Criminal Procedure and Investigations Bill [H.L.]

HL Deb 05 February 1996 vol 569 cc10-70

3.4 p.m.

The Minister of State, Home Office (Baroness Blatch)

My Lords, I beg to move that further considered on Report.

Moved, That the Bill be further Report.—(Baroness Blatch.)

On Question, Motion agreed to.

Clause 15 [Introduction]:

Lord McIntosh of Haringey moved Amendment No. 46:

Page 9, line 32, after ("officers") insert ("or officers of another investigating agency").

The noble Lord said: My Lords, in moving Amendment No. 46 I shall speak also to Amendments Nos. 80 and 81. These are the first amendments on Report which deal with Part II of the Bill, which relates to criminal investigations, and in particular with the code of practice. Part II of the Bill consists, in effect, of a summary of the most important issues raised in the code of practice.

Those who were present on 19th December will know that there were differences between the Minister and myself on how best to approach these matters. I hasten to say that those differences were political and procedural rather than personal. I am very glad to say that as a result of discussions which took place on that day the Minister has sent to me and to other noble Lords who have expressed an interest in these matters a full and helpful letter—perhaps it is best described as a discussion paper—in which she addresses the issues raised in our Committee stage amendments to the code of practice, including those which in the end were not moved.

The Minister's letter was accompanied by a version of the code of practice which incorporated our amendments in order to see what the effect of those amendments should be. She followed up the letter by readily agreeing to a most helpful meeting, at which we were able to discuss all the issues raised by the code of practice and also other issues. I want to begin my remarks this afternoon by paying tribute to the noble Baroness for the co-operation that she has shown in ensuring that our debates on the code of practice are as helpful as possible.

It is important that those debates should be as helpful and as full as is necessary because, as the Minister made clear before Christmas, the code of practice is still in the process of finalisation. It is still out to consultation and views are still coming in. The debates ought to make, and I hope will make, a substantial contribution to the consultation process. Although they do not arise in consideration of the present amendments, your Lordships will have noted that Amendments Nos. 74 to 77 and 119, some of which are in my name and some in the Minister's name, address the issues both of formal consultation on the code of practice and of parliamentary approval of the code of practice which we urged at the Committee stage.

Again, without anticipating in detail the debate which will take place on that amendment, I am glad to say that the outcome of those discussions and the further consideration by the Minister and her officials has been that the Government have agreed with the Select Committee on Delegated Legislation that the code of practice, which is such an important part of this Bill, shall be subject to formal consultation and to approval by Parliament in due course. Therefore, I believe that that issue, which might have divided us, will no longer divide us. The views that we expressed at an earlier stage have been not merely taken into account but accepted by the Government at this stage.

I hope that that fact will colour the way in which we debate specific issues relating to the code of practice. That is the spirit in which I want to address the issues. We may still disagree about particular aspects of them. It may be that the Government will find it possible to agree to some of the suggestions that we made in amendments tabled in Committee and in amendments tabled again today. It is certainly true that, following correspondence and talks, we have found it possible to amend some of our own Committee stage amendments in order to recognise the justice of the points that the Government have made and to remove some of the anomalies which they pointed out as regards the amendments. Of course, we should have preferred the Bill to have been produced for Second Reading in its final form rather than subject to so many amendments. Of course, we should have preferred the code of practice to have been available at the outset rather than only a few days before the Committee stage. However, I recognise that the Minister and her officials have done the best they can in the intervening period to remedy those initial defects.

Amendments Nos. 46, 80 and 81 are concerned with the issue as regards to whom the code of practice applies. Amendment No. 46 was moved and debated at Committee stage and, if I may say so, we had some rather extraordinary replies from the Minister. In part she was entirely justified in drawing attention to the defect of an amendment in Clause 15 in that it did not refer to Clause 19 which provides that people other than the police shall have regard to the code of practice. I offered my apologies straightaway to the Minister for not recognising that point fully in the way in which the amendments were drafted. I hope that by adding Amendments Nos. 80 and 81 we have overcome that difficulty and can return to address the substantive issue.

Amendment No. 46 provides that the code of practice shall apply to all investigative authorities. That is reinforced—perhaps it is an alternative formulation—by Amendments Nos. 80 and 81 to Clause 19 which provide that the other investigative agencies shall not only have regard to the code of practice, as in the Bill as drafted, but shall comply with the code of practice. It seems to us essential that if a code of practice is to be complete, it shall include the ability of the police to delegate parts of their investigation to other people, and to recognise that in many investigations other people such as the local authority officials, Customs and Excise, or private investigators may have a responsibility for some parts of the investigation. If the code of practice is to be fully effective, it must cover them too. That is what we seek to achieve in the amendment.

In response to an amendment in Committee, the Minister correctly described the effect of Amendment No. 46. However, she said that it could not be done because the Bill is being put forward by the Home Secretary who was responsible for preparing the code; and that many of the people in other investigatory agencies—Customs and Excise, or trading standards officers—are under the command of other Secretaries of State.

In replying, I made the point—I repeat it—that legislation does not need to take account of such differences. Legislation is prepared by "the Secretary of State"; and that is deliberate. The titles and responsibilities of Secretaries of State may change. Legislation is put forward by government rather than on behalf of a particular Secretary of State although each Bill is presented by a specific department.

I return to the point because I did not receive a satisfactory answer from the Minister. If it is true that in order to have a satisfactory code of practice in the conduct of criminal investigations we must include in that code agencies which are not the responsibility of the Home Secretary, then other Secretaries of State will have to be involved in preparing and enforcing the code. The conduct of government requires that that should happen. Indeed, legislation constantly and regularly provides for that. It is not necessary to say in legislation on every single occasion that, for example, on producing an environmental measure the Secretary of State for the Environment has to be backed by the Secretary of State for Wales in so far as that legislation covers Wales. To a lesser extent, the same is true for Scotland where the system of law is different and legislation often has to be framed differently. However, the principle that government are seeing to the effectiveness of legislation rather than a specific department is well known and well understood. Denial of that principle ought not to be used as an argument against amendments of this kind.

I put it to the Howe, as I put it to the Committee, that if the codes of practice are to be effective, and if they are to cover, as I believe they should, all those involved in criminal investigations, then it is necessary for the codes to cover other investigative authorities and for them to be required not to have regard to but actually to comply with them. On that basis, apologising for the length of the introduction, I beg to move Amendment No. 46.

3.15 p.m.

Lord Campbell of Alloway

My Lords, I should like to associate myself with the observations of the noble Lord, Lord McIntosh of Haringey, having been the cause of part of the trouble starting at Second Reading. I am very relieved that the matter should have been resolved in this amicable way. I thank my noble friend the Minister.

I find it difficult to understand why these amendments are grouped. I wish to agree unreservedly with Amendment No. 80. However, I am under some difficulty with Amendments Nos. 46 and 81 because surely they are too wide. I agree that we must cover all prosecuting authorities including, for example, the Customs and Excise, but surely not local authorities. I seek the assistance of my noble friend the Minister on this. Is it really the intendment that this provision should go so wide; and, if so, would it not be somewhat impracticable?

Lord Williams of Mostyn

My Lords, I support the amendment. One normally thinks of investigations as being substantially conducted by police officers. However, there are many other investigating authorities which now have extraordinary powers, many of which are not known to the ordinary citizen. One thinks of departments relating to trade descriptions, VAT, Inland Revenue, and food and drink, all of which are capable of bringing criminal charges. It seems strange that an obligation should be less on those investigating authorities than on the police. For instance, what is to happen if the latest trailed provisions of the present Home Secretary about the involvement of the security services come into effect? Are they not to be subject to the code of procedure which will bind police officers investigating quite often the same class of offence—serious drugs offences, wide-scale fraud, or racketeering, if one may put it generally?

As regards the point of the noble Lord, Lord Campbell of Alloway, the wording may be too wide. However, an important point of substance underlies the amendment.

Baroness Blatch

My Lords, I, of course, understand all the concerns about the amendment, but, as I shall explain, in our view the existing provisions in the Bill are sufficient to achieve what I think we all want to achieve.

Amendment No. 46 widens the definition in Clause 15 of a criminal investigation to include investigations conducted by officers of another investigating agency as well as by police officers. Because Clause 16 refers to criminal investigations, the amendment ensures that the code of practice prepared under Clause 16 is a code for all investigators as well as for the police. That means officers of Her Majesty's Customs and Excise, Serious Fraud Office inspectors, local authority trading standards officers and many others.

I explained in the earlier debate why we did not think it possible to have one code whose provisions would apply to every investigating agency. The operational practices of such agencies are different from those of the police, and they need the flexibility to adapt the provisions of the code to their own particular circumstances. Moreover, some of them, such as the Health and Safety Executive, both investigate and prosecute. Where the investigator is also the prosecutor, it would not be sensible for the code of practice to require a person to reveal material to himself and certify to himself that he has done so.

It seems to us that the correct approach is to require other investigators to have regard to the relevant provisions of the code of practice. This is the course taken in Clause 19(1). Amendment No. 80 to Clause 19 would replace the requirement to have regard to the relevant provisions with a requirement to comply with them.

The current wording of Clause 19(1) is based on the precedent in Section 67 of the Police and Criminal Evidence Act 1984. Section 67 requires persons other than police officers who are charged with the duty of investigating offences to have regard to the relevant provisions of the codes of practice issued under PACE to which the police are subject. Subsequent case law has established that the effect of Section 67 is to apply the relevant provisions of the PACE codes of practice to such diverse groups as officers of Customs and Excise, officers of the Serious Fraud Office, store detectives and commercial investigators in so far as they are charged with the duty of investigating offences, and investigators operating with a warrant under the Copyright, Designs and Patents Act 1988. So the requirement to have regard to the provisions of the code of practice under our Bill is a real and not a theoretical obligation.

We would be reluctant to amend Clause 19(1) as in this amendment, for two reasons. First, the current wording already achieves what I think the noble Lord wants it to achieve. Secondly, requiring investigators to comply with the provisions of the code means that they must follow them to the letter. There is no flexibility to adapt the relevant provisions to their own particular circumstances. As I have explained, that is one of the difficulties with extending the definition of a criminal investigation as in Amendment No. 46 to Clause 15.

Finally, Amendment No. 81 to Clause 19 provides that the duties in Clause 19(1)—including those imposed by Amendment No. 80 to Clause 19—extend also to a person other than a police officer who is instructed to conduct an examination or investigation with a view to ascertaining whether a person should be charged with an offence, or whether a person who has been charged with an offence is guilty of it.

The noble Lord, Lord McIntosh, has explained that this is designed to ensure that persons such as forensic scientists are under the same obligations as police officers or others who instruct them. The effect of the amendments is that such persons would be required to comply with the relevant provisions of the code of practice.

This amounts to treating a forensic scientist or similar person as if he was a police officer. But a forensic scientist is not like a police officer and could not properly comply with these duties. He is an expert witness who is asked for an opinion on a particular item of material. He receives only a restricted and selected number of items submitted to him by the investigating officer, and does not see all the other material in the possession of the prosecutor or investigator. Under this amendment he would be required to retain material obtained in the course of a criminal investigation if it might be relevant to the investigation—but he will not know whether it is relevant or not. Furthermore, in most cases the only contact the forensic scientist has will be with the police or other investigator, and he would not be able to reveal material to the prosecutor as the code of practice requires.

It seems to us that the better course is not to treat forensic scientists and others as if they were charged with the duty of investigating offences, but to impose duties on those who are investigators and who are able to comply with the provisions of the Bill and the code of practice. It is not necessary to subject forensic scientists to detailed requirements relating to disclosure, because the police will be required under these provisions to ensure that the prosecutor has access to all the material he needs to form a view on whether material should be disclosed to the accused. The police officer will retain reports of work by expert witnesses, and, if necessary, the material which is the basis of the report will be available for inspection.

As I have said, I think these amendments are unnecessary for the reasons I have given, and I hope the noble Lord will not press them.

The noble Lord, Lord McIntosh, was quite right to chide me about my reply to him on the numbers of Secretaries of State. The Bill would accordingly not need to specify a requirement on different Secretaries of State to produce different codes of practice. But, as I have explained, it is the case that if the definition of a criminal investigation were widened to include the officers of all investigating agencies, all of them would be bound by the exact terms of the code of practice prepared under Part II. For the reasons I have given, that would not be possible. Because their operating practices are different and there are so many different investigating agencies, it would be necessary to make a large number of different codes of practice, rather than them being subject to large numbers of different Secretaries of State—albeit under the one Secretary of State—setting out exactly the different requirements each of them must meet. I do not believe that that is sensible. It seems to me to be much more sensible to adopt the approach taken with the PACE codes of practice, whereby other investigators must have regard to the code.

Lord Simon of Glaisdale

My Lords, before the noble Baroness sits down, is not the phrase "have regard to" extremely uncertain? Would her point be met by stipulating that the other agencies should "comply so far as practicable" with the code of practice?

Baroness Blatch

My Lords, as the noble and learned Lord will see, Clause 19 states that: A person other than a police officer who is charged with the duty of conducting an investigation with a view to it being ascertained—", then it goes through the responsibilities of other investigators, as well as those of a police officer. Clause 19(4) states: If it appears to a court or tribunal conducting criminal or civil proceedings that…any provision of a code in operation at any time by virtue of an order under section 18, or…any failure mentioned in subsection (2)(a) or (b), is relevant to any question arising in the proceedings, the provision or failure shall be taken into account in deciding the question". That means that having regard to the relevant aspects of the code is very much a binding provision.

Lord McIntosh of Haringey

My Lords, I am relieved at one part of the Minister's answer. If it had not been the case that the legislation was put forward by one Secretary of State, then much of my claimed understanding of legislation, when I have opposed it over the past 12 or 13 years, would have been in error. Therefore, to some extent we have made progress.

In my over-long introductory speech, I did not repeat the argument (because I hoped that it would not be necessary) about the difference between "have regard to" and "comply with". The noble and learned Lord, Lord Simon, has properly drawn attention to the weakness of the words "have regard to". I am not reassured by the Minister's comment that it is what happens with the police and the codes of practice under the Police and Criminal Evidence Act. The fact that criminal investigations are carried on by so many agencies does not absolve the Government from the responsibility of ensuring that in effect there are codes of practice which apply to all those taking part in criminal investigations. I suggest that unless the code of practice is comprehensive in that way, the opportunity for challenge to verdicts on the grounds that the code has not been complied with—and I mean "complied with" and not "had regard to"—at an earlier stage in the investigation is that much greater.

A challenge, trial and conviction based on evidence collected by those who are not necessarily bound by the code of practice make nonsense of the whole of Part II of the Bill. Since Part I of the Bill in turn depends on the definition of matter not already disclosed under the code of practice, it makes nonsense of the disclosure provisions in the Bill.

The only argument left to the Government is that given in the Minister's rather self-contradictory reply; namely, that it would be too difficult to frame a code of practice that covered different investigative agencies. Of course it would be more difficult; of course it is easier to have a code of practice covering only the police. But that means that the Government are sacrificing completeness and justice for the sake of administrative convenience. That cannot be satisfactory.

Perhaps I may return to the example given by my noble friend Lord Williams of Mostyn about the security services. One of the arguments we shall have when the Security Service Bill reaches this House will relate to the extent to which the security services are covered by the codes of practice and the laws that regulate police work. This is a fairly non-party matter. Many in another place argue that if the security services are carrying out functions that would otherwise be carried out by the police, they must be bound by the same codes of practice as the police. They cannot be independent and unquestioned, as they are in matters of national security. The same applies to all aspects of criminal investigation.

If the Government have to redraft the code of practice to cover other agencies, then so be it. The position at the moment is that the Government have decided to take the simple way out in the drafting and coverage of the code of practice. That is simply not good enough.

I have used this analogy before, and therefore apologise to those who have heard it. The Government's approach is rather similar to that of the drunk who loses his keys. He is found looking for the keys under the nearest lamp-post. Somebody asks him, "Did you lose your keys here?". He says, "No, I didn't, but the light's better here". The Minister is in fact saying that the light is better only for police investigations, and therefore the Government will not look for a proper code of practice where it is darker but may be more appropriate. I gladly give way to the Minister.

3.30 p.m.

Baroness Blatch

My Lords, I am most grateful to the noble Lord. With the leave of the House I shall address two points which I did not address in the course of my response. The first is the reference made by the noble Lord, Lord Williams of Mostyn, to the security services, mentioned again by the noble Lord, Lord McIntosh.

The new functions given to them by the Bill passing through the other place will mean that the security services will not act in their own right but in support of the police. That has been made very clear during the course of the Bill's passage. They will not be self-tasking. That is the important point. That is certainly how the police see it. The police will have the duty to conduct the investigation.

The second point, which I did not cover fully, is that subsequent case law has established that the effect of Section 67 is to apply to the relevant provisions in the PACE code for other diverse groups such as Customs and Excise, serious fraud officers, store detectives and commercial investigators. It has been proved through the working of that Act that "having regard to" the code is a very proper part; it can be taken into account if they do not have regard to the code.

Lord McIntosh of Haringey

My Lords, both those additional points seem helpful to my argument. I am very glad to hear the point about the security services. However, it follows that what is good enough for the security services is good enough for others who collaborate with the police or undertake criminal investigations on their own. Incidentally, I see no difficulty in regard to those agencies that are responsible both for investigation and prosecution. There should be no difficulty at all—other than its simply being a little laborious—why the code should not be adapted for them to recognise the fact and to streamline, as it were, the process of revealing information to themselves.

