HL Deb 02 June 1998 vol 590 cc259-66

7.59 p.m.

Lord Stone of Blackheath

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

Moved, That the House do now resolve itself into Committee.—(Lord Stone of Blackheath.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Ampthill) in the Chair.]

Clause 1 [Regulation of pesticides]:

[Amendment No. 1 not moved.]

Clause 1 agreed to.

Clause 2 [Enforcement of controls on pesticides]:

Baroness Anelay of St Johns moved Amendment No. 2:

Page 2, line 35, after ("officer") insert ("reasonably").

The noble Baroness said: This amendment would require a person to answer questions put by an officer only when that officer poses questions which he or she has considered it reasonable to ask.

As presently framed, the test of what questions an officer thinks it appropriate to ask is entirely subjective. This Bill introduces a measure which represents an invasion of privacy and a cutting down of the ordinary rights of the individual to answer questions or not. It is therefore important that Parliament should be ready to ensure that the reduction in civil liberties is restricted to what is necessary for the measure itself and no more.

It could surely never be necessary for an officer to be entitled to ask questions which it was not, when considered objectively, reasonable to ask. It would be wrong for a person who declines to answer a question which is not a reasonable question to be exposed to the risk of prosecution for failing to answer such a question. I note that the power to take action springs from paragraph 10 of Schedule 2 to the 1985 Act. Perhaps I may place on record my gratitude to the Minister and his department for answering some questions that I posed at Second Reading with regard to the source of the legitimacy of proceedings against people who do not answer questions under that provision.

I do not think that it would be reasonable to object to the insertion of the word "reasonably", as I propose, on the grounds that it might be difficult to define what is reasonable and what is not. That has sometimes been advanced as an argument against the insertion of the word "reasonable" in social security law. On this occasion I advance the view that it is reasonable to accept my amendment simply because the Bill already contains, at line 32 on page 2, the use of the word "reasonable". The Government have therefore already considered it an acceptable use of the word. In line 32, the word is used in the context of restricting the power of the officer to act, in that he or she must first have reasonable cause to believe that a person is able to give information which will assist him or her in carrying out the functions conferred under Part III of the 1985 Act.

I would therefore argue that the use of the word "reasonably" is not in itself unreasonable in the context of my amendment. Indeed, if that safeguard were not inserted into the Bill, I would argue that the person being questioned would be put into an unreasonable position in being required to answer any questions, however unreasonable they might be, on pain of prosecution if he or she fails to answer. I beg to move.

Lord Monson

I am every bit as concerned about civil liberties as the noble Baroness and her noble friends. I support the thrust of what she is trying to achieve in this amendment. However, it seems to me that if the word "reasonably" is inserted before the word "thinks", subjectivity creeps into the equation again. The noble Baroness believes that it makes the matter more objective. I suspect that it might not. The officer might think he was being reasonable but might be entirely wrong in that assumption. What the noble Baroness is trying to achieve would be better served if the word "reasonable" were to be inserted between "such" and "questions", so that the sub-paragraph would read: "to answer such reasonable questions as the officer thinks it appropriate to ask". Other noble Lords may disagree, but that is my feeling on the matter.

Lord Kimball

I hope that the noble Lord will accept this amendment, or give some guarantee that at a later stage he will bring forward an appropriate adjustment.

While we are on the subject of reasonableness, perhaps I may say how much I and all of us appreciate the trouble taken by the noble Lord, Lord Donoughue, in clearing up the point about expenditure under the Bill. He sent an excellent letter. It was an example of how to deal with all Private Members' Bills which verge on imposing a burden of expenditure. In a spirit of reasonableness, I wish to thank him.

Lord Stone of Blackheath

I thank the noble Lord, Lord Monson, for making a shrewd point. I also thank the noble Lord, Lord Kimball, for leaving out his reasonable amendment, and also for teaching me so much during the passage of this Bill.

The amendment is not necessary. The Bill already requires an enforcement officer to be reasonable. He or she is already required, as stated in Clause 2 at line 32 of the Bill, to have reasonable cause. The courts can, and already do, decide whether enforcement action has been reasonable. Good judges are being retrained as we speak on this particular practice. A power to ask questions would be subject to the usual public law controls of relevance and reasonableness, and the issue of whether questioning has been reasonable or not could be taken into account in any prosecution for failing to answer questions. Answers given would not in any event be admissible in criminal proceedings against the person answering, or their spouse, except in a case of alleged perjury.

