use the word "improper", she said that it would be wrong in the circumstances to incorporate the amendments on the face of the Bill. However, as I understand it, the noble Lord, Lord McIntosh, is not proposing that they should be incorporated on the face of the Bill because he said clearly that he was not going to move those amendments. All that he is doing is asking for a view from the Minister of the present draft of his amendments—

Baroness Blatch

But—

Lord Rodgers of Quarry Bank

Perhaps I may finish because this may help the Minister.

The second point, which follows from the first, is the question of the status of the document. The noble Lord, Lord McIntosh, has courteously—indeed, courtesy is proper in these circumstances—exonerated the Minister from responsibility for the inability to give answers to questions today, but there still remains the question of the status of the draft. In my view, although further consultation must follow, what we have at the moment is the Minister's department's best view of what the draft should be. If it is not that department's best view of what the draft code of practice should be, it should not be before the Committee at all. It has been brought before the Committee only because at the moment it represents the provisional view of Her Majesty's Government; otherwise, we would have had it much earlier. If I am wrong on that, I hope that the Minister will tell us, because I believe that should not have come forward. However, if the draft is the provisional view of Her Majesty's Government, Her Majesty's Government must have a view on the amendments which have been moved by the noble Lord, Lord McIntosh. They cannot have it both ways.

Baroness Blatch

The status of the code of practice is that it is a draft code of practice. It is before the Committee because, quite properly, those people who take an interest in the Bill believed not only that it was desirable, but that it would be difficult to discuss the Bill without having a draft code of practice in their hands as we dealt with the Bill. That is why it is in this form. When it was presented to both the Library and the Printed Paper Office and when I referred to it on the first day, I made it clear that it was a draft code. I also made it clear that there has already been some consultation on the code of practice, which has been substantially refined in the light of that consultation. I also made it clear that the provisions would be influenced by the Bill's progress through both Houses. Indeed, one way of addressing the concerns held by noble Lords on all sides of the Committee may well be to refine or modify the code as a result of some of the amendments that have been discussed by your Lordships but which may not have been accepted by the Government. When the code is modified—if the code is modified—it is important that there is proper reflection. It is also important that the draft should have the value of the opinion of those who have to operate under the code. That will continue to be the case. As each draft is brought forward, it will go out for consultation.

I have already said that the ideas in the amendments are interesting. I have also said that they will be given serious consideration. Furthermore, I have said that I shall respond to them in detail and that I shall make sure that any response to any noble Lord will also be made available in the Library to all noble Lords.

I came to the Dispatch Box today to discuss the Bill. That is what I had prepared to do today. Before me are a set of amendments to place on the face of the Bill copied, amended and new ideas to the code of practice. I have responded in detail to that. I have said how we shall deal with that.

As to how the code itself is dealt with, I have already said that we are speaking in something of a vacuum. The Bill proposes a particular procedure. That has been queried by Amendments Nos. 97, 99 and 100. I have responded by saying that I shall take those amendments away and reflect on them between now and Report stage. I shall then return either with a modified procedure or not. That is as far as I can take the matter.

I do not believe that I have done anything improper. Asking me to respond now in detail to some detailed points about the code is not a proper use of our time. That would be creating a new procedure whereby we would discuss a code of practice in detail at the Dispatch Box when we should be discussing the Bill.

Lord McIntosh of Haringey

The Minister has said that we are discussing this matter to some extent in a vacuum. She is entirely right. The truth of the matter is that because this is a draft code and because, quite properly, it needs further consideration by those who will have to operate it and by those outside who have an interest in it, the only people in this country who cannot make suggestions to the Government and receive a response are Members of your Lordships' Committee—

Baroness Blatch

Nonsense!

Lord McIntosh of Haringey

That is the case. I have asked the Minister whether she accepts that the code of practice is an important element in our consideration of the Bill. That is what the scrutiny committee said and I am sure that it is right, as were noble Lords on Second Reading. To that extent, it is our duty to seek to debate the content of the code of practice without which Part II of the Bill is meaningless. The Bill includes matters which the Government have decided are of such importance that they should be included on the face of the Bill. There are various constraints on the code of practice, including in Part II. That is the Government's view of the constraints on the code of practice. It may not be the view of Parliament. Where we disagree, it is our duty to seek to draw the attention of Parliament to those issues.

We are as much at liberty to put up matters for discussion as are the Government when they propose their legislation. We are doing no more than the Government themselves have done. We are being denied the opportunity to do so, not because our amendments are not being accepted for debate but because the Government are consistently, as a matter of principle, saying that they will not debate with us the substance of our amendments.

5 p.m.

Baroness Blatch

What the noble Lord has just said is absolute nonsense. What I have said—I do not know how many times I have said it during the course of the debate, but I shall say it again—is that every Member of this place is at liberty to make suggestions about changes to the code. I, as the Minister in the department, will ensure that there is a response by government to ideas about modifying or changing the code. So the noble Lord can have his say, and he will be responded to. It is not the purpose of this stage of the Bill at this moment to modify the code. I have said also that I will take away and consider the amendments tabled by the noble Lord, and supported by my noble friend Lord Campbell of Alloway. I shall consider the affirmative resolution procedure for approving the code.

No noble Lord is denied the opportunity to make suggestions in any kind of detail. I give an absolute guarantee that I shall respond on behalf of the Government to noble Lords, but not on the hoof at the Dispatch Box.

Lord Campbell of Alloway

I say with respect to the noble Lord, Lord McIntosh of Haringey, that that must be reasonable. It is not a question of the noble Lord not being able to obtain an answer from the Government; it is not a question of the matter not being debated in this place. The position merely is that my noble friend the Minister cannot today answer for the Government in the way that she is asked to do. She can only give her own personal impression.

My noble friend the Minister has given a firm undertaking that she will give the Government's answer to every one of these related matters and amendments on or before Report stage. She will give full information of the Government's reaction. It is—I hate to use the word "unfair"—unrealistic of the noble Lord to pursue this matter further when, as I understand it—I may be mistaken—on Report he will receive full answers from the Government on every one of these amendments. Ought not we to continue with our debate and accept in amity the basis of my noble friend's offer?

Lord McIntosh of Haringey

I do not believe that the noble Lord, Lord Campbell, has fully appreciated how serious is the situation. It is acceptable on occasion for the Minister to say,"I think that is an interesting idea. I have not been briefed on it. I shall take it away, and we will consider it". Of course it is acceptable that there should be opportunities for Members of this place, as there are for any inhabitants of this country, to make representations to the Government about any issue of public policy. We hope that they will receive the courtesy of a reply, and knowing the Minister I am sure that she will do her best to do so. That is not the issue.

The issue is whether the code of practice which has been widely acknowledged, including by the scrutiny committee, as being essential to the consideration of the legislation can be debated on the Floor of this place in a meaningful way. By being debated on the Floor of this place in a meaningful way, I mean that we can use whatever means are available to us to table amendments which should be responded to by government.

The Minister has not just said on one or two occasions that she is unable to answer and will respond later. That of course would have been acceptable. What she is saying is that because the only device available to us is to debate the code in the context of the Bill, she is never going to make any response to the amendments we table to the code of practice.

Lord Campbell of Alloway

Perhaps—

Lord McIntosh of Haringey

I am sorry, I am not going to give way. I have given way to the noble Lord several times.

That procedure is not acceptable. Under those circumstances, the only thing I can do is to move now that the House resume. Then I shall propose to a resumed House that there should be an adjournment of 30 minutes for the usual channels and the Leader of the House to consider this matter. I do not believe that the Committee is being properly treated. I beg to move that the House do now resume.

Moved, That the House do now resume.— (Lord McIntosh of Haringey.)

Lord Campbell of Alloway

I oppose that suggestion. With respect the noble Lord is being unfair and unrealistic. My noble friend the Minister never said that she would not debate this matter. She is fully prepared to give the Government's answers and debate this matter on or before Report. It is unrealistic to suggest that there will be no parliamentary opportunity for a full debate. It is unnecessary to adjourn these proceedings at this moment.

Lord Rodgers of Quarry Bank

There is every reason for doing so. I do not want to pursue further the substance of the matter. Members on all sides appreciate the problem that the Minister has. On the other hand, the sense of frustration that noble Lords must feel at finding the Minister obliged to be agnostic on, if not all, virtually all the important issues in relation to the code of practice, is acknowledged.

The advantage of a short adjournment would be not merely, as the noble Lord, Lord McIntosh, said, to find some way out of the dilemma, but perhaps to allow us all to cool a little and to see how we can continue with the Bill; otherwise I see little advantage in pursuing the Bill. Although it is entirely a matter for the noble Lord, Lord McIntosh, were I in his position I should be loath to move any amendment to the Bill which refers to the code of practice, if at every stage we have to go through the procedure—highly unsatisfactory as it has been—that we are going through on this amendment.

Baroness Blatch

First, the amendments are to incorporate onto the face of the Bill parts of the code of practice. I have made the Government's position on that clear. Secondly, given that the noble Lord, Lord McIntosh, has used this mechanism to put these matters before the House, I have said that they are interesting points. I have said that they must be reflected upon. I have said that people who will have to work under the code of practice must be given an opportunity to consider the points. We must consider them ourselves. Consultation on the code of practice will continue in that way.

Not only that, I have given an absolute undertaking that any suggestion contained within the amendments will be considered, and I will respond in detail. If I write to any noble Lord, I shall ensure that copies of the correspondence are placed in the Library and will be available to all Members of this place. I have also said that I will take away Amendments Nos. 97, 99 and 100 which suggest a new procedure for dealing with the code of practice. I shall respond as soon as possible on that.

What I believe the noble Lord is suggesting is a wholly new procedure for considering codes of practice. That is not a matter for a half-hour adjournment. It is certainly not a matter to be considered across the Dispatch Box. It may be a matter—I look to the noble Lord, Lord Graham of Edmonton, opposite—for the usual channels to consider, because I know it is not the first time that this matter has been a point of contention.

I am here to discuss the Committee stage of the Bill. I have responded to the aspects that apply to the Bill. I believe that the Committee should get on with considering the Bill. I hope that Members will follow me into the Lobby against the Motion that the House should adjourn to consider this matter.

Lord McIntosh of Haringey

The Minister is briefed to speak on the Committee stage of the Bill as it has been presented by the Government. Parliament has the responsibility and the duty to put into the Bill whatever it thinks proper and to debate whatever it thinks proper on the Bill. What we are proposing are entirely reasonable amendments. We are perfectly willing to be told by the Minister, with her usual courtesy, that she is willing to take away some amendments and discuss them. What we are not willing to be told is that the Minister will not on principle answer the points made in these amendments and in debate. That is what is not acceptable.

It may be that the Minister is right in saying that a 30 minute adjournment is not suitable. It may be that after an adjournment the usual channels will decide that the proper thing to do is to recommit Part II of the Bill. I do not know what the outcome would be because I am not part of the usual channels. However, I do know that the House authorities have to think about this matter because we are being denied the opportunity to have a constructive debate. I beg to move that the House do now resume.

5.11 p.m.

On Question, Whether the House do now resume?

Their Lordships divided: Contents, 57; Not-Contents, 133

Division No. 2
CONTENTS
Addington, L.	Judd, L.
Archer of Sandwell, L.	Kennet, L.
Ashley of Stoke, L.	Kilbracken, L.
Beaumont of Whitley, L.	Kirkhill, L.
Birk, B.	McIntosh of Haringey, L.
Broadbridge, L.	Mackie of Benshie, L.
Bruce of Dorthigton, L.	McNair, L.
Carmichael of Kelvingrove, L.	Mallalieu, B.
Clinton-Davis, L.	Mar and Kellie, E.
Cocks of Hartcliffe, L.	Marsh, L.
Donaldson of Kingsbridge, L.	Mayhew, L.
Donoughue, L.	Milner of Leeds, L.
Dubs, L.	Monkswell, L.
Ezra, L.	Monson, L.
Falkland, V.	Morris of Castle Morris, L.
Farrington of Ribbleton, B.	Murray of Epping Forest, L.
Fitt, L.	Palmer, L.
Geraint, L.	Prys-Davies, L.
Glenamara, L.	Richard, L.
Graham of Edmonton, L. [Teller.]	Rodgers of Quarry Bank, L.
Grey, E.	Russell, E.
Haskel, L. [Teller.]	Sefton of Garston, L.
Healey, L.	Stoddart of Swindon, L.
Hollis of Heigham, B.	Taylor of Blackburn, L.
Holme of Cheltenham, L.	Thomas of Walliswood, B.
Jay of Paddington, B.	Tordoff, L.
Jeger, B.	White, B.
Jenkins of Hillhead, L.	Williams of Elvel, L.
	Williams of Mostyn, L.

NOT-CONTENTS
Aberdare, L.	Colnbrook, L.
Addison, V.	Courtown, E.
Allenby of Megiddo, V.	Cox, B.
Ashbourne, L.	Cranborne, V. [Lord Privy Seal.]
Astor, V.	Cranbrook, E.
Astor of Hever, L.	Crickhowell, L.
Barber, L.	Cromer, E.
Belhaven and Stenton, L.	Cross, V.
Beloff, L.	Cumberlege, B.
Biddulph, L.	Dacre of Glanton, L.
Blaker, L.	De L'Isle, V.
Blatch, B.	Dean of Harptree, L.
Blyth, L.	Denton of Wakefield, B.
Boardman, L.	Derwent, L.
Borthwick, L.	Dilhorne, V.
Boyd-Carpenter, L.	Dixon-Smith, L.
Brabazon of Tara, L.	Dormer, L.
Braine of Wheatley, L.	Elles, B.
Brigstocke, B.	Elliott of Morpeth, L.
Brookeborough, V.	Ferrers, E.
Brougham and Vaux, L.	Geddes, L.
Burnham, L.	Gilmour of Craigmillar, L.
Butterworth, L.	Gisborough, L.
Cadman, L.	Goschen, V.
Caldecote, V.	Gray of Contin, L.
Campbell of Alloway, L.	Harding of Petherton, L.
Camegy of Lour, B.	Harmar-Nichollis, L.
Camock, L.	Harmsworth, L.
Carr of Hadley, L.	Hayhoe, L.
Cavendish of Furness, L.	Henley, L.
Chelmsford, Bp.	Holderness, L.
Chesham, L. [Teller.]	HolmPatrick, L.
Clanwilliam, E.	Howe, E.
Clark of Kempston, L.	Huntly, M.

Inglewood, L.	Pender, L.
Johnston of Rockport, L.	Perry of Southwark, B.
Kingsland, L.	Prior, L.
Kinnoull, E.	Pym, L.
Lindsey and Abingdon, E.	Quinton, L.
Liverpool, E.	Radnor, E.
Lucas of Chilworth, L.	Reay, L.
Lyell, L.	Rees, L.
McConnell, L.	Renwick, L.
Mackay of Ardbrecknish, L.	Romney, E.
Mackay of Clashfem, L [Lord Chancellor.]	Saint Albans,D.
	Saltoun of Abernethy, Ly.
Mackay of Drumadoon, L.	Seccombe, B.
Macleod of Borve, B.	Shaw of Northstead, L.
Marlesford, L.	Skelmersdale, L.
Massereene and Ferrard, V.	Skidelsky, L.
Merrivale, L.	Slim, V.
Mersey, V.	Soulsby of Swaffham Prior, L.
Middleton, L.	Stewartby, L.
Milverton, L.	Stodart of Leaston, L.
Monk Bretton, L.	Strathcarron, L.
Montgomery of Alamein, V.	Strathclyde, L. [Teller.]
Mountevans, L.	Sudeley, L.
Mountgarret, V.	Swansea, L.
Moyne, L.	Swinfen, L.
Murton of Lindisfarne, L.	Teynhame, L.
Nelson, E.	Trefgarne, L.
Newall, L.	Tugendhat, L.
Northesk, E.	Vivian, L.
Orkney, E.	Wakeham, L.
Orr-Ewing, L.	Wyatt of Weeford, L.
Oxfuird, V.	Wynford, L.
Pearson of Rannoch, L.	Young, B.

Resolved in the negative, and Motion disagreed to accordingly.

5.20 p.m.

Lord McIntosh of Haringey

It is my understanding that we have not yet disposed of Amendment No. 70. Before I withdraw that amendment, as it is my intention to do, I wish to make a few remarks about the procedure.

First, I made it clear in moving the Motion that the House be resumed that it is not my intention to damage or disrupt the work of the Committee but rather to secure that it is done more effectively. If that Motion had been agreed to, it was my intention to move that the House be adjourned for a period of about 30 minutes in order for the Leaders and the usual channels to consider the best way forward. That may have included a decision to re-commit Part II, with discussions to enable the Government to suggest to us how we could discuss effectively not just the code of practice but Part II as a whole because that is the shell of which the code of practice is the oyster.

