Lords Sitting of 15 September 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 St Edmundsbury and Ipswich.

National Asylum Support Service
Lord Dholakiaasked Her Majesty's Government:
Whether they will publish the independent review of the National Asylum Support Service.
Lord Bassam of Brighton: My Lords, the review of the National Asylum Support Service (NASS) was created to provide Ministers with an independent analysis of N.ASS. It is not usual to publish advice to Ministers. However, given the obvious interest in asylum issues, the key findings of the review team's report were published on 15th July. A further statement will be made on progress in actioning those conclusions, and we have not ruled out publication of the report in the future.
Lord Dholakia: My Lords, the secrecy surrounding full publication of the report must be a matter of serious concern. The review and its terms of reference were announced to Parliament, and Parliament would appreciate a report being made to it. Instead, all we have is a summary of some of the key findings. Does the Minister accept that NASS has come under severe criticism from voluntary and statutory organisations and that there has been a very critical report from the National Association of Citizens Advice Bureaux? How will Parliament assess the progress being made unless it knows whether or not these issues have been identified and addressed by the Government?
Lord Bassam of Brighton: My Lords, we accept that a number of criticisms were made of NASS. Therefore, the review was established to ensure that Ministers and senior Home Office officials would receive an independent assessment of the way that NASS was operating. The Home Office and its Ministers have been delighted at the nature of the independent report. Now, we require a period to work through the findings of that report and to put into action, and deliver on, its key and important findings. That is what we want. We want NASS to be effective, as I am sure does the noble Lord. The recommendations in the internal report have been valuable in ensuring that NASS has a greater, better and clearer view of its sense of direction and purpose.
Lord Hylton: My Lords, does the noble Lord accept that many asylum seekers cannot be helped by NASS because they are in prison? Does he recall that in October 2001 the Home Secretary said that they were no longer to be imprisoned unless they had committed, or were
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suspected of having committed, a crime? Therefore, will the Government review the representations that they have received, both from members of the legislative authority in Northern Ireland and from Scottish bishops, with a view to minimising the numbers held in detention in all jurisdictions?
Lord Bassam of Brighton: My Lords, we keep all these matters under very careful review at all times. However, I hear what the noble Lord has to say on the issue, and it is obviously a matter of continuing concern. I am confident that the Home Secretary gave that commitment fully cognisant of the fact that it was important to ensure that the minimum number of asylum seekers were detained in prison but, where they had to be detained, rightly it was because they had committed criminal offences.

Iraq: WMD Investigations
2.40 p.m.
Lord Redesdaleasked Her Majesty's Government:
Why information about the two vehicles suspected of being involved in the production of weapons of mass destruction in Iraq is restricted under Exemption 1c of the Code of Practice on Access to Government Information.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, Her Majesty's Government have a duty to protect information provided in confidence by foreign governments. As I made clear in my answer of 8th September to the noble Lord, our continuing investigations into the suspect vehicles are based primarily on such information. For that reason, I am withholding the details under Exemption 1c of the Code of Practice on Access to Government Information.
Lord Redesdale: My Lords, is not the Government's refusal to give the information an abuse of the code which the noble Lord has just mentioned because, in an earlier paragraph, the code refers to public interest? Obviously it is in the public interest to know whether the suspect vehicles were used as mobile weapons of mass destruction laboratories. If they were, that is rather odd because the vehicles are not mentioned in either the Foreign Affairs Select Committee report or the Intelligence and Security Committee report. If they have no links to the weapons of mass destruction programme in Iraq, then perhaps it is also in the public interest that we should know that vehicles which have British components on board were not being used for that purpose and that therefore the allegation should not be made.
Lord Bach: My Lords, I refute entirely that it is a wrong use of the code. We shall not release information passed to us in confidence by foreign governments, nor would we expect other governments to release information that we have provided to them in confidence. We have said that coalition forces are

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actively pursuing intelligence leads, documentation and individuals connected with Iraq's WMD programmes. Gathering and collating evidence of WMD programmes from the various sources is a long and complex task. Frankly, the noble Lord needs to be a little more patient and to give the Iraq Survey Group time to complete its task on this and other issues. However, we intend to provide an update once we are in a position to do so. Indeed, my right honourable friend the Prime Minister said on 2nd July that the findings of the ISG should be publicly available.
Baroness Williams of Crosby: My Lords, these two vehicles are most significant, having been mentioned in the US President's State of the Union address in January and having been referred to in the White Paper presented by the CIA and the DIA in the United States at the end of May 2003. Given that, can the Minister tell us something wholly within the sphere of Her Majesty's Government? Were the British-made components on the vehicles supported by any form of export subsidy and has that export subsidy been repaid or, in effect, is the United Kingdom still the legal owner of the component parts of those vehicles?
Lord Bach: My Lords, I am not in a position to be able to answer the noble Baroness in the terms that she suggests. We currently assess that the vehicles were built in Iraq using Iraqi components and standard industrial components that had been obtained from several different countries, including the United Kingdom. The components of British origin would not have been restricted under the sanctions regime.
Lord Astor of Hever: My Lords, when does the Minister expect a response from the Iraq Survey Group, which he mentioned?
Lord Bach: My Lords, we hope that the survey group will report as soon as possible, but we accept that it will take as long as is necessary to investigate the programmes. I notice that the Liberal Democrat Benches laugh at that answer. I believe they should think slightly more carefully about laughing at an answer like that. This matter needs very careful consideration so we do not jump to conclusions one way or the other. If they are suggesting by implication that there is some kind of cover-up here, they should be very careful indeed or put that allegation to me directly.
Lord Newby: My Lords, would the Minister care to comment on the suggestion that the two vehicles, far from being used to manufacture weapons of mass destruction, were used to manufacture hydrogen for use in barrage balloons?
Lord Bach: My Lords, I understand it is possible that the vehicles were used either for the manufacture of hydrogen or biological material, albeit both imperfectly.
Lord Redesdale: My Lords, I thank the Minister for his reply. However, considering the Written Answer he
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gave earlier, we believe that this is an abuse of the code. Therefore, we shall probably take this matter to the Ombudsman.

School Budgets
2.45 p.m.
Baroness Sharp of Guildfordasked Her Majesty's Government:
Whether they are confident that the quality of educational provision will not be affected by the budget problems encountered by schools during this current financial year.
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, I am confident that head teachers are managing their budget in such a way as to safeguard the quality of their pupils' education in what is a difficult year for some schools. The Government are working hard with representatives of head teachers, LEAs and others to ensure stability in school funding for next year and beyond.
Baroness Sharp of Guildford: My Lords, I thank the Minister for that reply. However, perhaps I may press her a little further on the workload agreement, the first stage of which was due to be introduced in September this year. Is she aware that many schools which are struggling with deficit budgets and losing staff cannot possibly implement the workload agreement as it stands at present? Can she comment on how far they will be able to implement it with the new resources that the Minister promised on 17th July?
Baroness Ashton of Upholland: My Lords, the details of the new resources will be brought before your Lordships' House at the earliest possible opportunity. The workload agreement is an integral and important part of our education policy. It is about ensuring that our teachers have time to teach and to use the support staff available to them as effectively as possible. In all circumstances where schools are reporting difficulties, we are working very closely with the National Association of Head Teachers, other teachers' unions and local education authorities to support them specifically to be able to implement this programme to ensure that we have the best possible opportunities for teaching in the classroom.
The Lord Bishop of Portsmouth: My Lords, the die seems to be cast this year for our schools. What about next year?
Baroness Ashton of Upholland: My Lords, as I brought before your Lordships' House, on 17th July my right honourable friend the Secretary of State for Education and Skills spoke about the key priorities we have for the future. To recap briefly, we shall guarantee every school at least a minimum increase in funding. We are giving head teachers more time to plan via an amendment of the Local Government Bill

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bringing forward the date of key announcements and reversing the planned cuts in the Standards Fund providing more than £400 million in 2004–05 and 2005–06. As I said, I shall give details to your Lordships' House at the earliest possible opportunity.
Baroness Blatch: My Lords, does the Minister agree that her Answer to the noble Baroness, Lady Sharp, ignored the fact that the Question concerns the difficulties which schools face this year? There is enormous complacency on the part of the department, which is ignoring the hardship and some of the ways in which teachers and head teachers are having to make the best of a very difficult job. The Minister went on to refer to next year. I believe that a great deal of support is needed here and now.
Baroness Ashton of Upholland: My Lords, I agree with the noble Baroness; it is important to support schools this year. In my Answer I referred to the fact that we are working closely with our partners in education—education authorities, teachers' unions and so forth—to establish the current position and to ensure that we have support. We took action as soon as we realised the situation in giving an extra £28 million for those local education authorities with the lowest overall increases; an extra £11 million in London to help with London allowances; allowing more flexibility in the use of capital expenditure and in working closely with education authorities to ensure that as much money goes into schools budgets as makes sense. Also, we have worked with our partners in the LSC to ensure flexibility in terms of sixth-form education and that, where appropriate, licensed deficits could be allowed.
Baroness Greengross: My Lords, is the Minister aware that despite the priority given by the Government to physical activity in schools, due to the current funding problems many schools are cutting swimming lessons for primary school children, for example, which I believe are very important, and that that is on top of losing teaching staff?
Baroness Ashton of Upholland: My Lords, on previous occasions in your Lordships' House we have discussed the amount of money the Government are putting into sport and PE. We have a commitment that we want 75 per cent of pupils to have the opportunity to have two hours of physical activity per week. Our commitment to ensuring that our primary school children have the opportunity to learn to swim is part and parcel of our education delivery plans. I should be interested if the noble Baroness has details, but it is important that schools are able, within the current framework, to ensure that children have these opportunities.
Lord Elton: My Lords, the Minister said that schools are authorised to go into deficit. What account is taken of the necessity of getting out of that deficit in the future and offsetting this year's overspend with next year's shortfall?
Baroness Ashton of Upholland: My Lords, I was careful to talk about the circumstances. If a school were to go into deficit, it is very important that that has been established between the education authority and the school and is appropriate, and of course that a plan is in place to ensure that the school is able to get out of deficit. My right honourable friend will of course examine all these instances in the future, but, in general, our policy is that where that has been allowed, a plan to ensure that it does not continue must be part and parcel of what the schools do.

Criminal Records Bureau: Disclosure Checks
2.50 p.m.
Baroness Blatchasked Her Majesty's Government:
Whether they accept that the documentation required by the Criminal Records Bureau for the purpose of standard and enhanced disclosure checks is suitable for purpose.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, it is essential to have in place robust arrangements for checks to ensure so far as is practicable that people are not able to obtain a clean disclosure through falsely using another person's identity and that information is not revealed inadvertently to the wrong person. The CRB has therefore carefully developed arrangements for checks to authenticate the identity of disclosure applicants using documentary evidence of different types. These appear to be serving the required purpose, but are kept under regular review in the light of experience.
Baroness Blatch: My Lords, I am grateful to the noble Baroness for the Answer. I admit that I am subject to a standard disclosure clearance at the moment. I have to say that the experience I am having—I hope the noble Baroness would agree—simply shows that other people are right in their views that the CRB is something of a shambles at the moment.
My specific question to the noble Baroness is: when asked for a photo-identity card, why was my House of Lords security pass unacceptable to the CRB?
Baroness Scotland of Asthal: My Lords, I say straightaway that the noble Baroness will be reassured that Members of this House are still treated as ordinary members of the community and are subject to the same rules. At the moment, I regret to tell your Lordships that, perhaps because of the relatively small numbers who attend this House, the pass which enables one to get into this House is not included in the authorised list for disclosure.

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I can also reassure the noble Baroness that her application was treated with great expedition and care—and accuracy because of course the document produced was not within the rules.
Baroness Blatch: My Lords, I applied in June; I am still waiting for clearance. If that is expeditious, I wonder what taking a long time would be?
Baroness Scotland of Asthal: My Lords, I make absolutely clear that it is of critical importance for those who apply to the CRB to comply with the rules and to fill in the form appropriately. I regret to tell the noble Baroness that her application form was not so completed.
Since the noble Baroness wishes to have an answer, I am happy to give one. The application was initiated by telephone on 21st July; the form was countersigned by the registered body on 18th August; the form was received by the CRB and immediately returned to the Department for Education and Skills because of insufficient identity validation on 20th August; the noble Baroness was then written to on 4th September; and the DfES wrote to the CRB on 8th September. It was received on 11th September asking whether the House of Lords pass was an acceptable identity document and for a reply by 19th September. A reply will be sent.
Lord Elton: My Lords, I wonder whether those exchanges will suffice to establish for the authorities that my noble friend is who she says she is.
Baroness Scotland of Asthal: My Lords, I am sure that one would want verification, but we would all be happy to verify that the noble Baroness, Lady Blatch, is the noble Baroness. I am sure DNA would not be necessary.
Baroness Sharp of Guildford: My Lords, as a trustee of Age Concern Surrey, I, too, have had to go through the CRB procedures. I was somewhat surprised to discover that I had to produce my passport, my birth certificate, my marriage certificate, my driving licence and a utility bill addressed to me. That proved to be the most difficult since unfortunately our utility bills are addressed to my husband.
Baroness Scotland of Asthal: My Lords, I am very happy with the recitation given by the noble Baroness because she will know that the information provided by the CRB is of critical importance. It is the information upon which we rely to keep our children and those who are vulnerable safe. It is absolutely necessary that we have the best quality identification material available to make that verification possible.
The Lord Bishop of Worcester: My Lords, will the Minister say something about a serious aspect of a piece of work that most of us regard as extremely important? Certainly, in the Churches we have every reason to think that the CRB is doing something
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extremely important for us all. I am increasingly concerned at the amount of staff time and particularly at the effect of the quite sudden and very large increase in charges made by the CRB on the work not only of Churches, but in particular of small charities. Are the Government keeping any kind of check on the effect of this admittedly extremely important piece of work on the other work of charities and Churches, because it is becoming a very serious matter?
Baroness Scotland of Asthal: My Lords, I very much welcome the comments of the right reverend Prelate in relation to the importance of the Criminal Record Bureau's work. We take very seriously the amount of time spent. The right reverend Prelate should know that initially one form out of two was incorrectly filled in. Now the figure is one out of four. We are trying to give guidance, help and support to make sure that people can quickly and easily fill in these forms. I can reassure the House by saying that of course the applications of the volunteers who come forward are done for free. We will regularly keep the matter under review to see what more can be done to make the system even better than it is now.
Baroness Greengross: My Lords, in order to speed up this process, which causes immense problems, could the Government take some action to develop a system which would make it routine for a prospective employee to take to an interview his CRB certificate along with other proof of identity and qualifications, and perhaps be reimbursed later where appropriate?
Baroness Scotland of Asthal: My Lords, we are certainly looking at what can be done to make the system easier. The noble Baroness may know that the Government are looking to see whether we can take advantage of registered bodies and whether applications could be made first through them and then through to us. There are provisions in the Criminal Justice Bill which address that very issue. I can certainly reassure the noble Baroness that we are keeping this matter under careful consideration.
Lord Strathclyde: My Lords, the CRB is a government agency. The noble Baroness has been kind enough to inform the House that the House of Lords pass is not acceptable identity for the CRB. She has not explained why. Would it not save, as the right reverend Prelate has explained, a great deal of staff time if the House of Lords pass was acceptable and should not the noble Baroness use her best offices to make it so?
Baroness Scotland of Asthal: My Lords, I shall certainly raise the issue. But the noble Lord should know that the pass allows individuals to come into this building. We have tended to enable the use of documents which are of general availability. I regret to say that the general population still does not have access in an equal way to this House.
Lord Tebbit: My Lords, the noble Baroness described a procedure of almost unbelievable complexity. She described a form which is still so obscure that one applicant in four finds it impossible to complete it correctly. She is describing a system which also makes frequent errors in clearing people who should not have been cleared, as well as not clearing those who ought to have been cleared. Is not the plain fact that this organisation is not under her control; that it has been contracted out through a quango to a company which has then subcontracted much of its operations to a second company which has subcontracted again to a third?
Baroness Scotland of Asthal: My Lords, I do not accept what the noble Lord says about quality. In fact, the CRB is meeting its service provider requirements. I regret to have to tell the noble Lord that the reason that the form is not filled out correctly is often that those filling it out err—not because it is not plain; but because they err. We are doing everything that we can to ensure that that difficulty is cured. There is not the frequency of errors to which the noble Lord alludes. The system is working very well indeed. I agree that it did not work well last year; but this year, there has been a great deal of improvement and the CRB should be congratulated on its improvements to the system.

Fireworks Bill
3 p.m.
Read a third time.
Baroness Ramsay of Cartvale: My Lords, I beg to move that this Bill do now pass. I should like to express my gratitude to Members on all Benches, who have been so supportive of the Bill.
Moved, That the Bill do now pass.—(Baroness Ramsay of Cartvale.)
On Question, Bill passed.

