HL Deb 08 June 1995 vol 564 cc1519-30

House again in Committee on Clause 13.

Baroness Mallalieu moved Amendment No. 24:

Page 10, line 39, after ("information") insert ("showing that the factual basis on which the sentence was passed was substantially wrong").

The noble Baroness said: The Criminal Cases Review Authority was proposed by the Royal Commission in order to investigate and provide an effective remedy for wrongful convictions, not sentences. The Home Office consultative paper in April 1994 introduced the proposal that it should also be able to review sentences on limited grounds. Indeed, it was implied in a footnote to that document that this was designed simply to supplement the provisions of Section 47(2) of the Supreme Court Act 1981 and Section 142 of the Magistrates' Courts Act 1980 which allow the appropriate court to vary or rescind its own sentence within 28 days on such grounds.

If the Bill is to include sentences in the way that it is presently drafted, there can be little doubt that it will result in a large number of applications, most of them unmeritorious, which will have to be sifted and assessed by the commission at a time when it will be at its busiest in dealing with convictions. Although I understand that the Home Office at present refers very few cases each year to the Court of Appeal, that is almost certainly because the power is virtually unknown. Once the new body is set up and its criteria are publicised, the initial sift of cases will take up a substantial amount of the commission's resources. If that includes the need to sift through a substantial number of sentencing matters too, we are afraid that that will divert the new body from its main task of investigating miscarriages of justice to the level of detail and supervision required.

We are also troubled that there is a further problem with the clause as it is presently drafted. As it stands, the commission's power of reference in sentencing matters goes much wider even than that in the Home Office consultation document. Indeed, Clause 13(2) (a) gives a power of reference when there exists any argument on a point of law or any information not already raised in any relevant court proceedings. That gives rise to a real possibility that the sentence would not be upheld were the reference to be made. That goes far beyond the limited grounds on which sentence can be varied under either the Supreme Court Act or the Magistrates' Courts Act, and it appears to be drafted in that way to link into the Court of Appeal's present practice where a sentence may be lowered essentially on four grounds. Those are, first, that the sentence was not justified by law; secondly, that it was passed on a wrong factual basis; thirdly, that matters were improperly taken into account or that there are fresh matters that ought to be taken into account; and, fourthly, that the sentence was manifestly excessive or wrong in principle. It is the last two which go much further than the original Home Office consultation proposals.

Any new argument or fact, it seems, can be put forward to justify a review. I contrast that with what the noble Baroness said in relation to the last amendment. That would appear to be the case however long after the original sentence. In every case a review will require the commission, first, to get hold of the case papers from the sentencing court; then to obtain a transcript of the sentencing remarks; then to look at the new information or argument and assess its weight and perhaps even investigate further its credibility; and, lastly, to assess its potential weight in relation to the sentencing issues involved. That is a substantial amount of work in an area that is likely, as I think the noble Baroness will be bound to agree, to attract a considerable number of unmeritorious applications, many of which will be from unrepresented prisoners, particularly if no additional provision is made for legal aid for the submission of those applications. There may also be repeated applications, and there is no existing case law to guide the commission in that respect.

The amendment seeks to clarify the extent of the power of the commission to refer sentence cases and to try to amend the existing draft in such a way as to minimise the number of unmeritorious applications. It is therefore proposed that the power to refer sentencing matters to appeal should be limited in the Bill to matters of fact which were not known to, or properly taken into account by, the sentencing authority at the time. I am encouraged—I hope—by what was said by the noble and learned Lord the Lord Chief Justice at the Second Reading of the Bill: The power of the commission to refer sentence only cases to the Court of Appeal causes me some disquiet and was criticised in another place on the ground that the commission might in its early years receive a great number of applications of this nature which could leave it struggling to cope with the caseload it will inherit of allegedly flawed convictions".—[Official Report, 15/5/95;col. 312.] That is what the commission is essentially about. The amendment does not seek to remove altogether the power of sentence referrals. It seeks to try to cut away some of the dead wood so that the important matters in relation to miscarriages of justice based on unsafe conviction can be properly dealt with. I hope that the noble Baroness will feel that it is a helpful proposed alteration. I beg to move.

Baroness Blatch

I am extremely cautious about even suggesting that the noble Baroness may be imposing an unnecessary restriction, which I am sure is not the intention of the amendment. The amendment seeks to limit the commission's capacity to refer a sentence to the courts on the basis of new information. Any new information which might form the basis of a referral would have to be such that it showed that the factual basis on which that sentence was imposed was substantially wrong.