Baroness Anelay of St Johns

I am grateful to those who have spoken. I take on board particularly the words of the noble Lord, Lord Monson, with regard to the importance of the positioning of the word if one is to retain objectivity and avoid subjectivity. I take to heart the noble Lord's comments that I may inadvertently have retained subjectivity by the way in which I have positioned the word "reasonably". On that basis alone, at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 3 and 4 not moved.]

[Amendment No. 5 not moved.]

Baroness Anelay of St Johns moved Amendment No. 6:

Page 3, leave out lines I to 5.

The noble Baroness said: This amendment seeks to obtain clarification regarding the application of what might be called in shorthand the new Clause 2(2) powers of the Bill.

I wish to begin by offering an apology to the Committee for taking some time over this matter. However, at Second Reading I attempted to obtain clarification in relation to this new power because there had been some confusion when the issue was discussed in the Commons. It appeared that Ministers in another place were not able fully to complement each other in what they said but seemed at odds with each other.

Having raised the issue at Second Reading, I then received a letter from MAFF, for which I thank the Minister. It covered some of the points I raised at Second Reading. However, unfortunately, with regard to the particular clarification of the new Clause 2(2) powers the letter caused further obfuscation rather than clarification. I therefore tabled an amendment to try to resolve the matter, and in a spirit of co-operation faxed through the entirety of my speaking notes on this amendment to MAFF yesterday. At 6.35 this evening I received a letter from MAFF in reply to those notes. It means, I am afraid, that I feel the need to put the whole issue on record: that is, the scenarios I proposed at Second Reading; the MAFF letter in response; my response; and the final MAFF letter. Only in that way will one be able to approach properly a resolution of what the Clause 2(2) powers may mean.

The situation arises that under the Clause 2(2) powers somebody may for the first time be required to give information to an officer. In order to explain how that might affect individuals, I proposed three scenarios.

In the first, I am the defendant. Throughout this process there has been a recalcitrant Mrs. Bloggs. I apologise to all Mrs. Bloggses throughout the country for appropriating that name. But first I am the defendant charged with storing pesticides, and I state in court that I have not stored them. As I understand it, this Bill prevents the prosecution from adducing my original statement as evidence against me in those proceedings. But if the prosecution wishes subsequently to prosecute me in separate proceedings for perjury, then it can use the first statement as evidence.

In the second scenario I proposed, I am now a prosecution witness in the trial of Mrs. Bloggs, and again I lie and say that I have not stored the pesticides. My first statement could be brought into that case only if the prosecution wished to apply to treat me as a hostile witness by demonstrating that I had made a previous statement inconsistent with my oral evidence. It would be used as to my unreliability as a witness—but not against me as such because the proceedings would not be against me. But the prosecution could subsequently bring a charge of perjury against me and, as in the previous scenario, use the first statement in evidence against me in those proceedings.

The third scenario is the only one that has been accepted in its entirety by the Government. The Committee will therefore be relieved to hear that after this they will hear no more of scenario three. In this scenario I am a witness for the defence in a prosecution case against Mrs. Bloggs. Again, I lie in court and say that I did not store the illegal pesticides. Again, the first statement can be adduced as evidence but only to demonstrate the unreliability of the oral evidence which I have given. It cannot be used against me because the proceedings are not against me, although again the prosecution could subsequently bring a case of perjury against me.

The Minister wrote to me with regard to the first two scenarios. I must refer to the letter in detail in order to explain to the House why I believe the Government are still a little muddled in their thinking on this issue. The Minister's letter states: In the first scenario, where the person who has made the statement appears as a defendant, the person admitting illegal storage and suspected of committing an offence would not be interviewed under the clause 2(2) procedure. The interview would be conducted in line with the procedures set out in the Code of Practice for the detention, treatment and questioning of persons by police officers to the Police and Criminal Evidence Act 1984. Any confession evidence would then be admissible against the interviewee in court". The letter continues: In the second scenario, where the person who made the statement appears as a prosecution witness, the prosecution would seek to avoid having to apply to treat the witness as hostile. For instance, they might ask the witness whether they made the earlier statement and seek to allow them to refresh their memory from the statement". I find great difficulty with both parts of the Minister's letter on those two scenarios. With regard to scenario one, the point is that the Clause 2(2) procedure can be used against any person whom the officer has reasonable cause to believe is able to give information which will assist him in carrying out the functions conferred by Part III of the Act. Such a person could include—indeed, must include—a potential defendant. That is the whole point of the provision. Accordingly, I would argue that the first scenario is correct.