Northern Ireland (Monitoring Commission etc.) Bill [H.L.]
3.1 p.m.
The Lord President of the Council (Lord Williams of Mostyn): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill. If I may, I shall say a word about procedure. Should the Committee amend the Bill, copies of the Bill as amended will be available in the Printed Paper Office shortly after the end of Committee. Amendments for Report may be tabled between the end of Committee and 7 p.m.
Moved, That the House do now resolve itself into Committee.—(Lord Williams of Mostyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 [The Monitoring Commission]:
Lord Maginnis of Drumglass Lord Maginnis of Drumglass moved Amendment No. 1:
Page 1, line 7, after "activity" insert "including human rights abuses"
The noble Lord said: The amendment would simply insert in Clause 1(1)(a) after the words, "monitoring activity", "including human rights abuses". I hope that the Lord President of the Council will understand that although that is a simple amendment, it is rather important. The clause spells out the monitoring commission's task, which it states as,
"monitoring activity by paramilitary groups".
When we think of activity by paramilitary groups, we immediately tend to think of some sort of paramilitary activity, such as shooting at policemen or soldiers or at people who are politically opposed to them—the sort of activity that we experienced for nigh on 30 years. We tend to forget that there is a residual form of activity that is hard to define. That is the sort of activity that forces young men and boys to leave the country at a few hours' notice because they have run foul of those who still have tenuous—or perhaps not so tenuous—links with paramilitary organisations. Night after night, people are punished by being shot through the knees, ankles or elbows or are subject to assault by having large stones or cement blocks dropped on them. All such activity is deemed to be—and in some ways is—different from what we had from 1970 until comparatively recently. It does not receive the headlines that murder after murder after murder received, but none the less, it has a hugely intimidating effect on the community in which it occurs.
So I think that referring to "human rights abuses" is the easiest way to define what we mean. That should fall within the bailiwick of the monitoring commission, which can be achieved by the addition of those few words in Clause 1(1)(a), so that it reads:
"monitoring activity including human rights abuses by paramilitary groups".
I beg to move.
Lord Glentoran: I rise to support the noble Lord, Lord Maginnis, in his amendment. When I first read it, I wondered for a moment what he was getting at. He has now explained it clearly to the Committee and come to the conclusions at which I was arriving. I have some notes here citing examples of human rights abuses such as extortion, intimidation and blatant sectarianism of the most unpleasant sort, which forces people out of jobs, away from their homes and sometimes even out of the country.
It should not raise any fur or ruffle any feathers elsewhere in these islands to include those words. I think that most Members of the Committee will understand that the Bill has been negotiated between a number of parties, including the Irish Government and all the parties in Northern Ireland. I am in no way critical of that and do not mean to sound so. That process must continue and is the right process to

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advance democracy in Northern Ireland. But at the same time, we should try to fill every potential gap and place every emphasis in a Bill such as this to ensure that there are no loopholes through which commissions can slip or decisions be avoided.
So for the reasons that the noble Lord, Lord Maginnis, explained clearly, the activities that I have cited—in particular extortion and intimidation—should definitely be considered as abuses of human rights.
Baroness Park of Monmouth: I add my strong support on both the issue of exiles, on which I have spoken many times in the Chamber and do not propose to do so again now, and that of children, because of what children are seeing every day of their lives. They are being brutalised and forced to watch others being brutalised. That issue is often lost sight of.. I strongly support the amendment.
Lord Williams of Mostyn: I do not argue with the aim of the amendment tabled by the noble Lord, Lord Maginnis, nor the spirit in which he moved it, but I must advise the Committee that it would not add in substance to the arrangements set out in the Bill.
I shall give chapter and verse briefly in a moment. This is not just a legalistic nit-pick, but the amendment is to the Bill, whereas, as I remind the Committee, the commission receives its functions from the agreement. Therefore, however much one sympathises with the thinking behind it, the amendment would have no legal effect. It is difficult to envisage a human rights abuse by paramilitaries which is not already covered by Article 4 of the agreement, especially when, as I remind the Committee, the list of activities set out in that article is not exclusive. It is difficult to envisage that any of the activities against individuals listed in the agreement would not involve an abuse of human rights in the broadest sense.
Article 4(a) directs the commission to,
"monitor any continuing activity by paramilitary including"—
I stress that word; the provision is not exclusive. To respond to some of the issues with which the noble Baroness, Lady Park, and the noble Lord, Lord Maginnis, have been concerned, I remind the Committee that the evils of which the noble Baroness spoke are specifically already mentioned. The article refers to monitoring.
"any continuing activity including…
iii. punishment beatings and attacks and exiling".
It is all there. So if the amendment were carried it would have no legal effect. Fundamentally, in principle, it is not a good idea to have simply cosmetic amendments that have no legal effect.
Lord Maginnis of Drumglass: I am grateful to the President of the Council for his explanation. Sometimes I feel that it is a heartbreaking task to try to bring about legislation in terms that ordinary members of society in Northern Ireland understand. Unlike the President of the Council and many other
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learned Members of this House, most of us are not familiar with the legal niceties of legislation piled upon legislation.
Although I accept the noble and learned Lord's explanation, I should have liked a little more latitude in what we are trying to achieve. I shall have an opportunity perhaps to deal with some of the apparent contradictions in the Bill, and to ask again why the ordinary, law-abiding people of Northern Ireland, like myself, seem to have to strive for every little bit of comfort while those who have brought so much discomfort over 30 years appear to be spoon-fed and do not have to come to this House, or any other place, to be given the reassurances that they demand.
I do not wish to labour the point, so I shall conclude. As we go through the Bill, I hope that Members of the Committee will join me in trying to understand that the aim of every bit of legislation and every step taken should be to try to reassure ordinary members of society, who have battled against paramilitarism and gangsterism for the past 30 years. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clauses 2 to 4 agreed to.
Clause 5 [Secretary of State's powers in relation to exclusion]:
3.15 p.m.
Lord Glentoran Lord Glentoran moved Amendment No. 2:
Page 4, line 4, leave out from the beginning to "the" in line 17.
The noble Lord said: This group of amendments is large, but, as every Member of the Committee will appreciate, it is the nub of today's debate in Committee. I shall speak to Amendment No. 2, and the noble Lord, Lord Maginnis, shall speak to Amendment No. 3. Many of the other amendments are consequential to either Amendment No. 2 or Amendment No. 3. A possible exception is Amendment No. 16, tabled in the name of the noble Lord, Lord Smith of Clifton. Amendments Nos. 2, 3 and 16 are all variations on a theme.
Although Members on this side of the Committee do not oppose the Bill, we do not agree with the serious curtailment of the Secretary of State's powers to exclude political parties or Ministers who are in breach of the Good Friday agreement or any other international agreement relating to the operation of democracy in the Province.
We do not oppose the setting up of a commission in an advisory role; in fact, we support it. However, the commissioners are not answerable to any sovereign parliament. We made the point, as did the Minister from the Government's side, that strand one of the Good Friday agreement should not be interfered with by way of recommendations, or have anything done to it by anyone other than the two members of the commission appointed by the British Government. We support that; it is what the debate is about. A direct input, not advice, into the workings of a British Parliament is no business for those who are non-British.

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We need to think very carefully about several areas. Politics in Northern Ireland have no boundaries. It is a unique sort of place, certainly within Europe. The Secretary of State and his team never know what sort of problem will land on their desks at any time throughout the 24-hour day—I see the noble and learned Lord smiling. Everybody who has been involved in politics in Northern Ireland over the past 30 years is only too well aware of that. In my opinion, security is always at the heart of it all.
The commission is about monitoring the activities of Ministers and political parties in relation to the Good Friday agreement. But that is not really what it is about; it is about monitoring the activities of paramilitaries and terrorists and their relationships with political parties and Ministers. That is why it is very important that the sovereignty issue, and who has freedom of action to move and to make decisions, is kept very clear.
On the same relationship, I am concerned that, when asked at Second Reading about certain security matters, the noble and learned Lord said very clearly—it is recorded in Hansard—that the chief constable would remain responsible as the number one premier adviser on security matters to the Secretary of State. In the light of that, the Secretary of State must be free to take what actions he considers right in relation to the advice given to him by the chief constable, the general commanding at the time, or others. If those reported happenings that he needs to deal with relate directly to the political parties or a particular Minister, it seems unsatisfactory to have a situation where the Secretary of State can do nothing until he has sought the advice of the monitoring commission. That is to be avoided.
I am well aware that the amendment that we have tabled to try to correct the matter is tough, straightforward and will do just that. The minor amendments are consequential to it. I believe firmly that, on these issues, the Government have no right—they have the power but no moral right—to delegate this sort of decision-making process to an appointed quango.
I made that comment in a rather derogatory way, but I do not wish in any way to demean the stature of the people whom we are very fortunate to have on the commission. All four are well known in their own fields, and I am sure that they are of the highest integrity. But perhaps that is why they will find it extremely difficult, on occasion, to reach a joint conclusion. They come from four very different fields of operation and from three different nations—I could say three-and-a-half—and they are strong, capable, competent and intelligent people who will make up their own minds. I fear that it is possible, even likely, that there will be times when they cannot provide unanimity of advice. The Secretary of State still holds responsibility and must hold responsibility for making the necessary decisions.
I think that I have gone on long enough at this stage. The argument is quite clear: is it right for the Government to delegate their responsibility for
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operations, actions and advice and remove certain powers from the Secretary State in the Bill? I beg to move.
Lord Maginnis of Drumglass: In rising to support the tenor of what the noble Lord, Lord Glentoran, said, I want to address Clause 3 specifically and the consequential Clauses 18 and 25 in particular. My purpose is exactly the same as that of the noble Lord. Lord Glentoran—to prevent a certain situation arising. I do not question the honour of any one of the four members of the monitoring commission—I know three of them, but I do not know the American. They are people of considerable ability, who have an opportunity to monitor and advise the Secretary of State. However, government should be governed and executive authority should not be vested in a quango in situations such as this one. That is a reality, and it disappoints me that, again and again, when it comes to Northern Ireland issues, there appears to be a let-out for the Government if we jump this way and another one if we jump in the opposite direction.
If I read this Bill correctly, the Secretary of State does not have the power to make a decision at variance with that of the monitoring commission. None the less, page 4, line 17 of the Bill states that, if the commission finds that action should be taken, there is no obligation on the Secretary of State to accept that advice. It states that,
"the Secretary of State may by direction",
not "shall". However, if I remember correctly, the whole debate in Hillsborough leading up to the joint declaration was delayed considerably on that issue; that is, whether the Secretary of State would act on any positive direction coming from the monitoring commission in respect of ministers or junior ministers—or parties—who were,
"not committed to non-violence and exclusively peaceful and democratic means; or…[have] failed to observe any other terms of the pledge of office".
I believe that, when the joint declaration was made, there was an obligation once again on the Secretary of State to act according to any positive direction given by the monitoring commission. However, in the Bill brought before this House there is only an option.
Can it be that, on one hand, there is no freedom for the Secretary of State to work positively ahead of the commission if he feels that some elements within the Assembly are not committed to non-violence and so forth, and, on the other, that there is no obligation if the commission feels—and finds and rules—that that is the situation? I hope that I have put that clearly and that the noble and learned Lord the Lord President of the Council follows my argument. I hope that he will specifically address how we can have an option at each end of the question that militates against ordinary law-abiding people.
Neither the Ulster Unionists, the DUP nor the SDLP caused the working of the Assembly to fail. That is generally accepted. I have my own difficulty with the attitude of the Democratic Unionist Party, which was very keen to see the Assembly brought

671
down and to move in that direction, but now appears not to be able to get back quickly enough. There is a selfish, party-political interest, but that is not what I am talking about. Irrespective of whether we have an election tomorrow, in a month, or in six months' time, I am talking about safeguarding the democratic rights of the people of Northern Ireland in general within the Assembly process.
Unless we get some change in this clause in terms of the Secretary of State's executive responsibilities, there will be no purpose in this Bill, because we will drift as we have before to the point at which the democratic process can be pulled down, worn away and undermined. I would like to believe that that is not the intention of the Government—of either your Lordships' House or what will ensue in another place. However, it is puzzling and disheartening for me that specific commitments given to those who are law abiding—I hope that your Lordships will notice that I do not talk about Unionists or nationalists but those who are law abiding—are eroded before they can even be implemented, whereas those who want to work outside the law appear to have no difficulty in bending ears and getting decisions made that do not even have to be brought before this House or another place for consideration. That will be the harsh reality, unless something can be done to remedy the flaw.
On Friday, the noble and learned Lord the Lord President of the Council congratulated me on being statesmanlike. That was unusual: I have been congratulated on many things but I am not particularly noted for diplomacy. I would like to proceed along the path that the noble and learned Lord the Lord President of the Council has mapped out for me, but I must say, in all seriousness, that that will be impossible if we do not move in a direction that facilitates the vulnerable and the law-abiding people who are able and determined to make Northern Ireland work.
3.30 p.m.
Lord Smith of Clifton: I noted that, in speaking to the amendments, the noble Lord, Lord Glentoran, referred to what he called the uniqueness of Northern Ireland and said that the issues that came before the Secretary of State were not to be found elsewhere. I was slightly surprised at that. When he is not here, the noble Lord, Lord Glentoran, spends most of his time in Spain, and I would have thought that the Minister of the Interior in Spain would, from time to time, have the same sort of issues on his desk. However, I stand to be corrected.
Northern Ireland is unique, in the sense that it needs an international dimension to its conflict management. Hence the need for the commission, which we support. We do not want the commission to be in any way reduced in its proposed role or functions. As I said at Second Reading, we would not support the sort of broad amendments proposed by the noble Lords, Lord Glentoran and Lord Maginnis of Drumglass. We think that they, as it were, over-enhance the role of the Secretary of State and diminish the contribution that the commission could make, if, in some unfortunate circumstance, it has to.
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I have therefore proposed a compromise amendment. It is Amendment No. 16, and I propose to divide the House on it, if necessary. Our amendment would allow the Secretary of State to act in very unusual—almost extreme—circumstances. We accept that there is a gap in the Bill and that one could just conceivably think of a crisis situation that required immediate action and in which neither the Assembly nor the commission could meet in time to deal with the matter. That is the rationale behind my amendment, and I will put it to a Division.
Lord Tebbit: I always have some concern when powers granted to Ministers are put into commission in any way that makes them subject to authorities outside the House. I am not making a European point—we know all about that—but speak in this narrower context. To help me decide on my attitude towards the amendments, will the noble and learned Lord, Lord Williams of Mostyn, tell me whether there are any powers that the Secretary of State may today use unilaterally—in any circumstances—which he might be restrained from using under the Bill? Are there any powers that the Secretary of State would be granted by the Bill which he could, similarly, be restrained from using because of the activity or non-activity of the commission?
Lord Molyneaux of Killead: I shall try to set an example in brevity. I cannot help feeling—and regretting—that Her Majesty's Government have strayed such a long way from the view of a distinguished Labour Prime Minister, the late Harold Wilson, who declared that the governance of Northern Ireland was a matter for the Parliament of the United Kingdom alone.
Lord Fitt: I said at Second Reading that I had reservations about denuding the Secretary of State for Northern Ireland of his powers. I can put pointed questions to the noble and learned Lord the Lord President of the Council. The four main political parties in Northern Ireland were involved in the discussions that led to the introduction of the Bill. Can the noble and learned Lord tell us which of those parties agreed with the legislation and which vehemently opposed it? I was not at the meetings, but I feel certain that the Democratic Unionist Party, the Official Unionist Party and the Alliance Party—if it was there—would have had reservations about the Bill but would have gone some way to support it. Sinn Fein has already indicated that it will not touch the Bill with a bargepole and that it does not want such legislation on the statute book in any shape or form. Why are we writing into the Bill all sorts of safeguards to enable Sinn Fein to disregard the Bill as a whole? That is exactly what we are doing. I have great reservations about that.
I was in the Northern Ireland Parliament for many years. Sinn Fein will laugh at the idea that someone might be suspended for two weeks, a month or six weeks. It is not like what happens at the other end of this building when Mr Speaker suspends a Member for a day or two days—a week, maybe—for being unruly.

