Criminal Appeal Bill

HL Deb 12 June 1995 vol 564 cc1591-630

6.47 p.m.

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 BARONESS HOOPER in the Chair.]

Clause 18 [Power to require appointment of investigating officers]:

Lord Scarman moved Amendment No. 32: Page 14, line 19, leave out from ("may") to end of line 20 and insert ("either themselves appoint an investigating officer to carry out the inquiries or, if they think it appropriate, require the appointment of an investigating officer as provided in section 19.").

The noble and learned Lord said: I propose to be very brief in moving this amendment, because the proposal contained in it has been the subject of so much discussion and debate both inside and outside Parliament. Indeed, very considerable disquiet has been expressed, again both inside and outside Parliament, over the fact that the commission does not itself have power to conduct an investigation, and thus invariably consults by requiring the appointment of an investigator, himself a policeman, who will be selected by a chief of police. That being the situation, I ask myself why it is that the commission has been denied the power of conducting an investigation. Why must it invariably use the police?

As the Bill stands, the commission can only "require" the appointment of an investigating officer and the investigation must be carried out by that officer, that officer being himself a policeman appointed by the chief of police of the force where the trouble arose. It is true that the commission has the right to veto the appointment; it has the right to direct and supervise the conduct of the inquiry; but it does not have the right to appoint an investigating officer and conduct the investigation itself.

I accept that in the majority of cases the commission will go to the chief officer of the police force concerned and require the appointment of a police officer as the investigating officer. I accept that in most cases that is an admirable way of conducting the investigation. The trouble is that inevitably, from time to time, cases will be referred to the commission in which public confidence will be damaged if the matter is made subject to a police investigation. That is not a reflection on the quality of our policemen; it is merely that there will be cases—perhaps sensational cases—where the police role has been such that, if the commission is to be able to act independently and strongly in the eyes of the public, it needs itself to conduct the investigation and appoint its own investigating officer. In principle, therefore, there is a strong body of opinion that we give the commission, in a case referred to it which needs to be investigated, the right to appoint its own investigating officer and itself to conduct the inquiry.

A number of objections have been raised. I shall mention only two, but they are both important. The first is, simply, that it will be too expensive. There has been no study of the cost. I see no reason why it should be more expensive to do it by an investigating officer and the staff of the commission, with the assistance of others who may well have investigating experience. As we know, both the membership of the commission and no doubt the membership of its staff, will include a number of persons highly qualified in the type of investigation that the commission would undertake from time to time. I cannot see why that should be more expensive than when the police do it. Until such time, therefore, as we see a detailed cost analysis, we should disregard that aspect, particularly as what is being argued is not a matter of finance but a matter of principle and a commission is being set up which must be seen to be strong and independent. "Independent" means, in a proper case, being independent of the police.

The other objection which I understand has some force is that it is said that only the police possess the powers to carry on an investigation of this type. It is said that members of the staff or others who are not in the police who may be required by the commission to conduct the investigation or participate in it do not have the powers of the police. Again, that position should be analysed. Of course they do not have the power of arrest. But under the Bill the commission possesses certain important powers of investigation. If Amendment No. 40 is accepted by the Committee, it will be given further powers. Let me briefly relate those powers to your Lordships.

First, under the Bill the commission can call for documents to be produced—documents which are in the possession of a public body. It can retain those documents and take copies of them. Also, the commission has the ordinary powers of investigation, which perhaps are not legal powers but they allow it to ask questions, to ask people for help and so forth. If Amendment No. 40 is accepted—this is important—the commission will be able to obtain a warrant which will operate against private persons in possession of a document, requiring them to produce that document. More important still, the amendment contains the suggestion that the power should be given to magistrates to issue a warrant allowing the commission to enter premises, to search for documents, to take possession of them, copy them and so forth. Here perhaps I should correct something I said earlier. I said that Amendment No. 40 also covered the right to question. That right is already in the Bill.

The commission therefore will possess adequate powers for carrying out its investigation and it should have no difficulty in ensuring that the members it appoints to carry out the investigation, and the investigating officer himself, have the sort of experience needed. I suggest therefore that it is essential to give the commission the support of this amendment; that is to say, if it wishes to investigate a matter itself, for one reason or another, it should possess this reserve power to do so without in any way derogating the importance of what the Bill provides in the ordinary case; that is, for the investigating officer to be appointed by a chief of police upon the requirement of the commission. I beg to move.

7 p.m.

Lord Merlyn-Rees

I wish to speak in support of the views of the noble and learned Lord, Lord Scarman. I shall do so briefly because we discussed the matter at Second Reading, and, if nothing else, I hope we can be clearer as to how the system will work. At a later stage we shall deal with the matter of "direct" and "supervise" with regard to the new commission. In the old days, C3 in the Home Office certainly did not "direct" and "supervise" in this sense so it had no great powers to "direct" and "supervise" what the police were doing.

I am sensitive to the views of the noble and learned Lord, Lord Scarman, but the noble Viscount, Lord Runciman, whose report instigated the Bill, said: Although the Royal Commission envisage investigations being carried out by a designated police force under the direct supervision of a new review body, that body should not be precluded from recruiting on to its own staff trained investigators who would not necessarily be police officers". Why not? Given the powers of the new commission, which will be far greater than those of the old C3—this is the new concept of how to deal with miscarriages of justice—why should there not be on the commission trained investigators who would not necessarily be serving police officers? The noble and learned Lord, Lord Scarman, has argued that normally the investigation would be conducted by a police force. There are questions to be answered—perhaps at a later stage—about how investigators would be appointed and how they would be controlled, but I agree that there ought to be reserve powers to provide that they would not necessarily be serving police officers.

Viscount Runciman of Doxford

Before I speak in support of the amendment, which stands also in my name, I have been asked by the noble Lord, Lord Alexander of Weedon, to convey his apologies for not being able to be present this evening due to a speaking engagement which has to have priority. He also asked me to say that he would have spoken in support of the amendment in his capacity as chairman of the organisation Justice, whose arguments on this very point are well known. I should like to add that the experience of that admirable body, which was of great help to us at the time the Royal Commission was sitting, lends strong support to the arguments in favour of the amendment and the arguments which have been very forcefully and eloquently advanced by the noble and learned Lord, Lord Scarman.

We considered this matter very carefully on the commission and, as I think your Lordships are all aware, we were quite clear that we were not recommending the creation of a kind of Pinkerton's army of police directly employed by the new review authority. We expected (this seems to be common ground) that in the majority— I would be prepared to say the very great majority—of cases the powers which the Bill provides for the review commission to supervise investigations carried out by a police force, and if necessary by a police force selected in effect by the review commission in consultation, as appropriate, with the inspector of constabulary, would be all that would be required to enable the commission to place before the Court of Appeal its conclusions as to whether the Court of Appeal needed to consider whether a miscarriage of justice might have taken place.

I do not have very much to add to the arguments, all of which I endorse, which the noble and learned Lord, Lord Scarman, put before the Committee. I would, however, like to add that unfortunately I was abroad at the time of the Second Reading debate but I read that debate extremely carefully. I understand the concerns which Ministers voiced as to why there are arguments— and, indeed, there are—against giving the new commission this power, but I should like to endorse the view, if anything more strongly than the noble and learned Lord, Lord Scarman, that these fears are groundless.

We on the commission were careful not to attempt to lay down exactly how the new review authority, as we called it, would operate. We thought it was very important that before legislation was introduced there should be widespread consultation with all interested parties so that by the time a Bill came before Parliament all the relevant arguments should have been canvassed by interested parties and by those best qualified to make recommendations as to how the new body could best do the work for which it was to be created. But, as I envisage it, in the rare minority of cases where the review commission—or, in practice, someone who, for the sake of argument, I would call the case controller who will be in charge of looking at a particular case— has reason to think that the interests of justice require that an independent investigator directly employed by the review commission should be put on to a particular investigation, I cannot see an argument against it.

It is quite unrealistic to suppose that that is the thin end of a wedge which would lead to those who staff the new review commission using their own investigators to duplicate, interrupt or impede the normal run of investigations. I envisage the investigators directly employed by the commission only being used—this again is common ground—where there is a particular reason to think that the investigation will be more effectively carried out by that route. The particular cases that are well documented by Justice, the organisation which the noble Lord, Lord Alexander of Weedon, chairs, show precisely the types of case which in themselves constitute perhaps the most powerful argument for the new commission being given this power.

There are a very small number of cases but they are those—and they will continue in the future to be those— which quite rightly arouse the greatest public concern. It is not simply, as the noble and learned Lord, Lord Scarman, said, that it must be seen that the new commission is independent and can demonstrate its independence in contentious cases of this kind. It is also that the most disturbing cases on record are those where it turns out that a would-be appellant has been serving several years of a prison sentence for a crime which someone else in fact committed. In a small number of cases the reason why it has taken so long to discover that a miscarriage of justice has taken place can be directly traced to the conduct—not necessarily the misconduct, although it may be so—of the police force initially concerned in the inquiry and to what was done or not done when it should have been by that force which led to a conviction at the court of first instance.

Surely that, above all, is what we in this House and in the other place would like to see the new review commission rendering as unlikely as possible in what we all recognise will continue to be an imperfect world. I very much hope that the Government will be willing to recognise the force of the arguments and to accept the amendment.

Lord Rodgers of Quarry Bank

The noble and learned Lord, Lord Scarman, said that there had been so much discussion and debate on this issue that he intended to speak only briefly. But, as always, he did so most persuasively. The question which we must ask ourselves is this. In view of the arguments of the noble and learned Lord, Lord Scarman, the noble Viscount, Lord Runciman, and others who have already contributed to this debate, why in the limited circumstances that they anticipate this different procedure being followed should Ministers so far remain obdurate? We must always hope that the arguments themselves this evening will make the Minister change her mind or, better still, that having taken wise counsel in the interval since Second Reading, she will be able to make an announcement tonight. Were that not to be the case, it is reasonable for us to ask ourselves what is in the minds of Ministers which means that they are unable to make a concession of this kind.

As has been said before in this House, when this Bill was first referred to in the debate on the Address last November, the Home Secretary in another place made it clear that he hoped that it would receive Cross-Bench support. It has received it, but if we are obliged to make concessions to the Minister in so far as the Bill is not quite what others may have drafted, it is reasonable to expect concessions from her in view of the arguments which took place at Second Reading and which we are hearing now.

So what are the objections to this concession, if one can try to read the minds of Ministers? The first one referred to by the noble and learned Lord, Lord Scarman, is cost. Without in any way seeking to suggest that the Minister has misled the Committee in that respect, would it really be as expensive as has been implied to have this fall-back reserve position? It is reasonable for the Committee to ask, as it was asked at Second Reading, for at least some figures to sustain that argument.

I find it very surprising indeed that some Figuring has not been done within the department about the present cost that falls on the police forces. Indeed, it would be irresponsible not to make some assumption of what an inquiry of this kind would cost in view of the very tight budgets with which most of our police forces work at present. I am not saying that it is possible to give a detailed figure. It would depend on how many inquiries were undertaken. But surely some information must be available from the police forces themselves about the cost which has fallen on them in the past for the Minister to tell the Committee what significant additional costs might be involved if these inquiries were undertaken by the commission.