A defendant may well have admitted that he or she is storing illegal pesticides for Mrs. Bloggs in answer to the questioning by the officer under Clause 2(2). After all, the whole purpose of Clause 2(2) is that a person is required to answer the officer's questions or face a penalty for refusing to answer. But the PACE procedure, which I, as a magistrate, was accustomed to seeing invoked, would not arise until a later stage when a decision had been made to detain the person, presumably on the basis, inter alia, of his or her admission to the officer. Such a person would at that stage be interviewed in the normal way under PACE. Only if he or she repeated the admission in that interview could that confession be admissible against that person in court. But if the person denied the matter or refused to answer, the original admission under Clause 2(2) would not be admissible against that person in the proceedings.

Under PACE a person cannot be required to answer questions. It is possible in certain circumstances in subsequent criminal proceedings for the court to draw inferences from a refusal to answer or a failure to mention facts later relied upon in one's defence, but that is a different matter.

I therefore argue that it is quite wrong for the Government to state that the person admitting illegal storage and suspected of committing an offence would not be interviewed under the Clause 2(2) procedure. If that is right, the Clause 2(2) procedure might in itself prove completely ineffective and its inclusion in the Bill would be a waste of time. Such a person would not be required to answer the officer's questions, and thereby valuable information as to the storage of pesticides might be withheld. I have little doubt that a person who has admitted illegal storage under the Clause 2(2) procedure might well be arrested and re-interviewed under PACE, when any admission made in the PACE interview would be admissible, but that is a different matter.

I argued in the notes that I faxed to MAFF that the Government may be confusing two situations. They fail to appreciate that the Clause 2(2) procedure is initiated before any admission is made. The admission arises as a result of that procedure. The admission in scenario one ex hypothesi is not repeated in the PACE interview, which of necessity occurs after the Clause 2(2) questioning.

I promise to be briefer and, I hope, clearer on scenario two. I notice that the noble Lord the Chief Whip appears relieved to hear that. In scenario two the prosecution cannot seek to allow a person to refresh his or her memory from an earlier statement where that person has flatly contradicted the contents of the earlier statement. A witness can, in certain circumstances, be allowed to refresh his or her memory from a statement made by him or her at an earlier time when the memory was clear. The prosecution can seek to allow a witness to refresh his or her memory when a witness says that he or she cannot remember the facts or is unsure about the facts. But in scenario two, ex hypothesi the witness is lying; that is, deliberately and falsely stating that he or she did not store pesticides for Mrs. Bloggs. The only way that the original statement under Clause 2(2) can be brought into the case is by an application to treat the witness as hostile. I therefore argue that scenario two is correct. It is not a memory-refreshing situation.

We gather pace at this stage—no pun intended, I assure the Committee. This evening, about an hour-and-a-half ago, I received a further letter from MAFF. With regard to scenario one, the Minister writes: You are of course correct"— I think it must be the first occasion that a Government Minister has said that I am correct; I must treasure this— that the clause 2(2) procedure can be used against any person whom the officer has reasonable cause to believe is able to give information and it may occur that someone suspected of committing an offence is interviewed under this procedure. But as you point out such information could not be used in court which is why, in practice, when someone is suspected of committing an offence they are more likely to be interviewed according to procedures under PACE. In some cases it may happen that during an interview begun under clause 2(2), because of disclosures made by the interviewee, the interview is stopped, the interviewee is formally cautioned and the interview progresses according to PACE procedures".