673
In Northern Ireland, it is more serious. First, on what ground could a Member of the Assembly be suspended? Will it be that he is not fully in support of the campaign to end violence? Will words be part of the infringement of the regulations? In Northern Ireland, words can be lethal and have been lethal over the past 30 years. It is not only the gunman who pulls the trigger or the person who lays the bomb who are guilty of violence: it is the people who point the gun in a particular direction and influence the mentality of the young men who join paramilitary organisations. Words can be lethal.
Let me put that into words. What will happen if a member of Sinn Fein, the republican party, who is also a member of the Executive in Northern Ireland, makes a highly inflammatory speech at a republican commemoration, of which they have many during the 365 days of the year? Such a person might make a highly inflammatory speech at, say, a Wolfe Tone commemoration—the main one at which such speeches are made—that could push another young fellow from the back streets of Belfast into taking up the gun or the bomb and supporting his cause by violence. What will happen to the person who made that speech? Will the monitoring commission say, "We regard that speech as incitement to hatred and an incitement to violence? How long should we suspend the speaker for? A fortnight? Three weeks? A year?". Sinn Fein will not take that seriously and will make the same sort of incitement speeches at every IRA commemoration during the year. I find that difficult to accept.
I wish that I could say that I was 101 per cent behind the Bill and would go through the Lobby in support of it—but I have deep reservations about it. The situation would not be any better than it was before the suspension of the Assembly. It was obvious that no political party in the Assembly was going to vote for the suspension of another, given the existence of the two tribes. The SDLP were not going to vote for the exclusion of Sinn Fein. The official Unionist Party would not vote for the exclusion of the DUP, and so on.
We are no further forward than before we were faced with this legislation, which I would not like to see go through and for people to laugh at it. I said recently that it is like a sticking plaster covering a sore; I am certainly of that opinion. In the final analysis, it should be as the noble Lord, Lord Molyneaux, said, and he was right to quote from Harold Wilson. At a time of much political and violent turbulence in Northern Ireland, Harold Wilson spoke to me in the Tea Room. He said that they can say what they like, but Northern Ireland is governed under Section 75 of the Government of Ireland Act 1920. There have been many political changes and international treaties, but I believe that the Secretary of State for Northern Ireland should maintain or allocate to himself the criterion that he will be the one who decides which political
674
party or political personality should be suspended from the Assembly because of their non-support for a non-violent society in Northern Ireland.
Baroness Park of Monmouth: I support the proposal. I cannot help feeling that the Government ought not to have any difficulty in accepting it. The noble and learned Lord the Lord President of the Council referred me to the agreement. I refer him to Article 7 of that agreement, which refers to the commission recommending action. Clearly in other parts of the agreement, it is there to monitor, to observe, to make reports and to recommend.
We are worrying about who has the executive power—an unfettered executive power. That must be the Secretary of State, who, among other things, could balance issues arising from the report on the question of paramilitary activity against the requirement of security normalisation—on which we shall undoubtedly be pressed again and again by Sinn Fein to act. I cannot help feeling that the agreement makes it perfectly plain that the monitoring commission—infinitely valuable though it will be because it is impartial, detached, and not involved—nevertheless is an advisory commission and not an executive one. That is the point we must stick to.
3.45 p.m.
Lord Williams of Mostyn: I recognise that these amendments are generally put forward or supported by supporters of the agreement and in the spirit of making it work more effectively. I did not mean to cause lasting damage to the reputation of my noble friend Lord Maginnis by accusing him of being statesmanlike.
I do not think that the contended-for effect would be brought about. The question has been put—not in these words but by necessary implication, certainly by the noble Lord, Lord Tebbit, and the noble Baroness, Lady Park of Monmouth—about whether these are ideal solutions. In his brief and telling intervention, the noble Lord, Lord Molyneaux, made, I think, essentially the same point. I do not pretend that these are ideal solutions because I do not know of any solutions which are ideal in the context of Northern Ireland. They are the best that we can achieve. That is a very important prize.
The noble Lord, Lord Tebbit, asked: what does the present Bill do? On various occasions, it has been suggested that it constrains the range of powers available to deal with breaches of fundamental agreement commitments, such as a return to paramilitary activity. I think that that was the specific point made by the noble Lord, Lord Tebbit. That is not so. The existing powers available in those cases remain intact. The Assembly retains its powers of exclusion under Section 30 of the Northern Ireland Act 1998, although it will be given the ability to make those powers more flexible and supplemented by a range of other measures.
Under that section, the Secretary of State can still require the Assembly to consider a resolution to exclude a party or individual, whether or not there is

675
an IMC report. It is true that he must have regard to such a report, if there is one, before he exercises that power. But that is stating the obvious; it would be quite extraordinary if he did not do so. I underline to your Lordships that the Secretary of State's powers are extended. He can cause the Assembly to consider resolutions for reducing pay or allowances or for marking the Assembly's censure.
Your Lordships have referred to a power by which the Secretary of State may bring about exclusion or other consequences, as envisaged in the Hillsborough proposals. The noble Lord, Lord Tebbit, is right. It is a constrained power, but it is a new power. It is a strong power intended to be available as a last resort if other mechanisms fail. I think that I indicated on Friday last—but I repeat—the steps envisaged. If there is an IMC report, there would be a range of discussions which would, in particular, involve the Implementation Group of pro-agreement parties.
It is explicit in the Bill that there must have been an unsuccessful attempt in the Assembly to take steps in the light of that report. Where there is a failure to take steps, it would be for the British Government, in consultation with the Irish Government and the political parties, to resolve the matter in a manner consistent with the report of the IMC. So the reserve power is intended to be just that: a power of last resort.
Where there has been a report of the IMC with recommendations for action, and other avenues have led to no resolution of the issue, it would be our intention that this power would be exercised in a manner consistent with the IMC recommendations. We would seek to give effect to that faithfully, with the approval of this House and another place. But I repeat: we are constraining no existing power. We are providing for a means where there is an independent body of very high quality, repute and expertise, to give conclusions which it offers to the Assembly. If the Assembly fails, the Secretary of State has that reserve power.
If we get to that situation, we shall be in a very serious position indeed. I know that the noble Lord, Lord Smith of Clifton, has correctly said on many occasions that it is for the people of Northern Ireland to seek to control their own affairs. We ought to trust them to do the best they can, of their own accord, to resolve these matters. Quite often the complaint that I hear in Northern Ireland, which may have more than a grain of truth in it, is that the British Government constantly interfere too much, despite apparently having given power to Northern Ireland for locally elected representatives to discharge their own functions. The Minister should not be the first resort. If we are going to entrust power to an Assembly, we must trust that Assembly.
In principle, I do not think that the argument of sovereignty bites. Quite often, in giving powers to Ministers, Parliament imposes conditions—very often strict conditions—on their exercise. These amendments go too far. If we take this route, there is a serious danger
676
of undermining the worth, the virtue and the perceived value of the commission. I invite your Lordships not to do so.
If an unconstrained power of exclusion was given to the Secretary of State, that would be a substantial departure from the 1998 agreement in one of its most sensitive areas. I am not using this in a pejorative sense, but I sympathise with the compromise sought by the noble Lord, Lord Smith of Clifton, who spoke of constraints of time. I find it difficult to imagine circumstances in which it would be possible for the Secretary of State to find himself in a position to conclude that that was a correct way forward.
I know that noble Lords are doubtful about this approach. All I would say is that on the many occasions we have very fully debated the affairs of Northern Ireland, what I regard as the overwhelming majority of your Lordships have constantly made the point that you cannot seek to be a functioning member of the Assembly or the Executive in Northern Ireland while at the same time holding on to paramilitary activity. Time and time again noble Lords have said that there are many good and decent people in Northern Ireland who are concerned about this. The Bill provides a legitimate and proportionate response to those legitimate questions.
No one would suggest that those on the international monitoring commission are anything other than first rate. We know their names, their backgrounds and their CVs. The commission is a very useful addition to the armoury required in Northern Ireland eventually to bring about what we all wish for; namely, a decent, democratic, orderly and stable society. I should have thought that your Lordships would welcome this response from the Government because it chimes entirely with the spirit of what has been said in the past.
I am going to suggest to your Lordships that none of these proposals is accepted because they all share the central defect. Certainly I shall advise my colleagues to vote against them. However, finally I turn to the specific questions put by the noble Lord, Lord Fitt, about who agreed and disagreed to these proposals. We had hoped and still do hope that the Hillsborough proposals as a whole would command broad support. We did not take specific votes either generally or on individual elements of the package. Sinn Fein will not be able to ignore the IMC. Potentially its reports may lead to the severest sanctions.
The noble Lord also asked about incendiary speeches. It seems to me that, within the discretion and judgment of the IMC, the kind of activity referred to by the noble Lord is certainly activity that would be relevant and within the commission's remit. It would have to come to a conclusion on whether the sanctions under Article 4 should bite.
I have taken a little time to respond because of the seriousness of these matters. This is a large grouping of amendments and noble Lords have put different degrees of emphasis on different aspects. However, my position is that I am not able to accept any of the

677
amendments. Should noble Lords require or be willing to receive any advice, then my advice is to vote against them.
Lord Glentoran: I thank the noble and learned Lord for his customary brilliant summing-up of our debate. We learn to expect that of someone in his profession, but in particular from himself.
As I said at the beginning of my remarks, I have tabled two further amendments that seek to achieve similar aims to that of Amendment No. 2. I should like to quote a remark made to me not long ago in private by a very learned Member of this House during a discussion concerning other matters: commissions make politically correct decisions and end up doing the wrong thing. All noble Lords should remember that and bear the comment in mind.
I shall support the noble Lord, Lord Smith of Clifton. but at this point I shall withdraw my Amendment No. 2.
Amendment, by leave, withdrawn.
Lord Maginnis of Drumglass Lord Maginnis of Drumglass moved Amendment No. 3:
Page 4, line 4, leave out from beginning to end of page 5, line 5, and insert—

"(1) The Secretary of State may, having regard to any report of the Monitoring Commission, any relevant proceedings in the Assembly and any other relevant matter, if he is satisfied that a Minister or a junior Minister is not committed to non-violence and exclusively peaceful and democratic means; or has failed to observe any other terms of the pledge of office, by direction, exclude the Minister or junior Minister from holding office as a Minister or junior Minister for such period of not less than three months and not more than twelve months beginning with the date of the direction. or as the direction may provide.

(2) The Secretary of State may, having regard to any report of the Monitoring Commission, any relevant proceedings in the Assembly and any other relevant matter, if he is satisfied that a political party is not committed to non-violence and exclusively peaceful and democratic means; or is not committed to such of its members as are or might become Ministers or junior Ministers observing the other terms of the pledge of office, by direction exclude members or the political party concerned from holding office as a Minister or junior Minister for such period of not less than six months and not more than twelve months beginning with the date of the direction, or any as the direction may provide.

(3) The Secretary of State may, having regard to any relevant proceedings in the Assembly, before any period of exclusion comes to an end extend it for a further period, in the case of an exclusion under section 30(1) or subsection (1) of this section of not less than three months and not more than twelve months, or in the case of an exclusion under section 30(2) or subsection (2) of this section for a further period of not less than six months and not more than twelve months, if he is satisfied that the Minister, junior Minister, or political party as the case may be, is not committed to non-violence and exclusively peaceful and democratic means; or is not committed to observance of the terms of the pledge of office."

The noble Lord said: I should very much like to see this Bill move quickly through the House so that it can achieve what has been suggested by the noble and learned Lord, Lord Williams. I note that he picked up the point I made about the option for the Secretary of State to act or not to act according to the recommendations of the commission. Although I cannot remember his exact words, I believe the noble
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and learned Lord said that he would find it difficult to envisage an occasion when the Secretary of State would react differently from any recommendation made by the commission. If that is exactly what the noble and learned Lord means then he will give me an unequivocal assurance that the Secretary of State shall so act, rather than may so act, within that particular aspect of the Bill. If the noble and learned Lord is unable to give the assurance, then I have to look at past experience.
I know that the disarmament commission was a different type of body dealing with a technical issue but, sadly, over a number of years, it has not brought about any significant impact for ordinary people. Nor has there been any reassurance. Again, everything done by the Government and the ordinary, law-abiding people of Northern Ireland is covered by legislation, whereas everything done by the Government to remove our defences against terrorism is done through a nod arid a wink. In fairness to the people of Northern Ireland. I cannot give up my endeavour and the endeavours of my party to try to ensure more watertight legislation. Hence it is with some regret, but of necessity, that I want to seek the opinion of the House on Amendment No. 3.
The Chairman of Committees (Lord Brabazon of Tara): I should point out to the Committee that: if this amendment is agreed to, I cannot call Amendments Nos. 4 to 11 inclusive.
3.57 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 89; Not-Contents, 158.

Division No. 1

CONTENTS

Anelay of St Johns, B.

Flather, B.

Astor, V.

Fookes, B.

Astor of Hever, L.

Freeman, L.

Attlee, E.

Gardner of Parkes, B.

Blatch, B.

Geddes, L.

Blood, B.

Glentoran, L.

Bowness, L.

Gray of Contin, L.

Bridgeman, V.

Hodgson of Astley Abbotts, L.

Brooke of Sutton Mandeville, L.

Howe, E.

Brougham and Vaux, L.

Howell of Guildford, L.

Burnham, L.

Hunt of Wirral, L.

Byford, B.

Hurd of Westwell, L.

Caithness, E.

Jenkin of Roding, L.

Carnegy of Lour, B.

Jopling, L.

Cavendish of Furness, L.

Kimball, L.

Cockfield, L.

Kingsland, L.

Cooke of Islandreagh, L.

Lamont of Lerwick, L.

Cope of Berkeley, L. [Teller]

Lane of Horsell, L.

Crickhowell, L.

Liverpool, E.

Cuckney, L.

Luke, L.

Cumberlege, B.

Lyell, L.

Denham, L.

MacGregor of Pulham Market, L.

Dixon-Smith, L.

Eden of Winton, L.

Mackay of Clashfern, L.

Elliott of Morpeth, L.

Maginnis of Drumglass, L. [Teller]

Elton, L.

Fitt, L.

Marlesford, L.

679

Molyneaux of Killead, L.

Seccombe, B.

Mowbray and Stourton, L.

Selborne, E.

Moynihan, L.

Selsdon, L.

Naseby, L.

Skelmersdale, L.

Noakes, B.

Slim, V.

Northbrook, L.

Soulsby of Swaffham Prior, L.

Northesk, E.

Stevens of Ludgate, L.

Onslow, E.

Stewartby, L.

Park of Monmouth, B.

Strathclyde, L.

Peel, E.

Swinfen, L.

Peyton of Yeovil, L.

Taylor of Warwick, L.

Plumb, L.

Tebbit, L.

Prior, L.

Thatcher, B.

Renton, L.

Trefgarne, L.

Roberts of Conwy, L.

Trumpington, B.

Rotherwick, L.

Tugendhat, L.

Ryder of Wensum, L.

Waddington, L.

St John of Fawsley, L.

Wakeham, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Gibson of Market Rasen, B.

Addington, L.

Golding, B.

Ahmed, L.

Goldsmith, L.

Allenby of Megiddo, V.

Goodhart, L.

Amos, B.

Gordon of Strathblane, L.

Ampthill, L.

Goudie, B.

Andrews, B.

Gould of Potternewton, B.

Archer of Sandwell, L.

Grocott, L. [Teller]

Ashley of Stoke, L.

Harris of Richmond, B.

Ashton of Upholland, B.

Harrison, L.

Bach, L.

Hayman, B.

Barnett, L.

Hilton of Eggardon, B.

Bassam of Brighton, L.

Hogg of Cumbernauld, L.

Berkeley, L.

Hollis of Heigham, B.

Bernstein of Craigweil, L.

Hooson, L.

Billingham, B.

Howells of St. Davids, B.

Blackstone, B.

Hoyle, L.

Borrie, L.

Hughes of Woodside, L.

Bradshaw, L.

Hunt of Chesterton, L.

Brooke of Alverthorpe, L.

Hunt of Kings Heath, L.

Brookman, L.

Hylton, L.

Campbell-Savours, L.

Irvine of Lairg, L.

Carter, L.

Islwyn, L.

Chorley, L.

Jay of Paddington, B.

Christopher, L.

Jones, L.

Clark of Windermere, L.

Jordan, L.

Clarke of Hampstead, L.

Kennedy of The Shaws, B.

Clement-Jones, L.

King of West Bromwich, L.

Clinton-Davis, L.

Lea of Crondall, L.

Cohen of Pimlico, B.

Levy, L.

Corbett of Castle Vale, L.

Linklater of Butterstone, B.

Crawley, B.

Lipsey, L.

Davies of Coity, L.

Ludford, B.

Davies of Oldham, L. [Teller]

Macdonald of Tradeston, L.

Dean of Thomton-le-Fylde, B.

McIntosh of Haringey, L.

Desai, L.

McIntosh of Hudnall, B.

Dholakia, L.

MacKenzie of Culkein, L.

Dixon, L.

Mackie of Benshie, L.

Dormand of Easington, L.

Maclennan of Rogart, L.

Dubs, L.

McNally, L.

Eatwell, L.

Maddock, B.

Elder, L.

Marsh, L.

Evans of Parkside, L.

Massey of Darwen, B.

Evans of Temple Guiting, L.

Merlyn-Rees, L.

Ezra, L.

Methuen, L.

Falconer of Thoroton, L. (Lord Chancellor)

Miller of Chilthorne Domer, B

Mishcon, L.

Falkland, V.

Mitchell, L.

Farrington of Ribbleton, B.

Morgan, L.

Faulkner of Worcester, L.

Morris of Aberavon, L.

Fearn, L.

Morris of Manchester, L.

Filkin, L.

Moser, L.

Fyfe of Fairfield, L.

Northover, B.

Gale, B.

Orme, L.

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Palmer, L.

Simon, V.

Parekh, L.

Smith of Clifton, L.

Patel of Blackburn, L.

Smith of Gilmorehill, B.

