Lords Sitting of 14 July 2003

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chester.

Clerk of the Parliaments
The House having been informed on 21st May that Her Majesty had been pleased to appoint Mr Paul David Grenville Hayter, LVO, to the Office of Clerk of the Parliaments, vacant by the retirement of Sir John Michael Davies, KCB, the letters of appointment dated 14th July 2003 were read; then the said Paul David Grenville Hayter made the prescribed declaration (which declaration is set down in the Roll among the oaths of the great officers) in terms as follows:
"I, Paul David Grenville Hayter, do declare that I will be true and faithful and troth I will bear to Our Sovereign Lady the Queen and to Her Heirs and Successors. I will nothing know that shall be prejudicial to Her Highness Her Crown Estate and Dignity Royal, but that I will resist it to my power and with all speed I will advertise Her Grace thereof, or at the least some of Her Counsel in such wise as the same may come to Her knowledge. I will also well and truly serve Her Highness in the Office of Clerk of Her Parliaments making true Entries and Records of the things done and passed in the same. I will keep secret all such matters as shall be treated in Her said Parliaments and not disclose the same before they shall be published, but to such as it ought to be disclosed unto, and generally I will well and truly do and execute all things belonging to me to be done appertaining to the Office of Clerk of the Parliaments".
After which he took his seat at the Table.

Clerk Assistant of the Parliaments
The Lord Chancellor (Lord Falconer of Thoroton): My Lords, I beg to move the Motion standing in my name on the Order Paper.
As my noble and learned friend the Leader of the House informed the House on 21st May last, I have appointed Mr Michael Graham Pownall to be Clerk Assistant in place of Mr Paul David Grenville Hayter, appointed Clerk of the Parliaments. I therefore beg to move.
Moved, That this House do approve the appointment by the Lord Chancellor, pursuant to the Clerk of the Parliaments Act 1824, of Mr Michael Graham Pownall to be Clerk Assistant of the House in place of Mr Paul David Grenville Hayter LVO, appointed Clerk of the Parliaments.—(The Lord Chancellor.)
On Question, Motion agreed to nemine dissentiente.

Reading Clerk and Clerk of Outdoor Committees
The Lord Chancellor: My Lords, I beg to move the Motion standing in my name on the Order Paper.
620
As my noble and learned friend the Leader of the House informed the House on 21st May last, I have appointed Mr David Richard Beamish to be Reading Clerk in place of Mr Michael Graham Pownall, appointed Clerk Assistant. I therefore beg to move.
Moved, That this House do approve the appointment by the Lord Chancellor, pursuant to the Clerk of the Parliaments Act 1824, of Mr David Richard Beamish as Reading Clerk and Clerk of Outdoor Committees of the House in place of Mr Michael Graham Pownall, appointed Clerk Assistant.—(The Lord Chancellor.)
On Question, Motion agreed to nemine dissentiente.

Post Office Card Accounts
2.41 p.m.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath asked Her Majesty's Government:
How many benefit recipients have opted for Post Office card accounts since the introduction of the direct payment programme.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, as of 23rd June 2003, 430,000 customers have opted for a Post Office card account.
Lord Hunt of Kings Heath: My Lords, I am grateful to my noble friend the Minister. When the Government decided to change the system of payments for benefits, they said that those who wished to receive cash payments across Post Office counters could continue to do so. Is the Minister aware that many such customers are finding the system of opting for cash accounts to be extremely difficult, very bureaucratic and time consuming? Will the Minister examine ways of achieving a level playing Field, so that those who wish to have cash across the counter can do so?
Lord Sainsbury of Turville: My Lords, the introduction of the Post Office card account has been extremely successful. Everybody who has one can get cash over the counter. I have also looked into the question of the forms that have to be filled in, and the form for the cash account is, for once, admirably clear and simple. I cannot see that it would prove difficult except in the very small minority of cases of people who have difficulty in using a PIN machine. We will take account of those people with a rule of exception later on.
Earl Russell: My Lords, did not the Minister gave an excellent impersonation of Dr Pangloss? I also draw his attention to a further declivity in the playing field, which is the growing programme of closure of urban post offices—most recently, that of Gladstone Park in

621
Brent, in my constituency. As mobility is not the most conspicuous characteristic of the old, does he agree that that is further tilting the playing field against the use of post offices? Does the whole story cast any light on the question whether the commercial freedom of the Post Office is in fact compatible with its universal service obligation?
Lord Sainsbury of Turville: My Lords, I was not trying to imitate Lord Pangloss. It is dangerous ever to assume that a computer system will not break down very shortly, but in this case, due to sensible procedures on the part of the Post Office of introducing the system carefully and slowly, it is working. What the Government always said, which is that people would be able to get cash over the counter, is exactly what they are able to do.
Urban post offices are a different issue, but even with the closure programme, the distance that people will have to travel is still in most cases perfectly reasonable.
Lord Higgins: My Lords, is it not the case that 45 per cent of pensioners are yet to respond to the Government's invitation? Is it not very important that benefit recipients—especially pensioners—should be fully aware of the Post Office option, because of the way in which credit rating agencies make it extremely difficult for anyone it has not had a bank account and has never borrowed to open a bank account?
Lord Sainsbury of Turville: My Lords, in fact, 57,000 people have already opened Post Office card accounts, which is running ahead of the operational figure projected by the Post Office. It was thought that about 3 million people would eventually use Post Office card accounts; it looks as if that figure will be considerably higher. That shows that there is no bias in the system, as Postwatch found when it analysed the system.
Baroness Greengross: My Lords, I agree that we must move forward into the 21st century and believe that the majority of older people can, or can learn to, cope with IT and PINs, but I have some concerns. Precisely how will the new system cope with housebound older and disabled people, but who may have different people every week—casual appointees from their family, volunteers or care agency temporary staff—collecting their money? How quickly will the department be able to deal with forgotten PINs and lost payment cards?
Lord Sainsbury of Turville: My Lords, there is already a problem for people who are housebound—that of the appointment of agents, which is similar in both the current and new situations. That is a difficult problem, but one capable of solution.

Energy
2.46 p.m.
Lord Dubs Lord Dubs asked Her Majesty's Government:
What assessment they have made of the recent report by the Institution of Civil Engineers regarding a future shortfall of energy in the United Kingdom.
Lord Sainsbury of Turville: My Lords, maintaining the reliability of energy supplies is one of the four key goals set out in the energy White Paper that we published in February. The Institution of Civil Engineers' report does not raise any issues that were not addressed in the energy White Paper or that are not being addressed in the follow-up to it, or through the work of the DTI/Ofgem Joint Energy Security of Supply Working Group.
Lord Dubs: My Lords, while welcoming today's announcement, to which my noble friend did not refer, of plans to increase investment in offshore wind sources, does he agree that that must be set against the closure of the Magnox nuclear stations; the decline in the use of coal; the fact that North Sea sources of energy will also be declining; and that, before too long, we shall be heavily dependent on imports of natural gas from distant and potentially unstable parts of the world? What assurance is there that there will not be a day when the lights in this country go out?
Lord Sainsbury of Turville: My Lords, all those facts and projections were set out in the energy White Paper, where there was a proper debate about the uncertainties and vulnerabilities.
The Institution of Civil Engineers clearly asserted that there was no way that we could reach the renewables target—that was one of its two chief concerns. It is worth pointing out that the announcement that the Secretary of State made today, if it is fully implemented and picked up by companies, would lead to renewable wind power equivalent to 5 per cent of our total energy requirements. If we add that to the 1.25 per cent from an earlier round and the current amount, it is not difficult to see that we could well meet what is a very challenging target of obtaining 10 per cent of our energy from renewables by 2010. So the assumption made by the Institution of Civil Engineers was not correct.
As for the vulnerabilities that arise from the increase in our imports of gas, we have covered those. A great deal of action is already being taken to ensure that we have what is the key to reliability, which is diversity of supplier, route and type.
Lord Ezra: My Lords, in order to deal with a possible energy shortfall, should not the Government be taking a wider range of measures beyond the support presently being given to wind power? For example, France, Germany and Italy store gas at an equivalent of up to 20 per cent of annual consumption.

623
Have we plans to do the same when our North Sea resources fail? Are the Government going to introduce major plants to develop clean coal technology with carbon extraction so that coal can once again play its part in balancing future energy supplies?
Lord Sainsbury of Turville: My Lords, it is correct to say that we have considerably less in the way of storage facilities for gas than is the case either in France or Germany, and of course that is due to the fact that we have had the flexibility of our own supply and therefore have not needed to store it. As we move into the new situation of importing more gas, obviously we shall need greater storage facilities. It is important to point out that activities are already being undertaken in the marketplace which will increase significantly the amount of gas storage capacity in this country. However, such storage will be required only when we do not have the flexibility of our own gas supplies.
As for the question raised on the use of coal for the generation of electricity, it is really for the supply industry to pick up on those technologies if coal is to continue to play a part in our energy generation.
Baroness O'Cathain: My Lords, I suggest that the Minister is mixing two issues here. His noble friend asked him a question about energy shortages, but the Minister replied by saying that we are well on our way to meeting our Kyoto target of supplying 10 per cent of our energy needs from renewable sources. However, the reality is that the offshore wind farms announced earlier today will be accompanied by the closure of five nuclear power plants, which means that there will be no increase in our energy supplies. However, does he not agree that if we had the courage to go nuclear, we would be able to achieve both targets; that is, we would more than meet the Kyoto renewables target and secure our future energy needs?
Lord Sainsbury of Turville: My Lords, I did not quote the Kyoto target, rather this Government's aim to provide 10 per cent of our energy supplies from renewables by 2010 and subsequently 20 per cent by 2020.I wish to make that point clear.
Noble Lords will see that the White Paper sets out exactly the courses of action we are taking. The main vulnerability seen was that we would not reach the renewables target, but it looks much more likely that we will meet it. However, if the target is not reached, then the further question is left open; that is, we shall return to considering nuclear power. But that is not for consideration at this point; it is for later on.
Lord Palmer: My Lords, does not the Minister agree that this report highlights and reinforces the useful role which can be played by British agriculture in the production of bio-diesel and bio-ethanol to help to meet our energy requirements? It would also solve so many problems virtually overnight. As usual, I must declare an interest as the unpaid president of the British Association of Biofuels.
Lord Sainsbury of Turville: My Lords, it is clear that biofuels have a part to play in our energy provision,
624
but the time-frame of the 2010 target will be met largely through wind turbines. If we miss the target, it will be because we have not built sufficient turbines.
The Lord Bishop of Chester: My Lords, natural gas is an extremely convenient domestic fuel and valuable industrial raw material. Although when burned it produces only around half the carbon dioxide of coal and therefore assists our immediate desire to meet the Kyoto target, is not the widespread use of gas for the generation of electricity rather unfortunate both in terms of security of supply—referred to in this report—and for wider environmental reasons? Is this not in fact a rather short-term policy when in reality we should be looking at energy provision for the coming 50 to 100 years?
Lord Sainsbury of Turville: My Lords, three factors must be balanced here: security of supply, the environment and cost. We shall not be able to rely on gas as a part of our very long-term strategy, which is why it is so important that in the short term we put a great deal of effort into building up our renewable supplies. However, I do not think anyone is suggesting that we can move faster on the renewables front than we have planned; indeed, most people consider the target to be very challenging.
Baroness Miller of Hendon: My Lords, after the excellent questions put by the Minister's noble friend during which he mentioned deficiencies, along with the other excellent contributions from around the House, can the Minister say, first, why he is not actually answering the questions being put to him about those long-term deficiencies? It is not very good simply to say in passing that we shall return to the question of nuclear supply. If we are going to deal with nuclear power, then it has to be dealt with now. That is a matter for the Government.
Secondly, is it not true to say that the tests put in place by the Government as regards the reliability of long-term energy supplies depend on their total commitment to those aims? They have appointed a new Minister for energy, but it is only a part-time position. The Minister also has to deal with the Post Office and e-commerce. It is extraordinary that such an important responsibility is so dealt with. Indeed, all that the noble Lord has given the House today is information about the proposed wind farms. In fact, the wind farms are full of holes. I wish to make the point that the Minister announced the plans on the BBC, but did not make a Statement in the House of Commons, which could have been repeated in this House, thus giving noble Lords the opportunity to ask the Government what they really mean by this action and holding them to account.
Lord Sainsbury of Turville: My Lords, an announcement has been made simply on another round of tendering for licences on these particular sites. There is nothing complicated about that and no matter of principle has been raised. One round of tendering has already been completed and this is the

625
second round. I cannot see that any objections will be raised to the tendering of a second round of licences for offshore wind power provision. I do not think that this should be seen as a peripheral issue. The fact is that wind turbine power can provide a very substantial amount of energy. This is an example of it doing so.
Turning to the question of the long-term situation, let me make the position clear. If the renewables figure comes through, that will enable us to achieve very effectively our desired targets. However, if we do not achieve our targets on renewables, there will be a considerable problem. If that situation were to arise, we have made it clear that we would look again at nuclear provision.

Normandy Landings: Commemoration
2.57 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What consultations they are having with the governments of France, Canada and the United States on arrangements for the commemoration of the 60th anniversary of the landings by allied forces in Normandy in June 1944.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, Her Majesty's Government, the United States and the Canadian Governments are represented on France's Normandie Memoire 60éme Anniversaire Comité which is developing a full programme of commemorative events in France from 4th June 2004 onwards. The British Military Attaché in Paris represents the United Kingdom. My honourable friend the Parliamentary Under-Secretary of State for Defence and Minister for Veterans will today write to all Members of this House with more details of the consultations, and a copy of that letter will be placed in the Library of the House.
Lord Campbell of Croy: My Lords, I am grateful to the noble Lord for his reply. Is he aware that on the 50th anniversary, nine years ago, several heads of state attended ceremonies on the Normandy beaches? While the number of surviving veterans continues to decline from natural causes, the French, Canadians and Americans are likely to make special arrangements for this 60th anniversary.
Lord Bach: My Lords, I am aware that the 50th anniversary was particularly significant and that a very large anniversary commemoration of D-Day was held. A 50th anniversary is particularly significant and those commemorations staged of the 50th anniversaries of events during the Second World War were mounted on a special scale. They should not be considered as setting a precedent for any future event in deciding the extent to which other anniversaries should be commemorated. If at all, priority must be given to primary defence tasks.
626
I have to say that we understand that the Canadians are planning to send over one band and a guard of honour, and that we are not yet aware of what the Americans might be doing. No doubt in due course we shall know. However, events that are already in train include the provision of two military bands, representation at both ministerial and senior Armed Force level at all events, a free one-year passport for those veterans wishing to travel who do not currently hold a passport, and assisting with a service of remembrance and thanksgiving at St Paul's Cathedral in October 2004. Continuing discussions are also being held with ferry operators to try to secure travel concessions for organised groups of veterans. It is hoped that an announcement can be made about that very soon.
Baroness Strange: My Lords, is the Minister aware that many of the widows of men who fell on Normandy beaches would also wish to be included in any commemoration?
Lord Bach: My Lords, I am grateful to the noble Baroness, who takes a particular interest and has expertise in these matters. I shall pass back her comments.
Lord Vivian: My Lords, even though I have listened carefully to what the Minister said, is he aware that there is serious concern that the commemoration of the 60th anniversary of the successful landings at Normandy is not receiving the appropriate attention and high precedence that it rightly demands? For instance, can the Minister explain what liaison has taken place between Her Majesty's Government and the French Government in relation to organising the proposed service of commemoration in the Bayeaux war cemetery and the parade that is due to take place at Arromanches on 6th June?
Lord Bach: My Lords, I accept that there is some concern, but it is misplaced. This will be an important weekend of commemoration. It is worth remembering that the Normandy landings received large-scale commemorations on both their 40th and 50th anniversaries. A number of significant Second World War anniversaries will fall in the years up to 2005 and it will not be possible financially to mark them all on a large scale. Funding for 60th anniversaries has been focused equally between the significant World War II battles of each of the three services. The battles they have chosen are the Battle of the Atlantic for the Navy, the Battle of El Alamein for the Army and the Battle of Britain for the Royal Air Force. The Ministry of Defence will also be organising a commemoration of the anniversary of the end of the war in 2005. This will provide an opportunity to pay tribute not only to the Normandy veterans but also to those of other campaigns—for example, those who fought so bravely

627
in the Far East, those who fought so bravely in the campaign through Italy and those whose service was at home.
Baroness Sharples: My Lords, is it just a question of cost in regard to the 60th anniversary? Is there a concern about costs?
Lord Bach: No, my Lords, it is a concern not only about costs but also about finding a due sense of proportion in order to cover these very important anniversaries. The Normandy Veterans Association need have no concerns: the 60th anniversary of D-Day, which is a significant event in itself, will be properly commemorated.
Lord Mackie of Benshie: My Lords—
Lord Mowbray and Stourton: My Lords—
Lord Grocott: My Lords, it is the turn of the Liberal Democrat Benches.
Lord Mackie of Benshie: My Lords, the Minister is not giving full credence to the need for a significant 60th anniversary of D-Day. It was the most incredible operation of the war. It could have wavered on a knife-edge, but it was brought off and was a significant factor in ending the war. Unless we have these commemorations we will be in a situation similar to one the other day where a small child said to his parents when they were talking about this, "Oh, yes, we read something about that in history". It is history. Does the Minister agree that a proper commemoration would help to underline its importance to the young?
Lord Bach: My Lords, I take the noble Lord's point. It was one of the critical battles of the Second World War. My generation learnt about it sometime after. I very much hope that the present generation of children is also learning about it. Of course it would be scandalous not to mark such an anniversary. I am trying to put over the fact that we must have a sense of proportion about these matters and not leave out other anniversaries of great significance.
Lord Mowbray and Stourton: My Lords, as I am a patron of the Normandy Veterans Association—and as we will all be dead after the next such anniversary probably—I should inform the Minister that the Normandy veterans are very confused indeed about what we are going to do next year. A fortnight ago I spent a weekend with all the Scottish members in Dingwall and there was another gathering the fortnight before. Is the Minister aware that we are all very much in a muddle as to what is happening? The more guidance he can give us, the better.
Lord Bach: My Lords, I have tried to be as clear as I possibly can be. I have asked that the letter that has
628
gone to another place should come to every Member of the House. I hope that once that letter has been read the situation will be clearer.

Ministers' Interests: Disclosure
3.5 p.m.
Lord Goodhart Lord Goodhart asked Her Majesty's Government:
Why they believe that the disclosure of information relating to occasions on which Ministers have reported to their private secretaries potential conflicts of interest under the Ministerial Code of Conduct would be contrary to the public interest.
The Lord Chancellor: My Lords, under the terms of the ministerial code, Ministers are required, on appointment to each new office, to provide their Permanent Secretary with a full list in writing of all interests which might be thought to give rise to a conflict. The Government believe that personal information provided by Ministers to their Permanent Secretaries which should not otherwise be made public—for example, in the register of Members' interests—should be treated in confidence. However, the full detail of what has been disclosed and how it has been dealt with must be disclosed on request to the ombudsman. The notice issued prevents her making it public but she is able to express publicly any concerns that she has about what has been done. The decision to issue a notice in this case was taken on the grounds that the release of such personal, private information to the public would not be in the public interest.
Lord Goodhart: My Lords, I declare an interest as a member of the Wicks committee which recently proposed that there should be a register of ministerial interests open to the public. Members of Parliament and Members of your Lordships' House have to make disclosure of any interests which might be regarded as conflicting with their parliamentary duties and have to declare further interests during the course of debates, and those declarations are duly recorded in Hansard. What is the public interest in concealing from the public the occasions when Ministers have recorded in writing to their Permanent Secretaries possible conflicts of interest and the action taken by them as a result? Is it not doubly important that Ministers who, unlike ordinary Members of either House, have genuine decision-taking powers should be required to disclose conflicts of interest that might affect their duties as Ministers?
The Lord Chancellor: My Lords, paragraph 115 of the ministerial code requires Ministers, on appointment to each new office, to provide their Permanent Secretaries with a full list in writing of their private interests. This is a new requirement, introduced for the first time in July 2001. These declarations can be of an extremely personal nature—for example, providing details of an individual's mortgage arrangements, bank account details and so

629
on. If there is no conflict, why should that confidential matter be disclosed in relation to the Minister? The ombudsman is able to look at the relationship between the Permanent Secretary and the Minister in that regard, so he or she can check that there has been fair play. All that has happened is that a notice has been served on the ombudsman making it impossible for her to make public what is disclosed to her. That seems to be the appropriate way of ensuring proper disclosure and proper protection for the Minister.
The Earl of Northesk: My Lords, can the noble and learned Lord confirm that the Parliamentary Ombudsman, in her own words, had no choice but to discontinue her investigations into this matter and others because of a lack of co-operation? Where is the Government's much vaunted transparency and accountability given this shoddy state of affairs?
The Lord Chancellor: My Lords, I can confirm that that is what she said. The effect of the certificates issued was simply to keep confidential private information about Ministers that was not required to be published in any other context—for example, in the register of Members' interests. That material was disclosed to the ombudsman and she was able to make such comment as she thought fit without disclosing the contents of that information.
Baroness Wilcox: My Lords, can the Minister tell us when the Government intend to revise the ministerial code, especially in the wake of informed criticisms from distinguished, recent, past Ministers from his own Benches in another place?
The Lord Chancellor: My Lords, I refer to the amendments introduced immediately after the last election in 2001. They refer to a heavy requirement on Ministers to provide their Permanent Secretaries with a full list in writing of their private interests. I do not believe that any amendment is required to that.
Earl Russell: My Lords, is it an accurate summary of the Minister's first Answer referring to the ombudsman that it has been disclosed; that it has been disclosed and that it has been disclosed? Is that not the sort of procedure that whets the appetite of any professional journalist?
The Lord Chancellor: My Lords, it would not be an accurate account of my first Answer. The right balance to strike is proper confidentiality, but making sure that there is proper monitoring of the processes. That is what the arrangements allow for.
Lord Peyton of Yeovil: My Lords, not having any prospect myself of ever becoming a Minister again, perhaps I may ask the noble and learned Lord if he would not deplore the tendency to sew suspicion and
630
to make it obvious that Ministers are mistrusted? One of the problems in our country is that we have destroyed, or are on the way to destroying, trust.
The Lord Chancellor: My Lords, I join with the House in expressing our deep great regret that the noble Lord, Lord Peyton, will never be a Minister again, which is a great loss to the nation. As far as the second matter is concerned, the greater the trust in Ministers and other politicians the better for the nation.

Female Genital Mutilation Bill
Brought from the Commons; read a first time, and ordered to be printed.
Household Waste Recycling Bill
Brought from the Commons; read a first time, and ordered to be printed.
Ragwort Control Bill
Brought from the Commons; read a first time, and ordered to be printed.

Constitutional Reform
3.12 p.m.
The Lord Chancellor: My Lords, with the leave of the House, I should like to make a Statement on constitutional reform. We all recognise the importance of our judiciary and our legal system to the security and confidence of our communities. They deal with crime, anti-social behaviour, family and civil disputes and through the tribunal system a whole range of subjects that affect daily lives.
We currently have judges of complete independence, probity, and very high ability. They are admired the world over. We need to build on that to ensure that our judges and our legal system are able to meet the challenges of the 21st century.
They must continue to be independent—of the executive, and the legislature. They must be able to connect with, and reflect our society, and they must be of the highest quality. We must recognise that improvements should occur when confidence is high.
Currently we have a system where all the judiciary—and I include in that magistrates, and tribunal members—are appointed mainly by, or on the recommendation of, one Cabinet Minister, where until the 12th June that Cabinet Minister also sat as a judge in the highest court in the land, and where before someone becomes a judge in our highest court of appeal, he is first made a member of the legislature; namely, this House. The efforts of my predecessors, particularly my noble and learned friend Lord Irvine of Lairg, have ensured that quality and probity have been maintained. But now we need arrangements which embed existing independence in a way which

631
does not depend on one Minister, and which ensures that we have not just a quality judiciary, not just an independent judiciary, but also a diverse one that reflects our community. There has never been a woman appointed to sit in our final court of appeal; there has never been a black or minority ethnic judge appointed to the High Court in England and Wales.
We must implement change in a way that carries the confidence of the community, including the legal and judicial community. That means we must consult widely and fully before deciding the detail of our changes.
Today, I am publishing three consultation papers, the first on a supreme court for the United Kingdom, the second on an independent judicial appointments commission for England and Wales, and the third on the future of QCs.
I will deal first with the proposals on a new supreme court. We propose that the Appellate Committee of the House of Lords will cease to exist as the United Kingdom's highest court of appeal, and that the present Lords of Appeal in Ordinary instead form a new separate supreme court. While they are members of that court, they will not sit and vote in the House. The Government propose to transfer the whole of the present jurisdiction of the Appellate Committee to the new supreme court.
The time has come to take the final court of appeal out of the legislature.
The Government also propose, subject to consultation, to transfer from the Judicial Committee of the Privy Council to the new court their present jurisdiction over devolution issues. This will enable us to restore a single apex to the United Kingdom's judicial systems. The Judicial Committee of the Privy Council will, however, remain in being to continue its work as the final court of appeal for a number of Commonwealth and Crown Dependency jurisdictions.
This will be a new United Kingdom court. It will stand in exactly the same relationship to the courts in Scotland, Northern Ireland and England and Wales as the Appellate Committee of this House does now. The independence of the three judicial jurisdictions will be totally respected. Arrangements will be made, as now, to secure appropriate representation for Scottish and Northern Irish judges.
The Government also propose to establish an independent judicial appointments commission for England and Wales to recommend candidates for appointment as judges. At present, judges are effectively selected by the Lord Chancellor. It is unsustainable for a Minister to continue to select judges in this way. The process of selection of judges for appointment in England and Wales must be demonstrably impartial and independent, as it now is in Scotland and will be in Northern Ireland.
Appointments will continue to be made solely on merit. But in addition, a judicial appointments commission will insulate more the appointment of judges from politicians and will assist in opening up appointments to some of the groups of lawyers which
632
are under-represented in the judiciary at the moment, including women, ethnic minorities and, at the higher levels, non-barristers.
The Government propose, subject to consultation, that the new independent judicial appointments commission would make recommendations to the Secretary of State. This model would significantly curtail ministerial involvement by placing the process of selecting candidates in the hands of the commission. However, the Secretary of State would still remain ultimately accountable to Parliament for the actual appointment. This model would therefore preserve the constitutional convention that Her Majesty the Queen acts on the advice of her Ministers.
The Government propose that the commission has a balance of judicial representatives, legally qualified members and lay members. We will seek views on who should chair the commission.
It is proposed that these members are appointed by a separate appointing body. That body would not include Ministers, but would be chaired by a senior civil servant, supported by a senior judge and a senior public figure entirely independent of the judiciary or the executive. Appointments to the commission would be made under "Nolan" principles, further ensuring the commission's independence from Ministers.
The Secretary of State for Constitutional Affairs will remain, after abolition of the post of Lord Chancellor, responsible for ensuring the independence of the judiciary in England and Wales within Cabinet, and consideration should be given to whether that responsibility should be embedded in legislation.
The third of the papers published today is the Government's consultation on the future of the rank of Queen's Counsel, which designates members of the Bar and a small number of solicitors as "senior advocates". The critical issue on QCs is whether the public is best served by the continuation of that rank. If it is, then how should the system be changed?
Last year the Government's wider consultation about the market for legal services aimed to find out how Silk was actually used, and whether users were concerned about market distortions. The results, published in May, show that there is indeed some general support for Silk, but many concerns about how effective a guide it is to quality in advocacy. That is why the Government are now publishing a wide-ranging paper that canvasses all the options from improving the current Silk system to abolishing it completely and leaving it to the legal profession how customers are best informed about the quality of services.
Judicial appointments in England and Wales; a Supreme Court; and the future of QCs are three vital issues which require detailed consideration and consultation. In reaching our conclusions we are determined to ensure that we enhance the transparency of our legal system, increase public confidence and bolster the independence of the judiciary from both the executive and the legislature. In this way we create a modern legal system which

633
builds on its current independence and quality, ensuring a better justice system serving the public. I commend the papers to the House.
3.19 p.m.
Lord Strathclyde: My Lords, I am sure I speak for the whole House when I say how grateful we are to the noble and learned Lord the Lord Chancellor for making this Statement this afternoon. The fact that it comes more than a month after the Prime Minister announced the abolition of the office of Lord Chancellor and that it is being made by the noble and learned Lord as Lord Chancellor tells us all we need to know about how carefully it was all thought through.
In replying to the Liaison Committee in another place, the Prime Minister was unable to point to any consultation at all with Cabinet colleagues, the senior judiciary or the legal profession. It is not a pretty way to do government, and now we are faced with the prospect of trying to put the pieces back together again. These consultation papers will no doubt help, but does the noble and learned Lord see that they should have preceded, not run after, announcements of policy? The noble and learned Lord has suggested in his many press interviews today that there may be urgent legislation. Can he now say how he will advance to that point, for these papers are riddled with unanswered questions? I counted 72 in all. The consultation only closes in November. Will there then be a White Paper, bringing together the separate strands? Can there really be properly thought-out legislation in time for the next Session?
The Government like to say that current arrangements are outdated. I am frankly more interested in whether they work, and whether what we put in their place will be better. Modernisation has become a great mantra for this Government, but I wonder whether it is enough any more to say that something is old to prove the case that it is bad. Our constitution is not bad because it is old; it has become old because it is good and has stood the test of time.
We on this side of the House do not oppose thought of reform. But the onus is on the noble and learned Lord to say why present arrangements must so urgently be changed. Can he tell us the problem that he is trying to solve? If it is a question of the independence of the present Law Lords, can he say in what respects they are not now independent? Is there some instance of political interference or connivance with the Lords of Appeal that he knows about and the rest of us do not? If so, he has a duty to lay that evidence before Parliament. If the issue is the fact that the noble and learned Lord the Lord Chancellor is entitled to sit as Lord of Appeal, could not that be dealt with, as the noble and learned Lord, Lord Lloyd of Berwick, said on 18th June, by saying that in future he should not sit? Would that not enable things to continue without the immense upheaval now proposed by the Government?
Today there are two key constitutional issues: first, the establishment of a supreme court outside Parliament and, secondly, the creation of a new
634
appointments commission to appoint judges. On a supreme court, what is the rationale for stopping the Privy Council arbitrating on disputes on the devolution settlement when the Judicial Committee of the Privy Council is, in any case, to continue? Will the noble and learned Lord confirm that if the change were not made, the role of the new court would be exactly the same as that of the present one?
Will the noble and learned Lord also clarify the position on the place of Law Lords in this House? This House, I believe, much values the presence of noble and learned Lords. If Lords of Appeal are removed, will they still come here on retirement? Does he have a view on that and, if they do not come here then, as of right, who will determine who has merited a peerage in the conduct of their judicial office? Will that be under the authority of the Prime Minister and, if so, what would that do for judicial independence? If there is no Lord Chancellor, can the noble and learned Lord say who will speak with authority in defence of the judiciary and protect its impartiality in this place and in the Cabinet?
The noble and learned Lord says that one reason for change is that he wants to have a more campaigning role on legal issues than the Lord Chancellor can. How does that square with policing the frontiers between politics and judicial impartiality?
One argument for change in the paper is that the Law Lords need new offices. They could be better housed, but that is not a conclusive argument for constitutional change. After all, who will supervise the building or adapting of new premises? Would it be the noble and learned Lord himself? One would not want another Holyrood—or even another Millennium Dome.
On a judicial appointments commission, will the noble and learned Lord say where the present system has so critically failed as to justify change? Has there been a serious problem with the appointments made under the authority of the noble and learned Lord, Lord Mackay of Clashfern, or the noble and learned Lord, Lord Irvine of Lairg? For the record, we see none. Could not any problems over the present system have been addressed with a little more openness?
The Statement and the consultation paper return time and again to the theme of diversity. It is a well trodden and worthy path, but there is no substitute for merit in appointment. The noble and learned Lord cannot pin his standard to that mast and then argue for alternatives to it. It is not a circle you can square. Surely no one would want to replace the phantom of political interference with preferment by political correctness. Will a lay chairman of a judicial appointments commission increase or reduce fears of appointment on grounds other than merit? And who will write the criteria for appointment?
The noble and learned Lord says the commission will have its independence assured by being appointed by a senior civil servant—in whose department, we do not know—a senior judge—not even a High Court judge—and a senior public figure, whatever that means. What have the senior Law Lords, the Lord

635
Chief Justice, the Master of the Rolls and the President of the Family Division done so wrong that they must be replaced by these people? If the case for change is to take things away from the Lord Chancellor to stop political interference, what is the case for putting the process under the veto power of a far more political Minister than a Lord Chancellor could ever be? It looks a little illogical—indeed, a little odd—and very much made up on the hoof.
The noble and learned Lord has announced a huge package of change, rushed out in a hurry and still only half thought through. It still raises far more questions than it answers. What we have now works well—nothing in these papers suggests it does not. We have a judiciary of high reputation that bears no taint of political interference. Debate on change may be necessary, but this is not exactly an issue where the public have risen up in anger, as they have about tuition fees, foundation hospitals or rising crime. Having started so badly, we should surely take what time is needed to get the answers right.
If the result of the most botched reshuffle in living memory were to be botched and hasty legal reform, we shall all regret it for very many years indeed.
3.27 p.m.
Lord Goodhart: My Lords, we on these Benches welcome these reforms in principle. That is hardly surprising, since they are reforms that we have advocated for many years. However clumsy and cackhanded the method by which they were introduced a few weeks ago, we must take the view that we support them.
We therefore welcome the proposal that a separate supreme court should be set up. It is a well known saying that justice must not only be done, it must be seen to be done. It seems equally true that Law Lords should not just be distinct in practice from the legislature but should be seen to be distinct. No other country in the world has this quite extraordinary historic muddle of a House of the legislature also nominally sitting as the supreme court of the land.
We welcome the proposal that the supreme court should have jurisdiction to decide devolution issues. That means that there will be a logical solution in which there will be a single court with final jurisdiction in the United Kingdom and a separate court—the Judicial Committee of the Privy Council—with jurisdiction on matters from some of the Commonwealth countries and the Crown dependencies.
We therefore agree that the members of the supreme court should not be active Members of your Lordships' House at the same time. So long as the present system of appointment of Members of your Lordships' House continues, we take the view that retired Justices of the Supreme Court should be eligible for, though not necessarily entitled to, appointment to your Lordships' House.
So far as the appointment of Members of the supreme court is concerned, we believe that the existence of a commission is essential. It will of course
636
have to be separate from that which was responsible for judicial appointments to the courts of England and Wales.
It is absurd to have a judicial appointments commission responsible for the appointment of judges to the lower courts, but not for appointments to the highest court of all, where crucial—and the most politically sensitive—decisions are taken. If Ministers are involved, it is impossible to exclude politicisation. It is widely believed that the government of Prime Minister Harold Wilson refused to recommend the noble and learned Lord, Lord Donaldson of Lymington, for appointment to the Court of Appeal because of trade union pressure as a result of his role in the national industrial relations court. That kind of problem could happen again.
The setting up of a separate supreme court will involve costs. There will be future running costs, which, if the judges of that court are given the facilities that they lack in your Lordships' House, may be high. Will the Government undertake to fund the transitional costs and the additional running costs, and not take them out of what is already a grossly over-stretched budget for the Court Service? Will the Government agree that, as a United Kingdom court, the supreme court should have a budget entirely separate from that of the lower courts in England and Wales?
We welcome the judicial appointments commission. We believe unquestionably that appointment on merit must remain paramount and that the present method of selection does not necessarily achieve that. It brings judges of high intelligence and integrity, but it is skewed towards successful advocates. The qualities of a good advocate are not necessarily the same as the qualities of a good judge. Therefore, the system is biased against solicitors, academic lawyers and women, because of the effect on women of their career breaks. We believe that the role of Ministers in appointments should be minimised, and that some of the Government's intended alternative proposals give Ministers too much discretion.
For example, a system by which the JAC, gave a Minister a list of candidates regarded as acceptable, and let the Minister choose any name from that list, would be wholly unacceptable, because there could be so many names to consider. A more limited version would be to give Ministers two or three names to choose from, as now happens with bishops. But even that is dubious. How can a Minister be in a position to second guess the JAC? If a Minister is to play any real role, it should be on the basis that they are given only one name to appoint or refuse.
We welcome the proposal that appointments to tribunals should be unified and brought under the JAC. We look forward with interest to the proposals for an alternative career path for some members of the judiciary to enable them to start taking limited—junior—appointments at a relatively young age, and proceed from that up the judicial ladder. We are not committed to that, but it is worth considering.