There is a further point which is relevant to forming any view. If indeed the police forces were relieved of an inquiry from time to time because the commission carried that responsibility itself, surely it would be simply a matter of transferring costs from where they fall now on the police force to the commission, and it would be no more than that. I fully understand that the Treasury is always reluctant to see these sorts of transfers or to admit that they would take place. The Treasury would much rather see the cost of these inquiries lost, as it is lost now, apparently, in the overall cost of the police forces which undertake them. We have a right to ask either for figures or for transparency of some kind if the Minister is seriously to argue that cost is a major consideration, or even a significant one, in ruling out this option.

Beyond the question of cost there are two other factors which may well be in the minds of Ministers. The first is something which is subtle but very real. In the absence of a better description I call it the orthodoxy of government. By that I mean the orthodoxy of all governments and not simply this one. It is what happens when Ministers are required to find a method of following a new course to achieve new objectives. It is always the safe way which is adopted: it is to use the tramlines on which other things have been done in the past. The great advantage of that is that, if criticism were to arise, officials who advised that course and Ministers who adopted it would be able to say, "We simply followed precedent. We followed the practice which has been found adequate before". I believe that an element of orthodoxy has come into this because, if the method indicated in the Bill is followed, the department will at least feel that it has some control and understanding of how the process has been gone through.

The third point is one on which we must all give the Minister the benefit of the doubt in so far as the Minister will say, "We do not know that this procedure will work but we believe it to be the best one". That is a perfectly reasonable position to adopt. But, as I suggested at Second Reading, the Minister does not know whether this procedure is the best one and the House does not know either. The commission, which has not yet been appointed, cannot know either. It may well be that in the experience of the commission, after perhaps a relatively short period of time, it will take the view— and Ministers may be persuaded by the commission that it is the right view to accept—that, as both the noble and learned Lord, Lord Scarman, and the noble Viscount, Lord Runciman, said, in a very small minority of cases that may be the right course to adopt.

If the Minister and her colleagues genuinely believe that this is the most effective way, will they at least concede that they could be wrong and that the views expressed in this Committee may be the ones which turn out to be right? In those circumstances it would be easy to accept the amendment of the noble and learned Lord, Lord Scarman. All he is asking the Committee to do is to accept a reserve power. It will not often be exercised, but it will be there. I would have thought it very reasonable to ask the Minister to make that one minor concession. Nothing will be lost. There would certainly be no loss of face. Unless we have evidence to the contrary, there will be no significant additional item on the total bill.

7.15 p.m.

Lord McIntosh of Haringey

I support the noble and learned Lord's amendment but I am puzzled at the Government's attitude to this matter at Second Reading. The arguments for this amendment and for an independent power of investigation for the commission have been put with great authority by the noble and learned Lord and the noble Viscount, Lord Runciman, and I do not need to repeat them. But what puzzles me is that in these clauses generally the Government are taking a very sensible and rational line.

In Clause 19 in particular the Government are providing for very wide powers of supervision of investigations by the commission's staff. My noble friend Lord Merlyn-Rees teased some of those out at Second Reading and he got some very good and satisfactory answers from the Minister. Therefore, the more reasonable the rest of the arguments are—and I believe that they are reasonable—the more this particular restriction sticks out like a sore thumb. I beg the Government to realise that the unanimity of view which has been expressed, and in particular the evidence from the chairman of the Royal Commission, means that it would be perhaps a small step for the Government, but quite a big one in asserting the independence of the new commission, if they were to accede to this amendment or to something very like it.

Baroness Blatch

The noble and learned Lord, Lord Scarman, who has a reputation second to none as a guardian of justice, has introduced an interesting and stimulating debate on one of the most important parts of the Bill. Two propositions have come through very strongly in all the debates here and in another place on investigations by the commission: first, that police forces have played a valuable and respected role in uncovering evidence of wrongful convictions and that the commission must be able to draw on that expertise, skill and commitment; secondly, that there must be a strong, independent element in miscarriage of justice investigations, which should not simply be handed over to police forces to carry out alone. The Government agree with both these propositions. There is no great gulf between any of us on the principles involved here. The question we are debating is how best to achieve that balance of police work and independent skills and resources.

In drawing up the Bill we thought a lot about that balance, and we have listened carefully to what has been said about it in debates both here and in another place. Where we have concluded that improvements could be made, we have introduced amendments, and I have tabled further amendments to do with the commission's investigations, to which we shall come later.

Words like "investigation" and "inquiries" can have a very wide meaning and, with your Lordships' permission, I should like to go over in some detail what the commission's investigations are likely to entail in practice. In some respects investigations of this kind are similar to other criminal investigations; in some respects they are different. One difference is that a good deal of the investigation in a possible miscarriage of justice case is likely to be about re-evaluating material which is already available, or which has recently become available, rather than looking for new material. This important work of gathering and analysing the available evidence is something the commission can be expected to do itself and it will have substantial resources to enable it to do so. Under Clauses 16 and 17 it has the power of access to all the relevant documents and other material including physical evidence. It does not need to look to a police force or to anyone else to achieve that.

The commission may decide, after an initial look at a case, that some fresh inquiries are needed. Scientific tests, or the opinion of a psychiatrist or psychologist, may be called for. In a fraud case there may be reason to engage an accountant to apply his expertise to a trial of financial dealings. All this the commission will be able to do without going through a police force or any other intermediary.

Another need which commonly arises in such cases is for new witnesses to be interviewed or old witnesses to be re-interviewed. Here, as I believe has consistently been recognised on all sides during the passage of this Bill, there is advantage in the commission being able to harness the skills and experience of detective officers employed by police forces. There are other ways in which such officers could be of considerable assistance to the commission: the tracing of witnesses who may be hard to locate, particularly in older cases; the search for evidence that may either support or contradict what is asserted by a witness; questions of who could have seen or done what at which particular times; the use of sophisticated police technology and databases. Those are all matters on which experienced, trained detectives with up-to-date experience of a wide range of investigations will be ideally placed to assist the commission in its task.

Clauses 18 and 19 of the Bill exist to enable the commission to harness that assistance. I would understand better the criticism that has been made of those clauses if they merely required the commission to hand over its examination of the case to a police force and wait for the investigators to report. However thoroughly and conscientiously the investigators applied themselves, that might well not inspire sufficient public confidence in the conduct of the case as a whole. But that is emphatically not the approach in the Bill. To begin with, the commission will have the power to approve or to veto the choice of investigating officer; to require that officer to be appointed from an outside force; and, if your Lordships agree to amendments which I have tabled in order to strengthen the commission's powers still further, it will have the power to approve or to veto the choice of force if it has stipulated an outside force.

The commission's powers go further, however. The Bill empowers the commission to direct what inquiries should be made, and to supervise the conduct of those inquiries. What will those powers mean in practice? The answer is that they can be exercised as flexibly as the commission sees fit. The commission may direct, for example, that a particular witness be located and interviewed, and that particular questions be put to that witness. By way of supervision, a member of the commission or of its staff will be able (if they see fit) to attend such an interview; to accompany the investigating officer to an examination of the scene of the crime; to hold a conference with the officers at which the progress of the investigation is reviewed and its emerging results discussed—indeed, as the Bill precisely says, to take any steps which they consider appropriate for supervising the inquiries which are being made on the commission's behalf.

Those are entirely new powers in miscarriage of justice cases. For sound constitutional reasons, it is not open to the Home Office to take such an active part in investigations. But no such constraints need bind the commission, and that is one of the major advances secured by this Bill, powerfully reinforcing the excellent work done by police detective officers with a new, independent oversight which will both add a fresh dimension to the pursuit of these inquiries and at the same time promote the confidence which all of us wish to see.

I find it hard to see that such an approach will not meet the needs of almost any investigation which the commission might wish to undertake where detective work is called for. Nevertheless, it would be wrong to deny the possibility that, in some exceptional circumstances, the commission might itself wish to take a statement from a witness privately, for example. There are good reasons why in the general run of criminal cases we look normally to trained police officers to undertake the questioning of witnesses especially where there may be any possibility of the witness incriminating himself or another person. Nevertheless the commission will have among its members and staff people such as lawyers and those with investigative experience who could properly undertake such a task if it became necessary; and nothing in the Bill precludes the commission from proceeding in that way. That is already clear from Clause 20 in the Bill as it stands; but in order to put the matter absolutely beyond doubt, I have tabled Amendments Nos. 43 and 44.

I have sought to explain that the powers in Clauses 18 and 19 are an important part, but only a part, of the means which the commission will have at its disposal to investigate cases. The powers to appoint an investigating officer, and then to supervise and direct that officer's inquiries, are necessary because, without them, the commission would not be in a position to harness police expertise to its advantage. But that, as I have explained and as Clause 20 makes clear, does not preclude the commission from pursuing other means of investigation according to the needs of the case, and doubtless in many cases it will wish to use a variety of means to examine the matter. With respect to the noble and learned Lord, Lord Scarman, it is unnecessary to provide for the commission to appoint its own staff as investigators, because that is what its staff are there to do. If the commission needs to look for assistance outside itself and other than under the terms of Clauses 18 and 19, then it will need to contract the service required and will be able to settle the terms of the assistance in the contract.

The noble and learned Lord, Lord Scarman, raised a number of other points. He said in particular that other investigators would not have police powers. As the noble and learned Lord said, the commission has important powers of its own but, for reasons that I shall explain when we come to Amendment No. 40, I doubt whether it is desirable to confer coercive powers on people other than police officers when those can be exercised by the police themselves. Indeed, such powers are not often needed in miscarriage of justice cases.

The noble Lord, Lord Merlyn-Rees, and the noble Viscount, Lord Runciman, referred to having trained investigators on the commission's staff. The Government intend that there should be three or four people with investigative experience on the commission's staff. Therefore, we see no reason why they should not be, for example, police officers on secondment; but we believe that such people would be best used in assisting the commission to plan, direct and supervise investigations by the police and others rather than conducting investigations for the commission itself.

Reference has been made to rare cases which could require an independent investigator. The police have an excellent track record in investigating alleged miscarriages of justice. The cases of the Birmingham Six, the Guildford Four and the Darvell Brothers are all examples of convictions quashed following referral. Patient, thorough police work turned up the evidence in each of those cases to justify the referral. We are not aware of any case in which an investigation by the police at the Secretary of State's request has been anything less than thorough and effective.

A major change from the current arrangements will be the use of police investigators working under the active direction and supervision of the commission. That, and the power of the commission to insist on an outside force, provides the necessary independent element in such investigations. The difficulty with complex and rare cases is that those are just the cases in which we need police expertise. Their knowledge is necessary if such cases are to be investigated properly. We believe that, with the supervision of the commission, we are providing the right balance to ensure both the independence and the expertise that is required.

The noble Viscount, Lord Runciman, referred also to cases of a miscarriage of justice attributable to police misconduct. No one denies that there has been misconduct in some original police investigations, but we are not aware of any case in which there has been malpractice when the police have looked into a case again at the request of the Home Office—that is even without the commission's powers to direct and supervise.

Having explained the approach in the Bill in some detail, it is important that I should also make clear what the Bill will not do. The Bill does not provide for the establishment of a sizeable in-house team for the purpose of carrying out the sort of detailed, on-the-ground investigations that are currently carried out in a number of these cases by police forces. There are reasons both of practicality and of principle for our decision not to put forward such a proposal.