I turn to the other question raised by the Minister on subsequent case law to the Police and Criminal Evidence Act 1984. That strengthens my case. Knowing the need, recognised by the courts, for a wider applicability of the codes of practice under PACE, we cannot seriously allow ourselves to pass legislation now which would have to be interpreted by the courts in the same way as the Police and Criminal Evidence Act has had to be interpreted. Surely, once it has been recognised that "have regard to" is not good enough and there needs to be subsequent case law to establish what the relationship is, the right alternative is to do it now.

On that basis, I suggest that this proposal is not only a correct extension of the code of practice but is the minimum extension that provides that the code of practice, which is not on the face of the Bill, shall provide the necessary reform for the avoidance of miscarriages of justice—the basis on which this legislation in the first instance and the report of the Royal Commission were framed. I wish to seek the opinion of the House.

On Question, Whether the said amendment (No. 46) shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 106.

Division No. 1
CONTENTS
Acton, L	Craig of Radley, L.
Addington, L.	Darcy (de Knayth), B.
Allen of Abbeydale, L.	David, B.
Annan, L.	Donaldson of Kingsbridge, L.
Archer of Sandwell, L.	Donoughue, L.
Avebury, L.	Dormand of Easington, L.
Barnett, L.	Ezra, L.
Borrie, L.	Falkland, V.
Bruce of Donington, L.	Farrington of Ribbleton, B.
Carter, L.	Fisher of Rednal, B.
Castle of Blackburn, B.	Gladwin of Clee, L. [Teller.]
Chapple, L	Graham of Edmonton, L. [Teller.]
Clinton-Davis, L.	Gregson, L.

Grey, E	Prys-Davies, L.
Halsbury, E.	Rea, L.
Hamwee, B.	Redesdale, L.
Haskel, L.	Richard, L.
Henderson of Brompton, L.	Richardson, L.
Hilton of Eggardon, B.	Robson of Kiddington, B.
Hollis of Heigham, B.	Rodgers of Quarry Bank, L.
Jenkins of Hillhead, L.	Sainsbury, L.
Jenkins of Putney, L.	Shaughnessy, L.
Kennet, L.	Shepherd, L.
Kinloss, Ly.	Simon, V.
Lincoln, Bp.	Simon of Glaisdale, L.
Longford, E.	Stallard, L.
McCarthy, L.	Stedman, B.
McIntosh of Haringey, L.	Stoddart of Swindon, L.
McNair, L.	Strabolgi, L.
Mallalieu, B.	Taylor of Gryfe, L.
Marsh, L.	Thomson of Monifieth, L.
Masham of Ilton, B.	Tordoff, L.
Mason of Barnsley, L.	Turner of Camden, B.
Methuen, L.	Wallace of Saltaire, L.
Milner of Leeds, L.	Warnock, B.
Molloy, L.	Wedderbum of Charlton, L.
Nicol, B.	White, B.
Palmer, L.	Wigoder, L.
Peston, L.	Williams of Elvel, L.
	Williams of Mostyn, L.

NOT-CONTENTS
Aberdare, L.	Hailsham of Saint Marylebone, L.
Addison, V.	Harding of Petherton, L.
Ailsa, M.	Hayhoe, L
Aldington, L.	Henley, L.
Alexander of Tunis, E.	HolmPatrick, L.
Archer of Weston-Super-Mare, L.	Hooper, B.
Arran, E.	Inglewood, L.
Astor of Hever, L.	Johnston of Rockport, L.
Belhaven and Stenton, L.	Kimball, L.
Blaker, L.	Lane of Horsell, L.
Blatch, B.	Lauderdale, E.
Blyth, L.	Liverpool, E.
Boyd-Carpenter, L.	Long, V.
Brabazon of Tara, L.	Lucas, L.
Braine of Wheatley, L.	Lyell, L.
Brentford, V.	McConnell, L.
Brougham and Vaux, L.	Mackay of Ardbrecknish, L.
Butterworth, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Cadman, L.
Campbell of Alloway, L.	Macleod of Borve, B.
Campbell of Croy, L.	Manton, L.
Chelmsford, V.	Merrivale, L.
Chesham, L. [Teller.]	Mersey, V.
Clanwilliam, E.	Middleton, L.
Cockfield, L.	Miller of Hendon, B.
Constantine of Stanmore, L.	Milverton, L.
Courtown, E.	Monteagle of Brandon, L.
Cranborne, V. [Lord Privy Seal.]	Mottistone, L
Cumberlege, B.	Mowbray and Stourton, L.
Dean of Harptree, L.	Murton of Lindisfarne, L.
Denham, L.	Norrie, L.
Denton of Wakefield, B.	Northesk, E.
Dilhorne, V.	O'Cathain, B.
Elibank, L.	Orkney, E.
Ellenborough, L.	Oxfuird, V.
Elles, B.	Peel, E.
Elliott of Morpeth, L.	Pender, L.
Ferrers, E.	Peyton of Yeovil, L.
Fraser of Carmyllie, L	Pym, L.
Fraser of Kilmorack, L.	Rankeillour, L.
Gage, V.	Reay, L.
Gainford, L.	Rennell, L.
Gardner of Parkes, B.	Renwick, L.
Gilmour of Craigmillar, L.	St. Davids, V.
Goschen, V.	Seccombe, B.
Gray of Contin, L.	Shaw of Northstead, L.

Shrewsbury, E.	Swinton, E.
Skelmersdale, L.	Teviot, L.
Slim, V.	Teynham, L
Strathcarron, L.	Thomas of Gwydir, L.
Strathclyde, L. [Teller.]	Trumpington, B.
Sudeley, L.	Vivian, L.
Swinfen, L.	Wynford, L.
	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

3.45 p.m.

Clause 16 [Code of practice]:

Lord McIntosh of Haringey moved Amendment No. 47:

Page 10, line 2, leave out ("designed").

The noble Lord said

My Lords, we debated this amendment also in Committee. However, we tabled it again because we did not think that the answers were at all satisfactory. The amendment provides not just that the code of practice "shall" secure the various provisions—the phrasing is: The Secretary of State shall prepare a code of practice containing provisions designed to secure",

various objectives and results.

We take the view that that is simply not good enough. The word "designed", which provides that the intent is satisfactory even if the result is not satisfactory, is not simply unnecessary but positively dangerous. Even with all the precautions that are now being taken and even allowing for the probability of parliamentary approval, the code of practice has to be justified in itself; it has to provide that the objectives of the legislation are in fact carried out.

As the code of practice and the provisions for the code of practice in the Bill at present stand, they are rather curious. Clause 15 looks at the definitions used in the code of practice and in the definition of a criminal investigation. Clause 16 provides certain elements of a code of practice which the Government consider to be so important that they ought to be spelt out in the Bill, although, for reasons that we shall discuss later, some of them are only spelt out in terms of "may" include rather than "shall" include.

Clause 17 is even more peculiar. It states: This section gives examples of the kinds of provision that may be included in the code". I do not believe that I have ever before seen quite that degree of vagueness in legislation. It always used to be argued by lawyers with whom I found myself debating these matters that if one includes one example, another example is excluded. There must be some Latin words for that which the noble and learned Lord, Lord Hailsham, will give us in a minute if he is tempted any further. He tells me that it is expressio unius est exclusio alterius.

Here is a whole clause of a Bill which simply gives examples of things that may be included. If I were a Minister and the Opposition proposed a clause of that kind, I should be inclined to say, "It is entirely unnecessary. We can do what we like and there is nothing to stop us, whether or not it is included in the legislation". But that is another matter and one which perhaps we can deal with in more detail when we discuss Clause 17.

At the present time, we are dealing with Clause 16. Clause 16(1) provides specifically for some core elements in the code of practice. But that provision and the firmness of it is ruined by the inclusion of the word "designed". It is not just that it makes it possible for a code of practice to he drawn up which, although designed to produce such results, does not in fact do so. It means that there is not any objective criterion afterwards to judge whether the code of practice complied with the constraints laid down by Parliament in the legislation. All that the Secretary of State has to say is, "Well, okay, we accept that it does not do what Parliament said it should do, but it was designed to do it and so that is perfectly all right; and any criticism of the code of practice on the basis that it frustrates the will of Parliament has no basis in law". That can he dealt with extremely simply by taking out the one word "designed". I beg to move.

Lord Campbell of Alloway

My Lords, the Secretary of State is under a mandatory duty to prepare the code of practice. This code of practice has legal efficacy. Using the word "designed" if we do not deliver, merely weakens the prospect of enforcement and mitigates the efficacy of the code.

Baroness Blatch

My Lords, during Committee I gave an undertaking to look again at the substance of this amendment. Having heard the noble Lord again today, I believe that this is one of those cases where we must agree to differ.

Paragraphs (a) to (f) of Clause 16(1) set out the objectives of the code. The Secretary of State is required to prepare a code which contains provisions designed to secure those objectives. That leaves some flexibility as to how the objectives are achieved. Clause 16(1) is intended to specify not what provision must be in the code, but what the end results of that provision should he. In that way, the provisions are designed to secure certain things; but it is the investigator, acting in accordance with the provisions in the code, who will actually secure them. It is the investigator who must secure those ends.

It seems more natural to say that a code of practice contains provisions which are "designed" to secure certain things than that the provisions actually do secure them.

Lord McIntosh of Haringey

My Lords, that argument is as awful this time as it was last time. The objectives of the code of practice and their ability to meet the wishes of Parliament are the responsibility of the Secretary of State. As the Minister said, it is the responsibility of the investigator to carry out the will of Parliament in accordance with the code of practice. But ultimately—I am sure the Minister will agree that this is the case everywhere else—the responsibility for matters which Parliament has determined lies with the Secretary of State and cannot be shuffled off onto the investigator or anybody else. I did not mean to take the opinion of the House on this matter, but I shall.

3.53 p.m.

On Question, Whether the said amendment (No. 47) shall be agreed to?

Their Lordships divided: Contents, 68; Not-Contents, 107.

Division No. 2
CONTENTS
Acton, L	McCarthy, L.
Addington, L.	McIntosh of Haringey, L.
Allen of Abbeydale, L.	McNair, L.
Archer of Sandwell,	Mallalieu, B.L.
Avebury, L.	Mason of Barnsley, L.
Bancroft, L.	Merlyn-Rees, L.
Barnett, L.	Methuen, L.
Beaumont of Whitley, L.	Milner of Leeds, L.
Borrie, L.	Molloy, L.
Bruce of Donington, L.	Nicol, B.
Carter, L.	Palmer, L.
Castle of Blackburn, B.	Prys-Davies, L.
Clinton-Davis, L.	Rea, L.
David, B.	Redesdale, L.
Dean of Thornton-le-Fylde, B.	Richard, L.
Donaldson of Kingsbridge, L.	Robson of Kiddington, B.
Donoughue, L.	Rodgers of Quarry Bank, L.
Dormand of Easington, L.	Sainsbury, L.
Farrington of Ribbleton, B.	Shaughnessy, L.
Fisher of Rednal, B.	Shepherd, L.
Geraint, L.	Simon, V.
Gladwin of Clee, L. [Teller.]	Stallard, L.
Graham of Edmonton, L. [Teller.]	Stedman, B.
Gregson L.	Strabolgi, L.
Grey, E.	Taylor of Gryfe, L.
Hamwee, B.	Thomson of Monifieth, L.
Haskel, L	Tordoff, L.
Hilton of Eggardon, B.	Turner of Camden, B.
Hollis of Heigham, B.	Warnock, B.
Howell, L	Wedderbum of Chariton, L.
Jenkins of Hilihead, L.	White, B.
Jenkins of Putney, L.	Wigoder, L.
Kennet, L.	Williams of Elvel, L.
Longford, E.	Williams of Mostyn, L

NOT-CONTENTS
Aberdare, L.	Chesham, L [Teller.]
Addison, V.	Clanwilliam, E.
Ailsa, M.	Cockfield, L.
Aldington, L.	Courtown, E.
Alexander of Tunis, E.	Cranborne, V. [Lord Privy Seal.]
Arran, E	Cumberlege, B.
Astor of Hever, L.	De Freyne, L.
Belhaven and Stenton, L	Dean of Harptree, L.
Blaker, L.	Denham, L.
Blatch, B.	Denton of Wakefield, B.
Blyth, L.	Dilhorne, V.
Boyd-Carpenter, L.	Elibank, L
Brabazon of Tara, L.	Ellenborough, L.
Braine of Wheatley, L.	Elles, B.
Brentford, V.	Elliott of Morpeth, L.
Brougham and Vaux, L.	Faithfull, B.
Butterworth, L.	Ferrers, E.
Cadman, L.	Fraser of Carmyllie, L.
Campbell of Alloway, L.	Fraser of Kilmorack, L.
Campbell of Croy, L.	Gage, V.
Cannock, L.	Gainford, L.
Chelmsford, V.	Gilmour of Craigmillar, L.

Goschen, V.	Mowbray and Stourton, L.
Gray of Contin, L	Murton of Lindisfarne, L.
Hailsham of Saint Marylebone, L.	Northesk, E.
Harding of Petherton, L.	O'Cathain, B.
Hayhoe, L.	Orkney, E.
Henley, L.	Oxfuird, V.
HolmPatrick, L.	Peel, E.
Hooper, B.	Pender, L.
Hylton-Foster, B.	Peyton of Yeovil, L.
Inglewood, L.	Pym, L.
Jellicoe, E.	Rankeillour, L.
Jenkin of Roding, L.	Reay, L.
Johnston of Rockport, L.	Rennell, L.
Kimball, L.	Renwick, L.
Lane of Horsell, L.	Richardson, L.
Lauderdale, E	St. Davids, V.
Lloyd-George of Dwyfor, E Lucas, L	Seccombe, B.
Lucas L	Shaw of Northstead, L.
Lucas of Chilworth, L.	Shrewsbury, E.
Lyell, L.	Simon of Glaisdale, L.
Mackay of Ardbrecknish, L	Skelmersdale, L.
Mackay of Clashfern, L. [Lord Chancellor.]	Strathcarron, L.
	Strathclyde, L. [Teller.]
Macleod of Borve, B.	Sudeley, L.
Manton, L.	Swinfen, L.
Merrivale, L.	Swinton, E.
Mersey, V.	Teviot, L.
Middleton, L.	Thomas of Gwydir, L.
Miller of Hendon, B.	Trumpington, B.
Milverton, L.	Vivian, L.
Monteagle of Brandon, L.	Wynford, L.
Mottistone, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.1 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, in calling Amendment No. 48, I should point out that, if it is agreed to, I shall not be able to call Amendment No. 49.

Lord Williams of Mostyn moved Amendment No. 48:

Page 10, leave out lines 3 and 4 and insert—

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

The noble Lord said: My Lords, my purpose in moving the amendment is to find out whether I cannot coax the Minister into seeing that there is some virtue in it. The message one derives loud and clear from the Royal Commission on Criminal Procedure is that the more order and regulation one has about the conduct of criminal investigations the better the conclusion is likely to be. This amendment is intended to ensure that, in respect of information obtained in the course of a criminal investigation, it is not simply recorded—that is on the face of the Bill in Clause 16(1)(a)—but that it is recorded, with the important qualification, at the time it is obtained"—

we know that there are sometimes difficulties in investigations or as soon as practicable after that time".

The proposal we put forward is that the structure often determines the conclusion, so that if one has an ordered regime it is capable of being a self-regulating mechanism, it forms a useful and necessary internal check, it is likely to assist police officers and it is likely to assist the scrutiny of criminal investigations. This is simply an echo of what is presently required from the custody officer who has to make the record of custody, requests for solicitors and the usual requests at the time. I cannot see any disadvantage to this proposal. I strongly suggest that it is likely to improve the quality of police investigations because it imposes the necessary internal discipline that material is recorded either at the time or as soon as practicable thereafter. I beg to move.

Lord Campbell of Alloway

My Lords, if Clause 16 is merely designed to ensure, surely there is nothing to prevent the detail of this amendment, which appears to have considerable merit, appearing in the code of practice.

Baroness Blatch

My Lords, we now come to a series of amendments which are concerned with the detailed content of the code of practice to be prepared under Part II of the Bill. I should like to preface my response to the amendments with some remarks about the status of the code of practice and its drafting.

The code was published in draft shortly before the Bill went into Committee. We received a number of comments on it, not least in the form of amendments tabled by noble Lords opposite. Some refinements to the draft code are needed, but its structure and general content so far have stood up well. As the House will be aware, I have tabled amendments to Clauses 18 and 53 to provide that the code of practice will be subject to statutory consultation and affirmative resolution of both Houses of Parliament before it is implemented in accordance with the recommendations of the Delegated Powers Scrutiny Committee. In the light of the detailed comments received and of the proceedings in your Lordships' House, we intend to produce a further draft when the Bill goes to another place so as to inform the debates on the Bill in that place.

The noble Lord has not made it clear to the House whether he intends to press the amendment in order to have it placed on the face of the Bill, which was the point made by my noble friend Lord Campbell of Alloway. The last time these amendments were debated I recall that they were tabled not with the intention of placing them on the face of the Bill but of using the occasion to discuss them as possible changes to the code of practice. I am happy to set out the Government's interim views on the points, which will of course be subject to further consultation. I have already written to the noble Lord, Lord McIntosh of Haringey, with detailed comments on his amendments, and I shall draw on these in responding to this and other amendments in the series.

Amendment No. 48 to Clause 16 requires information to be recorded at the time it is obtained or as soon as practicable afterwards. We agree with the principle that information should be recorded promptly as long as it is considered to be relevant to the investigation. But we are concerned that this amendment might imply that an investigator has a duty to take a statement whenever he contacts a potential witness. He should not have to take statements when they would not ordinarily be taken, although he should make a note of any potential witnesses. Subject to this caveat, we intend to incorporate into the draft code a modified version of Amendment No. 48 and I am grateful to the noble Lord for raising the point. That would require the prompt recording of material, without prejudice to the existing practice relating to whether statements should be taken or not.