637
Regarding the factors which deter people from applying for or accepting appointments, we should also consider the abolition of the circuit system for High Court judges. That requires all High Court Judges to be based in London, but spend several months on circuit—that is very "family unfriendly". In my view that should be replaced by permanent branches of the High Court in major cities.
The balance of five judges, five lawyers and five lay members for the JAC is acceptable. I do not think that a lay majority is desirable, but there should be a larger lay involvement, or even equal numbers, as with the Scottish commission, provided that we have a judicial chairman. We welcome the proposal for the appointment of members of the JAC by an independent nominating body, and the use of Nolan principles for those appointments.
The last of the three papers concerns the future of Queen's Counsel. That is of the least constitutional importance, but it is clear that a government department should have no role in conferring that rank on members of an independent profession. We look forward to taking part in debates on the statutes that will give effect to these proposals. We should end up with a judiciary and a court system that are even better than those which we already have.
3.35 p.m.
The Lord Chancellor: My Lords, I thank the noble Lord, Lord Goodhart, for his support for these papers. I take it from the remarks of the noble Lord, Lord Strathclyde, although he was not clear whether he opposed the proposals—because he only talked about process—that he probably opposed them. I agree with him, first, about the quality of the current judiciary—there is no attack on that whatever—and, secondly, on the quality of appointments made by my noble and learned friend Lord Irvine and his immediate predecessors.
The noble Lord, Lord Strathclyde, asked why we have done this. First, in relation to the supreme court, it is because judges who are appointed to the final court of appeal should be judges, not legislators. They are people who decide what the law is, not who participate in the making of the law. If we are serious about the separation of powers, then we should have a system that reflects that. I am glad that I am in the company of my noble and learned friend Lord Bingham, who strongly supports such a view. I shall wait for the comments of noble Lords opposite regarding the detail of that proposal. I gather that the noble Lord, Lord Strathclyde, is against that.
Lord Strathclyde: My Lords, perhaps the noble and learned Lord is making a clever legal point, but I said—and I have checked the record—that we do not oppose the thought of reform, but is up to him to say why the present arrangements should be so utterly changed. Could he explain that?
The Lord Chancellor: My Lords, I am grateful; I had not realised that the noble Lord might support the
638
proposals for a supreme court. I apologise. Regarding the independent appointments commission, the noble Lord, Lord Strathclyde, made various points about the independence from politicians of the appointment of judges. The current system is that a Cabinet Minister makes the relevant recommendation in relation to all of those appointments. If the noble Lord is serious about removing politics from the appointment of judges, I would have thought that he would have backed the widely supported view that there should be an independent appointments commission—just as in Scotland, and just as has been introduced by legislation for Northern Ireland.
The noble Lord. Lord Strathclyde, asked why we were transferring devolution matters from the Privy Council to the Appellate Committee. He will recall that the reason that the matter went to the judicial committee of the Privy Council was that it was thought that it was wrong, when the issue was between the United Kingdom and the Scottish Parliament or the National Assembly for Wales, that the UK Parliament should be sitting in decision on such issues. If one creates a supreme court separate from Parliament, that issue goes.
The noble Lord's next question was about the place of the Law Lords. It is essential, if one has a supreme court, that the Law Lords, who are currently the highest court of appeal in this country, should not sit in this place so that one properly reflects the separation of powers. That is at the heart of the proposal for a supreme court. Will they come into this place as legislators afterwards? It is hard to imagine a more distinguished group who would not deserve to come in afterwards.
The noble Lord, Lord Strathclyde, asked who would defend the judges. That will be done by the Secretary of State for Constitutional Affairs. Regarding their independence, we specifically raised the question in the consultation paper whether or not that obligation to defend the independence of the judiciary should be reflected in statute. The noble Lord said that political correctness should not determine who becomes a judge. Correct. It should be quality and I see no distinction between, on the one hand, quality, and on the other a diverse Bench.
The noble Lord then asked what criteria were to be set for the appointment of judges. The basic criteria should be set by the Minister—that is made clear in the paper. The selection of individuals is a matter for the independent appointments commission.
The noble Lord's next question was about the body that will appoint the members of the appointments commission. They shall consist of a senior judge—a High Court judge or above—a senior civil servant in the Department for Constitutional Affairs, an independent person entirely separate from the executive and the judiciary, and an independent assessor to see that the system works.
We aim to get an independent system. I understood—again, I may have misunderstood it—that the noble Lord would require a Cabinet Minister

639
to continue to appoint the judges, rather than a system where a group of the sort that I have described appoints the appointing commission. The proposals that we make are for a much more transparent and independent process. I believe that we are doing the right things to build on the strength of our judiciary and legal system.
3.40 p.m.
Lord Renton: My Lords, bearing in mind that our judicial system has for generations been admired throughout the Commonwealth and indeed most of the world, will the Government in making the changes remember that, where change is not necessary, it is necessary not to change? In particular, will they bear in mind that having experienced judges—the Law Lords—able to contribute to the quality of our legislation is very important? If we lose the benefit of their advice on legislation, it may deteriorate.
The Lord Chancellor: My Lords, I again make it clear that we all hold the judges in the highest possible regard. I also believe that the time to make such change is when the system is strong and not under pressure from outside. It is because our judicial system is held in such high repute that we can now make changes from a position of strength, rather than, as has happened in other countries, being forced into change at the wrong time. I believe that a supreme court and an independent appointments commission for England and Wales is the right way forward.
So far as the second point is concerned, the House is filled with distinguished lawyers and distinguished retired judges. They can provide the contribution that this House needs, while keeping those who constitute the final court of appeal separate from the making of law, rather than their deciding what the law means.
Lord Lloyd of Berwick: My Lords, I have two short questions for the noble and learned Lord the Lord Chancellor, both on the new supreme court. I do not intend to address the other issues raised this afternoon.
The first question is simply this: did the Government consult the Law Lords, formally or even informally, before announcing on 12th June that they would cease to be an appellate committee of this House and become instead a new supreme court in some other building? If not, why were they not consulted? Who said, as has been said this afternoon, that they need new offices? Who said that they need new facilities? We have, however, always been well aware that there are those in this House who cast envious eyes on the offices—they are not very large—that we occupy.
Who said that we need a new supreme court, no longer called the Law Lords, in order that we can hold up our heads among other supreme courts throughout the world? The noble and learned Lord referred to the views of the noble and learned Lord, Lord Bingham. Those views were expressed in the course of an academic lecture. Perhaps the noble and learned Lord the Lord Chancellor will remind us whether the noble and learned Lord, Lord Bingham, purported to express the views of the other Law Lords. I suspect that
640
if the noble and learned Lord the Lord Chancellor inquires he will find that the answer, with one possible exception, is no.
That is my first question.
Noble Lords: Oh!
Lord Lloyd of Berwick: My Lords, my second question is even longer. Is the noble and learned Lord aware that the royal commission that sat under the noble Lord, Lord Wakeham, and reported in January 2000 received what it described as an "impressive range of evidence", including the evidence of my noble and learned friend Lord Slynn and my noble and learned friend Lord Nicholls? Is he aware that the royal commission concluded that the Law Lords should continue in their present role as full Members of this House, despite the theoretical objections based on the separation of powers that he has now advanced? What has happened since 2000 to suggest that the royal commission was in any way in error? If nothing, is there any point in having royal commissions making specific recommendations, as it did, which are simply given the go-by?
The Lord Chancellor: My Lords, I shall deal first with the first question. As my right honourable friend the Prime Minister made clear to the Liaison Committee, there was no consultation immediately before the announcement or in the build-up to the announcement on 12th June.
The noble and learned Lord answered the second part of his first question. Who says that there should be a supreme court and different premises? The noble and learned Lord, Lord Bingham, for one, and the noble and learned Lord, Lord Steyn, for another. The noble and learned Lord, Lord Lloyd of Berwick, is absolutely right: they do not speak—nor could they purport to speak—on behalf of all the Law Lords in relation to that, and I do not know the views of all the Law Lords.
As the noble and learned Lord will know, however, there is very strong support, including among the senior judiciary—I name the noble and learned Lord, Lord Bingham, who has made it clear publicly—that there should be a supreme court. Why? In my view, there should be one because it is clear that having the final court of appeal in the second Chamber of Parliament does not give effect clearly to the separation of powers. We are talking about a court deciding on the law, not making the law. If we talk the language of separation of powers, we should separate the powers. A member of the Commonwealth Secretariat said that we should be careful not to insist that developing countries adopt our system, because it does not adequately reflect the separation of powers.
I am aware of what the royal commission said. We have to make a judgment about the right way forward, but we believe that it is to give clear effect to the separation of powers in that respect.
Lord Simon of Glaisdale: My Lords, there is an almost universal apprehension that this momentous

641
constitutional matter has been mishandled. Indeed, the noble and learned Lord the Leader of the House very properly apologised for it—but an apology is virtually worthless unless it implies an undertaking to do better in future. Rather than pushing on heedlessly, is it too late to appoint a royal commission to consider this matter carefully and fully?
The Lord Chancellor: My Lords, the announcement on 12th June in substance said that we wished to move to a supreme court and have an independent appointments commission for the appointment of judges in England and Wales. That remains our policy. As was pointed out by the noble Lord, Lord Strathclyde, a detailed series of consultation papers deals with that. We want to hear people's views on the 72 questions that he very conscientiously counted in the consultation papers. The right course is for us to set clearly the policy outcomes to which we aspire, and then have full consultation on the detail of how we do it. That is the way in which we are proceeding.
Lord Carter: My Lords, do any of the proposed reforms described by my noble and learned friend in his Statement have any link to or effect on his role as Speaker of the House of Lords?
The Lord Chancellor: My Lords, none of them has any impact on that at all. It is a matter for this House to determine how the Lord Chancellor discharges that particular function.
Baroness Carnegy of Lour: My Lords, is it the case that the removal of the Lords of Appeal from the House of Lords cannot be achieved without amendment to the Act of Union of England and Scotland?
The Lord Chancellor: No, my Lords, it can be done without amendment to the Act of Union. The critical point in relation to the Act of Union is that no appeal from Scotland should go to an English court. Therefore, we make it clear in the consultation papers that the supreme court must be a United Kingdom court, not an English court.
Earl Russell: My Lords, does the noble and learned Lord agree that the placing of the supreme court in Parliament better fits the circumstances of 1295 than of 1995, and that a good deal of water has flowed under the bridge since then? Perhaps I may join in the general welcome that has been extended from these Benches, in particular to what he has said about diversity. Does he agree that the noble Lord, Lord Strathclyde, in setting diversity and merit in opposition, is offending against the law of averages? Perhaps I may ask him in that context whether he will study the report from the Young Solicitors Group, which was mentioned briefly in The Times last Monday. It drew attention to the difficulties faced by married women returning to the profession because of
642
family-unfriendly employment practices. Putting that right is a necessary part of sustaining the pool of future qualified judges.
The Lord Chancellor: My Lords, I am grateful to the noble Earl for his support. I always agree with his historical analyses, because he is much cleverer than me. I do not know which laws the noble Lord, Lord Strathclyde, was offending in his remarks, because it was difficult to determine what he was opposing and what he was not. I did not take him to be opposing greater diversity so long as merit was also the touchstone of appointment. I see that he is nodding at that. It might have been that the noble Earl was being unfair to noble Lord, Lord Strathclyde.
In conclusion, I was aware of the newspaper report about young solicitors and what happens during the course of their careers. A critical point that has often been made is that people entering the profession have become much more diverse as time has gone on. It is frequently asked why one does not merely allow that to filter through to the time when appointments are made. If one looks at what happens to someone during their professional life, the attrition rate for women, for example, is much higher than it is for men. If one were to approach it just on that basis, one would not see that diversity. We should also remember that appointments need at all times to be made on merit, as perhaps we would all desire.
Lord Borrie: My Lords, my noble and learned friend has implied just now, as he has done on previous occasions, that as individuals set out on their professional life in their 20s, there is a good proportion of women and ethnic minorities, but that they do not survive the 20 or 30 years necessary to get the experience that is traditionally thought to be desirable for appointment as a judge. I understand that certain solutions are suggested in the paper that my noble and learned friend has produced today, including the alternative career path. Perhaps I may ask him whether it is not possible for my noble and learned friend himself to persuade the professional bodies to ensure that solicitors' practices and chambers at the Bar adopt the kind of approach that the noble Earl, Lord Russell, has described—namely, more family-friendly policies—so that throughout the normal professional experience of solicitors and barristers, women and ethnic minorities do not fall by the wayside, as has been happening only too frequently.
In so far as a new career path is introduced, and people are appointed as judges at a relatively young age on a part-time or temporary basis, would the noble and learned Lord the Lord Chancellor ensure that the professions get rid of whatever rules and conventions now exist that say that once one becomes a judge, one may not return to private practice?
The Lord Chancellor: My Lords, I agree with my noble friend that whatever the level of diversity at the entry point into the profession, it decreases as one goes on. It is important that one tries to remedy that as much as possible in the appointment of judges. I agree

643
with my noble friend that it would he helpful if professional organisations were to promote greater diversity within the profession, but that is matter for the individual professions rather than for the Government. We set out the legal framework. How the professions then organise themselves is primarily a matter for them.
Lord Alexander of Weedon: My Lords, I return to the question of judicial independence. As the noble and learned Lord the Lord Chancellor has rightly stressed, the crucial, ultimate step will be the appointment of the judges. That will be made by the Minister. That Minister is currently the noble and learned Lord the Lord Chancellor. That Minister therefore has a recognised legal qualification that makes him competent to take those decisions. Will it be a requirement that the appointing Minister will be similarly legally qualified?
The Lord Chancellor: My Lords, That is not stated in the consultation papers one way or the other. The proposal that, subject to consultation, is most backed in the consultation paper about the independent appointments commission is that it should put one name to the Minister to select or reject. On the question of whether the Minister needs to be a lawyer or not in defending judicial independence, when that is his role, Ministers make a whole range of appointments. not just in the legal field, but in other fields as well. They do not normally need to have the qualification relevant to that particular appointment, but I believe that they do need to have enough stature to deal with the matter and a proper understanding of the constitutional position. That is why the paper is right to say that that should be enshrined in statute. It does not follow that the holder of the role of Secretary of State for Constitutional Affairs needs to be a lawyer.
The Lord Bishop of Chester: My Lords, perhaps I may risk a remark from these Benches. I am conscious of a remark by St Paul, who began one of his passages with, "I speak as a fool". One wishes to support the general principles which underlie the proposals. There is also a nagging sense, not only on the Conservative Benches, that things may be lost without us quite realising it. It may well be that the fact that the present arrangements have existed for so long has contributed to the particular quality of our democracy and the character of Parliament. Parliament has been enhanced precisely by the presence of a high judiciary.
I wonder whether politics will enter that process whether we like it or not. One has seen it in America in appointments to the Supreme Court. One is anxious that the Secretary of State for Constitutional Affairs might end up a more political figure than the Lord Chancellor has been. The Lord Chancellor has been protected from that precisely because of his primarily judicial role and by the fact that he has been able to insist on sitting as a judge. How can we ensure that the long arm of politics will not find its way into that process and influence appointments of those who
644
perhaps end up appointing those who appoint the judges? What guarantees are there? That is the concern that was expressed by the Leader of the Opposition.
The Lord Chancellor: My Lords, I agree with the right reverend Prelate that we should be sure that we do not lose the good bits of the current system. One of the good bits is the fact that judicial independence has been assured. That has in part been because of the role of the Lord Chancellor in defending judicial independence. That is why we have proposed specifically that the responsibility for ensuring judicial independence should be reflected in statute. That way, what must be defended and who it is defended by are clear. Having said that, the position is strengthened. The role of the independent judiciary, which has behaved with complete independence in the past, is assured by a system that insulates them from politicians in a more effective way than is the position at the moment.
Baroness Howe of Idlicote: My Lords, while I welcome many of the changes, however rushed or otherwise the appointments made in the reshuffle may have been, there is no doubt whatsoever that there have been plenty of reports and plenty of ideas circulating for very many years. Not least, two committees of Justice, over a period of 10 years, have recommended just that sort of approach. I am sure that many of us welcome the proposals for diversity, in particular, and the flexibility of some of the arrangements that are suggested for the appointments commission in choosing new judges. One particular issue worries me. I share the concerns expressed about the fact that the Law Lords will not sit in this House. I do not think that I heard an answer to a question that was asked. If they must be outside when the supreme court is sitting, how are they going to get back in, because we would need them all? Is it to be via the House of Lords Appointments Commission. in the same way as most other Members of the House of Lords will be proposed?
The Lord Chancellor: My Lords, I am grateful to the noble Baroness. She was involved with the Stevens commission, which dealt with this very issue. It recommended that there should be a form of appointments commission.
As regards Law Lords sitting in this House, the position will be different for those who are currently Law Lords and who will form the initial members of the supreme court. They will not be able to sit and vote here while they are members of the supreme court. Once they cease to be members of the supreme court, they can come back. In relation to the subsequent appointments, members of the supreme court will not be appointed to the House of Lords but, as I made clear, it is hard to imagine a group which would be more suited to coming into the House.
I should at the outset have disclosed a possible interest. I was a Queen's Counsel and my wife is a Queen's Counsel. I apologise for not making that clear at the outset.

Criminal Justice Bill
4.1 p.m.
The Attorney-General (Lord Goldsmith): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Goldsmith.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Carter) in the Chair.]
On Question, Whether Clause 18 shall stand part of the Bill?
Lord Dholakia: We had considerable discussion on this matter during the second day of Committee. I shall not detain the House much longer. Clause 18 amends Section 1 of the Bail (Amendment) Act 1993, so that the prosecution's right of appeal to the Crown Court against a decision by magistrates is extended to cover all imprisonable offences. This is about bail provision and not about sentencing.
Clause 18 would extend to all imprisonable offences the prosecution's right of appeal to the Crown Court against a magistrate's decision to grant bail. We were impressed by the representation made to us by the London Criminal Court Solicitors' Association, as mentioned during discussion on this clause during the second day of the debate.
In any application for bail, the prosecution puts forward objections to bail and the reasons for those objections before the defence makes its application. The prosecution already has rights of appeal against bail granted in the more serious cases. If the Government want to restrict bail further, they should produce evidence that the public is put at avoidable risk by the operation of the law as it now stands. We are aware of no such evidence produced by the Government.
This clause is likely to clog our courts even further. More importantly, it is also likely to clog our prisons with people who could usefully spend time on bail rather than on remand in custody. Evidence on the Continent suggests that wherever you make sparing use of remand provision, it helps in terms of the prison population. Taking almost every imprisonable offence and giving the right to the Crown prosecutor for refusal of bail by the Crown Court will only add to the problem of our prison population.
Lord Goldsmith: I am grateful to the noble Lord, Lord Dholakia, for raising those points. We discussed the matter in large measure on the previous day in Committee when an amendment was put. I would therefore prefer the Committee to read what I said on that occasion at cols. 120 to 121 of the Official Report for 7th July and I shall simply summarise the position. The noble Lord, Lord Dholakia, asked what is the evidence that it is necessary to make a change. The statistics demonstrate that as many as one in four
646
defendants granted bail go on to commit an offence of which they are convicted during the period of bail. Secondly, as many as one in eight of those granted bail fail to attend for the trial, which causes great inconvenience to witnesses and victims who have turned up, as well as cost and delay in the courts. In the Government's view, the evidence exists that it is necessary to look carefully at bail and when it is granted in order to protect the public.
However, as I said, while the intention of the clause is that there should be a right of appeal, it will be exercised sparingly. Again, I refer to what I said on the previous occasion, drawing attention to the fact that the Crown Prosecution Service, for which I have ministerial responsibility, recognises that the right to take a case to appeal should be used judiciously and responsibly. That is set out in the internal guidance, which looks principally to see whether the public need protecting from the defendant in deciding whether or not to make an appeal against bail. It is not for the Crown Prosecution Service to decide whether bail should or should not be granted. That will be for the court to decide. That is the purpose of the appeal. I hope therefore that that is of some reassurance to the noble Lord.
Lord Dholakia: I am grateful to the Minister. We decided to object to the Question that the clause shall stand part simply because on the previous day in Committee we supported an amendment relating to serious cases attracting two years' or more imprisonment. Here we have a blanket authority for Crown prosecutors. However, in the light of what the Minister said, I withdraw my objection.
Clause 18 agreed to.
Clause 19 [Drug users: restriction on bail]:
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 71:
Page 14, line 17, leave out "not" and insert "only"
The noble Lord said: In moving Amendment No 71, I shall speak also to Amendment No. 72. The two amendments relate to Clause 19, which concerns the restrictions on bail for drug users. Specifically, subsection (4) deals with supplementary provisions about bail and makes special exceptions applicable to drug users. This amendment ties in with our Amendment No. 70A to Clause 18, which we discussed at our previous meeting in Committee. It sought to question the Government's proposal to reverse the presumption to bail except for serious crimes. Amendment No. 71 again highlights the change of emphasis underlying this Bill with a shift towards presuming against bail.
In our view, the emphasis of subsection (4), new Section 6A, is entirely negative—half empty as opposed to half full. This is the wrong approach and may well have human rights implications. The onus should not be on the defendant to satisfy the court that he has a right to bail. It is rather for the prosecution to

647
make out a case for refusing bail. The amendment proposed is to replace "not" with "only" and "unless" with "if" in the sentence,
"a defendant who falls within paragraph 6B below may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence while on bail".
Amended, the sentence would read,
"a defendant who falls within paragraph 6B below may only be granted bail if the court is satisfied"
and so forth. While the amendment is not designed to, nor will it, bring about any fundamental change to the judicial system of our country, this alteration, perhaps seemingly technical, will help to ensure that the justice system remains balanced and fair. I beg to move.
Baroness Walmsley: At the end of discussion on these amendments in another place, the conclusion of the parliamentary draftsman was that they made no difference to the meaning of the provision in the Bill. We will therefore not be supporting them.
Lord Goldsmith: The noble Baroness, Lady Walmsley, makes my point for me. It is the view of parliamentary counsel that there is no difference between saying that a defendant may not be granted "unless" and saying a defendant may only be granted "if". As it does not seem to us that this makes any difference, I, too, resist this amendment I invite the noble Lord to withdraw it.
Lord Hodgson of Astley Abbotts: The world of parliamentary draftsmanship is always a strange one. To replace "not" by "only" and "unless" by "if' seems to me to make quite a difference in the way the clause will be interpreted. As the noble Baroness says, this has been raised once before. As it is now on the record again, I beg to leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 72 not moved.]
On Question, Whether Clause 19 shall stand part of the Bill?
Baroness Walmsley: I oppose Clause 19, which is designed to provide a presumption against bail for alleged offenders shown to be drug abusers. This provision does not appear to follow from either the Law Commission report or the Auld report. The courts already have a great deal of discretion as regards bail. This clause goes against the spirit of the Bail Act, is unnecessary and may well be overturned by the courts. Also, during its discussion in another place, the drafting of the clause attracted considerable criticism. I shall explain why I believe it should not stand part of the Bill.
I accept that, as quoted in the Government's paper, Criminal Justice. The Way Ahead,
"drug-addicted defendants can be extremely prolific in their offending. Offenders using heroin or crack cocaine are estimated to commit property offences at twice the rate of offenders who do not use drugs".
648
I also accept the evidence of the deputy commissioner of the Metropolitan Police, who quoted figures that suggest that there is currently a very low level of voluntary uptake for treatment. He said:
"In the Hackney pilot of compulsory drug testing for everybody brought into the police station and charged, it is 62 per cent testing positive for opiates. Yet only seven per cent of those people agreed voluntarily to any form of drugs referral scheme after arrest".
The policy is supposed to he encouraging hard drug users to undergo treatment, not forcing them to do so. To use compulsion in the current climate of provision is both impractical and unfair as well as breaching the human rights of the defendant.
Let me deal with the practicalities. The Home Affairs Select Committee in another place said that whether Clause 19 will work in practice is dependent on two things: first, the ability to enforce the bail condition; and secondly the availability of treatment to which the bail condition relates. On the first point, the Association of Police Authorities has highlighted some potential problems. In some pilot areas, a "large percentage" of those who test positive for class A drugs do not comply with drug treatment orders,
"thus ending back in court for re-sentencing".
There must therefore be considerable doubt about the practicality of enforcing such conditions against drug users who consent to the bail condition but then fail to comply with the treatment.
On the second point, the committee was pleased to note that the provisions under Clause 19 will apply only in areas within which treatment is available. Therefore a person,
"could not be refused bail simply on the basis that he had refused treatment where there was not treatment available".
As the Minister conceded in evidence to the committee, there is not enough treatment available at the moment. The committee was informed that in one police area, there is an eight-month waiting list for detainees willing to submit to treatment. I wonder if the noble and learned Lord can tell me whether that situation has improved in the few weeks that have passed since that was said.
In the end, while the committee supported the proposal to impose a treatment condition on the hail of drug users, it said it is essential that sufficient resources are made available for the provision of treatment. To decide whether this clause is justified we need to look at how effective current treatment programmes are in reducing drug misuse and related criminal activity. We need to look also at the quality and availability of these programmes. Here I must declare an interest as a trustee of Adapt, a drug and alcohol treatment and rehabilitation charity.
A few weeks ago we had an Unstarred Question in your Lordships' House about drug treatment services. During that debate many noble Lords drew attention to the fact that there has been little or no increase in the number of drug rehabilitation and treatment beds in the past 10 years. This is despite the fact that all the research shows that residential drug treatment is the most effective kind. This takes the user away from the pushers on his own street corner and gives him a

649
chance to detox properly and to come to terms with the issues in his own life which led him into drug abuse in the first place. I say he, although I really mean he or she. Many drug addicts are women and there is a real issue about the lack of availability of good quality treatment services for women with dependent children.
Sadly, although the Government have increased the money available for drug treatment, there are two major problems. The first is that the money is going into administrative posts and bureaucracy in the drug action teams instead of into treatment services. The second is that the Government are playing the numbers game and setting targets for the number of people in treatment instead of the number of addicts that come off drugs and stay off drugs. In these circumstances, agencies will choose the cheaper community option so that they can spread the money further and hit the targets for the number of people receiving some sort of treatment. If they had a target for the number of people who actually got off drugs, the picture of how they spend the money would be very different. In this situation, it is unjust and unworkable to make it a condition of bail that a defendant accepts an assessment and treatment. He or she may have tried one of these ineffective programmes before and failed and be justifiably afraid of failing again. As was said about this issue in another place, drug treatment is a bit like dieting. One has to be ready to do it before starting out and one size does not fit all. Going through detox, treatment and rehab is a very difficult process and all drug users know it. All fear failure and failure can be painful and damaging. No wonder drugs experts fear that the imposition of such a condition of bail will be a negative rather than a positive move.
My second concern is to do with human rights. Liberty has been in touch with a number of your Lordships about this clause, telling us that it raises issues under Article 5 of the Human Rights Act 1998, on the right to liberty and security of person. It does not fit into one of the permitted exemptions under Article 5(c). Although detention of drug addicts is permitted under Article 5(e), Liberty disputes that this justification applies to a person detained pending trial. The presumption by the Government seems to be that drug users commit offences, therefore anyone who refuses treatment will be likely to commit offences while on bail and should therefore be refused bail. It is a principle of justice that every bail application should be considered on a case-by-case basis. The introduction of a presumption against bail in Clause 19 places the burden of establishing an entitlement to bail on the detained person rather than the state—guilty until proved innocent rather than the other way round.
The Law Commission considered this in its publication Bail And The Human Rights Act, which concluded that such a reverse burden could breach Article 5(3). Liberty also argues that Clause 19 may raise issues under Article 8 of the Human Rights Act, on the right to respect for privacy and family life. This clause places an obligation on a person who has not
650
been convicted of any offence to undertake drug treatment to avoid being remanded in custody. Liberty appreciates that the Government are concerned that there is a link between crime and drug use and that they are promoting drug rehabilitation. However, Liberty does not accept that applying a sanction that will involve the loss of freedom is an acceptable way of promoting such a policy. I agree.
4.15 p.m.
Lord Hylton: The noble Baroness, Lady Walmsley, has made out a very strong case. I trust that the Government will not just brush it aside. It is a pretty lamentable state of affairs when those who want to come off drugs may have to wait for up to eight months before they can obtain treatment. We all know that treatments for whatever kind of addiction—drugs or some other type—are unlikely to be successful in the long run unless the person being treated undergoes it voluntarily and has, or acquires, an intention to stick with the treatment and put it into practice after it has finished. The noble Baroness said that bail should be treated on a case-by-case basis. I entirely agree, and I hope that that point of view will secure a little more support from your Lordships.
Lord Maginnis of Drumglass: I had not intended to speak on this issue until I heard the previous two contributions. While I have tremendous sympathy for the objectives of the noble Baroness in seeking treatment facilities for drug offenders, I remind the Committee that drug users are among those with the highest rate of offending against elderly people. In my own constituency, two elderly people—one, an 87 year-old widow—were recently attacked physically by drug users in pursuit of money to finance their habit.
However lacking we are in treatment facilities, I believe it is wrong to use the human rights argument solely to defend the person who has infringed the law. We forget about the multitude of elderly and vulnerable people who are victims of drug users. They also have human rights, and those rights should be taken into consideration.
The question as to what makes a person a drug user concerns a different issue and one that can be addressed at a different time. But it is wrong to try to ensure that the provision relating to drug users who offend is such that they are not removed from society when it is apparent that they are a danger to society. Therefore, I support this part of the Bill and, if the Committee divides, I shall support the Government on this issue.
Lord Hylton: My noble friend may have probability on his side in relation to attacks by drug users on elderly people. However, I am surprised that he does not want to see bail decided on a case-by-case basis rather than being pre-empted by government legislation.
Lord Goldsmith: I believe that it is right to start by reminding the Committee that this clause amends the Bail Act 1976 to create not an irrebuttable requirement

651
but a presumption against court bail for an adult who is charged with an imprisonable offence, who has tested positive for a specified class A drug and who refuses to be assessed as to dependency upon or propensity to misuse such drugs or who, having under undergone such an assessment, refuses to undergo relevant follow-up action.
I say that that is a presumption because the clause is quite clear, whether in the formulation in which it stands or in the formulation in which the noble Lord, Lord Hodgson, would have it. It is for the court to be concerned with the case on a case-by-case basis but, in the context of this type of defendant, it must decide whether there is a significant risk of his committing an offence while on bail. If there no such significant risk, then the provisions will not apply. As I had cause to note on the previous day in Committee, it is entirely accepted within the human rights legislation that one good ground for refusing bail will be that there is a risk of re-offending while on bail.
The noble Baroness, Lady Walmsley, rightly said—I am grateful to her for this—that there is a demonstrated connection between drug abuse and offending. She cited one statistic; I shall cite another, from Home Office findings 148, which links the use of heroin and crack/cocaine with acquisitive crime. The use of heroin or crack/cocaine is associated with levels of offending which are nearly 10 times higher than those of non-drug-users. The reason is not hard to find: in many cases, it is acquisitive crime which funds the offenders' habit. While at liberty, in need of their drugs, such people will commit crime time and again in order to obtain those drugs. As the noble Lord, Lord Maginnis of Drumglass, said, the victims of those crimes may well include the vulnerable, the poor and, in particular, the elderly in our society, who may be most susceptible to attacks.
Notwithstanding that statistical strong link, if, in the case of a particular individual, there is no significant risk that he will re-offend, then the provisions do not apply. Otherwise, in the Government's view, it is legitimate to say that there should be a presumption against court bail for such a person.
In the Government's view, the provision has the additional benefit of helping to divert drug-misusing defendants into assessment and into whatever follow-up assistance or treatment is appropriate to help them to deal with their habit. I do not dissent from the view expressed by the noble Baroness and the noble Lord, Lord Hylton, that dealing with addiction is a difficult task. But, as I am sure they both agree, it is a very important task.
The Government are doing what they can to improve the availability of treatment. Perhaps I may identify what I am told were the average times reported in DAT treatment plans as of April 2003. They ranged, for example, from five weeks for in-patient detoxification to 4.1 weeks for residential rehabilitation. I can provide more details of that. I am afraid that I cannot answer specifically the question asked by the noble Baroness concerning whether the
652
figures have improved since my noble and learned friend gave evidence to the Select Committee. However, I shall write to her with such information as I can.
But, of course, the provision in the clause recognises that it would not be right to impose obligations relating to assessment and treatment in places where assessment and treatment are not available. That is made clear in subsection (6C), which provides for the new provisions to be introduced on a pilot basis by providing for the presumption against bail to apply in areas where the court has been notified that arrangements for conducting assessments and for providing suitable follow-up, which may include medical intervention, have been made, and have not been withdrawn, in the area in which the person would reside if granted bail. Therefore, there are pilot opportunities for these new provisions to be operated.
I should add a word about new subsection (6D). It imposes an obligation on the court to attach a condition of bail, if granted, to the bail of a person who is aged 18 or over, who has tested positive for a specified class A drug and who is charged with either possession or possession with intent to supply in relation to a specified class A drug, or where the court is satisfied that use of a class A drug caused or contributed to the offence or that the offence was motivated by the intended use of such a drug. The condition to be attached to bail in these circumstances is that the person must undergo an assessment of his or her dependency on, or propensity to misuse, any specified class A drug, and must participate in any relevant follow-up proposed to him or her, consequent on that assessment.
Having regard to what the noble Baroness said about different forms of treatment, treatment will be assessed by those who understand the nature of the particular condition and what is appropriate for the particular offender. That is what is intended by the clause.
The need to balance the protection of society against the risk of re-offending with appropriate incentives for treatment for those who can benefit from it justifies the provisions in Clause 19.
4.30 p.m.
Baroness Walmsley: I am most grateful to the noble Lord, Lord Hylton, for his support, and I am very much in agreement with the noble Lord, Lord Maginnis of Drumglass, about the fact that everybody's human rights have to be respected. It is because of concern for the old person who may be mugged for her purse that I want drug treatment to be effective.
I am grateful to the Minister for his comments. However, an habitual shoplifter is also liable to commit an offence while on bail. There is no presumption in that case. Two wrongs do not make a right. Infringing the human rights of a defendant to try to put something right is not the solution. I do not think that I have had full answers to my questions on the Human Rights Act. Perhaps the Minister will be kind enough to write to me.