I appreciate the concerns which led the noble Baroness, Lady Mallalieu, to table this amendment. No one wishes to see the commission deluged with work on sentence cases to the detriment of its work on possible wrongful convictions. But I have to say that I do not think that that will be the case. If current Home Office experience is anything to go on, the commission will receive very few representations on sentence. C3 currently receives around 50 such applications a year for referral. Only one or two on average are referred and I know of nothing to suggest that that pattern will change once the commission begins its work.

In this amendment, compared with the last one, we seem to have gone from a relaxation of criteria to one which would impose too restrictive a criterion for sentence referrals. In the rare case where new information justifies a sentence referral, that information will not necessarily meet the requirements suggested. It may, for example, be a piece of mitigation which was simply not available to the sentencing judge. The factual basis of the sentence may be substantially intact, but the new mitigation might make the sentence quite unsuitable.

The present criteria for the referral of a sentence in Clause 13(2) require there to be a new argument on a point of law, or new information which gives rise to a "real" possibility that the sentence would not be upheld in the resulting appeal. Any new information, to form the basis of a referral, must therefore be of sufficient weight, in the context of everything else relevant to the sentence, to give rise to the clear possibility that the sentence would be varied as a result of the reference. That seems to me to be a sufficient hurdle to weed out any unmeritorious applications.

The commission will know that the Court of Appeal or the Crown Court do not alter sentences lightly. Where a sentencing judge or magistrate has used his discretion properly, it is not readily interfered with. So the commission will not be interested in arguments that the sentence is slightly wrong or that the judge and the Court of Appeal were rather harsh. Only something showing that the sentence may be seriously excessive or wrong in law would justify a referral.

The noble Baroness referred to the Royal Commission recommending that the commission should deal with convictions only. That is because the Royal Commission was not asked to consider sentences. That was outside its terms of reference. The noble Baroness said that the Bill goes further than the original Home Office proposals. In working up the proposals in the Bill, we looked at the types of cases which would be referred. The case of McAleny, referred in May 1991, is an example of a case which would not be referable if the amendment were accepted. Details of that case can be found in paragraph 2 of the note on the effect of the amendment. I have read it through and I believe that the point that is being made here is a pertinent one.

Moreover, we think that the criterion for referral which would result from this amendment would be too narrow. Information justifying a sentence referral, which will, we think, continue to be a rare event, does not necessarily show that the factual basis of the sentence was wrong. For example, the information might be an important piece of mitigation which was not available to the sentencing judge. In such a case, the original sentence will not be wrongly based but it may have become inappropriate. An example of that would be the case of McAleny, referred in May 1991. That information was not taken into account at the time of sentencing. The sentence, as I believe the noble Baroness knows, was reduced on referral from 10 years to nine.

The criteria we have provided in the Bill seem to be broad and sensible and nothing I have heard today suggests that any amendment is required. I hope I am not being presumptuous but I do not believe that the noble Baroness would wish to narrow the effect of the Bill and not leave it with the flexibility which is already built in.

Baroness Mallalieu

The noble Baroness is wrong in her last conclusion. It is my primary concern to ensure that the review body is able to cope with what was the original intention, which was to deal with miscarriages of justice resulting from unsafe convictions. If other means are required to deal with appeals, whatever steps the Government take to deal with them should not interfere with the primary objectives of the review body, which was intended to deal with convictions.

I was not optimistic when I approached the amendment because if the noble Baroness was not persuaded by the reservations of the noble and learned Lord the Lord Chief Justice at Second Reading, she was unlikely to be persuaded by me. I had hoped therefore to provide an amendment which the noble Baroness could take on board as in some way restricting what I believed—and it seems clear the noble and learned Lord the Lord Chief Justice also believed—might well be a flood of these applications. It seems that the material which enables the noble Baroness to be confident that there will be no such flood of applications has not been communicated to the judiciary. I hope that she is right.

I am encouraged by some of what she has had to say. I am anxious that if sentences are to be referred, as the Government have determined that they are to be, those which are based on factual errors should be able to be dealt with. I am also anxious—I shall look carefully at what the noble Baroness a little earlier said—that the amendment should not restrict matters which cannot be dealt with in any other way. What I should like to do is to go away and look carefully at the authority to which she has referred. She does me a service which is unmerited of assuming that I know, understand and have read it recently. It may well be that I shall wish to return at a later stage with an amendment that will not exclude material which that case requires to be dealt with somewhere.