The advantage of the approach in the Bill is that detective officers based in police forces can, in effect, be co-opted to work for the commission but on a flexible basis. Suitable officers can be made available to the commission and then returned to their general duties, with the minimum of delay and disruption at either end of the process. If, by contrast, an in-house team were to be set up, how large would it have to be in order to be both flexible and effective? By what criteria would it be decided that a case should be looked into by the commission's own force of investigators rather than by officers serving in a police force? Would not there be a danger of a two-tier system developing, with applicants whose cases were investigated by the "ordinary" police being left unsatisfied because they had not been attended to by the in-house team? And what would be the effect on police investigators in the cases they were permitted to investigate under the commission's superintendence, knowing that the applicant would be likely to regard that inquiry as a second best option? On top of those difficulties, the creation of an in-house force large enough to make any kind of impression would add significantly to the administrative and resource burden on the commission in terms of accommodation and other overheads, personnel management, training and discipline, whereas under the Bill those responsibilities would remain in police forces which have to exercise them in any case.

There are also good reasons of principle for not divorcing the responsibility for police work in miscarriage of justice cases from criminal investigation generally. If we were to do that, I believe we should be sending entirely the wrong message to police forces. We should be saying to the police service, "Your job is to investigate the original offence as well as you can and not to worry too much about what happens after that. If something has been missed or gone wrong, whether it was your fault or not, don't worry. It is not your responsibility to help sort it out, although we may allow you to try your hand at some of the more routine cases".

We must ask ourselves the question: which approach is most likely to help prevent miscarriages of justice in the future? Is it the approach which shuts police officers off in some of the most important cases, telling them this is a specialist matter and not for them, or is it the approach in the Bill whereby detective officers from police forces can work closely as part of a team with the independent members and staff of the commission, benefiting from their guidance and supervision and learning lessons which they can apply in their general criminal work?

None of that is to deny that the commission will benefit from having some in-house investigative expertise. We intend to provide for that. Experienced investigators employed directly by the commission will help it to make the best use of its powers and facilitate communication between the commission and outside investigators, working, as it were, on the nitty-gritty of inquiries on the ground. But once again we have to confront the question of what will best serve the commission's purpose. Is it to have a group of experienced investigators who are for ever away from the commission, buried in detailed inquiries in one or two cases, or will their contribution be more effective if, as we propose, it takes the form of advice to the commission on a wider range of cases according to the needs and priorities of the moment?

I am grateful to the noble and learned Lord, Lord Scarman, for initiating this debate on one of the most important facets of the Bill. I have sought to explain how the Bill empowers and enables the commission to investigate cases by a number of different means, and I have explained why we do not believe a sort of shadow police force located in the commission would be either practicable or helpful to the cause of preventing and remedying miscarriages of justice.

Costs were mentioned by the noble Lord, Lord Rodgers of Quarry Bank. As I said in a previous debate on the Bill, it is difficult to estimate the cost of an in-house investigative team as it is difficult to establish its size or training needs, but it is clear that it would add to the commission's costs in terms of staffing, accommodation and training if it were to take on its own staff. So whatever the costs, and whatever concerns the noble Lord has, we know that that proposal would add to those costs.

The team that was taken on directly would have to be given extensive training in investigative work and kept in touch with any new developments. That training would have to be given by the police. The commission would have to pay the cost of the training, while the training would place an extra burden on the police. It would not be as cost effective as using police officers who would receive that training as part of their job.

The noble Lord, Lord Rodgers, said that it is just a matter of transferring costs from the police to the commission: we just hand one job over to the other body. It is not as simple as that. Where police forces investigate, they use officers whose training, accommodation and other such costs are already paid for as part of the force's general costs. An in-house team in the commission would require all of those costs to be borne afresh, in addition to the costs of the police forces.

The noble Lord, Lord Rodgers, said also that the Government are merely following orthodoxy. The noble Lord is known for his hostility to government and government thinking, but that is a remarkable statement given that the Bill gives the commission powers to direct and supervise police officers, which the Home Office does not have now and which have not existed before in these miscarriage of justice cases.

I hope very much that as a result of these explanations the noble and learned Lord will not consider it necessary to press his amendment. However, if he were to do so, I have to say that it would make both an unnecessary and a misleading addition to the Bill, and I therefore cannot advise the Committee to agree with it.

Lord Scarman

With much of what the Minister has said I am sure that all Members of the Committee will agree. She made a speech in which she included many of the Bill's virtues, and she has shown herself—I hope that it adequately represents the spirit of the department— anxious to conciliate and to meet our various points. Yet why does not she trust the commission with this reserve power? We are not shutting out the police from the investigation into miscarriages of justice; on the contrary, we are saying that almost every case will be examined by the police, some of them supervised and directed by the commission, some of them without that need.

No one here supporting the amendment, I venture to say, is suggesting that we come here because we do not trust the police. Of course we trust the police. They have done extremely well. One has only to think of some of the miscarriage of justice cases which have been revealed and dealt with. They were the consequence of admirable police inquiry. What we are saying is that we believe that the commission should have this reserve power. We are not suggesting that it should be used every day of the week or every day that there is a case referred to it which requires some investigation. What we are saying—one cannot possibly visualise what will happen until it happens—is that there may be cases which have a tremendously disturbing effect upon the public, in which suggestions are made that the police have been guilty of this, that or the other misconduct. The police of course strongly deny that.

Why cannot we trust the commission, which is supposed to be a strong and independent body, to say, "Well, this is the sort of case in which, to satisfy public opinion, we will depart from our normal practice and ourselves investigate"? Surely the commission has the judgment, strength and independence to conduct an investigation, to appoint its own investigating officer and, in such rare cases, to do so without the aid of the police. It is important not only that justice should be done but, in cases of alleged miscarriages of justice and so forth, that justice should be seen to be done to the satisfaction of the public. One does not want to go into the detail.

The noble Baroness, the noble Lord, Lord McIntosh, and I have pointed out the many ways in which the Government have come forward with sensible suggestions and sensible amendments. Cannot they see that they are not introducing anything but what is exceptional? Surely the body, coming into existence as a result of a strong recommendation from the Runciman Commission, can be trusted to handle this reserve power so that in the unusual case, which I fear sooner or later will arise, the public can see that there has been an absolutely independent inquiry—not because the police are dirty beggars but because the police are, so to speak, possibly an interested party.

I was delighted with much of the noble Baroness's speech. I liked its sentiments, its manner, its understanding and its approach. However, we have one point on which, flattered as I am by the approach of the noble Baroness, I regret to say I do not feel likely to give away.

Before I sit down I wish to associate myself with what was said by the noble Viscount, Lord Runciman, about the Justice written observations on the amendment. I commend the whole of it to the attention of the Ministry. I am afraid that I now beg to move the amendment—

Baroness Blatch

I wonder whether before the noble and learned Lord sits down he will allow me to pose one question. In saying that we need a reserve power in the Bill, does he agree that Clause 20 contains a reserve power for the commission to make inquiries of its own without the need for this present amendment? Does he also agree that even where the police are carrying out inquiries it is possible to accompany them, to question independently and to carry out as much of the independent inquiry as is necessary to make sure that people are not left believing that the police are investigating themselves alone and unaided by the commission?

Lord Scarman

Yes, that power is given to the commission but why cannot the Minister take her courage in her hands, go the whole way and say that in the exceptional case which demands it the commission is empowered to go the whole way in the investigation of the matter? To give it this power, that power and the other power is marvellous but we are dealing with an exceptional situation. It is exceptional in the sense that we may have to wait a long time before it ever arises but I am afraid that it will arise one day. Although I am a very old man, I am quite certain of that. I beg to move.

7.45 p.m.

On Question, Whether the said amendment (No. 32) shall be agreed to?

Their Lordships divided: Contents, 68; Not-Contents, 76.

Division No. 2
CONTENTS
Addington, L.	Elis-Thomas, L.
Airedale, L.	Farrington of Ribbleton, B.
Alexander of Weedon, L.	Fisher of Rednal, B.
Archer of Sandwell, L.	Gallacher, L.
Barnett, L.	Gladwin of Clee, L.
Birk, B.	Gould of Potternewton, B. [Teller]
Blackstone, B.
Carmichael of Kelvingrove, L.	Graham of Edmonton, L. [Teller.]
Carter, L.
Craigavon, V.	Greene of Harrow Weald, L
Dean of Beswick, L.	Hamwee, B.
Dean of Thornton-le-Fylde, B.	Harris of Greenwich, L.
Desai, L.	Haskel, L.
Diamond, L.	Healey, L.
Donoughue, L.	Hilton of Eggardon, B.
Dormand of Easington, L.	Hollis of Heigham, B.
Dubs, L.	Howell, L.

Hughes, L.	Richard, L.
Irvine of Lairg, L.	Rodgers of Quarry Bank, L.
Jeger, B.	Runciman of Doxford, V.
Kilbracken, L.	Russell, E.
Kirkhill, L.	Scarman, L.
McIntosh of Haringey, L.	Seear, B.
Mallalieu, B.	Sefton of Garston, L.
Masham of Ilton, B.	Shepherd, L.
Mason of Barnsley, L.	Sherfield, L.
Merlyn-Rees, L.	Stoddart of Swindon, L.
Milner of Leeds, L.	Templeman, L.
Monkswell, L.	Tordoff, L.
Monson, L.	Turner of Camden, B.
Morris of Castle Morris, L.	White, B.
Nicol, B.	Williams of Crosby, B.
Plant of Highfield, L.	Williams of Elvel, L.
Prys-Davies, L.	Williams of Mostyn, L.
Redesdale, L.	Winchilsea and Nottingham, E.

NOT-CONTENTS
Addison, V.	Inglewood, L. [Teller.]
Ailsa, M.	Jenkin of Roding, L.
Aldington, L.	Johnston of Rockport, L.
Allenby of Megiddo, V.	Kenilworth, L.
Annaly, L.	Kingsland, L.
Astor, V.	Lane of Horsell, L.
Balfour, E.	Leigh, L.
Beloff, L.	Lindsay, E.
Blaker, L.	Long, V.
Blatch, B.	Lucas, L.
Boardman, L.	Lyell, L.
Brabazon of Tara, L.	McColl of Dulwich, L.
Braine of Wheatley, L.	McConnell, L.
Brougham and Vaux, L.	Mackay of Ardbrecknish, L.
Butterworth, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Carnock, L.
Chalker of Wallasey, B.	Marlesford, L.
Chesham, L.	Miller of Hendon, B.
Coleraine, L.	Moyne, L.
Colwyn, L.	Newall, L.
Courtown, E.	O'Cathain, B.
Craig of Radley, L.	Oxfuird, V.
Cranborne, V. [Lord Privy Seal.]	Peyton of Yeovil, L.
	Rankeillour, L.
Crathorne, L.	Rawlings, B.
Cumberlege, B.	Renwick, L.
Dilhorne, V.	Rodger of Earlsferry, L.
Dixon-Smith, L.	Seccombe, B.
Downshire, M.	Sharples, B.
Dundonald, E.	Shaw of Northstead, L.
Dunrossil, V.	Skelmersdale, L.
Fraser of Carmyllie, L.	Stanley of Alderley, L.
Hacking, L.	Stewartby, L.
Harding of Petherton, L.	Strathclyde, L. [Teller.]
Henley, L.	Thomas of Gwydir, L.
Hogg, B.	Torrington, V.
HolmPatrick, L.	Trumpington, B.
Hooper, B.	Vivian, L.
Howe, E.	Westbury, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.53 p.m.

Baroness Blatch moved Amendment No. 33: Page 14, line 38, leave out ("such other police force as the chief officer thinks fit") and insert ("another police force selected by the chief officer").

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 35 to 38 and I suspect that the noble Lord, Lord McIntosh, will address his Amendment No. 34.