653
The clause is not the solution to the problem, which is to provide good quality treatment, and to leave the decisions on bail to the court. The Minister said that professional assessors will make an assessment and recommend the treatment to be given. But, in the current situation, if professional assessors are to say what sort of treatment is to be given, the clause will not be implemented almost anywhere in the country, as the services are simply not there.
If the assurance given by the noble and learned Lord is to be believed, perhaps I am wasting my time in suggesting that the clause should not stand part, as it cannot operate based on that assurance.
Clause 19 agreed to.
Clause 20 [Supplementary amendments to the Bail Act 1976]:
Lord Goldsmith Lord Goldsmith moved Amendment No. 73:
Page 15, line 39, at beginning insert "Schedule or paragraph 6A does not apply by virtue of paragraph 6C of this Part of this"
The noble and learned Lord said: This is simply a technical amendment to Clause 20. I beg to move.
Lord Mayhew of Twysden: In considering Amendment No. 73, the word "simply" is not the word that most immediately comes to mind. Perhaps in a triumph of hope over expectation, I touchingly hold on to the belief that one day Home Office legislation may clearly reveal what it means and what it seeks to achieve.
Legislation ought not to set exercises that would be appropriate for an examination for senior wranglers. It should provide a clear guide for what the public will experience and for those who advise them—never more so than when the liberty of the citizen is at stake.
In respect of Amendment No. 73, amending Clause 20(1), I am not so much disappointed as dismayed. It is worth reading the clause with the amendment inserted. Line 24 on page 15 states:
"In Part 1 of Schedule 1 to the 1976 Act … the existing text of paragraph 2 is to be sub-paragraph (1) of that paragraph, and after that sub-paragraph (as so re-numbered) there is inserted—
'(2) Where the defendant falls within one or more of paragraphs 2A, 6 and 6B of this Part of this Schedule, this paragraph shall not apply unless"—
I move to paragraph (c)—
"where the defendant falls within paragraph 6B, the court is satisfied as mentioned in paragraph 6A of this Part of this Schedule or paragraph 6A does not apply by virtue of paragraph 6C of this Part of this'".
That seems to represent legislation by reference to earlier statutes at its most obnoxious. It is small wonder that the Explanatory Notes offer no guide. The author has obviously been defeated and preferred to ignore this clause, even before amendment was sought.
I mention this with a topical allusion. Probably, quite prominent among people who will be affected by legislation for which such amendment is sought will be those who are alleged to have fallen foul of one or more aspects of immigration law. It is at this stage that we note that the 30 year-old grant to the Immigration
654
Advisory Service is being removed, so that it will no longer be able to provide thus funded legal advice and assistance on this sort of matter.
I urge the noble and learned Lord the Attorney-General, who was not responsible for this amendment, to take it away and look at it again before Report to see whether we cannot have recourse to something called the English language in seeking to put forward to the public, and those who advise them, what the legislation actually means and what it is meant to do.
Lord Hodgson of Astley Abbotts: Much of what I would have said has been more ably said by my noble and learned friend Lord Mayhew of Twysden. I am not a lawyer, but the real issue is that even if one were to get out the books to try to put it together, the clause would remain unintelligible. It is incredibly difficult to put it together. That is not a party political point, but a practical point on the nature of our law, as my noble friend said. When talking of technical, simple amendments, we must find a way of not cluttering it up with previous legislation that makes it unintelligible to those with reasonable intelligence who take the time and trouble to try to understand it.
I accept what the noble and learned Lord said about the technicality of the amendment, but I hope that he will follow my noble and learned friend's advice.
Lord Elton: I wonder whether the combined advice of my noble and noble and learned friends is strong enough. If the noble and learned Lord merely takes the amendment away, he will only take away the small piece of confusion that is added to the already considerable piece of confusion that represents the clause.
Unless we are given an undertaking that the noble and learned Lord will address his mind to simplifying the whole clause, it is a matter that we could decide on the question whether the clause should stand part of the Bill. We could then be certain that the clause would be properly drafted. That would be a practical means of stating the law as it is to be understood.
Lord Maginnis of Drumglass: The theory behind the clause is that there is a punitive or rehabilitative aspect to it. Hence, there will be fewer prosecutions as more offences will be deemed suitable for caution.
However, I do not believe that it will work. I have no legal expertise, but common sense suggests that it cannot possibly work. There are two weaknesses. The First is that it will encourage people to admit to offences to get quick disposal. Secondly, it will result in more cases. There must be a mechanism for determining when there is a breach of conditions, especially if the matter is contested. Therefore, I believe that more unnecessary work will be imposed on the courts if the clause is accepted. For that reason, I support what previous contributors to the debate have said.
Lord Renton: Like my noble friends, I was a bit puzzled by the clause and the amendment. In the hope

655
of finding some help in understanding the matter, I turned to the Explanatory Notes. Extraordinarily, although there are notes on Clause 19, Clauses 20 and 21 are left out. I do not know why. It is very unhelpful.
Lord Goldsmith: I obviously take very much to heart the observations that have been made, starting with those of the noble and learned Lord, Lord Mayhew of Twysden. The clause amends the Bail Act 1976. Whenever legislation amends previous legislation, one starts with the difficulty of having to have that other legislation in mind when looking at the amendment. What is more, an amendment that adds a different slant, exception or qualification to previous legislation necessarily has to do it in a way that was not in the mind of the draftsperson of the original Act. That is an added complication.
I shall spend a moment explaining what the clause does and what the amendment, which I foolishly described as simple, is intended to achieve. Three special provisions are introduced by earlier clauses of the Bill. Clause 14 provides a new special presumption in the case of people who commit offences on bail. I parenthetically draw the attention of the noble Baroness, Lady Walmsley, to that in the light of her observations on Clause 19 about us not dealing with habitual offenders. That is to be paragraph 2A of Schedule 1 to the Bail Act 1976. The second special provision is in Clause 15, which introduces a new paragraph 6 to part 1 of Schedule 1 to the 1976 Act, which is a special presumption in relation to those who abscond while on hail. The third special provision is in Clause 19, which adds paragraphs 6A, 6B and 6C to the same part of the same schedule in relation to drug users. The general provisions in part 1 of Schedule I to the 1976 Act are therefore subject to the three special regimes—that in paragraph 2A for those who commit offences on bail; that in paragraph 6 for those who abscond on bail; and that in paragraph 6B for offenders with a particular connection with a drug offence and who have been offered assessment or treatment and declined it.
Thus far, viewed in the context of the whole, that is not a difficult provision. I detect that it may be useful to provide a version of the relevant part of the schedule as it would appear after the amendments so that the Committee can see how it all fits together. I am happy to undertake to do so. That information is sometimes inserted as a schedule to the Act—a so-called Keeling schedule—but I reserve judgment on whether that is necessary in this case. Doing that every time there is an amendment to a previous Act adds to the volume of legislation. I am certainly prepared to ask that that should be considered and I shall undertake to provide the draft.
The clause makes a special case—in sub-paragraph (2)(c) to be inserted into the schedule—in relation to people who fall within paragraph 6B, but fails to take account, without the simple amendment that I have moved, of the fact that people may not fall within paragraph 6B because, according to paragraph 6C,
656
inserted by Clause 19, there is not a relevant scheme within their area, so they should not be subjected to that scheme.
Noble Lords may say that it has taken me a very long time to explain that—assuming I have explained it accurately—and that that is a defect in the drafting. However, the clause is supplementary to the substantive clauses that have gone before. To answer the noble Lord, Lord Renton, the fact that it is supplementary to—perhaps almost consequential on—the changes made by the preceding clauses results in there being no separate explanatory note for it. I hope that what I have said may serve as some sort of supplemental explanatory note for those provisions.
If any of that is wrong, I undertake to write to noble Lords to say so. I shall take away the question of producing a schedule and see how noble Lords feel about it at that stage, but for the moment 1 hope that I may be able to press my amendment.
4.45 p.m.
Lord Elton: The noble and learned Lord's penultimate sentence gave the game away. Saying, "If anything I have said is wrong," followed by a long pause to look round the Chamber, to the far corner and round noble Lords' faces, suggests that there is a mote of doubt in his mind about whether he has got it right even with the brief in his hand.
Lord Goldsmith: I am a very modest man. I simply developed my response without assistance from the Box. There is therefore always a chance that I am wrong.
On Question, amendment agreed to.
Clause 20, as amended, agreed to.
Clause 21 agreed to.
Clause 22 [Conditional cautions]:
Lord Dholakiamoved Amendment No. 74:
Page 16, line 7, after "caution" insert "in respect of an offence and in lieu of charging"
The noble Lord said: We now come to Part 3, about conditional cautions. The Bill allows for a caution with specific conditions attached to be given when there is sufficient evidence to charge a suspect with an offence that he or she admits and the suspect agrees to the caution. It will be for the CPS to decide whether a conditional caution is appropriate and in most cases it will be for the police to administer it. If the suspect failed to comply with the condition, he or she would be liable to be prosecuted for the offence. The Bill provides for the publication of a code of practice for conditional cautions.
No one underestimates the value of cautions. There are many examples of people being diverted away from further offences. The Auld review gives a specific figure of 266,000 cautions issued in 1999.
Clause 22 defines the conditional caution and provides that it may be given to an adult offender if the requirements in Clause 23 are met. The conditions that may be imposed are restricted to those aimed at

657
reparation for the offence or the rehabilitation of the offender. A conditional caution may be given by an authorised person, as defined in subsection (4).
We share the concern that was expressed by Justice and the Law Society that imposing conditions as part of the cautioning process may involve complex methods of rehabilitation and reparation and may potentially require the involvement of the victim of the offence. Making appropriate decisions on this issue—in effect, sentencing—requires adequate training. Only persons authorised by the DPP who have received such training should impose such cautions. We therefore agree that constables and investigating officers should be deleted from the definition in Clause 22(4).
The amendment is designed because of the dangers that could occur if proper training has not been granted. A caution is a way of taking no further action while allowing the police to record that the crime has been cleared up. Cautions are increasingly under-used and need to be rehabilitated, but if conditions are attached, will arrestees be less likely to accept a caution and will the police be less likely to offer one? The amendment would clarify that conditional cautions are in respect of an offence but in place of the person being charged with a criminal offence.
We raise this issue because some years ago I examined the evidence that was produced by the Commission for Racial Equality in relation to juvenile cautioning. It was pretty clear that policy varied from police area to police area throughout the country. In many cases, it was evident that black youngsters were less likely to receive cautions and more likely to end up in the courts the next day. We need a code of practice that clearly specifies the level at which such decisions should be taken and that those who take them should be properly trained to deal with such matters. I beg to move.
Lord Goldsmith: In responding to the amendment, I shall speak also to government Amendments Nos. 80, 81 and 95, which stand in the name of my noble friend Lady Scotland.
The noble Lord, Lord Dholakia, referred more generally to the purpose behind this part of the Act and I am happy that he has done so. The clause creates a statutory conditional caution for adult offenders aged 18 and over who are willing to admit their guilt. As the noble Lord said, there is already a statutory scheme under Sections 65 and 66 of the Crime and Disorder Act 1998 for giving young offenders a final warning accompanied by intervention to reduce the likelihood of re-offending.
The new scheme would allow adults to receive a formal caution but with specific conditions attached. It is intended to be used in cases when more than a simple non-statutory caution is justified but when the circumstances are not such that the public interest necessarily requires a prosecution, or requires one if the offender is willing to undertake some other action—either of a reparative nature or something that may help to rehabilitate. I hope that the
658
Committee will endorse the principle behind the new scheme as a way of finding appropriate disposal for offenders without clogging up the prisons unnecessarily, as one or two noble Lords have said in the course of the Committee.
The noble Lord wanted to be satisfied about how the scheme will work in practice—that it would not operate in a discriminatory way against particular members or groups of the community. I hope that he will not be surprised to hear me say that I wholly endorse that wish. He may be aware that the Crown Prosecution Service has been doing a great deal of work to ensure that it operates its functions in a way that is non-discriminatory and that it understands the different attitudes and cultural traditions of different members of the community. This morning I attended a conference at which the CPS launched a new policy in relation to racially or religiously aggravated crime, which was well attended by members of the community. I will come back in writing to the noble Lord on how the scheme will work.
Amendment No. 74 would insert,
"in respect of an offence and in lieu of charging".
We believe the amendment to be unnecessary. It could also be misleading. That cautioning should be in lieu of criminal proceedings rather misses the point. If the conditions, once accepted, are not met, proceedings may still need to take place. We hope that the clause as drafted is sufficiently clear, and I invite the noble Lord not to press his amendment.
The government amendments make conditional cautions available to "official" prosecutors in addition to the CPS. The change was prompted by the view expressed by the Whitehall Prosecutors Group. A range of prosecuting authorities is represented in the group, which prosecutes on behalf of the public but not as the CPS. It believes that there may be cases in which this form of disposal would be suitable. The Government want to increase the availability of this important and useful power. At the moment, some of the prosecutors use simple cautions and the amendments would enable them to accompany the caution with a condition—that reparation should be made, for example.
Lord Carlisle of Bucklow: I welcome the new clause and the comments of the noble and learned Lord the Attorney-General about the principle. As I understand it, the amendment is an attempt to widen the power to caution to cover those who might otherwise be tried and might end with other forms of penalty. The conditions are very similar to the present power of the police to caution a defendant. However, with this welcome new power we are nevertheless imposing conditions that will presumably have to be supervised by someone. What effect will the new power have on the workload of the Probation Service? Have the Government involved the Probation Service in discussions on the proposal? The duty of,
"ensuring or facilitating the rehabilitation of the offender"
will inevitably, at the end of the day, rest on the Probation Service, which is already very heavily pressed.

659
Are we possibly in danger, yet again, of unintentionally increasing the prison population? I welcome the principle that, when it is suitable, people should be dealt with not by the courts, but by a conditional caution. However, if there is a breach of that caution, the offender goes back before the court. The court may impose any power on the breach that could have been imposed in the first place. There may be a temptation to impose a short period of imprisonment. I hope that, in practice, the effect will not be the reverse of what the noble and learned Lord the Attorney-General wishes to be the purpose of the clause, which is one that I welcome.
Lord Hodgson of Astley Abbotts: The amendment tabled by the noble Lord, Lord Dholakia, is a helpful probing one and I am grateful to the noble and learned Lord the Attorney-General for his explanation. We accept the importance and value of the conditional caution proposal.
I have one small question about Amendment No. 95, which relates to the definition of the relevant prosecutor. The amendment refers to, "a Secretary of State", which is an issue that we will raise later in respect of the codes of practice for conditional cautions. Why does it refer to "a Secretary of State", using an indefinite article? Surely it should be "the Secretary of State", since it refers to only one? No doubt the noble and learned Lord the Attorney-General will tell me that, in the world of the parliamentary draftsman, just as "unless" equals "if' and "not" equals "only", "a" equals "the". The clause would look better if "the" was used, because we are talking about a specific rather than any Secretary of State.
Lord Elton: I rise to support my noble friend Lord Carlisle and to take what he said a fraction further. He said that there would be more people in prison as a result of breach and linked that to his anxiety about an already overloaded probation service. My anxiety is that the probation service will not be able to supervise as it should and that there will therefore be a continual undercurrent of undetected breaches that will bring the system into disrepute, making people no longer afraid of the conditional caution, thus offending more enthusiastically and frequently and adding to the flow of people into crime.
We experienced a little of that with the introduction of the community sentence, when intermediate treatment, as it was first called, was a rigorous, well-supported and well-financed treatment—largely, I may say, by voluntary organisations. When that was broadened into the community sentence, a diminution of the respect with which it was held and its effectiveness began. I am anxious that if we have an underfunded or overloaded probation service, the same problem may repeat itself.
5 p.m.
Lord Goldsmith: I am happy to respond to the questions that have been raised. To deal first with the point made by the noble Lord. Lord Hodgson, this is
660
not a case in which parliamentary counsel thinks that the indefinite and definite articles are interchangeable. The provision does not refer to a single Secretary of State, as the noble Lord's question presupposed, because more than one Secretary of State has a prosecuting function. For example, prosecutions issue from the department of the Secretary of State for Trade and Industry, so it is appropriate that the provision should refer to "a" rather than "the" Secretary of State.
Lord Hodgson of Astley Abbotts: I am grateful to the Attorney-General for giving way, but surely the Secretary of State for Trade and Industry does not issue conditional cautions.
Lord Goldsmith: Well, she might, because DTI prosecutions are conducted by one of the prosecuting agencies to which I referred earlier, which are represented on the Whitehall Prosecutors Group. In relation to certain offences with which the DTI deals, it may be thought appropriate to issue a conditional caution, so the Secretary of State for that department should deal with it. I give that by way of example; other departments with a responsible Secretary of State prosecute on health and safety, environmental and, I think, transport matters—although I may be wrong about the latter.
I was also asked a question by, among others, the noble Lord, Lord Elton. I recognise from his background and experience in diverting young offenders the sincerity and importance of that question. It will not in fact be the probation service that will be responsible for supervising conditional cautions. It has no locus before someone is convicted. The arrangements for supervision must therefore take account of other agencies, including the Crown Prosecution Service. That is being worked on at the moment; if the Committee will permit, I shall take the opportunity to give more information about the consideration taking place, not now from the Dispatch Box but hereafter, in a letter.
Thirdly, the wish was expressed that the making of conditional cautions should not have the counter-productive effect of leading more people into prison. Again, I appreciate the consideration that gave rise to that question. That is obviously not what we want. It is right to say that if a court comes to sentence, it does not have to sentence by way of imprisonment. It is not sentencing for the failure; it is sentencing for the original offence. A fine or community service order may well be the appropriate response.
I agree with those Members of the Committee who said that the power must he exercised in a way that will achieve its objectives and am grateful for all those who expressed their support for the principle behind the provision.
Lord Dholakia: I thank the noble and learned Lord for his response. Juvenile cautioning and cautioning in general are a success and an essential part of the

661
criminal justice system. I look forward to his written response on the matter that I raised, but, in the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hodgson of Astley Abbottsmoved Amendment No. 75:
Page 16, line 13, leave out "either or"
The noble Lord said: I shall speak also to Amendments Nos. 77, 78 and 79.
Amendment No. 75 concerns the specific aims of the conditions that are attached to the conditional caution in Clause 22(3)(a) and (b). We feel that the conditional caution—which, as I said in debate on the previous amendment, is a welcome proposal—will operate to full effect only if it assists the rehabilitation of the offender and ensures that he or she makes reparation. It would be inappropriate to allow a caution if it would achieve only one of those two objectives. The offender making reparation and restoring his good repute by rehabilitation should go hand in hand. If the Government have felt it necessary to include both those purposes, it seems odd for it not to be necessary for the offender to fulfil both conditions.
In our discussion on bail, we heard much from the Government about the position of victims—indeed, according to the Government, much of the Bill is concerned with the victim. Reparation is essential if victims are to feel that justice has been done. Indeed, it is hard to see how full rehabilitation can be achieved without it. So we want to excise, "either or", and leave both rehabilitation and reparation as objectives.
Amendment No. 77 also relates to Clause 22(3)(a). Its purpose is to make the language in the Bill more achievable and realistic. We note that the Government have tabled an amendment and we are happy to retain the word "facilitating" alone, and to leave our word, "assisting", by the by. Amendments Nos. 78 and 79 focus on the qualifications of those authorised persons who are permitted to give conditional cautions. Clause 22(4) lists those who are authorised as:

"(a) a constable

"(b) an investigating officer, or

"(c) a person authorised by the Director of Public Prosecutions",

although the Government propose to change the latter to "a relevant prosecutor".
Amendment No. 78 restricts that authority to that under paragraph (c), "a relevant prosecutor". That amendment was tabled at the suggestion of the Law Society, which explained that the conditions attached to a conditional caution would be complex and that the appropriateness of a constable or investigating officer, who may have little or no direct training in assessing such conditions, granting a conditional caution, is clearly arguable. Amendment No. 79 is slightly less restrictive and would allow only an officer of the rank of chief inspector or above, other than the public prosecutor, to issue such conditional cautions.
662
In another place, Ms Harriet Harman alleviated our concern to some extent by explaining in Committee that the decision about whether there will be a conditional caution is not that of the police, but of the Crown Prosecution Service. However, it has been pointed out that that is not made clear anywhere in the Bill. As I said, Clause 22(4) lists who might be the "authorised person". Subsection (1) explains clearly that any authorised person may give a conditional caution. However, apparently, that will not be true, according to what Ms Harman said in the other place. If she is correct, the relevant prosecutor is the only person under subsection (4) who can actually "green-light" a conditional caution. From the Bill's current wording, it appears that a constable or investigating officer will also have that power but, according to Ms Harman, they can only follow instructions given to them.
The Minister in the other place explained that such problems of wording can be amended when the code of practice is drawn up. Our amendment would make those changes now. We consider that primary legislation should be correctly worded. To complete a Bill knowing that its wording is inadequate is surely perverse. The use of codes of practice as a fallback for correcting such important issues is sloppy. Where possible, details should be made clear in primary legislation. Details such as these are very important or we risk leaving the clause open to misinterpretation. I beg to move.
Lord Goldsmith: I shall speak to Amendments Nos. 75, 77, 78 and 79, and to Amendment No. 76 tabled in the name of my noble friend Lady Scotland of Asthal. Amendment No. 75 would have the effect of insisting that a conditional caution could be made only where the condition would have two effects: it would facilitate the rehabilitation of the offender and do something in relation to reparation for the offence. While in many cases that may well be highly desirable, the condition need not necessarily do so for it to be valuable. For example, it is easy to envisage a condition that is clearly rehabilitative but is not concerned with reparation, such as taking lessons in how to drive better. That might be an appropriate condition to impose, but it may do nothing, save in the most general sense, towards reparation for a victim. We stand by the clause as drafted because it is appropriate that either condition should be sufficient to warrant such an order being made.
I turn now to Amendment No. 77. I am grateful for what the noble Lord has said. Amendment No. 76, which I shall move in due course, will remove the word "ensure" because that is going too far. I am glad that the noble Lord has indicated that he is content with that adjustment to the clause and as a result will not press his own amendment.
Amendments Nos. 78 and 79 seek to limit the category of police employee authorised to administer conditional cautions to officers of the rank of chief inspector or above. Two different persons are referred to in these provisions and we need to distinguish between them. It is easier to start by considering the

663
provisions of Clause 23 and looking at what are the requirements for the issue of a conditional caution. The second requirement is that the Director of Public Prosecutions must decide,

"(a) that there is sufficient evidence to charge the offender with the offence, and

(b) that a conditional caution should be given to the offender in respect of the offence",

It is therefore for the Director of Public Prosecutions, which by reason of provisions set out in the Prosecution of Offences Act 1985 means any crown prosecutor in the Crown Prosecution Service, to decide whether a conditional caution should be given. By accepting the previous amendments, the Committee has just extended that by inserting instead the words "relevant prosecutor", but that still means the prosecution authority such as a Secretary of State or another relevant prosecutor.
So it is for the prosecutor to decide whether a conditional caution should be granted, but it is then for someone else to administer it, who will be the "authorised person" referred to in Clause 22(4). That person must have the evidence that the offence has been committed, as set out in the first requirement in Clause 23(1); must be the person to whom the offender has admitted the offence; and must be able to give explanations. However, it is not for the police officer to decide that there should be a conditional caution; that is a decision for the prosecutor.
No doubt the police officer may well propose appropriate conditions, which would be right given that he will know the circumstances of the offence and something about the offender. But it will be for the prosecutor, in general for the Crown Prosecution Service, to confirm those conditions and determine that a conditional caution is appropriate. The administering of the caution is then a duty for the officer and, viewed in that light—which expands on what was said by my right honourable friend the Solicitor General, Harriet Harman, in another place—I hope that the noble Lord will agree that it would be inappropriate to require officers of the rank to which he referred to spend their time administering cautions when the decision has already been taken by the prosecutor. It would be entirely appropriate for the administration of that decision to be undertaken by the officers identified in the clause as it stands.
I hope that my explanation—that the decision will be made by the Crown Prosecution Service or another prosecutor rather than the police, and that the caution will be administered by the police officer—will assist the noble Lord.
Lord Elton: In my view that was an extremely helpful explanation. However, is the noble and learned Lord able to tell us something of the length of time that all this is going to take? Presumably there has to be an arrest, followed by a referral to the prosecutor, whoever that may be. That person then has to be apprised of the details of the crime and come to a view on them. Will that be done with or without an interview with the young person in question—I assume that the person will be young? Surely it would be very
664
difficult to make a judgment on whether the person is likely to respond to this treatment without an interview.
I am finding it difficult to express this concern, but essentially the slower the administration of justice, the less effective it is, in particular when dealing with young people whose perception of the flow of time is quite different from our own. This process needs to move relatively quickly or cause and consequence will be completely separated in the mind of the offender.
5.15 p.m.
Lord Goldsmith: These provisions apply to adults, that is, persons aged 18 years or over. Youth offenders are dealt with under an existing set of provisions.
So far as timing is concerned, this will fit in with other changes being made in the Bill, including in particular the closer involvement of the Crown Prosecution Service with the police. In due course we shall come to the charging provisions set out in the Bill under which, save in routine and minor cases or where a holding charge is needed, it will be necessary for the police to bring the evidence to the prosecutor for him to decide whether a charge should be brought and, if so, what it will be. Moreover, in many cases there will be a prosecutor at the police station, ready to receive the police officers and to make the decision. So, in some cases, it will add nothing to the time for the police officer and the prosecutor to consider whether, having regard to the circumstances, the case might be appropriate for the administration of a conditional caution.
I agree with the noble Lord that we do not want to slow justice down, but I believe that the arrangements here ought not to have that effect and certainly ought not to do so to the extent that they would outweigh the advantages of this new way of disposal.
Lord Elton: The noble and learned Lord's further response is very helpful. I wish only to say that my recollection of the Prison Service when I was the Minister responsible for it was that the age of criminal burnout was somewhere between the ages of 28 and 32 years. In my view, anyone under those ages is still young.
Baroness Carnegy of Lour: I thought I heard the noble and learned Lord say that it would be a waste of time for an officer of the rank of chief inspector or above to go about administering conditional cautions. Is he sure that having a constable doing so will clearly indicate the gravity of the situation? There is a risk that a conditional caution may give the impression of being an easy way out. However, if the conditions are not fulfilled, the result could be much more serious. Thus it is important that the person being cautioned takes the matter seriously. Is the noble and learned Lord convinced that a constable will be the right person to do this?
Lord Goldsmith: It is right that the person who accepts a conditional caution understands the

665
seriousness of the matter. That will be made clear on the form which the offender will have to sign. It will state the purpose and effect of the caution.
I am perfectly confident that police officers of the rank of constable will be able to bring home to offenders the importance of what they are agreeing to. As I have said, while the constable will not make the decision that a certain case is appropriate for a conditional caution—that will be made by others—I suggest that the officer will be well able to drive home the importance of it.
Lord Elton: Could the noble and learned Lord go a little further into the detail of the way this is to be administered? He said that a prosecutor might be in the police station at the time. Is there to be a duty prosecutor in every police station? If not, how is that to be achieved?
Lord Goldsmith: This touches on later provisions in the Bill, an important one of which gives the prosecutor the responsibility for determining whether to charge an offender and with what to charge him. Obviously this will follow close consultation with the police who have gathered the evidence.
In a number of cases in the pilots that we have carried out in relation to this, lawyers have been present at police stations in order that police officers can come to them and say, "This is the evidence. Is it enough?". I have been and seen it for myself. I suspect that we will discuss this issue further in relation to a later part of the Bill. It will not happen necessarily in every police station because there are many across the country and there may not be enough prosecutors to cover them all. But alternative arrangements will be in place to ensure that excessive delay is not added to the process.
Lord Hodgson of Astley Abbotts: I am grateful to the noble and learned Lord for that response. Returning briefly to Amendment No. 75, he said that it was not practical because the conditions could not necessarily fulfil the requirements of both rehabilitation and reparation. We never felt that that was the case. The subsection refers to "the conditions which may be attached", but not every condition has a joint and several responsibility to facilitate rehabilitation or make reparation.
We are concerned that if you leave out "either/or" you could have a whole series of conditions concerned with only one of the two objectives in subsections (3)(a) and (3)(b), on rehabilitation and reparation. We feel that some conditions must hit either subsection (3)(a), on rehabilitation, or subsection (3)(b), on reparation. As I read the Bill, it is possible for only one of those objectives to be met. If we were to try it the other way and state that "each condition must meet the two objectives" I would understand the point made by the noble and learned Lord. However, the Bill refers to "the conditions" and we want to make sure that some of the conditions of the conditional caution hit those two targets.
666
As to Amendments Nos. 78 and 79, the noble and learned Lord pointed out that "give" has a narrow and technical meaning, whereas, to an outsider, "give a conditional caution" does not at first sight appear like that. Will the Government consider redrafting the clause to replace the word "give" with the word "administer", which is the word used by the noble and learned Lord when explaining the way in which Clause 22(1) will operate? To the world outside, "give" is a far-ranging and wide-reaching word; "administer" has a more practical and technical sense.
Lord Goldsmith: With respect, I am not sure that I quite follow the noble Lord. My point is this: it is appropriate to have a power to grant a conditional caution even though the condition or conditions proposed effect only one of the objectives. There may be a condition simply to make reparation or there may be three conditions, to pay compensation to Mrs A, Mrs B and Mrs C, without any rehabilitation being involved. It is appropriate to do that. Equally, there may be some conditions that relate to reparation only—for example, take a driving test, have an eye test and so on.
As to whether the clause is clear enough, at the moment—I am sure it is my fault—cannot see the word "give".
Lord Hodgson of Astley Abbotts: Clause 22, line six. The line below the clause heading.
Lord Goldsmith: Thank you very much. I should have read the first line. I shall certainly take the issue away to see whether it is clear enough. However, I believe that it is and I hope that the explanations I have given will help to clarify it further.
Lord Hodgson of Astley Abbotts: I thank the noble and learned Lord. I shall consider further what he said about the twin conditions of cautions. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goldsmith Lord Goldsmith moved Amendment No. 76:
Page 16, line 14, leave out "ensuring or"
On Question, amendment agreed to.
[Amendments Nos. 77 to 79 not moved.]
Lord Goldsmith Lord Goldsmith moved Amendment No. 80:
Page 16, line 19, leave out "Director of Public Prosecutions" and insert "a relevant prosecutor"
On Question, amendment agreed to.
Clause 22, as amended, agreed to.
Clause 23 [The five requirements]:
Lord Goldsmith Lord Goldsmith moved Amendment No. 81:
Page 16, line 24, leave out "the Director of Public Prosecutions" and insert "a relevant prosecutor"
On Question, amendment agreed to.
Lord Hodgson of Astley Abbotts.moved Amendment No. 82:
Page 16, line 29, after "offender" insert ", having taken or refused to take legal advice,"
The noble Lord said: In moving Amendment No. 82, I shall speak also to Amendments Nos. 84 and 86. The amendments concern conditional cautions. Clause 23 lists the five requirements necessary if a conditional caution is to be issued. The third requirement, in Clause 23(3), requires the offender to admit that he has committed the offence. If the offender does so he might bring certain consequences upon himself that, if he were not a lawyer, he would not anticipate.
Amendments Nos. 82 and 84, therefore, would act as a failsafe to protect the rights of an offender. They make it a requirement for him to have accepted or, having been offered, to have refused to accept legal advice. We have a concern that a person might be tempted to accept a conditional caution without realising that it might he in his interests to first take legal advice. One can envisage a situation where a defendant wishes to finish off the matter quickly or is encouraged to do so by the police on the grounds that it would get it out of the way quite quickly.
If legal advice is offered the suspect will have an opportunity—which, of course, he may decline—to understand the legal consequences of a conditional caution, including, in particular, the consequences of an admission. It would also provide a safeguard against false or misled admissions being made.
Both the Law Society and the London Criminal Courts Solicitors' Association agree on this point. The latter has distributed a helpful briefing which states that,
"an admission of guilt must be genuine, not just a solution to escape a charge or 'get it over and done with"—
Given the risk of prosecution if the conditions are breached, potentially lengthy complications that might arise at prosecution could be avoided if legal advice had been offered. We see no sensible reason why this proposal should not be incorporated into the clause.
Amendment No. 86 relates to Clause 24 and the failure to comply with conditions. It is closely linked with Amendments Nos. 82 and 84. It would leave out Clause 22(2) and enable the document detailing the offence and the ancillary provisions laid out in Clause 23(5), which have been signed by the offender, to be admissible in criminal proceedings.
If an offender is not to be offered the opportunity of legal advice when signing the document admitting his guilt, is it right that the document should then be used as evidence? As has been mentioned, a person could be pressured into signing such a document unaware of the consequences. If, however, the offender were given the opportunity of legal advice, this would not be a concern. The amendment therefore is clearly tied in with the previous amendments concerning the offering
668
of legal advice. If the Government accepted them, Amendment No. 86 probably would be superfluous. I beg to move.
Lord Goldsmith: As the noble Lord, Lord Hodgson of Astley Abbotts, said, Amendments Nos. 82 and 84 are concerned with whether a suspect should be offered legal advice before admitting to the commission of an offence. A suspect will have been offered legal advice. He will have been informed, I should say more strictly, of his or her right to independent legal advice in compliance with the provisions of PACE before reaching that stage. The suspect will have been accused of an offence and therefore the provisions in the code which require that person to be informed of his or her right to independent legal advice will apply. In those circumstances it seems unnecessary to add an additional requirement to the provisions. I do not disagree with the underlying point that the noble Lord makes; namely, it is important that before somebody admits an offence he should have had the opportunity of seeking legal advice and be reminded of that opportunity. The provisions of PACE should be adequate to deal with the situation.
In referring to Amendment No. 86, the noble Lord said that if the Government accepted the previous amendments the need for it would disappear because legal advice would have been provided. If the noble Lord is satisfied by what I have said about the effect of PACE, he may well want to consider it further before expressing any view about it, which I would entirely understand. He may not wish to move that amendment either.
It seems to us that there are certainly circumstances in which it would be appropriate for the form, which would have been signed in accordance with the requirements of Clause 23(5), to be admissible in evidence, if only for the purpose of proving that the suspect did in fact agree to the conditions. Then the question can be determined as to whether or not he has failed to comply with them. We press to retain that provision.
In Committee in another place the honourable Lady Hermon suggested that the pro forma signed by the offender should state clearly that it might be used in evidence against him if criminal proceedings were to follow. That is a useful suggestion, which is being considered.
5.30 p.m.
Lord Dholakia: Can the Minister say whether the legal advice is available before the caution is administered, or while the caution is being given? There are some serious repercussions in failing to comply hearing in mind that consent is required and the condition attached to that consent. That has some bearing on another amendment, which I wish to move at a later time.
Lord Goldsmith: I believe that the answer is that the suspect will have been reminded earlier of his right to independent legal advice. If the suspect has followed

669
that up and has received it, the solicitor will be available to give the offender advice at all moments from the time he or she is instructed to assist. I anticipate that that would include advising on whether or not it is right to admit the offence and appropriate to accept the condition; and, indeed, explaining what the consequences would be if the condition were broken.
If the offender declines to take legal advice, which is his or her right, that legal advice will not be available at the time when the caution is administered. That simply follows from the choice which has been made. I believe that that is how it would work.
Lord Hodgson of Astley Abbotts: I do not find that answer entirely satisfactory. I understand what the noble and learned Lord said about the PACE conditions, which is a very fair point. But they are away from the Bill that we are discussing. We have here five requirements for conditional cautions. If the Government are confident that the PACE conditions cover the point, I do not see why they cannot accept that. The third requirement is that, having taken or refused to take legal advice,
"the offender admits to the authorised person that he committed the offence".
It is clear beyond peradventure that it is one of the requirements for which he should have legal advice before admission. The fifth requirement is the signing of the document. After being offered the opportunity to receive legal advice,
"the offender signs a document which contains—",
details of the offence, and so on.
All we are trying to make clear on the face of the Bill is that on these two important points—the admission and the document to be signed, which contains all the details of the offence and his consent to being given a conditional caution—there should be a clear requirement to having been offered, and either taken or refused, legal advice. The PACE conditions are all very well, but they are some way away; they are capable of being changed without this Act being altered—
Lord Goldsmith: I am grateful to the noble Lord for giving way. The noble Lord will recall that the Act itself deals with PACE and its codes of practice. I do not know why he says that the PACE codes are away from this Act. They are referred to specifically in Part I of the Act. I also remind the noble Lord that there are many conditions in PACE to which it would be appropriate to have regard when considering whether or not the suspect has been dealt with properly before reaching the caution conditions as regards interviews, and so forth.
I assume that the noble Lord is not saying that we should incorporate all of those conditions into the clause. If that were the case, it would be a very long clause indeed. Surely it is better to rely on the general provisions that Parliament has thought appropriate under the PACE codes and allow them to be of general
670
application, rather than making specific provision for each and every one of them each time there is a disposal provision.
Baroness Carnegy of Lour: I still have not understood. Can the noble and learned Lord explain at what point the suspect will be told that he could have legal advice? Will he know what he is getting it for?
Lord Goldsmith: Under PACE, and depending on the circumstances, where a person is arrested for an offence and brought into a police station, it is a requirement that the right to independent legal advice is notified to the person involved. It is within our common experience that it is at just such a stage that a solicitor will attend the police station to advise on the process that is to take place, and/or participate in the interview. It is at an early stage of the process that the suspect is reminded of the right to legal advice and can take up that offer.
Lord Hodgson of Astley Abbotts: I am grateful for that further explanation. I shall read carefully in Hansard what the noble and learned Lord has said. I believe that the express right to legal advice before people admit crime that will result in a conditional caution being issued is important. I shall reserve the right to return to the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 83:
Page 16, line 33, leave out "may" and insert "will"
The noble Lord said: This is a brief but important amendment that relates to the wording of Clause 23(4). It refers to the fourth of the five requirements that need to be satisfied in order for a conditional caution to be given. This clause has been carefully drafted. Its intentions are clearly well-founded. It requires that an authorised person explains to the defendant about the conditional caution and warns about the consequences of failure to comply.
However, the clause then throws away all this good work by saying that if any of the conditions are breached prosecution "may" follow. Today we have been discussing the finer details of these conditional cautions ensuring that they are meticulously worded, fully comprehensible and as fair as possible. Why, therefore, is it not a certainty that the offender is to be prosecuted if he fails to comply? What will be the impact of the removal of the certainty of unpleasant consequences in cases of breach upon the value and efficacy of the whole concept of conditional cautions? Our amendment seeks to replace "may" with "will"; in other words, to make a prosecution certain. I beg to move.
Lord Goldsmith: I suggest that it would not be credible to say that every breach of a conditional caution would automatically result in a prosecution.