I remain unhappy that in a sense the procedure which should be dealing primarily with conviction may be hijacked by a large number of applications at the outset which will prevent its essential purpose being carried out properly. I know that at a later stage in the Bill there will be further reference, as there was at Second Reading, to the funding for the commission. I am sure that the noble Baroness will have well in mind that if she is wrong in her belief that there will not be a flood of these applications, additional resources will have to be made available to deal with them. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 25 not moved.]

7.45 p.m.

Lord McIntosh of Haringey moved Amendment No. 26:

Page 11, line 41, at end insert: ("( ) Any statement given by the Commission in accordance with subsection (9) shall be accompanied by—

  1. (a) any statements and opinions obtained by or on behalf of the Commission, and
  2. (b) any reports commissioned by or on their behalf,
in the investigation of the matter, unless such material is subject to the requirements of section 24.").

The noble Lord said: In moving this amendment, I should like to speak also to Amendment No. 46. With this amendment, we turn to the issue of the proper disclosure of information to applicants. Indeed, we shall return to it again when we come to consider Clause 17.

One of the major reasons for miscarriages of justice over the years—and over far too many years—has been the absence of full disclosure of information to applicants. The most recent example, which has not only caused concern among those who have fought against miscarriages of justice over many years but has caused concern in the courts, has been the case last year of ex parte Hickey and others, a case better known as the Bridgwater Four. For years it had been argued that there was a general duty of confidentiality which denied the defence the information which was necessary to mount an appeal. What the Divisional Court in ex parte Hickey and others said was that there was a lack of elementary fairness, and that elementary fairness required that a person should know the evidence being considered so that he or she could challenge the accuracy or make further representations.

That has been an enormously valuable judgment because as a result of it the Home Office—I pay tribute to it—has started now to give to the advisers of applicants, including Justice, documents which had been withheld previously. It has been essential in ensuring that justice is done and is seen by applicants to be done. It is important in seeing that miscarriages of justice are not perpetuated. It is also important because this is the only way of ensuring that there are not repeated applications, as there have been in the case of the Bridgwater Four, to the commission or to the court because quite frankly the history of the Bridgewater Four has been a disgrace. One of those convicted died in prison and there have been repeated applications from the others who have proclaimed, with great sincerity and passion, their innocence over the years while in prison, despite the fact that new evidence has continued to come forward.

Although we welcome the general thrust of the Bill which is an attack on miscarriages of justice, nevertheless, this part of the Bill's provisions go the other way. That is not just as regards Clause 13. Clause 22 imposes a broad duty of confidentiality on the commission, members and staff and makes it an offence to disclose information without authority. Clause 23 contains exceptions to the presumption of non-disclosure. Ministers have said that these will provide sufficient gateways to allow disclosure as provided in the Hickey decision.

However, it is unclear from the wording of the statute whether the requirement to give the applicant sight of the evidence before a decision is made is a function within the meaning of Clause 23(1) (a). Furthermore, Clause 13 requires the commission only to provide refused applicants with a statement of the reasons for refusal. It does not specifically state that the commission must disclose all relevant material on which the refusal was made. The provision of statements of reasons for refusal was what the Home Office gave before the Divisional Court judgment. Frequently, such reasons were no more than a few paragraphs claiming that evidence in the possession of the Home Office contradicted assertions or evidence provided in the applicant's submission.

Therefore Amendments Nos. 26 and 46 would follow the judgment in the case of ex parte Hickey and others in requiring the disclosure of all relevant material to be given to the applicant. There would be protection in Clause 24 for sensitive material passed on to the commission by those in public bodies, which includes the police force. They may specify that it is not disclosed without consent and they may withhold that consent if it can reasonably be shown that the material in question is secret or sensitive. There would therefore be a duty to disclose information to applicants, balanced by an exemption for material which could be shown to be sensitive.

In the jigsaw which is caused by the provisions of this part of the Bill, it seems to us that this is an essential provision to ensure that miscarriages of justice, which are known to have taken place over the years and for which there is some protection from the decision of the Divisional Court in ex parte Hickey and others, shall be preserved. I beg to move.

Baroness Blatch

It would appear that the intention of the noble Lord, Lord McIntosh, here is to ensure that a convicted person will be given details of the information found by the commission in the course of its inquiry so that he may make further representations on his case before any decision is taken to refer it or, when his case is referred, to enable him to prepare for the resulting appeal.