Perhaps I may give an example of such an occasion. At riots where large numbers of people are present many people will be approached but statements will be taken only from a restricted number of people. Therefore, as long as all the events are recorded, only the relevant statements will be produced. I hope the noble Lord is satisfied that we will bring forward a modification of his amendment.

Lord Williams of Mostyn

My Lords, I am most obliged for that helpful response. The amendment was not designed to insist that statements should be obtained on every occasion but that information should be recorded. The Minister has said that there is nothing between us in the thrust of what we aim to secure. Upon that basis, for which I am most grateful, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Murton of Lindisfarne)

My Lords, in calling Amendment No. 49, I should point out that if it is agreed to I shall not be able to call Amendments Nos. 50 or 51 because of pre-emption.

Baroness Blatch moved Amendment No. 49:

Page 10, line 3, leave out from ("information") to end of line 7 and insert ("which is obtained in the course of a criminal investigation and may be relevant to the investigation is recorded;

1. (b) that any record of such information is retained;
2. (bb) that any other material which is obtained in the course of a criminal investigation and may be relevant to the investigation is retained;
3. (c) that information falling within paragraph (a) and material falling within paragraph (bb) is").

The noble Baroness said: My Lords, perhaps I may speak at the same time to Amendments Nos. 52 and 56. These amendments ensure that the enabling provisions of Clause 16 are consistent with the provisions of the draft code of practice. Under Clause 16 as currently drafted, the code of practice would have to require the retention of all material obtained during a criminal investigation regardless of its relevance to the investigation. On reflection, we have concluded that that would be unworkable. For example, if the police seized a dustbin, searched it and found drugs, they would need to retain the entire contents of the dustbin as well as the drugs. Amendment No. 49 accordingly limits the retention requirement to material which may be relevant to the investigation. Although narrower, this should still catch all material which the prosecutor needs to see to form a view on whether material needs to be disclosed. It also accords with current police practice.

Amendment No. 52 ensures that the police can give material to the accused at the request of the prosecutor either by copying it to him or by allowing him to inspect it. At present Clause 16 only provides for inspection, with copying subsequently if appropriate, but I understand that generally, unless the material is, for example, a very long document, it will he more efficient simply to copy it to the accused without requiring him or his legal representative to turn up at a police station to inspect it

Amendment No. 56 ensures that some of the tasks which must be carried out in pursuance of the code of practice can be carried out either by police officers or by civilians employed in the police force, although a police officer will always be ultimately responsible for ensuring that these tasks are carried out.

Under Clause 16 at present, all tasks, even administrative ones, must be carried out by police officers. That does not take account of the modern practice of employing civilians within the police service on tasks which do not need the specialist skills of a police officer. I beg to move.

Lord McIntosh of Haringey

My Lords, these are very welcome amendments not only in themselves, but in the way in which the Minister introduced them and the way in which they have been linked. Strictly speaking, they are all on very different subjects and, under some circumstances, I believe that we would have wished to debate them separately. After all, one is about the retention of irrelevant material; another concerns the way in which material can be disclosed to the accused and the third refers to the implementation of the code of practice by civilians as well as police officers. One could not have more different subjects for those three amendments, but they are linked for a very welcome reason. They are linked because the Government are recognising the force of the arguments we put forward at Committee stage that the important elements of the code of practice ought to be subject to legislative authority. That indeed is what the Government are now doing. They are recognising that the will of Parliament extends not only to the establishment of a code of practice itself, but also to significant elements of the code of practice. So in putting forward these amendments which, as the Minister rightly said, bring the Bill into line with the code of practice, as at present drafted, she is in effect conceding that our arguments for debating these issues on the Floor of the House have been correct, and for that I am grateful.

The Deputy Speaker pointed out that Amendments Nos. 50 and 51 will be pre-empted if Amendment No. 49 is carried, as I believe it will. I hope that the House will forgive me if I make some reference to those two amendments. I do not know whether the Minister has simply assumed that Amendment No. 49 would be carried and that she did not need to refer to Amendments Nos. 50 and 51. I hope she may feel able to respond to my points about those two amendments which I shall be unable to move.

In both cases we have taken account of points made by the Government. We have made changes to the amendments that we tabled at Committee stage. I hope that the Minister will acknowledge that these amendments are sensible and that it would be entirely proper for them not to be pressed here—they cannot be—but for them to be incorporated in the next version of the code.

The first issue concerns material which at present is to be kept in durable form. In the amendment we are saying that where possible it should be kept in the original form as well. The Minister rightly said to me in a letter that our original amendments put an impossible task on the investigator requiring him to keep in the original form material which was not necessarily in his possession, but in that of a third party. The Minister acknowledges, and I acknowledge, that the issue of evidence in the possession of third parties is extremely complicated. I accept her point that although she is trying to table amendments to the Bill which recognise these points, the Minister has been unable to do so yet and that it will be necessary to do that at a later stage and possibly not even in this House. Now that we have added the words, "obtained by the investigator" in Amendment No. 50—in other words, we have limited the scope of our Amendment No. 69 tabled at Committee stage—I hope that the Minister will agree that there is something of substance here which deserves to be considered further.

Amendment No. 51 is extremely important because it is about samples and particularly forensic evidence. I believe that the Minister will be able to agree to the thrust of some part of this amendment. My understanding is that the present rule is that non-perishable material, such as a boot, is returned to the police by the forensic scientist, but that perishable material is subject to a notice under rules which have been drawn up by the Crown Prosecution Service and by the Lord Chief Justice; namely, notification of intent to destroy a piece of evidence. All this sounds entirely satisfactory to me, but it is important that there should be recognition in the code of practice that samples of this kind are, under appropriate and enforceable rules, kept under the control of the code of practice and included in its scope. We have no objection to Amendments Nos. 49, 52 and 56.

Lord Campbell of Alloway

My Lords, I support the suggestion that when the code of practice is drawn, serious consideration may be given to Amendments Nos. 50 and 51, which are very useful.

4.15 p.m.

Baroness Blatch

My Lords, with the leave of the House, I thought that it might be presumptuous of me to have jumped ahead. I am happy to respond to Amendments Nos. 50 and 51 before a decision is taken on my amendment.

I understand the concerns about the issue raised in Amendment No. 50. But again, the requirement—and this is the distinction—to retain material in a durable form and as far as practicable in its original form, is insufficiently flexible to take account of operational practice. Perhaps I may give an example. Where papers are obtained from a company, it makes sense for the police to take a copy and return the originals to the company so that it can continue its work. For that reason we prefer to retain the existing provision in the draft code, which recognises that material may be retained either in its original form or in the form of a copy, but nothing that would prejudice justice in these cases.

Amendment No. 51 requires the retention of both draft and final versions of witness statements. The code requires only final versions to be retained. We accept that draft versions of witness statements should in general be retained. Although special considerations apply to statements of opinion prepared by expert witnesses, these tend to evolve as further information comes to light and additional expert contributions are obtained. Earlier versions of such statements tend to be based on incomplete information and could be misleading. We see no advantage in their retention for their own sake. I have already given the noble Lord an undertaking that we shall amend the draft code to require the retention of draft witness statements subject to that qualification.

The second amendment seeks to specify the material which the expert must retain to support the report on any work carried out and the schedule of scientific material which are sent to the investigator. The code is not designed to regulate the activities of expert witnesses—we have had this debate already—but only of those persons who are charged with the duty of conducting an investigation. Again, we discussed this point when debating a previous amendment. What is important is that where there is a requirement to retain samples in a condition that will be appropriate, that responsibility lies with the investigator.

On Question, amendment agreed to.

[Amendments Nos. 50 and 51 not moved.]

Baroness Blatch moved Amendment No. 52:

Page 10, line 12, leave out from first ("it,") to end of line 13 and insert ("and he requests that it be disclosed to the accused, the accused is allowed to inspect it or is given a copy of it;

(dd) that the person who is to allow the accused to inspect information or other material or to give him a copy of it shall decide which of those (inspecting or giving a copy) is appropriate;").

The noble Baroness said: My Lords, this amendment was taken with Amendment No. 49. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 53:

Page 10, line 20, at end insert—

("(1A) The code shall include provision that a police officer shall be identified for each criminal investigation who shall secure—

1. (a) that information obtained in the course of a criminal investigation is recorded;
2. (b) that any record of information so obtained, and any other material so obtained, is retained;
3. (c) that information obtained, and any other material so obtained, is disclosed to a person who is involved in the prosecution of criminal proceedings arising out of or relating to the investigation and who is identified in accordance with prescribed provisions;
4. (d) the person so identified shall sign a certificate that these provisions have been complied with.").

The, noble Lord said: My Lords, in moving Amendment No. 53, I should like to speak also to Amendments Nos. 55 and 57. The purpose of these amendments is similar to that of certain other amendments: to devise and institute a scheme which will designate a specific police officer in a criminal investigation who will have the duty of recording and, in particular, the obligation of signing a certificate to say that certain obligations have been discharged. It is not a new proposition. It was suggested in the past by the Bar Council before the commission of the noble Lord, Lord Runciman, was set up, and has been suggested also by the Criminal Bar Association. It is not suggested or necessary that in every criminal investigation the designated officer should be a senior officer. Obviously in the smaller run of the ordinary criminal case the officer involved in the case will be designated. More senior officers may be required in more complex cases and the duty may need to be delegated to a specific detective officer.

The amendments are designed to bring about the result that there will be someone with a duty set upon him or her, and that that duty will be identified and enforced by virtue of the obligation and the necessity that the designated officer shall sign the certificate to say that all has been properly complied with. If the Minister were of the view that that is something that could usefully be accepted in principle for inclusion in the code, I would be more than satisfied. I beg to move.

Lord Campbell of Alloway

My Lords, if the amendment cannot be accepted verbatim, I hope that my noble friend the Minister will give serious consideration to accepting it in principle.

Baroness Blatch

My Lords, I hope that I can be helpful. These amendments to Clause 16 provide that the code of practice must include provision for an identified police officer to secure the recording of information, the retention of records of information and other material and their disclosure to the prosecutor, and to certify that this has been done. I believe that the amendments are not necessary to achieve the desired result because Clause 16 already requires the Secretary of State to prepare a code of practice which is designed to secure compliance with the duties specified in the amendments.

Nevertheless, I understand the concern to ensure that the duties relating to disclosure which fall on the police are carried out by someone who is identified and who will certify that he has complied with his duties. As I have already indicated to the noble Lord in correspondence, I agree with this in principle. We will, as Clause 16 allows, ensure that in the next draft of the code of practice the duties of the "disclosure officer", as he will be called, are clearly identified. If a disclosure officer is to perform those revelatory functions, there is no need to record his name in a log book: it will appear on the schedule and on the certificate supplied to the prosecutor. I hope that noble Lords will be satisfied that that explanation is a positive response to the amendment.

Lord Williams of Mostyn

My Lords, it is indeed a positive response. I believe it to be a helpful response which will improve the working of the code and therefore the Bill. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 54:

Page 10, line 21, leave out ("may") and insert ("shall").

The noble Lord said: My Lords, this is the first of a long series of amendments. The grouping also includes Amendments Nos. 59, 63, 64, 65, 68, 71 and 72, all of which have the same effect. They do not seek to write the provisions of the code of practice on the face of the Bill—we do not want to start that argument again—but they seek to do what the Bill already provides; in other words, they seek to change the provisions which state that "the code of practice may do so and so" to provisions stating, "the code of practice shall do so and so".

Taking into account Amendments Nos. 49, 52 and 56, I believe that the Government now recognise that the provisions in Clauses 16 and 17 which seek to constrain and to bring out into the open air, so to speak, the provisions of the code of practice are included in the code of practice, or will be.

I repeat the acknowledgement that my noble friend Lord Williams has just made. On occasions we are receiving helpful replies to our suggestions about the code of practice. I believe that that justifies the effort that we have put into examining the code of practice to ensure that it meets the requirements of justice and fits properly into the structure of the Bill.

If that is the case, what is the point of having Clauses 16 and 17 unless they provide that the code of practice includes what it does in fact include? It is difficult to check because the code of practice is formulated in a different way—in paragraphs rather than clauses—but as far as I can see, all of the provisions of Clauses 16 and 17 are reflected in the code of practice, so why not secure that parliamentary approval is given to those inclusions and that the code cannot be changed without further parliamentary approval? I believe that these are sensible provisions which increase Parliament's control over the code of practice without taking away the necessary flexibility. I commend them to the House. I beg to move.

Baroness Blatch

My Lords, Clauses 16 and 17 currently provide that the code of practice "may" make provision for a number of matters. The amendments seek to replace "may" with "shall" in Clause 16(2) and in seven other places in Clauses 16 and 17.

I understand the desire of the noble Lords to ensure that the code is required to do the things it currently may do. But I do not think that it is necessary to go as far as they have done in these amendments. The Secretary of State is already required to prepare a code under Clause 16, and the code is required to contain such provision as is described in subsection (1) of Clause 16. The remaining provisions of Clause 16 are designed to amplify the requirements in subsection (1) rather than to stand independently of them. Similarly, the provisions of Clause 17 merely give examples of what the code may include to amplify what is in subsection (5) of Clause 16.

I should also point out that the draft code is a recent creation. The comments that we have received suggest, as I said earlier, that its structure and contents are broadly right. But without further reflection and consultation we cannot be certain that it contains all that it needs to contain; nor can we be sure that it is necessary to include in the code all the provisions which it is permitted to include under Clauses 16 and 17 but which under these amendments it would be required to include. Given the status of the code—as a draft subject to consultation and to approval by Parliament—we would be reluctant to remove the flexibility that derives from the use of the word "may" rather than "shall". There will be changes of circumstance and there may be other examples. Certainly, Clause 17 is not wholly inclusive of examples that may be covered in the code of practice. However, the ultimate safeguard will be that Parliament is invited to approve the code of practice. It will be for Parliament to decide whether the Secretary of State has produced a code to secure the desired ends.

Lord McIntosh of Haringey

My Lords, I can see how this debate could degenerate into a theological debate about structure as between what is wholly codified in primary legislation and what is left to the most flexible provisions of the code of practice. I acknowledge that the Government have moved a considerable way to protecting the code of practice by providing that it shall be the subject of statutory consultation and subject to approval by Parliament. To that extent, the differences between us are at least squeezed a little.

However, I am disappointed because it seems to me that our amendments to Clause 16—Clause 17 is the peculiarity that I have already described—recognise the fact that all of those elements are included in the code of practice. I cannot see the faintest danger in drawing attention to that fact and saying that they shall not be changed. After all, they are pretty fundamental.

This very much reminds me of our debates about some of the provisions of the criminal injuries compensation scheme when, except on a few occasions, I did not succeed in persuading the Government to accept that the basic elements of criminal injuries compensation are pretty robust, pretty long-standing and ought to be (and could perfectly well be) incorporated in legislation and not left to the chance of a scheme even when that scheme is subject to parliamentary approval.

We have been over this ground before. It is an issue upon which it would be improper for me to divide the House, because it does not write any element of the scheme into legislation, although I do not say that writing some elements would not on occasion be proper upon which to divide. However, in view of the changes that have taken place in the status of the code of practice, I shall not press the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 55 not moved.]

Baroness Blatch moved Amendment No. 56:

Page 10, line 26, after ("out") insert ("by a person (whether or not a police officer)").

On Question, amendment agreed to.

[Amendment No. 57 not moved.]

4.30 p.m.

Lord Williams of Mostyn moved Amendment No. 58:

Page 10, line 28, at end insert— ("( ) that if a police officer knows or believes that other investigating agencies are or may be in possession of material that is or may be relevant to the investigation, he shall notify both the agency concerned and the prosecutor.").

The noble Lord said: My Lords, again, this is an approach similar to that adopted earlier. It deals with the situation, which is not uncommon in serious criminal investigations, where a police officer in one investigation may be in the position of sharing, pooling or exchanging information with another investigating agency. I have mentioned possible agencies. There may be further ones, not least security services if legislative action is taken, as seems likely.

If the Minister says that it is better for this to be considered as part of the code, I shall entirely accept that. This is a situation where information may be obtained in a police investigation, and a different investigating agency or authority is in possession of material which may well be relevant to the defence of a an accused person or a potentially accused person. The only obligation here is—it is a limited one—to notify that other investigating agency and the prosecutor. There is no present obligation in the draft code to notify a prospective defendant. This again is put forward on the basis of wanting to make the code work in practice. There will not be many occasions when this will happen, but there will be some, and those some may be significant. I beg to move.

Baroness Blatch

My Lords, this is a more limited version of an amendment which noble Lords tabled in Committee. I have again already written to explain why we could not make provision in the draft code of practice for that amendment. It would have required the police to conduct speculative inquiries and would have given the courts a new role in directing the investigation of offences. I think that the noble Lord has accepted that in bringing forward a revised amendment for the current code of practice.

In the current draft of the code of practice, if a police officer knows that another investigating agency is in possession of material that may be relevant to the investigation, he is required to notify the agency concerned and the prosecutor. But he is not required to make speculative inquiries of other agencies to establish whether they may have any material that may be relevant.

The amendment would require the police officer to notify the agency and prosecutor if he believed that the agency might be in possession of material that might be relevant. In its more limited form, I think that may be acceptable in principle as an amendment to the draft code, as long as it is recognised that a police officer is under no obligation to make speculative inquiries. In other words, there must be some foundation for his belief that the other agency may be in possession of relevant material, but the noble Lord has already made that point. With that response, I hope that the noble Lord will not press the amendment.