671
That would be the effect at least of what would be stated to the offender, but not the fact in practice. If it were the policy that every breach, however trivial, automatically resulted in prosecution" it would be unduly restrictive. It would be impossible to take genuine reasons for non-compliance into consideration. It would be a much more onerous provision than we have in mind.
It is important that the offender should understand that the conditions are serious. If he does not comply with them, he should be warned that there could well be consequences. That is well enough said by warning him that the caution may result in his being prosecuted rather than in asserting—dare I say it, untruthfully?—that it will, notwithstanding what the circumstances may be. I invite the noble Lord not to pursue the amendment.
Lord Hodgson of Astley Abbotts: I am grateful to the Minister for that explanation. We are anxious that if the conditional caution is to have some teeth, it should be proceeded with where conditions are broken. We understand that pressing for it to be done on all occasions is probably not a practical proposition. I beg leave to withdraw.
Amendment, by leave, withdrawn.
[Amendment No. 84 not moved]
Clause 23, as amended, agreed to.
Clause 24 [Failure to comply with conditions]:
Lord Hodgson of Astley Abbotts Lord Hodgson of Astley Abbotts moved Amendment No. 85:
Page 17, line 4, at end insert "but not more than three months after the commission of the offence"
The noble Lord said: Amendment No. 85 is a simple amendment to be inserted at the end of subsection (1) of Clause 24. That subsection explains that the consequences of failing to comply with the provisions of the conditional caution may, as we have just been discussing, result in prosecution. With the Bill as presently drafted there is no time limit within which such a prosecution must be proceeded with after a breach of the conditions of the caution has occurred. It seems only fair that a recipient should know how long criminal proceedings could be left hanging over him. This amendment sets the limit at three months. It is a probing amendment and it would be helpful to hear the Government's thinking behind the proposal for what appears to be an everlasting sword of Damocles.
The Liberal Democrat Amendments Nos. 87 and 88 in the names of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, seem to take us back to the issue of admissibility in evidence of the signed admission in Clause 23(5) which we were discussing in the last group of amendments. As such, if there is no requirement for a person to receive legal advice in advance of any signature, we would support them. I beg to move.
Lord Dholakia: This amendment is grouped with Amendments Nos. 87 and 88. Clause 24 provides that, if the offender fails, without reasonable excuse, to
672
satisfy the conditions attached to the conditional caution, he or she may be prosecuted for the offence—not for the breach of the offence, but for the offence itself. If proceedings are commenced the document referred to in Clause 23 is admissible in evidence. I remind the Committee of the requirements of Clause 23, which the noble Lord, Lord Hodgson of .Astley Abbotts, mentioned earlier on. They are that there is evidence against the offender; that the Crown Prosecution Service considers the evidence to be sufficient to charge him or her and that a conditional caution should be given; that the offender admits the offence; that the offender has been made aware of the caution and what failure to comply with it would mean; and that he or she signs a document containing details of the offence, the admission, the offender's consent to the caution and the conditions imposed.
We have a very serious problem with that. The problem is simply that all this evidence is being produced as part of the prosecution case against the individual. If the person appears in court for trial he cannot plead not guilty. In other words, the trial is simply a sentencing exercise, rather than giving him the opportunity to deny something that he has already admitted under caution. We are suggesting that for a fair trail—for a fair system of dealing with such individuals—it would be proper to ensure that two provisions are included in the Bill: first, that the conditional caution should cease to have effect and, secondly, that the admission contained in the document referred to in Clause 23(5) shall be inadmissible in evidence. That is the basis of holding a fair trial, rather than simply sentencing an offender and calling it a prosecution.
5.45 p.m.
Lord Goldsmith: I will take those two sets of amendments separately. Amendment No. 85, moved by the noble Lord, Lord Hodgson of Astley Abbotts, would insert a time limit of three months after the commission of the offence into Clause 24. The effect would be that where an offender failed to comply with the conditions attached to a caution, a prosecution against him or her would have to be commenced within three months of the date of the offence.
In the Government's view that time limit would be unduly restrictive. There are two reasons for that. First, the date on which the caution is administered could itself be some significant time after the offence. The reason for that may simply be that it took that time to find the offender. Secondly, even if the offender had been caught the very day of the offence and a conditional caution had been imposed within a short time thereafter, there will be some conditions which will take some time to organise and may take some time for the offender to complete. The previous discussion on an earlier clause in relation to the time to organise and then to complete some kind of drugs rehabilitation course would be one example. To say that one must prosecute within three months or else the condition falls by the wayside because there is no way of enforcing it would be unduly restrictive.

673
There is a long-stop already in relation to offences that are summary-only offences because, as the noble Lord will recall, those offences cannot be prosecuted more than six months after the commission of the offence. That is already something of an issue in relation to conditional cautions because it may be that that in itself imposes an unduly restrictive period. However, that is the law and we are not suggesting changing it. We agree that it would not be right to impose conditions for an unreasonable time—a Damoclean time or otherwise—and that is why the time for which a condition may have effect is one of the points that will be addressed in the code of practice, as Clause 25(2)(c) indicates. As for the three-month period, we could not accept that. However, the noble Lord said that his was a probing amendment in any event.
I turn to Amendments Nos. 87 and 88 to which the noble Lord, Lord Dholakia, spoke. I have largely answered this already, but I think it is right to draw attention to the requirements in Clause 23. The Committee will note that among the requirements is not only that there is evidence that the offender has committed the offence, but also that the offender admits that he committed the offence. That is before one gets to the conditional caution being signed. So it is a condition that in an interview, itself under caution, the offender will no doubt have admitted the offence. That will be entirely admissible, as it would be even if the result of the interview had been the police officer saying, "You will now be taken to court," rather than, "We will now consider a conditional caution". That would be part of the evidence on which the offence would then be prosecuted. The signature on the document does not add an enormous amount to that because the admission will already have been made but—and this is more important and is the answer I gave before—it will be necessary to demonstrate, because of the conditions of Clause 24(1), that there were conditions attached to the conditional caution and the document signed by the offender, accepting those conditions, will be an important part of that.
In the Government's view it is appropriate to keep the provision that the document shall be admissible in evidence; otherwise, one would have the ridiculous situation of, for example, an officer saying, "What were the conditions? Let me read from my notebook. Did he accept them? Yes, he did," and the person saying, "No, I didn't", when there is a document available which proves it.
I hope that the fact that the caution will not have been authorised or administered unless the offender had admitted he had previously committed the offence will go a long way to satisfying the noble Lord. Of course there must be a fair trial where someone has, under caution, admitted the offence. There may be circumstances in which they can thereafter say, "I didn't really mean it" or "I didn't know what I was saying". They will no doubt be able to run that
674
argument, but, generally speaking, the fact that it has been said under caution will obviously be powerful evidence against them, and rightly so.
Lord Elton: What the noble and learned Lord says underlines the importance of this document in the trial of the individual concerned and brings us back to my noble friend's question about the availability of legal advice. Knowing what the conditions are in a police cell and the state of the people who are kept in them makes me anxious about merely having had advice, which is the argument my noble friend advanced in debates on previous amendments. I hope that we may have an opportunity on Report to consider whether such a document should be signed in the absence of a legal adviser. Merely having had advice, perhaps a fortnight earlier, and being confused as to what the document is may not be sufficient protection.
Lord Goldsmith: Clause 25, to which we will come shortly, provides for the preparation of a code of practice which will deal with a number of matters, including, as paragraph (a) states,
"the circumstances in which conditional cautions may be given".
That has to be prepared in draft by the Secretary of State. It has to have my consent; it then has to be laid before each House of Parliament and an order has to be made. My recollection is that this is by affirmative resolution as well, so a number of the points to which the noble Lord refers will no doubt be touched on in the code of practice, which will come back before the House.
Lord Elton: I am grateful for that; my noble friend assures me that the noble and learned Lord is right about the affirmative procedure, which is not clear in the clause. If that is the case. my anxiety is removed.
Lord Hodgson of Astley Abbotts: I am grateful to the noble and learned Lord. As I said, this was a probing amendment, and we are grateful for his assurance that conditions on cautions cannot be left hanging for ever, but that there is a provision for their being ended.
We are a little concerned about the way in which the noble and learned Lord's responses indicate the time that may elapse in these matters. Conditional cautions need to be moved through reasonably rapidly if they are to have a good deterrent effect. Speed seems quite important and if conditional caution proceedings are to be as prolonged as custodial proceedings, that will undermine some of their value. However, this was a probing amendment—we were not stuck on the three-month idea, and I understand the Attorney-General's argument against it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 86 to 88 not moved.]
Clause 24 agreed to.
Clause 25 [Code of practice]:
Lord Hodgson of Astley Abbotts.moved Amendment No. 89:
Page 17, line 12, leave out "may" and insert "shall"
The noble Lord said: In moving Amendment No. 89, I shall also speak to Amendments Nos. 90, 92, 93 and 94, which are all about the code of practice. They concentrate on this already much debated issue but this time in relation to conditional cautions.
Clause 25(1) requires the Secretary of State to prepare a code of practice for conditional cautions. Subsection (2) details the provisions which are to be included; these are laid out in paragraphs (a) to (h). Having thus gone to some trouble to make clear the contents of the codes, it is perhaps surprising that the preamble includes not a prescriptive verb but a conditional one. In other words, subsection (2) provides:
"The code may, in particular, include provision as to—"
followed by paragraphs (a) to (h). Amendment No. 89 seeks to remove this uncertainty about the contents of the code by replacing "may" with "shall". What is the purpose of all this elaborate drafting if the Secretary of State can then ignore it all? Once again, it raises concerns about what may or may not happen at some unknown date in the future.
Amendment No. 90 concerns the specific provisions of Clause 25(2)(d); it follows the discussions we had on Amendments Nos. 78 and 79 as to the suitability of a constable or investigating officer issuing conditional cautions. As we said then, we agree with the Law Society's view that police representatives of lower ranks are not trained or qualified to make judgments. But if, as the noble and learned Lord said, this is primarily about operating procedures and administration, that too is odd, because it seems in that case to duplicate to a large extent paragraph (0, which deals with,
"the form which such cautions are to take and the manner in which they are to be given and recorded".
In the light of the noble and learned Lord's response to our earlier amendment, I am not quite clear about the difference between paragraphs (d) and (f).
The particular focus of Clause 25(2)(d) seems even more illogical when we consider Amendment No. 92. This requires the code—and here we return to the point raised by my noble friend Lord Elton—to include the role of the probation service in bodies which need to be involved in the code of practice. The probation service has hitherto been ignored, except in my noble friend's comments, yet it will bear the brunt of the work of enforcing the conditions attached to these cautions. Indeed, while we welcome the concept of conditional cautions, we are concerned whether the Government have fully thought through the funding implications. Nothing will undermine a good idea faster than a failure to administer it properly.
Our concern in Amendment No. 92 is more of a practical and administrative one. We are concerned about the weight that will fall on the shoulders of the probation service when it comes to monitoring the compliance of the conditions attached to the cautions.
676
So it is surely imperative that the probation service has a chance to express its views about the practicalities of the various conditions regarding what is practicable, what is not, what would work and what would not and, for future planning, what has worked and what has not. This amendment aims to probe the Government as to why, since the probation service is to play such an integral part in this area, it is not even mentioned in the extensive list given in Clause 25(2).
Amendment No. 93 draws attention to the importance of proportionality in imposing conditions on cautions by adding an additional provision, paragraph (i), to the matters about which the code of practice must make provision—for example, returning to an earlier debate, in connection with cautions issued to those with mental problems. Ministers in the other place have stressed the importance of having flexibility when it comes to the letter of the law. Given rapidly changing social attitudes and conditions, we accept that this is a valid consideration, but there needs to be some limitation. This amendment is aimed at avoiding the possibility of the use of unfair or unreasonable conditions being enforced upon someone who does not realise that they might well be unable to meet them.
Amendment No. 94 would require the affirmative resolution procedure to be used for all revisions to the codes of practice that govern conditional cautions. This repeats the discussion we had over Amendments No. 38 and 39, which were tabled to ensure that proper parliamentary scrutiny took place when the Secretary of State chose to revise the PACE codes. However, while by Amendment No. 37 the Government accepted a measure of parliamentary scrutiny over the PACE codes, the codes of practice that will govern conditional cautions have not been given the same attention. We think this is wrong. Conditional cautions are an important development in the Government's criminal justice policy. If the concept works well, it could play an important role in keeping down the prison population, but the way in which it operates should be given proper parliamentary scrutiny. I beg to move.
6 p.m.
Lord Renton: We must be precise. We must not leave too much to the discretion of the officer who issues the caution. It is right, therefore, that the codes of practice should be clear in ensuring that the cautions are precisely worded. Therefore, I support the various amendments moved by my noble friend.
There is one amendment which I am glad he moved. Clause 25(2)(d) refers to,
"the category of constable or investigating officer by whom such cautions may be given".
It may be that owing to the passage of time my knowledge of types of constable has become somewhat uncertain. I thought that there were only constables and constables and not various categories of constable. We need an explanation as to what the,
"category of constable or investigating officer"
will be. In any event, I should have thought that any constable should have power to issue a conditional caution. Perhaps paragraph (d) should be left out.

677
Amendment No. 94 is important. We are breaking new ground here. It is only right that a draft should be laid before each House of Parliament for approval. Therefore, Amendment No. 94 is of value.
Lord Carlisle of Bucklow: In a debate on a previous clause, I thought that the noble and learned Lord the Attorney-General said that the probation service was not to have anything to do with the conditions as regards these cautions. If so, who is? I do not understand who will monitor and control the conditions relating to facilitating the rehabilitation of the offender if it does not in some way come under the aegis of the probation service. I shall be grateful to hear the government's proposals on who will do so. I understood him to say that it would not be the probation service.
Lord Goldsmith: I shall speak to Amendments Nos. 89, 90, 92, 93 and 94. Amendment No. 89 would insert "shall" for "may" thereby insisting that the code must cover all of the matters dealt with. Imposing that requirement by primary legislation seems to us to be unnecessary. The code will have to be laid before Parliament—I shall come back to that—and has to be published in draft. The Secretary of State has to consider representations about it. He has to obtain the consent of the Attorney-General and then lay it before each House of Parliament. It may be that at some stage—plainly it is not our view at present—it may appear unnecessary for the code to contain one of the provisions, for whatever reason that may be. If Parliament is not happy that that matter is not dealt with, it will be able to make that plain when the code is brought before it. It seems unduly restrictive to insist that each of these matters is dealt with in the code—even though they would not be included as items which the Secretary of State can include in the code—if it did not seem at present that a code should cover those issues.
If the noble Lord, Lord Renton, were right, Clause 25(2)(d), for example, would not be necessary because there would be no constable other than a single rank of constable. I am told that the word "constable" is used in the widest form and even a chief constable could be a constable. But, of course, there would be other investigating officers. By way of example, if the noble Lord had pressed successfully the amendment to a previous clause to delete the reference to "constable", this provision would disappear.
That is why I resist making it a requirement that each and every single one of these matters should be listed in the clause. Parliament will see the code when it comes forward and will be required to express its approval.
678
Amendment No. 90 seeks to remove paragraph (d) on the basis that it would have been consequential on Amendments Nos. 78 and 79 which have not been pressed.
Lord Hodgson of Astley Abbotts: It also duplicates what is in paragraph (f).
Lord Goldsmith: I beg to differ. Paragraph (d) deals with the identity of the person who may give the caution. Paragraph (f) deals with the form that such cautions are to take and the manner in which they are to be given and recorded. The manner in which they are given and recorded is not the same as the person who may give them. Both provisions are necessary and desirable.
Amendment No. 92 would add a reference to the probation service. In answer to points raised on an earlier clause, I indicated that I wanted to give further information about the way in which the Government see the conditional cautions being supervised and monitored. I indicated then that part of the responsibility would be that of the prosecution service because that is the one imposing the conditions.
I accept that it is an important question. Therefore, if noble Lords will allow it, I shall return to that issue. For the time being, I resist the insertion of a reference to the probation service. On the face of it, the service deals with medium and high-risk offenders. I am advised that a legislative change would be necessary, as I indicated previously, if its statutory duties were to be extended to offenders who were to be cautioned as opposed to offenders who have been convicted.
There is no need for the clause to specify as an issue to be covered the involvement of the probation service.
Lord Carlisle of Bucklow: Perhaps I may—
Lord Goldsmith: I think that the noble Lord, Lord Elton, had wished to intervene.
Lord Elton: I was sure my noble friend would get there first. I am grateful, therefore, to be given the handicap of starting.
When the noble and learned Lord writes about the involvement of an agency other than the probation service—if that is how he will proceed—I hope that he will go beyond the question of the statutory trigger which has not been used when a caution is substituted for a prosecution. I understand that under present legislation the probation service would not be involved because it requires a prosecution to trigger the involvement of the probation service. If that is not the case, a fortiori I ask him to address the question as to why the probation service is not being included in this work which is so germane to its training and experience. When he referred to the prosecution service a moment ago, he introduced a new word. He said that it will be partly responsible, as opposed to responsible, for the supervision of the conditions.

679
It is a highly technical matter. I hope that there has been consultation with the probation service and others concerned, or that there will be before a decision is made. I find myself in some anxiety about handing this function to something so different from the probation service as a prosecution service.
Lord Goldsmith: I agree, that it is not only a technical matter, it is also important. That is why I wanted to be able to give noble Lords a full and considered answer rather than simply indicating where we are at the moment. I have already used the phrase "partly responsible", which the noble Lord, Lord Elton, has, with eagle eyes, picked up on. I hope that noble Lords will accept that I do not wish to say any more until I am able to give a more detailed and considered answer.
Lord Carlisle of Bucklow: Is the Minister sure that he was right when he used the word "convicted"? He said that the probation service had dealings only with people who had been convicted. Does it not also have powers over people who have been bailed and are in bail hostels?
Lord Goldsmith: That is another reason why I should give a full answer after today's Committee stage. I am grateful to the noble Lord, Lord Carlisle, for that comment. I shall certainly look into the matter.
Lord Renton: I did not hear the Minister deal with Amendment No. 94, requiring a draft to be laid before Parliament.
Lord Goldsmith: I apologise for failing to deal with that. In fact I failed to deal with both Amendments Nos. 93 and 94. An intervention was made and I had forgotten that I had not completed my speech.
Amendment No. 93 would add to the list a new item:
"deciding, having regard to the character and background of the person to be cautioned, the appropriateness of conditions which may be attached".
That appears to add little to the existing subparagraphs relating to the circumstances in which conditional cautions might be given and the conditions which might be imposed.
Regarding Amendment No. 94, the provisions of the Bill as it stands require the code to be laid before each House. By virtue of Clause 299, the statutory instrument containing the order must be laid in draft beforehand and approved by a resolution of each House. It is not apparent to me what is missing from those provisions. In other words, the code has to be produced in the form of a draft order, which must be laid before both Houses, and approved by affirmative resolution. Why is it necessary to add anything further? Surely the effect is that for which the noble Lord contends. I hope that I have now dealt with all of the amendments.
Lord Hodgson: Clearly, I had not read Clause 299 carefully enough. Regarding Amendment No. 89, I appreciate the points that the Minister has made. As ever, he is persuasive in the way that he argues his case. However, the reality is that the Government have chosen to draft the Bill with eight conditions which they think are important as part of the code of practice. Having gone to that considerable trouble, they then put "may" rather than "shall". He said that this imposed a requirement—you bet it does. He said that it was unduly restrictive—it may not be "unduly" restrictive, but it is restrictive and is meant to be restrictive. The operation of conditional cautions and this code of practice are important. To have a code which might vary completely from subsections (2)(a) to 2(h) is a mistake. There should be a restriction on the Secretary of State to produce codes which deal with paragraphs (a) to (h)—the heart of the whole question of conditional cautions. Without the issues covered by paragraphs (a) to (h) one wonders how on earth there can be a proper code. Therefore, I beg leave to test the opinion of the House.
6.15 p.m.
On Question, Whether the said amendment (No. 89) shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 145.

Division No. 1

CONTENTS

Allenby of Megiddo, V.

Hodgson of Astley Abbotts, L

Ampthill, L.

Howell of Guildford,L.

Anelay of St Johns, B.

Laird, L.

Astor of Hever, L.

Lane of Horsell,L.

Biffen, L.

Lindsay, E.

Blatch, B.

Lucas, L.

Bowness, L.

Luke, L.

Bridgeman, V.

McColl of Dulwich, L.

Brougham and Vaux, L.

Maginnis of Drumglass, L.

Burnham, L.

Marlesford, L.

Byford, B.

Mayhew of Twysden, L.

Campbell of Alloway, L.

Moynihan, L.

Carlisle of Bucklow, L.

Naseby, L.

Carnegy of Lour, B.

Noakes,B.[Teller]

Coe,L.

Northbrook, L.

Colwyn, L.

Northesk, E.

Cope of Berkeley, L.

Norton of Louth.L.

Craigavon, V.

O'Cathain, B.

Crathorne, L.

Onslow, E.

Crickhowell, L.

Palmer, L.

Denham,L.

Parkinson, L.

Dixon-Smith, L.

Pearson of Rannoch, L.

Elton, L.

Plumb, L.

Fookes, B.

Rawlings, B.

Fowler, L.

Renfrew of Kaimsthorn, L.

Freeman, L.

Renton, L.

Geddes, L.

Rogan, L.

Gilmour of Craigmillar, L.

Ryder of Wensum, L.

Glentoran, L.

Saltoun of Abernethy, Ly.

Goschen, V.

Seccombe, B.

Gray of Contin, L.

Selsdon, L.

Hanham, B.

Sharples, B.

Hanningfield, L.

Stewartby, L.

Henley, L.

Stoddart of Swindon, L.

Higgins, L.

Strathclyde, L.

681

Taylor of Warwick, L.

Wakeham, L.

Trefgarne, L.

Wilcox,B.[Teller]

NOT-CONTENTS

Addington, L.

Jay of Paddington, B.

Ahmed, L.

Jordan, L.

Alli,L.

Judd, L.

Andrews, B.

Kennedy of The Shaws, B.

Archer of Sandwell, L.

King of West Bromwich, L.

Ashton of Upholland, B.

Kirkhill, L.

Bach, L.

Layard, L.

Barnett, L.

Lea of Crondall,L.

Bassam of Brighton, L.

Lester of Herne Hill, L.

Beaumont of Whitley, L.

Lipsey, L.

Berkeley, L.

Livsey of Talgarth, L.

Bernstein of Craigweil, L.

Lofthouse of Pontefract, L.

Billingham, B.

McCarthy, L.

Blackstone, B.

Macdonald of Tradeston, L.

Borrie, L.

McIntosh of Haringey, L.

Bradshaw, L.

MacKenzie of Culkein, L.

Brett, L.

Mackenzie of Framwellgate, L

Brookman, L.

Mackie of Benshie, L.

Campbell-Savours, L.

Maclennan of Rogart, L.

Carter, L.

McNally, L.

Christopher, L.

Maddock, B.

Clark of Windermere, L.

Mallalieu, B.

Clarke of Hampstead, L.

Mar and Kellie, E.

Clinton-Davis, L.

Mason of Barnsley, L.

Cohen of Pimlico, B.

Massey of Darwen, B.

Colville of Culross,V.

Merlyn-Rees, L.

Corbett of Castle Vale, L.

Miller of Chilthorne Domer, B

Craig of Radley.L.

Mitchell, L.

Crawley, B.

Morgan, L.

Dahrendorf, L.

Morris of Aberavon, L.

Darcy de Knayth, B.

Murray of Epping Forest, L.

David, B.

Nicol, B.

Davies of Coity, L.

Parekh,L.

Davies of Oldham, L. [Teller]

Patel of Blackburn, L.

Dean of Thornton-le-Fylde, B.

Pendry, L.

Desai, L.

Perry of Walton, L.

Dholakia, L.

Pitkeathley,B.

Dixon, L.

Prashar, B.

Donoughue, L.

Radice, L.

Dubs, L.

Ramsay of Cartvale, B.

Evans of Temple Guiting, L.

Redesdale, L.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Faulkner of Worcester, L.

Richard, L.

Filkin, L.

Rodgers of Quarry Bank, L.

Fyfe of Fairfield.L.

Rooker, L.

Gale,B.

Roper. L.

Gilbert, L.

Russell, E.

Golding, B.

Russell-Johnston, L.

Goldsmith, L.

Sawyer, L.

Goodhart, L.

Scotland of Asthal, B.

Gordon of Strathblane, L.

Sharp of Guildford.B.

Gould of Potternewton, B.

Sheldon, L.

Graham of Edmonton, L.

Shutt of Greetland, L.

Greengross, B.

Simon, V.

Grenfell.L.

Stone of Blackheath, L.

Grocott, L. [Teller]

Taylor of Blackburn, L.

Hamwee. B.

Temple-Morris, L.

Hardy of Wath.L.

Thomas of Macclesfield, L.

Harris of Haringey, L.

Thomas of Walliswood, B.

Haskel, L.

Tordoff, L.

Hayman, B.

Turner of Camden, B.

Hollis of Heigham, B.

Walmsley, B.

Howe of Idlicote,B.

Walpole, L.

Howells of St. Davids, B.

Watson of Invergowrie, L.

Howie of Troon, L.

Watson of Richmond, L.

Hoyle, L.

Weatherill,L.

Hughes of Woodside, L.

Wedderburn of Charlton, L.

Hunt of Chesterton, L.

Whitaker, B.

Hunt of Kings Heath, L.

Whitty, L.

Hylton, L.

Williams of Crosby, B.

Irvine of Lairg,L.

Williams of Elvel,L.

682

Williams of Mostyn, L. (Lord President of the Council)

Williamson of Horton, L

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.25 p.m.
[Amendment No. 90 not moved.]
Lord Goldsmith Lord Goldsmith moved Amendment No. 91:
Page 17,1ine 20, leave out "the Director of Public Prosecutions" and insert "a relevant prosecutor"
The noble and learned Lord said: I move the amendment formally, as I have already spoken to it.
Noble Lords: No.
Lord Goldsmith: I apologise. I thought that I had spoken to the amendment under a previous group. The effect of the amendment is to make conditional cautions available to official prosecutors in addition to the CPS. The change was prompted by the view expressed by the Whitehall Prosecutors Group—I am sure that I have said this before—on which a range of prosecuting authorities are represented. There might be cases of theirs in which the form of disposal would be suitable. Some of them use simple cautions at present, and the amendment will enable them to accompany a caution with a condition that reparation should be made. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 92 to 94 not moved.]
Clause 25, as amended, agreed to.
Clause 26 [Interpretation of Part 3]:
Lord Goldsmith Lord Goldsmith moved Amendment No. 95:
Page 18, line 4, at end insert—
""relevant prosecutor" means—

(a) the Director of the Serious Fraud Office,

(b) the Director of Public Prosecutions,

(c) a Secretary of State,

(d) the Commissioners of Inland Revenue,

(e) the Commissioners of Customs and Excise, or

(f) a person who is specified in an order made by the Secretary of State as being a relevant prosecutor for the purposes of this Part."

On Question, amendment agreed to.
Clause 26, as amended, agreed to.
Clause 27 agreed to.
Schedule 2 [Charging or release of persons in police detention]:
Lord Dholakia Lord Dholakia moved Amendment No. 96:
Page 179, line 23, after "bail" insert "for a period of not longer than 28 days"
The noble Lord said: The purpose of our amendment is to look at the PACE Act 1984 on matters of charging or release of persons in police detention. We would be happy to see a time limit included in the primary legislation. The amendment

683
would limit the pre-charge period from dragging on unnecessarily and thereby occasioning an appeal to the court, and ensure a right of appeal well established and recognised.
The CPS will of course progress the case as fast as possible. However, we have concerns about the unlimited bail periods. Set deadlines go some way to ensure that matters are reviewed and less likely to drag on unnecessarily. The alternative may be a high number of appeals against pre-charge bail with attendant cost implications. I beg to move.
Lord Hodgson of Astley Abbotts: I shall speak to two amendments in the group, Amendments Nos. 99 and 100. They also concern adjustments in the Bill made to Section 37 of the Police and Criminal Evidence Act 1984.
The amendments moved by the noble Lord, Lord Dholakia, concern the duties of custody officers before charge. Our amendment is concerned with Section 47 of PACE—Bail After Arrest. Amendment No. 99 would ensure that if a custody officer imposes bail conditions on a person, the person must be charged before 30 days have passed or the bail conditions lapse. If the person is charged, the case will be passed to the court, which could impose fresh terms. The amendment would limit the power that a custody officer may have over people's freedom. It is undesirable for a person or a body other than a court to be able curtail a person's freedom over a lengthy period of time.
The other amendment in this group, Amendment No. 100, seeks the addition of a constable to the list of persons who are granted the right to apply to a magistrates' court to vary the conditions of bail. It is a straightforward amendment. Just as the terms of bail may seem unfair or impracticable to a defendant or suspect, they might prove unsatisfactory also from the point of view of the police. The right to apply for the conditions of bail to be varied is a necessity for the defendant, because a change in circumstances could make the conditions unfair or inapplicable. We seek to probe the Government as to why the police should not have those same rights.
6.30 p.m.
Lord Hylton: Amendment No. 96, moved by the noble Lord, Lord Dholakia, is important, because it seems to be designed to prevent a person falling into a kind of limbo state, where they are not charged, but they are also on bail. I do not know whether 28 days is the right number, but the principle is important.
Lord Goldsmith: Two of the amendments are mine and I should identify them. They are Amendments Nos. 97 and 98. In moving them, I shall speak also to Amendment No. 96, moved by the noble Lord, Lord Dholakia, and to Amendments Nos. 99 and 100, which stand in the names of the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman.
Amendments Nos. 96 and 99 would place a limit on the duration of any conditions on bail and the time for which a suspect could be bailed. The Home Affairs
684
Select Committee recommended that there should be a limit on the duration of pre-charge police bail in cases referred to the Crown Prosecution Service for a decision on whether to charge. In their response, the Government undertook to consider the Select Committee's recommendation, indicating that at that stage the charging pilots. which were looking at that new form of co-operation between the police and the CPS, were suggesting that in most cases a five-week period should be sufficient to enable charges to be brought.
However, we have now been able to take account of the final evaluation report, which was an independent report, of the charging pilots. That recommended that no statutory limit should be applied. The Government have considered that carefully and have concluded that it would not be appropriate to place a statutory restriction on the duration of police bail, or on conditions attached to it. No such condition is attached to police bail in statute at present. I am not persuaded that there are compelling reasons to include one in the Bill.
That does not mean that the period for which suspects would be bailed, whether on conditions or not, should be unreasonably long, but the appropriate place to make that clear is in the guidance and instructions which will be issued by the Director of Public Prosecutions and by ACPO, the Association of Chief Police Officers, rather than in the Bill.
I emphasise that it would be open to a suspect to apply to a magistrates' court for conditional bail to be varied or to be discharged. Legal aid will be made available for that purpose. If, at any stage, it appears that the length of time is becoming excessive, it is open to a person to go a magistrates' court and ask either for the conditions to be varied or to be discharged. During that period, the person will be on bail rather than in custody.
Amendment No. 100 would enable a constable, as well as the suspect, to apply to magistrates' courts to have pre-charge bail conditions varied. That seems to be superfluous as the custody officer may vary the conditions himself.
I hesitate to say that government Amendments Nos. 97 and 98 are merely drafting amendments. On this occasion, I hope that I will not be contradicted, but I wait to see.
Lord Elton: In my experience, it is always safest to say that something is technical or complicated late at night. The noble and learned Lord might like to remember that.
The amendment of my noble friend, Amendment No. 100, and the remarks of the noble and learned Lord, raise a question that I have had at the back of my mind for some time. If the conditions are in place for a long time, their variation can be an important part of the management and possible rehabilitation—if that is the right word—of the admitted offender.
I understand from what the Minister said that the custody officer will be able to apply for a variation, as will the person subject to the order, but surely the

685
person best placed to judge how a variation could improve the prospects of non-reoffending would be the person in charge of monitoring—to use the term in the Bill—the operation of the conditions. Is it intended to use the variation of conditions in that way? If so, would it not be best to give a power to go to the court to the person carrying out the monitoring?
Lord Goldsmith: It may be my fault for not having made it clearer that we have moved on from conditional cautioning to a different set of provisions in the Bill, which address charging in instances where the prosecution will make the decision to charge. This amendment is concerned with the question of bail and conditions for bail for potential offenders or suspects while the decision whether to charge is being made.
Lord Elton: I apologise to the noble and learned Lord and to the Committee. I was out of the Chamber for a couple of minutes for a telephone call that lasted longer than I expected. I had not noticed the change.
Lord Dholakia: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goldsmith Lord Goldsmith moved Amendments Nos. 97 and 98:
Page 182, line 16, leave out "37D(6) above" and insert "37D(5)"
Page 182, line 30, after "37(7)(a)" insert "above"
On Question, amendments agreed to.
[Amendments Nos. 99 and 100 not moved.]
On Question, Whether Schedule 2, as amended, shall be agreed to?
Lord Mayhew of Twysden: Would it be possible, if not today then a little later, to take account of the point raised by the General Council of the Bar in relation to Schedule 2 and to this particular provision which gives to the police a new power to attach bail conditions before charge? The council's point was that the mere fact that a suspect has been brought to the police station does not mean that he or she has committed any offence. The council then points out that the custody officer is required to determine whether he has before him sufficient evidence to charge that person. Routinely, so it is said, the suspect is charged where there is a minimum of evidence. It is thereafter pointed out that where the custody officer takes the view that there is not enough evidence to justify a charge, it can generally be inferred that there is at the time little or no substance in police suspicions.
The police have adequate power to release a suspect on bail to return to the police station on a specified date. Accordingly, it seems to me, although I have not reached a conclusion about it, that it would be an unfair extension of police power to be able to impose a condition on bail in those extreme circumstances. I am afraid that I have not put down an amendment to
686
enable the matter to be debated, but the Minister may be able to say something about it now or, alternatively, later.
Lord Goldsmith: I can certainly say this and I hope that it will help. The provisions in Schedule 2 deal in part with the new procedure under which the police will not charge an offender, even though they may believe that there is sufficient evidence to do so, but may instead release that person without charge on bail for the purpose of enabling the Director of Public Prosecutions to make a decision. One sees that on page 179, Schedule 2, paragraph 2, amending Section 37 of PACE. It is fundamental to the change, which has not attracted much by way of amendments because it has been supported by all political parties and the police and professional bodies too. In many cases—I will not go into which cases—it also gives the prosecution the new responsibilities for determining whether a charge should be brought.
In those circumstances, instead of the custody officer then and there saying, "You're charged with this offence", he will say, "There appears to me to be evidence, but in accordance with the new provision it ought now to go to the Crown Prosecution Service". What should happen during that period? The person should be on bail rather than in custody—he would have to be charged to be in custody—but it is appropriate for conditions to be imposed. It is necessary to make the new provision for having pre-charged bail in order to be able to cater for that example.
Schedule 2, as amended, agreed to.
Clause 28 [New method of instituting proceedings]:
[Amendments Nos. 101 to 104 not moved.]
Clause 28 agreed to.
Clauses 29 and 30 agreed to.
Clause 31 [Initial duty of disclosure by prosecutor]:
Baroness Anelay of St Johnsmoved Amendment No. 105:
Page 20, line 17, at end insert—
"(c) at the end there is inserted "where a prosecutor is not sure if an item falls within the regime of documents to be disclosed, they should be disclosed"."
The noble Baroness said: We now begin our debates on the important issue of disclosure. As we have made clear already, there is much that we can support in Part 5, but there is also much that we need to probe and clarify. We will oppose some issues, such as the proposal for the defence to disclose the details of experts whom they have consulted but do not intend to call as witnesses.
Clause 31 is just about the only non-controversial part of Part 5. It amends Section 3 of the Criminal Procedure and Investigations Act 1996 and introduces a single objective test for the disclosure of unused prosecution material to the defence. We welcome this reduction of the existing two-stage process of prosecution disclosure to just one stage and we