Clause 13(7) requires the commission where a case is referred to provide the court with a statement of its reasons for referral. This statement must be sent to all those who appear to the commission to be likely parties to the resulting appeal, but the person whose case is referred will be fully aware of the commission's reasons for making the referral.

The duty of disclosure, as in all appeals, will rest on the Crown in the form of the prosecution rather than on the commission. Of course, that means that the commission will have to assist the Crown in order to enable it to discharge its duty. But there would be a good deal of potential for confusion and mistake if the commission and the prosecution were to be involved simultaneously in disclosure. The gateways provided in Clause 23(1) are wide enough to enable the commission to make all the necessary disclosures to the Crown.

Clause 13(9) lays a duty on the commission to provide a statement of its reasons for a decision not to refer a case. We intend that this should be a full and reasoned explanation. The convicted person will know why his application has been rejected. The commission will, as the Government made clear in the debates on this Bill in another place, be governed by the same duty of fairness and by the same resulting requirements for disclosure as the Divisional Court set out in its judgment last November in R v. Secretary of State for the Home Department ex parte Hickey, which has been mentioned by the noble Lord.

The provisions of Clause 23(1) (e) are sufficient to enable the commission to keep convicted persons informed of the progress being made in investigating their case and, subject to the need for necessary confidentiality, to disclose information to them so that they can, in the interests of fairness, make further representations.

The court expressly recognised in that judgment the need to maintain a balance between disclosure and necessary confidentiality. That will involve in some cases not just matters of public interest immunity, but also the need to protect witnesses. The court expressly recognised too that the decision in such matters had to be taken on a case-by-case basis. We have adopted that principle. The Bill does not therefore impose rigid conditions as regards disclosure, but leaves matters to the commission's direction, operating in accordance with statute which creates it, and subject to review by the Divisional Court. We believe that that is the right balance and the right approach.

In order to reassure the noble Lord, we believe that the Bill's provisions reflect our acceptance of that judgment. As regards the Bridgewater Four, I can say to the noble Lord that I am happy to confirm that we are continuing to make the appropriate disclosures in that case which is being urgently considered now that the police inquiries have been completed. In view of what I have said, I hope that the Committee will understand that I cannot support the amendments, but maybe there is some comfort in my reply.

Lord McIntosh of Haringey

That was a complex and, in some respects, a helpful reply. The Bill is very bald about this matter. It says that the commission shall give a statement of the reasons for their decision to the person who made the application. The Minister has now said—and I am repeating it because it is on the record already and it is useful as regards Pepper v. Hart cases—that they should give a full and reasoned explanation which is rather better than just saying the reasons.

Then the noble Baroness said that there is a duty of fairness as expressed by the Divisional Court in the case of ex parte Hickey and others. She explicitly said that it is the intention that the judgment of the Divisional Court in that case is not being overturned or reduced in any respect by the provisions of the Bill. All those statements are extremely helpful, as is her assurance that the information being given to the advisers of those in the case of Hickey and others and those involved with the Bridgewater case, has now been resumed and will not be curtailed.

On the basis of those statements by the Minister and the expectation that when I come to read her remarks in more detail in Hansard there may be other things which I find helpful, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 agreed to.

Clause 14 [Investigations for Court of Appeal]:

Baroness Blatch moved Amendment No. 27:

Page 12, line 23, leave out ("on behalf of') and insert ("for").

The noble Baroness said: In moving this amendment, I shall speak to Amendments Nos. 28 to 30 and Amendment No. 41. I say, with apologies to the Committee, that this is an afterthought by counsel, who are considering the word "obtained" in the Bill. These amendments address that.

Amendments Nos. 27 to 30 to Clause 14 and Amendment No. 41 to Clause 19 are essentially drafting amendments. Clause 14 makes provision for investigations by the commission following a direction by the Court of Appeal under the provisions introduced by Clause 5 of the Bill.

Among other things, the commission is required to report its findings to the court. Subsections (6) and (7) provide for the report to be accompanied by any statements, reports and opinions obtained by them or on their behalf, other than the report of the investigating officer appointed to investigate as a result of a requirement under Clause 18.

We have been looking again at the wording of this provision and have come to the conclusion that the word "obtained" is a little ambiguous. We believe that it could have two meanings in this context—a wide one suggesting "everything that has come into the possession of the commission and a narrower one which suggests that the commission has caused the document or documents in question to come into being as in, for example, "taking a statement".

The narrower interpretation is clearly unsatisfactory, since it could result in the court not receiving all the documents relevant to the commission's findings. Old reports or opinions to which the commission would have access would not be covered since they would not have been commissioned for the purposes of the commission's investigations.