Lord Williams of Mostyn

My Lords, I am grateful again for that reply. It was not the intention of the amendment to put the burden on any police officer or investigating agency to make speculative inquiries. It is merely that if there is knowledge or sensible, reasonable belief that there is relevant material, that would be notified to the other agency—the third party agency, as it were—and the prosecutor. I am grateful to the Minister for her helpful response. Upon that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 59 not moved.]

Lord McIntosh of Haringey moved Amendment No. 60:

Page 10, line 30, at end insert ("including provision that it is recorded in sufficient detail to enable the prosecutor and the accused (if the record were subsequently to be disclosed to him) to form a judgement as to its relevance").

The noble Lord said: My Lords, it may be for the convenience of the House if I speak also to Amendment No. 61. These are further examples of amendments that we tabled in Committee and did not move because of the state of play between the two Front Benches at that time, but which have been the subject of correspondence and a meeting between Ministers and ourselves since that time.

As the Minister will recognise, we have amended the amendments to reflect those parts of the Government's answers which we considered to have validity. We are grateful for that. In particular, our earlier amendments referred to specified information enabling the accused as well as the prosecutor to form a view as to its relevance. We recognise that if the material is sensitive, it will be recorded on a sensitive schedule and the accused will not have access to it. Therefore, it would have been improper to include the wording that we then included.

However, the issue behind the amendments is still the same. The wording used in the legislation to describe what is called in the Royal Commission report, and has been called by Ministers in correspondence,

"The schedule of material to be disclosed to the accused", is not described in that way in the legislation. Normally, the wording used is "a document". A document is not the same thing, to me at any rate, as a schedule of material which is necessary in order to comply with what I understand to be the intention of the legislation.

We are again in danger of theological points, or perhaps semantic points, about the meaning of different words and phrases and the way in which they are put together. Nevertheless, it is important to have enough detail in the primary disclosure by the prosecution. The criterion by which the amount of material to be disclosed to the accused at the primary disclosure stage should not be merely administrative convenience and the workload on the prosecution.

Of course the workload and the burden must be taken into account, but the purpose of the primary disclosure by the prosecution and therefore the revelation by the investigator to the prosecution is what information will be necessary to trigger the compulsory defence disclosure which is provided for in Part I.

I still believe that it is desirable to have greater precision about what is provided in order to balance the administrative convenience and the burden of work on the investigator and the prosecutor with the interests of justice which require that the defence should have adequate information upon which to present its own disclosure and therefore contribute to a fair trial. I beg to move.

Baroness Blatch

My Lords, I have had the advantage of correspondence and discussion with the noble Lord about these amendments, in the course of which I explained to him that the main function of the schedule is to notify the prosecutor of material retained by the investigator, material which does not form part of the case against the accused and which the prosecutor will not previously have seen, so that the prosecutor can make informed decisions on disclosure. The schedule has to be sufficiently detailed for the prosecutor to do this. The amendment would not, in my view, add anything of practical value.

The second amendment requires the source, date and nature of the material to be specified on the schedule. It is not clear—at least not to me—why these specific details are required to be recorded given that the schedule must already provide sufficient detail for the prosecutor to form a view on whether any item on it needs to be disclosed. Not only is it not necessary to record information in the way specified in all cases, it would place an unjustifiable burden on the investigator to require him to do so. For example, in most cases the source of the item will be the investigator, who has generated interview records or other material.

The amendment would also require the schedule to list the names and addresses of witnesses to the offence who were known to the prosecutor and from whom witness statements had not been taken. But the function of the schedule is to list material which does exist, and I do not see why it should extend to material which does not exist.

There is another consideration which I should mention. Disclosure of the names and addresses of witnesses before the trial is not required under the law at present. I do not think it would be desirable to disclose such information. The prosecutor will know about such witnesses only if they have come forward to the police. Many witnesses come forward on the basis that their anonymity will be protected because they fear reprisals from the accused or his friends. This amendment would remove that protection. Witnesses of crimes would be more reluctant to report them. That would not be in the interests of justice. It would also treat them unfavourably in comparison with witnesses who have given witness statements and who are to give evidence at trial—the judge has a discretion to allow them to hand in their addresses to the court in writing rather than to read them out. As I have explained in previous debates, I cannot, for those reasons, accept these as amendments to the Bill.

Lord McIntosh of Haringey

My Lords, I accept that those are arguments—in particular the argument about the names and addresses of witnesses—which have some force and which in themselves persuade me not to press the amendment to a Division.

But we are still some way from reaching agreement about the extent to which there should be an obligation on the investigator to provide enough material to enable the prosecutor to make a good judgment about what should be disclosed to the accused.

Again, I suppose that we are stuck with the peculiar structure of this Bill. Here we have Part I of the Bill which describes the second act of the play—the process between a plea of not guilty and coming up to trial—whereas Part II describes an outline of Act 1 of the play. In a well-made play, Act 3 would be the trial itself. But Act 1 of the play is defined only in terms of the content of a code of practice, and the code of practice is not sufficiently precise and comprehensive to secure that the plot as laid down in Act 2, which is what people are mostly concerned with when they are looking at the implementation of the recommendations of the Runicman Royal Commission, unfolds clearly and that the rationale behind it is clear to the audience.

Here were are trying to secure that the structure of Act 1, the structure of the code of practice, is as clear as it is for Act 2. We recognise that it must be flexible and that there are burdens on the investigators and the prosecutor which should be minimised. But I am still not persuaded that the amendments which I have tabled do not contribute positively to the effective conduct of the disclosure process contained in Act 2 or Part I of the Bill. Nevertheless, it is not an issue on which I wish to seek the opinion of the House, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 61 not moved.]

4.45 p.m.

Lord McIntosh of Haringey moved Amendment No. 62:

Page 10, line 31, leave out from ("code") to end of line 36 and insert ("shall include provision that all relevant material shall be retained for a prescribed period, such period—

1. (a) to be the same period for every police force area, although the period may differ for different categories of material and for different categories of case (including the plea entered and the length of sentence); and
2. (b) in any case where a criminal investigation results in a person being charged with an offence, to be at least until the period for any appeal has expired.").

The noble Lord said: My Lords, this is rather a different matter. The intention of Amendment No. 62 is to secure that the policies regarding retention of material are the same in all police forces in the country. That is a matter of very fundamental importance and it is an issue which the Government have fudged. I do not know the extent to which they are in negotiation with police authorities and chief police officers or how close are those negotiations to reaching an end. But to have a provision, as we do in the code of practice, which says that chief officers of police shall reproduce codes which will lay down the length of time over which material shall be retained is frankly dodging the issue. It is the responsibility of government, by agreement if possible and by diktat if necessary, to make sure that all police forces have the same policies.

The issue was somewhat muddied in Committee by our failure to recognise in the amendment which we then tabled that not all material but only relevant material has to be retained. Similarly it was muddied by our failure to make it clear than the relevant period could be different for different categories of case; in other words, for different kinds of offences and for different lengths of sentence. But now we have dealt with those problems.

Our amendment now recognises the genuine differences which would have to be taken into account in any code which is to apply to all police authorities. Our case is strengthened by having a common series of rules applying to all police forces. After all, it is not just within the scope of this Bill that we are concerned with a rational structure of retention of material. The Criminal Cases Review Authority, established last year, must have some basis on which to act which is the same for, for example, Thames Valley Police as for the Metropolitan Police or the West Mercia Police. It must be sure that there are no differences in the material available to it according to the whim of the chief constable or police authority.

As the House knows, I am not one of those who seek to extend the authority of the Home Secretary over the operations of the police force. Indeed, last year I spent a great deal of time arguing for the independence of police forces; but surely not on an issue such as this. The policy as regards the retention of material which may be required as evidence in criminal cases should be the same all over the country. It is incomprehensible to me that the Government should come forward with this legislation before they have resolved that simple negotiating issue. This amendment is of considerable importance in itself. The failure of the Government to reach a satisfactory conclusion and present it to the House is a serious criticism of their ability to get the legislation through in the form that they wish. I beg to move.

Baroness Blatch

My Lords, the noble Lord is quite right to raise the matter of a national retention period. As I have already indicated to him, that idea is attractive. Indeed, my officials will meet representatives of the Association of Chief Police Officers to discuss whether a national policy can be developed. But achieving that is not straightforward. First, each police force currently operates its own policy, retaining material for different periods and applying different criteria, and there is no common practice. Whatever policy is selected will require some forces to keep material for longer than at present and others possibly for shorter. Secondly, it is not clear how long the periods should be in particular circumstances. Obviously, the longer material is retained the more likely it is to be available if a conviction is challenged long after it happened. But retaining all material for a very long period would impose unmanageable burdens. It is necessary to distinguish between those cases where material does need to be kept for a long time and those where it may be disposed of relatively quickly.

The amendment does indeed provide for different retention periods for different categories of material and different categories of case. But I am not sure that even this is quite as flexible as it needs to be. For example, it does not allow the disposal of material when a decision is taken not to bring charges.

Certainly, where a person has been charged and convicted it must be right to retain material at least until the time limit for an appeal has expired. On that, I can give the House an undertaking, as I have given to the noble Lord. that we will amend the draft code accordingly.

I hope that the House will be reassured to know that we are trying to develop a national policy for the retention of material by the police and that we hope to incorporate that into the draft code of practice before it is submitted for approval under the affirmative resolution procedure. We agree in principle; the debate is about how we get there.

Lord McIntosh of Haringey

My Lords, we must be grateful for the assurance as regards keeping material until an appeal has been heard and determined. Frankly, the rest of the argument is anarchy and it does not hold up at all. Perhaps we may take the example of the serial child killer, Black, who came from Scotland and killed children in different parts of the north of England and in the Borders region of Scotland. I believe that I am free to talk about the case because there is no question of an appeal. The evidence in the case comes from at least three different police forces, all of which are allowed to have their different rules about the retention of material. That makes no sense and the sooner the Government get their act together the better.

I shall not press the amendment in perhaps the vain hope that before Third Reading the Government will have reached agreement with the Association of Chief Police Officers. Let us hope for that and table the amendment again on Third Reading to see where we gel. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 63 not moved.]

Clause 17 [Examples of disclosure provisions]:

[Amendments Nos. 64 and 65 not moved.]

Lord McIntosh of Haringey moved Amendment No. 66:

Page 11, line 8, at end insert ("including the reason for his belief').

The noble Lord said: My Lords, Amendments Nos. 66, 67 and 73 relate to sensitive material. For the sake of the record, and in order to make it clear to noble Lords what is meant by sensitive material, we have included in the Marshalled List, as we did in Committee, the text of the draft code of practice. I refer to Amendment No. 73. The noble Lord, Lord Campbell of Alloway, who I am sorry is not in his place, found difficulty in believing that sensitive material is so widely drawn as to include material given in confidence. If your Lordships look at items (a) to (p) in Amendment No. 73 they will see that the definition of sensitive material is extremely widely drawn. In that amendment we have not sought to restrict the definition to those items or to insist that all of them should be included because, following the example of vagueness set by the Government in Clause 17 as a whole, we have allowed that the items may be included depending on the circumstances. We are not seeking to prescribe what should be included in sensitive material.

The important amendments are Nos. 66 and 67. Amendment No. 66, line 8 on page 11, provides that if the person required to reveal the material, that is the investigator: has possession of material which he believes is sensitive he must give a document which…indicates the nature of that material, and…states that he so believes", and, we suggest, includes the reason for his belief.

Amendment No. 67 goes further by suggesting that the prosecutor has the responsibility for reviewing: whether or not it is in the public interest that it should not be disclosed to the accused".

In other words, it is defined as being sensitive. In order to do so he must have access to the sensitive material and he must have the opinion of the investigator, as provided in Amendment No. 66, as to his belief that the material is sensitive and the reasons for the belief. Without that he could hardly make a sensible judgment.

In Committee there was a certain amount of to-ing and fro-ing about security clearance. We can pass over that and take it that if there is ever to be a question of sensitive material which is concerned with national security or the intelligence and security agencies the Crown Prosecution Service will in any event ensure that the prosector is cleared for dealing with such matters. If the nature of sensitivity is confidentiality or non-security matters, security clearance is not relevant.

The fundamental principle behind the amendments still stands. Our criminal justice system requires that there should not be the possibility of enormous amounts of evidence, perhaps critical evidence, being excluded on the say so of the investigator and there being no opportunity whatever for the prosecutor to make a simple judgment; a sound judgment on whether the classification of the material as being sensitive is justified or not. Without that judgment, and without the prosecutor having the responsibility for reviewing the sensitivity decision, the prosecutor cannot make a sensible decision about what to disclose to the accused under the procedures in Part I.

We have revised the amendments that were tabled in Committee to reflect the sensible criticisms which the Minister made of them in correspondence. I hope that she will recognise that what is left is a significant improvement to the provisions of the Bill. I beg to move.

Baroness Blatch

My Lords, under Amendment No. 66 the code of practice would require a police officer to indicate on the sensitive schedule the reason that he believes particular material is sensitive. This will help the prosecutor in his assessment of whether the material needs to be brought before the court for a ruling on whether it should be disclosed. It accords with current practice. I am grateful to the noble Lord for having raised the point and we will amend the draft code accordingly.

Under Amendment No. 73 the code of practice would define sensitive material for the purposes of preparing a schedule of sensitive material. The terms of the amendment are the same as those of the existing provisions of the draft code of practice. I have no difficulty with the content of the amendment but, as I have already explained to the House, I cannot accept amendments which place the detailed content of the code of practice on the face of the Bill.

I turn now to Amendment No. 67, about which I have rather more to say. The amendment inserts a new provision into the Bill after Clause 17(2). It requires the code of practice to provide that the prosecutor must be given the schedule of sensitive material; must have access to all material listed on it; and may amend the schedule in the light of his own decision about whether it is in the public interest to disclose the material listed. The effect of the Bill, which is clearly brought out in the draft code of practice, is that the police must give the prosecutor the schedule of the sensitive material and must give him access to all material listed on it. Accordingly the first two of these requirements are already catered for.

However, I have more difficulty with the third requirement. The purpose of the sensitive schedule is to draw the attention of the prosecutor to material which it may not be in the public interest to disclose. All of the material will be sensitive; some of it may fall within the test for disclosure, some of it may not. It is for the prosecutor to assess whether the material listed on the schedule meets the tests for disclosure in the Bill, and if so whether he should apply to the court for a ruling to protect it. The test whether it is in the public interest to disclose sensitive material only applies where the material would otherwise have to be disclosed because it fell within the disclosure tests in the Bill.

The noble Lord explained in Committee that his main concern was to ensure that the prosecutor and not the police was responsible for deciding what was sensitive and what was not. Although the police will initially categorise material as either sensitive or non-sensitive for the purposes of preparing schedules, it is for the prosecutor and not the police to assess whether material—sensitive or non-sensitive—should be disclosed, and it is for the prosecutor and not the police to make an application to the court if he thinks that material is so sensitive that it is not in the public interest to disclose it, notwithstanding that it is of a category required to be disclosed under the provisions of the Bill.

I am concerned about the effect of the amendment in practice. It explicitly provides that the prosecutor may amend the sensitive schedule which the police have given him. Why would he want to do that? The sensitive schedule itself is not a public document. The only reason why the prosecutor would want to amend the schedule is that he intends to give the amended version to the accused. Now one of two consequences must follow from this. Either the prosecutor removes from the sensitive schedule everything except sensitive material which falls within the test for disclosure and which is not protected by the public interest test—in which case the accused will receive all material listed on the schedule, and there would be no point in giving him the schedule because there is nothing on it which he will not have seen—or the prosecutor leaves on the sensitive schedule not only sensitive material which meets the test for disclosure and which is not protected by the public interest test, but other sensitive material which is not being disclosed, either because it does not meet the test for disclosure or because it does but a court has ruled it is not in the public interest to disclose it. This would defeat the purpose of listing sensitive material on a separate schedule in the first place.

If the second scenario applies, then, as I explained when we debated this amendment in Committee, the accused would have the schedule of sensitive material, listing details of informants, covert surveillance techniques and other methods of fighting crime. This would significantly impede the fight against serious crime. As the noble Lord explained in Committee, that is not what he intends, and of course I accept that. For all of these reasons I hope again that these amendments will not be pressed.

5 p.m.

Lord McIntosh of Haringey

My Lords, I think Joseph Heller would be proud of that reply. We are in Catch-22 territory here. The responsibility of the prosecutor is to judge what elements of the schedule of material that he has been given should be given to the accused. There are two criteria that he has to take into account in making the decision on what to disclose to the accused. One is the provisions in Clause 3 as to whether it undermines the prosecution case; in other words, the entirely separate issue which we are not debating today about the criteria for disclosure. The second matter, which runs alongside the first obligation and could either add to or subtract from the material which has to be disclosed, is the question of sensitivity—of whether it is in the public interest for the matter to be disclosed.

Therefore the responsibility of the prosecutor is clear. He has to make judgments under Part I of the Bill, and under Part H of the Bill he has to decide whether material which he believes should be disclosed under Part I should in fact be withheld on the grounds that it is sensitive material. The Catch-22 matter arises because, although we have, I think, come fairly close to reaching agreement about the detail and the comprehensiveness of the material to be revealed to him by the investigator, he cannot know, as the Bill is at present drafted and as the code of practice is at present drafted, whether the material that he wants to disclose should or should not he classified as sensitive. All that is happening is that he is being given a schedule of non-sensitive material—he can see the material himself if he wants to—and he is being given a list of sensitive material which he is not allowed to see. Under those circumstances I suggest that It is not possible for the prosecutor to meet his obligations under Part I unless he has the schedule of sensitive material and unless he is able to make a judgment for himself.