687
welcome the change of the test from subjective to objective. It means that the test of, as currently worded,
"in the prosecutor's opinion might undermine".
becomes,
"might reasonably be considered capable of undermining".
We have tabled this probing amendment in response to a briefing from the London Criminal Courts Solicitors' Association. It simply asks the Government to put on the record that it is only in clear-cut cases that information should not be disclosed by the prosecution. Failure by the prosecution in the past to disclose information has sometimes been a major factor in overturning convictions—and, as Auld points out in his report, this is often after the person has spent many years in prison.
It is therefore essential that the right decision is made by the prosecution and if there is any doubt the prosecution should disclose. I beg to move.
6.45 p.m.
Lord Goldsmith: I understand the motivation behind the amendment. It is designed to ensure that the legislation is weighted in favour of prosecution disclosure rather than non-disclosure. I agree that it should be, but the amendment is not necessary for three reasons. First, the wording of the Bill already achieves this effect, although it is implicit in the legislation rather than explicit. The Criminal Procedure and Investigations Act 1996, as amended by this Bill, requires material to be disclosed if it might—I underline the word "might"—reasonably be considered capable of undermining the prosecution case or of assisting the defence case.
We see those words in Clause 31, paragraph (a). The word "might" in this context already tips the balance in favour of disclosure where there is any doubt in a particular instance.
The second reason is that there is an explicit steer on the subject in detailed guidance that is issued to prosecutors. The present guidance is in the Attorney-General's guidelines of November 2000, which cover this point explicitly. Paragraph 20 provides:
"In deciding what material should be disclosed at any stage of the proceedings, prosecutors should resolve any doubt they may have in favour of disclosure unless the material is on the sensitive schedule and will be placed before the court for the issue of disclosure to be determined".
I need not now deal with the issue of sensitive material, which obviously falls into a different category.
Thirdly, one of the changes made by the Bill is to remove the subjective test from the disclosure procedure. Again, that appears from Clause 31 because the old formulation,
"in the prosecutor's opinion might undermine"
is substituted by the objective test,
"might reasonably be considered capable of undermining".
The amendment proposed by the noble Baroness, Lady Anelay, would restore a subjective element. We have been trying to get rid of the subjective element and to stick to an objective test that does not depend on which person is applying it.
688
While not disagreeing with the thrust of what lies behind the amendment, for the reasons I have given we do not consider it necessary. Accordingly, I invite the noble Baroness to withdraw the amendment.
Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his response. As he said, the assurance is not explicit within the Bill, only implicit. His response today has made the Government's assurances explicit and on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 agreed to.
Clause 32 [Defence disclosure]:
Baroness Anelay of St Johnsmoved Amendment No. 106:
Page 20, line 31, at end insert "but the exchange of such a defence statement between the co-accused and its service by each accused on the prosecution shall be simultaneous"
The noble Baroness said: In moving Amendment No. 106, I shall speak also to Amendments Nos. 110 and 111. Amendment No. 109 appears on the groupings list in error. It was withdrawn last week and is so marked on the Marshalled List.
There is also an error in the placement of Amendment No. 111. In the Marshalled List, it is placed at page 21, line 38. That is a printing error because it should be at page 21, line 42.
We now move to the issue of defence disclosure. Disagreements over this clause are rooted in concerns about how the Government appear to be tampering with the principle of what the defence should be allowed to do to resist the prosecution. It reflects debates on the relative and different duties of the prosecution and defence.
In the debates on this matter in another place, (col. 223 on 9th January) my right honourable friend Dominic Grieve made it clear that we accept the principle of disclosure of the principal defence facts. After all, it was introduced in legislation under the previous Conservative government. Even in an adversarial system such as ours, a criminal trial should not be a series of ambushes. It is therefore plainly desirable that, as far as is possible and reasonable, the principal facts and matters of a defendant's case should be made available to the prosecution before the trial.
As has been pointed out by many organisations which have briefed noble Lords, such as the Bar Council, Justice and the Law Society, the defence will usually have far fewer resources at its disposal than the prosecution to provide extensive information and to provide it speedily.
Amendment No. 106 would provide for the simultaneous exchange by defendants of their respective statements with each other and their service on the prosecution. We appreciate of course that there may be times when this will not be possible; for example, when the defendant is arrested late. However this does not deny the fact that it would be far better to exchange all statements simultaneously. If this is not

689
achieved, then the last defendant to join proceedings would have a distinct advantage over the others, which may not lead to a fair trial.
Amendment No. 111 develops this theme by taking the same line with regard to the simultaneous nature of exchange in circumstances where there has been an updated defence statement. Again we accept that this could create problems. Additional statements may be served for different reasons by different defendants at different times. Amendment No. 106 serves to remind us of the core principle of the fairness of the mutual exchange of statements. It is with the intent of putting on record the importance of that principle that we have put down these two probing amendments.
On Amendment No. 110, I note that the Bar Council and the Law Society have the view that with regard to Clause 32(2):
"Contents of defence statement gives the Secretary of State power to prescribe in regulations further details to be required in defence statements. This is too constitutionally sensitive and important to the balance of a fair trial and should require primary legislation."
That is their view. I have tabled the amendment, in part, so that the Government can put on the record why they believe it is appropriate for secondary legislation. I have also tabled it for my own purposes. I wish to clarify a situation that arose as a result of how this was dealt with in another place. I have given advance notice of this particular point to the noble and learned Lord's Bill team.
This matter was debated in another place on 9th January (Hansard, col. 240). It was an amendment put forward by my honourable friend, Dominic Grieve. The quick response from the Government was to say, "We accept it. It shall be an affirmative resolution." When the Bill appeared in draft after Committee, it reflected that by putting a new subsection (5) which referred to an affirmative resolution. As I understand it, the Government then brought forward a further amendment at Report to delete the new subsection (5). They tabled an additional amendment to insert a provision on page 302, line 22, to amend Section 77 of the Criminal Procedure and Investigations Act 1996.
This is a hugely complicated procedure. When we looked at the Bill, it seemed at first blush as though the Government had reneged on their commitment in another place. We knew that was not the case. It would not have happened. But nobody could find where this amendment was. It was only when we spoke to the advisers of the noble and learned Lord that we were told what had happened. We believe it is important for clarity for those who have to deal with this Bill when it becomes an Act that the commitment of the Government is made clear. I would be grateful if the noble and learned Lord could confirm his understanding that the life history of Amendment No. 110 is as I have described it. I beg to move Amendment No. 106.
Lord Goldsmith: I shall speak to Amendments Nos. 106, 110 and 111. Amendments Nos. 106 and 111 relate to procedure for the cross-service of initial and
690
updated defence statements respectively. Clause 32(1) seeks to fill a gap in the disclosure procedure drawn to the Government's attention by the Criminal Bar Association, namely, whether it was possible for the court to order the cross-service of defence statements. Since this Bill was introduced, on 22nd November 2002 the Court of Appeal, in the case of Regina v Cairns and Others, held that the court could indeed order cross-service. This clause still provides useful statutory backing to the Court of Appeal's decision. There is no objection in principle to cross-service. We are dealing here solely with the procedure to be followed. As the amendments are drafted, they would require the service of the co-defendants' statements on the prosecutor and their cross-service all to take place simultaneously. I do not think this is practical or, in many cases, desirable.
Subsections (1) and (3) of the clause make it clear that the power to order cross-service of initial and updated defence statements to co-accused is one for the discretion of the judge, either of his own motion or on application by any party. Subsection (1)(5D) also deals with the time when the statement should be served.
In the exercise of its discretion, the court would need to determine whether the defence statement in a case should be submitted simultaneously or whether there should be some different order as to time. If no statement were served until it had been proved to the satisfaction of all the defence teams that service would be simultaneous, that could delay and complicate the trial. For example, the illness of a single defendant could delay disclosure. Moreover, a delay in the prosecution's receipt of the initial defence statement would delay further prosecution disclosure to the disadvantage of defendants. That would not be acceptable. I understand the motivation underlying the amendments, as debated in Committee in another place, that one co-accused should not be able to derive an advantage from delaying his own statement until he has seen the line to be taken by the other defendants at the trial. However, we can safely rely upon the discretion of the judge in ordering cross-service to take account of this consideration.
Amendment No. 110 seeks to remove the power which subsection (4) of the new Section 6A of the Criminal Procedure and Investigations Act 1996 confers on the Secretary of State to make regulations on the details of matters to be included in the defence statement. Clause 32 as a whole addresses well-founded concerns which have been expressed and confirmed by research, as to the inadequacy of many defence statements. The changes it makes to the defence statement procedure are intended to remedy a problem of non-compliance which arises to some extent out of the fact that the present defence statement requirements are too vague. We hope that the changes introduced by new Section 6A will have the desired effect in improving the quality of defence statements. But the regulation-making power will enable further more specific and detailed guidance on their contents to be issued if it proves necessary. It will enable us to respond more quickly and flexibly to any

691
need for further guidance which may arise than is possible with primary legislation. The regulation-making power enables the Secretary of State to add detail to—or vary the detail of—matters which are to be included in defence statements. Those matters are identified in the primary legislation.
I turn now to the question that the noble Baroness put to me about the provisions of a form of resolution. The amendment on Report in another place was a technical one. It put the provision in the correct place in the Criminal Procedures and Investigations Act 1996. It was moved from the new Section 6A to Section 77 of the CPIA which deals with parliamentary procedures for all secondary legislation under the CPIA. I can confirm that it is still the affirmative procedure and does satisfy the undertaking which was given in Committee, as the noble Baroness knew it would. I hope for those reasons it is clear why I cannot accept these amendments.
Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his response. He confirmed that the life history of Amendment No. 110 as I described it was accurate. We can all rest assured. With regard to Amendments Nos. 106 and 111, I appreciate that there are practical difficulties. Like the noble and learned Lord, I am prepared to leave it to the judge to resolve those matters of cross-service. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 107 and 108 not moved.]
[Amendment No. 109 had been withdrawn from the Marshalled List.]
[Amendments Nos. 109A to 111 not moved.]
7 p.m.
On Question, Whether Clause 32 shall stand part of the Bill?
Lord Ackner: Clause 32 links with Clause 33—the next item that we shall come to—and I have company in my attempt to persuade the Committee that Clause 33 should not stand part of the Bill. I base my approach to this matter essentially on what is in the memorandum filed in the Library of the House by the noble and learned Lord the Lord Chief Justice following the debate on the legislation. The relevant part reads as follows:
"We understand the motivation behind the provisions in the [Criminal Justice Bill]. It is to redress what is perceived as an imbalance between the obligations of the defence and the prosecution. But the judiciary are concerned that the balance is being pushed too far the other way—for example, the notification requirements on the defence will be more rigorous than those on the prosecution. Sanctions are included in relation to non-compliance with the defence obligations without any equivalent sanctions being referred to in relation to the prosecution. These distinctions are likely to interfere with the spirit of co-operation which is required to exist between the prosecution and the defence when conducting this important part of the pre-trial process".
692
It then goes on to deal with the issue of experts, but that is the subject matter of the next clause. Basically, those are my reasons for lumping together Clause 32 and Clause 33, which we have not yet reached.
Baroness Kennedy of The Shaws: I join the noble and learned Lord, Lord Ackner, in expressing concern about this requirement on disclosure for the defence. In principle, the defence should disclose the areas of evidence which it will contest. The argument for introducing those changes, which took place some years ago, was to prevent an ambush of the prosecution by providing a defence which the prosecution could not then investigate in any way.
The new defence statement works very effectively in laying out the parameters of the defence. Because the present arrangements have worked rather well, I want to understand fully what is being sought here and what the Government feel is not happening. I am concerned that, by now expecting far more detail than ever before, the police will be burdened with an incredible bureaucracy. They will be expected to pursue witnesses and to investigate whether the detail given by the defence will be useful to the Crown.
We are seeing, first, an erosion of the presumption of innocence and, secondly, an erosion of the burden of proof, which rests with the Crown. That is quite an alarming change. I believe that the defence should outline the position, but I express concern about this provision. I know that that concern is shared by my noble friend Lady Mallalieu, who, unfortunately, was unable to stay for the debate on this clause. Our concern arises following many years of experience in the criminal courts. The opposition to the Question whether Clause 32 shall stand part sits alongside opposition to Clause 33 because the two go together.
Why is there an expectation that more should be disclosed and passed to the Crown? As well as being contrary to the burden of proof, one introduces into the need for co-operation on both sides a concern that, by giving out information on witnesses whom it is intended to call but who ultimately might not be called, witness intimidation will occur. That was always a concern. The intimidation need not be direct; sometimes it may result from what the witnesses themselves feel.
We had the terrible experience in some major miscarriages of justice of witnesses being seen by the police and then disappearing into the ether because they were frightened of being prosecuted themselves. I acted in the Guildford Four appeal. Carole Richardson was one of those convicted and she spent many years in prison. A witness could have shown that she was with him when the explosion took place—or certainly that she was with him within the parameter of time which could not have allowed for her participation. Yet that witness did not come forward. He had felt so threatened by the police that he did not make himself available and, of course, those acting for the Crown did not let anyone know that they had seen him.

693
Therefore, real concerns arise about this provision interfering with the system of justice. I believe there is concern among practitioners that not only does it provide scope for the intimidation of witnesses but, as the judiciary have indicated, that it is a balancing that goes too far. I should like the Minister, who I know does not have experience of practising in the criminal court, to explain why the provision is necessary. The dynamic of a trial is that it changes all the time. Sometimes one decides not to call witnesses and sometimes one decides that one does want to call witnesses. Why should a person be expected to make that disclosure beforehand? To what end is that intended?
Lord Renton: I was interested to hear the noble Baroness say that she was involved in the trial of the Guildford Four. It so happens that some years before that I was Recorder at Guildford for three years. I am very glad that she said what she did—in particular, as she stressed, that the burden of proof must remain upon the prosecution.
However, if the provisions of this clause and the two later ones come into force, I am afraid that the doubts that I have had for some time about the 1996 Act will be increased. In Clause 38, in particular—I know that it is slightly outside the scope of this matter but it is relevant—and in other clauses the burden of proof could appear to be moved on to the prosecution but on somewhat technical grounds. That is not part of our fundamental principle of justice in criminal actions.
Therefore, I believe that the noble and learned Lord, Lord Ackner, has performed a valuable service in opposing the Question whether Clause 32 stand part. I hope that I am not being outrageously irrelevant if I say that that is an example of our having to take great care about changes that may be made in the judicial composition of this House in future.
Lord Clinton-Davis: Like other noble Lords, I am deeply concerned about this provision. I believe that the noble and learned Lord, Lord Ackner, has done a service by insisting that Clauses 32 and 33 should run together. I hope that my noble and learned friend will take this opportunity to think again about the proposal outlined here, as addressed by a number of noble Lords.
I have a lot of experience of criminal trials, although I gave up at the end of 1984. I learned that co-operation between the prosecution and defence is vital. I am worried that in their rush to deal with ambush defences, which the Government think are a real problem, although I do not, the Government are trying to prevent the House of Lords reaching a reasonable solution on this issue. Anything that impedes or impairs that degree of co-operation is likely to cause immeasurable harm in practice.
The prosecution trusted me—a great deal depends on trust—and I found that in discussions with the prosecution, whether it was represented, or with the police themselves, it was possible to reach a solution
694
that both sides found equitable. I cannot think of an occasion when the prosecution, or for that matter, the defence, were unreasonable if they were properly represented.
I find it impossible to accept that the balance to which the noble and learned Lord, Lord Woolf, referred should be pushed quite as far as it is being pushed at the moment. My view is that the balance is about right. I am not against any change whatever, but it is important to preserve some balance. What my noble and learned friend has in mind is unacceptable. It is being said that the prosecution is disadvantaged by the present law, but it is not.
As I said, a great deal depends on trust. If a dishonest solicitor appears for the defence, that trust will be affected. Equally, a prosecution that is sanguine about revealing essential issues affecting prosecution witnesses would also be unacceptable.
However, in practice it does not work like that. I ask my noble and learned friend to think again about this issue. I hope that it will not be pressed to a Division tonight, but I cannot promise not to return to it later in our considerations.
7.15 p.m.
Lord Goldsmith: I am grateful to those who have spoken and, of course, I respect their views.
I shall spend a few moments on Clause 32, which is the clause that we are considering, although the debate has, understandably, ranged more widely. There are three different provisions. First, Clause 32 deals with the contents of a defence statement and updated defence statements. I shall say more about that in a moment, but it gives more detail to existing obligations under the 1996 Act, which noble Lords on the Conservative Benches will certainly wish to support, as it follows on legislation for which they were responsible.
Secondly, on the point to which my noble friend Lady Kennedy of The Shaws referred, Clause 33 deals with the notification of intention to call defence witnesses. It gives rise to an issue that has been touched on in another place, and it will be necessary to say something about it—specifically on the question raised by my noble friend about whether it might result in witnesses being somehow intimidated.
Thirdly, we shall come separately to Clause 34 on the notification of names of experts instructed by the defendant.
As it applies to all those clauses, I shall start with what the Lord Chief Justice said in his important statement that was placed in the House following Second Reading. He, and the judges for whom he spoke, as I understand it, say:
"Problems in relation to disclosure have been a significant impediment to proper conduct at trials. The problems have related both to the prosecution and to the defence and have resulted in acquittals, cracked trials and prolonged arguments as to abuse of process".
I noted that my noble friend Lady Kennedy talked about the present situation working effectively, but that is by no means a universal view. On the contrary,

695
let me identify what others have said. Independent research commissioned by the Home Office concluded that in 52 per cent of cases with a defence statement, it either contained a bare denial of guilt or did not meet the requirements of the existing provision.
The report said that most judges, barristers, CPS respondents and defence solicitors agreed that defence statements had not narrowed the issues at trial. While the point has been made that such statements are intended to avoid ambush defences, there is an important reason apart from that, which is sensibly to narrow the statement to know what is and what is not an issue. If everything is an issue, so be it. But if everything is not an issue, let that be identified at an earlier stage so that the court can sensibly manage the case.
When I have asked the question, the view almost to a man—or to a woman, I should say—has been that the present system of defence statements is on the whole not working.
My noble friend Lord Clinton-Davis asks me to think again. I assure him that it is a matter about which I have thought long and hard, as have other members of the Government. I shall then speak about the structure.
Lord Clinton-Davis: Before my noble and learned friend does so, he says that everybody who has been consulted agrees with the Government. I am afraid that that is not right. The Law Society, the Bar Council, Justice, and a host of others do not agree with the Government. What does the Minister have to say about that?
Lord Goldsmith: I said that everyone to whom I have spoken agrees that the present system of defence disclosure is not working effectively, despite what my noble friend Lady Kennedy says.
Defence disclosure has two functions. It is a trial management tool. It also presently informs the duty of continuing disclosure, which rests on the prosecution. The research has demonstrated that the system is not working.
Lord Justice Auld's comments are worth reciting because of their importance and the distinguished position that he holds, together with his great experience. Lord Justice Auld states:
"I do not see it as an attack on the prosecution's obligation to prove its case and the defendant's right of silence that he should be required to identify the allegations or facts that he intends to put in issue. It does not require him to set out his defence other than by reference to what he disputes. If he intends to put the prosecution to proof of everything, he is entitled to do so. But if his intention is, or may be, to take issue only on certain matters, the sooner he tells the court and prosecutor the better, so that both sides know the battleground and its extent".
It was the distinguished Runciman Royal Commission, from which the 1996 provisions come, that considered that defence disclosure was justifiable and legitimate.
We are seeking to tighten up the sanctions for inadequate defence disclosure in a relatively modest way. These things can be done if a defence disclosure
696
is inadequate. First, the judge has the power to warn the accused of the possible consequences of an inadequate defence disclosure. Secondly, the judge has the power to direct that the defence statement be given to the jury. Thirdly, the prosecution and other parties will be allowed to comment on defence disclosure failures, without the leave of the court in many cases. There is nothing there to prevent a defendant calling evidence, even if he has not given notice of it. Nor is there anything about denying the defendant the ability to raise a defence even though he has given no notice of it.
I note what is said by the noble and learned Lord the Lord Chief Justice, cited by the noble and learned Lord, Lord Ackner. With respect, however, I differ on this occasion from the proposition that the obligations on the defence are more arduous than those on the prosecution or that the sanctions are more serious. This is a very important point, so I will make it well. The obligation on the prosecution is not only to give the names of its witnesses, but to serve every witness statement on which it intends to rely and every document it intends to put before the court.
More than that, the prosecution is obliged to provide to the defence all the material in its possession that may be of assistance to the defence or undermine the prosecution even though the prosecution does not intend to rely on it. With respect, I must say that that is a far more onerous obligation than that on the defence to give details of the defence but not the witness proofs, and to identify witnesses it may intend to call.
Baroness Kennedy of The Shaws: I hesitate to interrupt my noble and learned friend the Attorney-General, but it is very important that we do not swallow this idea of the level playing field, without recognising that there can never be a level playing field between the defence and Crown, because of the huge resources available to the state. The state has at its disposal the police, who can investigate and trace witnesses and have huge resources. Such a resource can never be balanced with that of the defence. That is why one takes account of that in the level of the disclosure expected of each side. That is why there is such difference.
We must also take account of the fact that the burden is on the state because it is able to punish at the end of the day. To talk about levelling the playing field is not reflecting the reality of the arms on either side.
Lord Goldsmith: I do not recall using the expression "levelling the playing field". I have not suggested that the defence obligation should be the same as prosecution obligations at all. I was making it clear that the sanction proposed—being able to invite the jury ultimately to draw an inference from a change of case—is modest. I challenge the proposition that the obligations placed on the defence are more onerous than those on the prosecution. They are plainly not.
What are the sanctions that may be imposed on the prosecution if it fails to give disclosure? I deal with this, despite what the noble Baroness said about my

697
experience, every day of the week. Prosecutions are constantly in difficulties because a disclosure has not been made which, it is alleged, ought to have been made and an application is made for the trial judge to stop that case. Cases are being stopped completely. People are being acquitted because of a failure by the prosecution to give disclosure. Evidence is excluded on the grounds that there has not been proper disclosure by the prosecution and that therefore it should not be admitted. A strong sanction is placed on the prosecution; a much stronger sanction than that of inference.
Many people outside Parliament would say that it is common sense to draw an inference in appropriate cases that a person's defence is not to be believed because they first said one thing and then said something else. It is one of the tools by which we in everyday life judge the veracity of a person. If they first say that there was an accident and then they say, "I didn't do it at all", many would say that we ought to be able to take that into account. At the moment, judges would allow that to happen. I do not want to go further than is appropriate to deal with a particular clause.
Lord Ackner: I am very grateful to the noble and learned Lord the Attorney-General for allowing me to intervene. He criticised what is to be found in a memorandum deposited by the Lord Chief Justice, which is unfair. I stopped reading at paragraph 9 to avoid being told that I was extending my attempts to stop Clause 2 standing part of the Bill by going to other clauses. The memorandum points out that the balance is being pushed too far the other way with regard to Clauses 31 to 38. The noble and learned Lord the Attorney-General did not read this part out. I did not read it either, but if he is going to criticise the statement deposited we should bear it in mind. The paragraph entitled "Experts" states:
"The defence is required, not only to identify an expert who is to be called as a witness, but also an expert who has only been instructed. It is not clear what legitimate use can be made of the information about 'unused' experts that the defence is under an obligation to supply. This procedure must not be used as a backdoor way of obtaining privileged information. If the aim is to eliminate 'duff' experts, a much better way forward would be to pursue the accreditation proposals that have been put forward with the support of Judge Thorpe".
The report continues:
"Again, this is an example of unequal treatment. If the prosecution go to four experts and only choose to call one they are not required to give that information to the defence, whereas the defence are required to provide such information. The question arises as to what use is to be made of the names of experts instructed by the defendants. Is it intended that they should be interviewed by the police? If so, this could be highly undesirable because, in order to instruct an expert, it is often the case that privileged information has to be given to the expert. Are questions to be asked at the hearing by the prosecution about experts instructed by the defence who are not called? If so, should not the defence be in a position to ask similar questions about the
698
prosecution's experts. The explanatory notes are silent as to the purpose of requiring a defendant to make disclosure as to experts instructed".
Baroness Anelay of St Johns: Before the Attorney-General responds to that, perhaps it may be helpful to the Committee if I make clear that the noble and learned Lord, Lord Ackner, appears to have taken us forward into Clause 34 and to a further grouping of amendments that I have tabled, in which Amendment No. 133, in particular, is intended to address those issues. I shall save my remarks until we reach that point.
Lord Goldsmith: As I said earlier, I was trying to avoid drifting into other clauses, while understanding why noble Lords were referring to them generally to make their points. In response to the noble and learned Lord, Lord Ackner, I was of course not criticising the noble and learned Lord the Lord Chief Justice or his statement. I was respectfully taking issue with the proposition that the obligations on the defence are more onerous than those on the prosecution—I respectfully submit that they plainly are not—and with the proposition that sanctions are included for non-compliance with defence obligations without any equivalent sanctions being referred to for the prosecution. I was saying that the sanctions by which the court can exclude evidence or stop a prosecution altogether and call for a defendant to be acquitted seem to me, with respect, to be powerful—and more powerful than those that we intend to allow a judge to impose, or to be imposed, for non-disclosure here.
Even in relation to the point about experts—although I do not want to trespass too far—with respect, the statement of the noble and learned Lord the Lord Chief Justice suggests that the prosecution would be able to conceal the fact—of course, he does not use that language—that it has shopped around among experts. I respectfully beg to differ. If the prosecution has been to other experts and decides not to call them, it is highly likely that it will have to disclose not just the names of the experts but their reports as unused material, because they are likely to undermine the prosecution or assist the defence case. So, with respect, I do not accept that point.
I return to the fundamental point. My noble friend Lord Clinton-Davis talked about the need for a spirit of co-operation between the prosecution and defence. I agree. In paragraph 9, the Lord Chief Justice's statement ends by referring to the need for a spirit of co-operation between prosecution and defence. I respectfully agree.
Clause 32, with which we are concerned, imposes modest but important requirements on the defence to indicate the matters referred to. The sanctions to enforce that are modest; they are intended to make something work that has not worked since 1996. The Government's view is that the clause should be supported.
Lord Ackner: At this stage, I do not propose to divide the Committee, but I shall return to the matter

699
on Report, unless we obtain some satisfactory resolution as a result of the debate on the objection to the next clause and the one thereafter standing part.
Clause 32 agreed to.
Lord Davies of Oldham: In moving that the House be now resumed, may I suggest that the Committee begin again not before twenty-six minutes before nine.
House resumed.

European Union: Information
7. 34 p.m.
Lord Stoddart of Swindonrose to ask Her Majesty's Government how much money (a) they and (b) the European Union spend each year in the United Kingdom on information about the European Union, and how these sums of money are split between (i) schools, (ii) universities and other further education establishments, and (iii) elsewhere.
The noble Lord said: My Lords, many people have been concerned about the intrusion into schools, universities, public libraries and the media of what can only be described as one-sided propaganda by the European Union to promote political integration, rather than to provide balanced and factual information about the European Union. The Bruges Group, of which I am an associate member, has conducted research into the matter and has produced a pretty comprehensive brief, which the Minister has seen, showing the extent to which the European Union propaganda machine has penetrated our schools, universities and other institutions. We should be grateful to it for having produced such in-depth research from its own resources.
Let me be clear. There can be no objection to the European Union or the Government providing impartial and unbiased information. What is objectionable—indeed, in some aspects, illegal—is that taxpayers' money should be used to promote European integration, which is a highly sensitive and contentious issue that divides people throughout the European Union, not simply in Britain. It is also objectionable that it should be used to promote one side of the argument about British membership of the euro.
It is little wonder that so many people are worried and outraged by the European Union's use of taxpayers' money to promote European integration, while the same time denigrating, insulting and subverting the nations of Europe and, in the case of the United Kingdom, promoting the abandonment of sterling. The European Union propaganda budget—which is large, about 105 million euros—is used to fund all sorts of organisations: youth organisations, women's groups, youth parliaments, Europe Day, television programmes, press contacts, campaigning in candidate countries for a yes vote—you name it, they do it.
One area of greatest concern is EU propaganda in the classroom, where both European integration and the euro are being promoted. Indeed, it is Commission
700
policy to influence young minds. A paper endorsed by DG 22 welcomed the opportunity to implant the idea of European citizenship by placing the euro in its historic perspective and supports the use of teachers to inform children, so that they can be used as go-betweens to influence older generations to embrace the European ideal and, of course, the European currency.
To achieve its aims, the Commission has produced teaching aids and modules that are completely one-sided and made no attempt to achieve balance. One booklet, entitled Let's Draw Europe Together, designed for older primary school pupils, contains an opening section entitled, "My Country: Europe", implanting the idea in young minds that they are not British but European. The Government protest that they are in favour of a Europe of nation states—not a European superstate—yet, our children are being taught the reverse by the European Union and encouraged to turn their backs on Britain.
There is also the notorious European Union cartoon publication aimed at children called The Raspberry Ice Cream War. That nasty piece of propaganda so outraged British public by its one-sided and inaccurate portrayal of the European Union that it had to be withdrawn after only a handful of copies had been circulated in the United Kingdom. Another example of the misuse of taxpayers' money by the European Union is contained in the video for teachers entitled, Inside Europe. That video concludes by stressing the need for British pupils to think more in terms of Europe and less as an island race. No mention is made in the video of the great achievements of this island race: in science, industry, commerce, religion. culture, democracy at home and spreading it abroad, diplomacy—not to mention Britain's role in saving Europe from the clutches of a motley assortment of vicious dictators.
Every attempt is made by the European Union propaganda machine to make British children ashamed of their history and heritage rather than to he proud of it. I feel sure that I do not have to remind the Minister of Sections 406 and 407 of the Education Act 1996, which make it illegal to promote political partisanship in the classroom. Section 406 states:
"The local authority, governing body and head teacher shall forbid—
(b) the promotion of partisan political views in the teaching of any subject in the school",
while Section 407 states that pupils shall be,
"offered a balanced presentation of opposing views".
I ask the Minister whether the Government will issue a circular to all school governing bodies and head teachers reminding them of their duty of political impartiality under Sections 406 and 407 of the 1996 Act, making it clear that they will take all necessary measures to see that the Act is complied with. Perhaps the Government will also inform the European Commission that some of its materials are complicit in breaking United Kingdom law in relation to political balance, and that it should withdraw any offending material.

701
I turn now to the universities, where the Commission is setting out to extend its influence, and the promotion of integration through so-called research and development projects and the establishment of university departments of EU integration. In this connection, the Jean Monnet project of establishing chairs devoted entirely to European integration is a major problem in itself. I hope that the noble Lord, Lord Pearson, who has taken a close interest in this subject, will deal with it in some detail when he comes to speak.
However, a host of other research and scholarly organisations are assisted through EU funding and, indeed, by the United Kingdom Government through matching funds over which they have no real control, with the object of promoting the European project and integration, and creating networks to assist in this process. Again, the research, all paid for with taxpayers' money, is often one-sided, although it is represented as being impartial. This ploy has certainly been used in relation to the highly political issue of scrapping the pound in favour of the euro when articles by academics in receipt of EU funding have been represented as coming from impartial sources.
In a short speech it is impossible to list all the examples of that dubious practice, but I intend to place a copy of the Bruges Group research paper in the Libraries of the House of Lords and the House of Commons so that information is made available to all Members of both Houses and their researchers. For those who do not have access to either of the Libraries, the Bruges Group website is www.brugesgroup.com.
The tentacles of the Commission do not stop at schools and universities. They embrace public libraries, the press and the sound and vision media, especially the BBC. A one-sided Goebbelsesque picture is therefore being presented to British society and I ask the Government to take some remedial action. For example, they could require the European Commission to adopt guidelines similar to those of the United Kingdom, to include a commitment to impartiality and objectivity, and to prevent taxpayers' money being used to promote only one side of politically contentious issues.
In the United Kingdom, consideration should also be given to the appointment of a watchdog to monitor the European Commission's propaganda activities. In any event, the Commission should be told that its methods are unacceptable in any democratic society.
It has been a privilege to ask this Question in the House this evening and I look forward to hearing the contributions of other noble Lords. I shall listen with particular interest to the reply of the noble Baroness on the Front Bench. In conclusion, I thank all those who have taken the trouble to take part in this debate for their effort, kindness and consideration.
7.46 p.m.
Lord Pearson of Rannoch: My Lords, I am most grateful to the noble Lord, Lord Stoddart, for asking this hugely important Unstarred Question, which he
702
introduced in his usual lucid and forceful style. Like him, some of my briefing comes from the Bruges Group which, as the noble Lord has said, is available for noble Lords to read. Also like the noble Lord. I suppose that I should declare some sort of interest in that I am one of the Bruges Group's patrons and occasionally one of its sponsors.
The general picture is very disturbing. There appears to be a wide, complex and well-funded network of EU propaganda at work in the education systems of all EU countries, and this country is no exception. I am aware of course that some noble Lords, and perhaps even the Minister herself, may take exception to my use of the word "propaganda"—which was also used by the noble Lord, Lord Stoddart—but I fear, as we start examining what is going on, that the word may come to be seen as justified.
Because the subject is so wide, perhaps I may concentrate my few remarks on the Jean Monnet project, which is perhaps the principal mechanism for teaching "European integration issues" in our universities. I should remind your Lordships that I speak as one who spent 10 years on a voluntary basis in the British higher education system, from 1983 to 1992, when I represented commerce on the Council for National Academic Awards. The CNAA, as noble Lords may recall, was the validating and degree-awarding body for what was then the polytechnic sector; it held the Royal Charter for all the polytechnics and was abolished in 1992 when the polytechnics were miraculously and, in my view unwisely, metamorphosed into universities.
I was the honorary treasurer of the CNAA for five years between 1987 to 1992, and this experience gave me an unusual insight into the funding of higher education in general and into the attitudes of academics to such funding. I learnt, for instance, that students were known by senior academics as "units of resource". It took me quite some time to understand what that meant. I also learnt a good deal about academic freedom which, when properly pursued, is such a priceless asset in the culture of any free nation.
I learnt too that academic freedom carries with it the great responsibility to allow a genuine diversity of views to be expressed, especially at university level. Academic freedom does not grant a licence to push one-sided views or to present only one side of a political argument. Academic freedom can survive only in the absence of bias.
Another cherished feature of academic freedom when I was in the CNAA was that universities and polytechnics possessed the sole and unfettered right to appoint their professors and lecturers. The funding of the system was entirely separated from those appointments. I confess that I am a little out of touch with the university sector today, but I should be grateful if the Minister could confirm that what I have said about academic freedom still applies today. If it does, the Jean Monnet programme appears to fail the test of academic freedom on both counts. The courses it funds appear to be largely, or even wholly, biased in