Paul, L.

Stern, B.

Pendry, L.

Strabolgi, L.

Phillips of Sudbury, L.

Taverne, L.

Pitkeathley, B.

Taylor of Blackburn, L.

Prys-Davies, L.

Temple-Morris, L.

Puttnam, L.

Thomas of Gresford, L.

Radice, L.

Thomas of Walliswood, B.

Ramsay of Cartvale, B.

Tomlinson, L.

Randall of St. Budeaux, L.

Tordoff, L.

Redesdale, L.

Turner of Camden, B.

Rendell of Babergh,B.

Varley, L.

Rennard, L.

Walmsley, B.

Richard, L.

Warwick of Undercliffe, B.

Rodgers of Quarry Bank, L.

Weatherill, L.

Roll of Ipsden, L.

Wedderburn of Charlton, L.

Rooker, L.

Whitaker, B.

Roper, L.

Whitty, L.

Russell, E.

Wigoder, L.

Russell-Johnston, L.

Williams of Crosby, B.

Scotland of Asthal, B.

Williams of Elvel, L.

Sharp of Guildford, B.

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

Sheldon, L.

Shutt of Greetland, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.8p.m.
[Amendments Nos. 4 to 15 not moved.]
Clause 5 agreed to.
Lord Smith of Clifton Lord Smith of Clifton moved Amendment No. 16:
After Clause 5, insert the following new clause—
"SECRETARY OF STATE'S POWERS IN EXCEPTIONAL CIRCUMSTANCES
"After section 30A of the Northern Ireland Act 1998 (c. 47) there is inserted—
"30B SECRETARY OF STATE'S POWERS IN EXCEPTIONAL CIRCUMSTANCE

(1) Notwithstanding the provisions of section 30A, under exceptional circumstances the Secretary of State may by direction temporarily exclude a Minister or junior Minister.

(2) An exclusion under subsection (1) shall only remain in effect until either—

(a) a report from the Commission has been made; or

(b) the Assembly has considered a resolution under 30(1) or
(2); or

(c) a period of two weeks has elapsed.

(3) In subsection (1) "exceptional circumstances" include where—

(a) there is insufficient time for the Commission to make a report; and

(b) there is insufficient time for the Assembly to consider a resolution under section 30(1) or (2).

(4) A direction made under this section shall be in writing and shall be laid before Parliament after the direction is given.""

The noble Lord said: For the reasons I have given at Second Reading and earlier today in this debate, I intend to press the amendment to a Division. As I see it, the Bill is, very appropriately, a 50:50 Bill that gives comfort to the Unionist community and the nationalist community. We on these Benches believe that there is a lacuna in the sense that there could be

681
exceptional circumstances that call upon the Secretary of State to act; hence my amendment to that effect. I beg to move.
4.10 p.m.
On Question, Whether the said amendment (No. 16) shall be agreed to?
Their Lordships divided: Contents, 129; Not-Contents, 117.

Division No. 2

CONTENTS

Addington, L.

Lane of Horsell, L.

Allenby of Megiddo, V.

Linklater of Butterstone, B.

Anelay of St Johns, B.

Liverpool, E.

Astor, V.

Lucas, L.

Astor of Hever, L.

Ludford, B.

Attlee, E.

Luke, L.

Blatch, B.

Lyell, L.

Blood, B.

MacGregor of Pulham Market, L.

Bowness, L.

Bradshaw, L.

Mackay of Clashfern, L.

Bridgeman, V.

Mackie of Benshie, L.

Brooke of Sutton Mandeville, L.

Maclennan of Rogart, L.

Brougham and Vaux, L.

McNally, L.

Burnham, L.

Maddock, B.

Byford, B.

Maginnis of Drumglass, L.

Caithness, E.

Marlesford, L.

Campbell of Alloway, L.

Mayhew of Twysden, L.

Carnegy of Lour, B.

Methuen, L.

Cavendish of Furness, L.

Molyneaux of Killead, L.

Cockfield, L.

Mowbray and Stourton, L.

Cooke of Islandreagh, L.

Moynihan, L.

Cope of Berkeley, L. [Teller]

Naseby, L.

Crathorne, L.

Noakes, B.

Crickhowell, L.

Northbrook, L.

Cuckney, L.

Northesk, E.

Cumberlege, B.

Northover, B.

Denham, L.

Onslow, E.

Dholakia, L.

Park of Monmouth, B.

Dixon-Smith, L.

Peel, E.

Eden of Winton, L.

Peyton of Yeovil, L.

Elliott of Morpeth, L.

Phillips of Sudbury, L.

Elton, L.

Plumb, L.

Ezra. L.

Prior, L.

Falkland, V.

Rawlings, B.

Fearn, L.

Redesdale, L.

Fitt, L.

Rennard, L.

Flather, B.

Renton, L.

Fookes, B.

Roberts of Conwy, L.

Freeman, L.

Rodgers of Quarry Bank, L.

Gardner of Parkes, B.

Roper, L.

Geddes, L.

Rotherwick, L.

Glentoran, L.

Russell, E.

Goodhart, L.

Russell-Johnston, L.

Gray of Contin, L.

Ryder of Wensum, L.

Griffiths of Fforestfach, L.

St John of Fawsley, L.

Harris of Richmond, B.

Seccombe, B.

Hayhoe, L.

Selborne, E.

Hodgson of Astley Abbotts, L.

Selsdon, L.

Hooson, L.

Sharp of Guildford, B.

Howe, E.

Shutt of Greetland, L.

Howell of Guildford, L.

Skelmersdale, L.

Hunt of Wirral, L.

Slim, V.

Hurd of Westwell, L.

Smith of Clifton, L. [Teller]

Jenkin of Roding, L.

Soulsby of Swaffham Prior, L.

Jopling, L.

Stevens of Ludgate, L.

Kimball, L.

Stewartby, L.

Kingsland, L.

Swinfen, L.

Lamont of Lerwick, L.

Tebbit, L.

682

Thatcher, B.

Ullswater, V.

Thomas of Gresford, L.

Waddington, L.

Thomas of Walliswood, B.

Wakeham, L.

Tordoff, L.

Walmsley, B.

Trefgarne, L.

Wigoder, L.

Trumpington, B.

Wilcox,B.

Tugendhat, L.

Williams of Crosby, B

NOT-CONTENTS

Acton, L.

Hylton, L.

Amos, B.

Irvine of Lairg, L.

Ampthill, L.

Islwyn, L.

Andrews, B.

Jay of Paddington, B.

Archer of Sandwell, L.

Jones, L.

Ashton of Upholland, B.

Jordan, L.

Bach, L.

Kennedy of The Shaws, B.

Barnett, L.

King of West Bromwich, L.

Bassam of Brighton, L.

Lea of Crondall, L.

Berkeley, L.

Levy, L.

Bernstein of Craigweil, L.

Lipsey, L.

Billingham, B.

Macdonald of Tradeston, L.

Blackstone, B.

Mclntosh of Haringey, L.

Borrie, L.

McIntosh of Hudnall, B.

Brooke of Alverthorpe, L.

MacKenzie of Culkein, L.

Brookman, L.

Marsh, L.

Brooks of Tremorfa, L.

Massey of Darwen, B.

Campbell-Savours, L.

Merlyn-Rees, L.

Carter, L.

Mishcon, L.

Chorley, L.

Mitchell, L.

Christopher, L.

Morgan, L.

Clark of Windermere, L.

Morris of Aberavon, L.

Clarke of Hampstead, L.

Morris of Manchester, L.

Clinton-Davis, L.

Orme, L.

Cohen of Pimlico, B.

Palmer, L.

Corbett of Castle Vale, L.

Paul, L.

Crawley, B.

Pendry, L.

Davies of Coity, L.

Pitkeathley, B.

Davies of Oldham, L. [Teller]

Prys-Davies, L.

Dean of Thornton-le-Fylde, B.

Puttnam, L.

Desai, L.

Radice, L.

Dixon, L.

Ramsay of Cartvale, B.

Dormand of Easington, L.

Randall of St. Budeaux, L.

Dubs, L.

Rendell of Babergh, B.

Eatwell, L.

Richard, L.

Elder, L.

Roll of Ipsden, L.

Evans of Parkside, L.

Rooker, L.

Evans of Temple Guiting, L.

Sawyer, L.

Farrington of Ribbleton, B.

Scotland of Asthal, B.

Faulkner of Worcester, L.

Sheldon, L.

Filkin, L.

Simon, V.

Fyfe of Fairfield, L.

Smith of Gilmorehill, B.

Gale, B.

Stern, B.

Gibson of Market Rasen, B.

Strabolgi, L.

Golding, B.

Taylor of Blackburn, L.

Goldsmith, L.

Temple-Morris, L.

Gordon of Strathblane, L.

Thornton, B.

Goudie, B.

Tomlinson, L.

Gould of Potternewton, B.

Turner of Camden, B.

Grocott, L. [Teller]

Varley, L.

Harrison, L.

Warnock, B.

Hayman, B.

Warwick of Undercliffe, B.

Hilton of Eggardon, B.

Wedderburn of Charlton, L.

Hogg of Cumbernauld, L.

Whitaker, B.

Hollis of Heigham, B.

Whitty, L.

Howells of St. Davids, B.

Williams of Elvel, L.

Hoyle, L.

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

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.21 p.m.
Clause 6 [Reduction of remuneration]:
[Amendments Nos. 17 to 19 not moved]
Lord Glentoran Lord Glentoran moved Amendment No. 20:
Page 7, line 45, at end insert—
"( ) Before exercising the power under this section, the Secretary of State shall take full account of the recommendations of the Monitoring Commission."
The noble Lord said: I hope that Amendment No. 20 is self-explanatory and that the Government might think it worth noting. I beg to move.
Lord Williams of Mostyn: Of course this is unexpected and has brought tears to everyone's eyes. If I may—if it is convenient to noble Lords, in particular the noble Lord, Lord Glentoran—I shall take a view on this and be in a position to express an opinion on Report, which is not very long away. So if the noble Lord will not press it on this occasion, I undertake to give it consideration within the next hour or so.
Lord Glentoran: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 to 23 not moved.]
Clause 6 agreed to.
Clause 7 [Reduction of financial assistance]:
[Amendments Nos. 24 to 28 not moved.]
Clause 7 agreed to.
Clause 8 agreed to.
Clause 9 [Secretary of State's directions: procedure etc]:
[Amendment No. 29 not moved.]
Lord Williams of Mostynmoved, as a manuscript amendment, Amendment No. 29A:
After Clause 9, insert the following new clause—
"Secretary of State's duty to prepare reports

(1) The Secretary of State shall report on the operation of—

(a) the agreement mentioned in section 1(1), and

(b) so much of this Act as amends the Northern Ireland Act 1998 (c. 47).

(2) The first report under this section shall be in respect of the period of twelve months beginning with the passing of this Act.

(3) Subsequent reports under this section shall be in respect of the period of twelve months beginning with the end of the previous reporting period.

(4) Each report under this section shall be prepared as soon as practicable after the end of the period to which it relates.

(5) A report under this section shall include any additional information which the Secretary of State thinks it appropriate for the report to include.

(6) The Secretary of State —

(a) lay a copy of each report under this section before each House of Parliament, and

(b) publish each such report in such manner as he thinks fit."

The noble and learned Lord said: I hope that it has been convenient to the Committee for me to deal with this in this way. I am speaking, if I may, to Amendments Nos. 29A and 31, which derive originally from what was originally numbered Amendment No.
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30 in the names of the noble Lords, Lord Smith of Clifton and Lord Glentoran. To summarise very briefly but I think fairly, they wished to have a biannual report—which caused some difficulty; some noble Lords thought that that was once every two years while some of us thought that it was once every six months. However, as they say, I have always been in the position of wanting to accommodate reasonable requests.
What we agreed, if this is to the Committee's satisfaction, is as follows. There were drafting deficiencies in the original amendment. Accordingly, having discussed it with the two noble Lords this morning, I undertook to have a perfected amendment, Amendment No. 29A, which deals with the Secretary of State's duty to prepare reports. The first report,
"shall be in respect of the period of twelve months beginning with the passing of this Act …Subsequent reports … shall be in respect of the period of twelve months beginning with the end of the previous reporting period".
There is a duty in subsection (4) to prepare each report,
"as soon as practicable after the end of the period",
and the Secretary of State is obliged to,
"lay a copy of each report under this section before each House of Parliament",
and to,
"publish …in such manner as he thinks fit".
Amendment No. 31 would essentially ensure that the reporting arrangements would cease, of course, with any order to cease the effect of the Secretary of State's new powers in the Northern Ireland Act 1998. So in respect of Amendment No. 29A, I beg to move.
The Deputy Chairman of Committees (Lord Brougham and Vaux): It may be convenient for the Committee if, contrary to the advice of the Companion, I do not read out the full text of the amendment. Copies are available at the Table of the House and on the Government, Opposition and Liberal Democrat Benches.
Lord Glentoran: I thank the noble and learned Lord for his and the Government's co-operation in producing Amendment No. 29A, which we felt was very necessary. I was anxious throughout to try to tie in the international agreement—to which reference has been made, but which is not yet ratified—as much as possible to the Bill so that the Bill neatly reflected it.
The Committee will have noticed that in the Bill there is not much demand on the Government, from wherever it may be coming, to report to this Parliament on the happenings, results and workings of the Bill. I feel that at least once a year is a reasonable time. Although—unlike the noble Lord, Lord Smith, who I am sure spent a lot of time in Yorkshire—I was the one who totally misread it, getting my Spanish mixed up with my English, I assure the Committee that I spent most of August in the Province. I still live there although I sometimes wonder with the amount of time that I spend here, among your Lordships in your Lordships' House. Having said all that—and I hope

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that my noble friend Lady Anelay is ready to pursue this afternoon's proceedings—I again thank the noble and learned Lord.
Lord Carlile of Berriew: In speaking to these amendments I declare my interest as the independent reviewer of the Terrorism Act 2000. Indeed, I take advantage of that role to speak publicly on an aspect that has caused some concern and which I believe is resolved by these amendments.
As the independent reviewer of the Terrorism Act, I prepare a separate report annually on the operation of Part VII of the Terrorism Act 2000. Part VII contains the provisions which apply to Northern Ireland alone and are renewable on an annual basis. I have received some concerns from outside about the possibility of the independent monitoring commission being yet another reviewer of what is happening in Northern Ireland politically and in relation to terrorism. Alternatively, I have received the concern that the arrival of the independent monitoring commission will make redundant some reviews which some people regard as valuable in relation to the affairs of Northern Ireland. Some academic commentators have expressed concern about the overlapping activities of the various reviewers, reporters and commentators, no one more eloquently than Professor Clive Walker of Leeds University, a very eminent author on the Terrorism Act 2000.
It may be as well, in a moment or two, to remind your Lordships that there are people or bodies who monitor complaints against the military. There is an excellent reviewer of the holding centre in relation to those arrested on suspicion of terrorism. There is an independent Police Ombudsman for Northern Ireland who carries out reviews of police activity. There is the statutory Northern Ireland Human Rights Commission. There is myself as the independent reviewer of the Terrorism Act, and there are many other non-statutory reviews, including the valuable work of many academic and, indeed, some very good journalistic commentators, too. So there is no shortage of people monitoring and reviewing what is going on in Northern Ireland in relation to decommissioning, anti-terrorism law, the fairness of the political process and human rights, among other matters.
The independent monitoring commission is yet another body that will review important aspects of life in Northern Ireland. I and, I believe, many other reviewers or monitors involved in the affairs of Northern Ireland, recognise that it could become all embracing if it is able in due course to carry out the full remit of its responsibilities under the 2003 Hillsborough agreement. 1 and, I suspect, other reviewers, hope that it will eventually become all embracing. We look forward to being declared redundant in the name of normalisation, for that is the name of the game which underpins the Hillsborough agreement.
If Northern Ireland is ever to receive the blessing of normality, we shall depart with thanks for having enjoyed part of bringing that normality about. The blessing of normality in my judgment would be that
686
state of public order liberated from the extraordinary presence of political terrorism which is our good fortune day to day in the rest of the United Kingdom but which is not the good fortune of Northern Ireland day to day as yet.
The independent monitoring commission, unlike all we other reviewers, has a strong imprimatur from the international community. It has the advantage of external membership and the great advantage of being created by international treaty obligation. Those are all advantages over any role I perform and they are advantages over the roles performed by the other monitors and reviewers to whom I referred.
Normalisation would rid Northern Ireland watchers of the burden of having to read a multiplicity of reports. That would be a good thing but, above all, our departure would signify that normalisation to which I referred. I want to take this opportunity to allay in public the concerns of all those who contacted me and suggested that there would be an inconvenient multiplicity of reviewers and monitors which would work against the public interest. In my view the plurality of the reviewing mechanisms and the number of them is a guarantee of rigour in reviewing the process towards normalisation. In any event the future work of the independent monitoring commission, at least in its first two years, is bound to be focused upon decommissioning. It will not have either the time or the resources to impinge upon the work that others do.
I therefore wish to reassure those from outside and inside this building who expressed misgivings about the addition of the independent monitoring commission that I certainly see no difficulty in that regard. I look forward to working with it. Others who are involved in this matter who have spoken to me also look forward to working with it and see no difficulty whatever arising in that regard.
The proposals in Amendments Nos. 29A and 31 are much tidier than the original amendments that were drafted. It seems to me that the reporting system will also have the advantage of providing a thermometer of how normalisation is working in Northern Ireland. I and the other reviewers and monitors will read that thermometer in the hope of viewing our own early demise.
4.30 p.m.
Baroness Park of Monmouth: I want to say only that as a regular reader and admirer of the noble Lord's reports I sincerely hope that he will continue to write them and that they will not be regarded as in any way unnecessary.
Lord Brooke of Sutton Mandeville: The Minister indicated the conciliatory purpose of the proposed new clause but he is almost certainly unconscious of another respect in which he has been conciliatory. On the Licensing Bill the Government put down very definitive and abrupt deadlines for certain actions which had to be taken by those affected by the Bill. When I on a number of occasions moved amendments to add the words "as soon as practicable", those amendments were rejected by

687
the Government. Subsection (4) of the proposed new clause in Amendment No. 29A includes the words "as soon as practicable". I am not so immodest as to imagine that there is any connection between my proposed amendments to a previous Bill and the Government's Amendment No. 29A, but I am delighted that in future I shall have a precedent which I shall be able to quote back to the Government, not least because the contents of the report which is envisaged are sufficiently predictable that a more precisely calibrated deadline could have appeared appropriate.
Lord Williams of Mostyn: We do things better in Northern Ireland, I think. I thank the noble Lord, Lord Carlile, for his generous and, indeed, magisterial review of this area to which he has contributed so greatly. I cannot improve on what he said.
On Question, amendment agreed to.
Clause 9, as amended, agreed to.
[Amendment No. 30 not moved.]
Clause 10 [Short title, commencement and repeals]:
Lord Williams of Mostyn Lord Williams of Mostyn moved, as a manuscript amendment, Amendment No. 31:
Page 15, line 42, after "3" insert "and (Secretary of State's duty to prepare reports)"
On Question, amendment agreed to.
Clause 10, as amended, agreed to.
House resumed: Bill reported with amendments.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do adjourn during pleasure until 4.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 4.37 to 4.40 p.m.]