Some concerns were expressed during Report and Third Reading of the Bill in another place that the commission's powers under Clause 18 would be insufficient to enable it to prevent the situation from arising where two forces would be mutually investigating one another on behalf of the commission. It was suggested, for example, that the commission could decide to look into a particular West Midlands case and in issuing a requirement to the chief officer of that force to appoint an investigating officer require him to bring in someone from another force. The chief officer of the West Midlands force could then appoint an officer from the West Yorkshire constabulary. That might be undesirable if the West Midlands force was already investigating a West Yorkshire case for the commission. Although such a scenario seems a little improbable, not least because our current experience would suggest that an outside force is needed in relatively few cases, we nevertheless think it best to enable the commission to prevent it if it thinks fit. Amendments Nos. 33 and 35 to 38 therefore empower the commission to approve or disapprove the outside force—or, in the case of an offence investigated originally by another public body, the outside public body—to be brought in.

The amendment to the amendment tabled by the noble Lord, Lord McIntosh of Haringey, would have the effect of giving the choice of outside force to be brought in to the inspectorate of constabulary. This would represent an entirely new role for such inspectors and one which would fall outside their existing remit. Inspectors of constabulary play no part in allocating people to operational duties. The Government believe that it would be wrong to add such a task to their responsibilities. I have to say to the Committee that we cannot therefore accept the noble Lord's amendment. I beg to move Amendment No. 33.

Lord McIntosh of Haringey had given notice of his intention to move, as an amendment to Amendment No. 33, Amendment No. 34: Line 2, leave out ("chief officer") and insert ("Inspector of Constabulary").

The noble Lord said: The Minister will be aware that I tabled Amendment No. 34 before she tabled her Amendments Nos. 33 and 35 to 38. Therefore, whatever may be the defects of trying to extend the role of inspectorate of constabulary, I hope and believe that the purpose of my amendment is the same as government Amendment No. 37, which I take to be the really important amendment in this group. I am grateful to the Minister for the amendment and for the assurances that she has just repeated that the commission will have the power to disapprove the selection of another police force by the originating police force. To that extent the need for my amendment is less than it would otherwise have been.

However, the route seems an awfully long way round. The originating police force has a choice in the matter but if either the originating police force or the commission thinks it is appropriate to go elsewhere the originating police force must then make its choice and the commission may then refuse that choice and make another choice. The purpose of giving the role to the inspectorate of constabulary was deliberate. In general, nobody outside the police service knows what is the availability of resources in different police forces. The Government are now proposing that the commission shall embark on a trial and error supposition. For example, the West Midlands force says that it wants the job to be done by West Yorkshire; the commission says that it does not want that to happen and that its choice is the Devon and Cornwall constabulary. The originating police force can then say that it does not want the job done by Devon and Cornwall but by another force. At some stage a decision must be made as to who is available and suitable to do the work. It seemed to us that it was not a very great extension of the inspectorate's role to make sure that the choice was made within the police service but not, as is agreed to be undesirable, by the originating police force.

However, those are relatively minor matters. In the circumstances, it is not appropriate for me to move Amendment No. 34 as an amendment to Amendment No. 33.

Lord Harris of Greenwich

I am glad that the noble Lord, Lord McIntosh, takes that attitude because although I share most of his views on the Bill I should not have been happy about accepting his amendment. Inspectors of constabulary have entirely different responsibilities. In my view acceptance of the amendment would have created a high degree of confusion. The inspectorate is not staffed to carry out such responsibilities. It has area and subject responsibilities and it would feel a great deal of tension were the responsibility proposed in the amendment to be passed to it. I am sure that there would be very little enthusiasm within the inspectorate for carrying out those responsibilities.

The noble Lord has indicated that he does not wish to move his amendment and therefore I say no more about it save that it would be an error to have entrusted responsibilities of this sort in the way the noble Lord proposed.

[Amendment No. 34, as an amendment to Amendment No. 33, not moved.]

On Question, Amendment No. 33 agreed to.

Baroness Blatch moved Amendments Nos. 35 to 38:

Page 14, line 44, leave out ("such police force, or in such") and insert ("a police force, or in a").

Page 14, line 46, leave out ("as the appropriate person thinks fit") and insert ("selected by the appropriate person").

Page 14, line 48, leave out from ("direct") to end of line 2 on page 15 and insert ("—

1. (a) that a person shall not be appointed, or
2. (b) that a police force or other public body shall not be selected,

under subsection (4) or (5) without the approval of the Commission.").

Page 15, line 11, leave out from ("appointed") to end of line 13 and insert ("without the approval of the Commission.").

On Question, amendments agreed to.

Clause 18, as amended, agreed to.

8 p.m.

Clause 19 [Inquiries by investigating officer]:

[Amendment No. 39 not moved.]

Lord McIntosh of Haringey moved Amendment No. 40:

Page 15, line 19, at end insert:

("(2A) The Commission may at any time, if they think there is good reason to do so, authorise an investigating officer directly appointed by the Commission, on producing (if so required) evidence of his authority, to require any person to produce to him forthwith any document in his custody or power which the investigating officer may reasonably require.

(2B) A justice of the peace may issue a warrant under this section if satisfied on information on oath given on behalf of the Commission, or by a person directly appointed by the Commission, to exercise powers under this under this Part, that there are reasonable grounds for believing that there are on the premises documents the production of which has been required, and which have not been produced in compliance with this requirement.

(2C) A warrant under this section shall authorise the investigating officer together with any other person named in it—

1. (a) to enter the premises specified in the information, using such force as is reasonably necessary for the purpose;
2. (b) to search the premises and take possession of any documents as appear to be the documents mentioned in subsection (2A) or (2B), as the case may be, or to take, in relation to any such documents, any other steps which may appear to be necessary for preserving them or preventing interference with them;
3. (c) to take copies of any such documents; and
4. (d) to require any person named in the warrant to state where they may be found.

(2D) Any documents of which possession is taken under this section may be retained for as long as is reasonably necessary.

(2E) If in the case of a warrant under subsection (2B) the justice of the peace is satisfied on information on oath that there are reasonable grounds for believing that there are also on the premises other documents relevant to the investigation, the warrant shall also authorise the actions mentioned in subsection (2D) to be taken in relation to all such documents.

(2F) A warrant under this section shall continue in force until the end of the period of one month beginning with the day on which it is issued.

(2G) Any person who intentionally obstructs the exercise of any rights conferred by a warrant issued under this section or fails without reasonable excuse to comply with any requirement imposed in accordance with subsection (2C) (d) is guilty of an offence and liable to a fine.

(2H) In this section "document" includes information recorded in any form.").

The noble Lord said: I believe that I should move the above amendment because it was referred to at some length in the debate on Amendment No. 32. Its purpose is to show that it is perfectly possible to give an investigating officer directly appointed by the commission—and I still think that we may have to return to the matter at a later stage because, as the Minister rightly said, it is one of the most important issues in the Bill—the power which is necessary, and no more than that, to carry out investigations which would otherwise be carried out by the police or by other public bodies with investigative powers.

I move the amendment knowing that I shall withdraw it because of what the Minister said as regards Amendment No. 32. She said that she found the powers provided in Amendment No. 40 to be too coercive. I was puzzled by that; I did not feel that we had gone any further than the powers which are provided for many investigators who are not part of the police—for example, the DTI investigators or those from Customs and Excise. Indeed, there are many other examples of comparable powers. It would be useful to have on the record the Minister's arguments so that we can combat them when we return to the issue of independent investigation at a later stage. I beg to move.

Lord Merlyn-Rees

Perhaps I may use the occasion to raise a matter which has been discussed tonight and which no doubt will be discussed again. I noticed that my noble friend used the word "coercive". I was very pleased both at the earlier stage of the Bill and tonight with the words that the Minister used as regards "direct" and "supervise"; indeed, they are very powerful words. But I do not really know what they mean. I do know that C3 did not direct or supervise.

Let us suppose that the West Yorkshire police are asked or appointed to carry out an inquiry, and someone in the commission is to supervise them as regards what they are doing. If the exercise is taking place in the Midlands, does it mean that someone from the commission moves to the area and asks "What have you done today? Have you looked into this?, followed by, "Because I have read the papers, I direct you to go and have a look at what is going on over there", and then supervises the proceedings? In other words, that person asks later, "What have you done? Have you carried out my instructions?"

I genuinely do not understand what the words "supervise" and "direct" mean in that respect. As I said, they are most powerful words. Perhaps we can use this occasion to clarify their meaning.

Lord Rodgers of Quarry Bank

In view of the remarks made by the noble Lord, Lord Merlyn-Rees, I should like to make a contribution. I am very glad that the noble Lord, Lord McIntosh, has moved the amendment so that we may explore and illustrate how the principle of an in-house investigating team could work. I return for a moment to an earlier discussion. I must say that I find it difficult to understand why, under the terms of the Bill, the commission shall be empowered to employ police officers to supervise an investigation but not be empowered to employ those who carry out the investigating. That is exactly the provision in the Bill as drafted.

I was grateful to the Minister for spelling out in a great deal more detail how the process would work. In fact, she reassured me in a number of respects. But, nevertheless, given the Minister's argument for flexibility, I believe that the terms of the amendment where it says that the, Commission may at any time, if they think there is good reason to do so", set out exactly the sort of tone which would be reflected in the provisions of the Bill.

At one stage in our previous discussion—and I am sure that I recall this correctly—the Minister said that we must ask the question: what best suits the commission's purpose? Of course, the Minister is right to ask that question, but I believe that what best suits the commission's purpose is for the commission to decide. The argument that we had earlier, and to which the amendment refers, is whether this place, or more particularly the Government, or, indeed, the commission should decide what best suits the commission's purpose in achieving the Bill's objectives. The noble and learned Lord, Lord Scarman, asked why we could not trust the commission. That is a most important question. If this place cannot trust the commission, how can we expect the commission to be trusted by the public once it has been established?

Baroness Blatch

The amendment would give sweeping powers of unprecedented scope for the commission and its agents to enter premises and search for and remove documents. Although apparently modelled on provisions in the Companies Act 1985, the present amendment goes far wider than the powers in that Act, which relate to very specialised offences and circumstances.

Parliament has rightly been cautious about extending invasive and coercive powers of regulation and investigation. It has insisted that there should be a genuine need which cannot be met by less draconian means; that there should be strict control over who can exercise such powers and in relation to what kinds of material; and that there should be sufficient safeguards and assurances of accountability. I have to say that I am doubtful that the present amendment satisfies any of those important conditions.

The powers in the Companies Act are there because of the special nature of the investigations involved and the special position of those being investigated. The powers relate only to material sought in connection with a limited range of financial offences which it would be exceptionally difficult to prosecute without unusual powers to obtain evidence of the trail of transactions involved. By contrast, the present amendment would extend similar powers to the commission in relation to any material whatsoever across the whole range of its cases, however great or small, and whatever the nature of the matter being investigated.

Further, the amendment appears to enable the commission to appoint anyone it likes to exercise those powers, even in the case of the first subsection, without applying for a justices' warrant. No indication is offered as to who might be an appropriate person, or what qualifications or standing the commission or, indeed, the justices should look for. It is difficult to see how accountability for the exercise of those invasive powers could be effectively maintained in those circumstances.

Powers of entry and search, especially when, as here, they may be exercised against private citizens in their homes, are normally confined to police officers, for very good reasons to do with training, discipline and public accountability. Even when it is necessary for the powers to be exercised by someone with special professional knowledge, there is generally provided the added safeguard—as in the Companies Act—that that person should be accompanied by a constable. The amendment, on the other hand, does not even make that requirement.