703
favour of the European project and all its works, and the Jean Monnet professors have to be approved by the European Commission. If they are not approved, they do not get appointed. So in effect the Commission has the power of appointment.
I am sure that the Minister will correct me if I am wrong, but I am relying on government Written Answers. For instance, the noble Baroness, Lady Blackstone, answered a Written Question on 29th January 2001 from Lord Shore of Stepney in which she revealed that there were then 102 Jean Monnet Chairs in the United Kingdom: 87 Chairs and 15 Chairs Ad Personam. Also, there were 13 Jean Monnet European Centres of Excellence. The noble Baroness then listed the institutions concerned. She then stated:
"(i) Projects are financed by the European Commission for the first three years; they must be taught for at least seven years;
(ii) The Jean Monnet subsidy is given to the university (not to the professor); approval of choice of professor must be granted by the European Commission; should a professor leave the university, the Commission would need to approve the successor".
So it seems fairly clear that one of the central tenets of British academic freedom, if I have understood it correctly, is being breached by the Jean Monnet programme because the Commission appoints the professors or, through the power of veto, can whittle any number of professors down to the one it wants.
What about academic freedom? What about the lack of bias? Here again the reply of the noble Baroness, Lady Blackstone, is informative. In answer to the same Written Question she stated:
"(iv) The majority of Jean Monnet Chairs correspond to the setting up of new teaching activities. A Chair Ad Personam allows Universities to allocate chairs to professors and senior lecturers who already devote 100 per cent of their teaching time to European integration issues, and would not therefore meet the criteria of providing new teaching activities".—[Official Report, 29/1/01; col. WA 28.]
That seems clear enough, but what are "European integration issues"? Do the courses which teach European integration put both the case for European integration and the case against it? Or do they put only the case in favour? I hope that the Minister will tell us of some of these courses which really do encourage both sides of the argument, where open and vigorous debate takes place among students, lecturers and professors—along the lines perhaps of the recent debate in your Lordships' House on 27th June and several other occasions. In that case, I hope that the Minister will feel able to name the courses and institutions in question—but I am advised that they will be very much in the minority if, indeed, any exist at all.
Looking beyond these shores, there is no doubt that the Jean Monnet project is a substantial weapon in the EU's attempt to create a European demos, to persuade the peoples of Europe of the benefits of integration under Brussels. I understand that there are now at least 1,500 professors teaching the benefits of European integration to more than 250,000 students across Europe. So the financial investment must be very substantial if these figures are anywhere near accurate.
704
I have a feeling that this short debate may be the start of a much wider investigation. We can only scratch the surface tonight. For instance, I am told that colossal sums are spent on EU research budgets, mostly in academe, which may sound fair enough until one discerns that the underlying purpose of a substantial part of these funds is again to promote European integration—a kind of common European research policy. Some harrowing details of this aspect are to be found in the Bruges Group document referred to by the noble Lord, Lord Stoddart.
In conclusion, I note that the Question asks what sums are being spent by the Government and the EU on "information about the EU", and of course we look forward with anticipation to the Minister's reply. The trouble is, as far as I can see, that all so-called "information" put out by the Government and the EU about the EU exclusively extols its virtues—which some of us find very hard to identify—and never puts the alternative view. That alternative view is, of course, that the United Kingdom would be very much better off outside the European Union altogether, a view which is clearly held by a large proportion of the British electorate.
Like the noble Lord, Lord Stoddart, I ask the Minister where is the balance in all this, especially in our education system? How much does this propaganda cost? I look forward with great interest to the Minister's reply.
7.55 p.m.
Baroness Sharp of Guildford: My Lords, I start by declaring an interest. Until 2000 I was in receipt of an EU grant for research as an academic at the University of Sussex. I am also the co-author of what is probably one of the definitive texts on the science and technology policies of the European Union. The answer to the question of the noble Lord, Lord Pearson, about how much is spent on science and technology programmes is somewhere in the region of 2 billion a year, now spread between 26 countries because the aspirant countries are coming in as well. So it is quite widely spread and amounts to rather less than 0.1 per cent of the research budgets of most countries.
The noble Lord, Lord Stoddart, cited the amount spent on information within the European Union as 105 million euros. That is about £70 million. I believe I am right in saying that Surrey County Council spends somewhere in the region of £5 million per year on promotions of one kind or another, ranging from talking about the rambles that take place in Surrey led by the countryside stewards to a great deal of information about various legislation, about schools, about youth groups and so on. If it is to do its job, any governmental organisation has to tell people what job it is doing.
The European Union now covers some 340 million people in 15 countries. Shortly there will he 25 countries in the European Union. It does a great deal. I know that the noble Lords, Lord Stoddart and Lord Pearson, regret this but it funds a large number of

705
schemes in relation to small businesses, regional grants, local regeneration and so on, as well as trying to tell people what it does.
Is this information propaganda, information or advertising? Where is the line to be drawn? That is always a difficult question. Do we want our young people to know about the European Union at all? Is it a legitimate part of their history, current events, citizenship lessons? I would answer a big "yes". It should be a part of their history, of their learning about current affairs, of their learning about citizenship.
Let me illustrate this by recalling my experience at the University of Sussex, which I joined in 1981 as a lecturer/research fellow attached to the science policy research unit. The job I inherited included teaching science students about what was going on in Europe. In the mid-1970s, Sussex introduced a programme called "Science and European Studies" and made a considerable effort to ensure that it was not only science and French or science and German, but science and European studies. Besides studying the language, the students taking this course also had to learn about the cultural, economic and social contexts. The small part I taught them in this one-term course was about the European economy.
It was a challenging task. I had science students who had not taken history even at GCSE. In the 1980s I had to teach them about what was happening in relation to the Single European Act. Then we moved on to the 1990s.
I began with the Industrial Revolution and took the students through the two world wars, the great depression and the ups and downs of the 1950s. I talked to them about unemployment in the 1980s and why we had recessions. I talked to them about the single European Act. It was not focused on the European Union, but if one spoke about Europe in the post-war period one talked about the European Union. We talked about the Monnet project and his vision of building links between countries so that they did not go to war again and that the centuries of war were done away with. Bonds were made of cultural understanding and common economic and social desires so that one did not need to go to war again. We looked at the Soviet Union and the East and West divide. We had the exciting period of the early 1990s when the Soviet empire disintegrated.
As a teacher I found the material available to me from the Commission at that time extremely useful. There were maps which showed the countries that belonged and the enlargement of the European Union. There was material which provided information about the Single European Act and later what the Maastricht Treaty was about and the meaning of the single currency.
But these were supplemented. I hoped that in my own presentations I provided some balance. At the beginning of the 1990s I was strongly against the single European currency. I thought that it was a move too far and that Europe was not ready for it. I argued that case before my students. But they also had material
706
showing the other side and that was right. I believe any self-respecting professional does that. One know that one's task is to present both sides of the question.
At the end of the day I was very proud to present the European project in which we were trying to build a partnership between countries so that they would not go to war again. One of the greatest compliments I received was from a fourth-year student who returned from a year abroad and said to me, "At the time, while I found your lectures interesting, I never really understood why you taught us all that stuff. It was only when I spent my year abroad that I realised how useful it was. I could keep up with my contemporaries. I knew what they were talking about". We called it the ERASMUS programme in which we encouraged our students to spend a year away from their university studies. In our Science in Europe programme Sussex was almost a precursor to it. We had physics, chemistry and biology students studying a language along with science and spending a year abroad.
Likewise, we had very many students come to Sussex from other countries. That is now being extended within the concept of the Bologna programme with the idea of reincarnating the medieval scholar who could move from European university to university and get the best out of them. I very much enjoyed having foreign students come to my classes. They often provided a spark and a catalyst in talking about ideas. Someone from a different culture does provide a degree of broadening to what is being talked about. They very much enjoyed coming to Britain because they had contact with senior members of staff. The concept of the tutorial system is totally alien to most European universities, where there are huge numbers at lectures. Libraries are totally inadequate and our libraries were an absolute joy for these students from abroad.
There were relatively small classes. When I began at Sussex University we had classes of four or five students to talk to, which is far from the Oxbridge notion of two people at a tutorial. In 1981 it was typically four or five people. When I left it was usually in the region of 15 to 17 students to a class. Nevertheless, there is a degree of personal contact even at that level.
I shall never forget the French student from Nantes saying to me, "Madame le professeur, you know that in France they even give separate staircases to the lecturers so that they do not have to rub shoulders with the students". That was the joy of being able to meet and talk with me about the essay she had written—an opportunity that she never got in France. She enjoyed it so much.
We should not forget that one of the great spin-offs, which the science, engineering and medical people tell you time and again, is that when they come to Britain and train on British equipment they return home and buy the same equipment, which is very useful.
What about the reverse, with students going to European universities and whether they are brainwashed? I do not know about that. Regrettably, we do not have nearly as many students going to other

707
universities. There is an imbalance. We have more students coming this way than going to Europe because we do not have the linguistic skills. We should not be happy about that experience.
Having seen the students in their second year, I found that they had matured when they returned to the fourth year. They were a year older and wiser. But there is no doubt that they saw things differently after having been away. They were horrified by many of the universities. I shall never forget the students returning from Italy who had been at Bologna University. Nobody would take care of them. The concept of pastoral care is alien. They had to make do for themselves, but they did and learnt from it.
The students returned broadened in many senses. There had been a complete break. They returned proud of their British heritage, but they recognised their European heritage as well. They saw themselves as European citizens. I was glad that they saw themselves as such.
After centuries of conflict, I for one am of the opinion that it is splendid that our young people see themselves not as enemies of our partner countries in the European Union but as neighbours and friends. They are not, as the noble Lord, Lord Stoddart, suggests, ashamed of their national history. They are proud that we as a country have played a part in putting this narrow nationalism aside and promoting instead a spirit of co-operation and collaboration between nations.
8.8 p.m.
Baroness Blotch: My Lords, the noble Baroness, Lady Sharp of Guildford, has made an interesting speech but I believe it has completely missed the point that was made by the noble Lord, Lord Stoddart of Swindon, and my noble friend Lord Pearson of Rannoch. The two noble Lords who initiated this debate are particularly concerned about the European project that produces only one-sided information and uses taxpayers' money to do so. That was the essence of what they said. The noble Baroness, Lady Sharp of Guildford, made an interesting speech, but she did not address that particular question.
The noble Lord, Lord Stoddart of Swindon, and my noble friend Lord Pearson of Rannoch have posed many important questions and issues about which there is concern and which I hope the Minister will address when she comes to reply. There is an issue of information versus propaganda; information is one thing, but propaganda is another. A one-sided story about anything is propaganda, and can be regarded as such. The issue of bias versus balance has also been referred to, and again the noble Baroness has to reassure us that balance will prevail.
The two noble Lords, Lord Stoddart of Swindon, and my noble friend Lord Pearson of Rannoch also asked about expenditure and I want to add to their questions. What is the quantum of expenditure? How is it distributed? Who determines the priorities?
Materials used for educational purposes are another issue. There are issues for discussion here. What about the authorship of these materials? What about
708
editorial oversight? Who oversees editorial issues? In much of the materials that I have seen the content appears wholly devoid of the controversial nature of the subject of European union. It is irrefutable that it has a controversial nature. Young people at key stage 4, aged 14 to 16, sixth formers, aged 16 to 19, and indeed adults at university are capable of hearing the full story—all sides, all dimensions of this subject—and of making up their minds. It is patronising in the extreme to expect them to be "educated" by one view of the world from Europe.
I hope the noble Baroness, Lady Sharp of Guildford, will forgive some of us for expressing some disquiet because there is evidence that some in the EU, in key positions, are unequivocal about the aim of spending so much money on education in schools, colleges and universities. The European Union is involved in a long-term project to shift the public's loyalties from the nation state to the European Union's institutions and to underpin the newly emerging European state. I resent being called a "Little Englander", because I am proud of my Britishness, I am proud of England being part of the United Kingdom. Simply because I take a rather healthy view of what is taught in schools, I think we owe it to our young people that bias is not part of that education.
Senior representatives of the European Commission admit that there is a campaign to educate the public about the advantages of EU membership. In an interview on the BBC's "Breakfast with Frost" programme, the former EC President Jacques Santer said:
"We have as politicians to inform the population and train them in this direction".
Train them in this direction? The de Clercq report produced in 1993 said that:
"European identity must be 'ingrained in people's minds as a 'good product' using marketing techniques and that certain social categories, particularly 'women and youth', should be 'priority target groups'. More controversially, it suggested that newscasters and reporters must themselves be targeted, they must themselves be persuaded about European Union … so that they subsequently become enthusiastic supporters of the cause."
This is not education. The noble Lord, Lord Stoddart of Swindon, referred to propaganda in the classroom. He referred to the publication Let's Draw Europe Together, the opening section of which is entitled "My country: Europe". The euro, which again we know is controversial, is talked about in glowing terms. The other notorious publication is, The Raspberry Ice Cream War, a comic for young people on a peaceful Europe without frontiers. The story involves schoolchildren falling into medieval times. They have to bribe their way past a border guard and explain to the king why the EU is such a wonderful place:
"Frontiers and barriers everywhere, people fighting wars for the stupidest of reasons, that is exactly what it looks like here, kind of weird."
Young readers are also told,
"We're even going to have the same currency soon as well. It's called the Euro and we won't have to change our money all the time".

709
Thankfully, only a handful of the 75,000 copies were ever distributed in the UK. Public outrage led to the British Government agreeing that,
"This undoubtedly was an ill-judged and, in part, factually incorrect publication".
Does Section 406 of the Education Act 1996 apply to this form of education? It states:
"The local education authority, governing body and head teacher shall forbid…
"(b) the promotion of partisan political views in the teaching of any subject in the school".
Section 407 provides that all points of view get an airing, so that pupils,
"are offered a balanced presentation of opposing views".
It is important that we have an answer to that.
Equally worrying is an article in The Times of 1st July 2002 entitled,
"Economy 'has met Brown's five tests for joining euro'".
The article was based upon a study by Professor lain Begg and co-written by Brian Ardy and Dermot Hodson. The study concludes that entering the euro would not be,
"a costless exercise for the UK"
but that any negative consequences,
"will be outweighed by the benefits".
With the authority of a leading newspaper, the report had the appearance of an impartial academic treatise. But Professor Begg writes pro-federalist reports for the European Parliament and the European Commission. He was an ex officio member of the University Association for Contemporary European Studies, which promotes a pro-European agenda via university courses. He was also a council member of the Federal Trust, a pro-European body which calls for the creation of a federal European state. Brian Ardy was a Jean Monnet professor. Dr Dermot Hodson was closely linked with the "One Europe or several?" project which is dedicated to producing academic evidence linked with federalisation. Hodson was also a former board member of the ESRC and spoke, along with Professor Begg, at the One Europe conference later in July.
Is the Minister justifying such bias? We all know that the Jean Monnet project is the mechanism for teaching European integration in universities. As the noble Lord, Lord Stoddart, has said, the projects involve full-time teaching posts entirely devoted to the teaching of European integration.
I declare an interest too. I have a son in academe who enjoyed a two-year joint European-Japanese scientific experience at Tokyo university. Thankfully, it did not involve any underlying European message. But the Jean Monnet project is entirely separate from the framework funding that is used for the political scientists and is the mechanism for teaching "European Integration in University Studies". It is managed by DG Education and Culture to facilitate,
"the introduction of European integration studies in universities by means of start-up subsidies".
710
Currently 7,000 universities are involved, with 1,500 professors teaching more than 250,000 students a year.
Another dimension of the European debate is the Convention on the Future of Europe. Can we have an assurance from the Minister that taxpayers' money will not be spent on the promotion of a way forward on the future of Europe, about which the British people will be denied by this Government the opportunity to have their own say via a referendum.
As the noble Lord, Lord Stoddart, said at the outset of this debate, no one is arguing against impartial information and education in relation to European issues. Co-operation—even collaboration—between professionals and across educational establishments is one thing. However, to use taxpayers' moneys to press a one-sided message—one view of the world—without recognising other legitimately held opinions gives rise to the accusation of deliberate bias and even propaganda. Almost all the examples given by the noble Baroness, Lady Sharp, have happened since Adam was a boy. As I said, my son has enjoyed that kind of collaboration and many, many students have gone to European countries to take sandwich courses from which they have benefited. That is very different from the essence of this debate.
I hope the noble Baroness is able to answer the questions posed in this debate. Control over information versus propaganda, bias versus balance, the interaction and effectiveness of British law dealing with balanced teaching and the effectiveness of Section 406 of the Education Act. As for expenditure, what is the quantum, what is the allocation, what are the priorities and what is its justification?
Finally, I agree with the comment of my noble friend Lord Pearson. Academic freedom survives only when there is a lack of bias and when taxpayers' money is not used to support bias on the part of external bodies as powerful and all-embracing as the European Union.
I thank the noble Lord, Lord Stoddart, for initiating this debate.
8.20 p.m.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, I, too, am grateful to the noble Lord, Lord Stoddart, for giving me the opportunity to speak about moves the Government have made to ensure that schools, universities and other educational establishments have access to impartial—a word upon which we would all agree—information about a range of European and wider international issues, many of which are a central part of the national curriculum. The noble Lord, Lord Stoddart, was good enough to send me the 58 pages of briefing from the Bruges group, much of which has been mentioned this evening. I am grateful to have had the opportunity to understand the background of the debate. Noble Lords may have disagreements in this House but we all stand proud in our heritage in this House when debating issues from positions which may be different but which, nonetheless, are equally valid.

711
The Government's position is clear. Europe is changing rapidly and we are all living in an increasingly global society. It is important that our people, especially our young people, understand those changes. It is essential that young people are prepared for the world in which they live. That is why we ensured that citizenship within the national curriculum included a module on Europe. Moreover, the need for unbiased information and materials on Europe will increase now that EU enlargement approaches. It is important that young people receive information not simply concerning Europe but on all global issues. We must provide young people with the broadest possible knowledge about world affairs and the value of citizenship; and information on the European Union comprises an essential part of that process.
I give a simple example. All our young people need to understand the workings of the euro if they are to travel within Europe. They need to know what a euro note looks like to ensure that they receive the correct currency and understand how it is used. That would be true of all opportunities for young people to travel.
The noble Lord, Lord Stoddart, asked me whether I thought a circular to all governing bodies was necessary. I shall come to Section 406, as the noble Baroness, Lady Blatch, would expect.
Lord Lamont of Lerwick: My Lords, does the Minister say that we need to be taught in schools about the euro because we travel to euroland? If that is the case, do we need to be taught about the dollar because we also travel to America?
Baroness Ashton of Upholland: My Lords, within the school curriculum young people need to know and understand changes in currencies, and about currencies in general. I am sure the noble Lord will agree with me that it is important that students know about the big change in currency and that they know what happened when those members of the European Union who chose to do so joined the euro.
There is an issue about whether we describe information as propaganda or propaganda as information. The noble Baroness, Lady Sharp, dealt well with that issue. But from the briefing I have read, I believe that we stand in slightly different places as regards what is information and what is propaganda. I shall attempt to be clear about my understanding of what is spent, and what it is spent on. I refer to Sections 406 and 407. I hope to address the questions raised by noble Lords. However, should I fail in any respect, I shall write to noble Lords and shall address questions outside your Lordships' House.
The Government are committed to increasing the awareness of European and wider international issues in schools. Teachers, of course, must have the right resources in order to do that. From 1997 until December 2002, the European Commission subsidised—by 360,000 euros (approximately £250,000)—the provision of information to schools and some colleges in the UK through a network of European resource centres. The host organisations,
712
mostly educational authorities but some colleges and a few universities, met the remainder of the costs by providing accommodation and staff resources. In some areas, input from those ERCs appears to have resulted in an increased take-up of EU programme funding. However, as always, the provision was mixed across the UK.
Those centres played an important role in providing information to students and teachers, face-to-face and on the phone, as well as offering a range of materials including, for example, the loan of European Treasure Chests. The Treasure Chest project, with financial assistance from Building Europe Together, was funded through the EU Prince Programme. It was developed in response to demand from teachers for European information resources and activities for use in primary schools, when organising, for example, European activities. Chests contain CD-Roms. books and maps about Europe. The project subsequently extended to the secondary sector. The European Parliament has also funded 12 for the north-west region to the tune of £6,741. There are approximately 65 of those projects in the UK at a cost of £400 each.
In January 2003 the Secretary of State set up a review of the provision of information to schools and colleges in England. As a result of the findings, the Government propose in future to provide information through an enhanced website with clear signposting to sources of information on a wide range of European and international issues. We think that this is the most efficient way forward. Want to build on the support that we are currently providing through a number of organisations who produce materials with a focus on global citizenship, which includes understanding Europe and beyond. This will reach not only schools, but also parents, students, colleges and members of the public and will provide more information to a wider audience.
I firmly believe, as noble Lords would expect, that the teaching of citizenship and democracy is important for all schools, young people and local communities. Global citizenship is an important part of the citizenship national curriculum. Through citizenship education, young people learn about the world as a global community and are able to debate and discuss the political, economic, environmental and social implications of this community, of which they are part. Through citizenship education young people will learn about their role as active members of our global community and how they can make a difference as members of this community. It is essential for young people to learn about the relationships which exist within both the European and international communities.
It is important to contribute to pupils' sense of identity through knowledge and understanding of Britain's diverse society and the local, national, European, Commonwealth and global dimensions of their lives. The citizenship website is devoted to languages and discussions of issues linked with European citizenship, such as human rights, freedom of movement, communications and sustainable development. The Department for Education and

713
Skills provided £2 million between 2000 and 2002 to fund a number of organisations, including the Citizenship Foundation and the Institute for Citizenship, to produce resource materials to support the teaching and learning of global citizenship in schools. This has included specific materials, which focus on global citizenship, of which understanding Europe is a related part. Some £27 million was made available through standards funds arrangements, to support the introduction of citizenship education. That went directly to schools.
Teaching about Europe and Britain's relationship with the European Community is essential in the global community in which we live. It is not designed to encourage particular European views, but helps give young people a broader and more global perspective. Nevertheless, as the noble Baroness, Lady Blatch, has rightly pointed out, there are safeguards in law—Section 406 of the Education Act 1996—to guard against biased or unbalanced teaching. I agree that teachers are professional in their approach to teaching controversial issues and must, I say to the noble Lord, Lord Stoddart, offer pupils a balanced presentation of opposing views. It is for teachers to choose the teaching materials which best meet the needs of their pupils in the classroom—but that should happen within the provisions of Sections 406 and 407.
Baroness Blatch: My Lords, can the noble Baroness tell us the proportion of funding spent on materials to support opposing views?
Baroness Ashton of Upholland: My Lords, I did not hear that.
Baroness Blatch: My Lords, can she tell us the proportion of European money, or indeed our national money, which is spent on producing materials to support opposing views to the pro-European view?
Baroness Ashton of Upholland: My Lords, I cannot give an exact figure. I shall try to give the noble Baroness a figure. My presumption is that within the range of materials available to schools it is, as the noble Baroness would acknowledge, for schools to choose those materials that best suit the needs of their pupils. It is also, within the work that is provided, for them to ensure that a range of views is represented. I shall attempt to provide the noble Baroness with something.
It would be surprising if I did not make reference to the importance of language, as the noble Baroness, Lady Sharp, also raised. The importance of communication in other languages is increasingly important. Your Lordships have heard me talk many times about the needs that businesses have over their ability to have the opportunities to trade with other partners by taking on people with the capacity for languages. So we are building that capacity to support business in particular—and to give greater opportunities for our young people.
714
I shall deal with universities. The majority of UK higher education institutions, and all the larger ones, have European or international officers, funded by the individual university. They provide detailed information about the ERASMUS programme mentioned by the noble Baroness, Lady Sharp. An ERASMUS bulletin hoard is located at the University of East Anglia, which receives many e-mails and exchanges from ERASMUS students sharing information about their time spent abroad.
In the UK, ERASMUS is managed by the Socrates-ERASMUS Council, which receives an administrative budget from the DfES and expects, in 2003–04, to spend £196,000 of that on information activities. That includes information about TEMPUS, the EU co-operation scheme for higher education, which provides technical support for higher education institutes to run the ERASMUS programme. It supports the process of HE reform in eligible countries.
European documentation centres are an EU-wide network providing EU information to the academic community. They help universities and research institutes to promote and develop education and research on European integration.
Many noble Lords raised the Jean Monnet project. Its aim is to provide start-up subsidies to facilitate the introduction in universities of studies into the construction of the European Community and its related institutional, legal, political, economic and social developments. There have been 491 chairs since 1990. On that basis, it does not surprise me that the European Union plays a key role. The noble Lord, Lord Pearson, is right: the approval of the choice of chair must be granted by the European Commission. As I say, that does not surprise me.
Lord Pearson of Rannoch: My Lords, does that not go against British academic freedom? It should be the institution that appoints the professor, not some outside funding body with an axe to grind.
Baroness Ashton of Upholland: My Lords, we could debate whether there is an axe to grind, but the way in which the project is set up is very specific. Because of the nature of what the Jean Monnet chairs are designed to do, I do not think there is any strangeness about how it is then proposed that people be appointed. The noble Lord may disagree; that is one of the joys of debate. Within the objectives of the Jean Monnet chairs and what is proposed, my view is that it would make complete sense for there to be a strong role for those involved in that way.
National agencies are responsible for administering the Socrates, Leonardo da Vinci and youth programmes. They are about disseminating information, but that is not related to publicity about the EU in any shape or form. Rather, it is geared to ensuring that the UK gets the maximum take-up it can from those programmes. We receive funding direct from the department, and grant from the EU; it varies from programme to programme. For completeness, I shall say that the EU contribution to Socrates is

715
20 per cent, Leonardo 77 per cent and youth 30 per cent. For 2003, estimates within the programme for providing information are £57,000 for schools and further education colleges, £196,000 for higher education students, £92,000 for young people in training, and £52,000 for young people interested in participating in youth activities.
As I said as I began, I am grateful to the noble Lord, Lord Stoddart, for raising this important issue and I have listened to all the contributions and read the briefing with great interest. I would like to take this opportunity to emphasise that it is important for us to keep all those in our educational establishments informed of current developments in the European Union and the effects that they are likely to have for us all. The provision of impartial information encourages debate about the kind of society we wish to create for ourselves and our children. Once the facts have been placed in the public arena, it is for all of us to consider them and come to our own conclusions. To withhold information would be to the detriment of us all.

Criminal Justice Bill
8.34 p.m.
House again in Committee.
Clause 33 [Notification of intention to call defence witnesses]:
On Question, Whether Clause 33 shall stand part of the Bill?
Lord Dholakia: The clause inserts a new Section 6C in the 1996 Act, which imposes a new requirement on the accused to serve, before the trial, a notice giving details of any witnesses he intends to call to give evidence at his trial. Details of the witness's name, address and date of birth must be given to the court and to the prosecutor within a time limit specified in regulation made under Section 12 in the 1996 Act.
There have been a number of adverse comments, particularly from the Home Affairs Select Committee, which said that it is perhaps the most controversial provision of Part 5 of the Bill. At present, the defendant is required only to give advance disclosure of any alibi or expert witnesses. Clause 33 will extend that obligation significantly by requiring disclosure of the name, address and date of birth of every defence witness.
In a recent article, Michael Zander QC sets out a powerful argument:
"If the addresses of potential defence witnesses have to be given, the obvious danger is that police will use the interview to browbeat and cajole or wheedle the witness to change his evidence or, failing that, not to testify for the defence".
It is not too difficult to imagine ways in which the police may seek to help a defence witness to "refresh" his memory, possibly to "lose" his memory, of events. Such things have happened in the past. During the Home Affairs Select Committee's recent inquiry into the conduct of investigations into abuse in children's
716
homes, it came across a number of cases in which the police were said to have brought charges against a defence witness before trial in order to discredit him.
Coming from the Home Affairs Select Committee, that is a very powerful argument against the clause. It is important to recognise the recommendations the committee makes. It suggested that the Bill he amended so that where the prosecution wishes to interview a defence witness in advance of trial, it should be required to notify the defence and offer to interview the witness in the presence of the defence. It further suggests that any interview should be tape-recorded. It goes on to say that it would prefer to see a provision of this nature included in the Bill rather than left to codes of practice.
A number of criminal justice agencies have responded very strongly to the proposal that the defendant should provide witness details before trial. Justice comments that,
"an adverse inference being drawn from a failure to do so will fundamentally undermine the presumption of innocence in the right of an accused person to remain silent".
The Bar Council says,
"Clause 33 places an unnecessary burden on the defence which does nothing to improve the prospect of conviction of the guilty and has a number of deeply undesirable consequences".
The Law Society cannot see any benefit in this provision, but does anticipate difficulties, as do a large number of other organisations. The London Criminal Courts Solicitors' Association says:
"The proposals that such a witness notice should he served during the relevant period demonstrates a lack of understanding of the practicalities of running a defence case".
Those are very strong arguments against the clause.
Baroness Mallalieu: I, too, have concerns about the way in which the provisions are intended to operate. I would be very grateful if the noble and learned Lord could give me some guidance as to what is being aimed at by the provisions.
We have gone a long way towards making it easier for witnesses to come to court and to give evidence in relation to prosecutions. We have taken steps to make it easier for them to give evidence via video links and the like to try and avoid their hanging about at court and being subjected to unnecessary or insulting cross-examination. If our intention is to ensure that witnesses come forward to give evidence so that the correct result is obtained, we should apply the same standards and give the same assistance to potential defence witnesses.
These provisions achieve, in a sense, quite the opposite. A criminal trial is dynamic and changing all the time. When one first receives the papers, one gets some indication of likely witnesses. At a later stage, it may be clear that some of them are no longer necessary. As the trial proceeds, witnesses for the Crown and the defence are jettisoned because their part of the evidence no longer becomes contentious, it no longer seems relevant, it has been admitted, or whatever. Therefore, the witnesses you believe you are going to call before the trial starts ultimately may play no part at all.

717
Is it proposed that once the names and addresses and the other details of the defence witnesses are given to the Crown, those people are to be seen and interviewed by police officers? If so, there will be a large amount of wasted police time, with witnesses who ultimately play no part whatever. If there is intended to be parity between the Crown and the defence, it is curious that the addresses of the witnesses for the Crown are not given to the defence, although the defence is required to provide addresses to the Crown.
We have all heard of cases in which witnesses have been interviewed by police and often witnesses who one would not necessarily choose because they may be young, or have convictions, or may have been close to the incident. That is likely if, for example, they are witnesses to an assault, an affray or even a murder. It is easy, particularly for young witnesses, and those who sometimes have little command of English, to find it intimidating to be interviewed by anyone. It is difficult enough to persuade those witnesses to see a defence solicitor to take a statement without having a police officer knock on the door and ask to do so in their home.
While I welcome the outline of the code of practice, which we will debate at Amendment No. 126, that does not specifically provide for a solicitor to be present. Those of us who practise in the London courts have had experiences of an unfortunate nature, where youngsters have been interviewed without anyone else present, where the parents speak no English, and where they have been cross-examined by a police officer, often armed with pieces of information which at a later stage will properly be used by counsel in court. In effect, they have been browbeaten in their own homes into making a statement based on material they are shown and without proper legal advice. The result is that the statement is taken which either changes the story that had been given earlier or results in the witness saying, really can't remember". When the witness turns up at court, that statement is used against him.
There is considerable scope—I do not say this pejoratively—for police malpractice. In unscrupulous hands, the right to go and interview a witness, particularly a young or vulnerable one, without proper safeguard, would be a most powerful weapon in the hands of an unscrupulous prosecutor.
Leaving that aside, with the best will in the world, the most pleasant and amiable police officer knocking on the door, often in an area where the neighbours will be well aware of what is happening, wanting to know who is coming round and why, is enough for many parents to say, "I'm not letting my youngster go. I don't want anything to do with this. We will not allow him to attend court". There are all kinds of reasons why these provisions might prevent genuine witnesses coming forward—the very thing we try to avoid in relation to the Crown.
Furthermore, I had understood that notwithstanding the provisions of the Bill, the burden of proof remains on the Crown. What is the obligation,
718
at any rate before the Crown makes its case in court, for a defendant to provide material? If there is a suggestion that these provisions are intended to deal with what I have heard about in this House but never come across in a courtroom—the so-called "ambush" defence—I can say only that the other provisions in the Bill which require considerable detail to be given in advance disclosure in statement form would surely put paid to any such ambush. Therefore if it is intended to put a burden on the defendant in some way at an early stage and before the Crown has called any evidence, it seems to me that that is a fundamental attack on the burden of proof. I would hope that the noble and learned Lord would be able to tell us what the reason is for this provision. Is it intended to interview all witnesses whose names are provided in this way? If that is not the case, what is the point for what would appear to be needless bureaucracy?
Lord Brittan of Spennithorne: During the course of the deliberations on this Bill, the word "balance" has frequently been prayed in aid. It is a reasonable concept to use in the handling of these matters. Therefore in looking at this provision it is reasonable to do what the previous speakers have done and try to weigh the benefits to be secured by this provision against the risks and dangers that flow from it. I have to say that I find myself wholly persuaded about the risks and not anywhere near being persuaded about the benefits. On the so-called ambush defence, what evidence is there of its use and how frequent is it? And what will be done with the material required as a result of this provision?
In a sense it is unfair to ask the noble and learned Lord to answer that question. All that this does is to require something to be done. The use that it is then going to be put to is out of the hands of this Chamber and of the legislature. Therefore, one can but speculate. But to speculate that the consequences would be unfortunate and unfair is not an unreasonable form of speculation. A witness who might have been persuaded with great reluctance to appear for the defence might take a very different view if he knew that he was instantly going to be given to the prosecution to be interviewed. That is not a far-fetched fear; it is one that makes sense for anyone who has had even the smallest contact with the criminal justice system over the years.
The bureaucracy that will arise is very real if the provision is used in any significant way. Without wishing to be unduly contentious at an inappropriate time, the other provisions in this Bill do not give me confidence in the Government's intentions. Their concept of balance is insufficient to give them the benefit of the doubt.
Lord Renton: I do hope that your Lordships will forgive me for intervening. I missed the first few minutes of this debate. There is one point on this clause which worries me. There is an obligation upon the defence to notify the intention to call witnesses. But

719
must the defendant call those witnesses if he decides ultimately that there is no need for them to give evidence?
Baroness Kennedy of The Shaws: My noble and learned friend referred to Lord Justice Auld's report. He prayed it in aid to support the contention that the defence statement was not working. I would like to quote Paragraph 180 from that report.
"As to the defence statement…the present requirements, if observed, seem to be adequate to enable identification of the issues…for the purpose of determining the scope and form of prosecution evidence required for trial. I have considered whether to recommend any additional requirements, for example, a general obligation to identify defence witnesses and the content of their expected evidence similar to where the defence is alibi or it is intended to call expert evidence for the defence. Whilst, as a matter of efficiency, there is much to be said for them, many would find them objectionable as going beyond the definition of the issues and requiring a defendant to set out, in advance, an affirmative case. And they would be difficult to enforce".
And so Lord Justice Auld did not recommend anything more than we have at present. Obviously one would like to see the defence statement observed more effectively, and that is down to the management of the courts by the judges. But Lord Justice Auld certainly did not suggest that there should be disclosure of defence witnesses and the contents of their expected evidence.
In the face of that feeling that the provision would be objectionable, I should like to hear from the Minister why the Government somehow find it unobjectionable. As my noble friend Lady Mallalieu said, it is objectionable because potential defence witnesses are often the very people who harbour, rightly or wrongly, a deep mistrust of authority and of the police in particular. Knowing that their details will be disclosed and that they may be investigated and interviewed by the police will provide a very powerful incentive for them not to come forward to assist the defence. That then deprives the defendant of relevant truthful evidence that might exonerate him. It is not a sufficient answer to suggest that the defendant would have the option of taking out a witness summons.
Therefore, in that situation there would be an erosion of the very delicate relationship that exists in order for the criminal justice system to function well and properly. Indeed, there is a very real risk of interference by the investigating authorities in the due administration of justice, and there is scope for intimidation of the witness by an over-zealous, or even unscrupulous, police officer. Therefore, we press upon the Minister our concerns, which are shared by professionals with many years of experience in the criminal court and the judiciary. We ask the noble and learned Lord to explain to us why, in the face of those concerns about this provision being objectionable, the Government are pressing on.
Baroness Anelay of St Johns: I do not have an overall hostility to the clause, but I agree with the noble Baroness, Lady Mallalieu, that there are some serious questions of procedure and practice here which need to be probed and which the Minister needs to clarify
720
today. 1 agree with my noble friend Lord Brittan that the application of the provision will be out of the hands of this House once the Bill is enacted.
Reference has been made to the amendment in the name of the noble Baroness, Lady Scotland of Asthal—a government amendment—which follows Clause 38 and introduces a new clause concerning a code of practice for police interviews of witnesses notified by the accused. I hope that when the Minister comes to deal with that, he will bear in mind my concerns, which relate closely to the operation of Clause 33.
Reference has already been made to the fact that, because it is a code of practice, it is not on the face of the Bill in detail. However, the problem is that, in relation to the code of practice in the new clause, proposed new subsection (2) states:
"The code must include (in particular) guidance in relation to",
such matters that include,
"the attendance of the accused's solicitor at such an interview".
That is where the root problem occurs. One needs more than guidance; one needs assurance of that fact.
At the end of the list of items where guidance will be given, it is stated:
"Any police officer who arranges or conducts such an interview shall have regard to the code".
When we go into something as significant as that, I believe it is necessary for the Government to reconsider the words "shall have regard to". Why should there not be a duty upon police officers to abide by the code? I know that that takes us forward to the government amendment, but I believe that it has a great bearing on how acceptable—or unacceptable—Clause 33 is in its operation.
Lord Goldsmith: I am grateful to those who have spoken in the clause stand part debate. I want to emphasise what the clause is not about before coining to what it is about.
My noble friend Lady Kennedy of The Shawls quoted from Lord Justice Auld's report. I remind the Committee that the passage that Lord Justice Auld was considering referred to the proposition that an additional requirement might be imposed. The report said that there would be a general obligation to identify defence witnesses and the
"content of their expected evidence".
I am reading from paragraph 180.
We have not proposed that the content of defence statements should be included. Lord Justice Auld's comment, which was carefully considered by the Government and taken into account, has been accepted to the extent that we have not sought in the clause to impose an obligation to disclose the content of defence statements. It is limited to the identification of the name, address and date of birth of each such proposed witness. They are the identifying details. That is what the clause is about.