Criminal Justice Bill
Lord Davies of Oldham: 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 Davies of Oldham.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Brougham and Vaux) in the Chair.]
Clause 76 [Restrictions on publication in the interests of justice]:
[Amendments Nos. 135F and 135G had been withdrawn from the Marshalled List.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 135GA:
Page 49, line 32, leave out "may" and insert "must"
The noble Lord said: We commence further consideration in Committee on a rather soft ball. As Members of the Committee will see, the proposal is that the word "may" in subsection (1) be replaced by the word "must", and that we exclude subsection (3), which gives the court discretion to,
"make an order under this section only if it appears to it necessary in the interests of justice to do so".
I am really seeking an explanation of why those discretions exist. As the Bill is framed the Court of Appeal has to take a decision,
"that the inclusion of any matter in a publication"—
when a retrial is ordered—
"would give rise to a substantial risk of prejudice to the administration of justice".
That is the decision that the court makes. Having made that decision, in what conceivable circumstances would it be right not to order that the matter be not published? I have racked my brains in trying to think of such circumstances. What is the purport of subsection (3) that such an order should be made only if it appears to be,
"necessary in the interests of justice"?
What other sort of publication do the promoters of the Bill have in mind?
We have tabled the amendments in a spirit of puzzlement, to find out exactly what they mean. I beg to move.
Baroness Anelay of St Johns: I rise briefly to support the amendment in its probing nature. What are the circumstances in which the Government expect the Court of Appeal would not make such an order? That is indeed puzzling.
It might be appropriate if I explained to the Committee why some amendments no longer appear on the Order Paper. Late last week, I withdrew Amendments Nos. 135F and 135G, which would have preceded this group, and I withdrew others towards the end of Thursday's business. Today I give notice that I shall not move Amendments Nos. 137A to 137D. I have given notice of that intention to the Bill team.
All noble Lords will have been concerned last Thursday to learn that two days in Committee in the Criminal Justice Bill this week were to be jeopardized—to make a very poor pun—by half that time being taken away for the Northern Ireland legislation today and half taken away for the Fire Services Bill on Thursday. Therefore, I have gone as far as I can in withdrawing some of the more probing amendments, leaving my core amendments.
It makes one feel concerned about Government business at this stage of proceedings if we are to lose significant time for debate on the Criminal Justice Bill.
The Attorney-General (Lord Goldsmith): I take note of the remarks made by the noble Baroness, Lady Anelay. I had notice through the Bill team that she would not move the group that includes Amendment No. 137A, and that Amendments Nos. 135F and 135G had been withdrawn. I note what she says about time, but this is already the sixth day of Committee and there is more to come, so there is certainly a substantial amount of time in which to debate these issues.
I turn to Amendment No. 135GA, moved by the noble Lord, Lord Thomas of Gresford, and Amendment No. 135GB, which covers the same area—the area of the court's discretion. On this occasion, I find myself on the side wishing to uphold the court having discretion, rather than being mandated to do something. In other areas, we have found ourselves on the other side of that debate. What essentially lies behind the argument is the question of the circumstances in which the court might take the view that it was inappropriate or necessary in the interests of justice to make a reporting restriction order, notwithstanding that the other condition was satisfied.
It is not for me to envisage all the circumstances in which the court would take the view that it was unnecessary or appropriate to make such an order—particularly as we are referring to the Court of Appeal. I can certainly think of two, but I would not want them to be thought of as exhaustive. One circumstance might be where the court was of a view that there had been such publicity already and that it was unnecessary to make an order restricting further publicity. That might or might not be connected with the second reason that I have in mind as a possibility—that the court might take the view, and the defendant might himself take the view, that it was important for there to be some publicity so that other witnesses, yet unknown, might be persuaded to come forward after learning about the case through the press.
Those may not be the examples that would arise in a particular case. My fundamental point, which is the reason for resisting the amendments, is that the Court of Appeal can be trusted to have the appropriate ability to take into account all relevant factors and to decide when reporting restrictions are necessary in the interests of justice. On this occasion, I would resist trying to put a straitjacket on the Court of Appeal rather than leaving it to its very good sense and discretion.
Lord Thomas of Gresford: The noble and learned Lord is using my language when he refers to discretion, the absence of a straitjacket, and so on. That is the sort of thing that we have been saying throughout the passage of the Bill.
One reason why double jeopardy is so contentious is that the decision of the Court of Appeal might get such publicity as inevitably to prejudice a further trial. The points raised by the noble and learned Lord could be taken into account by the Court of Appeal in deciding whether there was a substantial risk of prejudice to the administration of justice. However, once it has come
690
to that conclusion, I cannot see why there should be any further publicity, which might very well affect the fairness of a further trial.
I am grateful to the noble and learned Lord for his response and I shall take the amendment away and think about it to see whether it is a matter that I wish to return to on Report. For the moment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 135GB not moved.]
Clause 76 agreed to.
Clause 77 [Retrial]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 135GC:
Page 50, line 43, after "be" insert "for the qualifying offence"
The noble Lord said: I shall speak to this amendment and the others in my name and that of my noble friend Lord Dholakia that are grouped with it. I shall also consider whether the clause should stand part of the Bill at all. It is our view that the provisions are unsatisfactory in any event. At an earlier stage we opposed double jeopardy, save in very limited circumstances, as Members of the Committee are aware.
Even though there may be only a limited retrial in certain circumstances, the provisions concern me very much. When an application is made to the Court of Appeal under Part 10, and particularly under Clause 70, the application is made by a prosecutor for "quashing a person's acquittal" and,
"ordering him to be retried for the qualifying offence".
When we look at what is to be retried, however, it seems as though the intention is to have a trial on a broader basis. Under Clause 77(1), the person ordered to be retried must have a trial,
"on an indictment preferred by direction of the Court of Appeal".
Under subsection (5), however, that indictment,
"may relate to more than one offence, or more than one person, and may relate to an offence which, or a person who, is not the subject of an order or declaration under section 71".
There, in terms, the Court of Appeal may make an order that goes much wider than the original application.
The other unsatisfactory element here—the Committee discussed the matter under Amendment No. 135BB—is that the new rules of evidence envisaged in the Bill will apply to that retrial. Consequently, it seems quite possible for a retrial to be ordered following the quashing of an acquittal on a different basis from that before, because the rules of evidence that apply will be different, under subsections (6) and (7).
Normally when one has a retrial, it is for the original offence and the law is taken as at the time of the original trial. That is the current situation as I understand it. Under the Bill, an entirely different procedure is to apply. Fresh evidence that would not have been admissible at the old trial will be admissible under the provisions, which makes it even more

691
unsatisfactory and unacceptable that any retrial should take place at all. I look forward to hearing the Minister's explanation. I beg to move.
Baroness Anelay of St Johns: I shall speak to my Amendment No. 135H, which is grouped with Amendment No. 135GC. I make it clear that it is a probing amendment and that we do not support the Clause 77 stand part debate.
One can readily imagine the circumstances in which the DPP and the police might consider it convenient to try an additional person on the same indictment as a person who is to be retried, perhaps where new DNA evidence implicates both an acquitted person and his or her accomplice who had not been tried before. However, what circumstances do the Government have in mind in relation to allowing the indictment to contain additional offences in respect of the original accused person who faces a retrial? Would those offences have to be new ones of which he had never been acquitted, or would the order for retrial on one offence allow related offences of which an accused had been acquitted to be retried as well?
Lord Goldsmith: The group—Amendments Nos. 135GC, 135GD, 135H, 135HA and 135HB and Clause 77 stand part—has three aspects to it. The first relates to what is to happen when an order is made by the Court of Appeal.
There would be two consequences of Amendment No. 135GD, tabled by the noble Lord, Lord Thomas of Gresford, and Amendment No. 135H, tabled by the noble Baroness, Lady Anelay, if they were accepted. First, they would prevent the court from issuing an indictment against more than one defendant if all the defendants listed on the indictment had not previously been tried for the offence. As the noble Baroness said, that would mean that, for example, if new and compelling evidence came to light that suggested another person as well as the original suspect was guilty of the crime, it would not be possible to try the two together.
One could envisage circumstances in which the evidence that had come to light indicated not only that the original defendant was guilty, but that he had a partner or accomplice—perhaps someone engaged in a joint enterprise with him—who was guilty of the offence. There would be enormous difficulties if one prevented the trial taking place with that other person involved as well. Of course, the other person has no double jeopardy complaint to make in relation to the matter, as he has not been charged with or tried for the offence before. To prevent the indictment from covering that other defendant seems wrong. It would prolong the retrial process and delay the opportunity to reach the outcome that justice demanded.
The other effect—bringing a different charge against the original defendant along with the charge for which the Court of Appeal's leave is needed—was particularly referred to by the noble Baroness. There could be circumstances in which evidence had come to light that, in addition to the original charge, the
692
suspect was credibly believed to be guilty of some other offence as well, one that it would be appropriate to have tried at the same time. If it were an offence with which he had not been charged and was not an alternative verdict to the original offence of which he had been acquitted, there would again be no issue of double jeopardy because the person would not have been previously tried and acquitted of that offence.
I assure the Committee that we are not attempting to get round the requirement that, where there has been a qualifying offence of which there has been an acquittal, all the safeguards and requirements that apply to that need to be satisfied before that offence can be the subject of a further charge. The amendments would prevent it being possible to add another defendant who had not previously been tried, or another charge that had not previously been the subject of an acquittal and in relation to which the principle of autrefois acquit would not apply.
The second category was dealt with briefly by the noble Lord, Lord Thomas, in relation to his Amendments Nos. 135HA and 135HB. I shall take a moment to explain them, which I hope will help the Committee to see that there is no problem behind the provisions.
The present position under Schedule 2 to the Criminal Appeal Act 1968 is that a transcript of the evidence of a witness who testified at the original trial can be admitted as evidence in retrials, which can currently be ordered; for example, where the Court of Appeal has found that a conviction was unsafe. That is subject to whether the parties agree and whether the judge is satisfied that the witness is dead or unfit to give evidence; or that all reasonable attempts to find him and secure his attendance have been made without success.
Therefore, there is already provision in existing legislation on retrials for transcripts of evidence of witnesses who testified at the original trial to be admitted. Noble Lords will be aware that there are certain other circumstances where they can be admitted, such as where it can be shown that a witness, through fear, is not prepared to give evidence, having given a qualifying statement.
The provisions of Clause 109(2), which are referred to in subsection (6), are not put in quite the same terms, but they largely cover the existing area where transcripts on retrials may be allowed. I do not want to pre-empt the important debate that I know will take place on Part 11, which relates to hearsay. The consequences of that debate, whatever they are, will follow from that. However, the provisions to which the noble Lord referred do not introduce, in terms of evidence, material other than is referred to in subsection (6), which is certain hearsay evidence; that is, transcripts in those circumstances or in the circumstance identified in Clause 107(1)(d)—a further category. That is where the court is satisfied that despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible and the witness is for some other reason not available, subject to the requirement of the court.

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I am sure that the noble Lord would not wish to undermine the principles under which the courts can in certain circumstances use trial transcripts for a retrial. One consequence of his amendment would be that a trial transcript could not be used even if it pointed to the innocence of the accused. That relates to all circumstances in which transcripts are to be available. The existing law recognises that where there is to be a retrial, it is desirable to have available the evidence that was available at the first trial. It may help the accused; it may help the prosecution. That is what the provisions are designed to do.
There are of course safeguards in Part 11. We will come to those when that is debated, including in Clause 119 the safeguard that the court retains the residual discretion under Section 78 of PACE to exclude evidence in the interests of fairness. It also includes a duty under Clause 118 to stop a trial where a conviction would be unsafe, because the prosecution's case is based wholly or partly on unconvincing hearsay. We will come to all of that, I am sure, when we debate Part 11. At this stage, the principal issue is whether in certain circumstances it should be possible at the retrial to use transcripts of the evidence that was given at trial, as the existing law allows.
Amendment No. 135HB would delete Clause 77(7). This is a rather technical point and perhaps I may briefly draw your Lordships' attention to Clause 124, which updates the provision for the admission of transcripts and depositions in retrials that can currently be ordered by the Court of Appeal; for example, where a conviction is quashed because it is unsafe and a Court of Appeal orders a retrial. The provisions of Clause 124, as noble Lords will see, reflect precisely that in Clause 77(6).
It has long been a principle that witness depositions are not admissible as evidence at retrials if the witness gave evidence at the original trial. As Members of the Committee will know, in certain circumstances a deposition may be admissible at an original trial, but if the witness gave evidence at the trial, that evidence, rather than a deposition. would be admissible. It may be the only occasion on which the evidence has been tested—or certainly extensively tested—during the course of the trial by cross-examination. We intend simply to apply the same principle to retrial—that the deposition, which might otherwise be admissible, should not be admissible in place of the provisions relating to transcripts of evidence. I hope that that answer gives the noble Lord some comfort.
Finally, Clause 77 stand part appears in the group. We have previously debated at some length in Committee the objections in principle that have been raised to this part of the Bill. Clause 77 is critical to the double jeopardy provisions because without it the rest of that part does not work. I do not intend, on this occasion, to rehearse the arguments that have already been made in Committee. Maybe we will come back to the issue at a later stage, but that is not for me to say. To put our position on the principle of double jeopardy briefly, there has been a consensus for reform. The Lawrence report,
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the Law Commission, the Home Affairs Select Committee and Sir Robin Auld backed the reform in principle. It will apply only in the most serious cases—we have yet to debate what the final list of cases should be—and will be subject to important safeguards. It will apply only in exceptional circumstances. Those, in brief, are reasons in principle for supporting it. I give way to the noble Lord, Lord Renton.
5 p.m.
Lord Renton: I should have spoken sooner and before the noble and learned Lord rose. Perhaps I may make a few points now which I am sure are relevant to the Question whether Clause 77 stand part In my opinion, it must stand part. We would be leaving a terrible void in the Bill if we did not have it or something like it. Between now and Report, I hope that the noble and learned Lord or the Minister responsible will consider some minor redrafting. In four subsections, (1), (3), (6) and (7), instead of referring to "retrial", the text refers to "trial". It must refer to "retrial" for the sake of clarity and to avoid confusion. Also, in subsection (4), reference is made to,
"a bar to his being tried for the qualifying offence".
That must obviously read "retried". I hope that those simple drafting amendments will be made on Report.
There is a further matter that should delay any decision which your Lordships might wish to make about Clause 77. First, I refer to subsection (6)(a), where we find that,
"Evidence given at a trial pursuant to an order under section 71(1) or (3) must he given orally if it was given orally at the original trial".
It then says,
"unless …section 109 applies".
I believe that we must consider Section 109 very carefully and rather sceptically because it enables hearsay evidence to be produced which is not admissible at present. We must consider that controversial point very carefully as it would, of course, affect the meaning of Clause 77.
Secondly, I want to make one other point that arises from what the noble and learned Lord said. He referred very properly to the effect of Clause 124 on this clause. That is another matter which would affect the final composition of Clause 77.
Lord Goldsmith: I am grateful to the noble Lord for his intervention and for his support for Clause 77 to stand part. I shall carefully consider—and have carefully considered—his comments on the drafting. At present, it appears to me that the matter is sufficiently clear but, as always, I shall ensure that it is examined.
I turn to the noble Lord's comment on subsection (6). which refers to Section 109. Previously I may not have been as clear as I should have been about this matter Largely, Section 109 replicates the existing procedure for the admission of transcripts at retrials which can be