Amendment No. 40 also sets up a dangerous anomaly. It attaches no restrictions to the type of material that could be seized, including material which is unlikely to be admissible in evidence, such as that protected by legal privilege—that is, communications between a lawyer and his client in relation to legal advice requested by and provided to that client. Moreover, the conditions for obtaining access to sensitive material under the amendment are less stringent than those set out in Schedule 1 to the Police and Criminal Evidence Act 1984. The amendment would, therefore, impose fewer safeguards and restrictions on those powers of investigation than apply to those exercised by the police. We cannot sensibly have two standards applying at different stages of the criminal justice process.

No doubt the proposed amendment could be tempered to meet those points if it were thought that the commission needed additional powers of that kind, but I have heard nothing to suggest that it does. I am not aware of any case in the experience of the Home Office in which existing means of investigation—including the exercise of normal police powers—have proved insufficient to locate documents necessary to consideration of a case. The Royal Commission rightly recognised this, and recommended that the need for extra powers should be kept under review—not that they should be provided on the off-chance they might be needed one day.

The noble Lord, Lord Merlyn-Rees, posed an important question—namely, whether the commission could go to the Midlands—in trying to tease out precisely how "direct" and "supervise" would happen in practice. First, I should say, yes they can. What we would envisage in practice is that the initial prescriptive direction would come from the commission to the investigator of a particular case. If the commission at any time was concerned about the way that investigation was taking place and if it was unhappy about the service it was receiving from either an individual police officer or a police force, it is within the powers of the commission to call that person or indeed the force off the investigation, but it is also within its powers to accompany a police officer during an investigation and to direct the questions that are asked of a particular person. All the safeguards are there for the commission to satisfy itself that the police service is providing the service which is prescribed in the first place by the commission. I think the noble Lord, Lord Merlyn-Rees, together with myself, would accept that the police in almost all cases will deliver a quality service to the commission. But, should it not in a particular case, then the commission has powers to do something about that.

Lord McIntosh of Haringey

That was a fascinating answer and I shall read it with great care. I am temperamentally sympathetic to the idea that we should be cautious about extending powers of entry and police powers. Therefore, quite apart from the fact that the Committee decided earlier not to give the commission its own investigative powers, I believe the Minister is right as regards the extent to which we propose to extend such powers in this amendment. I was encouraged to hear her say that no doubt a more modest amendment could be devised. Those were not her words but I think that that was what she was driving at. If, as I hope and believe, we persuade the Government or the Chamber that the commission should have its own investigative powers, I am sure that we can come up with a series of powers which would be appropriate without being unduly coercive, as I am now convinced the present amendment appears to be. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.15 p.m.

Baroness Blatch moved Amendment No. 41:

Page 15, line 45, leave out ("and opinions obtained, and any reports commissioned,") and insert (", opinions and reports received by him").

The noble Baroness said: I spoke to Amendment No. 41 with Amendments Nos. 27 to 30. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 42:

Page 15, line 47, at end insert: ("( ) The Commission shall issue a Code of Practice giving guidance on—

1. (a) the duties of an investigating officer,
2. (b) the nature and extent of the supervision of inquiries to be exercised by the Commission, and
3. (c) the general conduct of inquiries.").

The noble Lord said: Amendment No. 42 was intended to plug another of the possible holes in the argument for Amendment No. 32 for investigative powers for the commission. However, looking at it, despite the earlier decision of the Committee, I rather think that Amendment No. 42 stands in its own right and deserves the support of the Committee regardless of what we said previously. My noble friend Lord Merlyn-Rees referred to the difficulty of understanding what is meant by direction and supervision. I am sure he is right. Inevitably, if a distinguished ex-Home Secretary finds difficulty with that, I think the commission and those responsible will be feeling their way as regards the quite wide powers of direction and supervision of investigations which, as the Minister reminded us, have never been held before by C3 for perfectly good constitutional reasons.

Therefore it seems to me sensible that we should attempt to codify the extent to which there should be rules for an investigating officer, and the degree of supervision and direction which is to be imposed, because if we are feeling our way in these matters and if these powers are as extensive as they appear to be, surely it is desirable that as soon as possible—perhaps not immediately; we do not set down any date for the introduction of a code of practice—they should be set out in a form which is available to the public, the police, the legal profession and, of course, for the commission's own benefit. The analogy we should draw is with the code of practice which the Crown Prosecution Service has published for Crown prosecutors. To that extent, although the original motivation for the amendment no longer exists, I hope that the Government will feel that it has merit in its own right and that the Minister will be sympathetic towards it. I beg to move.

Lord Harris of Greenwich

There is a powerful case to be made for the amendment. I suspect the noble Baroness will say that it is unnecessary on the grounds that the police know perfectly well what their duties are when carrying out investigations of this character. However, a further reason why, in my view, it is desirable is to inform the public of the responsibilities of the police in matters of this sort. After all, why do we have this Bill? We have the Bill and we will have the commission because of a series of major miscarriages of justice. It seems to me highly desirable that the commission should be in a position to publish some form of code of practice not only for the benefit of the police and for police training, and for other reasons which are special to the police service, but so as to indicate to the general public what sort of service they expect the police to carry out on their behalf. The case for the amendment is, I think, a strong one. Although the noble Baroness no doubt has on her briefing papers at the top left hand corner the word "Reject", I believe that there is a good case to be made for incorporating the proposal in the Bill.

Baroness Blatch

I see the virtue in openness and transparency in the commission's operating procedures, which the noble Lord advanced. The question is whether a statutory requirement in the amendment is either necessary or even helpful. Like other non-departmental public bodies, the commission will be subject to the code of practice on open government and there will therefore be an expectation that it will make available information about its procedures and policies, including those relating to inquiries and investigations.

The amendment seems to me to raise a number of difficulties. It seems curiously circumscribed. By applying only to inquiries under Clause 19, does it imply that clear, transparent policies and procedures are somehow less important in other areas of the commission's work? That seems a very worrying implication.

It is apparent that the code envisaged by the amendment would deal not only with matters of conduct and propriety but also with policy and possibly with efficiency as well. It may not necessarily be most helpful for these very different things to be covered in the same way or in the same document. We must allow the commission a reasonable scope to determine how best, and in what form, to make available information about the way it will carry out tasks which are complex and which will develop over time.

As I said, the commission will be bound by the same principles of openness that apply today in other areas of public administration. Furthermore, the Bill provides for the commission to report annually to the Secretary of State. Its report will no doubt describe the manner in which cases have been investigated over the reporting year. The report will be laid before Parliament and the Chamber will have an opportunity to debate the issues it raises if it so wishes. The commission can be examined by Select Committees of Parliament. The Bill also provides for the commission to keep proper accounts and for these to be audited by the Comptroller and Auditor General and laid before Parliament. Again it will be open to the Chamber and to the Public Accounts Committee to consider the commission's report and accounts. It is hard to see therefore what more is needed to ensure that the commission's methods are open to scrutiny.

I hope that this reassures noble Lords that the commission will be both open about its procedures and properly accountable. I appreciate the spirit in which the amendment was moved but the proposal in it seems to risk producing a requirement on the commission which is curiously narrow, inflexible and obscure. Despite the fact that I am inviting the Committee to reject the amendment, I believe the answer I have given has intellectual validity.

Lord Harris of Greenwich

I must say with great respect to the noble Baroness that that is a deeply unpersuasive contribution. It seems to me that she read out a speech which she had prepared in advance assuming that the arguments would have a different character to those that were deployed. It is deeply disappointing. I hope that she will think about the matter between now and the next stage of the Bill.

We are talking not about the annual report of the commission which, as she rightly said, may be discussed, considered and debated in Parliament, or the position of the Comptroller and Auditor-General. We are talking about a code of conduct which, in my view, will be of benefit to the police service and to the general public, who would know what the commission expects of the police service when carrying out its responsibilities. That seems to me to be highly desirable. I would find it remarkable were the commission to take the view that that would be in any way damaging to its general responsibilities laid down in this statute.

I hope that the noble Baroness will look at this matter again because she has adopted a position of inflexibility on the amendment, which deserves more consideration than it has so far been given.

Lord McIntosh of Haringey

I, too, found that a very strange answer. My first reaction was that you cannot win. We are accused of being too broad in the powers that we seek for investigation in Amendment No. 40, and then accused of being too narrow in the terms of the code of practice. The Minister appeared to suggest that there were other clauses than Clause 19 which required a code of practice and it was peculiar for this code of practice to apply only to that clause. I do not understand that.

Clause 19 is the clause which describes the inquiries by the investigating officer. Clause 18 deals with the issue of who the investigating officer shall be. Clause 19 lays down all of the complex new issues of supervision of the investigating officer and the investigating force by the commission. Everybody, not least my noble friend Lord Merlyn-Rees but also the Minister herself, has recognised that there is a great deal of new practice to be discovered in the early period of the commission's existence. Therefore, we have set out here relatively simple, but not particularly inflexible, provisions covering, first, the duties of the investigating officer; secondly, and perhaps most important, the nature and extent of the supervision of inquiries to be exercised by the commission; and, thirdly, the general conduct of inquiries. That fits in very well with the content of Clause 19, which is the most important area in relation to which the commission will have to find its feet and learn to operate effectively.

Secondly, as the noble Lord, Lord Harris of Greenwich, rightly said, it is important that the code of practice should be in the public domain and that the commission should have accountability beyond that which is available from other government regulations and other open government provisions in this new area of government activity.

I do not doubt the sincerity of the Minister in saying that there are other ways of achieving accountability to the public. However, a code of practice specifically designed for this purpose, relating to the most difficult areas in the Bill, and put on the face of the Bill is of considerable importance and virtue. Those virtues, and the provisions suggested in the amendment, have a validity which I do not believe has been overturned in any way by the Minister's arguments.

If it were not for the lateness of the hour I would be inclined to seek the opinion of the Committee. As it is, I shall consider what further action is needed on this point. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19, as amended, agreed to.

Clause 20 [Other powers]:

Baroness Blatch moved Amendment No. 43:

Page 16, line 2, leave out from ("steps") to ("which") in line 4.

The noble Baroness said: In moving Amendment No. 43 I shall also speak to Amendment No. 44.

The Bill gives the commission a range of powers to assist in its task, including the important powers in Clauses 18 and 19, to harness the expertise and knowledge of detective officers in the police under its independent direction and supervision. Clause 20 makes it clear that none of the powers specifically conferred on the commission by the Bill are to be read as limiting its ability to take other steps to investigate cases.

The question has been raised in earlier debates in this Chamber and in another place as to whether the commission is invariably bound to undertake inquiries through a police force or other public body. The purpose of the present amendments is to make it clear that the commission is not constrained in this way. The commission will no doubt want to consider very carefully which kinds of inquiry it is best placed to make itself and which are best undertaken by police officers or others on its behalf. There are good reasons why the questioning of witnesses, for example, is normally carried out by trained police officers, but the commission would not want to be precluded from undertaking that task itself in an exceptional case, nor from undertaking other forms of inquiry.

I hope that the amendments are acceptable. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 44:

Page 16, line 5, at end insert ("including, in particular—

1. (a) undertaking, or arranging for others to undertake, inquiries, and
2. (b) obtaining, or arranging for others to obtain, statements, opinions and reports.").

On Question, amendment agreed to.

Clause 20, as amended, agreed to.

Clause 21 agreed to.

8.30 p.m.