721
Secondly, in answer to the question raised by the noble Lord, Lord Renton, it does not bring with it an obligation on the defence to call a witness who has been identified as someone they want to call.
Lord Renton: I thank the noble and learned Lord for giving way. If that is so, should it not be stated?
Lord Goldsmith: I do not believe that it needs to be stated because the only sanction that is provided is one in relation to a defence when the defence calls a witness of whom it has not given notice. There is no possible sanction in relation to the defence not calling a witness. Clause 38, which sets out what the sanctions are, identifies under subsection (2)(f)(iv) that there may be a sanction in terms of an inference being drawn where the defence calls a witness of whom notice has not been given. But there is no suggestion of a corresponding sanction where it does not call such a witness.
Baroness Kennedy of The Shaws: There are two matters on which I should like assistance. First, it may be that one is only asking that the defence discloses names and addresses, but what is the purpose of the interview if not to find out what the witness will say? Therefore, the content is ultimately disclosed in advance as the interview would be to no purpose if it were not to discover what the witness would say.
Secondly, the Minister said that there would be no sanction. One knows that if the accused gives evidence, the defence will be asked, "Are you calling Jimmy McGillycuddy, or Johnny Smith?". The list will be put to him and fun will be made of the fact that he may say that he does not know, or that he does not think they are being called. The jury will know that if they are not called, there must be some rationale for that.
Capital will be made by the Crown by its having that list available to it.
Lord Goldsmith: The latter happens already. It is commonplace that a defendant gives evidence that on such and such an occasion, events happened in the way that he said they happened. He will be asked, "You say that X, Y and Z were there. Are they coming to give evidence?". That is a point that is perfectly open to be taken as it stands. There is nothing new about that.
I am anxious to develop the points that I am making, although I am always happy to give way. On my noble friend's former point, in paragraph 180, Lord Justice Auld appears—it is always dangerous to construe what a judge has said—to have talked about a requirement on the defence to disclose not only the identity but the content of the statement that had been received from the witness.
My noble friend Lady Mallalieu dwelt on the circumstances in which the interview takes place. I shall come back to that point, as it is extremely important and in my respectful view the real and only point in relation to the clause. If in the course of that interview, the witness says what happened and that exonerates the defendant, it is a good thing that that
722
has come out at an early stage. One presumes that the witness is someone who will give evidence in court and is happy in those circumstances to stand up and say, "This is what happened. It was not the defendant's fault".
I see a great difference between requiring the defence to disclose the statements it has taken and simply providing that, in certain circumstances, it should be open to others to interview that witness to discover what is said. In the courts of this land it has always been said the there is no property in a witness. That must be right. My noble friend Lady Mallalieu said that prosecution witness names and addresses are not given. That is right, but if the defence wants to interview a prosecution witness, it can always make inquiries through the good offices of the prosecutor in the CPS.
I will now turn to the purpose of the procedure. There is nothing conceptually new in what is being done. It is already the law that the defence is required to provide advance notice of two categories of witness—alibi and expert witnesses. The proposed procedure builds on that and is not a radical departure from existing legislation. Noble Lords who have spoken so far have not complained that the police currently browbeat or intimidate alibi or expert witnesses or prevent them giving evidence. Perhaps some anecdotal evidence will be given, but I have not heard any yet.
9 p.m.
Baroness Mallalieu: I thank my noble and learned friend the Attorney-General for giving way. It is precisely because of the experience with alibi witnesses that I raised my concerns. It is a matter of great concern. Those of us who practise in the courts have certainly had experience of this on a number of occasions. Some cases have ended up in the Court of Appeal. They arise because police officers, often without any warning, knock on the door of the house and interview a young person without any responsible person being present—certainly no solicitor or legal advice is available. The system does not work well, which is the very reason why I am grateful that there will be guidance. It is much needed. The system is by no means perfect.
Lord Goldsmith: I am grateful to my noble friend Lady Mallalieu. I will come to the guidance in a moment because, as I hope the Committee will agree, it gives a substantial degree of protection about the real point of the clause—the circumstances in which such an interview would take place.
The clause would deter the calling of surprise witnesses and help avoid adjournments and the concomitant delay to which that gives rise. It would help weed out inadequate, incomplete, or false defences. It would enable the police, without making any interviews, to check the criminal records of defence witnesses so that the jury would be able to use that information if they saw fit, to assess credibility. In certain cases, if appropriate, it would allow the police

723
to interview defence witnesses before the trial and make further inquiries. Those interviews may even assist the defence as well as the prosecution.
I cannot say how often that will happen, but I strongly suspect that, in many cases, the witnesses who will be identified by the defence as people it wants to call will be people already known to the police in the sense that the police would have interviewed them before. It is quite likely that the defence has their identities because they form part of the unused material that has been disclosed by the prosecution. That is entirely proper: the prosecution has seen those witnesses and does not think that they would help its case; the defence wants to call them. The police and the prosecution will know what those witnesses are going to say, so it is unlikely that any further steps will be necessary, but at least they will know what is to be said. As I said, there is nothing conceptually new about that.
Two things happened as a result of the full debate that took place in Committee in another place. First, the clause as drafted would have required the defendant to give notice of an intention to give evidence himself or herself. That has been changed. We agree that that would be inappropriate; we have accepted that point. The second is to deal with what I suggest is the only significant objection that has been raised here: the risk that the police might be given the opportunity to put undue pressure on defence witnesses.
In what I am about say, I do not accept the basis of that, but important protection is provided in the amendments, which would give rise to a new clause enabling a code of practice to be made governing the conduct of police interviews with defence witnesses disclosed under the new arrangements. That will provide a substantial safeguard. An undertaking was given in another place to introduce that provision and the amendments will discharge that undertaking.
I know that we shall come to them later, but let me identify what the amendments will do. They will require the Secretary of State to consult chief police officers, the Law Society, the Bar Council and the Institute of Legal Executives before issuing the code of practice or any revisions; a significant degree of consultation is anticipated before the code will be finalised. A number of practical issues will require careful thought. It will then be brought to this House and another place for consideration. The initial code will be subject to the affirmative resolution procedure, and the affirmative procedure may also apply if the code is revised.
We have produced a first draft of such guidance, which was sent by letter by my noble friend Lady Scotland to Members of the Committee. It includes provisions that address concerns that have been raised—I understand why—today. For example: what about somebody simply going around and knocking on the door without notice? The guidance would require a police officer wanting to interview a witness first to notify the accused's legal representative and to invite that person to be present at the interview.
724
It would also require a careful and accurate record to be made of that interview, advising the witness in advance that a record will be made and copying it to both the witness and the accused. So the accused will have a record and if there is any question of anything wrong being done during that interview—of undue pressure—the record will stand for the court's consideration. The record will also be seen by the witness, so that he or she can also check that it is accurate.
Where the accused is not legally represented, the police officer will have to inform the accused that he intends to interview the witness. The code will probably provide that he will then invite the accused to appoint a legal representative to be present at that interview. Special provision is proposed for witnesses who are juveniles, mentally disordered or otherwise mentally vulnerable, with a recommendation that an appropriate adult should be present during the interview.
Those, then, are the principal provisions of the indicative draft code.
Baroness Anelay of St Johns: I should make it clear that neither I nor my noble friend Lord Hodgson of Astley Abbotts have had sight of the draft code. I am sure that it is simply the fault of the post going astray, but it means therefore that I shall make no further comment today on the code of practice when we reach the government amendments. I shall have to reserve my position until the Report stage, when I will have had an opportunity properly to consider the paper that perhaps has gone to others.
Lord Goldsmith: Of course I accept entirely what the noble Baroness has said. I had understood that the noble Baroness had received the letter; indeed I have here a copy of the letter that is addressed to her. I understand that she is not in a position to give a detailed response, but I hope that what I have said about the substantial provisions—we are not debating the code at this stage—at least indicates that the Government have taken the concerns into account and propose a code of practice which will address and deal with them. I refer in particular to the principal objection, which is the risk that witnesses will be dealt with in an improper way.
I hope that in the course of my remarks I have dealt with the points raised by noble Lords. There is a difference of philosophy between certain people. I understand that Professor Michael Zander has never been in favour of any defence disclosure. I do not criticise him for that; it is a perfectly respectable point of view, but it not one that Parliament took in 1996 when it passed the Criminal Procedure and Investigations Act 1996 and it is not one with which this Government agree.
Lord Brittan of Spennithorne: Does not the Minister realise that he is making it more difficult for people to go along with what he proposes because in fact he is giving considerable weight to the argument for the thin end of the wedge? When proposals were put forward

725
and enacted requiring the disclosure of alibi and expert witnesses, those were definitely presented as exceptions to the norm. They were exceptions to the rule; because of something in the particularity of those defences, it was reasonable to ask the defence to provide certain details. To declare now that because those exceptions were admitted, conceded and enacted, the past has been sold and we can generalise on it, makes any future argument that what is being done is only minor and exceptional one that will be increasingly difficult to accept.
Lord Goldsmith: It is gratifying to see that the noble Lord has not lost his skills as an advocate. In what I have said this evening I have never advanced the argument that because something was done it means that we can do more. The noble Lord, Lord Dholakia, drew attention to and placed reliance on what has been said by Professor Zander. I simply indicated in response that Professor Zander has always approached this from a different point of view. I believe that I am right in recalling that he was in the minority on the Runciman Royal Commission.
Of course the amendments to the defence disclosure code being put forward by the Government have to be considered on their merits. I seek to put forward what are those merits. As I have said, I sought simply to indicate that people have approached this from different points of view. There is a point of view which holds that there should be no disclosure at all by the defence, and there is a point of view which holds that that principle is not right. In these clauses we can consider what that detail should be.
I appreciate that I have spoken for some time on this clause. Finally, nothing in this clause or in the other provisions changes the burden of proof.
Lord Renton: Thank goodness.
Lord Goldsmith: The noble Lord, Lord Renton, and I agree entirely on that—a point made sotto voce by the noble Lord from a sedentary position. I do not disagree with him at all: the burden of proof will remain with the prosecution. The fact that the defence has had to give notification on certain points on which it takes issue with the prosecution and the fact that, under this clause, it will have to provide the names of the people it intends to call as witnesses, does not take away from the fact that it will still be for the prosecution to prove the case. That remains, and rightly so.
9.15 p.m.
Lord Dholakia: I am grateful to the Minister. As with Clause 32, I am sure that we shall come back to this issue on Report.
Clause 33 agreed to.
Clause 34 [Notification of names of experts instructed by defendant]:
Baroness Anelay of St Johnsmoved Amendment No. 112:
Page 22, leave out lines 37 to 39.
The noble Baroness said: In moving Amendment No. 112, I shall speak also to Amendments Nos. 113 to 116, 118, 119 and 241.
Amendment No. 112 is a simple drafting amendment. It leaves out subsection (2) because we simply cannot understand why it is necessary. It appears otiose and I would be grateful if the Minister could explain why it is vital to the Bill.
Amendment No. 113 goes to the heart of our objections to the provisions of Clause 34, which imposes a new requirement on an accused to serve before the trial a notice giving details of the name and address of any expert witness consulted, even where that expert witness is not then called. This is the step too far. The noble and learned Lord has explained how we need not worry about the exercise of any of these clauses because this is nothing much of a change; it is a rather rational, pragmatic development. As far as we are concerned, this is not so much a step change as a jump off a cliff. The clause widens considerably the disclosure duty imposed on the defence, which already has to give details of any expert witness it proposes to call to give evidence.
Our amendment represents a compromise to our objection to the clause. It prescribes that if the evidence of a witness is not relied upon by the accused, and no copy of that witness's report has been served on the prosecution, no reference should be made at the trial to the fact that the defence had originally instructed the expert witness. Without this compromise we would find Clause 34 unacceptable.
I am grateful to the London Criminal Courts Solicitors' Association for its briefing. It points out that in order to give expert opinions of substance. instructing experts requires openness both with the legal adviser and with the client. Almost invariably experts will be given legally professionally privileged material. They can be instructed for a variety of reasons, including on areas of cross-examination, in complex areas of expertise.
I come back to the question which was asked in a slightly different context during the debate on the previous clause: why should the prosecution require a notice specifying the name and address of the person instructed with a view to his or her providing any expert opinion for possible use as evidence at the trial of the accused? One can only assume that it is to enable the Crown to approach such witnesses and to obtain details of the opinion sought. We would argue that that would threaten to disclose legally professionally privileged material. That could not only compromise the expert's integrity but also derail trials following applications for stays of proceedings on the basis of abuse of process.
It is also possible that the new measure would deter practitioners from seeking more than one source of advice. I am sure there is nothing wrong per se in doing

727
that. It would deprive the accused of expert advice and weaken the independence and vigour of the accused's defence representation. There may be justifiable reasons for approaching more than one expert; there may be nothing shady or dodgy in doing so. For the prosecution at a subsequent trial to try to draw adverse inferences from the fact that one has been to more than one expert would be very retrograde. There can be justified differences of opinions among experts—in the medical world that is not uncommon. It could be that someone has sought expert opinion and that opinion has simply turned out to be wrong.
We are concerned about this provision. We are seeking a way forward through compromise. As the clause stands, our compromise is that the prosecution should have the information about the expert but that that information should not be used to draw adverse inferences during the course of the trial.
The Government have had long warning of this compromise. It was debated in another place at the beginning of this year and so they have had half a year to consider it. I hope that they have reflected well. I am certainly aware that many of my colleagues think that I am being far too generous to the Government in making this kind offer of a compromise to them. Of course, I am always sweet reason, particularly at this time of night.
I can be extremely brief on the last group of amendments. The other five are all consequential on Clauses 33 and 34 standing part of the Bill. I have tabled them for completeness. I beg to move.
Lord Carlisle of Bucklow: May I support most strongly my noble friend Lady Anelay on this amendment? I ask the Attorney-General what is the purpose of this new clause. It states:
"If the accused instructs a person with a view to his providing any expert opinion for possible use as evidence al: the trial of the accused, he must give to the court and the prosecutor a notice specifying the person's name and address".
If he is intending to call the expert witness whom he has approached, then his reason is now required in the law as I understand it, that he should disclose that evidence to the prosecution when the expert is called. But if he consults an expert whom he chooses not to call and does not intend to call, what is behind the suggestion that he should be required to give that expert's name and address to the prosecution?
For the purpose of this argument I am prepared to accept that the Attorney-General is correct when he says that the Lord Chief Justice was wrong in saying that if the prosecution went to four experts and they intended to call two of them, they would not be required to disclose details of the other two. As I understand it, I believe that under the rule of unused evidence they would be required to disclose the names of the other two experts.
But that totally ignores the whole issue of the burden of proof in a criminal trial. If a person is charged with an offence and those on his behalf choose to go to an expert who says, "I am sorry, I cannot help you" or says, "I am even more strongly against you
728
than the prosecution expert has disclosed in the depositions", what use is the prosecution then going to make of that statement? Is it intended that they should take a statement from that expert? If so, is it not almost obvious that they will be faced with the problem of professional privilege? Are they going to attempt to obtain evidence from the expert of what he has been told by the accused, which they could not get otherwise because it would be covered by professional privilege'? If he goes to a doctor with a defence of diminished responsibility and the consultant says, "I do not think that your client is of diminished responsibility", presumably that would be based on evidence he has learnt through professional privilege from the solicitor, from the client.
What is the other possible use of knowing the name and address of the unused expert? Presumably, it is to ask the defendant when he goes into the box, "Tell me, did you go to see professor so-and-so in his rooms in Harley Street on 10th December?" "Are you going to call him?" "No". What would be the purpose of that? Would it be an improper line of cross-examination or would it merely be to sow the seeds that there is an inference to be drawn from the fact that he is not going to call his expert?
I have kept quiet on Clauses 32 and 33 I have listened with interest to what the Attorney-General has said. I am away from it now, but I understand that there is a lot of complaint about the time taken up on the disclosure procedure and that in fact the fault is not all on one side. On any view it seems to me that it is going too far to ask the defence to express, expose or give the name and address of any expert that they have chosen to consult. I shall be grateful to hear the Attorney-General's justification for such a change.
Baroness Kennedy of The Shaws: I, too. would like to express concern about these matters in this Bill. I want particularly to raise concerns about the impact of this sort of change. I sometimes wonder whether governments embark on change without understanding the long-term impact that some of the changes might have on the ecology of the legal system, doing huge damage without thinking through areas of change. The temptation for some defendants would he to instruct only those experts who could be guaranteed to express an opinion favourable to the defence. Such a breed of tame defence experts would be an inevitable, unattractive and unwelcome feature of the criminal justice system. I ask the Government to take into account the way in which there are unforeseen consequences of what looks like reasonable change.
This change offends the common law principle of the privilege against self-incrimination. I want to remind the Minister that in the Court of Appeal last year, 2002, there was a judgment in the case of Regina v Davies. The court examined the relationship between a defendant and an expert instructed on his behalf, holding that evidence obtained by the expert in such circumstances should be treated in the same way as communications between the defendant and his legal representative. In that particular case the defendant was convicted of murder and his defence was, among

729
others, diminished responsibility. The trial judge ordered the defence, on application by the Crown, to disclose the opinion of a consultant psychiatrist instructed by the defence to examine and report on the defendant, but upon whom the defence had not been relying. The doctor gave evidence at the trial for the Crown. The Crown chose to use this particular expert and to rely on him because he had a view contrary to the one that was ultimately being relied on by the accused.
The conviction was quashed and the Court of Appeal found that the judge was wrong to order disclosure of the psychiatrist's opinion, being an item subject to legal privilege. Of particular relevance to this response was the following passage in the judgment of the court, which I recommend to the Minister:
"The appellant was…entitled to be protected from inadvertent self-incrimination. If a defendant agrees to be interviewed by a doctor instructed by the prosecution, he has the opportunity of being advised and knowing that what he says to the doctor may be used in evidence at the trial. If he is interviewed by a doctor at the instigation of his own lawyers for the purposes of his own defence, he is entitled to assume that what he says has the same status as his communications with his own lawyers."
I do many cases involving psychiatry in which the expertise of psychiatrists is very important in the conduct of the case. Sometimes, for example, I may decide not to call a psychiatrist who I have instructed because I would be running a number of defences. For example, a battered woman who had killed her husband may be saying, "I was defending myself, he was battering me at the time and I picked up a knife and I assaulted him and it led to his death". So self-defence may be my predominant area of defence, but I might also want to explore the possibility, as an alternative, of diminished responsibility. It may be that I have a report from the psychiatrist that says that this woman is on the margins. She might be diminished, because she is a battered woman who is suffering from depression and falls into the category of battered woman syndrome, but it is very marginal and can easily be challenged. I may make the calculated decision not to distract the jury from the central issue of self-defence and therefore not to rely on the psychiatric evidence. Should it then be handed over to the Crown in those circumstances? I may want to rely on psychiatry in running provocation, which I can nowadays do. Should I be expected to disclose that information to the Crown?
We are moving into quite dangerous territory here because of the way in which it may lead to miscarriages of justice. The enforced disclosure by the defence of unused expert reports would violate common law, statute and current case law. In my submission to this House, we see nothing in the proposals to justify such a course. In fact, it would be very detrimental to justice.
It is important that the Government look at the unforeseen consequences of some of these recommendations. I think that the quality of expertise will be contaminated because tame experts will come
730
forth. I greatly support the recommendation of Lord Justice Thorpe that the way to deal with bad experts is to have a system of accreditation.
9.30 p.m.
Lord Mayhew of Twysden: I could not hope to improve on the contribution of my noble friend Lord Carlisle of Bucklow. However, I want to assist the noble and learned Lord the Attorney-General, which will confirm everybody's belief that there is an unholy mafia between those who have held that office. I want to help him take the opportunity to explain the principle behind the clause by suggesting this scenario.
Let us suppose that there is a notorious prosecution or, more accurately, a notorious offence, which is the subject of a prosecution. At some stage—and this is not bizarre—one or more people with expert opinions and qualifications volunteer their assistance and send to the defence copies of their opinions and what they would be prepared to say. They have not been asked for it, but they volunteer it. The clause does not cover that—there is no obligation to disclose that, and quite right too, because that would surely be in conflict with the preservation of the burden of proof regarding which the noble and learned Lord so fervently said amen to my noble friend Lord Renton. But why not? If it is proposed to go ahead with Clause 34, what is different from the scenario that I suggest? It would be quite wrong, because that would be to compel the defence to give access to their pool for the purpose of allowing the prosecution to fish in it in order to enhance the prosecution case.
What is different in principle with a case in which the defence has instructed and consulted the expert? It just adds to the inherent validity or persuasiveness of that expert's opinion that he has been consulted on behalf of the defence. So if the noble and learned Lord is to avoid the charge that this provision is to enable the prosecution to fish in a pool to which the defence has been compelled to give them access, I would be very much obliged if he could explain the difference in principle between those two cases.
Lord Thomas of Gresford: The great objection to this clause seems to be on the basis of legal professional privilege, the primacy of which has very recently been underlined by the Privy Council in the case of B and Others which was decided on 19th May last. It may very well not have played any part in the noble and learned Lord's consideration, and certainly not in the consideration of those who have drafted this clause.
It was said very firmly by the Judicial Committee of the Privy Council, with the noble and learned Lord, Lord Millett, delivering the judgment, that it was decided as long ago as the 16th century that legal professional privilege was a supreme right for people. From a public policy point of view, although there may be compelling reasons for legal professional privilege to be breached in some way or other, nevertheless the decision was made, as long ago as that, that legal professional privilege should always prevail.

731
There is a distinction between Clauses 33 and 34. Clause 33 deals with witnesses of fact. Clause 34 deals with expert witnesses who give opinions on instructions. It is inevitable that those instructions will have to be based to a degree, sometimes very considerably so, upon privileged information. Often it will contain an account of what has happened. In the kind of case to which the noble Baroness, Lady Kennedy, referred, where one is obtaining a psychiatric report, and so on, an account of the incident may be given which is subject to legal professional privilege and details may be given to an expert in other fields as to how an incident happened, all of which should not be disclosed—as was said in the case of B and Others and, earlier, by the Judicial Committee of this House in the case of Derby Magistrates—in a way which would in any way interfere with the confidential relationship between the lawyer and his client.
If one approaches the issue from that point of view, it seems to me that any disclosure of names and addresses of witness who will not be used can have no other purpose than to encourage the prosecution to do the kind of fishing expedition to which the noble and learned Lord, Lord Mayhew, referred a moment ago.
Experts frequently are not used. They sit in court. They have provided reports which are riot disclosed. But they are there to advise the defence in dealing, for example, with a pathologist, a psychiatrist, and so on. Sometimes only one expert is heard for the prosecution; and the defence is advised, confidentially, without the expert himself giving evidence for the defence at a later stage.
Cases vary. In a case in the news last week—I was involved in it at earlier stages—there were four psychiatrists on one side and three on another. I can think of another case where there were three pathologists on one side and two on the other. That happens from time to time. More frequently, the expert for the defence is not called.
This clause is an intrusion upon that delicate balance to which the noble Baroness, Lady Kennedy, referred, which has preserved the reputation of the criminal justice system of this country over the years.
Baroness Mallalieu: Perhaps I may repeat to the noble and learned Lord the questions which others have asked and which cause me anxiety about the clause. First, why is it necessary? Secondly, what is the use to which the noble and learned Lord anticipates it will he put if it forms part of the Bill?
There are a number of reasons why in a criminal trial experts may be instructed by the defence. First and foremost, the Crown has served its experts and you want someone to check whether or not it is all right. Secondly, you have some instructions from your client—for example, he says he acted in self defence—and you want to know from an expert whether the injuries the deceased suffered were consistent with that. In other words, you want to know whether he has some support for his defence. On other occasions, you have a theory perhaps of your own. It may not form
732
any part of his case but you may have doubts about his mental state and his capacity. In those circumstances, you would instruct an expert to discover whether there was a possible medical defence.
As the noble Lord. Lord Thomas, said, often an expert is instructed simply for the purposes of assisting defence counsel with cross-examination during the course of the trial. In order to obtain a report, privileged information will have to be given.
The noble Lord, Lord Thomas of Gresford, has indicated the difficulties which—it seems to me and others—arise with provisions of this sort. I am not sure that I understand from the wording of the provision as it stands to what extent, for example, not just unsolicited expert opinion has to be notified, but informal opinion, which is often the way in which solicitors and barristers make initial approaches. They telephone an expert who has been known to them from other cases, and ask over the telephone for comments on the facts. Are all those names and addresses to be provided? If they are, what happens when they reach the prosecuting authority? Is someone going to interview each of those witnesses? If so, will privilege thereby be breached?
Lord Goldsmith: I shall start by saying something about the concern that led to this clause, and then to talk about what this clause does not do. I have indicated, and the noble Lord, Lord Carlisle of Bucklow, was good enough to repeat, that where the prosecution have consulted more than one expert, but only intend to call one, then there is at least a strong likelihood that they will be required to disclose that fact as part of the unused material, and are likely to have to disclose the unused report itself.
The police believe that there are some defendants who might consult several experts until they find one who provides a report that suits their case, and which is used at trial—so giving an impression of the merits of the defence case, which is at variance with the facts, because of the seemingly authentic, impartial and authoritative aura of an expert witness. There was a desire that, given that experts are intended to be independent, impartial and not advocating for one side or the other, there should be no reason why such unused reports should not be disclosed. But that is not the effect of the clause. It does not require that any unused expert report should be disclosed, precisely because of legal professional privilege, the importance and existence of which the Government and I were well aware before this clause was finalised.
Equally, legal professional privilege means that it would not be appropriate if an expert was known to have been consulted and was then seen by someone from the prosecution. I remind noble Lords that there is no property in a witness. It would not be appropriate to probe that expert over the opinion that he had given before, still less to say to him, "please, can you provide a copy of the report that you have given". It would be inappropriate to ask for information that would indicate material which had been provided by the accused, for example. If it were a psychiatric report—my noble friend Lady Kennedy gave an example in

733
which the psychiatrist based his opinion upon an account given by the defendant of what had taken place—that would be privileged information and ought not to be disclosed.
There are circumstances in which an expert does not have privileged information and where it would not be inappropriate for one party to consult an expert who had been consulted by another. That happened to me in a case in the early 1980s—not a criminal case, a civil case. But it went to the Court of Appeal, which said that it was quite appropriate for the other side to have consulted an expert that we had consulted, there being few experts in that field. Of course, he was not at that point giving evidence. He then did give expert evidence, not on the basis of what he had said to us, but following his discoveries as a result of the instructions that he had received.
The clause was intended to deter shopping around when it is improper—I am not at all suggesting that it always is—and to do something to redress the balance between prosecution and defence disclosure requirements in the area. It would be possible under the clause, provided that the expert was not questioned about the work done for the defendant or asked to give any opinion that would disclose in any way legally privileged material that he had had, for such a person to be consulted and employed by the prosecution. However, I accept that the clause does not attract the sanctions provided for in Clause 38, as Members of the Committee may have noticed. Again, legal professional privilege lies behind that restraint on behalf of the Government.
The provision remains modest and does not involve disclosure of the report, although my noble friend Lady Kennedy suggested that it did. I fully recognise the constraints of legal professional privilege. I am grateful to those Members of the Committee who reminded me of several cases that refer to it. I am glad to say that I was well aware of those principles previously. Although the clause, because it is modest, may have limited effect, it will still do something to redress a balance that exists.
9.45 p.m.
Lord Brittan of Spennithorne: The Minister has talked at length about the limitations on the use of the clause—there must not be interference with professional privilege, there must not be disclosure of communication from the defendant to the particular witness, and everything else that is not allowed. If all those constraints are accepted, it is very difficult to see any significant benefit in such a clause. What are the circumstances in which it is really desirable to ask Parliament to change the law which would properly enable the clause to be used in a way that has real value?
I am not persuaded, and I do not think that the Minister has begun to give any kind of colour as to the circumstances in which that would be really beneficial. We must bear in mind in particular that, even if one wished to be as scrupulous as possible in avoiding
734
impairing professional privilege, what an expert says after he has been approached by the defence is bound to be coloured by that. It is extremely unlikely that, in a criminal as opposed to a civil case, he would be able to give evidence to the prosecution that would be proper.
Lord Goldsmith: I do not accept that the question of legal professional privilege depends, when one is talking about a defence expert, on whether the case is criminal or civil. Exactly the same principle applies.
Lord Thomas of Gresford: I merely want to point out to the Minister that, in practice, shopping around does not take place these days because legal aid is not granted for it. The fact is that 99.9 per cent of cases are legally aided. Every time one wants a professional and expert opinion these days, one has to apply to the fund for it to be granted. That is the way to control shopping around, not to deal with it in the way proposed in the clause.
Lord Goldsmith: I hear what the noble Lord says. My point in response to the noble Lord, Lord Brittan, is that I make a virtue of the fact that the proposal is modest, because it does not contravene the principles referred to as important by Members of the Committee who have spoken in this short debate. It will have some value for that, and some benefit in deterring shopping around and not allowing a false impression to be provided in certain cases. The Government will seek to ensure that the clause stands part.
Lord Thomas of Gresford: If the purpose of the clause is to avoid a false impression being created, it follows that the prosecution will reveal to the jury or to the adjudicating magistrates that other people have been approached for their names and addresses. If that information is not given, the false impression to which the noble and learned Lord referred remains.
Lord Goldsmith: I repeat. Read Clause 38 and see in what circumstances adverse inferences can be drawn. It does not include that.
Lord Mayhew of Twysden: Perhaps I may intervene before the noble and learned Lord sits down. He has been assailed by many noble Lords, because, no doubt inadvertently, he omitted to deal with a little scenario that I suggested. If the principle or rationale of Clause 34—as much in what it does not do as what it does do—is to protect legal privilege, how is it that the volunteer of an opinion is not included in the same provisions? In his case, no suggestion of legal privilege can arise, and yet the Bill does not propose to catch such a volunteer in that way. I asked rather tentatively and diffidently what was the principle that led to that distinction.
Lord Goldsmith: I apologise for not having addressed the example that the noble and learned Lord put to me in what I understood to be a friendly way.

735
The principle is that the provision in Clause 34 relates only to those cases where the accused has instructed a person with a view to his providing any expert opinion. The principle therefore is those he has instructed, but then does not use. If the defendant is fortunate enough to be assailed by offers of gratuitous expert advice from all sides, that is an entirely different issue. If the defendant does not take those offers any further, but then instructs one or more of those people actually to provide a report for possible use as evidence at the trial, there is no reason why this provision should apply. It is not just legal professional privilege which is the principle behind the provision. Legal professional privilege is a safeguard that should be guaranteed.
Perhaps I may address Amendment No. 112, which the noble Baroness moved. The provision is not otiose, as she suggests. Clause 33 introduces a general obligation for the defence to disclose the witnesses it intends to use at the trial—an obligation which has applied in the case of defence alibi and expert witnesses for many years.
Clause 34(2) removes the obligation of the defence to disclose an expert under Clause 34 who has already been disclosed under Clause 33. In short, it makes it clear that Clause 34 applies only to unused expert witnesses.
The amendment would duplicate the witness notice requirements. The accused would be required to include details of experts that he intended to call to give evidence both in the witness notification provision and in the expert provision. There seems to be no need for that.
Lord Thomas of Gresford: Will the Minister deal with the point raised by the noble Baroness, Lady Mallalieu, about the inquiry? Frequently, if not invariably, the solicitor will telephone a particular expert to get a feeling as to how he will deal with the issue at hand. Is that "instructing" in the terms of the Bill, or does it mean a formal letter of instruction for which payment will be given?
Lord Goldsmith: Whether someone is "instructed" within the terms of the clause does not depend on whether it is done orally or by letter. English law does not depend on formalities in that way. It is a question of fact. Has the accused instructed a person with a view to his providing any expert opinion for possible use as evidence at the trial of the accused? I can envisage circumstances in which an inquiry on the telephone—which may include questions such as "Does this fall within your field?" or "Have you got experience of this sort of incident?"—would fall short of instructing someone with a view to his providing an expert opinion for possible use as evidence at trial. It will always be, and is, a question of fact in each case.
Lord Mayhew of Twysden: I am sorry to prolong the debate and I shall do so for only 30 seconds. The Minister concedes that the prosecution has to disclose evidence which is adverse to its case. Let us suppose that the prosecution is favoured with a volunteered opinion which is adverse to its case and favourable to
736
the defence. Surely it would then be incumbent on the prosecution to disclose it. Yet if the roles are reversed, the Government do not intend to apply the same rule. Is there any reason for that, save that to do so would impinge on the burden of proof?
Lord Goldsmith: We are adopting an entirely different approach between prosecution and defence. If the prosecution has examples of expert reports that undermine its case or advance the case of the defence, it will be obliged to disclose them. That is not what is being proposed in relation to the defence. The obligation on the prosecution in relation to unused material is more extensive. I do not complain about that—that is the way that we have drafted the Bill and it will remain more extensive.
Baroness Anelay of St Johns: I thank the noble and learned Lord for his answer to Amendment No. 112 and I accept his explanation. He took us further forward than was done in another place.
Several Members of the Committee have spoken as though Clause 34 stand part is grouped with these amendments. The Minister perhaps thought that it still was, but it has been separated. It is natural for Members of the Committee to take that within the general debate on my group of amendments.
The Minister said that the clause is intended to deter improper shopping around and redress the imbalance between prosecution and defence. That has taken us to the root of the objection which many of us on all sides of the Committee have with this clause.
I was disappointed that the noble and learned Lord returned to the phraseology used in another place, trotting out the old argument of shopping around. I thought that the noble Lord, Lord Thomas of Gresford, was right in putting forward the point that most people are on legal aid. The Legal Services Commission will not allow one to shop around for experts. It is the guardian on that.
Even so, why should not the defence be allowed to instruct more than one expert and on receipt of that report then decide whether to rely on it without the threat that the prosecution might leave the court to draw an adverse inference on the defence's decision not to use the expert's opinion? Why should a defendant's case be prejudiced by arguing in court on peripheral matters about why an expert has not been called? That is liable to distract the jury from the real issues in the case.
The noble and learned Lord said that he would look at Clause 38 and that adverse inferences affect Clause 34. In that case, he should accept my Amendment No. 113 with open arms. It makes it clear that the information which goes to the prosecution with regard to the name of an expert whose evidence will not be relied upon cannot be used in court. My amendment

737
makes it clear that that evidence cannot be used and therefore no adverse inference can be drawn. My honour will be satisfied.
I have offered that compromise to the Minister, but he has not seized it. I therefore give notice that although I shall now beg leave to withdraw Amendment No. 112, I shall ask to test the opinion of the Committee on Amendment No. 113.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 113:
Page 22, line 41, at end insert—
"(4)In the event of the expert evidence of a person named in subsection (1) above not being relied upon by the accused, and no copy of his report having been served by the accused on the prosecutor, no reference shall be made at trial by the prosecutor or evidence adduced by him, to the effect that the accused had approached such a person for his expert opinion.""
The noble Baroness said: I beg to move.
9.59 p.m.
On Question, Whether the said amendment (No. 113) shall be agreed to?
Their Lordships divided: Contents, 29; Not-Contents, 47.

Division No. 2

CONTENTS

Anelay of St Johns, B.

Harris of Richmond, B.

Blatch, B.

Hodgson of Astley Abbotts, L.

Bridgeman, V.

Hylton, L.