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ordered. That is not the case completely but, as I said, under the Criminal Appeal Act 1968, transcripts of witnesses who gave evidence at the original trial may be admitted in certain circumstances, including a number of the circumstances set out in Section 109.
Baroness Kennedy of The Shaws: Perhaps I may alert my noble and learned friend that, before the Report stage, I shall table an amendment seeking to leave out the whole of Part 10 of the Bill. I give notice that the entire issue of double jeopardy is, in my view, a departure from principles of a profound kind, and this Chamber should be given the opportunity to vote against such a departure. I shall have that amendment placed before this House prior to Report so that no one is taken by surprise.
Lord Goldsmith: We would not be taken by surprise if we were given notice that the noble Baroness was going to oppose the Question whether clauses stand part. I believe that she made her position perfectly plain on a previous occasion.
Lord Thomas of Gresford: Perhaps I may deal, first, with the offence aspect. As I pointed out to the noble and learned Lord when I moved the amendment, the application to the Court of Appeal under Clause 70 is for an order that the person whose acquittal is quashed should be retried for the qualifying offence. That is what the application is for—it is for a retrial for the qualifying offence.
What concerns me—particularly having regard to the noble and learned Lord's reply—is that a person could be acquitted of offence x, have that acquittal quashed, be ordered to be retried for offence x, but then, on the indictment that is then produced for the retrial, find that he is charged with offence y arising out of the same facts. If the noble and learned Lord can give me an assurance that the retrial that will take place will be a retrial of the qualifying offence—namely, offence x—that would greatly assuage my fears in relation to the provisions of subsections (1) and (5). Perhaps the noble and learned Lord would like to consider that point first.
5.15 p.m.
Lord Goldsmith: I shall consider that and I shall ensure that I write to the noble Lord. But if the noble Lord is concerned that the defendant might be tried in relation to some other offence, then, in any event, there is no need for the Court of Appeal to give leave for that. The defendant can be tried for the other offence if he has not been acquitted of it or if there are circumstances where there might have been an alternative verdict to the original offence for which he was tried. But if it was not an alternative verdict to the offence for which he was tried, then, in any event, the doctrine of autrefois acquit would not prevent him being tried for it.
Lord Thomas of Gresford: As I understand the principle of autrefois acquit, it refers not simply to the
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offence for which the person has been acquitted but to any offence that arises out of the same facts. That is my understanding, but perhaps we can give the matter further thought.
I am grateful to the noble Lord, Lord Renton, for following my thoughts on the evidence aspect. It really does appear—particularly when one has regard to Clause 107(1)(d)—that the retrial will take place under different and separate evidential rules. Those rules include the possibility of hearsay evidence being admissible. Therefore, if a person has been acquitted of an offence at one moment, his acquittal is quashed, he is retried and he then faces an entirely new set of principles for that retrial. That seems to me to be fundamentally unfair. It is one further reason for supporting, to a large extent, the application that the noble Baroness, Lady Kennedy of The Shaws, will make on Report.
Lord Carlisle of Bucklow: Before the noble Lord sits down, perhaps I may ask the noble and learned Lord the Attorney-General a question. In his reply to the noble Lord, Lord Thomas, did I understand him to say that one effect of the noble Lord's amendment would be that it would be impossible to add a further defendant to any separate indictment when a retrial had been ordered? If I did hear him say that, is he imagining circumstances in which a further defendant could he added so that a person who had been tried and acquitted as a single defendant could then have an order made for his retrial and find himself one of several defendants? That would probably substantially change the nature of the case in which he was involved.
Lord Goldsmith: I did say to the noble Lord, Lord Thomas, that one of the effects of his amendment would be to prevent an additional defendant being added to the indictment. The example that I gave would he one in which the further new and compelling evidence—because new and compelling evidence there would need to be in order to justify the application to the Court of Appeal—might show that the defendant had not been, as had perhaps been alleged at trial, acting alone but acting with another. One could envisage circumstances in which the evidence now showed in a compelling way that a murder or some other serious offence that had been committed was in fact the result of two or more people acting together. In those circumstances, it would be right that the defendant should be tried not on his own but with the other person or persons who the new and compelling evidence now indicated were also responsible for the crime.
Lord Carlisle of Bucklow: Would there be any duplication on the adding of a further defendant, or does the noble and learned Lord the Attorney-General envisage that that may happen in any case? Alternatively, would it be the case that, for some reason, the other defendant was not available to be tried at the time of the original trial? It seems to me

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that, as the noble and learned Lord the Attorney-General has accepted, it will change substantially on his retrial the nature of the case against a man who has been acquitted.
Lord Goldsmith: Again, I shall give further thought to this matter. In answer to the noble Lord, Lord Carlisle of Bucklow, there are two points. First, these other defendants have no defence against being tried in any event. They have not been tried before. Therefore, there is no reason that they can put forward based upon the fact of the first defendant's acquittal to say that they should not be tried. Whether they have some other grounds for saying that they should not be tried arising from the circumstances of the case is not a matter for today.
Secondly, the Court of Appeal will have to be satisfied that it is right for the order to be made in relation to the first defendant. So, both of them are covered, it would seem to me, by those points.
Lord Carlile of Berriew: Can the noble and learned Lord assure the Committee that in its final form the law will be so drawn that the Court of Appeal will know that there are other defendants who will or may be tried? If that is not the case, how can the Court of Appeal decide whether it is fair for the defendant whose acquittal has been quashed to be tried with the other defendants?
Those of us who conduct criminal cases have been in many trials in which the evidence against co-defendants has been the subject of applications about the fairness of the trial against one's client. In such circumstances one often makes applications for severance. They are not usually successful but very, very occasionally they are. If an order has been made by the Court of Appeal that the previously acquitted defendant should be retried, the retrial judge will be very inhibited against ordering severance unless the Court of Appeal has had the opportunity of considering all the circumstances, including that there will be co-defendants in the retrial.
Lord Goldsmith: I hear what the noble Lord says. I shall not, while on my feet and without consideration or advice, give the assurance for which he asks. I shall certainly consider the point. I think he makes more of it than is justified but I shall certainly consider it and come back to the issue one way or another.
Lord Thomas of Gresford: Would the noble and learned Lord also take into account the fact that the new and compelling evidence could not be derived from the confession of a co-accused because that would not be evidence against a person whose acquittal was quashed? Nevertheless, as the noble Lord, Lord Carlisle of Bucklow, pointed out, the presence of co-defendants giving evidence, perhaps in a cut-throat defence, would have a marked difference upon the way in which that trial was carried out.
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The more one goes into these provisions for abolishing the centuries old rule of double jeopardy. the more one realises the wide possibility of miscarriages of justice arising. No doubt we shall come back to that.
Lord Goldsmith: The question of what happens when there are co-defendants and defendants is something which exists at the moment. It does not arise as a result of the retrial provisions in this part of the Act.
Baroness Kennedy of The Shaws: Perhaps I may press the noble and learned Lord to reply to the query from the noble Lord, Lord Thomas of Gresford, on the Benches opposite, about whether in retrial, perhaps years after events, new rules of evidence or newly abandoned rules of evidence will mean that a very different kind of trial will take place. It may be that one would start reviewing all kinds of cases and—in the light of the fact that if the Bill goes through, previous convictions and hearsay will now be evidence in cases—reconsider many past convictions in the light of new rules of evidence. Is that what will happen?
Lord Goldsmith: We have had this debate. It arose in relation to Clause 72, which makes plain under subsection(5) that,
"it is irrelevant whether any evidence would have been admissible in earlier proceedings against the acquitted person".
That has been the subject of discussion. It does not arise under this clause. What arises under this clause is the admissibility of transcripts of evidence which has been given at trial. That is all that arises under this clause. It may be, I know not, that we shall come back to Clause 72 at a later stage but I do not intend to go over those arguments again now.
Lord Thomas of Gresford: Clearly, we shall have a huge debate on this on Report. I note that the noble and learned Lord said, "at the moment". I am sure that he will reflect upon the answers he has given. I do not intend to press the amendment for the moment and beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 135GD to 135 HB not moved.]
[Amendment No. 135J had been withdrawn from the Marshalled List.]
On Question, Whether Clause 77 shall stand part of the Bill?
Baroness Kennedy of The Shaws: I indicated on a previous occasion that I had telephoned the Public Bill Office about tabling amendments. However, my intention to table an amendment to delete Part 10 would fulfil my objective rather than opposing the Question whether Clause 77 stand part. Therefore, I shall not press it.
Clause 77 agreed to.
Clause 78 [Authorisation of investigations]:
Baroness Anelay of St Johnsmoved Amendment No. 136:
Page 52, line 22, leave out "and"

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The noble Baroness said: In moving Amendment No. 136 I shall speak also to Amendment No. 137. As is obvious from even the most cursory glance, Amendment No. 136 is simply a technical drafting amendment to make sense of Amendment No.137, which is consequential upon and part and parcel of Amendment No. 136. Indeed, when the amendments were tabled in another place, perhaps the Public Bill Office there was a little less precise than our own very careful people here. So I am sure that we have the superior approach in this House.
We have been discussing safeguards which are required in this very sensitive and difficult area; that is, the relaxation of double jeopardy rules. Amendment No. 137 addresses the question of whether there should be judicial authorisation of a reinvestigation into an acquitted person's case. Indeed, we say that there should be just such a safeguard.
Clause 78 requires the police to obtain the consent of the Director of Public Prosecutions before taking certain major steps in the reinvestigation of cases where new evidence has come to light or where there are reasonable grounds to believe that further investigation will give rise to new evidence.
The whole process of retrial does indeed give rise to many concerns, some of which have been expressed today, but which were expressed in greater detail at our previous session on 17th July. If we do go ahead with relaxing the rules on double jeopardy, we on these Benches say that we must have the highest level of safeguards to ensure that the process works as fairly and effectively as possible. It is our view, therefore, that the DPP should seek the authorisation of a Crown Court judge before deciding that an acquittal is not a bar to a retrial and giving his written consent to investigation. The DPP could make an ex parte application to a judge and secure the court's sanction of the process, which, as we have heard on previous occasions, is bound to have a drastic effect upon the lives of the acquitted person and, indeed, upon the victim and all the families involved.
The changes to the rules of double jeopardy would make a massive alteration to our basic principles that currently govern the grounds on which someone can be arrested and investigated. When my honourable friend Dominic Grieve raised this matter in another place as long ago as January of this year, the Minister suggested that the problem could be solved by the use of judicial review of the DPP's decision. Since January we have taken advantage of the Government's rather leisurely stroll through the Bill until it now reaches a race towards the end. I have in mind that, indeed, the Government delayed the second and third days on Report in another place because they put in such a substantial number of new clauses. Some were for very good reasons, but there has been some delay at earlier stages of the Bill.
We have considered the Minister's response since that early stage and we are still not convinced that judicial review provides the appropriate safeguard. It is too cumbersome and comes too late. We prefer the
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route of judicial control because that refers the matter to a person who is seen to be independent of the Government in a way that the DPP is not. However great that person's abilities may be, he will still be seen by some as a state administrator making a highly sensitive decision.
Our amendment does not introduce some kind of cumbersome mechanism: it is the reverse; it is intended as a simple safeguard, which we hope fends off the need for time-consuming judicial reviews and unnecessary stress on those who should perhaps not be brought for retrial. I beg to move.
5.30 p.m.
Lord Goldsmith: It may be helpful to say a few words about Clause 78 and what it covers in order to put the amendment in context. Clause 78 allows the police to reinvestigate an acquitted person in respect of the qualifying offence of which he has been acquitted only with the consent of the Director of Public Prosecutions.
The DPP must consider in giving his consent—subsections (4), (5) and (6)—whether the person's acquittal acts as a bar to a retrial before giving his consent to reinvestigate. He must not give his consent unless he is satisfied that—subsection (6)—as a result of the investigations there is, or is likely to be, sufficient new evidence to warrant the conduct of the investigation and that it is in the public interest for the investigation to proceed.
The steps which therefore require consent are set out in subsection (3)—the arrest or questioning of the acquitted person; a search of him or his premises; a search of a vehicle owned by him; a seizure of anything; or taking his fingerprints or a sample from him. The application itself is subject to the further safeguard that the application must be made—subsection (4)—by an officer who, if we are talking about the Metropolitan Police or the City of London Police, is of the rank of commander or above, and in any other case of an assistant chief constable.
Those safeguards appear to us to be very substantial. They come of course before the safeguard of the requirement that there is ultimately an application by the DPP that he has considered the case personally and which is accepted by the Court of Appeal. We do not see—and are not persuaded to accept the amendment therefore—the necessity and the desirability of adding an additional requirement that the DPP should have to seek the leave of a Crown Court judge.
Lord Carlile of Berriew: I am very grateful to the noble and learned Lord for giving way. To enable the Committee to determine its views on these amendments, can he explain what is meant in Clause 78(3)(a) by "question him"? Does it mean question him under caution or does it include such methods as merely asking informal questions or obtaining a witness statement without his being questioned under caution? It would

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perhaps seem logical that no form of questioning should be permitted without the consent of the DPP under the scheme that the Government have in mind.
Lord Goldsmith: At the moment I read it as I suspect the noble Lord reads it. It states "question him" without qualification. But I shall take the issue away to see whether there is any suggestion to the contrary. If that is right, it assists in demonstrating the significance and strength of the safeguards that are being put in place.
The point on the amendment is this: the Director of Public Prosecutions is more than senior and experienced enough to take a decision on whether the police should, in re-opening an investigation into an acquitted person, take the steps which are set out in subsection (3). Having him do that provides a very important but sufficient safeguard to prevent the acquitted person being harassed by the police, because that is what one seeks to protect the acquitted person against. At this stage of the reinvestigation, it is quite appropriate for the decision to be taken by the prosecuting authorities rather than the courts.
To involve a Crown Court judge in proceedings at this stage would make the proceedings more cumbersome. The layers of safeguard that have already been included are more than sufficient. As to the critical decision of whether or not a retrial should be permitted, of course we do not leave it to a Crown Court judge to decide. That will be, after personal consideration by the Director of Public Prosecutions, for the Court of Appeal. At the end of the day, that judicial scrutiny will be a very important safeguard for the individual. So I cannot accept the amendment and invite the noble Baroness not to press it.
Lord Lloyd of Berwick: I am grateful to the noble and learned Lord for giving way. He was a little too quick for me at the beginning because I had intended to support both this amendment and the next substantive one. With the permission of the Committee I shall do so now. I was waiting to hear whether there would be any support for the amendment from the Liberal Democrat Benches, but that did not happen.
The Committee may remember that I do not oppose Part 10 of the Bill, root and branch, as do some noble Lords on these Benches. But I see a risk of great injustice in individual cases, especially if the power to order a retrial is to be exercised retrospectively under Clause 69(6)—for example, in respect of a committal before the Act comes into force.
I gave an example of a case of a man acquitted of a crime five or 10 years ago, before the Act comes into force. He then makes a clean breast of the issue in private to his wife. In my view—a view I expressed at the time—it would be quite wrong for such a person to be deprived of his existing—accrued—right not to be tried again by retrospective legislation. Surely, that should be axiomatic.
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When he came to reply on this point, the noble and learned Lord the Attorney-General did not, with great respect, deal with the issue very satisfactorily because he did not deal with it as a point of principle, which of course it is. Instead he was content to give an example from the other end of the spectrum—the Dunlop case. In that case—the Committee may remember—the man admitted within a few days of his acquittal that he had committed the perfect crime and bragged about it in a public house. The noble and learned Lord the Attorney-General said that he would not be able to look the mother of that victim in the face unless he could tell her that the Act would apply to her.
The contrast between the two cases—the case I put before the Committee and the one put before the Committee by the noble and learned Lord the Attorney-General—shows as clearly as anything could the need for these amendments. There will not be, as the Attorney-General accepts, many of these retrospective cases. Indeed, I doubt whether there will be many cases under these retrial proceedings altogether. But what surely is needed right at the outset is a means of distinguishing the cases where there is some merit—the example given by the noble and learned Lord—and the cases where there is no merit, the kind of case, for example, which I cited. That decision should be taken long before the case reaches the Court of Appeal and should be taken before ever the investigation under this clause starts, because the investigation itself in a case where there is no merit could cause grave injustice.
An ex parte application to the judge at the very start of the investigation seems the ideal way to achieve that objective—to distinguish at the outset between the cases where there is merit and those where there is none. I therefore hope that, although the Government have said that they will not, they will accept the amendment or at least reconsider it. It could not possibly do any harm; indeed, it could do nothing but good as it would take the initial and all-important decision from the hands of the Director of Public Prosecutions and place it in the hands of a Crown Court judge, where it belongs.
Lord Mayhew of Twysden: Perhaps I may seek similar indulgence, not having risen to speak al the right time. I support the effective amendment in this grouping of two, but for a slightly different reason from that principally advanced by my noble friend on the Front Bench. I do not think that there is any view in the country that the Director of Public Prosecutions is other than independent of the Government. We all know that he is by statute superintended by the Attorney-General, but that is by the Attorney-General acting in his judicial capacity, not in his capacity as a partisan member of the Government.
I support the amendment because I suggest that it is needed to provide a measure of protection for the director. He is head of the Crown Prosecution Service and one criterion that will have to be fulfilled if the process is to work is that the evidence that is sought to be adduced was not reasonably available to the CPS, the police or the prosecutor at the time. It is a measure