Of course I am grateful for the assurance the Minister has given that the provisions of Amendment No. 66 will be included in the next draft of the code. Of course we are at one about Amendment No. 73. It is not our intention that it should be included in the text of the Bill. We tabled it to help noble Lords who do not wish to carry their draft code of practice around with them. As regards Amendment No. 67, we really are in disagreement and we shall have to return to this matter. I gladly give way to the noble Baroness.

Baroness Blatch

My Lords, I wish to ask a question of the noble Lord. Did I hear him aright when he said that the prosecutor does not see the sensitive material? In fact the prosecutor sees the sensitive and the non-sensitive material but he makes judgments about the sensitivity or non-sensitivity of it.

Lord McIntosh of Haringey

My Lords, in that case much of the debate that we had about the security clearance of the prosecutor is irrelevant for a reason that I had not suspected. What we are saying in Amendment No. 67—to which the Minister is objecting—is that the prosecutor must have access to the material and may amend the document; that is, the schedule of sensitive material. He is not amending the material; he is amending the document having himself reviewed whether it is in the public interest hat it should not be disclosed to the accused. I am taken aback by the Minister's statement. If the prosecutor has access not only to the schedule of sensitive material but also to the material itself—which is what I think I am now being told—Amendment No. 67 is not dangerous but unnecessary. I shall have to reflect on what the Minister has said in both of her interventions. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 67 and 68 not moved.]

Lord McIntosh of Haringey moved Amendment No. 69:

Page 11, line 14, at end insert—

("( ) The code shall provide that a document shall be prepared under subsection (3) in every case except where the accused has indicated an intention to plead guilty or a police officer witnessed the offence and the accused has not denied the offence or indicated an intention to plead not guilty.").

The noble Lord said: My Lords, noble Lords will be relieved to know that we are coming close to the end of the series of amendments about the code of practice. However, Amendment No. 69 is genuinely designed to be helpful. I have a feeling that we have been talking at cross purposes earlier about this matter. What we are saying here relates to the debates we had at the beginning of Thursday afternoon; in other words, about what event triggers the primary disclosure by the prosecutor, because behind the primary disclosure by the prosecutor—which, under the Bill, is triggered by a plea of not guilty—lies the obligation to produce a schedule. If there is to be no disclosure, then there is no need for revelation in the first place in the form that is provided for in the legislation. Of course revelation of material designed to support the prosecution is still as necessary as always.

In Amendment No. 69 we give four examples where a document or schedule does not need to be prepared. Those are: when the accused has indicated an intention to plead guilty; when a police officer has witnessed the offence (which is where "a fair cop, Guy" comes into it); when the accused has not denied the offence; and when he has not indicated an intention to plead not guilty. With this amendment I am trying to save work for the police and the prosecutor. I suggest that there should be wider grounds on which no schedule or disclosure, and none of the elaborate to-ing and fro-ing which is provided for in the Bill, should be required. I hope that it will be thought that the amendment is helpful rather than damaging to the Bill. I beg to move.

Baroness Blatch

My Lords, unlike the tests in the current draft code of practice, the test in the amendment is not linked to any identifiable stage in the court process. An indication by the accused of a guilty plea can be made in several ways. It is not clear whether the investigator is to await a formal indication, for example at a mode of trial hearing, or whether he is to act on the basis of an informal indication which may later be reversed.

The amendment would require schedules to be prepared unnecessarily in relation to summary offences where a police officer correctly believes that the accused is likely to plead guilty at a summary trial but the accused has not given any indication of that in advance. Given the very large number of summary offences tried each year, that would represent a considerable additional burden for the police. Accordingly, we do not intend to incorporate the amendment into the draft code.

Lord McIntosh of Haringey

My Lords, we do not understand each other, or perhaps I do not understand the Minister. I am sure that that is my fault. I believe that the amendment would reduce the burdens on the prosecutor rather than the reverse. It provides for an exemption from production of a schedule in circumstances where there has not yet been a not guilty plea. That seems to me to be helpful rather than damaging. However, just in case I am wrong I had better beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Loral McIntosh of Haringey moved Amendment No. 70:

Page 11, line 14, at end insert— ("( ) The code shall provide that the person required to reveal material must give the prosecutor, at the same time as he gives him the document prepared under subsection (3), a copy of any material which falls into the following categories—

1. (a) information from potential witnesses containing a description of the alleged offender which does not conform to the description of the person charged with an offence;
2. (b) information provided by an accused person which indicates an explanation for the offence with which he has been charged;
3. (c) any material casting doubt on the reliability of a confession;
4. (d) any material casting doubt on the reliability of a witness;
5. (e) details of confessions or investigations which relate to another person where the enquiry has been terminated; and
6. (f) any other material which the investigator believes might undermine the prosecution case or assist the accused.").

The noble Lord said: My Lords, Amendment No. 70 is a revised version of Amendment No. 92 which we put forward at the Committee stage. Again, not having debated it previously, we have the benefit of an explanation from and discussion with the Minister, for which I am grateful.

One of the Minister's objections to our previous amendment was that it included provision in the list of material to be disclosed for details of the criminal convictions of witnesses. I accept entirely that either those criminal convictions would tend to undermine the prosecution case, in which they would have to be revealed in any event, or they are irrelevant, in which case the fact of their being disclosed could discourage a witness from coming forward. Therefore, we have altered our amendment to reflect that argument.

However, we believe that it is necessary to spell out rather more than at present the details of the material which ought to be included. We have spelt those out in paragraphs (a) to (f) of Amendment No. 70. Those are matters which may not be included because they may undermine the prosecution case, but they are matters which the defence may need to know for reasons which are not evident to the prosecution. They ought to be included in the revelation procedures because they may need to be included in the disclosure. It is only the defence, which has not yet been required to make a primary disclosure, which can understand the relevance of some items to the defence case and to the conduct of the trial. That may not be obvious to the prosecution because they may not have been revealed in the right way by the investigator.

Again, we have Act 2 coming before Act 1 in the drama, which makes life extremely confusing for those of us who like to think of Act 1 coming first and like to see the plot unfold in a logical way. I believe that there is a great need for the prosecutor to have at his disposal all the elements which may be relevant to the ultimate production of an effective defence disclosure. That ought to be reflected in the code of practice, and it ought to be protected in some way by the will of Parliament in the way in which Part II of the Bill defines and constrains the code of practice. I beg to move.

5.15 p.m.

Lord Campbell of Alloway

My Lords, I have not intervened on any of the amendments and do not propose to do so on this one. That is for the simple reason that I have received copies of the correspondence between my noble friend the Minister and the noble Lord, Lord McIntosh of Haringey, relating to matters which arose after stumps were drawn in fading light and were therefore not debated on the previous occasion. I happen to agree with the substance of the correspondence and therefore have not intervened.

Baroness Blotch

My Lords, I am grateful to my noble friend for saying that he found the correspondence helpful.

The amendment specifies certain items of material which the investigator must reveal to the prosecutor. It is similar to the existing provisions of the draft code of practice. However, there are some additional requirements, about which I have already written to the noble Lord, and I shall explain to the House what those are.

The first additional requirement is that the investigator should have to provide details of confessions or investigations which relate to another person where the inquiry has been terminated. It is not clear whether the inquiry which has been terminated refers to the elimination of a person from the inquiry into the offence for which the accused stands charged or whether it refers to an inquiry into another offence altogether. In either case we do not see why the material should have to be provided unless it casts doubt on the reliability of a confession made by the accused or otherwise appears to undermine the prosecution case. In those circumstances it is already covered by the draft code. Otherwise, the requirement imposes an unnecessary burden on the investigator and provides the prosecutor with material that he does not need to see.

The second additional requirement is to reveal material to the prosecutor which the investigator believes might assist the accused. We do not think that it is right to require that. Generally, that judgment can only be made when the defence is known, and it will not be known when the investigator prepares the schedule of material. The proper time to make that assessment is after defence disclosure, not before. The amendment would operate before either primary prosecution disclosure or defence disclosure.

I hope that the noble Lord will understand that I cannot therefore accept the two additional requirements which the amendment imposes. As to the other requirements, they are already in the code and, as I have already explained to the House, I cannot accept that the detail of the amendment should feature on the face of the Bill. Nevertheless, I confirm that they are in the code.

Lord McIntosh of Haringey

My Lords, I do not want them on the face of the Bill either. I raised the matter in order to provoke debate and I am grateful to the Minister for responding as she has. Like the Government, I want the most important aspects of the code to be prescribed as far as possible by primary legislation. The extent to which the code does that is recognised and welcomed, even though not all of the suggestions we have made have found favour with the Government. However, enough of them have found favour for us to be satisfied that our labours have not been in vain. I read what the Minister wrote to me about the problem of ambiguity where the inquiry has been terminated. It seems to me clear that we are talking about a different person rather than the same inquiry, but a comma or two might be helpful.

I am insistent—I really believe—that the phrase "or assist the accused" is helpful and should be included at the primary disclosure and revelation stage. It is so easy for things to go wrong because the prosecutor has to guess what the defence disclosure may reveal. It is so easy for people who in most respects are not allowed to talk to each other but who have to follow rules of communication which inevitably are artificial to fail to achieve the degree of communication which, if the process were not adversarial, would be valuable.

The anticipation of assisting the accused is the natural complement to the provision already in the code and the Bill about undermining the prosecution case. However, it is not an issue on which the House should be required to make a judgment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 71 to 73 not moved.]

Clause 18 [Operation and revision of code]:

Baroness Blatch moved Amendment No. 74:

Page 12, line 1, leave out from beginning to second ("he") in line 2 and insert—

("(1) When the Secretary of State has prepared a code under section 16—

1. (a) he shall publish it in the form of a draft,
2. (b) he shall consider any representations made to him about the draft, and
3. (c) he may modify the draft accordingly.

(1A) When the Secretary of State has acted under subsection (1) he shall lay the code before each House of Parliament, and when he has done so").

The noble Baroness said: My Lords, in speaking to government Amendment No. 74 to Clause 18, I shall, with permission, speak also to government Amendment No. 119 to Clause 53. If noble Lords opposite would think it helpful, I can refer to Opposition Amendments Nos. 75 to 77.

The government amendments require the Secretary of State to publish a draft code of practice and to consider representations made to him about it, after which he may modify the draft accordingly. He must then lay the code before Parliament. He may then bring it into operation by order made by statutory instrument, but only when the order has been approved by a resolution of each House of Parliament.

This gives effect to the recommendations of the Delegated Powers Scrutiny Committee. It is the result of reflection on its report and the debate on this issue in Committee. I understand that the scrutiny committee is content with the amendments that we have tabled.

I should point out for completeness that the amendments bring the procedure for implementing this code of practice into line with the existing procedures for implementing the codes of practice made under Section 67 of the Police and Criminal Evidence Act 1984. I beg to move Amendment No. 74.

The amendments tabled by the noble Lord opposite are designed to achieve broadly the same purpose as the government amendments—that is, to make the code subject to statutory consultation and the affirmative resolution procedure. But they are technically not quite right. Amendment No. 77 to Clause 18 provides for the Secretary of State to consult interested parties about the code, but it does not provide for him to modify the code in the light of their comments.

Amendment No. 76 to Clause 18 deletes subsection (2). That currently provides for the code of practice to apply in relation to criminal investigations beginning on or after the day appointed for the code to come into operation. The effect of the amendment is to leave the courts, police and prosecutors with no guidance on the circumstances in which the code is to apply when it is first implemented. For example, it would not be clear whether the code was to apply if the offence was committed after the appointed day; or if the offence was committed before the appointed day and a criminal investigation began after the appointed day; or if the offence was committed and a criminal investigation began before the appointed day, but criminal proceedings were instituted after the appointed day.

We have linked the commencement provision in subsection (2) to cases where the criminal investigation begins on or after the appointed day, because the code is concerned with criminal investigations by the police. If an investigation begins before the appointed day, it will be in accordance with the existing practice of the police. If it begins on or after the appointed day, it will be in accordance with the new code of practice.

In the light of this explanation I hope that the noble Lord will feel that he does not need to press his amendments but will accept the government amendment.

Lord McIntosh of Haringey

My Lords, there is nothing between us on the substance of the amendments. The Minister has made up handsomely for the failure of her office to inform her adequately about the recommendations of the Delegated Powers Scrutiny Committee which caused so much difficulty at Committee stage.

I am very ready to accept that her amendments are better drafted than mine. I am very ready to accept that they achieve the same result. I am very ready to accept that they achieve the result that would have been wished by the Delegated Powers Scrutiny Committee. It said that the additional procedural safeguards needed were provisions in the Bill for consultation about the contents of the code and for subjecting the code when it is laid before Parliament to the affirmative resolution procedure.

I wish that that could have been accepted at the beginning of our debates. As the Delegated Powers Scrutiny Committee said, there are perfectly good precedents in the Police and Criminal Evidence Act 1984 and, most recently, in the Criminal Injuries Compensation Act 1995. Without being threatening, I hope that we shall not go through this issue again.

Lord Campbell of Alloway

My Lords, as I set the ball rolling on Second Reading, I really do wish to express my gratitude to my noble friend the Minister, who has kept an open mind in a difficult situation and has come to the correct conclusion.

Lord Rodgers of Quarry Bank

My Lords, having listened to our debate this afternoon when goodwill has been flowing like milk and honey from the noble Lord, Lord McIntosh, to the Minister and back, I wonder whether the Bill might have been better dealt with from the beginning by correspondence. It was difficult to make progress on the second day of the Committee stage. However, a great deal of progress has been made since that time. I wish to pay tribute to the Minister, as indeed did the noble Lord, Lord McIntosh, earlier, for the helpful correspondence to which I have had access during that period.

Whatever arguments one may have had at any stage of the Bill, in particular at Committee stage, the paperwork in relation to the Bill has been excellent in terms both of correspondence from the Minister and of other work in the department. I am aware that I may have added my name to the amendment after the Minister had conceded the principle in her letter of 17th January. However, I have no regret at having done so. In some ways this is the most important issue that we are discussing today. Had the Minister not come forward helpfully with her amendments, I hope that the noble Lord, Lord McIntosh, would have pressed his amendment to a Division.

Looking back at our rather uncomfortable discussion at what turned out to be a non-event in Committee, the House and the Minister will remember that I was among those who pressed hard for the Minister to say whether the draft code represented the policy of Her Majesty's Government—in other words, that it was the view of the Government at that stage. It seemed important to know, if we were to discuss many of the amendments to the code in the name of the noble Lord, Lord McIntosh, among others, whether or not those amendments were to be pressed to a Division.

At that time the Minister was not able to be as specific as in her letter of 17th January, in which she made clear that the draft did indeed represent the Government's view of what its provisions ought to be. That was a helpful statement. We on these Benches, among others, fully recognise that a document may be made available for consultation or modified in the light of that consultation. However, until it is modified—until the Government have considered representations and changed their minds—it represents the policies of Her Majesty's Government. Thus the amendments taken together now get the balance right.

One of my anxieties in Committee concerned the fact that over the past 20 or 30 years there has been a great deal more consultation with outside bodies. That is absolutely right. It is also right that consultation should have taken place over the code of practice and that there should be further consultation in future. However, it is important that if there is such consultation it does not usurp the proper role of Parliament. When we discussed the point on the last occasion, I felt that whatever consultation there had been and might be, Parliament would not have a proper opportunity—both because of the way in which the Minister felt she had to deal with the amendments and because the order would be subject to negative resolution—to consider the important provisions of the code. However, all that anxiety has been removed and again I express my thanks to the Minister and support her amendments.

On Question, amendment agreed to.

[Amendments Nos. 75 to 77 not moved.]

Clause 19 [Effect of code]:

[Amendment No. 78 not moved.]

[Amendment No. 79 had been withdrawn from the Marshalled List.]

[Amendments Nos. 80 and 81 not moved.]

5.30 p.m.

Lord Rodgers of Quarry Bank moved Amendment No. 82:

Page 12, line 30, at end insert— ("( ) Nothing in this section shall affect registered medical practitioners.").

The noble Lord said: My Lords, in the course of Second Reading I drew attention to an anxiety expressed by the British Medical Association about the status of police surgeons and the extent to which their role might be prejudiced by the Bill. On 14th December the Minister replied to me, explaining the extent to which she was clear that that would not be the case. At the same time she made a number of appropriate points about the Bill. Her letter stated: If police surgeons did count as investigators for the purposes of Part II, then we should need to consider amending the Bill or drafting the code of practice in such a way as to distinguish between their reports for the purposes of criminal proceedings and their other notes which are subject to confidentiality".

That went to the heart of the point about the dual responsibility of a police surgeon to the police and at the same time to his patients in every other respect. Following the Second Reading debate, the Minister wrote to me on 14th December and, had events not moved in the way that they did, I had intended to raise the point during Committee stage. Be that as it may, I did not do so. I am aware that discussions have taken place between the BMA and the Home Office and certain assurances have been given.

It was the traditional practice for the police surgeon to provide a statement for the police with the consent of the individual, giving only the forensic evidence obtained. However, the cause of our anxiety is that recently the police and the Crown Prosecution Service have been requiring a copy of the police surgeon's handwritten notes which include the patient's past medical history, as well as therapeutic information which the patient or the victim of the crime had given for treatment purposes. The disclosure of such information is a breach of the rules of the General Medical Council which allow disclosure to the police only when there is an overriding public interest or if ordered by a court to do so.