Brittan of Spennithorne, L.

Kennedy of The Shaws, B.

Carlisle of Bucklow, L.

Luke, L.

Colville of Culross, V.

Maginnis of Drumglass, L.

Cope of Berkeley, L.

Mayhew of Twysden, L.

Craigavon, V.

Naseby, L.

Crathorne, L.

Renton, L.

Dholakia, L. [Teller]

Roper, L.

Seccombe, B. [Teller]

Dundee, E.

Shutt of Greetland, L.

Ferrers, E.

Thomas of Gresford, L.

Geddes, L.

Thomas of Walliswood, B.

Hanningfield, L.

Ullswater, V.

NOT-CONTENTS

Ahmed, L.

Faulkner of Worcester, L.

Andrews, B.

Fyfe of Fairfield, L.

Archer of Sand well, L.

Gale, B.

Barnett, L.

Gilbert, L.

Bassam of Brighton. L.

Golding, B.

Bernstein of Craigweil, L.

Goldsmith, L.

Borrie, L.

Gould of Potternewton, B.

Burlison, L.

Grocott, L. [Teller]

Campbell-Savours, L.

Hollis of Heigham. B.

Chandos, V.

Hoyle, L.

Clark of Windermere, L.

Hughes of Woodside, L.

Crawley, B.

Hunt of Kings Heath, L.

David, B.

Jordan, L.

Davies of Oldham, L. [Teller]

Judd, L.

Dean of Thornton-le-Fylde, B.

Layard, L.

Dubs, L.

McIntosh of Haringey, L.

Evans of Parkside, L.

McIntosh of Hudnall, B.

Evans of Temple Guiting, L.

MacKenzie of Culkein, L.

Farrington of Ribbleton, B.

Pitkeathley, B.

738

Radice, L.

Thornton, B.

Simon, V.

Warwick of Undercliffe, B

Stone of Blackheath, L.

Watson of Invergowrie, L.

Whitty, L.

Taylor of Blackburn, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
10.8 p.m.
Clause 34 agreed to.
Clause 35 [Further provisions about defence disclosure]:
[Amendments Nos. 114 to 116 not moved.]
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 117:
Page 23, line 22, at end insert "having heard representations from all parties"
The noble Baroness said: This amendment would alter proposed new Section 6E of the Criminal Procedure and Investigations Act 1996. In its current form, the Bill would allow the court, either of its own motion or on the application of any party, to direct that the jury may be given a copy of the defence statement. Amendment No. 117 would add one further qualification to subsection (5)(a) in that there would have to he representations from all parties.
We received advice on this matter from the Bar Council and the Law Society, which believe that it is essential in order that the court may give the defendant an opportunity to have a say about what effect such disclosure would have on his or her case. Surely one should allow all the parties involved in the justice system to make their case.
The defence statement itself will be submitted very early on and, of course, may be extremely detailed. It will have been submitted with the implied authority of the defendant, who may not easily be contacted or he may have mental health difficulties or require an interpreter. Any of those may mean that there is some information of which the defence is unaware or about which it is perhaps not too content and which the defendant feels would harm his defence if it went before the jury.
The fact that this document may be given to the jury in its entirety will increase the pressure on the defence representatives. Of course, while we are fully supportive of early preparation and disclosure—we made that clear in our support of earlier clauses in this part—we are concerned that these proposals take no account of the constraints of time and resources and the timetables of other agencies involved, such as the police, the CPS and prison officers, or, indeed, the time constraints of the Legal Services Commission.
I should be grateful if the Minister could indicate whether funding will be available for the additional staff and earlier instruction of counsel that will be required as a result of this new regime. I beg to move.
Lord Goldsmith: I agree with the substance of what the noble Baroness has said in the first part of her

739
observations, but I do not think that it is necessary. I am not sure that I understood the second part of her remarks, which may be my fault.
The amendment would include in Clause 35 a provision that before a judge gives a copy of a defence statement to the jury, he should hear representations from all parties. Clause 35 says that the judge can give the defence statement to the jury. I find it hard to believe that a judge would not want to hear representations from the parties before taking that step.
The courts make many orders during a trial, and judges will invariably look to the parties for representations as to whether or not the order should be made. I anticipate that a judge will always seek representations before making an order. However, I would object to putting it on the face of the Bill that, before making the order, representations have to be considered. That would then mean that every time we give a court a power to make an order, it must do so only after making representations. What will then happen when we do not include such provisions?
I hope that those remarks will reassure the noble Baroness on the fundamental point behind her amendment, and I invite her to withdraw it.
The noble Baroness then asked about timing and payment for defence counsel. The particular provision on giving the defence statement to the jury does not seem to me to involve additional work on the part of the defence team, which, at the moment the judge considers giving it to the jury, will have to make a representation. But that will simply be part of the defence's preparation. I cannot give a further answer. I probably misunderstood the point.
Viscount Colville of Culross: I shall just say a word to support the noble and learned Lord the Attorney-General. I am sure that he is right that before a decision is made about giving a statement to the jury, counsel on both sides would be asked for their views. No judge would do something like that without seeking some sort of agreement—or disagreement, in which case he would have to adjudicate. I should have thought it basic to the running of the court that that should happen.
Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his response. This amendment was tabled as the direct result of a briefing from the Law Society. It is the Law Society's own drafting. I shall check its response to the Minister's remarks. In the last debate, my noble and learned friend Lord Mayhew of Twysden referred to occasions upon which one may not seek expert advice, but it can be volunteered. Such expert advice was volunteered by my husband on Saturday evening, and it concurred entirely with what the noble and learned Lord said, so I am not entirely surprised. However, I will check with the Law Society whether we should take this matter any further on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 35 agreed to.
Clauses 36 and 37 agreed to.
Clause 38 [Faults in defence disclosure]:
10.15 p.m.
[Amendment No. 118 not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford had given notice of his intention to move Amendment No. 119:
Page 25, line 6, leave out ", (3) and (4)" and insert "and (3)"
The noble Lord said: This amendment is to be taken with a later group. For the moment I will not move it.
[Amendment No. 119 not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 120:
Page 25, leave out lines 40 to 45.
The noble Lord said: The purpose of the amendments in this group is simply to exclude from Clause 38, which deals with faults in defence disclosure, references to the failure of the accused to give a witness notice in time in relation to witnesses, or calling a witness who has not been adequately identified. In defending somebody, it is difficult to decide in advance whether a witness will he called. Almost by principle, defence witnesses are not called unless it is absolutely necessary so to do.
Furthermore, issues arise in the course of a trial that the defence has not expected. A witness may say something that calls for a riposte. It is not a sufficient safeguard for the court simply to have regard to whether there is any justification for the failure. That is not a sufficient safeguard in the sort of circumstances that I envisage.
We are opposed in principle to punishment for failure to give notice of defence witnesses. It has never happened before and should not be allowed by this Bill. I beg to move.
Baroness Anelay of St Johns: I support the noble Lord, Lord Thomas of Gresford, on the three amendments to which I have put my name, but I am not proceeding with Amendment No. 122, which I tabled.
Lord Goldsmith: I speak to Amendments Nos. 120 and 121, not to Amendment No. 122, which is not being proceeded with, to Amendments Nos. 123 and 125, and to Amendment No. 126, which is in the name of my noble friend Lady Scotland.
We had thought that Amendments Nos. 120, 121, 123 and 125 were consequential upon the deletion, had it happened, of Clause 33, which requires the defence to give notice of intention to call defence witnesses. Of course, if the clause had gone, it would make sense no longer to include the provisions to which the amendments refer. I understand from what the noble Lord, Lord Thomas of Gresford, said in moving the amendment that he proposes that, although Clause 33 stands—that is to say, there is still an obligation on the

741
defence to give notice of defence witnesses—no sanction whatever should attach to a failure to comply. I respectfully suggest that that would be inappropriate.
Important safeguards are provided, including that in proposed new subsection (6), which provides, where there is a failure arising under proposed new subsection (2)(f)(ii), that leave of the court would be required before comment could be made. Now I read the detail, that is not as relevant as I thought when I began that proposition.
Surely, it makes sense that if there is a good reason why a new witness has been called—there is no failure to call a witness but a new witness is called for a good reason—no adverse inference will be drawn and there can be no harm in the provision. On the other hand, if the defendant had had all opportunity and had no justification for suddenly producing a witness who could plainly have been identified before, common sense suggests that people would say, "Now you say that this man was standing next to you when the incident took place, saw everything, and that you travelled home with him. Why on earth did you not say that before? If you have a good reason for that, let's hear it. If not, an inference is likely to be drawn".
Viscount Colville of Culross: The same point arises again. I do not know whether the noble Lord, Lord Thomas of Gresford, would agree with me, but the drawing of inferences is not a matter that goes undiscussed before the judge directs the jury. There is often occasion to discuss how that will be put. Indeed, that is to some extent consolidated in the guidance given to Crown Court judges. I should have thought that common sense would indicate that if there was a good reason why the witness had not been caught before, that would be aired in the absence of the jury between the parties in the court and, very likely, no adverse inference would be put before the jury. I may be wrong about that, but that is certainly how I would have dealt with that.
Lord Hylton: Earlier, the noble Lord, Lord Brittan, asked how often ambush defences occur and how often they succeed. It might be appropriate to our consideration of the amendment if the noble and learned Lord could answer that question.
Lord Goldsmith: I am happy to do that with such information as is available to me this evening. It goes back a little bit, but a Crown Court study was conducted for the purposes of the Royal Commission on Criminal Justice under the chairmanship of Lord Runciman. According to research undertaken then, when asked, prosecution barristers considered that there had been an ambush defence in 7 per cent of cases in which there was a substantive reply. The Crown Prosecution Service, looking at a different number of cases, put the figure at around 10 per cent. The police considered that there had been an ambush defence in a larger number of cases, but I should make it clear that the sample of cases was different. Prosecution barristers said that some 41 cases out of 601 involved
742
ambush defences; for the CPS it was 70 out of 724; for the police it was 152 out of 581. According to the police, ambush defences occurred in 21 per cent of contested cases ending in a verdict of not guilty, with 34 per cent of cases ending in a verdict of guilty.
The figures given in the course of this research study indicate that, in the views of those asked—the police, prosecution barristers and the CPS—there were ambush defences in a significant number of cases.
I should have spoken to Amendment No. 126. If noble Lords permit, I shall do so now before moving it formally in due course. The amendment introduces a new clause, adding a significant safeguard to the requirement for the defence to provide advance notice of witnesses. It provides for any police interviews with witnesses to be disclosed to the prosecution under the new procedures to be governed by a code of practice. In an earlier part of this debate I indicated the areas covered by that code.
The new clause addresses concerns raised by the House of Commons Home Affairs Select Committee about the risk of undue pressure being put on defence witnesses. The committee recommended that any such interviews should be covered by a code of practice, and that is what is proposed. I hope that the clause will be welcomed by all sides of the Committee.
Lord Hylton: Earlier this evening the noble and learned Lord the Attorney-General said that a record kept by the police of interviews with defence witnesses whose names had previously been disclosed would be given both to the witness and to the accused. I do not see any reference to that in the proposed code of practice. How is this to be dealt with?
Lord Goldsmith: The amendment sets out the enabling powers for a code of practice; it does not include in its terms the code of practice itself. I was referring to an indicative code of practice, of which notice had been given, so I believed, to a number of noble Lords. However, I know that the noble Baroness, Lady Anelay, said earlier that she had not received a copy. I do not know whether that indicates that there has been a more general failure of disclosure. The letter indicates that it had been copied to all noble Lords who attended the Second Reading debate. I cannot immediately recall whether the noble Lord, Lord Hylton, did so, but I shall certainly ensure that a copy of the letter is sent to him very soon. He will then see the indicative provisions that we have in mind.
Lord Thomas of Gresford: I wish to comment first on ambush defences. I am not surprised that the figures differ as to whether it is the prosecutor or the police coming to the conclusions just set out by the noble and learned Lord. It depends on what is meant by an ambush defence. It happens frequently in a case that facts come to light or circumstances change which were not expected by the prosecution. For example, the prosecution may have one version of what happened during an interview, but when the defendant comes to give his evidence he says that for one reason

743
or another those events were not true and then gives the actual defence. Would that be defined as an ambush defence?
My second point concerns the code of practice. I would be grateful if the noble and learned Lord could tell us whether it will apply equally to alibi notices, or the equivalent of alibi notices in the defence statement. A problem that arises in practice with the police interviewing alibi witnesses is that they have in their possession a statement which they do not disclose, saying that there are public interest reasons for not doing so. The defence is then more or less obliged to call its alibi witnesses blind, not knowing precisely what is set out in the statement that the police have obtained. If the code means that all statements taken from defence witnesses, including alibi witnesses—and, of course, interviews—will now be in the hands of the defence, that is a great advance which I certainly welcome. Can the noble and learned Lord enlighten me on that?
Lord Goldsmith: The provisions of the proposed new clause in Amendment No. 126 provide for a code of practice,
"in relation to the arranging and conducting of interviews of persons…particulars of whom are given in a defence statement in accordance with section 6A(2), or…who are included as proposed witnesses in a notice given under section 6C".
So it will be necessary to consider the detail of that. Section 6A(2) appears to include alibi witnesses and therefore it would appear that I am able to answer the noble Lord's question in the affirmative.
Lord Thomas of Gresford: I am very pleased to hear that.
My third and final point in relation to the amendments that I have moved and spoken to is that the clause envisages the disclosure of the defence statement to the jury. Up until now it has been impossible to get a defence statement before a jury even if one wants to. In a particular case in Liverpool the defence wanted to do that but the judge refused leave for that to happen. I take it that defence statements will be disclosed to the jury if the jury is to be invited to draw some inference from them. I certainly agree with the noble and learned Lord that there will be discussions between counsel and the judge before the judge invites the jury to draw inferences of that kind. That is what happens in the usual course of events.
I shall consider this matter having regard to the reply given by the Minister. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 121 to 123 not moved.]
Lord Goldsmith Lord Goldsmith moved Amendment No. 124:
Page 27. line 5, leave out "5" and insert "6A(3)"
The noble and learned Lord said: The amendment makes a technical correction to the draft. I beg to move.
On Question, amendment agreed to.
[Amendment No. 125 not moved.]
Clause 38, as amended, agreed to.
Lord Goldsmithmoved Amendment No. 126:
After Clause 38, insert the following new clause—
"CODE OF PRACTICE FOR POLICE INTERVIEWS OF WITNESSES NOTIFIED BY ACCUSED
In Part 1 of the 1996 Act after section 21 there is inserted—
"21A CODE OF PRACTICE FOR POLICE INTERVIEWS OF WITNESSES NOTIFIED BY ACCUSED

(1) The Secretary of State shall prepare a code of practice which gives guidance to police officers in relation to the arranging and conducting of interviews of persons—

(a) particulars of whom are given in a defence statement in accordance with section 6A(2), or

(b) who are included as proposed witnesses in a notice given under section 6C.

(2) The code must include (in particular) guidance in relation to—

(a) information that should be provided to the interviewee and the accused in relation to such an interview;

(b) the notification of the accused's solicitor of such an interview;

(c) the attendance of the interviewee's solicitor at such an interview;

(d) the attendance of the accused's solicitor at such an interview;

(e) the attendance of any other appropriate person at such an interview taking into account the interviewee's age or any disability of the interviewee.

(3) Any police officer who arranges or conducts such an interview shall have regard to the code.

(4) In preparing the code, the Secretary of State shall consult—

(a) to the extent the code applies to England and Wales—

(i) any person who he considers to represent the interests of chief officers of police;

(ii) the General Council of the Bar;

(iii) the Law Society of England and Wales;

(iv) the Institute of Legal Executives;

(b) to the extent the code applies to Northern Ireland—

(i) the Chief Constable of the Police Service
of Northern Ireland;

(ii) the General Council of the Bar of Northern Ireland;

(iii) the Law Society of Northern Ireland;

(c) such other persons as he thinks fit.

(5) The code shall not come into operation until the Secretary of State by order so provides.

(6) The Secretary of State may from time to time revise the code and subsections (4) and (5) shall apply to a revised code as they apply to the code as first prepared.

(7) An order bringing the code into operation may not be made unless a draft of the order has been laid before each House of Parliament and approved by a resolution of each House.

745

(8) An order bringing a revised code into operation shall be laid before each House of Parliament if the order has been made without a draft having been so laid and approved by a resolution of each House.

(9) When an order or a draft of an order is laid in accordance with subsection (7) or (8), the code to which it relates shall also be laid.

(10) No order or draft of an order may be laid until the consultation required by subsection (4) has taken place.

(11) A failure by a police officer to have regard to any provision of a code for the time being in operation by virtue of an order under this section shall not in itself render him liable to any criminal or civil proceedings.

(12) In all criminal and civil proceedings a code in operation at any time by virtue of an order under this section shall be admissible in evidence.

(13) If it appears to a court or tribunal conducting criminal or civil proceedings that—

(a) any provision of a code in operation at any time by virtue of an order under this section, or

(b) any failure mentioned in subsection (11),
is relevant to any question arising in the proceedings, the provision or failure shall be taken into account in deciding the question.'

On Question, amendment agreed to.
Clause 39, as amended, agreed to.
Schedule 3 [Allocation of cases triable either way, and sending cases to the Crown Court etc]:
Lord Thomas of Gresfordmoved Amendment No. 127:
Page 184, line 43, at end insert—
"( ) Where the court makes a decision under subsection (1) that the offence is more suitable for summary trial, having been informed of the accused's previous convictions under subsection (2)(a), the court as constituted shall not continue to try the accused."
The noble Lord said: In moving Amendment No. 127, I shall speak also to Amendments Nos. 128, 129 and 130, which give rise to a very important point of principle.
I am very concerned that where a court has made a decision having been informed of the accused's previous convictions, then that court should not continue to try him. That is the purpose of the subsection I seek to insert in paragraph 5 of the third schedule. For the existing Section 19 there is to be substituted a decision as to allocation. The court will give the prosecution an opportunity to inform the court of the accused's previous convictions, if any, and will also give both the prosecution and the accused an opportunity to make representation as to what sort of trial is more suitable.
Having come to that conclusion, we consider that the court should disqualify itself from sitting to determine the matter as ordinary magistrates. I beg to move.
Lord Goldsmith: I speak to Amendments Nos. 127, 128, 129 and 130. Amendment No. 127 would disqualify magistrates to whom antecedents had been revealed at allocation from hearing any subsequent summary trial.
746
The Government recognise that there will be circumstances when lay magistrates or district judges consider that information which has been revealed to them in the course of an allocation hearing is sufficiently prejudicial that they feel it would not be proper for them to hear the trial of that defendant if summary trial is agreed.
In those circumstances it is appropriate for the magistrates to stand down; and that is what they would do. But the question here is whether that is what magistrates should be required to do by putting it on the face of the Bill. It is quite well known that magistrates will hear cases involving defendants where one or more of them were involved in convicting that same defendant some time before. Indeed. in some parts of the country with the more prolific local offenders it would be quite hard sometimes for the local Bench not to recognise a defendant as someone they dealt with only recently. It would be odd if a magistrate were disqualified automatically by reason of being informed that a defendant had a certain previous conviction, but would have a discretion to hear the case if he himself convicted him a month before. We are prepared to trust magistrates and district judges to know when it is appropriate for them to sit.
For that reason we believe that the automatic disqualification for which Section 42 of the Magistrates' Courts Act 1980 provides can he dispensed with. We would therefore not accept Amendment No. 130, which is consequential on Amendment No. 127.
Amendment No. 128 deals with a different point. That would require a prosecution application to have a case re-allocated for Crown Court trial to be made within seven days of the decision to allocate it for summary trial. The justification for allowing such an application is that an allocation decision may have been made on the basis of incomplete information. If it is discovered, for example, that a defendant who was believed to have no previous convictions in fact has many and all for offences similar to that for which he stands charged, and this discovery is made before the start of his trial, why should he not be sent to the Crown Court to be tried? Why impose a time limit of seven days, which would be quite arbitrary?
The idea of being able to move from summary trial to committal proceedings is not an innovation: there is existing provision for that.
Finally, Amendment No. 129 would require the defendant to be notified of such an application. I am sure that the normal practice would be for the Crown to inform the defendant wherever it was practicable to do so. My only doubt is whether a statutory requirement to do so might lead to unnecessary delay in cases where notification was for some reason not practicable and the need for Crown Court trial indisputable. But I am prepared to consider whether a statutory requirement could be incorporated.
Lord Thomas of Gresford: In the light of those assurances I am happy to withdraw the amendment. I

747
am very grateful to the noble and learned Lord for saying that the court will consider whether it should continue to sit in particular circumstances. When that is drawn to the attention of the magistrates I am sure that they will come to a proper decision. I hear what the noble and learned Lord says about Amendments Nos. 128 and 129. I should be grateful if he would consider the placing of the opportunity to make representations on the face of the Bill. I wait with interest to see what he will do. For the moment, I beg leave to withdraw Amendment No. 127.
Amendment, by leave, withdrawn.
[Amendments Nos. 127A to 130 not moved.]
Lord Goldsmithmoved Amendment No. 131:
Page 199, line 19, leave out from second "offence" to end of line 20 and insert "triable either way;"
The noble and learned Lord said: I move Amendment No. 131 and speak to Amendment No. 132. Amendment No. 131 brings the definition of an either way offence into line with that of the Interpretation Act 1978. It is therefore a technical amendment that I hope will be acceptable.
Amendment No. 132, which appears to be very substantial in length, makes numerous consequential amendments to Schedule 3. It results from the new allocation and sending provisions, which are provided in that part of the Bill that we have just dealt with. It is necessary, in the light of the new provisions for allocation and for sending of cases, that such consequential amendments be made. Noble Lords will understand why, at this hour in the evening, I do not propose to go through every one of such consequential provisions. I beg to move.
On Question, amendment agreed to.
Lord Goldsmith Lord Goldsmith moved Amendment No. 132:
Page 210, line 5, at end insert—

Criminal Justice Bill

  PART 2 MINOR AND CONSEQUENTIAL AMENDMENTS
  Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36)
  29 (1) Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (procedure for indictment of offenders) is amended as follows.
  (2) In subsection (2)—

  (a) in paragraph (a), for "committed" there is substituted "sent",

  (b) paragraphs (aa) to (ac) are omitted,

  (c) for paragraph (i) there is substituted—

  "(i) where the person charged has been sent for trial, the bill of indictment against him may include, either in substitution for or in addition to any count charging an offence specified in the notice under section 57D(1) of the Crime and Disorder Act 1998, any counts founded on material which, in pursuance of regulations made under paragraph 1 of Schedule 3 to that Act, was served on the person charged, being counts which may lawfully be joined in the same indictment;",.

  748

  (d) paragraphs (iA) and (iB) are omitted.

  (e) in paragraph (ii), for "the committal" there is substituted "such notice", and

  (f) the words from "and in paragraph (iA)" to the end are omitted.

  (3) In subsection (3)(b), for "committed" there is substituted "sent".
  Criminal Justice Act 1967 (c. 80)
  30 (1) The Criminal Justice Act 1967 is amended as follows.
  (2) In section 9 (proof by written statement), in subsection (1), the words ", other than committal proceedings," are omitted.
  (3) In section 36 (interpretation), in subsection (1), the definition of "committal proceedings" is omitted.
  Criminal Appeal Act 1968 (c. 19)
  31 (1) The Criminal Appeal Act 1968 is amended as follows.
  (2) In section 1 (right of appeal), in subsection (3), for "committed him" there is substituted "sent him to the Crown Court".
  (3) In section 9 (appeal against sentence following conviction on indictment), in subsection (2), the words from "section 41" to "either way offence" are omitted.
  Theft Act 1968 (c. 60)
  32 In section 27 of the Theft Act 1968 (evidence and procedure on charge of theft or handling stolen goods), subsection (4A) is omitted.
  Criminal Justice Act 1972 (c. 71)
  33 In section 46 of the Criminal Justice Act 1972 (admissibility of written statements outside England and Wales), subsections (1A) to (1C) are omitted.
  Interpretation Act 1978 (c. 30)
  34 In Schedule 1 to the Interpretation Act 1978 ( words and expressions defined)—

  (a) in the definition of "Committed for trial", paragraph (a) is omitted,

  (b) after the entry for "Secretary of State" there is inserted—

  ""Sent for trial" means, in relation to England and Wales, sent by a magistrates' court to the Crown Court for
  trial pursuant to section 51 or 5IA of the Crime and Disorder Act 1998."
  Magistrates' Courts Act 1980 (c. 43)
  35 (1) The Magistrates' Courts Act 1980 is amended as follows.
  (2) Sections 4 to 8 (which relate to committal proceedings) shall cease to have effect and the cross-heading preceding section 4 is omitted.
  (3) In section 29 (power of magistrates' court to remit a person under 17 for trial to a juvenile court in certain circumstances), in subsection (2)(b)(i), for the words from "proceeds" to the end there is substituted "sends him to the Crown Court for trial under section 51 or 5IA of the Crime and Disorder Act 1998; and".
  (4) The following sections shall cease to have effect—

  (a) section 97A (summons or warrant as to committal proceedings),

  (b) section 103 (evidence of persons under 14 in committal proceedings for assault, sexual offences etc), and

  (c) section 106 (false written statements tendered in evidence).

  (5) In section 150 (interpretation of other terms), in subsection (1), the definition of "committal proceedings" is omitted.
  (6) In section 155 (short title, extent and commencement), in subsection (2)(a), the words "8 (except subsection (9))" are omitted.
  Supreme Court Act 1981 (c. 54)
  36 (1) The Supreme Court Act 1981 is amended as follows.
  (2) In section 76 (committal for trial: alteration of place of trial)—

  (a) in subsection (1), for the words from "varying" (where it first appears) to "to Crown Court)" there is substituted "substituting some other place for the place specified in a notice under section 51D(1) of the Crime and Disorder Act 1998 (a "section 51D notice")",

  (b) in subsection (3), for the words "fixed by the magistrates' court, as specified in a notice under a relevant transfer provision" there is substituted "specified in a section 51D notice",

  (c) subsection (5) is omitted, and

  (d) in the heading, for "Committal" there is substituted "Sending".

  (3) In section 77 (committal for trial: date of trial)—

  (a) in subsection (1), for "committal for trial or the giving of a notice of transfer under a relevant transfer provision" there is substituted "being sent for trial".

  (b) in subsection (2), for "committed by a magistrates' court or in respect of whom a notice of transfer under a relevant transfer provision has been given" there is substituted "sent for trial",

  (c) in subsection (3), for "of committal for trial or of a notice of transfer" there is substituted "when the defendant is sent for trial",

  (d) subsection (4) is omitted, and

  (e) in the heading, for "Committal" there is substituted "Sending".

  (4) In section 80 (process to compel appearance), in subsection (2), for "committed" there is substituted "sent".
  (5) In section 81—
  (a) in subsection (1)—

  (i) in paragraph (a)—

  (a) the words "who has been committed in custody for appearance before the Crown Court or in relation to whose case a notice of transfer has been given under a relevant transfer provision or" are omitted, and

  (b) after "51" there is inserted "or 51A",

  (ii) in paragraph (g), sub-paragraph (i) is omitted, and

  (b) subsection (7) is omitted.
  Police and Criminal Evidence Act 1984 (c. 60)
  37 (1) The Police and Criminal Evidence Act 1984 is amended as follows.
  (2) In section 71 (microfilm copies), the paragraph beginning "Where the proceedings" is omitted.
  (3) In section 76 (confessions), subsection (9) is omitted.
  (4) In section 78 (exclusion of unfair evidence), subsection (3) is omitted.
  Prosecution of Offences Act 1985 (c. 23)
  38 (1) The Prosecution of Offences Act 1985 is amended as follows.
  (2) In section 7A (powers of non-legal staff), for subsection (6) there is substituted—
  "(6) This section applies to an offence if it is triable only on indictment or is an offence for which the accused has been sent for trial."
  (3) In section 16 (defence costs)—

  (a) in subsection (1), paragraph (b) is omitted, and

  (b) in subsection (2)—

  (i) in paragraph (a), for "committed" there is substituted "sent", and

  (ii) paragraph (aa) is omitted, and

  (c) subsection (12) is omitted.

  (4) In section 22 (power of Secretary of State to set time limits in relation to preliminary stages of criminal proceedings), in subsection (11)—

  (a) in paragraph (a) of the definition of "appropriate court", for "committed for trial, sent for trial under section 51 of the Crime and Disorder Act 1998" there is substituted "sent for trial",

  (b) for the definition of -custody of the Crown Court" there is substituted—

  ""custody of the Crown Court" includes custody to which a person is committed in pursuance of—

  (a) section 43A of the Magistrates' Courts Act 1980 (magistrates' court dealing with a person brought before it following his arrest in pursuance of a warrant issued by the Crown Court); or

  (b) section 52 of the Crime and Disorder Act 1998 (provisions supplementing section 51);".

  (5) In section 23 (discontinuance of proceedings in magistrates' court), in subsection (2), for paragraphs (a) to (c) there is substituted—

  "(a) any stage of the proceedings after the court has begun to hear evidence for the prosecution at a summary trial of the offence; or

  (b) any stage of the proceedings after the accused has been sent for trial for the offence."

  (6) In section 23A (discontinuance of proceedings after accused has been sent for trial)—

  (a) in paragraph (b) of subsection (1), the words from "under" to "1998" are omitted, and

  (b) in subsection (2), for "51(7)" there is substituted "51D(1)".

  Criminal Justice Act 1987 (c. 38)
  39 (1) The Criminal Justice Act 1987 is amended as follows.
  (2) Sections 4 to 6 (which relate to the transfer of cases to the Crown Court) shall cease to have effect.
  (3) In section 11 (restrictions on reporting)—

  (a) in subsection (2), paragraph (a) is omitted,

  (b) subsection (3) is omitted,

  (c) in subsection (7), "(3)," is omitted,

  (d) in subsection (8), "(3)," is omitted,

  (e) subsections (9) and (10) are omitted,

  (f) in subsection (11), paragraphs (a) and (d) are omitted.

  Criminal Justice Act 1988 (c. 33)
  40 (1) The Criminal Justice Act 1988 is amended as follows.
  (2) In section 30 (expert reports), subsection (4A) is omitted.
  (3) In section 40 (power to join in indictment count for common assault etc), in subsection (1)—

  (a) the words "were disclosed to a magistrates' court inquiring into the offence as examining justices or" are omitted,

  (b) after "51" there is inserted "or 51A".

  (4) Section 41 (power of Crown Court to deal with summary offence where person committed for either way offence) shall cease to have effect.
  Criminal Justice Act 1991 (c. 53)
  41 (1) The Criminal Justice Act 1991 is amended as follows.
  (2) Section 53 (notices of transfer in certain cases involving children) shall cease to have effect.
  (3) Schedule 6 (notices of transfer: procedures in lieu of committal) shall cease to have effect.
  Criminal Justice and Public Order Act 1994 (c. 33)
  42 (1) The Criminal Justice and Public Order Act 1994 is amended as follows.
  (2) In section 34 (effect of accused's failure to mention facts when questioned or charged), in subsection (2)—

  (a) paragraph (a) is omitted, and

  (b) in paragraph (b), for sub-paragraphs (i) and (ii), there is substituted "paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998".

  (3) In section 36 (effect of accused's failure or refusal to account for objects, substances or marks), in subsection (2)—

  (a) paragraph (a) is omitted, and

  (b) in paragraph (b), for sub-paragraphs (i) and (ii), there is substituted "paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998".

  (4) In section 37 (effect of accused's failure or refusal to account for presence at a particular place), in subsection (2)—

  (a) paragraph (a) is omitted, and

  (b) in paragraph (b), for sub-paragraphs (i) and (ii), there is substituted "paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998".

  Criminal Procedure and Investigations Act 1996 (c. 25)
  43 ( ) The Criminal Procedure and Investigations Act 1996 is amended as follows.
  (2) In section 1 (application of this Part), in subsection (2)—

  (a) paragraphs (a) to (c) are omitted, and

  (b) in paragraph (cc), the words from "under" to the end are omitted.

  (3) In section 5 (compulsory disclosure by accused)—

  (a) in subsection (I), for "(2) to" there is substituted "(3A) and",

  (b) subsections (2) and (3) are omitted, and

  (c) in subsection (3A), in paragraph (b), for "subsection (7) of section 51" there is substituted "subsection (1) of section 51 D".

  (4) In section 13 (time limits: transitional), in subsection (1), paragraphs (a) to (c) of the modified section 3(8) are omitted.
  (5) In section 28 (introduction to Part 3), in subsection (1)—

  (a) for paragraph (a) there is substituted—

  "(a) on or after the appointed day the accused is sent for trial for the offence concerned,", and.

  (b) paragraph (b) is omitted.

  (6) In section 39 (meaning of pre-trial hearing), in subsection (1), for paragraph (a) there is substituted—

  "(a) after the accused has been sent for trial for the offence, and".

  (7) Section 68 (use of written statements and depositions at trial) and Schedule 2 (statements and depositions) shall cease to have effect.
  Crime and Disorder Act 1998 (c. 37)
  44 The Crime and Disorder Act 1998 is amended as follows.
  45 In section 52 (provisions supplementing section 51)—

  (a) in subsection (1), after "51" there is inserted "or 51A",

  (b) in subsection (5), after "51" there is inserted "or 51A",

  (c) in subsection (6), after "51" there is inserted "or 51A", and

  (d) in the heading, after "51" there is inserted "and 51A".

  46 In section 121 (short title, commencement and extent), in subsection (8), before "paragraphs 7(1)" there is inserted "paragraph 3 of Schedule 3 to this Act, section 52(6) above so far as relating to that paragraph,".
  47 In paragraph 3 of Schedule 3 (reporting restrictions)—

  (a) in each of paragraphs (a) and (b) of sub-paragraph ( I ), for "Great Britain" there is substituted "the United Kingdom",

  (b) in sub-paragraph (8), after paragraph (b) there is inserted—

  "(bb) where the application made by the accused under paragraph 2(1) above relates to a charge for an offence in respect of which notice has been given to the court under section 5IB of this Act, any relevant business information;",.

  (c) after sub-paragraph (9) there is inserted—

  "(9A) The following is relevant business information for the purposes of sub-paragraph (8) above—

  (a) any address used by the accused for carrying on a business on his own account;

  (b) the name of any business which he was carrying on on his own account at any relevant time;

  (c) the name of any firm in which he was a partner at any relevant time or by which he was engaged at any such time:

  (d) the address of any such firm;

  (e) the name of any company of which he was a director at any relevant time or by which he was otherwise engaged at any such time;

  (f) the address of the registered or principal office of any such company;

  (g) any working address of the accused in his capacity as a person engaged by any such company;

  and here "engaged" means engaged under a contract of service or a contract for services.",.
  (d) after sub-paragraph (11) there is inserted—
  "(11A) Proceedings for an offence under this paragraph shall not, in Northern Ireland, be instituted otherwise than by or with the consent of the Attorney General for Northern Ireland."
  Youth Justice and Criminal Evidence Act 1999 (c. 23)
  48 (1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
  (2) In section 27 (video recorded evidence in chief), subsection (10) is omitted.
  (3) In section 42 (interpretation and application of section 41). in subsection (3)—

  (a) paragraphs (a) and (b) are omitted,

  (b) in paragraph (c), after "51" there is inserted "or 51A".

  Powers of Criminal Courts ( Sentencing) Act 2000 (c. 6)
  49 (1) The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
  (2) In section 148 (restitution orders), in subsection (6), for paragraph (b) there is substituted—
  "(b) such documents as were served on the offender in pursuance of regulations made under paragraph 1 of Schedule 3 to the Crime and Disorder Act 1998.""
  On Question, amendment agreed to.
  Schedule 3, as amended, agreed to.
  Clause 40 agreed to.
  Lord Goldsmith: I beg to move that the House do now resume.
  Moved accordingly, and, on Question, Motion agreed to.
  House resumed.

Civil Contingencies
A message was brought from the Commons that they have ordered the committee appointed by them to meet with the Lords committee on Tuesday 15th July at half-past three o'clock, as proposed by this House.

Mental Incapacity
A message was brought from the Commons that they have ordered the committee appointed by them to meet with the Lords committee on Tuesday 15th July at half-past three o'clock, as proposed by this House.
House adjourned at sixteen minutes before eleven o'clock.