I failed to achieve that. Under those circumstances, I have no alternative but to say that I shall not continue with a debate on Part II in which I make points, my noble friends and the noble Lord, Lord Rodgers, make points and from time to time the noble Lord, Lord Campbell of Alloway, makes helpful points, on which we receive no answer from the Government. I am not prepared to continue with that and I shall not move the remaining amendments to Part II which stand in my name.

I shall consult my noble friends at the appropriate time when the Committee has concluded its work. I may move for a re-commitment of Part II or first seek further informal discussions. But in any event, I shall seek to find a constructive way in which to achieve what we are failing to achieve at the moment; namely, a proper debate on the essence of Part II of the Bill. That is my intention. I hope that the Committee will feel that I am not trying to be disruptive but am trying to achieve the most effective debate possible.

Baroness Blatch

Before the noble Lord sits down, perhaps I may say that I find deeply depressing what the noble Lord has just said. There is nothing either in the form of the amendments or what is left to discuss about the Bill today which should prevent the completion of the Committee stage. I do not find at all acceptable the noble Lord's justification for withdrawing from this stage of the Bill.

I also wish to repeat on record that I shall continue to consider seriously ideas as regards changes to the code. If the noble Lord wishes to—and I have not yet refused this—I shall meet him either to discuss procedure or the individual amendments. We have done that previously many times on many Bills. I shall continue to ensure that my door is open to meetings of that kind.

I said also that we shall respond to all the amendments as they relate to possible modifications to the code. But this day has been set aside for Committee stage of this Bill and with or without the co-operation of the noble Lord, Lord McIntosh, and other noble Lords who wish to join him, I invite the Committee to continue with this stage of the Bill this evening.

Lord McIntosh of Haringey

I have made myself clear. It is my intention that we shall continue with and conclude the Committee stage of this Bill. We shall take part in all debates other than those on Part II. But on that part, we simply cannot discuss amendments when they are not responded to by the Government. That is the core of the matter.

The Minister has always been personally courteous and, as she rightly says, her door has always been open. I shall certainly take advantage of any offer that she makes to discuss matters. But we must discuss how this Chamber and this Committee can debate the subject matter of Part II which we are not able to do under present procedures. I do not do that out of any spirit of personal antagonism towards the Minister. She well knows that I am obliged to take this stand.

Baroness Blatch

It is important to make clear that there is nothing which precludes us from discussing the substance of Part II. That can be done in the course of discussing amendments to the Bill. It will not be my recommendation to my noble friends or the usual channels that there should be re-committal of this stage. If we complete the Committee stage today, that will be completion of this stage of the Bill.

Lord McIntosh of Haringey

That is a point of view. It is a political point of view. The Minister takes one view and I take another. That is life; that is politics. There is nothing that we can do about that. The fact is that Part II involves the code of practice and that is essential to Part II. That has been said by the scrutiny committee and by many noble Lords on all sides. I should not repeat this if the opposing point of view were not continually repeated. In a spirit of utter friendliness to the Minister personally, I have given notice of my intention as regards the rest of this part of the Bill. We shall take a full part in the debate on subsequent parts of the Bill. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 71:

Page 11, line 8, leave out ("disclosed") and insert ("revealed").

The noble Baroness said: These are minor amendments designed to remove a potential source of confusion in the Bill about whether material is to be given to the prosecutor or to the accused. At present, the Bill uses the word "disclose" to describe both the giving of material by the prosecutor to the accused under Part I of the Bill, and also the giving of material by a police officer to the prosecutor under Part II. The clauses are drafted so as to achieve the correct disclosure in each case. But the use of the same word to describe two different actions is potentially confusing. It would be clearer if the two actions were described by two different words. These amendments achieve this by replacing "disclose" with "reveal" in Clauses 16, 17 and 20 to describe the giving of material by the police to the prosecutor, reserving "disclose" for the giving of material by the prosecutor to the accused. I beg to move.

Lord McIntosh of Haringey

This is an issue in Part II which is not affected by the code of practice. I believe that the suggestion made by this amendment is entirely sensible. It will reduce confusion. Nothing can eliminate confusion but it will be reduced. We support the amendments.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 72:

Page 11, line 11, leave out ("disclosed") and insert ("revealed")

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 73:

Page 11, line 13, at end insert—

("(dd) that where the accused is allowed to inspect material as mentioned in paragraph (d) and he requests a copy, he is given one unless the person allowing the inspection is of opinion that it is not practicable or not desirable to give him one;").

The noble Baroness said: This is a minor amendment designed to ensure that it is possible to give the accused copies of prosecution material he has inspected. As Clause 16 is currently drafted, the code of practice may provide for the accused to inspect material held by the police at the request of the prosecutor. But there is no provision for the accused to be given copies of such material. Subsection 16(1)(dd) inserted by this amendment remedies that.

The amendment also provides that a police officer need not copy to the accused material which the accused has inspected, if he believes that it is not practicable or not desirable to do so. It may not be practicable if, for example, the material is an object which cannot be copied. It may not be desirable if, for example, the material is a statement by a child witness in relation to a sexual offence, and the police officer believes that the accused may give the statement to persons unconnected with the proceedings.

I should stress that this in no way affects the obligation to disclose material which meets the test for disclosure. What is at issue is the method of disclosure. The accused will be able to inspect such material and will know what it says, so he will not be disadvantaged in preparing his defence. I beg to move.

Baroness Mallalieu

Perhaps the Minister will help us a little about the way in which the amendment will make changes. At present there are difficulties which I am conscious arise where counsel or solicitors go to a police station to inspect material and where the officer dealing with the appointment sometimes says, "I am not prepared to have that document copied". In those circumstances, sometimes the frankly ludicrous position is reached where subsequently, from the best of his recollection, counsel must try to make a note of the document which he has seen without having advantage of the original.

I appreciate the reasons behind the amendment but I am anxious that the legislation as amended will not provide for any right of appeal. If the police officer in charge of the disclosure at the police station takes the view, perhaps with good reason and perhaps not, that a document may not be copied, what is the right of appeal for someone who is refused a copy of a document by a police officer at the station?

It may not necessarily be a senior officer; indeed, it may be a junior officer who is dealing with the appointment. But whoever it is, he may make a mistake or he may be denying the defence a copy of a document which is needed. Does the defence then have a right to go to the court and ask a judge to make an order? If not, perhaps that is a provision which the Minister will consider adding at a later stage of the Bill's proceedings.

5.30 p.m.

Baroness Blatch

I am not in a position or sufficiently knowledgeable to give a definitive answer on that question. However, I should have thought that the burden of proof would apply as regards whether it was impractical to do it or undesirable. Of course, proper reasons would need to be given in order for the court to take a view on the matter. I shall certainly check out the position and write to the noble Baroness.

On Question, amendment agreed to.

Viscount Cranborne

I believe that all Members of the Committee will have appreciated the courtesy with which the noble Lord, Lord McIntosh, made his points during the difference of opinion with my noble friend. It may be for the advantage of the management of business and for the continuance of constructive discussion during this stage of the Bill if Members of the Committee felt able to agree to suspend the present Committee stage for 15 minutes during pleasure. I therefore beg to move that the Committee stage of the Bill be adjourned for 15 minutes during pleasure.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 5.31 to 5.46 p.m.]

Lord Strathclyde

In the absence of the noble Lord, Lord McIntosh of Haringey, and indeed the Minister as well as various other Members of your Lordships' House who are at this moment completing their discussions on how to continue the Committee stage of the Bill, I shall say a few words while I wait for them to appear.

Lord Rodgers of Quarry Bank

I hope that the noble Lord will permit me to say a few words about this particular topic. I am not discussing the coming World Cup or anything of that kind but something which is germane to our earlier discussions without in any way entering into that controversy. I wonder whether the time has not come to consider more fully how we deal with those pieces of legislation which do not greatly divide the parties but cannot be said to be strictly non-controversial. I understand that a formula has been found for discussing some Bills of that nature although one cannot be certain that they are non-controversial. However, a Bill of the kind which is before the House has many detailed provisions which deserve to be properly scrutinised without the inevitable and, in my personal view, highly undesirable adversarial mood which sometimes takes this House and which puts Ministers in a difficult position. Irrespective of the resolution of today's affairs, I hope that the noble Lord can help the House—and in particular me—by explaining how this matter could be properly considered so that the House will be able more fully to fulfil its role of scrutiny which is our pride and joy and firmly respected outside.

Lord Elton

Before the noble Lord sits down, it would be immensely helpful to the House if he were to explain where the present Bill falls in the spectrum of controversiality he referred to. It is arguable that on the one hand it is so controversial that it would be excluded from the process and on the other that it is so uncontroversial that it need not be considered.

Lord Rodgers of Quarry Bank

I am glad to have the opportunity to discuss the Richter scale which is what I think the noble Lord refers to. I hope the House will allow me to think aloud because that is the only thing I can do in the circumstances. It is not a Bill of high controversy. Were it a custom of your Lordships' House to vote for or against Second Reading, I find it difficult to believe that it would have been opposed on Second Reading. That puts it at the lower end of the Richter scale.

This goes deep into the political system of this country. For example, the absence of proportional representation encourages an adversarial view in this Chamber as does the fact that the Chamber is designed as it is. My own view is that if we were not obliged to be adversarial, this Bill would come somewhere at the lower end of the Richter scale. It is not devoid of controversy and the views of political parties. It may be that on questions of defence and prosecution disclosure there are as many views in this House as there are in the other. Our adversarial system means that differences are exaggerated in one way and narrowed in another. That is one area in which our parliamentary democracy could be greatly improved.

In the meantime, on the Richter scale, if we assume that 10 is a major earthquake, equivalent to a Bill of great controversy such as that which introduced the disastrous poll tax when even Members on the other side of the Chamber know that what is proposed is a nonsense but are obliged to follow their leader, I would put this Bill somewhere near the bottom of the scale, at perhaps 2 or 3.

Lord Elton

Before the noble Lord sits down perhaps I may intervene. He raised the question of the shape of the Chamber. He should consider also the size of the Chamber. Noble Lords may recall that during the war Adolf Hitler dropped a bomb on the other place. The occupants of the other place came en masse and sat in this Chamber and the occupants of this Chamber, happily much fewer in number than now, went to occupy the Robing Room at the other end of the Royal Gallery. When it was diminished by a Content Lobby to the right by the Throne and a Not-Content Lobby to the left by the Bar—and rails in front of the Throne and a Bar behind which Members of another place could stand to hear proceedings—it was a very small Chamber. My father, who was a Member of the House in those days, said that it was a delight to debate there because you could not make a speech but only have a discussion, as we are now. When we came back to this Chamber we all launched back into speeches, oratory and antagonism.

Once you are in a big Chamber which invites oratory—I am not sure how long on this occasion it invites it for, but it would appear to invite it for a little longer—you have to consider the question of the shape of the Chamber. Norway and many other countries with advanced democratic systems have horseshoe or semi-circular-shaped chambers. That avoids blocs forming for or against the government and only rarely leads to blocs in between, voting sometimes one way and sometimes the other but always on the merits of the issue. It does, however, produce shadings of parties and coalitions. That goes very well with the system of proportional representation which I hope the noble Lord will take this opportunity to deny lies at the centre of his party's aspirations for the British constitution.

Lord Rodgers of Quarry Bank

The noble Lord raises some very interesting questions about the size of your Lordships' House. As he has exchanged memories with your Lordships perhaps I may also do so.

I remember as a young man coming for the first time to see the other place perform. That was indeed when the House of Commons was sitting in your Lordships' Chamber. I discovered that I had no ambitions to go to No. 10, but I did think that at some time I would like to take part in the debates.

When the noble Lord says that perhaps a smaller Chamber would be more suitable he raises the whole question of the reform of your Lordships' House and whether we should have a smaller number of Peers present in the course of our debates. I would not like to eliminate the hereditary element as such, as I believe some noble Lords on this side of the House would. I want very much to retain the Cross-Bench Peers, as, I am sure, do all noble Lords.

There is a simple scheme by which your Lordships could sit in this House, occupying seats to be distributed in direct proportion to votes cast in a general election. For the sake of symmetry, we could have the Cross-Bench Peers representing those voters who had not voted at all. We would then have a balanced House. The opposition parties would be represented more fully than hitherto, and we would enable noble Lords to contribute. There are many hereditary Peers who contribute brilliantly to our debates and those of us who are fair minded would not want them to be eliminated.

There could be a House of, say, 450 Members sitting as an electoral commission because it should not be in the power of the Prime Minister to decide who sits in your Lordships' House. After every general election seats would be allocated in direct proportion to the votes cast. That would be a simple form of proportional representation to which I believe noble Lords on all sides of the House would readily give their assent. That is the germ of the change I would like to see.

In relation to the delay we face today—although I know that no noble Lord is wasting your Lordships' time—a Bill was before the House but appears to have disappeared for an indefinite period. Until that Bill reappears I am attempting to introduce the question of the reform of Parliament. Perhaps other noble Lords may be able to pick up the theme and develop it for the next two or three hours until it is time to go home.

Lord Monkswell

Has the noble Lord considered the risk to the body politic of Parliament of, effectively, setting up a second Chamber which would be in direct competition to the other place? One of the achievements of our British Parliament is to avoid too much fighting between the two Houses. We pass legislation from one to the other in sequence. There is a mechanism to enable us to make adjustments to the legislation that we have in front of us that accommodates extreme feelings. One of the means by which that system works is the recognition by this House that the other House has a greater legitimacy. There are rare occasions when we think that the other House is wrong and we take the matter to a fight.

However, if this House were to feel that it had almost equal legitimacy with the other House I suspect that there would be far more conflict between the two Houses of Parliament. I wonder whether the noble Lord who suggested that rather fantastic arrangement has considered that possibility. Another factor is how the membership would be chosen.

Lord Campbell of Alloway

I beg to move that the noble Lord be no longer heard.

Moved, That the noble Lord be no longer heard.—(Lord Campbell of Alloway.)

Lord Swinfen

That is a debatable question. I should be grateful if my noble friend would explain why he wishes the noble Lord to be no longer heard.

Lord Campbell of Alloway

Much as one appreciates all the contributions that have been made, it is getting rather late and we have had an anxious day. It would be nice to go home. If the noble Lord is prepared to understand the position, I should like to withdraw my Motion.

Lord Monkswell

I perfectly understand the situation and will sit down forthwith.

Motion, by leave, withdrawn.

Lord Strathclyde

Perhaps I may intervene. Unfortunately I started the debate, which I very much enjoyed. The noble Lord, Lord Rodgers of Quarry Bank, and my noble friend Lord Elton went down a route, which I found of some use, concerning the geography of the House and so on. However, we began this discussion because we were waiting for the noble Lord, Lord McIntosh of Haringey, to return from his discussions with the Minister and the usual channels to decide how to proceed with the Committee stage. Word has now reached me that they will not return just yet. In the light of that information I believe that it would be fairest to the Committee if I were to move to adjourn the Committee stage for another 10 minutes. I beg to move.

Moved, That the Committee stage be adjourned for 10 minutes.— (Lord Strathclyde.)

Lord Harris of Greenwich

I wonder how realistic that is. Most of us are keen to go home if the never-ending debate outside is likely to be protracted. I wonder whether it is sensible to make it a 10-minute adjournment. If some agreement cannot be reached between those involved in the discussions within the relatively near future, the Government Chief Whip will have to move the adjournment of the House.

Lord Clinton-Davis

I support that intervention. As I understand it, the situation has been going on for some time; it has to be terminable. I should have thought that 10 minutes was not realistic in the circumstances. If there is an indication that those involved will return in 15 minutes or so, why not make the adjournment half an hour and the position can then be rendered quite certain? The House will then be in a position to say, "We'll call it a day for today". That seems sensible. There is no certainty that 10 minutes will be enough.

Lord Campbell of Alloway

I respectfully oppose the suggestion of the noble Lord, Lord Clinton-Davis, and declare an interest. I have an amendment, Amendment No. 105, on which I am determined to divide against the Government. Need I say more? When we reach 12.30 at night, only the steadfast infantry on standby, and those at their ease in the guardroom, will be left. I cannot divide the House; if I do, I am bound to lose. I would prefer that we call it a day if it is possible and come back on another occasion.

Lord Strathclyde

I am conscious that it is only 6 o'clock. I have no idea for how long these great discussions will continue. I should like to stick to my Motion that we return in 10 minutes. We have had another two or three minutes of conversation since I moved the Motion. If the situation is no clearer within that 10 minutes, then I shall move another Motion.