Amendments Nos. 27 to 30 are designed to replace the word "obtained" with the word "received". That change is proposed to put it beyond doubt that a court will receive all the documents relevant to the commission's conclusions which it has investigated for the court.

Amendment No. 41 makes a similar change to Clause 19(7). As the Committee will know, Clause 19 makes provision for inquiries made by investigating officers pursuant to Clause 18. Subsection (7) requires an investigating officer to attach to his report any statements, opinions or reports obtained by him in connection with his inquiries on behalf of the commission. The word "obtained" could similarly be interpreted in the two ways that I have already described. In seeking to substitute the word "received" for "obtained", the amendment makes it clear that the commission should receive all the statements, reports or opinions gathered by the investigating officer in the course of his investigation, whether obtained by him or commissioned during an earlier stage of investigations into the case. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 28 to 30:

Page 12, line 26, leave out ("obtained by or on behalf of the Commission") and insert ("received by the Commission in the investigation of the matter specified in the direction or any related matter investigated by them").

Page 12, line 28, leave out from ("reports") to end of line 31 and insert ("so received.").

Page 12, line 33, leave out ("19") and insert ("19(6)").

On Question, amendments agreed to.

Clause 14, as amended, agreed to.

Clauses 15 and 16 agreed to.

Clause 17 [Documents etc. relating to old cases held by Secretary of State]:

Baroness Blatch moved Amendment No. 31:

Page 13, line 35, leave out ("having considered") and insert ("consideration of).

The noble Baroness said: This is a drafting amendment. Clause 17(1) disapplies the provisions of Clause 16 in relation to certain documents or other material in the possession or control of a person serving in a government department. The amendment makes the extent of the disapplication clearer and, in so doing, brings the wording of Clause 17(1) into line with that in the rest of the clause. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 17, as amended, shall stand part of the Bill?

Lord McIntosh of Haringey

I do not like to speak against the Question that a clause stands part of a Bill. I much prefer to amend the provisions of a clause in detail rather than to attack it in this broad-brush way. However, I am afraid that Clause 17 is so objectionable that there is no civilised way of doing this. The Minister has acknowledged that the amendment which has just been agreed is a drafting amendment only, so the clause remains substantially as it appears in the Bill.

The problem with Clause 17 is a fundamental one. Clause 16, which we agreed without debate, properly provides the powers for the commission to obtain documents which are necessary for its investigations. Clause 17 excepts from that general power documents which are held, according to the sidenote, by the Secretary of State but according to the text of the clause by a person serving in a government department. I do not know whether there is any significance in that difference of wording. Clause 17(3) provides: The Secretary of State shall give to the Commission any document or other material which—

  1. (a) contains representations made to him in relation to any case to which this subsection applies, or
  2. (b) was received by him in connection with any such case otherwise than from a person serving in a government department".
So far, so good. However, the subsection then provides that the Secretary of State, may give to the Commission"— that is, in other words he may not give— any document or other material which is relevant to any such case but does not fall within paragraph (a) or (b)". That is the really difficult part and why it is so difficult to amend the clause in detail.

As I said when speaking to Amendment No. 26 which related to Clause 13, in view of the number of miscarriages of justice that have been caused by the failure of the prosecution to disclose all documents or other material, it is ironic that the Bill does not impose on the commission the duty to disclose all the documents. Similarly, it does not impose on the Secretary of State an adequate duty to disclose all the documents.

I am well aware of all the arguments about informers. That point has been well recognised. However, I do not believe that there are not ways of getting round that which are not provided for in the Bill as drafted. There are plenty of ways of ensuring that the identity of informers shall not be revealed and of ensuring that their work for the police is not endangered.

However, the combination of Clause 17 and Clauses 22 to 24, to which I have already referred, bring forward the risk that the right of access to documents which was established by the ex parte Hickey case will be overturned or limited. I say that despite what the Minister said on Amendment No. 26. I recognise that the noble Baroness said that there is no intention of in any way reneging on ex parte Hickey. However, I should now like the Minister to go a little further. Her intention is clearly right, but I now want to be assured that the reasons and opinions which formed the basis of the previous rejection by the Home Secretary will be disclosed and that their disclosure will not be inhibited by the words that I have quoted from the end of Clause 17(3).