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of necessary—or at least desirable—protection for the DPP, who is to that extent slightly parti pris, that the process cannot proceed to the next stage unless it has the consent of a judge of the Crown Court obtained on an ex parte application. I suggest to the noble and learned Lord the Attorney-General that on that basis the amendment warrants acceptance.
Lord Goldsmith: I hope that I did pause and that the noble and learned Lord, Lord Lloyd of Berwick, missed the opportunity, but, given that both he and the noble and learned Lord, Lord Mayhew of Twysden, commented on it, I say simply that I shall not deal again with retrospection. I am sorry that the noble and learned Lord thinks that I did not deal with it satisfactorily; that may be simply because we take different views on the matter. If we return to it we shall have another opportunity.
I am grateful to the noble and learned Lord for confirming that, as he knows from his experience holding the office which I am privileged to hold now, the Director of Public Prosecutions is most certainly independent of government and can be trusted to make difficult decisions. That is the final point. The noble and learned Lord suggests that the director might welcome the protection of going to a Crown Court judge.
Well, the director and his senior staff have to take many difficult decisions all the time. They are frequently misunderstood, sometimes unpopular; it is the nature of the public prosecution service that they must make those difficult decisions, applying the evidence objectively, considering it impartially and deciding in accordance with the statutory tests of the Code for Crown Prosecutors. This case is no different.
5.45 p.m.
The Lord Bishop of Worcester: I am grateful to the noble and learned Lord the Attorney-General for giving way. I do not quite understand why the Government are reluctant to insert a judicial figure into the process, given that that would make clear that the Government regarded a decision to undertake a second investigation of an acquitted person as much more serious than one to undertake a prosecution of a person who has not yet been acquitted. The fact that the Director of Public Prosecutions is a person who can be trusted to make difficult decisions is not in question. What is in question is how we make clear, if the Bill is to be enacted, how much more seriously we regard a decision to re-open a case—it will be a serious case by dint of what the Government have in mind.
Lord Renton: Before the noble and learned Lord replies, it should be borne in mind that the amendment suggests that the leave of a judge of the Crown Court should be obtained on an ex parte application. That makes it very different from many judicial decisions, which must be made after hearing both sides.
Lord Thomas of Gresford: Before the noble and learned Lord replies, the value of the provision—my initial reticence should not be taken as a sign that we do not support the amendment—is that it makes it absolutely essential for the director and the police to make their case without going to question the acquitted person once again, so that their case does not depend on a re-questioning of the acquitted person but that everything is in place before the DPP's consent is given. That is the value of it.
Lord Goldsmith: The amendment seems to have gathered much support in all parts of the Committee—except, I make clear, the Government Benches, where we remain resistant to it.
I answer the right reverend Prelate in this way: the provisions make very clear that this is a more serious business. In order to prosecute someone, even for a serious offence, one does not need a senior police officer—a commander or assistant chief constable—to decide that investigations can be opened; one does not need the Director of Public Prosecutions personally to decide whether the case should go ahead; one certainly does not need a Court of Appeal to decide that it is a proper case before an indictment can be lifted. There is more than enough in the Bill to illustrate how importantly the Government take the need for safeguards; the safeguards are there.
Baroness Anelay of St Johns: I am grateful to all Members of the Committee, who have brought different perspectives to what I thought was a fairly modest and straightforward amendment. As the debate gathered speed, I gathered education, but also resolve. In the development of a relaxation of a rule by which we are all entering new territory, no one can be thought to have experience. However good a DPP is, this will all be new for everyone taking part. This is one safeguard that we need at the beginning of the process. I intend to test the opinion of the Committee.
5.48 p.m.
On Question, Whether the said amendment (No. 136) shall be agreed to?
Their Lordships divided: Contents, 132; Not-Contents, 112.

Division No. 3

CONTENTS

Ackner, L.

Burnham, L.

Addington, L.

Byford, B.

Allenby of Megiddo, V.

Caithness, E.

Anelay of St Johns, B.

Campbell of Alloway, L.

Astor, V.

Carlile of Berriew, L.

Astor of Hever, L.

Carlisle of Bucklow, L.

Attlee, E.

Carnegy of Lour, B.

Biffen, L.

Cavendish of Furness, L.

Blatch, B.

Chalfont, L.

Bowness, L.

Clement-Jones, L.

Bridgeman, V.

Colwyn, L.

Brooke of Sutton Mandeville, L.

Cooke of Thorndon, L.

Brougham and Vaux, L.

Cope of Berkeley, L. [Teller]

705

Craigavon, V.

Moynihan, L.

Crathorne, L.

Newby, L.

Crickhowell, L.

Newton of Braintree, L.

Denham, L.

Northbrook, L.

Dholakia, L.

Northesk, E.

Dixon-Smith, L.

Oakeshott of Seagrove Bay, L.

Eden of Winton, L.

O'Cathain, B.

Elliott of Morpeth, L.

Onslow, E.

Erroll, E.

Palmer, L.

Fearn, L.

Park of Monmouth, B.

Ferrers, E.

Patel, L.

Fookes, B.

Pearson of Rannoch, L.

Forsyth of Drumlean, L.

Peel, E.

Fowler, L.

Peyton of Yeovil, L.

Freeman, L.

Phillips of Sudbury, L.

Gardner of Parkes, B.

Plumb, L.

Geddes, L.

Prior, L.

Glentoran, L.

Roberts of Conwy, L.

Goodhart, L.

Roper, L.

Gray of Contin, L.

Rotherwick, L.

Greenway, L.

St.John of Bletso, L.

Griffiths of Fforestfach, L.

St John of Fawsley, L.

Harris of Richmond, B.

Saltoun of Abernethy, Ly.

Hayhoe, L.

Seccombe, B.[Teller]

Hodgson of Astley Abbotts, L.

Selborne, E.

Hooson, L.

Selsdon, L.

Howe, E.

Sharp of Guildford, B.

Hunt of Wirral, L.

Sharples, B.

Shutt of Greetland, L.

Hylton, L.

Simon of Glaisdale, L.

Jacobs, L.

Skelmersdale, L.

Jenkin of Roding, L.

Smith of Clifton, L.

Jopling, L.

Stern, B.

Kennedy of The Shaws, B.

Stewartby, L.

Kingsland, L

Strathclyde, L.

Lane of Horsell, L.

Swinfen, L.

Linklater of Butterstone, B.

Taverne, L.

Liverpool, E.

Tebbit, L.

Lloyd of Berwick, L.

Thomas of Gresford, L.

Lucas, L.

Thomas of Walliswood, B.

Luke, L.

Tordoff, L.

Lyell, L.

Trumpington, B.

McColl of Dulwich, L.

Tugendhat, L.

MacGregor of Pulham Market, L.

Ullswater, V.

Waddington, L.

Mackie of Benshie, L.

Wade of Chorlton, L.

McNally, L.

Wakeham, L.

Maddock, B.

Walmsley, B.

Mancroft, L.

Walpole, L.

Mar, C.

Weatherill, L.

Marlesford, L.

Wedderburn of Charlton, L.

Mayhew of Twysden, L.

Wilcox, B.

Methuen, L.

Williams of Crosby, B.

Mowbray and Stourton, L.

Worcester, Bp.

NOT-CONTENTS

Acton, L.

Campbell-Savours, L.

Ahmed, L.

Carter, L.

Amos, B.

Christopher, L.

Andrews, B.

Clark of Windermere, L.

Archer of Sandwell, L.

Clarke of Hampstead, L.

Ashton of Upholland, B.

Clinton-Davis, L.

Bach, L.

Cohen of Pimlico, B.

Barnett, L.

Corbett of Castle Vale, L.

Bassam of Brighton, L.

Crawley, B.

Berkeley, L.

Davies of Coity, L.

Bernstein of Craigweil, L.

Davies of Oldham, L.[Teller]

Blackstone, B.

Dean of Thornton-le-Fylde, B.

Blood, B.

Desai, L.

Borrie, L.

Dixon, L.

Bragg, L.

Donoughue, L.

Brooke of Alverthorpe, L.

Dormand of Easington, L.

Brookman, L.

Dubs, L.

Brooks of Tremorfa, L.

Elder, L.

Burlison, L.

Evans of Parkside, L.

706

Evans of Temple Guiting, L.

Merlyn-Rees, L.

Farrington of Ribbleton, B.

Mitchell, L.

Faulkner of Worcester, L.

Morgan, L.

Filkin, L.

Morris of Aberavon, L.

Fyfe of Fairfield, L.

Orme, L.

Gale, B.

Parekh, L.

Gibson of Market Rasen, B.

Patel of Blackburn, L.

Golding, B.

Pendry, L.

Goldsmith, L.

Pitkeathley, B.

Gordon of Strathblane, L.

Prys-Davies, L.

Goudie, B.

Puttnam, L.

Gould of Potternewton, B.

Radice, L.

Grocott, L.[Teller]

Ramsay of Cartvale, B.

Harris of Haringey, L.

Rea, L.

Harrison, L.

Rendell of Babergh, B.

Hilton of Eggardon, B.

Richard, L.

Hogg of Cumbernauld, L.

Roll of Ipsden, L.

Hollis of Heigham, B.

Rooker, L.

Howells of St. Davids, B.

L. Sainsbury of Turville, L.

Hoyle, L.

Sawyer, L.

Hughes of Woodside, L.

Scotland of Asthal, B.

Hunt of Kings Heath, L.

Shelton, L.

Irvine of Lairg, L.

Simon, V.

Islwyn, L.

Strabolgi, L.

Jay of Paddington, B.

Taylor of Blackburn, L.

Jones, L.

Temple-Morris, L.

Jordan, L.

Tomlinson, L.

King of West Bromwich, L.

Turnberg, L.

Lea of Crondall, L.

Turn of Camden, B.

Lipsey, L.

Varley, L.

Lofthouse of Pontefract, L.

Warwick of Undercliffe, B.

Macdonald of Tradeston, L.

Watson of Invergowrie, L.

McIntosh of Haringey, L.

Whitaker, B.

McIntosh of Hudnall, B.

Whitty, L.

MacKenzie of Culkein, L.

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

Marsh, L.

Massey of Darwen, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.58 p.m.
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 137:
Page 52, line 23, at end insert ", and
(c) he has sought leave from a judge of the Crown Court on an ex-parte application."
The noble Baroness said: Amendment No. 137 is consequential. I beg to move.
On Question, amendment agreed to.
Clause 78, as amended, agreed to.
Clause 79 [Urgent investigative steps]:
[Amendment No. 137A not moved.]
Clause 79 agreed to.
Clause 80 agreed to.
Clause 81 [Bail and custody before application]:
[Amendments Nos. 137B and 137C not moved.]
Clause 81 agreed to.
Clause 82 [Bail and custody before application]:
[Amendment Nos. 137D not moved.]
Clause 82 agreed to.
Clauses 83 to 89 agreed to.
Baroness Anelay of St Johnsmoved Amendment No.137E.
After Clause 89, insert the following new clause—

Criminal Justice Bill

  CHAPTER A1 89A CRIMINAL EVIDENCE RULES
  (1) There are to be rules of court (to be called "Criminal Evidence Rules") governing the use of evidence in the criminal courts.

  (2) Criminal Evidence Rules are to be made by a committee known as the Criminal Evidence Rules Committee.

  (3) The power to make Criminal Evidence Rules includes power to make different provision for different cases or different areas, including different provision—

  (a) for a specified court or description of courts, or

  (b) for specified descriptions of proceedings or a specified jurisdiction.

  (4) Any power to make or alter Criminal Evidence Rules is to be exercised with a view to securing that—

  (a) the criminal justice system is accessible, fair and efficient, and

  (b) the rules are both simple and simply expressed."

  The noble Baroness said: It is fortuitous that the noble Baroness, Lady Scotland, is the Minister responding to this group of amendments, because she will recall the time that we spent on the Courts Bill, when the Government introduced several clauses that set into statute rules committees. The short explanation of our purpose is to ask the Government to explain why a rules committee with regard to evidence will not also be set in statute. I beg to move.
  Baroness Scotland of Asthal: I am happy to respond, and will try to do so fully, so that I can explain how we will make the provision work.
  Amendment No. 326, which has not yet been printed, in the names of the noble Lord, Lord Kingsland, and the noble Baroness, would establish a criminal evidence rules committee. The amendment is based on provision in the Government's Courts Bill—as the noble Baroness said—for a criminal procedure rules committee. However, the remit for the committee proposed by this amendment would be rules of court governing the use of evidence. We fear that this amendment may be based on a misunderstanding, although from what the noble Baroness said, she may be seeking only clarification.
  We are entirely sympathetic to the proposal that rules of court should be made by a rules committee in future. However, that is already the effect of provisions in the Courts Bill, as I have mentioned. That Bill fully empowers the new criminal procedure rules committee to make rules of court for criminal proceedings.
  Rules of court deal with a level of detail about practical and procedural matters that it would be inappropriate to include in primary legislation. They therefore cover the detail of, for example, notice of appeals to the Crown Court, the jurisdiction to award costs and applications for witness' summons. They also cover rules in support of evidential matters—rules
  708
  governing applications for leave to adduce previous sexual history evidence under Section 41 of the Youth Justice and Criminal Evidence Act 1999, applications for special measures directions for witnesses also under the 1999 Act and applications for evidence to be given through live link from abroad under Section 32 of the Criminal Justice Act 1988.
  Provision for rules of court relating to evidence are also made in this Bill—in Clause 104, for example, which provides for rules to be made for a defendant to give advance notice of his intention to rely on the bad character evidence of a co-defendant. Clause 125 also provides for rules to be made in relation to notice requirements when a party wishes to adduce hearsay evidence. Those are all matters that, in the future, will properly fall under the scope of the criminal procedure rules committee. That strikes the right balance in allowing appropriate matters of practice and procedure to be dealt with by the new committee, while maintaining Parliament's current role in relation to changes in the substantive law.
  Therefore, although I absolutely agree with the thrust of the amendment that rules of court should be dealt with by a rules committee, I do not consider that it is necessary for a separate committee to be set up for that to be achieved. I do not believe that that was what the noble Baroness proposed. I think that she just wanted me to confirm that the hours and hours that we spent on the Courts Bill will not be wasted. I can assure her that they will not. I hope that that explanation of the role of the new criminal procedure rules committee reassures noble Lords and that the noble Baroness will feel able to withdraw the amendment.
  Baroness Anelay of St Johns: I am grateful to the Minister because she has been able to provide the further clarification and certainty for which I hoped. We spent goodness knows how many hours and days on the Courts Bill, as the Minister said. The difficulty is that, when that Bill returns to us from another place, we will not have the opportunity to ask the questions that I just asked with regard to the criminal procedural rules committee, because we did not have this Bill before us when we debated that Bill, so I could not ask questions within that context—hence the rather peculiar reasons for tabling these amendments today.
  It is also important that the Minister's clarification and explanation are available to those practitioners who will read this Bill and will want to see how Clause 104 in particular will ultimately operate. I am grateful to the Minister and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 137F to I37J not moved.]
  Clause 90 ["Bad character"]:
  Lord Kingsland Lord Kingsland moved Amendment No. 138:
  Page 60, line 38, leave out "or tends to show"
  The noble Lord said: the amendment concerns—
  Noble Lords: Hear, hear.
  Lord Kingsland: The amendment concerns the expression "tends to show" in Clause 90(1), Part 11 of the Bill. The relevant part of clause states:
  "For the purposes of this Chapter, evidence of a person's bad character is evidence which shows or tends to show that…he has committed an offence. or…he has behaved, or is disposed to behave, in a way that, in the opinion of the court, might he viewed with disapproval by a reasonable person".
  The intention of the amendment is to probe the expression "tends to show". It seeks to probe not only the degree of probability that the Government have in mind but whether its scope could include an acquittal, in circumstances in which it was admitted that an offence was committed other than that on the indictment. I beg to move.
  Lord Renton: I warmly support the amendment. In criminal cases, those concerned should never judge things on a balance of probability. All the time, proof by the prosecution must put matters beyond doubt. "Tends to show" would raise doubts. Therefore, my noble friend Lord Kingsland is quite right.
  Lord Mayhew of Twysden: I support the amendment because the clause permits the admission of evidence of behaviour as evidence of had character in circumstances that are dangerously tentative. The words "tends to show" perform the greater part of the mischief. Although they are not the whole of it, they are bad enough.
  Let us suppose that we, as prosecutors, are addressing the defendant and we are explaining our attitude to this part of our case. We might say that we rely on this aspect of the defendant's behaviour because it tends to show that he or she is disposed to behave in a way that,
  "might be viewed with disapproval by a reasonable person".
  That would have to be,
  "in the opinion of the court"
  in this clause. However, how can one be more tentative than to conjure up a concept that "tends to show" not that the defendant has behaved in the way alleged, but that he is disposed to have behaved in a way that it suits the Crown to allege, and which might—not must—be viewed with disapproval by a reasonable person?
  I have not been sufficiently diligent to look up whether the expression "tends to" is to he found in the criminal law. It may be that, in proper circumstances, it is, but it certainly ought not to appear here, for the reasons that the noble Baroness has given and I have sought to enhance.
  Lord Thomas of Gresford: We support the amendment because we do not understand who will decide. Presumably, it is the judge, in the first instance, because there is a reference to,
  "the opinion of the court".
  710
  The judge to whom applications for the admission of evidence of bad character are made must carry out an inquiry into whether the evidence that is relied on by the prosecution,
  "tends to show that he…is disposed to behave, in a way that…might be viewed with disapproval by a reasonable person".
  not by the judge. The judge is set an almost impossible task. The provision could refer to all sorts of evidence that may be before the court.
  The most relevant matter—the noble Lord, Lord Kingsland, briefly referred to it—is whether the evidence tends to show that a person,
  "is disposed to behave, in a way that…might be viewed with disapproval",
  if he has faced a trial and been acquitted of an offence. If evidence of acquittal is to be introduced as evidence of bad character, we have run a coach and horses through the entire corpus of the English criminal law as we have known it over centuries.
  Lord Carlile of Berriew: I too support the amendment. Criminal cases are tried by an evaluation of evidence. When the evidence is given, the jury is instructed in legal directions by the judge on how to evaluate certain types of evidence. It would be interesting to know whether the Government have asked the judges who draft the specimen directions for the Judicial Studies Board whether they have attempted to produce a specimen direction whereby a jury could have explained to it how it is supposed to evaluate something that is not evidence, in the sense in which that word is generally understood.
  Will the noble Baroness tell us how the Government expect juries to be directed to evaluate such material? In common with others who spoke, I suggest that it cannot be done in a sensible and just way.
  Lord Clinton-Davis: I hope that my noble friend will think again about the provision. I speak in the main as a supporter of the Government but the provision is inequitable. All I ask is that my noble friend thinks about it again.
  I have been much persuaded by the arguments adduced by the Opposition and by the Liberal Democrats. A prima facie case has been made that the matter should be thought about again and brought back to the House on Report.
  The Lord Bishop of Worcester: I too hope that the amendment will be made. The words "bad character" are difficult, when applied to the subsection. There are people who behave in ways that might be thought likely to be,
  "viewed with disapproval by a reasonable person",
  but who do so only in certain circumstances. I think, for example, of people who behave in certain ways under extreme provocation but who would not behave in those ways otherwise.
  It is extremely difficult to know how to decide whether certain sorts of behaviour tend to show something; that is, are witness to a tendency to behave in such a way in all circumstances or, in particular, in