On Question, Motion agreed to.

[The Sitting was suspended from 6.2 to 6.10 p.m.]

Lord McIntosh of Haringey had given notice of his intention to move Amendment No. 74:

Page 11, line 17, leave out ("may") and insert ("shall").

The noble Lord said: I shall not move Amendment No. 74. I wish to make it clear that in not doing so I shall not move any other amendments relating to the code of practice in Part II of the Bill. I do so on the basis of the discussion which has just been concluded. It is known to the Government that I shall move the amendments again at Report stage rather than seeking a re-commitment of this part of the Bill. I know that, with her usual courtesy and consideration, the Minister will enable discussion to take place on the amendments before the Report stage. As a result, there may be a full debate on them at that time.

[Amendment No. 74 not moved.]

Lord Harris of Greenwich

I believe that we should have an opportunity of giving consideration to the position we have now reached. I can well understand why the noble Lord, Lord McIntosh, made the decision which he has, in my view sensibly. However, the Minister will realise—

Lord McIntosh of Haringey

There is no Motion before the Committee on that.

Lord Harris of Greenwich

I shall say all this on the first amendment that is debatable. The Committee having been adjourned, we should have had some form of statement from the Minister as to what is going on.

[Amendments Nos. 75 to 82 not moved.]

Baroness Blatch moved Amendment No. 83: Page 11, line 35, leave out ("disclosed") and insert ("revealed to the person mentioned in subsection (1)(c)").

The noble Baroness said: I beg to move.

Lord Harris of Greenwich

This is an opportunity for the noble Baroness to tell the rest of us exactly what is going on. We have had the Committee adjourned twice. We have had the good fortune of listening to my noble friend Lord Rodgers of Quarry Bank discussing the reform of the House of Lords and the introduction of proportional representation, which all of us found extremely valuable. However, having adjourned twice and having had discussions taking place, it might be nice if the rest of us could be told precisely where we are now.

The noble Lord, Lord McIntosh, has decided not to move his amendments for reasons which we all understand, but the noble Baroness will be aware that, if it is likely that a large slice of the amendments, or variations on them, will be reintroduced at Report stage, that has implications for the amount of time we shall have available for discussions at the Report stage. I hope that we shall not find the House sitting late at night on Report, discussing some of these issues for the first time. I should indicate that that would be quite unacceptable. I am sure that the noble Baroness will be anxious to assist us and give us an indication of exactly what has been going on.

Baroness Blatch

I have enormous sympathy with the last point which the noble Lord made. There was an adjournment and discussion about the amendments before the Committee. I have given an assurance that I shall respond to the amendments in detail after this stage of the Bill. My understanding is that the noble Lord, Lord McIntosh, will re-table the amendments in their present form for Report stage and it will be for the House to consider them.

Lord Harris of Greenwich

I am grateful to the noble Baroness for having said that. I am glad that she indicated that she had sympathy with the point that I made about the amount of time that will have to be devoted to the question. Substantial issues of public policy are involved and, as she has been good enough to agree, it would be wholly wrong if we found ourselves sitting late at night discussing these matters simply because we had to have a truncated Committee stage.

On Question, amendment agreed to.

Clause 16, as amended, agreed to.

6.15 p.m.

Clause 17 [Examples of disclosure provisions]:

[Amendments Nos. 84 and 85 not moved.]

Baroness Blatch moved Amendment No. 86: Page 12, line 3, leave out ("disclose") and insert ("reveal material").

On Question, amendment agreed to.

[Amendments Nos. 87 to 89 not moved.]

Baroness Blatch moved Amendment No. 90: Page 12, line 8, leave out ("disclose") and insert ("reveal material").

On Question, amendment agreed to.

[Amendments Nos. 91 to 94 not moved.]

Baroness Blatch moved Amendment No. 95: Page 12, line 43, after ("disclosure") insert ("under Part I").

On Question, amendment agreed to.

[Amendment No. 96 not moved.]

Clause 17, as amended, agreed to.

Clause 18 [Operation and revision of code]:

[Amendment No. 97 not moved.]

Baroness Blatch moved Amendment No. 98: Page 12, line 46, leave out ("made by statutory instrument").

On Question, amendment agreed to.

[Amendments Nos. 99 and 100 not moved.]

Clause 18, as amended, agreed to.

Clause 19 [Effect of code]:

[Amendment No. 101 not moved.]

Clause 19 agreed to.

Clause 20 [Common law rules as to criminal investigations]:

Baroness Blatch moved Amendment No. 102: Page 13, line 34, leave out ("disclosure") and insert ("revealing").

On Question, amendment agreed to.

Clause 20, as amended, agreed to.

Clause 21 [Introduction]:

Baroness Blatch moved Amendment No. 103: Page 14, line 4, leave out from ("Part") to ("only") in line 8 and insert ("applies in relation to offences proceedings for which are transferred on or after the appointed day, and —

1. (a) the reference here to transfer is to transfer to the Crown Court for trial;
2. (b) the reference here to the appointed day is to such day as is appointed for the purposes of this section by the Secretary of State by order;
3. (c) if such an order so provides, this Part applies").

The noble Baroness said: This amendment to Clause 21 is a technical amendment concerned with the application of Part III. As drafted, Clause 21(1)(a) provides for Part III to be applied to offences alleged to be committed on or after such day as is appointed by the Secretary of State. This would create difficulties if an indictment contained several counts, some relating to offences committed prior to the appointed day and others relating to later offences.

The amendment addresses that by providing for Part III to be applied to proceedings for the trial of a person on indictment which are transferred to the Crown Court on or after the day appointed for the purposes of Clause 21.

As a consequence of the amendment to Clause 21(1), an amendment is needed to Clause 46. As drafted, Clause 46 makes provision about the time when an alleged offence has been committed, for the purpose of certain provisions in the Bill, including Clause 21(1). As a consequence of the amendment to the commencement provision in Clause 21(1), the reference to Section "21(1)" should be removed from Clause 46(1). I beg to move.

Baroness Mallalieu

I support this amendment. It is one of 16 which include two new clauses. I am grateful to the noble Baroness. I received notice on Friday last week, when she kindly sent me a copy of the letter dated last Thursday which she had sent to the noble Lord, Lord McIntosh.

These provisions dealing with preparatory hearings, in relation to which this is the first of a group of amendments, command, I believe, universal support throughout the House. It is crucial to practitioners that these provisions should be clear, that they should not be complex, and that they should be flexible. It is very much our intention to scrutinise, with those who are concerned, not just this part of the Bill but also the amendments that arrived so recently. The fact that at present there are no amendments tabled on this side of the House does not necessarily reflect the position when we have had an opportunity to do that. So far as this amendment is concerned, it seems to be a very considerable improvement on the original drafting, and it has our support.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 104: Page 14, line 10, leave out subsection (2).

On Question, amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 [Power to order preparatory hearing]:

Baroness Blatch moved Amendment No. 105: Page 14, line 31, leave out ("and") and insert ("or").

The noble Baroness said: This amendment to Clause 22 is a minor amendment designed to improve the drafting of the Bill.

Clause 22(3) currently refers to a case of such seriousness and complexity as is mentioned in Section 7(1) of the Criminal Justice Act 1987. However, Section 7(1) of the Criminal Justice Act 1987 was amended by the Criminal Justice and Public Order Act 1994 (Schedule 9, paragraph 30) so as to substitute "seriousness or complexity" for "seriousness and complexity". Accordingly, this amendment replaces "and" with "or" in Clause 22(3). I beg to move.

On Question, amendment agreed to.

Clause 22, as amended, agreed to.

Clause 23 agreed to.

Clause 24 [The preparatory hearing]:

Lord Bridge of Harwich moved Amendment No. 106:

Page 15, line 6, at end insert ("which shall include the question whether proceedings on the indictment should be stayed as an abuse of process").

The noble and learned Lord said: I had intended to say in opening at a much later hour, that I intended to be very brief because of the great volume of business that still confronted the Committee. Although it is not so late, I shall still try to be brief. This amendment is very simple. Parts III and IV of the Bill provide two new distinct procedures each of which would enable a trial judge to determine in advance of the trial certain issues even before the jury was empanelled. As I understand it, Part IV provides the appropriate procedure for the ordinary run-of-the-mill case where the judge's preliminary rulings on issues of law and questions of admissibility of evidence will not be subject to any interlocutory appeal.

Part III is quite different. It introduces generally a procedure at the moment only available in cases of complex fraud under the Criminal Justice Act 1987. It enables in a preparatory hearing preliminary rulings on issues of law and issues relating to the admissibility of evidence to be determined in advance of the trial (that is, before the jury is empanelled) and provides that those rulings shall be subject to appeal, and that the appeal will be finally disposed of before the trial commences.

The good sense of that procedure seems obvious. If a long and complicated trial is anticipated (it is primarily for long and complicated trials that the special Part III procedure is to operate) there are obviously great advantages in having a final and authoritative decision on issues of law—issues relating to admissibility—on which the whole trial may depend. If they are decided in advance, then everybody knows where they are. If they are decided after the trial by way of an appeal, the whole work of the long and complicated trial may have been wasted.

Some Members of the Committee may remember that during the last Session of Parliament at the Report stage of the Criminal Appeal Bill, I moved unsuccessfully an amendment that would have provided for an interlocutory appeal against decisions of a trial judge one way or the other as to whether or not proceedings on indictment should be stayed on the ground that they involved an abuse of the court's process. That amendment was defeated by 128 votes to 118.

The purpose of this amendment is very much more modest. It is simply to ensure that the interlocutory appeal which the Government themselves introduce in this Bill, applicable only in the special Part III procedure, shall extend from questions relating to admissibility of evidence and other questions of law to questions relating to whether an appeal should or should not be stayed as an abuse of the process of the court.

The advantages of having such an interlocutory appeal seem to me to be self-evident. If a judge wrongly determines that proceedings should not be stayed when in truth they should, an interlocutory appeal before the trial goes ahead will avoid the unnecessary expenditure of a lot of public money and the trauma that should be avoided to the defendant himself of having to stand trial in respect of some stale prosecution which ought never to have been brought so late. If, on the other hand, the judge wrongly grants the stay when no stay ought to be granted, in case of a stale prosecution—which is the principal case attracting a stay of proceedings on the ground of abuse of process—then that is a decision which certainly ought to be reversible; otherwise, the prosecution has no remedy. It is bad enough that we should have to see guilty men escaping conviction as a result of the perverse verdicts of juries. But it is quite wrong that we should tolerate in the current ethos in relation to these matters men escaping conviction on the basis of an erroneous judicial decision when a perfectly good remedy to that can be provided.

As I recall, the only substantive ground on which my earlier amendment to the Criminal Appeal Bill was resisted by the Government was that it would cause unnecessary delays and provide for an abuse by defendants who sought to delay proceedings by applying for leave to appeal when they had no prospect of obtaining it. Under the Part III procedure there is the safeguard of a requirement that leave should be obtained either from the trial judge or from the Court of Appeal before an appeal can be brought, so that the delay involved will be very small in any event.

Now that the Government themselves have introduced an interlocutory appeal in cases where the judge, under the special Part III procedure, has given a ruling on issues of law or issues of admissibility, I simply do not understand on what ground it can be said that a similar interlocutory appeal applicable to decisions relating to a stay on the ground of abuse of process should not be available. If it makes good sense to have such an interlocutory appeal so that the issues of law or admissibility can be finally disposed of before the trial proper begins in those cases, as the Government must suppose, then it makes equally good, if not better, sense that such an interlocutory appeal should be available in a case where the judge has either granted or refused a stay of proceedings on the ground that they are an abuse of process. I beg to move.

6.30 p.m.

Lord Campbell of Alloway

The object of the amendment, as explained by the noble and learned Lord, Lord Bridge of Harwich, is simple, sensible and self-evident. It is to allow the Court of Appeal, on appeal by the Crown or the defence, with leave of the judge of the Court of Appeal, to reverse the decision of the judge on an application to stay proceedings to avoid an unfair trial. Indeed, it is to introduce in England and Wales nothing other than a procedure akin to that which operates in Scotland, where the system works well and has not given rise to any unacceptable delay or abuse, to which the noble and learned Lord has just referred. At present, if the application in England and Wales is refused by the judge, there has to be a mistrial and a wrongful conviction before the Court of Appeal can reverse the erroneous decision of the judge. Hence, the justification—apart from the expense and trauma involved—for introducing this amendment.

It is appreciated that the amendment may well be doomed to founder on the rocks of mistaken ministerial preconception. The Government's settled objection has to be held against all corners and against all odds. On a Division, the steadfast, standby infantry, some at their ease in their guardroom, will be mustered to guard this citadel under the banner "Ours is not to reason why". Well, there it is. But will the amendment founder? A similar amendment, to which the noble and learned Lord referred, in the Criminal Appeal Bill, was only just lost by a small margin. Many strange things happen in this Chamber when noble Lords are able to attend and listen to the argument.

Four objections were raised in a letter dated 14th December which I received from the Home Office. The first was: You may recall that we resisted similar amendments during the passage of the Criminal Appeal Bill. The Government is extremely keen to prevent unnecessary delays in criminal trials".

If delay is considered to some degree necessary in Scotland, why should it be unnecessary in England if it avoids a mistrial and a wrongful conviction?

The second objection in the letter was: The defence could use such appeals as a delaying tactic".

There has been no abuse by exploitation in Scotland. Why should there be such abuse in England and Wales?

The third objection raised in the letter, in Home Office language, was: The implications of an appeal could be particularly significant because it would cast doubt upon whether or not the trial would go ahead"—

that is rather obvious, anyway—

and so all work relating to the trial would be likely to be suspended pending the outcome".

As any practitioner knows, such an application cannot be made by the submissions of counsel unless all the preparatory work of the trial has been conducted by both the Crown and the defence. One cannot make submissions unless the cases are known and prepared.

The last objection was: We believe the correct way for the defence to challenge a refusal to grant an application to stay proceedings is on an appeal against conviction". That belief ignores the expense and the injustice of a mistrial in which there has been a wrongful conviction.

The substance of the amendment of general application has already been accepted by the Chamber as applicable to proceedings under the War Crimes Act. It is common ground in another place and between the two Houses that those trials under the War Crimes Act must be fair trials. So it may not be assumed in any event that, if this amendment were carried into the Bill, it would be rejected by another place.

I commend the amendment, to which I have put my name, to the Committee and thank my noble and learned friend for having introduced it so elegantly.

Lord Williams of Mostyn

I believe that there is significant virtue in the amendment, provided that one has safeguards which could be easily introduced. A safeguard that I have in mind is that a prosecution appeal against a preliminary ruling ought only to be with the consent of the Attorney-General, in the same way as appeals against over-lenient sentences are dependent on such consent.

I believe that there is significant public concern about what is felt to be unduly pusillanimous rulings by judges at first instance, staying criminal proceedings on the basis of abuse of process, sometimes relating to adverse publicity in well known cases of which the Committee is aware. When the noble and learned Lord, Lord Bridge, was sitting as a puisne, such applications would rarely succeed. By and large, judges rightly trusted juries to decide the case on the evidence. I myself would not anticipate that that right of appeal—or right of direction originally, with a consequent right of appeal as spoken to by the noble Lord, Lord Campbell of Alloway—would regularly be used. It might be used in a certain number of appropriate cases. At the moment, if the judge stays the proceedings on the basis of abuse of process, there is no remedy available.

I believe that the amendment makes the law workable, efficient and likely to have more public confidence and support.

Baroness Blatch

The Committee will recall that this is a matter that we debated earlier this year during the passage of the Criminal Appeal Bill. Until 1993, it was thought possible for both parties to seek judicial review of decisions to grant or refuse such applications. However, in the case of Ashton, the House of Lords ruled that the High Court did not have jurisdiction to review those decisions as they were matters "relating to a trial on indictment". The present position, therefore, is that there is no such right of appeal, although it is open to the defendant, if he is convicted, to argue on an appeal against conviction that the prosecution was an abuse of process and the conviction unsafe as a result.

It is essential that we take whatever steps we can to minimise the scope for delays in criminal trials and avoid measures which might unnecessarily add to such delays. The effect of the amendment would be to add another stage into the process and so further delay the proceedings. This would be particularly unfortunate in cases such as those where preparatory hearings are likely to be held which may already have taken a considerable length of time to reach court. A provision of this kind might be open to exploitation by the defence who could use such appeals as a delaying tactic. The appeal would cast further doubt upon whether or not the trial would go ahead and all work relating to the trial would be likely to be suspended pending the outcome.