The amendment is not so much a probing amendment as one which gives the Minister an opportunity to put on the parliamentary record in the Official Report the views that she has previously expressed to me and any other considerations which she thinks may be germane to an understanding of the issue. It may well be that at a later stage it would be right to press an amendment, perhaps in another place. However, at this stage I simply ask the Minister to comment on the amendment as it stands. I beg to move.

Baroness Blatch

My Lords, I hope that I shall be able to give the noble Lord, Lord Rodgers, the reassurance he seeks about the effect of the Bill on the disclosure of material by registered medical practitioners who act as police surgeons.

Before responding to the amendment, I ought to say that the noble Lord, Lord Walton of Detchant, is not in his place today. He wanted very much to be present but his absence from the Chamber is unavoidable. He took a close interest in the effect of the disclosure regime on registered medical practitioners. We have corresponded about the issue and I believe he would have been reassured by what I shall say in response to the noble Lord, Lord Rodgers.

The current disclosure requirements derive from a series of judicial decisions in recent cases, including the case of Judith Ward. Although there is room for interpretation, it appears that the duty of disclosure owed by the prosecution extends to almost all material generated not only by the prosecutor but by anyone who has assisted with the prosecution, including police surgeons. This is what lies behind the request of the Crown Prosecution Service for all the notes made by police surgeons when examining suspects. I can understand the difficulties which the current law causes for doctors who owe a duty of confidentiality to their patients and who have previously provided forensic statements only.

In our view, the Criminal Procedure and Investigations Bill resolves the difficulty. This is because it abolishes the common law rules relating to prosecution disclosure (except those relating to whether disclosure is in the public interest), and imposes disclosure duties on a narrower range of persons and organisations than those currently included in the concept of the prosecution team. The disclosure requirements in Part I do not affect doctors, including police surgeons, because they are not prosecutors. Part II may affect them, but only if a police surgeon is a person charged with a duty of conducting an investigation as defined in Clause 19, which requires such persons to have regard to the relevant provisions of the code of practice prepared for the police under Part II.

If police surgeons did count as investigators for the purposes of Part II, then we should need to consider amending the Bill or drafting the code of practice in such a way as to distinguish between their reports for the purposes of criminal proceedings and their other notes which are subject to confidentiality. I agree that the difficulty they now face needs to be resolved in some way.

However, in our view, a police surgeon is not an investigator for the purposes of Clause 19. Police surgeons have no statutory position within police forces, and they are under no statutory duty, under the Police and Criminal Evidence Act 1984 or elsewhere, to conduct investigations of the kind described in the Bill. On this basis, a police surgeon would be in the same position as any other third party who may have information which may be relevant to a criminal investigation, and would be under no duty arising from this Bill to retain material and reveal it to the investigator or prosecutor. The reports they prepare for the purposes of criminal proceedings would be given to the police and would be subject to the requirements of this Bill relating to disclosure. The other material they generate, which is concerned with the doctor-patient relationship, would be protected.

In the light of that explanation, I hope that the noble Lord will withdraw his amendment.

Lord Rodgers of Quarry Bank

My Lords, I am grateful for what the Minister said. I wish to reflect upon it. In her letter to me she referred to a sensible non-statutory arrangement and I understand that that is what she still has in mind. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Introduction]:

Baroness Blatch moved Amendment No. 83:

Page 13, line 6, leave out from ("relation") to end of line 13 and insert ("to an offence if—

1. (a) proceedings for the trial on the charge concerned are transferred to the Crown Court on or after the appointed day, or
2. (b) a bill of indictment relating to the offence is preferred on or after the appointed day under the authority of section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill preferred by direction of Court of Appeal, or by direction or with consent of a judge).

(1A) References in subsection (1) to the appointed day are to such day as is appointed for the purposes of this section by the Secretary of State by order.

(1B) If an order under this section so provides, this Part applies only in relation to the Crown Court sitting at a place or places specified in the order.").

The noble Baroness said: My Lords, I spoke to this amendment with Amendment No. 2.

On Question, amendment agreed to.

Clause 24 [The preparatory hearing]:

Lord Bridge of Harwich moved Amendment No. 84:

Page 14, line 8, at end insert ("which shall include the question whether proceedings on the indictment should be stayed on the ground that they are an abuse of process").

The noble and learned Lord said: My Lords, Part III of the Bill introduces a preparatory hearing procedure which is modelled on a similar procedure already on the statute book under the Criminal Justice Act 1987, but under that statute it is only applicable to serious fraud cases.

Now Part III would give to a trial judge before any criminal trial a discretion to order a preparatory hearing and consequently to make available to himself the special powers which are operative under a preparatory hearing in any case where, by reason of the length or complexity of the anticipated trial, he saw advantages in so doing, for certain defined purposes.

Once the trial judge has ordered a preparatory hearing, he then has power in the course of that hearing to make rulings in relation to any question as to the admissibility of evidence or any other question of law relating to the case. Once he has made such a ruling, the ruling becomes subject to an interlocutory appeal: in the first instance to the Court of Appeal under Clause 28 and, if necessary, on to this House in its judicial capacity under Clause 29. Both clauses make specific provision that the appeal is to be finally determined before a trial begins.

It appears to me that the philosophy underlying that scheme of preliminary rulings, made in a case where a long and difficult trial is anticipated, and the provision that they be subject to interlocutory appeal before the trial begins, serves the end of ensuring that there should be no miscarriage of justice and no abortive trial by reason of a judicial error which could have been corrected in the first place.

The sole purpose of my amendment to Clause 24(3) is to enlarge the ambit of the judge's power to make rulings in the course of the preparatory hearing; and consequentially to render subject to the provisions for interlocutory appeal to the Court of Appeal, and possibly on to the house of Lords, any decision by a judge as to whether or not proceedings on an indictment should be stayed on the ground that they are an abuse of the process of the court.

I accept that in general terms interlocutory appeals are undesirable in criminal cases. They may occasion delay. Worse still—even if, as here, leave to appeal lies only with the judge or the Court of Appeal, they may provide an opportunity for abuse of the procedure by a defendant who wants to occasion unnecessary delay if he can. That I perfectly well understand and agree with.

It appears that any delay arising from an interlocutory appeal, where a long and difficult trial is anticipated, is a price worth paying in order to ensure that disputed questions of law which will arise in any event, and questions as to the admissibility of evidence, are rightly decided before the trial begins. So, equally, it is a price worth paying in order to ensure that any decision as to whether the proceedings should be stayed as an abuse of process will be rightly decided at the beginning and before the trial starts.

In order to make good that proposition, I invite the House, and in particular the Minister, to consider a hypothetical example. A defendant is indicted for a murder that he is alleged to have committed 20 years ago. The trial judge, foreseeing a very long and difficult trial, orders a preparatory hearing under Part III of this Bill when it is on the statute book. At the preparatory hearing the defendant raises two contentions. One is that the central piece of evidence, vital to the prosecution's case against him, is inadmissible. The other is that, because the trial has been so long delayed, he can no longer receive a fair trial and, accordingly, invites the judge to stay the proceedings on the ground that they are an abuse of process.

If the judge wrongly decides either of those questions in the defendant's favour, when they ought to be decided against him, it means that a man who ought to be tried will escape trial altogether. There is nothing that the prosecution can do about it. That is to say, that would be the case were neither issue subject to interlocutory appeal. If neither issue were subject to interlocutory appeal, and the judge decided both issues in favour of the Crown and against the defendant, if the judge was wrong the ruling would result in an abortive trial. If the trial led to conviction, it would eventually lead to the conviction being quashed by the Court of Appeal.

Unless my amendment is carried, the worst situation of all would be this. The judge has decided both issues against the defendant at the preparatory hearing and there is an interlocutory appeal on the question of admissibility of evidence. The defendant takes his case to the Court of Appeal, but fails there; the court says that the crucial evidence is admissible. Because he cannot, unless my amendment is carried, appeal the judge's ruling that the case should not be stayed on the ground of abuse, that is not appealable. Then there is a long trial, at the end of which he is duly convicted. There is a second appeal to the Court of Appeal—which says, no, the judge was wrong, he ought to have stayed the proceedings as an abuse of process.

I outlined this hypothetical example (in rather less detail) in correspondence to the Minister following Committee stage. I hope, in replying, she will address the example and tell us, in the light of it, how it makes sense for the Government to say that there can be an interlocutory appeal in one case but there should not be one in the other. I understand that to be the Government's case. I beg to move.

5.45 p.m.

Lord Campbell of Alloway

My Lords, there is no way in which this amendment could distress the tattered fabric of relationships between my right honourable friend and the judiciary, which is in urgent need of repair. The amendment is devoid of any political significance. In the battle of the slogans, it is neither tough nor soft on crime, and may not be so described. It is in no way concerned with judicial discretion on sentencing. The irenic purpose is to persuade, not to confront. As yet, all attempts to persuade have failed. The opinion of this House will be sought on the merits of the argument. If in favour of this amendment, it can but serve as a powerful source of persuasion.

Since another place has not, as yet, considered this Bill, the opinion of your Lordships would be advisory and without hint of confrontation. If the merits of the. argument commend themselves to the House, why not?—they may well commend themselves to another place. If not, on a matter such as this the House would never dream of seeking to insist that there is no element of confrontation. Such is the reality of the situation in which your Lordships' support for this amendment is sought, notwithstanding the customary measures of exhortation which government Bills inevitably attract.

As to the merits, the noble and learned Lord, with his wealth of practical expertise—advocate, red judge, member of the Court of Appeal and Member of your Lordships' Appellate Committee—commends the amendment as a sensible, requisite and procedural contribution to the due administration of justice, affecting not only public perception but the interests of the prosecution, the defence and the victims of crime. Your Lordships may well feel that the speech of the noble and learned Lord bears the hallmark of authority. The logic of his analysis to which a response is sought is not based upon any abstract esoteric process of reasoning but upon sound straightforward common sense.

As to the justification, is it not, in the simplest of terms, that it invokes an appellate procedure to rectify a wholly unsatisfactory situation, a situation in which, if an application to stay is rejected in error, a trial takes place which should never have taken place, and, if granted in error, a trial which ought to have taken place can never take place, as in such circumstances as the noble and learned Lord explained? The error may be corrected before substantive trial as regards any question of admissibility of evidence or any question of law. Why exclude the application to stay on grounds of abuse?

The effect of the amendment is none other than to introduce a procedure akin to that which obtains in Scotland. If my noble and learned friend the Lord Advocate were present, no doubt he would confirm that the procedure in Scotland is entirely satisfactory and occasions no unacceptable delay or tactical abuse. Indeed, as appears on the official record, the principle of the amendment has already claimed the sympathetic approval of my noble and learned friend the Lord Chancellor, albeit in another context. I am not aware that the amendment is opposed by any noble and learned Lord, any other member of the judiciary or any member of the legal profession.

This Bill is of general application, save as regards the serious and complex fraud cases to which the noble and learned Lord referred and which reflect similar provisions. As it is of general application, it would apply to proceedings under the War Crimes Act to avoid wrongful conviction on an abortive trial which ought not to have taken place, a matter—I stress this point—on which both Houses have made common cause. I am delighted to see the noble Lord, Lord Mishcon, in his place as it is a matter on which he addressed your Lordships, namely, the subject of a fair trial. Indeed, my noble friend Lord Ferrers gave an assurance on such matter to your Lordships' House.

Perhaps I may remind your Lordships that to that end your Lordships accepted the substance of this amendment under Clauses 2 and 3 of the War Crimes (Supplementary Provisions) Bill. To that extent, this amendment of general application would subsume those provisions already accepted by your Lordships. The Bill inevitably is at rest in the graveyard of another place. It is opposed by the Government.

Since Committee stage, the sands of objection have shifted to reveal an entirely new ground. But at this stage, it would be wrong to anticipate. To conclude, under the Royal prerogative, as exercised by Her Majesty's judges, the power to stay proceedings for abuse of process was assimilated by the common law as part of the inherent jurisdiction. Long before there was a Court of Appeal or an Appellate Committee of your Lordships' House, although your Lordships' House sat as a forum of appeal, that court of appeal was set up by statute. However, the statute fettered the appellate jurisdiction so as to prevent any review before conviction. This Bill proposes to remove that fetter in other respects, to which the noble and learned Lord referred, in order to avoid abortive trials.

The true and disinterested administration of justice is no exact science. Sound practical procedures such as are proposed by this amendment, your Lordships may think, are wholly requisite.

Lord Williams of Mostyn

My Lords, I support the amendment. I am happy to adopt the arguments put forward by the noble and learned Lord, Lord Bridge of Harwich, and by the noble and learned Lord, Lord Campbell of Alloway. None of the three of us could sensibly be accused of being the "villains' friend", in that particularly insulting and ill-judged phrase.

Perhaps I may offer a cruel example from the real world. A female child of three is raped. The trial judge wrongly sentences the accused to three years' imprisonment. The Attorney-General rightly takes that absurdly over-lenient sentence to the Court of Appeal, Criminal Division, which can hear the appeal and put matters right. The same judge may well rule that, because of publicity or the passage of time, the case should go no further. The child remains attacked, assaulted and wounded for life; her parents are appalled; the wider community is rightly incensed; and that cannot be put right. Where is the intellectual sensible justification for that? There is none.

I shall not touch on particular cases. I have discussed them privately with the noble Lord, Lord Campbell of Alloway. It is not suitable to mention them publicly. But, to my knowledge, there are Crown Court centres where there are serious questions about whether judges should properly have stopped cases on the grounds of abuse of process, either by virtue of delay, because of the difficulties in sexual complaints or because of adverse publicity.

The judges at first instance may be right or they may be wrong. There are no further alternatives. But their decisions in these important matters ought to be subject to review in the Court of Appeal, Criminal Division. Therefore, the importance of the amendment is not in its standing alone but in its irretrievable and necessary connection, as the noble and learned Lord, Lord Bridge of Harwich, pointed out, to Clause 28 of the Bill at present—in other words, the interlocutory appeal is allowed. It is otiose for the Government to say that interlocutory appeals are bad as a matter of principle in criminal cases. They certainly have disadvantages, but Clause 28 provides for exactly that. Indeed, if one traces through Clause 28, the opportunity of an appeal lies not only to the Court of Appeal, Criminal Division, but also to the Judicial Committee of your Lordships' House. That has many virtues, but speed of decision—because of the delays of which we are all aware—is not one of them.

If rulings are made to stay cases on the grounds of abuse of process, which frequently attaches itself to adverse publicity or to the difficulties in sexual cases to which I referred earlier, the public may feel and conclude that the law is not only an ass, but also a cruel, unfeeling and unthinking ass.

I do not apply my remarks to anything to do with war crimes; that is a debate long since over and in which I have no specific pressing interest. However, I have a pressing interest in this. If trials should properly be seen through, an application to stay the proceedings should be made as soon as is sensibly possible. I suggest that that is the preparatory hearing time when the evidence is to hand and when both parties have armed themselves for the coming ordeal. But it is vital that that decision by a judge at first instance, which can be devastating for legitimate complainants who want their injury examined and to an extent redressed, should be subject to appeal. It is not at the moment.

To return to my first example—I am sorry it is brutal but circumstances of that kind are cruel—why is it that there may be an appeal against an over-lenient sentence, but no appeal against a wrong decision, made too late, that a trial ought not to continue?

6 p.m.

Baroness Blatch

My Lords, following debate on this matter at Committee stage, I met my noble friend Lord Campbell and the noble and learned Lord, Lord Bridge, to discuss the issues raised. I am grateful to both of them because it was a very constructive meeting which helped to identify the arguments on both sides.

Before considering the practical effect of this amendment, it is important to be clear about the purpose of preparatory hearings. Any elaboration of procedures carries with it the risk of delay and of extra cost. We therefore considered long and hard whether to introduce preparatory hearings as an additional step in procedure but we concluded that, in exceptionally long or complex cases, the potential for streamlining the trial outweighed the possible risks. Accordingly, preparatory hearings have very specific purposes which relate to the good management of the trial. Those purposes are set out in Clause 22 of the Bill, while Clause 24 specifies the matters which may be dealt with by a judge prior to the swearing in of the jury. It was never envisaged that all matters which could arise in a case should be dealt with at the preparatory hearing. And the intention, endorsed at Second Reading by the noble and learned Lord the Lord Chief Justice is that such hearings will not be widely used.

On that limited basis, provision has been made for interlocutory appeals on points of law and admissibility of evidence only. Those are matters on which final and authoritative rulings can be given. Abuse of process is different. It may already be dealt with by the judge at any time prior to the trial without a preparatory hearing. Accordingly, the only practical effect of the amendment would be to create an interlocutory right of appeal. But a decision whether to stay proceedings on grounds of abuse of process at one particular stage of the proceedings cannot necessarily be regarded as final. It may have to be reviewed or a further application may be made at a later stage of the proceedings in the light of changed circumstances. The arguments for having an interlocutory appeal on points of law and admissibility of evidence on which final and authoritative rulings can be given do not apply to abuse of process applications. On that basis alone, we do not believe that it is right to adapt the purposes of preparatory hearings simply to enable them to deal with abuse of process and so attract interlocutory appeals.

But there are wider practical objections. The Court of Appeal has held, in cases of which my noble friend Lord Campbell of Alloway and the noble and learned Lord, Lord Bridge, are aware, that there are a range of matters which are outside the scope of preparatory hearings. Those matters include applications to sever counts on an indictment; applications to quash counts on an indictment, and applications to discharge witness summonses. We can see no rational basis for bringing abuse of process within the scope of preparatory hearings, yet not to include those and other matters. It would make them more complicated and divert them from their primary purpose of securing better management of the trial. It would mean that they might take longer because there would he a wider range of matters which might have to be resolved. It would increase costs and delays because the additional matters to be resolved could generate additional interlocutory appeals.