Baroness Mallalieu moved Amendment No. 45:

After Clause 21, insert the following new clause:

("Availability of legal aid

. The Secretary of State shall make regulations to amend the Legal Advice and Assistance Regulations 1989 made under the Legal Aid Act 1988 to ensure that in appropriate cases persons who have been convicted of offences have advice and assistance from solicitors to assist them with any necessary communications with or representations to the Criminal Cases Review Commission.").

The noble Baroness said: The purpose of the new clause proposed in Amendment No. 45 is to ensure that legal aid can be made available in an appropriate case—and I stress that that is to be determined by the Legal Aid Board—to provide legal assistance where it is necessary to a prisoner before he or she applies to the commission and, where necessary, to prepare the submission for consideration by the commission and, where necessary, to assist the prisoner with any subsequent negotiations or correspondence with the commission.

At the Second Reading of the Bill a number of noble Lords, notably my noble friend Lord Mishcon, expressed doubts as to the adequacy of the present legal aid provisions in relation to the new commission. In her reply, the Minister said: Legal aid through the green form scheme will continue to be available to those wishing to make representations to the commission—whether initially to the commission or at a later stage in the light of the results of any investigations by the commission—but no additional provision is needed, because once the commission looks into a case it will of course be doing any necessary investigations".—[Official Report, 15/5/95; col. 329.]

I hope to persuade the Committee and the noble Baroness that the provisions of the green form scheme simply do not begin to meet the needs that are likely to arise. Perhaps I may indicate initially, as I am sure the noble Baroness will accept, that it is likely that the majority of people wishing to place applications before the commission are serving sentences of imprisonment. It follows that many of those will be if not illiterate at least not trained lawyers and certainly not skilled in the ways of preparing documents for consideration by legal and other minds.

At present a prisoner in such a position has four possible sources of outside help open to him. He can try to attract the attention of an author or journalist to take up his case, but necessarily those sources are limited. He can try to persuade the solicitor who acted for him, or some other solicitor, to take up his case and act for him. That may be extremely time-consuming. I understand that the solicitor who was involved in the Birmingham Six case estimates that she did approximately one month's work every year for 10 years before the outcome of that appeal. He can try to interest an organisation such as Justice to take up his cause, but a vast number of applications and limited resources mean that only a certain number of those can be adopted.

Alternatively, he can rely on his friends and family to do what they can by contacting Members of Parliament, pressure groups and so on. His last resort is to write. As many Members of this House and another place know, large numbers of letters come from people in custody anxious that their cases should be reviewed.

As I understand it, the green form scheme is available in connection with this commission and would continue to be available following the establishment of the commission. However, there are problems connected with its use which I ask the noble Baroness to consider. It seems to us on these Benches that the green form scheme simply cannot fit the bill.

First, a solicitor can carry out only two hours' work under the scheme. If he wishes to undertake more than that, he has to go to the Legal Aid Board to ask for grant of an extension. But that has to be done in advance of the work to be done. An extension can be granted only after the green form has been signed by the applicant. That cannot be done through the post; it has to be signed in the presence of a solicitor. Therefore the solicitor must travel to see the prisoner in order to have the form signed. Usually—certainly in my experience as counsel going to interview prisoners, in particular those serving long sentences—the journey time alone to the prison is likely to use up the two hours paid for under the green form scheme.

Unless the solicitor has read the papers before he sees the prisoner, he is in no position to give properly informed advice about the merits of the case. Yet under the green form scheme this can be paid for only up to the two hours' limit and only after completion and signing of the form. In other words, there is a hopeless and inadequate Catch-22 situation. A solicitor needs, first, to be able to give proper advice to the applicant as to whether he has any valid grounds; secondly, if the applicant has such grounds, the solicitor needs to be able to take steps to ensure that the commission has all the relevant papers; and, thirdly, he needs to be able to assist in, perhaps even to draft a precis of, the case which will direct the attention of the staff of the commission to the real point in the case. Unless he is able to do that, it seems to us that cases in which there is a valid point will be missed and a number of cases which ought to have been sifted out by short, proper advice at the outset will burden the commission—unmeritorious cases which a solicitor, acting properly having read the papers, could have advised had no chance.

The staff of the commission will face a difficult, if not impossible, task in sifting the wheat from the chaff. Unlike the solicitor who was previously involved in the case, the staff will come fresh to the case. Without some help in a complex case, they cannot reasonably be expected to go straight to the point made by the complainant.

In many of these cases a number of steps will have to be taken before any meaningful application can be made. For example, if the Government maintain the position expressed last week in Committee that only applications involving fresh evidence or fresh argument are to be entertained, it may be necessary to seek the recollection of counsel and solicitor about what went on at earlier hearings. It may be necessary to obtain transcripts of parts of those earlier hearings. It may be necessary to interview potential witnesses. It is only necessary to say that to see how undesirable it is for witnesses to be interviewed perhaps by friends or associates of someone serving a lengthy prison sentence rather than a solicitor.

All those matters need to be covered properly by legal aid. Extensions of the green form scheme are granted, as I understand it, but area officers vary in their practice. In other words, there is no uniformity. However, the real disadvantage of extensions to the green form scheme are these. In any case each extension has to be for a specified number of hours and for a specific purpose. That may involve repeated applications for extensions which result, as one knows when seeking a quick extension of legal aid to gain an additional expert's report, in those applications being bogged down in a quagmire of bureaucratic delay which may be entirely understandable.

The green form scheme was designed in essence to allow preliminary work to be done before a full legal aid certificate was granted in appropriate cases or, indeed, to knock on the head those cases which had no chance of success by giving appropriate advice at the outset. Full legal aid will be available, I understand, once the case has been referred by the commission to the Court of Appeal. But it is that initial submission of evidence and arguments to the commission which is likely to be crucial in the decision as to whether a reference is later made. If proper legal assistance is not available in appropriate cases—and I stress that factor; it is a matter for the Legal Aid Board to consider—to provide help where it is needed in those cases, it seems to us that miscarriages of justice could well remain uncorrected because the essential point has not been pin-pointed and may be missed by the commission. For all those reasons, I beg to move.

Baroness Blatch

I am aware of concerns which have been expressed during the passage of the Bill that people who wish to make representations to the commission should be able to obtain legal aid so that they may be advised on their application. The effect of this new clause would be to require the Secretary of State to amend the Legal Advice and Assistance Regulations 1989 which are made under the Legal Aid Act 1988 to ensure that advice and assistance under the green form scheme would be available to applicants wishing to communicate with or to make representations to the commission.

We believe that the proposed new clause is unnecessary. Legal advice and assistance through the green form scheme are available to those who are financially eligible on any matter of English law, with the exception, of course, of certain matters which are specifically excluded from the scheme by regulation. No one is proposing that the relevant regulations should be amended to exclude advice and assistance on making representations to the commission. Therefore green form advice and assistance will be available to people wishing to make such representations provided they satisfy the financial eligibility conditions of the scheme.

Once an application has been made to the commission, it will be for the commission to pursue any inquiries, as I said at Second Reading. The commission will be investigative rather than adversarial. It will not be necessary therefore for applicants to be legally represented while the investigation is in progress.

As the Committee knows, the Bill will allow the commission to disclose the results of its inquiries to applicants so that in the interests of fairness they can make further representations in the light of matters that the commission has found. Again legal advice and assistance through the green form scheme would be available to those eligible to assist them in preparing any further representations that they may wish to make. Legal assistance will similarly be available to those wishing to make new representations to the commission, even where the commission has previously refused to refer their case.

Where a case has been referred to the courts, the appellant may apply for legal aid for the appeal in the usual way.

The noble Baroness, Lady Mallalieu, referred to legal aid being needed for investigations. I have some doubt about the idea of legal aid being used for extensive investigations, given that this work would overlap with the work for which the commission is set up and resourced to carry out. However, perhaps I may refer to the problems to which the noble Baroness referred. With regard to the two hours' limit on the green form scheme, our belief is that the scheme works effectively in relation to prisoners and other applicants. However, I am willing to look carefully into the difficulties that she outlined in moving her amendment. Perhaps she will allow me to do so without prejudice to the outcome. Perhaps I may consider the matter between now and the next stage of the Bill. Alternatively, no doubt the noble Baroness will present the House with another amendment.

Baroness Mallalieu

I am encouraged by what the Minister said. There are obvious and clear difficulties in using the green form scheme in its present form for such cases. I believe that the noble Baroness understands that there is an advantage, first, in having properly presented cases sent to the commission, and, secondly, in having some filter so that everyone in prison does not immediately seek to obtain their papers and send them. In those circumstances, I beg leave to withdraw the amendment. I look forward to further discussion with the noble Baroness perhaps before the next stage.

Amendment, by leave, withdrawn.

Clause 22 [Offence of disclosure]:

[Amendment No. 46 not moved.]

Clause 22 agreed to.

Clause 23 [Exceptions from obligations of non-disclosure]:

Baroness Blatch moved Amendment No. 47:

Page 17, line 39, at end insert: ("( ) in order to assist in dealing with an application made to the Secretary of State for compensation for a miscarriage of justice,").

The noble Baroness said: The amendment inserts a further gateway into Clause 23 through which the commission may disclose information gathered in the course of its investigations. It empowers the commission to disclose information to the Secretary of State and to the assessor to enable them to deal with an application for compensation when a miscarriage of justice has occurred.

The provision will allow the commission, for example, to give the Secretary of State and the assessor copies of the transcripts of proceedings in their possession and the results of their investigations where relevant so that they do not need to make their own inquiries to obtain the same information before making their respective decisions. I beg to move.

Lord McIntosh of Haringey

This amendment comes in the second of two complex clauses on disclosure, Clauses 22 and 23. Some of the issues of disclosure were already debated when we considered amendments to Clause 17, although that is a different kind of disclosure. We do not oppose Amendment No. 47, which is an increase in the gateways, as the Minister calls them. To that extent, it is to be welcomed. We shall consider the issue of compensation when we take the Government's Amendment No. 52.

However, I cannot let the amendment pass without saying that the architecture of Clauses 22 and 23 seems curious. Instead of having the presumption of disclosure, we start by defining in some detail in Clause 22 an offence of disclosure. In Clause 23 we go on to consider exemptions from the obligations of non-disclosure. The Minister has given assurances for which we have been grateful that disclosure to applicants shall not be worse than the standard applied by the divisional court in the case of ex parte Hickey and others in November last year. That will be a considerable relief to those concerned with miscarriages of justice. However, it is still the case that the way in which the Bill has been structured means that the presumption is against disclosure, with exceptions for disclosure rather than the other way round. I still find that curious and although I have not been able to work out to my own satisfaction the best way to tackle the matter in the form of amendments—I am not prepared with a whole series of Committee stage debates—it is a matter to which we may wish to return at a later stage. However, as the amendment stands we do not oppose it.

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Clause 24 agreed to.

8.45 p.m.

Clause 25 [Extension of power of courts in England and Wales]:

Baroness Blatch moved Amendment No. 48:

Page 19, line 10, at end insert:

("( ) After that subsection insert— (1A) The power conferred on a magistrates' court by subsection (1) above shall not be exercisable in relation to any sentence or order imposed or made by it when dealing with an offender if—

1. (a) the Crown Court has determined an appeal against—
1. (i) that sentence or order;
2. (ii) the conviction in respect of which that sentence or order was imposed or made; or
3. (iii) any other sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of that conviction (including a sentence or order replaced by that sentence or order); or
2. (b) the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the imposition or making of the sentence or order."").