A further disadvantage of this amendment is that it would result in rights of appeal against such decisions being available only in those cases where there happened to be a preparatory hearing. That would be anomalous, and would create pressure for the right of interlocutory appeal to be extended to all cases. Such an extension would require further consideration in view of the potential implications for the handling of court business and the timely conduct of trials.

Although I can see the arguments for providing a right of appeal on decisions on applications to stay proceedings, I do not believe that it can be justified in terms of the delays which would result. Nor is it necessary in the interests of justice. The defendant is able to appeal in the normal way at the end of the trial if he is convicted. In our view, that is the correct way to proceed.

We still believe that the safeguard for the defendant is appeal after conviction. Any appeal for the right to apply to stay proceedings could lead to widespread abuse. Though the noble Lord, Lord Williams of Mostyn, said that it would be rarely used, there is no guarantee. Once it exists, it exists as a right and it would be for anybody who enjoys that right to exercise it. The notion may be that everybody is entirely sensible; nevertheless, used and abused as a right, it could be used as a delaying tactic. It is not beyond the wit of man to use it as such rather than as a right to seek justice.

Williams of Mostyn

First, I have never proceeded on the basis that anyone I encounter is likely to behave in a sensible way. Indeed, Clause 26(1) approaches life on that same suspicious basis. Leave will only lie with the trial judge or the Court of Appeal Criminal Division.

Secondly, the Minister says that this adds another stage. It does nothing of the sort. It brings forward the time of application to stay the proceedings—the preparatory hearing as opposed to the first day of the trial.

Thirdly, to suggest that a device as efficient as this will lead to more delay than, as suggested by the Minister, waiting until the end of trial, seems to stand common sense upon its head.

Lord Campbell of Alloway

As this is Committee stage, in view of the reasoned argument of the noble Lord, Lord Williams, perhaps my noble friend the Minister will take this matter back rather than simply resisting it, as is her command on her brief, which is sheer mistaken ministerial preconception in which there is no objective examination of this subject. I ask my noble friend to take the matter away and to think again.

Baroness Blatch

I repeat, this is Committee stage. Everything that is discussed at Committee stage I shall take back, reflect upon and consider. I shall come to these points again, if pressed, at Report.

Lord Bridge of Harwich

I am grateful to the noble Lord, Lord Williams of Mostyn, for his support of the amendment. I entirely accept his proposition that if it were accepted, additional safeguards may be required, in particular a requirement that an appeal by the Crown should only lie with the consent of the Attorney General. That is an eminently sensible proposal.

I listened with care to the noble Baroness. I hope it is not arrogant to say that I felt some sympathy for her in having to present such a difficult brief. It was suggested that the issue we are debating is the same as that we debated earlier in the year on the Criminal Appeal Bill. That is not right. If that amendment had been carried, it would have introduced an interlocutory appeal against the grant or refusal of a stay in all cases. I have only determined to return to the charge because I observe in Part III of this Bill that the Government themselves deliberately introduce an interlocutory appeal relating to the judge's decision in the course of a preparatory hearing on questions of law and admissibility of evidence.

The one issue which the noble Baroness did not address is how any distinction can be drawn between the opportunity for delaying tactics—vexatious applications for leave to appeal by defendants in relation to interlocutory appeals on issues of law or admissibility of evidence—and delaying tactics which will be available in the case of an application for leave to appeal against the refusal of a stay of execution. If the Minister intends to take the matter back for consideration, I hope that she will direct her mind and the minds of others to that issue.

Is there a distinction to be drawn? If not, is it not apparent that an interlocutory appeal on this issue has just as much to be said for it as an interlocutory appeal on the other issues which the Government themselves introduce? On that basis, I shall not divide the Committee. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Baroness Blatch moved Amendment No.107:

Page 16, line 2, leave out subsection (8).

The noble Baroness said: In moving Amendment No. 107, I shall speak also to Amendments Nos. 108 and 111.

For the purpose of speaking to these amendments, it may assist if I deal first with the amendment introducing the second new clause after Clause 24, which is the substantive amendment from which the amendments to Clause 24(8) and 24(11) arise. The purpose of these three amendments is to improve the drafting of the Bill. Their effect is otherwise neutral.

The second new clause after Clause 24 makes provision for Crown Court Rules. Under subsection (1) of the new clause Crown Court Rules may provide that, except to the extent that disclosure is required by rules under section 81 of the Police and Criminal Evidence Act 1984 (expert evidence), or by section 5(5) of this Act" — (disclosure of the details of an alibi and evidence in support of it) —the defendant need not disclose the identity of defence witnesses nor whether the accused will give evidence. Subsection (1) in effect replaces Clause 24(8). The only difference between the two provisions is that the new subsection substitutes the words, "by section 5(5) of this Act", for "by any provision of Part I of this Act".

Subsection (2) of the second new clause after Clause 24 provides that Crown Court Rules may make provision as to the minimum or maximum time that may be specified under Section 24(11) for compliance with a specific requirement contained in an order made under Clause 24. As a consequence of this amendment, the reference to Crown Court Rules in Clause 24(11) is not needed. I beg to move.

Baroness Mallalieu

I support the amendment. I am grateful that the Government listened to anxieties expressed in many quarters following the consultation document which required the defence, in relation to the earlier part of this legislation, to disclose the names and addresses of witnesses. I am glad that the spirit in which that earlier part is now drafted is to be reflected in Part III.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 108:

Page 16, line 16, leave out from ("with") to end of line 18.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 109:

Page 16, line 19, leave out ("at a preparatory hearing") and insert ("under this section").

The noble Baroness said: In moving Amendment No. 109, I shall speak also to Amendments Nos. 110, 112, 113 and 114.

The amendment inserting a new clause after Clause 24 provides that where a judge has ordered a preparatory hearing he may exercise any of the powers contained in Clause 24(4) to (7) before the preparatory hearing has started. The amendment, which has been prompted by a similar provision in Section 7(3) to (5) of the Criminal Justice Act 1987, would enable the judge to order the prosecution and the defence to prepare and serve those documents whose service could otherwise be ordered at the hearing itself. This will allow key documents to be prepared and exchanged before the start of the hearing, which may then be dealt with more expeditiously. Where a judge makes an order before the preparatory hearing, Section 24(4) to (12) will apply accordingly. The effect of this is that orders made before the hearing will be subject to the same provisions in Clause 24 as those made at the hearing. The judge would, for example, in making an order under Clause 24(6) or (7) warn the accused of the possible consequences under Clause 25 of not complying with it.

I turn to the amendment to Clause 24(12). As drafted, Clause 24(12) provides that any order or ruling made by a judge at the preparatory hearing has effect through the trial, unless it appears to the judge on application made to him that the interests of justice require him to vary or discharge it. The amendment to Clause 24(12) provides that orders made under Clause 24 rather than at the preparatory hearing shall have effect through the trial. This is consequential to the amendment enabling the judge to make certain orders before the hearing. The effect is that an order made before the preparatory hearing will have the same status at the trial as an order made at the preparatory hearing.

Clause 25 governs the consequences of a failure by either party to comply with a requirement imposed at the preparatory hearing or for departing from the case disclosed at the hearing. The amendments to Clause 25 remove the references to "preparatory hearing" and replace them with references to "in pursuance of a requirement imposed under Section 24". They are consequential to the amendment inserting the first new clause after Clause 24, which provides for the judge to make orders under Section 24(4) to (7) before the preparatory hearing. The effect is that the judge may comment, and the jury may draw inferences, from any failure by either party to comply with the requirement of an order made before, as well as at, the preparatory hearing. Similarly, the judge may comment and the jury draw inferences from any departure from the case disclosed before, as well as at, the preparatory hearing. I beg to move.

Baroness Mallalieu

These amendments seem to give greater flexibility to the procedure, and accordingly they have our support.

On Question, amendment agreed to.

Clause 24, as amended, agreed to.

Baroness Blatch moved Amendments Nos. 110 and 111:

After Clause 24, insert the following new clause—

ORDERS BEFORE PREPARATORY HEARING

(.—(1) This section applies where—

1. (a) a judge orders a preparatory hearing, and
2. (b) he decides that any order which could be made under section 24(4) to (7) at the hearing should be made before the hearing.

(2) In such a case—

1. (a) he may make any such order before the hearing (or at the hearing), and
2. (b) section 24(4) to (12) shall apply accordingly."). After Clause 24, insert the following new clause—

CROWN COURT RULES

(".—(1) Crown Court Rules may provide that except to the extent that disclosure is required—

1. (a) by rules under section 81 of the Police and Criminal Evidence Act 1984 (expert evidence), or
2. (b) by section 5(5) of this Act,

anything required to be given by an accused in pursuance of a requirement imposed under section 24 need not disclose who will give evidence.

(2) Crown Court Rules may make provision as to the minimum or maximum time that may be specified under section 24(11).")

On Question, amendments agreed to.

Clause 25 [Later stages of trial]:

Baroness Blatch moved Amendments Nos. 112 to 114:

Page 16, line 22, leave out subsection (1) and insert— ("(1) Any party may depart from the case he disclosed in pursuance of a requirement imposed under section 24.") Page 16, leave out lines 24 to 26 and insert— ("Where—

1. (a) a party departs from the case he disclosed in pursuance of a requirement imposed under section 24, or
2. (b) a party fails to comply with such a requirement,").

Page 16, line 36, leave out ("at a preparatory hearing") and insert ("in pursuance of a requirement imposed under section 24").

The noble Baroness said: I beg to move Amendments Nos. 112 to 114 en bloc.

On Question, amendments agreed to.

Baroness Blatch moved Amendment No. 115:

Page 16, line 39, leave out ("person who gave it") and insert ("accused concerned").

The noble Baroness said: Clause 25(4) precludes the disclosure of the accused's written statement provided under Clause 24(6)(a), or any other information relating to the case for the accused which is given in pursuance of a requirement imposed under Clause 24, after the jury has been sworn without the consent of the person who gave it. It is intended that it is only the consent of the accused concerned which is to be obtained under Clause 25(4). The effect of the amendment is to put this beyond doubt.

Baroness Mallalieu

I wonder whether the Minister can help me further as to this part of Clause 25. I do not understand when it is intended to operate. As I understand it, Clause 25 provides for a judge to comment upon, or to allow inferences to be drawn from, or direct the jury in relation to inferences drawn from, a departure from the case disclosed at the preparatory hearing. I appreciate that the amendment introduced by the Minister requires the consent of the accused before the jury hears of the contents of a statement that has been provided at the preparatory hearing. For the moment, I cannot envisage the circumstances in which such a situation will arise. If there has been a departure from the case that the accused has indicated during the preparatory hearing, I am not at all clear why it is that his consent will be required before the case that he has indicated is referred to in this way. There may be a very good reason for it; but I shall be grateful for a further explanation.

Baroness Blatch

As I understand it, Clause 25(4) precludes the disclosure of the accused's written statement provided under Clause 24(6)(a), or any other information relating to the case for the accused, given in pursuance of a requirement, as I said when addressing the amendment in the first place. It is my understanding that it is only the accused's consent that is to be obtained under Clause 25(4). The amendment is designed simply to put that issue beyond doubt.

Baroness Mallalieu

I understand that; but I have not understood in what circumstances this issue is likely to arise. It may be that it is not the intention that the jury should, except in particularly specialised circumstances where the accused requires it, ever see the document that is produced by the accused in relation to the preparatory hearing. If that is the intention, I understand what the amendment is intended to get at.

Baroness Blatch

One instance would be where the accused had made a statement and in the course of the trial a request was made for the statement to be used. The accused may, for one reason or another that is entirely personal to him, not wish to use part of that statement in his defence. It is only with the consent of the accused that that information can be used. It would be for the accused to determine whether or not it was made available.

Lord Ackner

I believe that this situation may arise in the situation to which the Royal Commission has referred; namely, the statement may put forward a substantive defence, such as, "I was not there" or, "It was provocation". But, at the end of the prosecution case, the accused may desire to submit that there is no case to answer. That would debar the prosecution from submitting, "You say that there is no case to answer, but you have provided a statement which accepted that there was a case to answer and have put forward a substantive defence". I believe that the Royal Commission, in a part of their report which I am trying to recall, pointed out that that might be somewhat unfair to the accused who ought always to be in a position to submit that there was no case to answer. Therefore, it has been put within the discretion of the judge to decide whether or not the statement of the accused, which the accused does not want put in, should go in. It is a rather strange situation, but I believe it very much follows what the Royal Commission has in mind.

Baroness Mallalieu

I am grateful to the noble and learned Lord and the noble Baroness.

On Question, amendment agreed to.

Clause 25, as amended, agreed to.

Clauses 26 and 27 agreed to.

Clause 28 [Restrictions on reporting]:

Baroness Blatch moved Amendment No. 116:

Page 17, line 33, after ("apply") insert (", or shall not apply to a specified extent,").

The noble Baroness said: Clause 28 sets out the proceedings which are subject to reporting restrictions, the matters which may be reported and the circumstances in which reporting restrictions may be lifted. Your Lordships will appreciate that preparatory hearings may give rise to substantive rulings on points of law and procedure which are of general importance, have substantial precedent value and which, subject to the overriding interests of justice, ought to be reported. But, as drafted, Clause 28 only provides for the judge to make an order to lift reporting restrictions in their totality. In many cases judges would be unlikely to make such an order as to do so could lead to the reporting of matters which might be prejudicial to the trial. The amendment to Clause 28 would address this difficulty by enabling the judge to make an order to lift reporting restrictions to a specified extent. I beg to move.

7 p.m.

Baroness Mallalieu

These amendments seem to give greater flexibility and to be entirely desirable. They have our support.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 117 and 118:

Page 17, line 37, after ("apply") insert (", or shall not apply to a specified extent,"). Page 18, line 4, after ("apply") insert (", or shall not apply to a specified extent,").

On Question, amendments agreed to.

On Question, Whether Clause 28, as amended, shall be agreed to?

Viscount Colville of Culross

This may be a very silly question to ask the noble Baroness. Why are we referring to Great Britain if the Act will not apply to Scotland?

Baroness Blatch

I shall take that question away and answer in detail at the end of this session. The answer is that I do not know.

Clause 28, as amended, agreed to.

Clause 29 [Offences in connection with reporting]:

Baroness Blatch moved Amendment No. 119:

Page 19, line 26, at end insert ("in England and Wales").

The noble Baroness said: In speaking to the amendments to Clause 29, it may assist the Committee if I deal first with the amendment to Clause 47(1), which is the substantive amendment which gives rise to the amendment to Clause 29. As drafted, Clause 47 provides that no part of the Bill will extend to Scotland. The amendment to Clause 47(1) would provide for the Bill to be extended to Scotland only in respect of the reporting restrictions under Clause 28 and the corresponding offence provision in Clause 29. This would provide a safeguard against a reporting in Scotland of proceedings in respect of a preparatory hearing or an application for leave to appeal or an appeal in relation to such a hearing, which may be seen by potential English jurors. It would also be consistent with the reporting restrictions which apply by virtue of Section 11 of the Criminal Justice Act 1987 in respect of preparatory hearings in cases of serious or complex fraud.

Clause 29 creates an offence of contravening the reporting restrictions in Clause 28. Clause 29(3) provides that proceedings for an offence under Clause 29 shall not be instituted otherwise than by or with the consent of the Attorney-General. Given that the amendment to Clause 47(1) extends Clauses 28 and 29 to Scotland, Clause 29(3) should be amended so that it specifies that the Attorney-General's consent to institute proceedings under Clause 29 only extends to England and Wales. This takes account of the position in Scotland, where it is the Lord Advocate who must consent before proceedings for an offence may be instituted. This latter requirement is at large and does not therefore need express provision in the Bill. I beg to move.

On Question, amendment agreed to.

Clause 29, as amended, agreed to.

Baroness Blatch moved Amendment No.120:

Before Clause 30, insert the following new clause—

MEANING OF PRE-TRIAL HEARING

(",—(1) For the purposes of this Part a pre-trial hearing is a hearing which relates to a trial on indictment and which takes place—

1. (a) after the proceedings for the trial have been transferred to the Crown Court, and
2. (b) before the start of the trial.

(2) For the purposes of this section the start of a trial on indictment occurs when a jury is sworn to consider the issue of guilt or fitness to plead or, if the court accepts a plea of guilty before a jury is sworn, when that plea is accepted; but this is subject to section 8 of the Criminal Justice Act 1987 and section 23 of this Act (preparatory hearings).").