I am greatly concerned as a result of receiving that letter. It had been my understanding that one of the purposes behind this provision in the Bill was to cope with a situation where an employee was forced into the position of giving evidence against his or her employer that would possibly incriminate that person or his or her spouse and that that was such a draconian matter that was being forced on the employee that provision was made within the Bill to give such a person immunity from prosecution in order to protect him or her. What is stated in the letter is that that immunity is going out of the window; that there is an intention from the beginning to say: "If we think we have got you banged to rights, we will do it; we will go ahead and get you. We are not going to use the Clause 2(2) procedure unless we think you have done nothing wrong and you can get off the hook". I have serious concerns about the way the Clause 2(2) procedure is progressing.

One of my noble and learned friends pointed out to me earlier that PACE does not apply in Scotland. I bow to my noble and learned friend's experience as a previous Lord Advocate and Member of your Lordships' House. I ask the Government to clarify the situation with regard to Scotland, in particular as to whether PACE does not apply there.

With regard to the second scenario, the letter goes on to say: in the extreme case where the witness has blatantly lied then the only course open may well be to treat the witness as hostile. This has no particular advantages for the prosecution and would of course apply to all evidence supplied by that witness, some of which may assist the case. This is why the prosecution will seek to avoid the situation occurring by asking the Court to allow a witness to refresh their memory from an earlier statement. As you say though this is not going to be appropriate when the witness is blatantly lying". I am saying more than that. I am saying that not only is it not appropriate, it is simply not possible. Under criminal procedure as it stands, where somebody has lied and one is trying to adduce different evidence, one cannot do it through a procedure of allowing them to refresh their memory. The court will not allow it.

I repeat my earlier thanks to the Government for taking such care and consideration in trying to resolve this issue. I fear that they have actually dug themselves into a deeper hole by attempting to help me. I regret that. At Second Reading I was genuinely attempting to resolve the situation. I hope that either the Minister or the noble Lord, Lord Stone of Blackheath, is able to shed a little more light on these dark corners. I beg to move.

8.15 p.m.

Lord Donoughue

I thank the noble Lord, Lord Kimball, for his characteristically generous words. I also thank the noble Baroness for being so co-operative during our approach to this Committee stage. She should not be surprised that I described her as "correct"; I often view her as correct, but I hope not too politically correct.

I shall not detain the Committee with any seductive scenarios. However, I remind Members that the purpose of the power in question is the effective but fair questioning of witnesses. The amendment would create ambiguity on the question of whether someone can be required to answer questions which could incriminate him or his spouse. It would also remove a protection for individuals that is specifically designed to meet human rights concerns. It would be unfair if people's potentially self-incriminating answers to questions put to them under compulsory powers, could be used against them in a subsequent prosecution for a breach of the 1985 Act. Members of the Committee will recall that the European Court of Human Rights, in the Saunders case made precisely that criticism of powers of questioning where the accused had no protection against that unfairness. We believe that the amendment would remove that protection from the statute.

I am genuinely grateful to the noble Baroness, Lady Anelay, for raising this point. As I say, we cannot accept the amendment as it stands, but I acknowledge that the noble Baroness has deep concerns about this matter and has put forward some interesting arguments. I am therefore happy to reflect on the matter and to come back to it at Report stage. In that spirit, I hope that the noble Baroness will agree to withdraw the amendment.

Lord Stone of Blackheath

I am grateful to the Minister for offering to reflect on that point. I am glad we did not make a snap judgment on these issues. I hope too that this is regarded as reasonable and acceptable by the noble Baroness, Lady Anelay.

Baroness Anelay of St. John

I shall try to be as reasonable and acceptable as I can, as long as it is reasonable for the Opposition to be so.

It was not my intention to remove any protection from witnesses under the Bill; indeed, it was to clarify how that protection would operate effectively. I certainly did not intend to press the amendment in its present form. I thank the Minister for his offer to reflect upon the issue and to return to it at Report. I look forward to seeing that further amendment at that stage. I hope it will clarify the position. I am sure that any amendment which protects witnesses will meet with the approval of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

Clause 2 agreed to.

Clause 3 agreed to.

House resumed: Bill reported without amendment.

Lord Hoyle

My Lords, I beg to move that the House do now adjourn during pleasure until five minutes before nine o'clock.

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

[The Sitting was suspended from 8.25 to 8.55 p.m.]