I had hoped to be able to give your Lordships some figures about the number of additional interlocutory appeals which might result if all those matters were to be brought within the scope of preparatory hearings. I regret, however, that such information is not collected centrally. On the other hand, perhaps it will not be a matter of regret to the House if I refrain from plying it with statistics. However that may be, it does seem likely that the number of additional interlocutory appeals which would result if this amendment is passed would be significant. That is a matter which the Law Officers have pondered carefully on a number of occasions. It remains their view, having consulted the Director of Public Prosecutions who shares their view, that any benefits which might flow would be far outweighed by the additional delays which would be inevitable.

When ruling in one of the cases about matters which are outside the scope of preparatory hearings, the Court of Appeal itself commented on the plethora of applications being received for leave to appeal against judges' rulings at preparatory hearings and the delay that was causing to other cases. It is also the case that the grounds on which an abuse of process application can be made are now much wider, and the law is still developing. Applications have been made on the grounds of pre-trial publicity, absent witnesses and alleged notification that no proceedings would be brought, to name but a few. And dealing with an appeal against an abuse of process decision can add months to the length of the trial. If appeals on those and other matters were made in any number, the burden on the Court of Appeal could he substantial and, in turn, that would add to delay. In those circumstances, extending the scope of preparatory hearings to a much wider range of matters would cast doubt on whether the present provisions for interlocutory appeals could be sustained or should instead be restricted or removed.

This is a complex matter and it raises some complex issues. I have sought to explain as clearly as possible why we do not think it is right to bring decisions on abuse of process within the scope of preparatory hearings. They were not intended to deal with such matters and it would divert them from their primary purpose of the good management of the trial. I recognise that the noble and learned Lord, Lord Bridge, and my noble friend Lord Campbell have reached a different view.

Just before I sit down, perhaps I can refer to the specific case raised by the noble Lord, Lord Williams of Mostyn. As I understand the provisions of this Bill, the specific case raised by the noble Lord, Lord Williams, would simply not qualify for a preparatory hearing, unless the noble Lord is suggesting that interlocutory appeal should be considered in the generality of cases and not simply for preparatory hearings. That would make his example more pertinent. But for the reasons I have given, the Government are unable to accept the amendment.

Lord Williams of Mostyn

My Lords, before the Minister sits down and the noble and learned Lord replies, perhaps I can ask a question. How is it sustainable as the Government's position that the orders made on preparatory hearings must be final, when one sees in Clause 24(11) the specific contrary? The clause states that: An order or ruling made under this section shall have effect throughout the trial, unless it appears to the judge on application made to him that the interests of justice require him to vary or discharge it".

Secondly, if the attorney and director both say that there may be a significant number of appeals against rulings in applications in respect of abuse of process, does not that abundantly underline and confirm the importance of the amendment?

Baroness Blatch

My Lords, with the leave of the House, the examples I gave about finality refer to admissibility of evidence and points of law. What we are saying about an appeal for stay of proceedings on the basis of abuse of proceedings is that it is an application that can be made at any time during the process of the trial. Even if the application is not granted, it is open to the accused or to the accused's lawyer to continue, especially if circumstances change throughout the trial, to reapply for an application. If there is any merit in these arguments it is that the prosecution could be disadvantaged, not the defendant.

Lord Williams of Mostyn

My Lords, I do not want to take up the time of the House or to trespass on the patience of your Lordships, but there is no finality about a ruling on admissibility of evidence or a ruling on any other question of law because Clause 24(11) specifically allows for it to be reviewed. That is not final; that is reviewable.

Baroness Blatch

My Lords, I am resting the Government's case on the balance with regard to allowing for interlocutory appeals at preparatory hearings on the particular issue of a stay of proceedings on the basis of abuse of proceedings. We have taken the view that the delay and the possibility of abuse of proceedings far outweigh giving in to this amendment. On that basis, I rest my case.

Lord Campbell of Alloway

My Lords, before the noble and learned Lord, Lord Bridge, replies, perhaps I may ask my noble friend one question. In her speech she referred to extending the preparatory hearing to all sorts of circumstances, such as severing the indictment and so on and so forth. Does she not appreciate that this is a limited extension in like circumstances to admissibility of evidence or a question of law? It is not extending; it is strictly limited. A distinction has not yet been drawn logically between the question of admissibility, a question of law and the substance of this amendment.

Baroness Blatch

My Lords, I understand what my noble friend is saying. He is right as it relates to the particular amendments that are being pressed by my noble friend and by the noble and learned Lord, Lord Bridge. I know that it is not their intention to extend it beyond that. The point I was making is that it would seriously weaken the case for allowing other grounds for interlocutory appeals if the amendment were accepted.

6.15 p.m.

Lord Bridge of Harwich

My Lords, the noble Lords, Lord Williams of Mostyn and Lord Campbell of Alloway, have already replied to two of the points made by the Minister in support of the Government's opposition to the amendment. That saves me from making similar replies. What is left of the points is that the amendment is objectionable because a decision whether or not to stay proceedings on the ground of abuse of process is not necessarily final and is not necessarily made before the trial.

I should have thought that in the vast majority of cases an application to have proceedings on indictment stayed on the ground that they are an abuse of process would be made before the trial. Of course it is only such decisions which my amendment would bring within the ambit of the preparatory hearing and only such decisions as would become subject to interlocutory appeals under Clauses 28 and 29. The only ground I apprehend on which a further application could be made in the course of a trial would be on some matter which had come to light only after the trial had begun and was not there at the time when the preparatory hearing decision was made. That does not seem to be a ground of any cogency in opposition to the main thrust of the arguments which have been advanced in support of the amendment.

Turning next to the case law to which the Minister referred, of course that is a set of decisions. I have looked at them all—all of the cases to which the Minister's advisers have drawn my attention. They are a set of decisions on the existing provisions in the Criminal Justice Act. It is true that the relevant provision corresponding to Clause 24(3) of the Bill is in the same terms. But they are decisions on the construction of that provision unamended. I am not in the least surprised that the courts have construed that provision narrowly. Indeed, the first position was that a decision on an application to stay proceedings on the ground of abuse of process was not a ruling as to any other question of law relating to the case under the corresponding provisions of subsection (3)(b) of the Bill. That is no doubt quite right. The language is not apt. But those cases do not throw any light on the merits of this amendment.

I cannot help wondering whether the Minister's advisers—who can blame her for depending on her advisers; it is only right that she should do so—are not attaching far too much importance to what they have read in decided cases. It is a habit some lawyers have that anything one can provide a specific authority for must be right if it saves one the trouble of trying to think out the general principle applicable.

Baroness Blatch

My Lords, I am most grateful to the noble and learned Lord. With the leave of the House, perhaps I may put a question to him. If, for the sake of my hypothesis, I cited the case that was put by the noble Lord, Lord Williams, and that fell outside preparatory hearings' territory, what is the case for saying that an application made in a preparatory hearing should carry with it the right of appeal—an interlocutory appeal—when the same application may have been made and a stay granted but there is no right of appeal? There seems to me to be a logic in the generality of cases but not a logic for it applying only in preparatory hearings. I think I know, underlying what the noble and learned Lord is saying, that he would prefer it to be applied in the generality of cases. But then one really does open it up to being available generally. I cannot see the distinction between allowing for an interlocutory appeal for preparatory hearings only and not for the generality of cases. In the generality of cases we would have a stronger case for saying that the scope for abuse was even greater.

Lord Bridge of Harwich

My Lords, the ground for distinction is precisely the same as the ground for distinguishing between preparatory hearings which lead to interlocutory appeals with reference to questions of admissibility of evidence and questions of law relating to the case. It is because the case is exceptionally long and complex that the preparatory hearing procedure provides for interlocutory appeals.

As I said in commending the amendment initially, the object is to ensure that there are no miscarriages of justice and no abortive trials brought about through judicial error which could have been corrected. In the ordinary run of cases the objection to interlocutory appeals in criminal trials on the ground of the delay that they are capable of causing outweighs any advantage to be derived from having preliminary issues finally and authoritatively settled before the trial begins. But that consideration is in turn outweighed in the exceptionally long and complex case which in the judge's discretion has earned an order that it should be the subject of preparatory hearing. The whole scheme of rulings subject to interlocutory appeals in relation to questions of law and questions of admissibility can only be designed to ensure that those questions are rightly decided at the outset.

I found nothing in the case law, adopting a narrow construction of the corresponding provisions in the 1987 Act, which in any way bears on the merits of the present proposed amendment. There is an exception as regards one observation in one case, which I believe must have influenced the Minister's advisers. She said several times in her reply that the primary purpose of the preparatory hearing procedure was to ensure the satisfactory management of the case. There is a decision of the Court of Appeal—I do not quarrel with what was decided—where some of the observations of one of the Lord Justices, in the course of delivering judgment, suggest that the whole of the preparatory hearing procedure is in some way subject to the purposes set out in Clause 22(2), which the Minister referred to generally as referring to the management of the case, and quite rightly.

A number of the powers exercisable by the judge in a preparatory hearing are designed to enhance the management of the case, to define and narrow issues and expedite the trial. The whole scheme as regards rulings as to admissibility, questions of law and making those rulings subject to interlocutory appeal, which will be finally decided before the trial begins, have nothing to do with the management of the trial. They are designed, and can only be designed, to ensure that those issues are rightly decided before the trial begins.

In my submission, precisely the same considerations apply to the desirability that when an application to stay on the ground of abuse is made at the outset it should be rightly decided, if necessary, on appeal before the trial begins. I am not wholly surprised to note that the Minister did not feel able to respond to my specific invitation to address my hypothetical example and the difficulties which will arise if there is a right of interlocutory appeal in one case, but not in the other. In those circumstances it is right to seek the opinion of the House.

6.25 p.m.

On Question, Whether the said amendment (No. 84) shall be agreed to?

Their Lordships divided: Contents, 84; Not-Contents, 86.

Division No.3
CONTENTS
Ackner, L.	Jenkins of Hillhead, L.
Acton, L.	Jenkins of Putney, L.
Addington, L.	Judd, L.
Airedale, L.	Kennet, L.
Archer of Sandwell, L.	Kilbracken, L.
Attlee, E.	Kirkhill, L.
Barnett, L.	Lawrence, L.
Berkeley, L.	Listowel, E.
Birk, B.	Lockwood, B.
Borrie, L.	McCarthy, L.
Bridge of Harwich, L. [Teller.]	McIntosh of Haringey, L.
Broadbridge, L.	McNair, L.
Callaghan of Cardiff, L.	Mallalieu, B.
Campbell of Alloway, L. [Teller.]	Mason of Barnsley, L.
Carter, L.	Merlyn-Rees, L
Castle of Blackburn, B.	Mishcon, L.
Charteris of Amisfield, L.	Molloy, L.
Cledwyn of Penrhos, L.	Murray of Epping Forest, L.
Cocks of Hartcliffe, L.	Napier and Ettrick, L.
Craig of Radley, L.	Nicol, B.
Craigavon, V.	Palmer, L.
Dahrendorf, L.	Perry of Walton, L.
David, B.	Rea, L.
Dean of Thornton-le-Fylde, B.	Richard, L.
Desai, L.	Rodgers of Quarry Bank, L.
Dormand of Easington, L.	Sefton of Garston, L.
Dubs, L.	Shepherd, L.
Falkender, B.	Stoddart of Swindon, L
Farrington of Ribbleton, B.	Strabolgi, L.
Fisher of Rednal, B.	Taylor of Gryfe, L.
Freyberg, L.	Templeman, L.
Geraint, L.	Tordoff, L.
Gladwin of Clee, L.	Turner of Camden, B.
Graham of Edmonton, L.	Wallace of Saltaire, L.
Halsbury, E.	Waverley, V.
Hamwee, B.	Weatherill, L
Haskel, L.	Wedderbum of Charlton, L.
Hayman, B.	Whaddon, L.
Hilton of Eggardon, B.	White, B.
Hollis of Heigham, B.	Wilberforce, L.
Hylton-Foster, B.	Williams of Elvel, L.
Jeger, B.	Williams of Mostyn, L.

NOT-CONTENTS
Addison, V.	Courtown, E.
Aldington, L.	Craigmyle, L.
Alexander of Tunis, E.	Cranbome, V. [Lord Privy Seat]
Ampthill, L.	Cumberlege, B.
Archer of Weston-Super-Mare, L.	Dean of Harptree, L.
Astor of Hever, L.	Elles, B.
Blaker, L.	Ferrers, E.
Blatch, B.	Fraser of Carmyllie, L.
Blyth, L.	Geddes, L.
Boardman, L.	Gilmour of Craigmillar, L.
Boyd-Carpenter, L.	Goschen, V.
Braine of Wheatley, L.	Hanson, L.
Bridgman, V.	Hartnsworth, L.
Brigstocke, B.	Henley, L.
Brougham and Vaux, L.	Hertford, M.
Burnham, L.	Hogg, B.
Cadman, L.	Holdemess, L.
Caithness, E.	HolmPatrick, L.
Campbell of Croy, L.	Howe, E.
Carnock, L.	Inglewood, L.
Chesham, L. [Teller.]	Jenkin of Roding, L.
Clanwilliam, E.	Kenilworth, L.
Clark of Kempston, L.	Kimball, L.

Lane of Horsell, L.	Mountevans, L.
Lindsey and Abingdon, E.	Murton of Lindisfarne, L.
Long, V.	Northesk, E.
Lucas, L. [Teller.]	Norton, L.
Lucas of Chilworth, L.	O' Cathain, B.
Lyell, L.	Orkney, E.
McColl of Dulwich, L.	Oxfurid, V.
Mackay of Ardbrecknish, L.	Pender, L.
Mackay of Clashfem, L [Lord Chancellor.]	Rankeillour, L.
	Reay, L.
Mackay of Dnimadoon, L.	Rennell, L.
Macleod of Borve, B.	Selsdon, L.
Marlesford, L.	Shaw of Northstead, L.
Massereene and Ferrard, V.	Shrewsbury, E.
Melville, V.	Sudeley, L.
Merrivale, L.	Swinton, E.
Mersey, V.	Thomas of Gwydir, L.
Miller of Hendon, B.	Trumpington, B.
Milverton, L.	Tugendhat, L.
Monteagle of Brandon, L.	Vivian, L.
	Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.31 p.m.

Clause 30 [Restrictions on reporting]:

Baroness Blatch moved Amendment No. 85: Page 17, line 41, leave out ("or").

The noble Baroness said: My Lords, as drafted, Clause 30 permits the reporting of a preparatory hearing once the trial for all the defendants in the case has been concluded. The three amendments in this group will extend this provision so that an application for leave to appeal, or an appeal, in relation to a preparatory hearing may also be reported once the trial for all the defendants has been concluded. The first amendment is a consequential drafting amendment, arising from the two substantive amendments. I beg to move.

On Question, amendment agreed to.

Baroness Blatch moved Amendments Nos. 86 and 87: Page 17, line 41, at end insert — ("(aa) the publication of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,"). Page 17, line 43, at end insert ("or (c) the inclusion in a relevant programme of a report of an appeal in relation to a preparatory hearing or of an application for leave to appeal in relation to such a hearing,").

On Question, amendments agreed to.

Clause 32 [Meaning of pre-trial hearing]:

Baroness Blatch moved Amendments Nos. 88 and 89: Page 19, line 5, leave out from first ("a") to ("takes") in line 6 and insert ("hearing is a pre-trial hearing if it relates to atrial on indictment and it"). Page 19, line 9, at end insert— ("(1A) For the purposes of this Part a hearing is also a pre-trial hearing if—

1. (a) it relates to a trial on indictment to be held in pursuance of a bill of indictment preferred under the authority of section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill preferred by direction of Court of Appeal, or by direction or with consent of a judge), and

1. (b) it takes place after the bill of indictment has been preferred and before the start of the trial.").

The noble Baroness said: My Lords, these amendments were considered with Amendment No. 2. I beg to move them en bloc.

On Question, amendments agreed to.

Lord Ackner moved Amendment No. 90: Before Clause 37, insert the following new clause—

INDEMNIFICATION OF JUSTICES AND JUSTICES' CLERKS

(".—(1) Section 53 of the Justices of the Peace Act 1979 (Indemnification of justices and justices clerks) is amended as follows.

(2) In subsection (1)—

1. (a) after "may" insert "and shall, in the exercise of any criminal jurisdiction,": and
2. (b) at the end, insert "or, in the exercise of any criminal jurisdiction, unless it is proved, in respect of the matters giving rise to the proceedings or claims, he aced in bad faith".").

The noble and learned Lord said: My Lords, I do not think that we fully acknowledge the service given to the administration of justice by justices' clerks and by justices of the peace. Justices of the peace dispose of over 90 per cent. of all criminal prosecutions. They do so in their own spare time. They do so without payment and wholly voluntarily. How then do we seek to show our gratitude? Certainly not by making them, as we have, liable personally to pay the costs of successful appeals. I know of no such liability being imposed upon professional judges. I believe that I have enjoyed immunity from my days of assistant recorder onwards.

The basis for the liability is to be found in Section 53 of the Justices of the Peace Act 1979. Omitting unnecessary language for the purpose of this particular matter, that section provides as follows: Subject to the provisions of this section … a justice of the peace or justices' clerk may be indemnified out of local funds in respect of … (b) … costs ordered to be paid by him in any such proceedings … and shall be entitled to be so indemnified if, in respect of the matters giving rise to the proceedings or claim, he acted reasonably and in good faith".

Therefore, two hurdles have to be jumped: acting reasonably and in good faith.