The noble Baroness said: The new clause before Clause 30 defines a pre-trial hearing and the start of a trial on indictment for the purposes of Part IV. Your Lordships will notice that the amendment draws directly on the wording in Clause 30(3) and (4) which as a consequence are no longer needed. The amendments improve the drafting of the Bill by applying the definition to the whole of Part IV. Their effect is otherwise neutral. I beg to move.

On Question, amendment agreed to.

Clause 30 [Power to make rulings]:

Baroness Blatch moved Amendment No.121:

Page 19, line 37, at end insert—

(" (2A) Subject to subsection (2B), a ruling made under this section has binding effect from the time it is made until the case against the accused or, if there is more than one, against each of them is disposed of; and the case against an accused is disposed of if—

1. (a) he is acquitted or convicted, or
2. (b) the prosecutor decides not to proceed with the case against him.

(2B) A judge may discharge or vary (or further vary) a ruling made under this section if it appears to him that it is in the interests of justice to do so; and a judge may act under this subsection—

1. (a) on an application by a party to the case, or
2. (b) of the judge's own motion.

(2C) No application may be made under subsection (2B)(a) unless there has been a material change of circumstances since the ruling was made or, if a previous application has been made, since the application (or last application) was made.

(2D) The judge referred to in subsection (2B) need not be the judge who made the ruling or, if it has been varied, the judge (or any of the judges) who varied it.

(2E) For the purposes of this section the prosecutor is any person acting as prosecutor, whether an individual or a body.").

The noble Baroness said: In order to explain the purpose of this amendment to Clause 30, I should first draw your Lordships' attention to Clause 31. Clause 31(1) provides that a ruling made by the judge under Clause 30 is not binding on the parties during the trial unless the judge orders that it is. This leaves open the possibility that a judge may make a ruling under Clause 30 which is not binding. It is difficult to foresee why a judge would want to make a ruling on law or evidence which the parties were free to disregard or why any of the parties would want to apply for such a non-binding ruling. The amendment to Clause 30 will rectify this irregularity. A ruling made under Clause 30 would automatically be binding from the time it is made until the case against the accused is disposed of, unless, of course, it is discharged or varied in accordance with the new subsection (2B) in Clause 30.

In addition, subsections (3), (4), (5) and (7) of Clause 31 have been incorporated into an expanded Clause 30. This improves the drafting of the Bill. Subsection (6) of Clause 31 is no longer needed in the light of the new clause before Clause 30 which, for the purposes of Part IV, sets out the meaning of a pre-trial hearing. As a consequence of these changes, Clause 31 is redundant and I have therefore given notice of my intention to oppose the Motion that it stand part of the Bill. I beg to move.

Lord McIntosh of Haringey

I suppose we do not object to the suggestion that any rulings of the judge in a pre-trial hearing should be non-binding. It seems to make sense, although I am bound to say that for 2000 years Popes have found it useful to distinguish between statements in which they are fallible and statements in which they are infallible. I should have thought that one ought to pay attention to 2000 years of history. As the amendment reads, it sounds all right.

However, I have to say that these amendments to Clause 30 and the abandonment of Clause 31 in favour of a new clause make great difficulties for those of us who would wish seriously to consider and amend the Bill. I know that the Minister did her best to get amendments to us as soon as she could. However, of the four major group of amendments that she has put down, three of them came to me in three successive letters on 14th December. That makes our life very difficult. In this sense I echo the words of the noble Lord, Lord Harris of Greenwich, when he said that we shall have to treat the Report stage of this part of the Bill as a Committee stage and that we shall have to have time to do it. There will have to be negotiations between the usual channels about how we find the time to do it. I honestly do not know whether these complicated and far-ranging amendments are right. I have to express my sense of dissatisfaction with my own knowledge in my reception of the amendments.

Lord Harris of Greenwich

One does not want to continue this discussion at any length because we discussed some aspects of the matter a little time ago. To complete the point I made earlier, and with regard to the point which has just been made by the noble Lord, Lord McIntosh, we now expect additional time for the Report stage of the Bill. Indeed, for the reasons I indicated earlier, we would be failing in our duty if we were not to have additional time.

Following what the noble Lord, Lord McIntosh of Haringey, has just said, if substantial and other amendments are to be put down at the Report stage, I hope that those amendments will be put down a significant period before the beginning of the Report stage; otherwise we shall have a repeat of the problems we face at the moment. The noble Baroness does her best to assist the Committee, but it is most important that one should register this point now so that she is aware of our serious dissatisfaction about the way in which this whole matter has been dealt with.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 122:

Page 19, line 38, leave out subsections (3) and (4).

On Question, amendment agreed to.

Clause 30, as amended, agreed to.

Baroness Blatch moved Amendment No. 123:

After Clause 30, insert the following new clause—

RESTRICTIONS ON REPORTING(".—

(1) Except as provided by this section—

1. (a) no written report of matters falling within subsection (2) shall be published in Great Britain;
2. (b) no report of matters falling within subsection (2) shall be included in a relevant programme for reception in Great Britain.

(2) The following matters fall within this subsection—

1. (a) a ruling made under section 30;
2. (b) proceedings on an application for a ruling to be made under section 30;
3. (c) an order that a ruling made under section 30 be discharged or varied or further varied;
4. (d) proceedings on an application for a ruling made under section 30 to be discharged or varied or further varied.

(3) The judge dealing with any matter falling within subsection (2) may order that subsection (1) shall not apply, or shall not apply to a specified extent, to a report of the matter.

(4) Where there is only one accused and he objects to the making of an order under subsection (3) the judge shall make the order if (and only if) satisfied after hearing the representations of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objection or representations.

(5) Where there are two or more accused and one or more of them objects to the making of an order under subsection (3) the judge shall make the order if (and only if) satisfied after hearing the representations of each of the accused that it is in the interests of justice to do so; and if the order is made it shall not apply to the extent that a report deals with any such objection or representations.

(6) Subsection (1) does not apply to—

1. (a) the publication of a report of matters, or
2. (b) the inclusion in a relevant programme of a report of matters,

at the conclusion of the trial of the accused or of the last of the accused to be tried.

(7) Nothing in this section affects any prohibition or restriction imposed by virtue of any other enactment on a publication or on matter included in a programme.

(8) In this section—

1. (a) "publish", in relation to a report, means publish the report, either by itself or as part of a newspaper or periodical, for distribution to the public;
2. (b) expressions cognate with "publish" shall be construed accordingly;
3. (c) "relevant programme" means a programme included in a programme service, within the meaning of the Broadcasting Act 1990.").

The noble Baroness said: It is envisaged that pre-trial hearings at which rulings under Clause 30 may be made will normally be held in open court. This gives rise to the need for reporting restrictions to ensure that matters which might be prejudicial to the trial are not reported. The proposed new clauses after Clause 30 provide for this. They set out the proceedings which are subject to reporting restrictions, the circumstances in which restrictions may be lifted, and create an offence of contravening the restrictions.

The proceedings under Clause 30 which would be subject to reporting restrictions include a ruling made by the judge, proceedings on an application for a ruling, an order that a ruling be discharged or varied, and proceedings on an application for a ruling to be discharged or varied or further varied.

The judge dealing with any of the above matters would be able to make an order to lift reporting restrictions in their entirety or to a specified extent. In exercising his discretion to make an order to lift reporting restrictions, the judge must have regard to the representations of the accused, or each of the accused, and be satisfied that to make such an order would be in the interests of justice.

The amendment contains provision for the restrictions on reporting to cease at the conclusion of the trial of the accused or, where there is more than one accused, the last of the accused to be tried.

The second new clause after Clause 30 creates an offence of contravening the reporting restrictions and lists those whose contravention of the restrictions would constitute an offence. It provides that the offence is to be triable summarily only, with a maximum fine of level 5 on the standard scale. The consent of the Attorney-General will be required before proceedings can be brought in England and Wales for an offence under the new clause. The aim is to have consistency and to have the same test applied right across the board. I beg to move.

Viscount Colville of Culross

I wonder whether the Minister can answer one point. As I understand it, the judge can say, under subsection (3), that matters may be reported or that they may be reported to a specified extent. Is the specification to be that of the judge? What I have not followed—it is difficult to follow in the Bill because it has been widely changed—is the subordinate legislation aspect. When I see something which says "specified", I tend to think that it is subordinate legislation. I think that this may not be, but it may be wiser not to use the word "specified" because that word normally inclines one to think that there is some statutory instrument which one must consider. If the Minister is simply saying that thejudge may say to what extent restrictions may be lifted or removed, that is fine, but I do not think that "specified" is a very good word to use.

Baroness Blatch

It is at the discretion of the judge. "Specified" means that we have moved from a blanket ban on reporting to allowing the judge to determine reporting restrictions on part of the proceedings and to lift the restrictions on other parts, as specified by him.

Lord Williams of Mostyn

I wonder whether the Minister can assist us on one matter of detail. I appreciate that I have not given the noble Baroness notice. That is because the point arose as I pondered her explanation. I know that this is a cause of concern for some newspapers. Is it envisaged that when applications of any sort in respect of publicity for preparatory hearings are made, members of the press should have a right of audience, a locus standi, to address the judge so that their views may be taken into account?

Baroness Blatch

I can only imagine—I shall have to come back to the noble Lord with more detail—that in practice when a judge is taking a view on whether restrictions should be lifted or pressed, it would be for somebody to give reasons why that should not be the case and for the judge to make a judgment about it. I can only imagine that that would happen in court. If I am wrong, I shall come back to the noble Lord on that point.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 124:

After Clause 30, insert the following new clause—

OFFENCES IN CONNECTION WITH REPORTING

(".—(1) If a report is published or included in a relevant programme in contravention of section (Restrictions on reporting) each of the following persons is guilty of an offence—

1. (a) in the case of a publication of a written report as part of a newspaper or periodical, any proprietor, editor or publisher of the newspaper or periodical;
2. (b) in the case of a publication of a written report otherwise than as part of a newspaper or periodical, the person who publishes it;
3. (c) in the case of the inclusion of a report in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper.

(2) A person guilty of an offence under this section is liable on summary conviction to a fine of an amount not exceeding level 5 on the standard scale.

(3) Proceedings for an offence under this section shall not be instituted in England and Wales otherwise than by or with the consent of the Attorney General.

(4) Subsection (8) of section (Restrictions on reporting) applies for the purposes of this section as it applies for the purposes of that.").

On Question, amendment agreed to.

Clause 31 negatived.

7.15 p.m.

Clause 32 [Application of this Part]:

Baroness Blatchmoved Amendment No. 125:

Page 20, line 31, leave out ("offences alleged to be committed") and insert ("pre-trial hearings beginning").

The noble Baroness said: This amendment to Clause 32 is a technical amendment concerned with the application of Part IV. As drafted, Clause 32(1) provides for Part IV to be applied to offences alleged to be committed on or after such day as is appointed by the Secretary of State. This would create difficulties if an indictment contained several counts, some relating to offences committed prior to the appointed day and others relating to later offences. The amendment addresses this by providing for Part IV to be applied to pre-trial hearings beginning on or after the day appointed for the purposes of Clause 32.

As a consequence of the amendment to Clause 32(1), an amendment is needed to Clause 46. As drafted, Clause 46(1) makes provision about the time when an alleged offence has been committed for the purpose of certain provisions in the Bill, including Clause 32(1). As a consequence of the amendment to the commencement provision in Clause 32(1), the reference to Section "32(1)" should be removed from Clause 46(1).

In moving Amendment No. 125, I have spoken also to Amendment No. 158. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 126:

Page 20, line 35, leave out ("made by statutory instrument").

On Question, amendment agreed to.

Clause 32, as amended, agreed to.

Baroness Blatch moved Amendment No. 127:

Before Clause 33, insert the following new clause—

TRANSFER FOR TRIAL

(".Schedule (Transfer for trial) to this Act (which contains provisions about transfer to the Crown Court for trial) shall have effect.")

The noble Baroness said: In moving Amendment No. 127, I shall speak to all the government amendments in this group. I anticipate that noble Lords opposite will speak to the opposition amendment which is, I believe, Amendment No. 135, so I shall speak to Amendment Nos. 127, 161 and 172.

The first new clause before Clause 33 brings into effect the new provisions contained in the schedule (Transfer for trial) to the Bill which amend the transfer for trial provisions which will be inserted in the Magistrates' Courts Act 1980 by the Criminal Justice and Public Order Act 1994.

The amendments contained in paragraphs 1 to 9 of the schedule are designed to improve the operational effectiveness of the transfer procedure and to deal with a number of points which were raised on the transfer provisions during the consultation process on the associated draft rules of court. The majority of these are of a straightforward technical nature: their effect will be to make the procedure more workable and efficient.

Interim solutions to these problems were identified when the draft rules of court were prepared. The Government have, however, decided that the more sensible course would be to defer implementation until it has been possible to amend the primary legislation. Once implemented, the transfer for trial procedure will replace committal hearings in magistrates' courts. It will remove the requirement for lengthy committal proceedings, ensuring that valuable witnesses are not required to give evidence twice and improving the efficiency of pre-trial case management in the magistrates' courts.

The amendment to Schedule 2 makes two minor repeals as a consequence of the new schedule. I commend them to the House.

The new clause after Clause 37, proposed by the noble Lords, Lord McIntosh of Haringey and Lord Williams of Mostyn, would repeal the transfer provisions in. favour of reforming the present committal system. I wonder whether I should stop at this point —

Lord McIntosh of Haringey

No.

Baroness Blatch

In that case, I shall continue to speak to that amendment. The amendment envisages retaining the present system in its current hearing-based form, but limiting the evidence which may be considered at a full committal hearing to written evidence only, thereby sparing witnesses the potential ordeal of being cross-examined. In uncontested cases, it would also give magistrates the ability to commit an accused for Crown Court trial in his absence, at the request of his legal representative.

As the Committee will be aware, there has been widespread agreement that changes should be made to the present committal proceedings which act as a filter to stop weak cases from clogging up the system in the Crown Court. Reform was recommended in several reports, most recently the report of the Royal Commission on Criminal Justice. Over 90 per cent. of committals are a "paper" exercise, taking up valuable court time and with no consideration of the evidence. The rest are very often little more than a dry-run for the Crown Court trial, used to test the evidence of the prosecution witnesses.

Prior to the introduction of the transfer provisions in last year's Criminal Justice and Public Order Act, considerable thought was given as to how reform of the committal system might best be achieved. As the Committee may recall, the arguments were exposed during the passage of that Act. I do not propose to set them out again in detail, but will confine my remarks to the specific points raised by the amendment.

Although the amendment achieves one of the main objectives of transfer for trial—the removal of the requirement on witnesses to give evidence twice, once at committal and again at Crown Court trial—it fails to offer the other benefits of the transfer system. Transfer will greatly improve the efficiency of the courts by removing the need for court-based hearings, and by introducing the discipline of time limits thereby giving the court greater control of the pre-trial process.

The amendment proposes that, where the defence does not agree that there is a case to answer, a hearing should be held for the purposes of considering written evidence only. That is similar to what is proposed under the transfer procedure save that, under that procedure, it is envisaged that hearings involving prosecution and defence representatives will be the exception—most cases will be dealt with entirely on paper. Under the amendment there would be a hearing in every such case attended by both the parties. The noble Lords' proposal would not therefore deliver the savings which we expect to flow from the transfer procedure. Nor would the process benefit from the discipline of time limits which comes with the transfer procedure.

In addition to improving the efficiency of pre-trial procedure, it is also anticipated that transfer will lead to considerable efficiency savings in court costs and legal aid, as well as in prosecution costs, prisoner escort services and probation service costs. Under the proposed amendment, any savings are likely to be marginal.

Although the noble Lords' amendment may seem inviting to some in that it appears on the face of it not to involve wide changes to existing legislation and practice, it does not tackle the inherent problems which lie at the heart of the existing committal system. It also leaves unanswered many detailed questions about the procedure which should apply for the submission and consideration of written evidence under their proposal. The more fundamental changes to the system envisaged by the transfer procedure have been developed after much debate and much consultation with practitioners and following the recommendations of the Royal Commission on Criminal Justice.

The Bill provides the opportunity to refine that procedure further. The Government's proposed amendments to the transfer provisions contained in the schedule to the Bill will ensure that the new system provides a genuinely effective and efficient alternative to the committal system. For the reasons that I have given, I hope that on reconsideration the noble Lords will not move their amendment in favour of the Government's amendments. I leave the matter for their consideration. I beg to move.