The noble Baroness said: With Amendment No. 48 I shall also speak to Amendments Nos. 50 and 51. As many Members of the Committee may know, magistrates in England and Wales may vary, or rescind, a sentence or other order imposed or made by them within 28 days of the sentence or order being imposed or made. Similarly, they may only order a rehearing within 28 days of the date a person is found guilty and only where that person did not plead guilty. There are no such provisions at present in Northern Ireland.

It is generally agreed that the time limit is too restrictive. It means many minor matters go to the higher courts on appeal, or to the Secretary of State to consider a recommendation that the Royal prerogative of mercy be exercised. This is time-consuming and expensive.

The provisions in Clauses 25 and 26 will enable magistrates to reopen a case at any time, and regardless of the original plea, but only where it is in the interests of justice to do so. However, the removal of the time limit means that a case could be reopened by the magistrates after an appeal has been determined in the Crown Court or the High Court (by way of case stated) in England and Wales, or in a county court or the Court of Appeal in Northern Ireland. This cuts across the principle that a lower court should not interfere with the decisions of a higher court. We wish to maintain that principle.

Amendments Nos. 48 to 51 ensure that where the higher court has determined an appeal, whether against sentence, order or conviction, that case cannot be reopened by the magistrates and nor can any sentence be varied by them.

We anticipate that the amendments will affect very few cases. The vast majority of applications for rectification will remain in the magistrates' courts. Magistrates will be able to review a case at any time, in the interests of justice, unless the case has been appealed to a higher court and the appeal has been determined. If an appeal to the higher court is dismissed and the defendant then, for example, Finds evidence that indicates that he was not guilty of his conviction, he should approach the criminal cases review commission for his case to be further considered.

I hope that the House will agree that these are sensible amendments which are necessary to preserve an established principle which will not disadvantage a defendant. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 49:

Page 19, line 16, at end insert:

("( ) After that subsection insert— (2A) The power conferred on a magistrates' court by subsection (2) above shall not be exercisable in relation to a conviction if—

1. (a) the Crown Court has determined an appeal against—
1. (i) the conviction; or
2. (ii) any sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of the conviction; or
2. (b) the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the conviction."").

On Question, amendment agreed to.

Clause 25, as amended, agreed to.

Clause 26 [Introduction of power in Northern Ireland]:

Baroness Blatch moved Amendments Nos. 50 and 51:

Page 19, line 31, at end insert: ("( ) The power conferred on a magistrates' court by paragraph (1) shall not be exercisable in relation to any sentence or order imposed or made by it when dealing with an offender if—

1. (a) the county court has determined an appeal against—
1. (i) that sentence or order;
1622
2. (ii) the conviction in respect of which that sentence or order was imposed or made; or
3. (iii) any other sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of that conviction (including a sentence or order replaced by that sentence or order); or
2. (b) the Court of Appeal has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the imposition or making of the sentence or order.").

Page 19, line 36, at end insert: ("( ) The power conferred on a magistrates' court by paragraph (2) shall not be exercisable in relation to a conviction if—

1. (a) the county court has determined an appeal against—
1. (i) the conviction; or
2. (ii) any sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of the conviction; or
2. (b) the Court of Appeal has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the conviction.").

On Question, amendments agreed to.

Clause 26, as amended, agreed to.

Baroness Blatch moved Amendment No. 52:

After Clause 26, insert the following new clause:

Assessment of compensation for miscarriage of justice

. In section 133 of the Criminal Justice Act 1988 (compensation for miscarriages of justice), after subsection (4) insert—

"(4A) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to—

1. (a) the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction;
2. (b) the conduct of the investigation and prosecution of the offence; and
3. (c) any other convictions of the person and any punishment resulting from them."").

The noble Baroness said: In speaking to Amendment No. 52 I shall also speak to Amendment No. 68, which is consequential upon it.

From time to time, usually in regard to an individual case, there is some confusion and even misunderstanding among the public as to how the current compensation arrangements work. This modest amendment seeks to cast some light on the matter and to enshrine current good practice into statute.

The Committee will know that it was in this House, during the passage of the Criminal Justice Act 1988, that an amendment was introduced to place compensation for miscarriages of justice on a statutory footing. The wording of Section 133 follows closely that of Article 14.6 of the International Covenant of Civil and Political Rights, ratified by the United Kingdom in 1976. The gist of Section 133—forgive me if I do not cite the exact words—is that compensation for a miscarriage of justice shall be paid: if a conviction is quashed on an out-of-time appeal; or if a conviction is quashed after the case has been referred to the Court of Appeal by the Secretary of State; or if a pardon is granted. In each case it is where new evidence has arisen the non-disclosure of which at an earlier stage is not wholly or partly attributable to the applicant.

The new clause proposed makes no changes to the entitlement to compensation under Section 133. Nor will it, of course, affect our international obligations. What it does is to indicate the main factors which the assessor will take into account. Section 133 extends to Scotland and Northern Ireland where an assessor is appointed on an individual case basis. The current assessor for England and Wales is Sir David Calcutt, QC. Again, this amendment will not affect Sir David's method of work or that of the other independent assessors; it simply places on a permanent footing the approach which he and they take to calculate the amount of compensation payable in any case to which Section 133 applies.

Amendment No. 68 makes a consequential change to the Long Title of the Bill. I beg to move.

Lord McIntosh of Haringey

The Minister was good enough to write to me and to a number of my colleagues about the amendment when she first tabled it. I accept her assurances that it does not affect the scope of Section 133 of the Criminal Justice Act; nor does it affect our obligations under international law. To that extent the amendment is satisfactory.

However, there is more than one aspect to compensation. There is the statutory aspect that is provided under Section 133 and which is compatible with the seventh Protocol for the Protection of Human Rights and Fundamental Freedoms. But there is also the ex gratia part of compensation payments, as outlined in November 1985 by Douglas Hurd when he was Home Secretary. That limits other payments to those cases where there has been a serious default on the part of a member of the police force or some other public authority. That is not statutory. Perhaps Members of this House should have been more on the ball when we considered the Criminal Justice Bill in 1988, but we were not. The result is that part of the compensation process is an executive decision of the type which the European Commission recently criticised. So compensation is of a civil character, and it ought to be determined in accordance with Article 6(1) of the Convention, which states: everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". Executive decisions of the kind that make up the ex gratia part of the compensation scheme are not covered in that way and may not—I am not saying that they are not—always be impartial and independent. So there are defects in the procedures of the ex gratia part of the compensation system.

There are also defects in the coverage. As I understand it, the ex gratia system does not cover misdirections by trial judges on questions of law. Therefore defendants who have been substantially acquitted on appeal are not necessarily entitled to compensation. In the absence of new or recently discovered facts, compensation is left to the determination of the Home Secretary in accordance with the statement that I quoted from 1985. This situation is not satisfactory. Compensation to those whose convictions were quashed under some of the more famous miscarriages of justice cases is still under negotiation, and is indeed the subject of considerable argument and disagreement. Although we shall not oppose this amendment, it must be made clear that it does not deal with the major anomalies which still exist in cases of compensation for miscarriages of justice. This, again, is a matter to which we may have to return at a later stage.

Lord Airedale

The new subsection 4A that is proposed refers to, suffering, harm to reputation or similar damage". What do those words "or similar damage" mean? What do the Government have in mind as to damage which is similar to harm to reputation? To what do those words "similar damage" refer?

Baroness Blatch

On that particular question, I assume that these are the kinds of consideration that are made by anybody considering the damage. I should have to take advice as to how a judge or somebody adjudging such a situation would determine "similar damage". The reason it is given to people with those particular skills is for a judgment to be made about damage or similar damage. Quite a lot is set out in the tariff as to what should be considered a similar injury. I do not know whether that will satisfy the noble Lord. If he would like to discuss the matter with me, or with my officials, after this particular amendment has been discussed, then I should be glad to do so.

Perhaps I may address the point made by the noble Lord, Lord McIntosh of Haringey. First, I hope he will agree that this particular amendment impacts on Section 133 and that it sets out on the face of this Bill the particular aspects that have to be taken into account when considering compensation. But it would not be appropriate for compensation to be available as a rule in cases which are satisfactorily dealt with by the normal trial and appeal process, since well-founded and justified prosecutions may fail simply on a technicality, all because the high standard of proof was not met. But an application for ex gratia compensation will always be carefully considered on its merits.

Again, I should like to think more about what the noble Lord said in the course of speaking to this amendment. If there is anything more that I can say on the matter or if any modification needs to be made to accommodate the point, again, without prejudice, I should like to go away and read what has been said.

Perhaps I may return to the point on "similar damage". I am told that hurt feelings, embarrassment or a sense of outrage are examples of similar damage.

I turn to the point that was raised by the noble Lord, Lord McIntosh, on the European Convention on Human Rights. There is no limit to the payment that may be made under the ex gratia scheme. They are exceptional payments where there is no entitlement in law to compensation. For that reason, there is no question of civil rights or obligations. I am advised that the European Convention on Human Rights is not relevant—

Lord McIntosh of Haringey

I am sorry, but that really is not a satisfactory answer. We know, of course, that the ex gratia payment scheme has been made to work for the past 10 years; and we know that it works on the basis of guidelines from the Secretary of State. But what the European Commission is saying is that executive decisions of this kind are no substitute for statutory rights. Far too much of the compensation for miscarriages of justice is in the form of ex gratia payments rather than in the form of statutory rights. I would have hoped that the opportunity would have been taken when an amendment of this kind was being put down to extend the scope of statutory rights and to reduce the scope for executive decisions and ex gratia schemes. That is the kind of thing that I was looking for. I am grateful to the Minister for saying that she will consider the matter further. Perhaps we can talk about it between now and a later stage.

On Question, amendment agreed to.

Clauses 27 to 32 agreed to.

Schedule 1 [The Commission: further provisions]:

[Amendment No. 53 not moved.]

Baroness Blatch had given notice of her intention to move Amendment No. 54:

Page 21, leave out lines 36 to 43 and insert: ("(1) The Commission shall—

1. (a) pay to members of the Commission such remuneration,
2. (b) pay to or in respect of members of the Commission any such allowances, fees, expenses and gratuities, and
3. (c) pay towards the provision of pensions to or in respect of members of the Commission any such sums,

as the Commission are required to pay by or in accordance with directions given by the Secretary of State.").

The noble Baroness said: In speaking to this amendment, I should like to speak also to Amendments Nos. 61 and 63.

As the Committee may know, the Treasury has now decided to assume a more strategic role in relation to the oversight of non-departmental public bodies and in relation to their funding and pay arrangements. As part of this process it is looking at ways of withdrawing from its current role in approving the pay arrangements and so forth of such bodies. With this aim in mind it does not wish to acquire any responsibility in this respect for any additional NDPBs.

Amendments Nos. 21, 23 to 27 and 29 therefore delete the references to the consent of the Treasury in relation to the proposed arrangements for paying the commission and its staff, the numbers of staff that the commission may employ and their terms and conditions of service. In preparing the amendments to make the necessary changes, we came to the conclusion that there was no reason why the commission should not in fact handle the calculation and processing of the salaries and pension arrangements of its members. Amendment No. 21 therefore also makes this change—

Lord McIntosh of Haringey

Is there some confusion about the numbering? We are talking about amendments in the 50s. Is the Minister referring to page 21?

Baroness Blatch

The noble Lord is absolutely right, but I have to say that I do not have the relevant brief with me. I do not know whether the Committee is sufficiently indulgent as to allow me to go on to speak to Amendment No. 62 and return to this amendment, or whether that is not allowed.

9 p.m.

Lord Harris of Greenwich

What will happen? We are in a state of mild confusion and difficulty. What exactly is it suggested that we should do?