My amendment seeks to alter the statute by providing that justices and their clerks shall, in the exercise of any criminal jurisdiction, be entitled to be indemnified unless it is proved in respect of the matters giving rise to the proceedings or claims that they acted in bad faith. That does not take away the total risk of the liability for costs; it keeps it there if the justices acted in bad faith or if it is so proved.

The information that I have received from the Justices' Clerks' Society includes the following observations: first, that the reimbursement to which the section refers is not automatic. An application has to be made to the magistrates' courts committee for indemnification in accordance with the Section 53 provisions. The indemnification is only in respect of costs reasonably incurred and is obligatory only if the justices of the peace or the justices' clerk acted reasonably and in good faith.

What is "reasonable" may be a matter of dispute, more easily determined with the benefit of hindsight. I assume that the test is objective, but it might be contended that in all fairness it should be subjective. If the justice believed that he was acting reasonably, why should there be an objective test? Even though indemnification is obligatory, the magistrates' courts committee may have no funds remaining available—they are heavily strapped for cash—so that is a situation that can occur. In such a case, an application for further funds would either have to be made to the Lord Chancellor's Department or to the local authority for supplementary payments. Those parties may be unable, or even unwilling, to help. The local authority could be the body entitled to the cost, the subject matter of the award, and be in the invidious position of having to agree to reimburse or to refuse to reimburse costs due to itself. I am informed that at least one instance has been traced, some years ago, of a magistrate being left to bear the costs personally. I am told that there have been other such instances. Magistrates have expressed fears concerning bankruptcy and at least one has resigned because of her concern. I have thus been instructed by the Justices' Clerks' Society.

I shall not weary your Lordships with statistics of any size, but I can inform the House that during the period 1st January 1994 to 1st November 1995, of the response, 10 court areas—that is 8 per cent.—not including inner London which has a separate organisation, for which the clerks were responsible, had had orders for costs made against them. There are indications that at least 18 courts—that is, 15 per cent.—again excluding Inner London, have applications pending where costs against them may be sought.

Some of your Lordships may have been in the Chamber on 15th January when the noble Viscount, Lord Tenby, stimulated I believe by an order for costs in the sum of £2,000 made against his own Bench but not against himself, tabled a Starred Question. The noble Viscount had prepared a speech for today but rang me up shortly before lunch saying that he had been prevented from coming. The Question that he raised was as follows: Viscount Tenby asked Her Majesty's Government: Whether they are yet in a position to offer indemnity to lay magistrates in the event of a successful appeal for costs by a defendant".

The reply given by my noble and learned friend the Lord Chancellor read: My Lords, Section 53 of the Justices of the Peace Act 1979 already provides for a magistrate to be indemnified against costs orders. A magistrate is entitled to indemnity provided he or she acted reasonably and in good faith".

That reply astonished both the noble Viscount and myself because it had no note of urgency about it; no suggestion of criticism of the present situation.

The reason for our astonishment was in each case the same: we had been provided with a copy of a letter dated 19th December, written only a few weeks before that reply, from Mr. Jonathan Evans MP, the Parliamentary Under-Secretary in the Lord Chancellor's Department addressed to Mrs. R.E.R. Thomson, chairman of the council of the Magistrates' Association. Some days ago I provided a copy of that letter to the Minister. I read, selectively, two or three short passages from it. It starts by saying: The Lord Chancellor has asked me, amongst other tasks he has assigned to me on my arrival here, urgently to resolve this issue".

He then goes on to refer to the immunity against actions for damages which was achieved by the medium of the Courts and Legal Services Act 1990. He states: However, it has since become apparent from recent case law that costs orders can and are being made against Justices in case stated or judicial review proceedings in a different range of circumstances. Whilst that case law indicates that this should happen in only exceptional circumstances, I understand your concerns both at the principle and at the uncertainty thereby created, particularly as there appears already to be an increasing number of cases in which costs orders will be sought".

The other parts I want to quote are on the second page of the letter. They are: I am sympathetic towards the arguments which have been put and am committed to finding a solution. My current provisional view is that it would be appropriate to provide immunity unless the Justice acted in had faith. This would require legislation".

That is precisely what I have set out to do, with the one difference—I am limited to providing this immunity from costs in criminal cases only, because this is a criminal procedure Bill and I am not entitled to go outside it.

I shall return to the way in which the Starred Question proceeded. Having recovered somewhat from his surprise, the noble Viscount said: My Lords, I thank the noble and learned Lord the Lord Chancellor for that reply, which will be partly reassuring to the magistracy. However, is he aware that there is considerable anxiety within that service because of the danger that magistrates may be taken to appeal and have damages found against them?".

He means costs. He continued: Some magistrates are talking of resigning from the service. As this problem has been in existence for some years, will he undertake as a matter of some urgency to bring forward a solution which will be equitable with others in the legal service?".

In the course of his reply, my noble and learned friend the Lord Chancellor said: I think that magistrates are currently concerned that Section 53 provides an indemnity only against costs".

I am not sure how that comes about. He continued: I hope that we may be able to do something in this area. Obviously consultation would have to precede anything that we did. I am hoping that we might be able to go so far as a consultation at least by the middle of the year".

Again, that absence of any note of urgency was picked up immediately by the noble Lord, Lord Mottistone, who said: My Lords, can my noble and learned friend possibly hurry up the consultations? I believe that he referred to the middle of the year. It is a matter of great urgency. The point that the noble Viscount, Lord Tenby, made about magistrates now seeking to resign is most unwelcome. Perhaps an impression could be given that the Government will not waste any time in getting on with the consultation. Can my noble and learned friend give us that assurance?".

My noble and learned friend the Lord Chancellor said: My Lords. I would find it most unwelcome if magistrates were seeking to resign on this ground. It is quite clear that there is no real basis for any fear which would require them to do so".

I find that incomprehensible. I have already indicated orders which have been made, to the liability which exists, and the concern that was recorded in his own Parliamentary Under-Secretary's letter written four weeks earlier. He goes on to say: As I say, the law already provides for a magistrate to be indemnified against costs orders so long as he or she acted reasonably and in good faith. That is a pretty secure type of indemnity".—[Official Report, 15/1/96; cols. 359–611]

The contrast between that reply and the letter written four weeks previously was so marked that I thought that it was only right to put down this amendment so that the House could see the strange contrast between the written answer coming from the Parliamentary Under-Secretary and the verbal answer given to the House when the Question was put. As I informed your Lordships, I provided a copy of that letter some weeks ago to the noble Baroness and she was kind enough to write to me. In her letter of 1st February she said: As you will know the Lord Chancellor has said that he will address the question of immunity against costs orders as a matter of urgency. However, as anything which is done in respect of justices and justices' clerks would have ramifications for other judicial post holders he believes that, before moving to legislation, it would be wise to consult. As you know he has said that he would hope to issue a paper later this year. As this, and any legislation change which follows, will take time the Lord Chancellor is also looking at ways in which the arrangements for providing indemnity under the provisions of section 53 can be improved. This will give those affected greater confidence that the existing statutory protections will work until a longer term solution can be found".

That is precisely what I have sought to do in this amendment.

The penultimate paragraph of the letter states: Your amendment, while it seeks to strengthen indemnity, does not address the question of immunity".

I pause there merely to ask why it should. One is endeavouring to deal with the liability for costs on the basis that the justices have not acted reasonably. It is that which gives them the sense of insecurity. I have not sought to cure the danger arising out of bad faith. I have sought to do precisely what the Parliamentary Secretary to the Lord Chancellor's Department seemed to agree with; namely, to remove that liability on the grounds of acting unreasonably, whatever that may mean in the circumstances.

The letter goes on: And it would restrict additional protection to matters arising from criminal cases".

That is not my fault. Initially I sought to extend this to both criminal and civil proceedings but I was naturally called to order. The letter goes on: The Lord Chancellor's proposals are aimed at providing more comprehensive protection".

I am delighted to hear it, but while he is consulting and arranging for that more comprehensive protection, why should not the justices and their clerks have the very simple protection of no longer being under any liability on the basis that they have acted unreasonably?

My proposals will provide non-contentious and much-needed interim protection while the leisurely process to which I have referred takes it course. I beg to move.

Lord Rodgers of Quarry Bank

My Lords, I chose to associate my name with the amendment moved by the noble and learned Lord, Lord Ackner, very much for the reasons which he has already explained to the House and in my case in particular, in view of the exchanges which took place on 15th January to which the noble and learned Lord referred.

I confess that this was a new issue to me but I felt then that the replies were wholly unsatisfactory. Indeed, the two sentences in the remarks of the noble and learned Lord the Lord Chancellor that struck me were, first, that it was not a new problem which had arisen overnight; and secondly, that it required considerable examination in depth before Parliament would be invited to bring forward solutions.

It seems to me that if it is not a new problem but one which has been in the responsibility of government for some while—and that view is very much strengthened by the letter from the Parliamentary Secretary of 19th December to which the noble and learned Lord, Lord Ackner, referred—I cannot understand why it is only at this late hour that it requires considerable examination in depth. Having already attracted the attention of the Government, I would have assumed that it was something to which thought had been given. Therefore, coupled with the very leisurely proposals which the noble and learned Lord the Lord Chancellor then seemed to make, it seemed right to take an opportunity in the course of discussions on this Bill to resolve the matter.

Nothing that I have heard today, seen in the correspondence or noted in the exchanges which took place on 15th January convinced me that an examination in depth is required. It seems to me that it is clear that there needs to be a willingness to correct the problem and the courage to make the necessary decisions. That being so, if those decisions cannot be made today on the hoof by the Minister, I do not see why she cannot consider an amendment which may he available at a later stage.

Lord McIntosh of Haringey

My Lords, if indemnities are good enough for the judges who are paid, they are good enough for magistrates who are not paid.

Baroness Blatch

My Lords, this amendment would bring the test of whether indemnity (that is, an arrangement to make good a loss suffered by a party) should be given to justices (and justices' clerks) in line with the test for immunity (that is, freedom or exemption from legal proceedings) in respect of actions arising from matters outside a magistrate's jurisdiction. It would require bad faith to be proved.

Although the amendment proposed by the noble and learned Lord, Lord Ackner, would strengthen the indemnity provisions which are contained in Section 53 of the Justices of the Peace Act 1979, it covers only criminal cases and therefore excludes many of the cases which, I understand, have given rise to the current concerns expressed by magistrates. Nor does it address the separate question of immunity.

As my noble and learned friend the Lord Chancellor himself explained in this House on 15th January, the Government are aware of the concerns which magistrates have and of their view that in order to be adequately protected in the proper discharge of their functions, they should be given immunity against costs orders. My noble and learned friend made the point then that legislation to give greater immunity to magistrates would have ramifications for other members of the judiciary. He has announced that he intends to issue a consultation paper later in the year.

The noble and learned Lord, Lord Ackner, suggested that what my noble and learned friend the Lord Chancellor said in the House on 15th January was inconsistent with the contents of the Parliamentary Secretary's letter of 19th December to the Magistrates' Association. There is no inconsistency. The Parliamentary Secretary said that he is sympathetic to the arguments for immunity and is committed to finding a solution. As that would require legislation and would therefore take time, he said that he would also consider improved arrangements for giving effect to the current indemnity provisions as an interim measure.

My noble and learned friend the Lord Chancellor also indicated that he wished to address the question of immunity as a matter of urgency, but said that in view of the ramifications, he thought it right to consult before bringing forward legislation. He did not refer to the proposals for finding an interim solution, but that does not signify that he has rejected them. The two strands of the proposal—looking at immunity as the preferred solution and improving the indemnity arrangements in the interim—together represent my noble and learned friend's intended approach.

I recognise the desire of the noble and learned Lord, Lord Ackner, to safeguard the interests of the magistracy. However, I believe that it would be premature to deal with the matter in this fashion. The work which my noble and learned friend the Lord Chancellor has put in hand should result in a comprehensive solution to the difficulties which have been identified and for which there is much sympathy on the part of both the Parliamentary Secretary and my noble and learned friend. This proposal would not achieve that, and for that reason I hope that the noble and learned Lord will not press the amendment.

Lord Ackner

My Lords, before the Minister sits down, will she be kind enough to tell me who are the other members of the judiciary against whom costs orders are made?

Baroness Blatch

My Lords, I cannot answer that question because I simply do not know.

Lord Ackner

My Lords, I find that surprising because the mainstay of resisting the amendment is that it is premature because consultation is required and because there are other members of the judiciary who would be involved and therefore affected. It is surprising that the Minister's brief does not provide the very foundation to her resistance to the amendment. It makes me doubt even more the expedition which it is now said will occur to remedy this grossly unsatisfactory position.

We talk in high flowing language about protecting the independence of the judiciary. I would have thought that the possibility of there hanging over the heads of members of the judiciary a potential order for costs if they get their decisions unreasonably wrong is the very contradiction of independence. The risk of a judge looking over his shoulder in that situation is not to be discounted.

The Minister says that there is no conflict between the Parliamentary Under-Secretary's letter and the reply from the noble and learned Lord the Lord Chancellor. I refer merely to the strange observation at col. 361 of Hansard: That is a pretty secure type of indemnity".—[Official Report, 15/1/96; col. 361.1 There is clear evidence that the magistrates are unhappy and some are resigning or threatening to resign. I compare that with the phrase that I read out from the Parliamentary Under-Secretary's letter: I am sympathetic towards the arguments which have been put and am committed to finding a solution. My current provisional view is that it would be appropriate to provide immunity unless the Justice acted in bad faith". I believe that this is a most important matter since it goes to the very administration of justice. I seek the opinion of the House.

7.2 p.m.

On Question, Whether the said amendment (No. 90) shall be agreed to?

Their Lordships divided: Contents, 80; Not-Contents, 72.

Division No. 4
CONTENTS
Ackner, L. [Teller.]	Dormand of Easington, L.
Acton, L.	Dubs, L.
Addington, L.	Falkender, B.
Airedale, L.	Farrington of Ribbleton, B.
Archer of Sandwell, L.	Fisher of Rednal, B.
Barnett, L.	Fitt, L.
Berkeley, L.	Geraint, L
Birk, B.	Gladwin of Clee, L.
Blackstone, B.	Graham of Edmonton, L.
Borrie, L.	Greenway, L.
Braine of Wheatley, L	Gregson, L.
Bridge of Harwich, L.	Grenfell, L.
Broadbridge, L.	Halsbury, E.
Callaghan of Cardiff, L.	Hamwee, B.
Carter, L.	Harmsworth, L.
Cledwyn of Penrhos, L.	Haskel, L.
Clinton-Davis, L.	Hilton of Eggardon, B.
Cocks of Hartcliffe, L.	Hollis of Heigham, B.
Craigavon, V.	Howie of Troon, L.
David, B.	Hylton-Foster, B.
Dean of Thornton-le-Fylde, B.	Jeger, B.
Desai, L.	Jenkins of Putney, L.
Donoughue, L.	Judd, L.

Kennet, L.	Rea, L.
Killbracken, L.	Richard, L
Kirkhill, L.	Rodgers of Quarry Bank, L. [Teller.]
Listowel, E.
Lockwood, B.	Sefton of Garston, L
Longford, E	Shepherd, L.
Lytton, E.	Stoddart of Swindon, L.
McCarthy, L.	Strabolgi, L.
McIntosh of Haringey, L.	Taylor of Gryfe, L.
Mason of Barnsley, L.	Templeman, L.
Merlyn-Rees, L.	Tordoff, L.
Mishcon, L.	Turner of Camden, B.
Molloy, L.	Weatherill, L
Morris of Castle Morris, L.	Wedderbum of Charlton, L
Napier and Ettrick, L.	White, B.
	Williams of Elvel, L.
Nicol, B.	Williams of Mostyn, L.
Palmer, L.	Winston, L.

NOT-CONTENTS
Addison, V.	Keyes, L
Ailesbury, M.	Kimball, L.
Aldington, L	Lane of Horsell, L.
Ampthill, L.	Lindsey and Abingdon, E.
Banbury of Southam, L.	Long, V.
Beloff, L.	Lucas, L
Blaker, L.	Lyell, L.
Blatch, B.	McColl of Dulwich, L.
Blyth, L.	Mackay of Ardbrecknish, L
Boardman, L.	Mackay of Clashfern, L. [Lord Chancellor.]
Brentford, V.
Bridgeman, V.	Mackay of Drumadoon, L.
Burnham, L.	Macleod of Borve, B.
Caithness, E
Campbell of Alloway, L.	Marlesford, L
Chesham, L. [Teller.]	Massereene and Ferrard, V.
Clanwilliam, E.	Miller of Hendon, B.
Clark of Kempston, L.	Monteagle of Brandon, L.
Colwyn, L.	Mountevans, L
Courtown, E.	Murton of Lindisfarne, L.
Craigmyle, L., B.	Northesk, E.
Dean of Harptree, L.	O'Cathain, B.
Elles, B.	Pender, L.
Elton, L.	Peyton of Yeovil, L.
Fraser of Carmyllie, L.	Rankeillour, L.
Geddes, L	Reay, L.
Goschen, V.	Rennell, L.
Hanson, L.	Selborne, E.
Hamiar-Nicholls, L	Selsdon, L
Hayhoe, L.	Shrewsbury, E.
Hogg, B.	Skidelsky, L.
Holderness, L.	Strathclyde, L. [Teller.]
HoImPatrick, L.	Thomas of Gwydir, L.
Inglewood, L.	Torrington, V.
Jenkin of Roding, L.	Trumpington, B.
	Tugendhat, L.
	Vivian, L.
	Wynford, L.

Resolved in the affirmative, and amendment agreed to accordingly.

7.10 p.m.

The Earl of Courtown

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, perhaps I may suggest that the Report stage begins again not before 7.25 p.m.

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