Lord McIntosh of Haringey

In what she has just said, the Minister acknowledged that this is an extremely difficult problem, and one to which it is not easy to find an answer which will satisfy everyone. That is evidenced by the fact that the Government and the Home Office have been trying for a long time to find a formula which will deal with the problems of repetition, delay, and cost, and the imposition upon prosecution and defence which is involved in committal proceedings, and yet solve the problem of how to transfer trials from the magistrates' courts to the Crown Court without risking letting the guilty go free, which is one of our prime concerns in this matter.

I shall not press Amendment No. 135. I have listened carefully to what the Minister said about it. She acknowledged that it achieves some of the main purposes of the Government in seeking amendment to legislation. But it would not be surprising if there were differences between us since, after all, schemes to reform the transfer proceedings have been announced by the Government no fewer than three times, and delayed three times, because they could not be sure that they had it right. I suppose that we should be grateful that they now propose to put the provision into primary legislation.

We all have the same objectives in this: we all want to ensure that there is no unnecessary possibility of guilty people escaping justice, and we are all looking to avoid unnecessary delays. We do not want to have people released without trial, not because they are not guilty but because of the inflexibility of the rules or because the time limits cannot be met. So we are agreed that the existing transfer system has to be abandoned and replaced by something better. However, I am not yet convinced that the Government's proposals achieve that. As I understand it, the prosecution will still have to serve notice on the defence within a statutory time limit. The reality is that the prosecution will have to do that or make up its minds to do that very much before the end of the time limit. That could lead to the CPS abandoning cases.

I am not going to use the opportunity, as I might, to expand upon the proportion of cases abandoned by the CPS. There are all sorts of very good reasons why the CPS should abandon cases—because of the probability of conviction and in the public interest. It should not be abandoning cases because of time limits or procedural difficulties. I expect that even with the amendments we will still have increased delays, an enforced wait, increased costs, and a degree of inflexibility which is unacceptable. We shall still have cases which are, to some extent, in limbo.

I do not say that our Amendment No. 135 solves all the problems, and I shall not be moving it when the time comes. The Minister will appreciate how difficult it is, when we have these amendments before Committee rather than in the original Bill, to consider as rationally as we would like the complicated issues which the Government have been considering for many months. So we shall have to hold our fire and, if necessary, come back on Report on the whole range of issues raised by the amendments.

Viscount Colville of Culross

A number of us have been waiting for some time for the transfer provisions in the 1994 Act to be brought in. It was going to be July; then it was going to be September; then it was going to be next January; now it will not happen at all.

To help those of us who are trying to run these affairs, perhaps the Minister could give some forecast as to when the provisions are likely to come in. A good deal of preparation will be needed by the magistrates and the Crown Courts to be ready for this procedure. A certain amount of training will be needed. The magistrates' courts will have to know how to transfer these cases and who has to be told. There is an automatic requirement to tell the defendant or his solicitor. The defendant will probably not be there when the pleas and directions hearing takes place. All those things have to be set up.

The other thing with which the Minister may be able to help me, although I would not altogether blame her if she cannot do so today, is that at some time—it would be useful to know when—the custody limits will start to run, because that is of the greatest possible importance in dealing with the transferred cases when they come to the Crown Court. Plainly one must give priority to people who are in custody and one needs to know when the time limits start. That was going to be put in regulations under the 1994 Act, but since that whole matter has been abandoned we are to have this in primary legislation. I have looked at the new schedule to see whether I could find the provision. I cannot, but I expect that it is there and that it is my own fault for being unable to spot it. I shall be grateful if the noble Baroness will at some time assuage my fears.

Baroness Blatch

The original transfer provisions will not happen at all. As regards the timing of the provisions now before the Committee, the hope is that they will come into force as soon as practicable after Royal Assent.

On Question, amendment agreed to.

7.30 p.m.

Baroness Blatch moved Amendment No. 128:

Before Clause 33, insert the following new clause—

PROVISIONS CONNECTED WITH TRANSFER FOR TRIAL

("—(1) Section 25 of the Magistrates' Courts Act 1980 (power to change from or to summary trial) shall be amended as mentioned in subsections (2) and (3).

(2) In subsection (3) (power, on application for dismissal, to try summarily) in paragraph (b)(i) after the word "proceed" there shall be inserted "(subject to subsection (3A) below)".

(3) In subsection (3A) (Attorney General's consent required)—

1. (a) after "(3)" there shall be inserted "(a) or (b)(i)", and
2. (b) for the words "that power" there shall be substituted "the power concerned".

(4) Section 28 of the Magistrates' Courts Act 1980 (using evidence in summary trial) shall be omitted.

(5) This section does not apply in relation to proceedings in which a magistrates' court has begun to inquire into a case as examining justices before the day appointed under section 172 of the Criminal Justice and Public Order Act 1994 for the commencement of section 44 of that Act (transfer for trial).").

The noble Baroness said: This clause contains two minor amendments to the Magistrates' Courts Act 1980 connected with transfer for trial. First, the clause remedies a small inconsistency in subsection (3)(b) of Section 25 of the 1980 Act. As currently drafted, this provides that the consent of a law officer (where the prosecution is being carried on by him) is required where the court decides, on consideration of an application for dismissal, to proceed to summary trial in the presence of the accused but not in his absence. The purpose of this technical amendment is to provide that the law officer's consent should be required whether or not the accused is present.

Secondly, it repeals Section 28 of the 1980 Act, which would otherwise provide that any oral evidence given during the course of an application for dismissal may be used in a summary trial in cases where the court has changed from application for dismissal to summary trial. Under the transfer procedure no witnesses are called to give oral evidence. Oral representations have no place in summary trial. Section 28 cannot continue to have any meaningful application. The amendment to Schedule 2 makes the two repeals necessary as a consequence of the second of the two amendments in the clause. I beg to move.

On Question, amendment agreed to.

Clause 33 [Non-appearance of accused: issue of warrant]:

Baroness Blatch moved Amendment No. 129:

Page 21, line 18, leave out ("made by statutory instrument")

On Question, amendment agreed to.

Clause 33, as amended, agreed to.

Clause 34 [Either way offences: accused's intention as to plea]:

[Amendment No. 130 not moved.]

Baroness Blatch moved Amendment No. 131:

Page 23, line 44, leave out ("made by statutory instrument")

On Question, amendment agreed to.

Clause 34, as amended, agreed to.

Clause 35 [Enforcement of payment of fines]:

Baroness Blatch moved Amendment No. 132:

Page 24, line 8, leave out ("made by statutory instrument")

On Question, amendment agreed to.

Clause 35, as amended, agreed to.

Clause 36 [Remand]:

Baroness Blatch moved Amendment No. 133:

Page 24, line 21, leave out ("made by statutory instrument")

On Question, amendment agreed to.

Clause 36, as amended, agreed to.

Clause 37 [Attachment of earnings]:

Baroness Blatch moved Amendment No. 134:

Page 25, line 5, leave out ("made by statutory instrument")

On Question, amendment agreed to.

Clause 37, as amended, agreed to.

[Amendment No. 135 not moved.]

Clause 38 [Acquittals tainted by intimidation etc.]:

Lord Ackner moved Amendment No. 136:

Page 25, line 11, after first ("or) insert ("perjury or")

The noble and learned Lord said: I apologise to the Committee for breaking the flow but I wish to raise a short matter that I mentioned on Second Reading. Members of the Committee will recall that Clause 38 is appropriately headed "Tainted acquittals". It deals with: a person [who] has been acquitted of an offence, and … a person [who] has been convicted of an administration of justice offence involving interference with or intimidation of a juror or a witness (or potential witness) in any proceedings which led to the acquittal".

It goes on to provide that a new trial can be ordered where that is established to the satisfaction of the court.

On Second Reading I suggested that just in the same way as provisions dealing with acquittals tainted by the accused's interference with jury or witnesses, by parity of reasoning there should be a similar provision for acquittals obtained by the accused's own perjury. That struck a sympathetic note with the noble Baroness who said that the Government would consider whether any other offences relating to interference with the administration of justice should be included in Clause 38 and that the matter would return to the Committee.

The Minister's Amendment No. 140, which is grouped with my amendment, provides that page 25, line 33, should have inserted at the end: (c) an offence of aiding, abetting, counselling, procuring, suborning or Inciting another person to commit an offence under section 1 of the Perjury Act 1911).

I welcome that inclusion, but I am a little at a loss to understand why the person who himself commits the perjury should not have the consequence of that tainted acquittal being set aside. I beg to move.

Baroness Blatch

The aim of Clause 38, reflecting the Royal Commission's recommendation, is to tackle the mischief of acquittals achieved as a result of interference with or intimidation of jurors or witnesses. As such, the clause's targets are criminals who use money, threats or violence to exert pressure on witnesses or jurors in order to evade justice. The Government recognise that the provisions are novel but we, like the Royal Commission, believe that the particular threat posed by interference and intimidation justifies retrials in these circumstances. As currently drafted, Clause 38 provides for acquittals to be quashed where there has been a conviction for an administration of justice offence in the proceedings leading to the acquittal. These offences are defined as perverting the course of justice and a new offence of witness intimidation contained in the Criminal Justice and Public Order Act 1994.

One other obvious means by which an acquittal might be obtained by means of interference or intimidation is by procuring or suborning another person to commit perjury.

The noble and learned Lord's amendment would extend the provisions to acquittals obtained as a result of perjury whether or not there had been interference or intimidation. As such, it would raise much wider questions about the application of the procedures. It would, for example, increase substantially the potential scope for acquittals to become the subject of further investigation. No doubt there are many cases in which it might be possible to secure a conviction for perjury because of some deliberate inaccuracy in the evidence given by a defendant or perhaps a witness. Such convictions might be sought more frequently if they could provide a trigger for a retrial.

When a person has been acquitted, there should be a retrial only when there are firm grounds for believing that justice has been perverted and where it is held to be in the interests of justice to pursue such a course of action. We need to be extremely cautious about extending more widely the effects of the provisions at this stage.

On the other hand, it is clearly right that the provisions should extend to a situation where a witness is intimidated or bullied into committing perjury. That is what the government amendment achieves. In the light of those objections, I hope that the noble and learned Lord will withdraw his amendment in favour of that tabled by the Government which focuses only on those cases where a witness is intimidated or bullied into committing perjury. I commend the government amendment to the Committee.

Lord Williams of Mostyn

I am ashamed to say that I have an open mind about this matter. But why should it be an offence to aid, abet, counsel, procure or incite another person to commit perjury and thereby achieve a tainted acquittal but not an offence to commit the perjury yourself and thereby achieve a tainted acquittal?

Baroness Blatch

The argument that I was trying to put was that that would provide an excuse for holding investigations and then a possible consideration of a retrial.

This is a matter of balance as regards the greater good and the rights of justice and the double jeopardy aspect of widening the scope of these provisions. If there is a breach as set out in the government amendment, it is right that that should form grounds for a retrial. The amendment moved by the noble and learned Lord, Lord Ackner, widens the scope of that and we believe that it widens it too much. That keeps alive the possibility of a retrial and thereby gives rise to further investigation. That may then happen too frequently and even give rise to vexatious attempts to have a person retried when there is no good case for it.

Lord Williams of Mostyn

That does not deal with my question. If I have a brother, which I do, and I encourage him to perjure himself and obtain my tainted acquittal, the scheme comes into effect. But if I confine my efforts to perjuring myself, the scheme does not come into effect. I do not detect any rational basis for that distinction.

Baroness Blatch

We have said that if there is intimidation of witnesses and jurors and subsequently it is found that a person is guilty of having caused that, then there is a case for at least considering a retrial, especially if the conviction is seen to be material to the acquittal of a person who might otherwise have been found guilty.

The noble Lord is right in the point that he makes. But we are saying that that would give rise to the possibility of many, many more retrials. We believe that the amendment in the name of the noble and learned Lord, Lord Ackner, extends the double jeopardy for someone who goes free. We believe that the provision should be kept narrower. In speaking to the amendment, I said that we should be extremely cautious about widening the scope of this provision. This is a very radical and new move. I believe that it is wise for us to take this a step at a time.

Viscount Colville of Culross

In Clause 38(1)(b), I assume that the person convicted of an administration of justice offence will include the defendant. Therefore, a double jeopardy is already built into the Bill in that respect. It is the degree to which we extend that which is the subject of this debate. Is that correct?

Baroness Blatch

That is the point that I am making. The government amendment introduces double jeopardy in any event. We are simply saying that it is incautious to extend that at this stage. This is a radical move. For that reason, we believe that the scope is sufficiently narrow. The justification for not proceeding in simple cases of perjury is that it could be difficult—and this is another practical point—to draw the line between perjury and a well-argued but untruthful defence.

7.45 p.m.

Lord Ackner

Before the noble Baroness sits down, will she confirm that in Clause 38(1)(b) "a person" includes the acquitted person in Clause 38(1)(a)?

Baroness Blatch

I believe that the answer is yes and I am being confirmed in that view. "A person" in Clause 38(1)(b) could be the acquitted person.

Lord Ackner

I ask that question because it emphasises the illogicality of the point that I was making in opening and which the noble Viscount also made when he addressed the Committee. If we include in Clause 38(1)(b) a person who has been acquitted, then by parity of reasoning, the person who has committed the perjury should equally be included.

If that is the answer, I am surprised—and one must not overdo the surprise because half a loaf is better than nothing—that Amendment No. 140 brings in perjury. I had expected to be told, "You are widening it too far if you are involving perjury". Once perjury is brought in, it seems to me to be astonishing that one leaves out, as a tainted acquittal, the acquittal that has been obtained by the acquitted person's perjury but that it is brought in where that person has sought to aid, abet, counsel or procure somebody else to achieve the tainted acquittal. I should have thought that it is worse for a person's own perjury to bring about the acquittal.

This seems to me to be a matter which needs further thought. I should like to read the discussion on this amendment in Hansard. In so doing, of course I accept the wisdom of the noble Baroness's Amendment No. 140. On that basis, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Airedale moved Amendment No. 137:

Page 25, line 16, leave out ("there is a real possibility that").

The noble Lord said: These are rather more straightforward matters. With this amendment perhaps we may also consider Amendment No. 139.

Paragraph (a) which we are discussing begins: there is a real possibility".

What does "real" add to "possibility"? Can you have an unreal possibility? What would that mean? Would it mean anything at all? If the two amendments in my name were incorporated, subsection (2) would read: Where it appears to the court …that, but for the interference and intimidation, the accused person might not have been acquitted, the court shall so certify".

That puts the matter in exactly the same terms but in fewer words.

The Minister will remember that on Second Reading the noble Lord, Lord Renton, said 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 feel very sure that the noble Lord, Lord Renton, would approve of my two amendments. I beg to move.

Lord Ackner

I should have thought that it was accepted that there is a distinction between a real possibility and a bare possibility. Surely that is the distinction which is being made in the drafting.

Lord Monson

Although my noble and learned friend may well be right, I am sorry to say that in my view we are indebted, once again, to the noble Lord, Lord Airedale, for his customary zeal for the purity and rhythm of the English language. Whenever his promptings are acted upon—as they quite often are—they result in Acts of Parliament which are somewhat more pleasurable to read as well as being—most importantly—more readily comprehensible to the layman. Therefore, one hopes that the amendments may prove acceptable to the Government.

Baroness Blatch

The aim of the provisions of the Bill is to tackle the mischief of acquittals brought about by interference with or intimidation of jurors or witnesses. The Government believe that the threat posed by such actions justifies being able to seek a retrial of someone who has been acquitted as a result of such interference or intimidation. However, it is clearly important that there should be a sound basis for seeking a retrial in such circumstances.

The clause at present specifies that where a conviction for an offence involving interference or intimidation has taken place, the court may certify that, there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted".

If such a certificate is granted, an application may be made to the High Court for the tainted acquittal to be quashed. The High Court needs to be satisfied that it appears "likely" that, but for the interference or intimidation, the person would not have been acquitted.

The amendment of the noble Lord, Lord Airedale, introduces a lower test for triggering applications to the High Court. If the court needs only to satisfy itself that an acquittal "might" not have arisen, there is likely to be a larger number of cases coming before the High Court. That will increase the burden on the criminal justice system which the application of a more rigorous test at the outset would help to avoid.

The present drafting of the clause seeks to ensure that the test which the lower court applies strikes the right balance between identifying as quickly as possible those cases where there is a real possibility of a retrial, and not interfering with those cases which are unlikely to justify invoking the new procedure. We remain of the view that the test for the lower court should remain that there is a real possibility that, but for the interference or intimidation, the acquitted person would not have been acquitted. In the light of those arguments, I hope that the noble Lord will feel able to withdraw his amendment.

I should like to make one final point. There must be robust grounds for applying or subjecting a person to a retrial. Therefore, simply looking for reasons that might give rise to that process is just too low a test.