Baroness Blatch

I am advised that the best I can do now is not to move the amendments and return to them at the next stage of the Bill if that is agreeable.

[Amendment No. 54 not moved.]

[Amendments Nos. 55 to 61 not moved.]

Lord McIntosh of Haringey moved Amendment No. 62:

Page 23, line 22, at end insert: ("( ) In every report made under sub-paragraph (1) the Commission shall, on the basis of their investigations into cases and references to the Court of Appeal, make such recommendations to the Home Secretary as they consider necessary for changes in law, procedures and practices.").

The noble Lord said: This is a modest amendment, as befits its place in a schedule rather than the main body of the Bill. I hope that the Minister will feel that it is a reasonable but small extension of the responsibilities of the commission in compiling its annual report.

At the moment the schedule is entirely vacant in what it says should be included in the annual report. But from the public point of view, and that of ensuring that the improvements in the criminal justice system which are supposed to be brought about by the Bill actually come about, it is a matter of great concern. No body is better qualified than the commission to make recommendations for such further consequential changes as may be necessary. Only the commission has the control, supervision, direction—or whatever word we choose to use—of the investigations and can therefore bring together the case experience of its work and of the submissions it makes to the Court of Appeal for public consideration by means of its annual report to the Home Secretary.

One can imagine a number of examples of the opportunities that it may have and the contribution it may make; for example, the application of the complex rules of the Police and Criminal Evidence Act formulated in codes of practice which we agreed in this Chamber only a couple of months ago. They are enormously complicated. They evolve over time—without any criticism being made of those who devise them in the first place—and whether or not they work will be more apparent to the commission than to any individual police force.

A less happy example perhaps is the provisions of the Criminal Justice and Public Order Act 1994. Some of us, as the Minister will know, felt at the time that short cuts were being taken in the Act, notably the increase in comment that might be made on the exercise of the right to silence, which posed a serious danger to the criminal justice system. Many of the changes have only come into force in the past month or two. But over time and during the early life of the commission, we shall need evidence in regard to the extent to which the changes introduced by the 1994 Act have affected the risk of miscarriages of justice. The possibility cannot be ruled out that miscarriages of justice may be greater as a result of the 1994 Criminal Justice and Public Order Act than they were before.

The Minister does not have to agree with that analysis of the 1994 Act, but I hope that she will agree that it will be in the interests not only of the commission but also of the criminal justice system and the public as a whole for the commission to be positively encouraged, as it is in Amendment No. 62, to make recommendations in the context of its annual report on matters upon which the commission knows far more from detailed investigation than anybody else. I beg to move.

Baroness Blatch

I hope that I shall be able to allay the fears of the noble Lord because the point he makes with regard to informing the Secretary of State is important. I appreciate the intention behind the amendment and agree that if the commission comes across some aspect of the criminal justice system which causes concern it should draw it to the attention of the Secretary of State and no doubt will do so from time to time.

The Bill as drafted does not preclude the commission from doing that. Indeed, the requirement that it places upon the commission to produce an annual report on the discharge of its functions affords it the opportunity to do so if necessary. But that is a different matter from requiring the commission to make recommendations for change in its annual report. Placing the members of the commission under a duty to make recommendations would have the effect of extending the commission's role and require that part of the commission's resources to be devoted to monitoring current arrangements and developing proposals for change.

The commission is not intended to be a watchdog on the criminal justice system and its individual components. Its role is to investigate possible miscarriages of justice and refer those cases, which in its view meet the criteria for referral, to the courts. Its resources must be devoted to that task. It is absolutely essential that where it believes that points are coming through about which it would wish to recommend changes to the law it is absolutely free to convey that to the Home Secretary. To alter the commission's role in the way proposed would not be right and I cannot therefore commend the amendment to the Committee.

Lord Harris of Greenwich

If a form of words was devised which gave a clear indication that the commission would be encouraged to do precisely that, would that be acceptable to the Government?

Baroness Blatch

My understanding of statute is not that it is words of encouragement. That can be given in guidance or by other forms of exhortation. As I understand it, legislation relates to duties and obligations.

Lord Harris of Greenwich

I understand that the role of the commission is that in appropriate cases it draws to the attention of the Secretary of State what it regards as a defect in the law following its consideration of a case. Were such an approach to be put forward, is the noble Baroness prepared to indicate that she will consider it?

Baroness Blatch

I have made it absolutely clear that the commission can do that. There is absolutely nothing to prevent or preclude the commission from giving the Secretary of State advice about possible changes to the law. If one accepts the Pepper v. Hart guidance, then the words are now on the pages of Hansard, or will be by tomorrow morning.

Lord McIntosh of Haringey

The amendment does exactly what the noble Lord, Lord Harris, is asking for. It says that, the Commission shall I admit that it says "shall" rather than "may"— make such recommendations to the Home Secretary as they consider necessary for changes in law, procedures and practices". Therefore, all of what the Minister said about putting all these terrible obligations on the commission is quite wide of the mark. If it does not want to make any recommendations, if it does not think it is necessary, it does not have to do so. All we are doing is seeking to take advantage of the unique position of the commission to understand the way in which miscarriages of justice occur all over the country and to say to it, "As you go about your day-to-day work of investigation, think always what it means and how it might be possible to take advantage of your knowledge in order to reduce the occurrence of miscarriages of justice in the future".

The Minister has said that nothing precludes the commission from saying that—on that basis, I shall not press the amendment to a vote—but she is quite wrong in saying that there is anything unusual in putting an obligation of this kind on a commission of this kind. It is the commonsense continuation of the work it is doing on a day-to-day basis. It is a way of ensuring that it does so under the eye of the cosmos, so to speak, and that it does so in full consciousness of the implications of its work in a wider sense. Indeed, I should have thought that the Government would have welcomed an opportunity to encourage the commission actually to seek a reduction in its workload by improving the law, improving practice and improving procedures in order to make sure that fewer cases have to come before it in future years. I do not know whether the Minister wants to add anything to what she has said.

Baroness Blatch

I believe that the commission can do that. If the commission feels that it wishes to give advice to the Home Secretary, it can do that. The amendment says: In every report made under sub-paragraph (1) the Commission shall", and so on. All we are saying is that there is very little between us in that we should do nothing to inhibit the commission from giving the Home Secretary advice about its view of improvements to the law.

Lord Harris of Greenwich

I see the point that the noble Baroness has made and I am encouraged to hear that she thinks there is nothing between us on this matter. I am sure that the noble Lord, Lord McIntosh, and I both hope that there is not anything between us. However, I hope that between now and the next stage of the Bill the noble Baroness will agree to look at this matter. I take her point about the use of the words "in every report" and the use of the word "shall". But having made that concession at her direction, I really do hope that she will consider this matter.

It seems to me that the noble Lord, Lord McIntosh of Haringey, is absolutely right. It is highly desirable that this should appear on the face of the Bill. The noble Baroness is quite right in saying that the commission can, if it so chooses, make any representation it wants to any Minister. But we are talking here about an important new commission which has been established because of major miscarriages of justice. In that situation it is highly desirable to try to reach some common agreement on this point. All I am saying to the noble Baroness is that I hope that she will agree to look at this matter between now and the next stage of the Bill to see whether in fact we can reach some form of agreement.

Lord Monkswell

I hesitate to rise in this debate but one of my concerns, which I am sure is shared by other Members of the Committee, is the reference which the Minister made to Pepper v. Hart. In effect she was saying that what is written on the face of the statute does not matter and that as long as it has been uttered by a Minister it is okay and that is the interpretation the courts will make of it. It is one thing to enable the courts to interpret statutes which may be difficult to interpret in later years with regard to what Parliament wanted to see happen. It is quite another to say, "We do not need to write this on the face of the Bill because a ministerial statement has been made and therefore Pepper v. Hart will sort it out". It is quite important that wherever possible we write things clearly on the face of Bills.

Lord McIntosh of Haringey

I do not accept the interpretation of my amendment given by the noble Lord, Lord Harris of Greenwich. He said that we ought perhaps to consider having "any report" instead of "every report" and "may" instead of "shall". However, the amendment is absolutely clear. It says that the commission shall, make such recommendations … as they consider necessary". The commission can leave them out if it wants to. I do not think the Minister has made a good case. It is desirable for the instructions to the commission not only to be administrative instructions, as they are in Schedule 1 and, indeed, to a lesser extent in Clause 8, but that the commission should be reminded in public of the opportunity that it has to make progress and to undertake preventive as well as remedial action on miscarriages of justice. To that extent I disagree with the Minister's reply. It may be a matter I shall want to return to at a later stage.

Lord Harris of Greenwich

Perhaps I may have a reply from the noble Baroness. I asked her whether she is prepared to do what the noble Lord, Lord McIntosh, suggested; namely, to look at this matter between now and the next stage of the Bill to see whether it is possible to get some agreement on it. I am not asking her to commit herself finally, but it would be extremely helpful were she to say that she will look at the matter again.

Baroness Blatch

It is my practice to consider everything very carefully. I shall look particularly at that point.

Amendment, by leave, withdrawn.

Baroness Blatch had given notice of her intention to move Amendment No. 63:

Page 24, leave out lines 2 to 4 and insert: ("11. The Secretary of State shall defray the expenses of the Commission up to such amount as may be approved by him").

The noble Baroness said: In not moving this amendment I apologise profusely to the Committee. Now that I have composed myself, perhaps I may say that I spoke to this amendment but simply used the wrong number, which threw all Members of the Committee.

[Amendment No. 63 not moved.]

Schedule 1 agreed to.

Schedule 2 [Minor and consequential amendments]:

Baroness Blatch moved Amendments Nos. 64 to 67:

Page 24, line 25, at end insert: ("( ) In section 5 (disposal of appeal against conviction on special verdict), in subsection (1), for "by a person in whose case" substitute "in a case where".").

Page 25, line 2, at end insert:

("The Costs in Criminal Cases Act (Northern Ireland) 1968

(c. 10 (N.I.))

. In section 4 of the Costs in Criminal Cases Act (Northern Ireland) 1968 (costs awarded by Court of Appeal), at the end insert—

"(5) Where section 47A of the Criminal Appeal (Northern Ireland) Act 1980 (death of convicted person) applies, any reference in this section to the appellant includes the person approved under that section."").

Page 26, line 8, at end insert:

("The Prosecution of Offences Act 1985 (c.23)

. In section 21(1) of the Prosecution of Offences Act 1985 (interpretation of Part II), before the definition of "defendant's costs order" insert—

""accused" and "appellant", in a case where section 44A of the Criminal Appeal Act 1968 (death of convicted person) applies, include the person approved under that section;".").

Page 26, line 31, at end insert:

("The Legal Aid Act 1988(c.34)

. In section 21 of the Legal Aid Act 1988 (availability of representation for the purposes of criminal proceedings), after subsection (10) insert—

"(10A) Where section 44A of the Criminal Appeal Act 1968 (death of convicted person) applies, the reference in subsection (1) above to the convicted person shall be construed as a reference to the person approved under that section."").

The noble Baroness said: I spoke to these amendments with Amendments Nos. 12 to 17. I beg to move.

On Question, amendments agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 agreed to.

In the Title:

Baroness Blatch moved Amendment No. 68:

Line 6, after ("section;") insert ("to amend section 133 of the Criminal Justice Act 1988;").

The noble Baroness said: I spoke to this amendment with Amendment No. 52. I beg to move.

On Question, amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with the amendments.

House adjourned at seventeen minutes past nine o'clock.