It can be argued that the Secretary of State and government departments have an extra right to confidentiality. I do not think that I would care to argue that case too fully given that the Scott Commission has not yet reported, but there are people who would make that argument, and I can see their point. However, the point here is that the Home Secretary and C3, the Home Office, have not been acting in this respect as an Executive, but C3 has been acting, and until the Bill is passed will continue to act, as part of the judicial process. Therefore, the evidence which it produces and the reasons and arguments that lie behind it do not fall into the category of the confidential advice to Ministers which it is normally and properly accepted should not be made generally available. If the Minister is proposing to argue that the advice that she now receives as Minister of State at the Home Office will not be available to me when I am Minister of State at the Home Office in a couple of years' time, I can accept that part of the argument, but I do not accept that it applies to information which C3 gets in its quasi-judicial capacity.

Therefore, although I should like Clause 17 to be amended, I recognise that that is not possible and I am afraid that it is necessary to say that the clause is an undesirable restriction on the proper disclosure provisions which are made elsewhere in the Bill. Therefore, I record my opposition to the Question that Clause 17 stand part of the Bill.

Baroness Blatch

Clause 17, as the noble Lord said, requires the Secretary of State to give the commission all documents or material received, other than from a person serving in a government department, if it is relevant to a case which he has under consideration when his powers are transferred to the commission, or to a case previously considered by him and which the commission is revisiting as a result of representations which it has received. The commission will therefore be given any representations by, or on behalf of, any convicted person, police reports and opinions from experts which the Secretary of State has received.

The Secretary of State may also give the commission any other material which is relevant to a case; for example, there may be internal notes by officials recording information received from investigating officers, or from the applicant or his advisers. In brief, we intend that the commission should have access to all relevant information held by the Secretary of State, whether it is representations by, or on behalf of, any person claiming wrongful conviction, or police reports, forensic science reports, opinions from lawyers, doctors and other independent experts, transcripts of legal proceedings, correspondence and records of telephone conversations.

What will not be given to the commission, however, is material which contains purely the opinions of government officials, as the noble Lord pointed out, or Ministers when they have considered a case previously. If it. were to have access to such material, the commission would be placed in an invidious position when it took its decisions. It would be vulnerable to the charge of having been unduly influenced by the views taken during the earlier consideration of the case by a different authority.

Over and above that however there are two reasons why the Government believe it would be unhelpful to the commission if Clause 17 were to be deleted from the Bill. First, there would be no straightforward mechanism by which the commission would be able to receive the material it will need on cases which are under consideration by the Secretary of State when the commission starts work or which he has previously considered and have been raised with the commission. Secondly, the commission would have no clear guidance as to precisely what material it could reasonably expect to obtain in what is likely to be an extensive number of cases. Outside the clear area of representations and material received from outside the the department, it must be right for the Secretary of State to make that judgment, and indeed only he or she will be in a practical position to do so. I hope that the noble Lord, Lord McIntosh, will accept therefore that Clause 17 is intended to help the commission, not to restrict it.

Reference was made to the Hickey case. That case was about reports received by the Home Secretary together with documents, such as witness statements. They must be disclosed under Clause 17(3) (b). The noble Lord asked also whether reasoned opinions would be disclosed. They will not if they are purely advice to Ministers on how to decide the case; but if they contain evidence necessary to understanding the case, that evidence will be given to the commission.

I hope that the answer has been helpful and that the noble Lord will allow Clause 17 to stand part of the Bill.

Lord McIntosh of Haringey

It was never my intention to divide on a clause stand part Motion. It is not a thing I would ever wish to do, because I appreciate that within the architecture of a Bill each clause serves a purpose, and to take one out causes enormous difficulty.

The Minister said that Clause 17 is designed to help the commission. I accept that part of Clause 17 is designed to help the commission. It is the bit that starts with Section 14 which refers to that information which the Secretary of State may give to the commission rather than shall give to the commission that causes me concern. The Minister repeated—I anticipated that she would say it—the false analogy between advice given to Ministers by officials in general on public policy, and advice given to the Secretary of State by members of C3 division when they are acting in the quasi-judicial capacity which is rightly being abolished by the Bill.

I shall not proceed with my opposition to the question that Clause 17 shall stand part, but I give the Government notice that I shall apply myself rather more carefully than I have done so far, and come back at a later stage with amendments which will secure that the falsity of that analogy is made clear, and that the use of that analogy to deny necessary information to applicants and to the commission will be exposed, and, if possible, rejected.

Clause 17, as amended, agreed to.

Baroness Trumping ton

I beg to move that the House do now resume.

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

House resumed.

House adjourned at a quarter past eight o'clock.