Viscount Colville of Culross

I suppose that, nowadays, I ought to declare an interest in the matter because there is every possibility that I would, in fact, be the lower court. I normally agree with the noble Lord, Lord Airedale, on his drafting of amendments and he has made a good point on this occasion. However, in such comparatively uncharted territory —which is what it is —I should like, as a lower court, all the signposts that I can get in order to come to the right conclusion arid certify accordingly. If the words remain as they are at present, I believe that they give me more signposts than those of the noble Lord, Lord Airedale. I therefore urge that the Bill be left as it is.

Lord Monson

Before the Minister sits down, can she say whether she is in a position to tell us whether the phrase "a real possibility" appears in any existing Act of Parliament?

Baroness Blatch

No, I am not able to say. However, when courts are making judgments and having to consider whether there is a real possibility that such action might have led to an acquittal, I believe that the present wording provides a more severe test than the one suggested by the noble Lord, Lord Airedale. For the reasons just outlined by the noble Viscount, I believe that the present words are more acceptable.

Lord Airedale

I wish that we heard more frequently from the noble Viscount, Lord Colville. The Minister always produces a full answer; indeed, she does not believe in leaving stones unturned. I must read the Hansard report of her response. In any event, I would not want to divide the Committee on a drafting matter.

Baroness Blatch

I am grateful for what the noble Lord said. Of course we too will read the Hansard report of the proceedings. I should add that I have been prompted to say that the wording appears in the Criminal Appeal Bill 1995.

Lord Airedale

In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 138 and 139 not moved.]

Baroness Blatch moved Amendments Nos. 140 and 141:

Page 25, line 33, at end insert—

("(c) an offence of aiding, abetting, counselling, procuring, suborning or inciting another person to commit an offence under section 1 of the Perjury Act 1911.")

Page 25, line 38, leave out ("made by statutory instrument")

On Question, amendments agreed to.

Clause 38, as amended, agreed to.

Clauses 39 to 41 agreed to.

Clause 42 [Restriction on reporting of certain assertions]:

Baroness Blatch moved Amendment No. 142:

Page 27, line 19, leave out from ("where") to end of line 29 and insert ("a person has been convicted of an offence and a speech in mitigation is made by him or on his behalf before—

1. (a) a court determining what sentence should be passed on him in respect of the offence, or
2. (b)a magistrates' court determining whether he should be committed to the Crown Court for sentence.

(1A) This section also applies where a sentence has been passed on a person in respect of an offence and a submission relating to the sentence is made by him or on his behalf before—

1. (a) a court hearing an appeal against or reviewing the sentence, or
2. (b) a court determining whether to grant leave to appeal against the sentence.")

The noble Baroness said: In moving the amendment, I shall, with the leave of the Committee, speak also to Amendments Nos. 143 to 150.

The first amendment extends the provisions of the clause to cover an application for leave to appeal because derogatory assertions may also be made at that stage. The next three amendments clarify the operation of the provisions for interim and full orders. When an assertion is first made, the court will not be in a position to judge whether a full restriction order would be justified. The amendments therefore provide that an interim order can be made if "there is a real possibility" that the assertion is derogatory and false or irrelevant. Having heard the rest of the mitigation, and perhaps having made inquiries, the court will need to decide whether a full order is justified. The Government agree with the Royal Commission's recommendation that the power should only be used as a last resort. The test for a full order is accordingly higher, requiring that there are substantial grounds for believing that the assertion is derogatory and false or irrelevant.

The fifth amendment is designed to limit the burden on the court of establishing whether an assertion, which might be subject to an order, has been made in earlier proceedings. The present draft might require extensive inquiries to be made. That is unnecessary. The amendment makes clear that the test should be that it "appears to the court" that the assertion has not previously been made.

The final four amendments define and limit the points at which orders can be made. Orders will be made just before or just after a determination with regard to sentencing. The amendments clarify what is meant by a determination with regard to sentencing in the various circumstances envisaged in the Bill. They also make clear that it will not be possible for such orders to be made a long time after such determinations. The amendments are all designed to improve the drafting of the Bill. I commend them to the House. I beg to move.

8 p.m.

Lord McIntosh of Haringey

We are, of course, grateful to the Minister for her explanation of this group of amendments. However, I think she will recognise that what she has done is to rewrite completely Clause 42. The procedure she has adopted in earlier cases when she has had completely to rewrite a clause—there have been quite a few of them—has been to take out the clause and propose an alternative. It really would have been much easier as regards our understanding of Clause 42 if she had adopted that procedure at this stage rather than give us nine amendments which take out huge chunks of the clause and propose new wording for much of the rest. I simply do not have the capacity to redraft Clause 42 in the light of these amendments in the time available. I feel that we have not been well treated as regards the way these amendments have been prepared. There has been concern about Clause 42. The guild of editors has written to me about the overbearing nature of the restrictions and I have no doubt that it has written also to the Minister. I have no doubt the Minister considered those representations. It may be—although the Minister has not said so—that the guild of editors' representations are reflected in these amendments but I have no way of knowing. I am sorry to say that we shall have to return to this matter on Report.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 143 to 150:

Page 27, line 29, at end insert—

("(1B) Where it appears to the court that there is a real possibility that an order under subsection (6) will be made in relation to the assertion, the court may make an order under subsection (5) in relation to the assertion.")

Page 27, line 30, after ("are") insert ("substantial").

Page 27, line 36, leave out ("(5) or").

Page 27, line 39, leave out ("that assertion has previously been") and insert ("it appears to the court that the assertion was previously").

Page 28, line 4, leave out ("decision") and insert ("determination").

Page 28, line 8, leave out ("decision") and insert ("determination").

Page 28, line 10, leave out from first ("made") to end of line 11 and insert ("after the court has made a determination with regard to sentencing, but only if it is made as soon as is reasonably practicable after the making of the determination").

Page 28, line 29, at end insert—

("(9) For the purposes of subsections (5) and (6) the court makes a determination with regard to sentencing—

1. (a) when it determines what sentence should be passed (where this section applies by virtue of subsection (1)(a));
2. (b) when it determines whether the person should be committed to the Crown Court for sentence (where this section applies by virtue of subsection (1)(b));
3. (c) when it determines what the sentence should be (where this section applies by virtue of subsection (2)(a));
4. (d) when it determines whether to grant leave to appeal (where this section applies by virtue of subsection (2)(b)).")

On Question, amendments agreed to.

Clause 42, as amended, agreed to.

Clause 43 agreed to.

Clause 44 [Reporting of assertions: commencement and supplementary]:

Baroness Blatch moved Amendment No. 151:

Page 29, line 24, leave out ("made by statutory instrument").

On Question, amendment agreed to.

Clause 44, as amended, agreed to.

Baroness Blatch had given notice of her intention to move Amendment No. 152.

After Clause 44, insert the following new clause —

("Child witnesses

TELEVISION LINKS AND VIDEO RECORDINGS

.—(1) In section 32 of the Criminal Justice Act 1988 (evidence through television links) the following subsections shall be inserted after subsection (3B)— (3C) Where—

1. (a) the court gives leave for a person to give evidence through a live television link, and
2. (b) the leave is given by virtue of subsection (1)(b) above,

then, subject to subsection (3D) below, the person concerned may not give evidence otherwise than through a live television link.

(3D) In a case falling within subsection (3C) above the court may give permission for the person to give evidence otherwise than through a live television link if it appears to the court to be in the interests of justice to give such permission.

(3E) Permission may be given under subsection (3D) above—

1. (a) on an application by a party to the case, or
2. (b) of the judge's own motion;

but no application may be made under paragraph (a) above unless there has been a material change of circumstances since the leave was given by virtue of subsection (1)(b) above."

(2) In section 32A of the Criminal Justice Act 1988 (video recordings of testimony from child witnesses) the following subsections shall be inserted after subsection (6)—

"(6A) Where the court gives leave under subsection (2) above the child witness shall not give relevant evidence (with the meaning given by subsection (6D) below) otherwise than by means of the video recording; but this is subject to subsection (6B) below.

(6B) In a case falling within subsection (6A) above the court may give permission for the child witness to give relevant evidence (within the meaning given by subsection (6D) below) otherwise than by means of the video recording if it appears to the court to be in the interests of justice to give such permission.

(6C) Permission may be given under subsection (6B) above—

1. (a) on an application by a party to the case, or
2. (b) of the judge's own motion;

but no application may be made under paragraph (a) above unless there has been a material change of circumstances since the leave was given under subsection (2) above.

(6D) For the purposes of subsections (6A) and (6B) above evidence is relevant evidence if—

1. (a) it is evidence in chief on behalf of the party who tendered the video recording, and
2. (b) it relates to matter which, in the opinion of the court, is dealt with in the recording and which the court has not directed to be excluded under subsection (3) above."

(3) This section applies where the leave concerned is given on or after the appointed day.

(4) The reference in subsection (3) to the appointed day is to such day as is appointed for the purposes of this section by the Secretary of State by order.")

The noble Baroness said: I am sorry if there is some confusion over this amendment. That results from a discussion during the course of our debates on the Bill between my noble friend Lady Faithfull and the noble and learned Lord, Lord Ackner, who is not present in the Chamber at the moment. There was an attempt to arrange a meeting prior to this stage of the Bill but that did not succeed. Further, an associated amendment is a new amendment and was tabled late. I saw sight of it this morning. A request has been made by my noble friend and the noble and learned Lord, Lord Ackner, to have a full discussion on these amendments. They asked whether I would agree to withdraw my amendment on the understanding they would withdraw theirs without prejudice to the outcome of any discussions. We would be free either to return with our amendments on Report or come to some accommodation in the meantime. I accepted the suggestion of my noble friend and the noble and learned Lord, Lord Ackner. Therefore, I shall not move the amendment.

Viscount Colville of Culross

We know what the procedure is but I am becoming increasingly concerned. I shall speak to whatever Motion the noble Lord the Deputy Chairman of Committees says we are discussing but I have become increasingly concerned, listening to the proceedings, about what will happen at Report stage. The noble Lord, Lord Harris of Greenwich, has complained about this and I am sure that the noble Lord, Lord McIntosh, would agree that the difficulty we shall find, if we have to return to the matter on Report, is that we shall not be able to make more than one speech without the leave of the House. The object of a Committee stage, particularly when one is dealing with extremely difficult matters of this sort—I can tell the noble Baroness, if she does not know already, that they are extremely difficult matters—is that one should be able to have a debate and respond to each other's arguments and points. If all this is simply going to be put back to the Report stage and we are not to have any parts of the Bill recommitted we shall be put into a position where we cannot have a proper discussion. Before simply abandoning her Amendment No. 152 and inviting everyone else to abandon all discussion about video recordings, child witnesses and everything that goes with that, the noble Baroness ought to be able to offer us some promise that, if necessary, either the rules will be substantially relaxed at Report stage or that some parts of the Bill will be recommitted.

Baroness Blatch

It would seem that I cannot win today. It has been a long day and I have done what I was asked to do. I was approached by two Members of this Chamber who asked whether I would be willing to have a full discussion without my pressing my amendment. I am in the hands of the Chamber. If the Chamber wishes me to press my amendment, I shall press my amendment. I am entirely willing either to discuss it or not discuss it. I thought I was responding helpfully to two Members of the Chamber who wish to discuss these amendments collectively. If it is the will of the Chamber that I discuss my amendment, or indeed if it is the will of the Chamber that my noble friend discusses the amendments and we do not press them tonight in order to have the debate, I am entirely willing to do that too.

Baroness Faithfull

These amendments, as the noble Viscount fully appreciates, are extraordinarily difficult and complicated. Unfortunately the Minister has been busy and I also have been busy doing work outside the Chamber. Therefore we have not had time to discuss these amendments. The noble and learned Lord, Lord Ackner, thought—and I agreed with him—that it would be in the interests of the Chamber and of the amendments for us to have a discussion with the noble Baroness and perhaps with some of the many people throughout the country who have said that they wish our amendments to be accepted. Therefore it was felt that it would save the Chamber time and work if we did not discuss the amendments today but returned to them on Report after discussions involving my noble friend, her officials, the noble and learned Lord, Lord Ackner, and myself.

Lord McIntosh of Haringey

If we are speaking on the business of the Chamber rather than on any specific Motion, I have no desire whatever to intervene in the negotiations which have taken place between the noble Baroness, Lady Faithfull, her colleagues and the Minister. I accept the conclusion they have reached. However, this reinforces the point which has already been made; namely, that our Report stage will be much more substantial than we had originally thought. The noble Viscount, Lord Colville, makes the point that debate at Report stage is more restricted because we can only speak once and we cannot speak after the Minister has spoken. In some circumstances that might be an argument for recommittal of some parts of the Bill. However, I leave that matter to the usual channels. I reinforce the point that we shall need a substantial Report stage if we are to take account of the degree of concern which has been expressed all around the Chamber at the hasty way in which this legislation has been introduced.

Lord Rodgers of Quarry Bank

From these Benches we wholly understand why the noble Baroness, Lady Faithfull, has chosen not to pursue these amendments this evening. However, if I might put it this way, if this matter were to be resolved mainly by private discussion—however desirable that may be—between the noble Baroness and the Minister, that would not be satisfactory from the point of view of the Chamber. Indeed I understood when the noble Baroness said that she had decided not to press the amendments this evening that that was partly because discussion would take place at a late hour or at an inconvenient time. I am not talking to the Minister but to the noble Baroness, Lady Faithfull. The Minister is shaking her head. That disturbs me deeply. I hope she will forgive me if I finish my remarks. These are matters which concern the Chamber. They are difficult matters on which I would think there are divisions between Members within parties.

I understood that there was every reason to believe that if the amendment were taken on Report we would have a fuller and more fruitful discussion than was possible this evening. I thought that that was one reason why the amendments were not being moved. However, if I am now told that it is entirely to allow the noble Baroness, Lady Faithfull, and the Minister to reach an agreement which might exclude substantive discussion in the Chamber I should be very worried. My reading is one that was acceptable to all parties. I see that the noble Baroness, Lady Faithfull, is shaking her head in agreement with what I say, and hopes that there will be full discussion in this Chamber in due course.

Baroness Blatch

The reason I was shaking my head in the other direction was because I believed that the noble Lord underestimates my noble friend if he thinks that the only reason she asked me to consider not moving my amendment tonight was that she did not want to sit late in the Chamber. My noble friend has sat late in this place many times debating many issues. While that may not be what the noble Lord meant, it is what he said.

I understand the position to be that my noble friend has put down amendments which interact with my amendment. My noble friend wishes to discuss those amendments because had we debated the matter tonight it would have been my intention to press the government amendment. My noble friend wants more discussion with me informally in my office, perhaps with officials and with others present. I have agreed to that.

As I said to the noble Viscount, if it is the wish to have a debate at this stage I had already predicted that we would be here very late tonight anyway and, therefore, I would be more than ready to discuss the amendments. I have no doubt that my noble friend would also be willing to do so. The outcome would still be that we could withdraw the amendments and have our informal discussions between the two stages of the Bill.

Lord Rodgers of Quarry Bank

The noble Baroness is obviously tired, and therefore prickly. I was not being at all critical of her or unhelpful to the Committee. I simply made the point, which I believe is wholly reasonable bearing in mind what the noble Viscount, Lord Colville, said, that these are very important matters for Parliament. All I said was that, notwithstanding these discussions, which in no way would I frown upon nor intervene in or delay, I am sure that the noble Baroness, Lady Faithfull, will look forward to a full and productive discussion in the Chamber in due course. That was the only point that I made. I am sorry that the Minister took it amiss. I tried to be helpful, as I often do. She must learn that there are Members of this House who seek to be helpful in parliamentary terms, and she must not so readily adopt a position of antagonism to them.

Baroness Blatch

I did not do that. I believe that the references to "late at night", not discussing the matter tonight and reasons for deferring discussion tonight do not relate to the reason put to me for taking this particular course of action. Indeed, I believe that that argues against the point made by the noble Lord, Lord Rodgers of Quarry Bank. Had there been a debate tonight, followed by a debate at Report stage, I believe that that would have been even more valuable. For the reasons given by my noble friend and the noble and learned Lord, Lord Ackner, I have acceded to their request. However, I remain willing to consider the amendments if that is the wish of the Committee.

[Amendment No. 152 not moved.]

Baroness Faithfull had given notice of her intention to move Amendment No. 153:

After Clause 44, insert the following new clause—

VIDEO RECORDINGS OF TESTIMONY FROM CHILD WITNESSES

(". —(1) Section 32A of the Criminal Justice Act 1988 shall be amended as follows.

(2) In subsection (3), paragraph (a) shall be omitted.

(3) After subsection (3) there shall be inserted—

"(3A) Where a video recording is to be tendered in evidence under this section the court may grant leave for a child witness to be cross examined at a pre-trial hearing in informal surroundings at which only—

1. (a) the judge;
2. (b) counsel for the parties;
3. (c) an appropriate adult to accompany the child as set out in the rules of court,

shall be present in the same room as the child.

(3B) At any pre-trial hearing the defendant shall be permitted to see and hear the proceedings and to communicate with his legal advisors by such means as shall be laid down by rules of court.

(3C) The pre-trial hearing of the cross-examination of the child witness shall be video recorded and the video recording shall, with leave of the court, be tendered in evidence before the jury."

(4) Subsection (5) shall be omitted.")

The noble Baroness said: I am in some difficulty here. Part of the difficulty has been that the noble and learned Lord, Lord Ackner, and I had not fully understood Amendment No. 152 in the name of my noble friend Lady Blatch. Our Amendments Nos. 153 to 155 are at variance with the government amendment and we thought that it would be helpful if we discussed the matter first.

I agree with the noble Lord, Lord Rodgers of Quarry Bank, that we should have had that discussion before the debate. However, the noble Baroness has been extremely busy and I have not been in the House, and this has all happened so quickly. I wanted to have the views of the Association of Directors of Social Services, the British Association of Social Workers, Barnados and research workers, but in the short time available that has not been possible. I have the views of some of those organisations, but I want to do them justice in the Chamber. It was for that reason that the noble and learned Lord, Lord Ackner, and I do not wish to move the amendments on this occasion.

[Amendment No. 153 not moved.]

[Amendments Nos. 154 to 155A not moved.]

Clause 45 [Meaning of preliminary stage of criminal proceedings]:

Baroness Blatch moved Amendment No. 156:

Page 30, line 46, leave out ("made by statutory instrument").

On Question, amendment agreed to.

Clause 45, as amended, agreed to.

Clause 46 [Time when alleged offence committed]:

Baroness Blatch moved Amendment No. 157:

Page 31, line 2, leave out (" 21(1),")

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 158:

Page 31, line 2, leave out (" 32(1),").

On Question, amendment agreed to.

Clause 46, as amended, agreed to.

Baroness Blatch moved Amendment No. 159:

After Clause 46, insert the following new clause—

ORDERS AND REGULATIONS

(". —(1) The power to make an order or regulations under this Act may be exercised differently in relation to different areas or in relation to other different cases or descriptions of case.

(2) The power to make an order under this Act shall be exercisable by statutory instrument.

(3) The power to make regulations under this Act shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.")

On Question, amendment agreed to.

Clause 47 [Extent]:

Baroness Blatch moved Amendment No. 160:

Page 31, line 9, at end insert (", with the exception of sections 28, 29, (Restrictions on reporting), (Offences in connection with reporting), this section and section 49.")

On Question, amendment agreed to.

Clause 47, as amended, agreed to.

Clauses 48 and 49 agreed to.

Baroness Blatch moved Amendment No. 161:

Before Schedule 1, insert the following new schedule—

("SCHEDULE

TRANSFER FOR TRIAL

Magistrates' Courts Act 1980

1. In section 4 of the 1980 Act (transfer for trial: preliminary) in subsections (2) and (3) (sections of Act to apply where court proceeds with a view to transfer) for "5" there shall be substituted "4A".

2. The following sections shall be inserted after section 4 of the 1980 Act—

"Amendment or substitution of charge.

4A. —(1) Where a magistrates' court is proceeding with a view to transfer for trial the prosecutor may, before serving a notice of his case on the court under section 5 below, make an application in writing to the court for the amendment or substitution of the charge concerned or, if there is more than one charge, all or any of them.

(2) An application shall state—

1. (a) the nature of the proposed amendment or substitution, and
2. (b) the reasons for proposing it.

(3) The prosecutor shall serve a copy of the application on the accused if he can be found or, if there is more than one accused, on each of them who can be found.

(4) The court shall set a date for consideration of the application and shall serve on the accused if he can be found (or if there is more than one accused on each of them who can be found) a written notice—

1. (a) of that date,
2. (b) that he may appear before the court on that date,
3. (c) that if he does not so appear the court may proceed to consider the application in his absence, and
4. (d) that he may make representations to the court when the application is considered.

(5) The prosecutor shall appear before the court on the date set for consideration of the application and if requested to do so by the court shall explain—

1. (a) the nature of the proposed amendment or substitution, and
2. (b) the reasons for proposing it.

(6) After considering the application the court shall grant the application if the court considers that to make the amendment or substitution would not constitute an abuse of the process of the court; and if the court grants the application section 4B below shall apply.

Charge amended or substituted under section 4A.

4B. —(1) This section applies if the court grants an application under section 4A above.

(2) Any statement given under section 6(1A) below before the application was granted shall not affect the amended or substituted charge or charges.

(3) Subject to the following provisions of this section, the amended or substituted charge or charges shall be treated as the charge or charges the proceedings on which are to be transferred for trial.

(4) If a charge for a summary offence is substituted for a charge for an indictable offence, as regards the first-mentioned charge the court shall proceed to summary trial and section 9 below and the other provisions of this Act shall apply accordingly.

(5) If a charge for an offence triable either way is substituted for—

1. (a) a charge for a different offence triable either way, or
2. (b) a charge for an offence triable only on indictment,

as regards the first-mentioned charge the court shall proceed to the initial procedure for offences triable either way and section 17A below and the other provisions of this Act shall apply accordingly."

3. In section 5 of the 1980 Act (prosecutor's notice of prosecution case) the following subsection shall be inserted after subsection (5)—

"(5A) Where this section applies to proceedings against an accused for an offence and the prosecutor fails to serve on the magistrates' court a notice of the prosecution case within the relevant period, the court shall discharge the accused; and the relevant period is—

1. (a) the period prescribed for the purposes of subsection (1) above, or
2. (b) if the court allows a further period under that subsection, that period."

4. —(1) Section 6 of the 1980 Act (application for dismissal) shall be amended as follows.

(2) The following subsection shall be inserted after subsection (1)—

"(1A) Where—

1. (a) a magistrates' court is proceeding with a view to transfer for trial,
2. (b) the accused or any of them gives a written statement to the court that he will not make an application for dismissal with regard to the charge or charges concerned, and
3. (c) as soon as reasonably practicable after he gives the statement he sends a copy to the prosecutor and to any co-accused,

he may not make an application for dismissal with regard to the charge or charges concerned."

(3) In subsection (10) the word "written" shall be omitted.

(4) In subsection (11) for the words from "; and it" to the end of the subsection there shall be substituted "for the offence charged; and if the court does so section 6A below shall apply."

5. The following section shall be inserted after section 6— "Charge amended or substituted under section 6.

6A. —(1) This section applies if the court amends a charge, or substitutes a different offence for the offence charged, under section 6(11) above.

(2) Any statement given under section 6(1A) above before the amendment or substitution was made shall not affect the amended or substituted charge.

(3) Subject to the following provisions of this section, the amended or substituted charge shall be treated as the charge the proceedings on which are to be transferred for trial.

(4) If a charge for a summary offence is substituted for a charge for an indictable offence, as regards the first-mentioned charge the court shall proceed to summary trial and section 9 below and the other provisions of this Act shall apply accordingly.

(5) If a charge for an offence triable either way is substituted for—

1. (a) a charge for a different offence triable either way, or
2. (b) a charge for an offence triable only on indictment,

as regards the first-mentioned charge the court shall proceed to the initial procedure for offences triable either way and section 17A below and the other provisions of this Act shall apply accordingly."

6. In section 7 of the 1980 Act (transfer for trial) the following subsections shall be substituted for subsection (1)—

"(1) This section applies where a notice of the prosecution case has been served on a magistrates' court with respect to any proceedings, and it applies whether the proceedings concern one accused or more and whether they concern one charge or more.

(1A) The court shall act under this section once it is established as regards each charge as it applies to each accused that one of the qualifying conditions is met; and different qualifying conditions may be met as regards different charges or different persons accused.

(1B) The qualifying conditions are—

1. (a) that an application for dismissal is precluded by section 6(1A) above;
2. (b) that the prescribed period for an application for dismissal has expired without any such application, or any application for an extension of that time, having been made;
3. (c) that an application for dismissal has been made and dismissed;
4. (d) that an application for dismissal has been made and has succeeded.

(1C) The court shall take each charge as it applies to each accused, and if as regards any charge or charges any of the conditions in subsection (1B)(a) to (c) above is or are met the court shall in accordance with subsection (1D) below transfer the proceedings for the trial of the accused concerned (whether one or more) on the charge or charges concerned to the Crown Court sitting at a place specified by the court.

(1D) The court shall—

1. (a) make one transfer of the proceedings, however many accused there may be and however many charges there may be;
2. (b) transfer the proceedings within the prescribed period and in the prescribed manner."

7. In section 8A of the 1980 Act (reporting restrictions) the following subsections shall be inserted after subsection (13)—

"(13A) For the purposes of this section proceedings on an application for dismissal to a magistrates' court under section 6 above shall be deemed to include any proceedings in the court before it proceeds with a view to transfer for trial as regards the charge or charges concerned; but this is subject to subsection (13B) below.

(13B) Where a magistrates' court— begins to try an information summarily, but

1. (a) begins to try an information summarily, but
2. (b)discontinues the summary trial in pursuance of section 25(2) or (6) below and proceeds with a view to transfer for trial as regards a charge or charges,

that circumstance shall not make it unlawful under this section for a report of any proceedings on the information which was published or included in a relevant programme before the court determined to proceed as mentioned in paragraph (b) above to have been so published or broadcast."

8. In section 128A of the 1980 Act (remand in custody for more than 8 days) the following subsections shall be inserted after subsection (2)—

"(2A) Where a magistrates' court is proceeding with a view to transfer for trial subsection (2) above shall have effect as if it read—

"(2) A magistrates' court may remand the accused in custody for a period exceeding 8 clear days if—

1. (a) the court has previously remanded him in custody for the same offence,
2. (b) he is before the court,
3. (c) the court has afforded the parties an opportunity to make representations,
4. (d) the court has stated the date by which the next stage in the proceedings (other than a hearing relating to a further remand in custody or on bail) is required to take place, and
5. (e) the remand is for a period ending not later than the date stated or for a period of 28 clear days (whichever is the less)."

(2B) The reference in subsection (2A) above to a magistrates' court proceeding with a view to transfer for trial has the same meaning as it has in Part I of this Act by virtue of section 4(5) above."

Sexual Offences (Amendment) Act 1976

9. In section 3 of the Sexual Offences (Amendment) Act 1976 (application of restrictions on evidence at certain trials to committal proceedings etc.) the following subsections shall be substituted for subsection (1)—

"(1) Where a magistrates' court considers an application made under section 6 of the Magistrates' Courts Act 1980 for dismissal of a charge for a rape offence, then, except with the consent of the court, no restricted matter shall be raised in the course of oral representations allowed by that section.

(1A) For the purposes of subsection (1) of this section a restricted matter is a matter as regards which evidence could not be adduced and a question could not be asked without leave in pursuance of section 2 of this Act if—

1. (a) proceedings on the application for dismissal were a trial at which a person is charged as mentioned in section 2(1) of this Act, and
2. (b) each of the accused in respect of whom the application for dismissal is made were charged at the trial with the offence or offences to which the application relates."

General

10. In this Schedule—

1. (a) "the 1980 Act" means the Magistrates' Courts Act 1980;
2. (b) "the 1994 Act" means the Criminal Justice and Public Order Act 1994;
3. (c) "the appointed day" means the day appointed under section 172 of the 1994 Act for the commencement of section 44 of that Act (which introduces Schedule 4).

11. In paragraphs 1 to 7 references to provisions of the 1980 Act are to provisions of that Act as substituted by Schedule 4 to the 1994 Act.

12. The amendments made by paragraphs 1 to 9 do not apply in relation to proceedings in which a magistrates' court has begun to inquire into a case as examining justices before the appointed day.

13. The amendment made by paragraph 8 has effect in areas or proceedings in which section 128A of the 1980 Act has effect immediately before the appointed day (subject to any further order made under section 128A).").

On Question, amendment agreed to.

[Amendment No. 162 not moved.]

Schedule 1 [Modifications for Northern Ireland]:

Baroness Blatch moved Amendment No. 163:

Page 32, leave out line 10.

The noble Baroness said: In moving Amendment No. 163 it may be for the convenience of the Committee if I speak also to Amendments Nos. 164 to 171. These are all technical amendments which relate to Northern Ireland.

These are amendments to Schedule 1 to the Bill and, with two exceptions, are purely consequential on amendments which the Committee has already agreed. The consequential amendments are two paragraphs of Schedule 1 which modify Parts I, IV and VI of the Bill in its application to Northern Ireland and are intended to modify those parts as amended by the Committee.

The two amendments which are not merely consequential are Amendments Nos. 166 and 168, which introduce references to transfer for trial under the schedule to the War Crimes Act 1991. That schedule, which will apply only to Northern Ireland once the general transfer provisions (which Members of the Committee discussed earlier this evening) have been introduced in England and Wales, sets out a special transfer for trial procedure for cases brought under the 1991 Act. These amendments ensure that such cases are subject to the disclosure requirements of Part I of the Bill in the same way as other cases transferred for trial. I beg to move.

Lord McIntosh of Haringey

Of course I agreed to the suggestion that the Northern Ireland amendments should be grouped together. As the Minister rightly said, most of them are consequential on provisions that the Committee has agreed to. However, she drew attention to Amendments Nos. 166 and 168. I have to point out that where the Government propose to bring War Crimes Act cases in Northern Ireland within the definition of notice of transfer, she does so under orders provided for by the Criminal Justice and Public Order Act 1994 which have not yet been put before Parliament.

When I proposed to make provisions on the Criminal Injuries Compensation Bill which followed the civil evidence legislation which was a day off being completed, I was told, "No, we do not anticipate other legislation". I should have thought that that situation applied here: that it was at the very least unusual to propose to bring on to the statute book matters that depend on orders which, although the Act has been passed, have not yet been placed before Parliament.

Baroness Blatch

I accept the criticism made by the noble Lord. I am not sure whether the situation is without precedent. If the noble Lord wishes at this stage of the Bill that I do not press those two amendments, I accept that. Between now and Report stage, I shall receive some indication as to when that part of the Act will be implemented.

Lord McIntosh of Haringey

That would be most helpful. I am grateful.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 164 and 165:

Page 32, line 12, leave out ("make an order or").

Page 32, line 14, leave out ("order or code of practice made or") and insert ("code of practice")

On Question, amendments agreed to.

[Amendment No. 166 not moved.]

Baroness Blatch moved Amendment No. 167:

Page 32, leave out lines 39 to 41.

On Question, amendment agreed to.

[Amendment No. 168 not moved.]

Baroness Blatch moved Amendments Nos. 169 to 171:

Page 33, line 31, leave out from beginning to ("pre-trial") in line 32 and insert—

("In section (Meaning of pre-trial hearing) for subsections (1) and (2) substitute—

"(1) For the purposes of this Part a" ").

Page 33, line 48, at end insert—

("10A. In section (Restrictions on reporting) (1) for "Great Britain" where it twice occurs substitute "Northern Ireland".

10B. In section (Offences in connection with reporting) (3) omit "in England and Wales", and after "Attorney General" insert "for Northern Ireland"").

Page 34, line 2, at beginning insert—

(" —(I) In section 38(6)(c) for "section 1 of the Perjury Act 1911" substitute "Article 3 of the Perjury (Northern Ireland) Order 1979".

(2)").

On Question, amendments agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Repeals]:

Baroness Blatch moved Amendment No. 172:

Page 35, line 11, at end insert—

("1A. TRANSFER FOR TRIAL

Chapter	Short title	Extent of repeal
1980 c.43.	Magistrates' Courts Act 1980.	In section 6(10), the word "written".
1994 c.33.	Criminal Justice and Public Order Act 1994.	In Schedule 4, paragraph 26.

These repeals have effect in accordance with Schedule (Transfer for trial) to this Act.").

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 173:

Page 35, line 11, at end insert—

("1B. PROVISIONS CONNECTED WITH TRANSFER

Chapter	Short title	Extent of repeal
1980 c. 43.	Magistrates' Courts Act 1980.	Section 28.
1994 c. 35.	Criminal Justice and Public Order Act 1994.	In Schedule 4,paragraph 39.

These repeals have effect in accordance with section (Provisions connected with transfer for trial) of this Act.").

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

House resumed: Bill reported with amendments.