  711
  circumstances relevant to the issue under trial. It is a doubtful characteristic to introduce by way of mere words, such as "tends to show".
  6.15 p.m.
  Lord Borrie: It is, in a way, unfortunate that we are discussing the amendment in the context of Clause 90. As everybody has said in the debate so far, the phrase "bad character" is given an extraordinarily wide definition in Clause 90. I refer to what the noble Lord, Lord Renton, said: the key thing is whether evidence of bad character is admissible. For that, we must see Clause 92, for the non-defendant's bad character, and Clause 93, for the defendant's bad character. There is a list of requirements that must be satisfied for the evidence of so-called bad character to be admissible in court. That is what is important.
  Lord Wedderburn of Charlton: Is my noble friend speaking for or against the amendment?
  Lord Borrie: I was trying to be helpful.
  Lord Carlisle of Bucklow: Like the noble Lord, Lord Borrie, I had intended to reserve anything that I wanted to say until we debated Clauses 92 and 93. However, as we have gone into the area already, I must say, without hesitation, that this is the most dangerous part of the Bill. It is thoroughly bad, and I hope that it will be thrown out as a whole. However, I shall stick to the amendment for the moment.
  How vague can we be? The Bill refers to evidence that "tends to show" that a person has behaved in a way that,
  "in the opinion of the court, might be viewed with disapproval by a reasonable person".
  How on earth is a judge to explain to a jury that it must be satisfied that a piece of evidence "tends to show" that such behaviour,
  "might be viewed with disapproval by a reasonable person",
  not by them or by anybody else, but, apparently, by "a reasonable person"? With respect, I think that the whole clause is nonsense.
  Lord Ackner: What about the person who can be shown to have set out to commit an offence but then to have decided that he will not, after all, because something has appealed to his conscience? He has behaved in a way that showed that he was disposed but decided to change that. Is he to have his character put in in that way? Once one is disposed, can one not cancel that disposition?
  Baroness Scotland of Asthal: First, I add my voice to those of noble Lords who said, "Hear, hear", when the noble Lord, Lord Kingsland, reappeared at the Dispatch Box. I hope that the House will allow me to say what pleasure it gives us to see him back securely in his place.
  Noble Lords: Hear, hear.
  Baroness Scotland of Asthal: The noble Lord was as telegraphic in his delivery as ever, but some of the
  712
  issues that have been raised by noble Lords have widened the debate. It may be helpful if I give a broader exposition of the Government's position, to respond, in particular, to the import of what the noble Lord, Lord Kingsland, asked for. He said that it was a probing amendment.
  Before I go into detail, I shall sound a note of caution. The noble Lord, Lord Thomas of Gresford, said that admitting evidence of acquittal to court hearings would drive a coach and four through current provisions. That was echoed by the noble Lord. Lord Carlile of Berriew, and others. I should remind the House that, in the case of R v Z, which is part of our jurisprudence, it is already permissible.
  It is already the case that evidence relating to charges for which the defendant has been acquitted can be admitted into evidence. That follows the ruling made by the House of Lords in the case of R v Z in 2000. Our proposals preserve the effect of that judgment. It will therefore be possible to admit evidence from previous cases if it is relevant to the current charge, even if the defendant had been acquitted in the previous proceedings. The evidence might be relevant, for example, to lend weight to the victim's account in the current case or to give the lie to the defendant's explanation. However, the court will be able to exclude such evidence if its prejudicial effect outweighs its probative value.
  Lord Kingsland: I apologise to the noble Baroness for intervening so early in her response. Perhaps she could clarify something about the recent House of Lords decision on acquittals. In Clause 90(1), the expression "tends to show", under subsection (1)(a), relates to the phrase,
  "he has committed an offence".
  I assume that it would be improper, or not intended by the Government, under Clause 90(1)(a), that an acquittal be adduced in evidence: it would apply only to Clause 90(1)(b).
  Baroness Scotland of Asthal: The noble Lord is right, but it is important that we start with that point. It is clear that there seems to be an imprecise understanding of what our current jurisprudence actually holds. It is important for us to have clarity in relation to these matters because it is possible to become unnecessarily excited. I am sure that there is sufficient to become excited about, but we should restrain ourselves to those matters which deserve it.
  This is an extremely important part of the Bill; namely, the new statutory rules for the admission of evidence of bad character. Therefore, I do not detract from anything said by the noble Lord, Lord Carlile, the noble and learned Lord, Lord Mayhew, or others in that regard. At this stage, we are concerned with the ambit of the new rules; that is, what evidence should have its admissibility determined under this scheme?
  One of the aims of this part of the Bill is to achieve a degree of clarity and certainty in an extremely complex area of law. We therefore wish to establish a clear scope to the scheme. Clause 90 sets out what evidence

  713
  is covered by the new rules by providing a statutory definition of evidence of had character. All Members of the Committee who have spoken will know well that currently there is no statutory definition of "bad character".
  Amendment. No. 138, standing in the names of the noble Lord, Lord Hodgson of Astley Abbots, and the noble Baroness, Lady Anelay of St Johns, and Amendment No. 139, standing in their names and that of the noble Lord, Lord Dholakia, both seek to restrict this definition. The combined effect of those two amendments would be to limit the definition of bad character evidence so that the evidence must show that the defendant has committed an offence. Essentially, that would mean evidence of previous convictions.
  It might be helpful if I deal with the general issue of why we consider it important to have a wide definition relevant to both amendments, and then with the particular issues raised by Amendment No. 138. I think it was the noble Lord, Lord Renton, who mentioned the wide definition, but it was echoed by a number of other Members of the Committee.
  Current law already recognises that evidence going beyond previous convictions should be capable of admission in appropriate circumstances. We wish to ensure that that can continue to be the position. It would be a grave mistake to limit the law in the way suggested—a point to which I shall turn shortly.
  I should however emphasise that the definition of had character in Clause 90 sets out only what evidence is covered by the scheme; it does not make this evidence admissible. Admissibility is determined by Clause 92, in the case of non-defendants, and Clause 93, for defendants. The sole purpose of Clause 90 is to define "bad character"—the details of which I am sure we shall discuss in due course, and which I can anticipate. It does not impinge on whether that bad character will be admissible in evidence. Clauses 92 and 93 set out clearly the circumstances where this evidence can be adduced and appropriate safeguards. Therefore, a wide definition is desirable. Evidence that is caught by the definition can be admitted only where it meets the requirements laid out in the remainder of the scheme.
  In particular, we do not wish to suggest, by narrowing the definition, that such evidence falls outside statutory rules. It is important to recognise that such evidence, while capable of being highly probative and therefore properly admissible in appropriate circumstances, might also be very prejudicial. It is therefore important that particular rules should apply to its admissibility.
  On that, it is important to remember that the new statutory scheme is intended to deal comprehensively with evidence of bad character. To that end, Clause 91 abolishes the current common law rules in this area, and current statutory provisions are also repealed. So we are starting from scratch. As a result, the common law rule which excludes the admission of evidence of misconduct is swept away, as well as the current
  714
  exceptions to that prohibition, such as the similar fact rule. I note that Her Majesty's loyal Opposition has not put its name to amendments which would retain the current law. Members of the Committee will know that there has been a great deal of debate about lack of precision and that we now need this comprehensive overhaul of the system.
  In the absence of particular rules to regulate the admission of this potentially prejudicial evidence, it is essential that it is covered by the scheme. By drawing the definition widely, we ensure that it is admitted only when appropriate and subject to the safeguards that apply under the scheme.
  Lord Clinton-Davis: So why does my noble friend not include the words, "subject to Clauses 92 and 93"?
  Baroness Scotland of Asthal: We shall deal with the precise nature of Clauses 92 and 93, but their whole purpose is to constrain Clause 90. The way in which it is drafted makes that clear. Clause 90 gives a definition of "bad character". Clause 91 abolishes the common law rules which currently restrain the admissibility of bad character. Clause 92 gives the basis upon which bad character evidence will be admitted in the case of a non-defendant. Clause 93 gives the basis on which bad character for defendants will be admissible. If it falls outside Clauses 92 and 93, it will not be admissible. We believe that that makes it clear.
  Lord Clinton-Davis: I am sorry; no doubt, I am being obtuse. My noble friend has not replied to my criticism. Clauses 92 and 93 are all important in defining the non-defendant's bad character and the defendant's bad character. Would it not be an improvement—that is why I intervened before—if the noble Baroness were to refer in Clause 90 to those particular provisions?
  6.30 p.m.
  Baroness Scotland of Asthal: I am more than happy to consider that suggestion, but perhaps I may invite my noble friend to turn to Clause 92(1). A definition of "bad character" is given in Clause 90, and if we look further to Clause 92(1) it states that:
  "In criminal proceedings evidence of the bad character"—
  to which we have already referred as defined in Clause 90—
  "of a person other than the defendant is admissible if and only if".
  The circumstances are then set out, in accordance with the normal precision of drafting.
  Turning to Clause 93(1) on page 62, something very similar is set out:
  "In criminal proceedings evidence of the defendant's bad character is admissible if, but only if".
  The basis on which evidence of that bad character may be admissible is thus made clear. So I hope that my noble friend will agree that the way the legislation is drafted is how he would wish it.

  715
  I see that the noble and learned Lord, Lord Mayhew, is anxious to intervene. I shall give way.
  Lord Mayhew of Twysden: I am grateful to the noble Baroness. All that she has said is helpful, but as yet not quite helpful enough. She has explained that Clauses 92 and 93 set out the rules respectively for the admissibility of a non-defendant's bad character and a defendant's bad character. However, she has not yet addressed our criticism of what the Act defines as "bad character". Our criticism is that, while I hesitate to use the word "absurdly", the Bill is grotesquely tentative and vague.
  The point has been made. It is not enough to say that it is important to have a scheme; of course it is. It is not enough to point out the rules set out under Clauses 92 and 93 unless the complaint of what is defined as "bad character" is addressed. That is what we hope to hear.
  Lord Carlile of Berriew: Pursuant to the point made by the noble and learned Lord, Lord Mayhew of Twysden, can the noble Baroness explain why it is necessary at all to include a definition of "bad character" in the Bill? Surely the question asked by the court is this: is character relevant? Does it matter if it is bad character or good character? Surely the clauses should contain provisions that set out when "character" is relevant.
  I have a strong suspicion that the inclusion of "bad character" as defined is more a response to media pressure than to anything else. I also strongly suspect that if the Government continue to try to define "bad character" they will run into the problem governments always encounter when they try to define abstract qualities.
  Baroness Scotland of Asthal: I believe that I have answered the question, but I am more than happy to clarify the position. The noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Carlile, have asked why this is drawn so widely. We are doing so because we have to catch as much evidence as we can which could then be made subject to the provisions of Clauses 92 and 93. If we were to draw this in a more narrow fashion, much of the evidence on which dispute before the court is likely to arise as regards whether the prejudicial value is more weighty than the probative quality may not be caught within the scheme.
  The whole point is that we are getting rid of the old common law rules and, therefore, the break that they provide will not be in place. We need to cast the net in relation to bad character very wide indeed so that the rules that limit the admissibility of such bad character apply to the biggest possible catchment, as it were, of evidence. We need the wide definition. That is the purpose here.
  I had assumed that the intention of the amendment and, for that matter, Amendment No. 139, which we shall discuss more fully, is to restrict the kind of bad
  716
  character evidence that can be admitted. I have just outlined why we think that that would be highly undesirable. While evidence of previous convictions may well be the kind of evidence that is most likely to be adduced, it is important to recognise, as does the current law, that evidence going wider than previous convictions can have probative value and that, in appropriate circumstances, this evidence should be capable of being admitted.
  I should therefore like to turn to the kind of evidence that is covered by the reference to evidence that "tends to show" that a person has committed an offence or acted in a particular way. This is the issue raised by, among other noble Lords, the right reverend Prelate the Bishop of Worcester. This part of the definition would be removed by Amendment No. 138. The mischief that it seeks to address is that, in particular in the case of criminal conduct, if a person has not been convicted of an offence, it might be difficult to say that evidence relating to that charge shows that he has committed an offence; yet the evidence might be highly relevant.
  Examples of where it might be appropriate to admit such evidence include circumstances where evidence on a number of charges being tried concurrently is cross-admissible in respect of the other charges. It might also be appropriate to admit evidence relating to charges on which the defendant was acquitted. as I have already cited in the example of R v Z. It would be unfortunate if an argument were to be accepted that, because a person has not actually been convicted of the offence, it cannot be said that the evidence shows that he has indeed committed such an offence and it is therefore excluded.
  That would represent a severe restriction on what is currently admissible. Evidence of the kind described can be admitted under the common law rules and, indeed, many of the landmark cases in the development of the "similar fact" rule involve evidence of this kind. I am sure that those noble Lords with experience of the criminal law will know very well the cases of Boardman in 1974, DPP v P in 1991 and R v H in 1995. Those are all examples of important cases in the development of the common law similar fact rule and all involve admission of evidence other than previous convictions. Those three cases were all concerned—
  Lord Carlile of Berriew: With respect to the noble Baroness and deferring to the presence of the noble and learned Lord, Lord Mackay of Clashfern, how on earth can she cite DPP v P in support of Clause 90(1)(b)? DPP v P does not offer the remotest justification for this kind of provision. No doubt I shall be subject to harsh correction if I get this wrong, but DPP v P provides for evidence to be admitted if it is probative; that is, relevant and probative, not of the bad character of the accused, but of the offences with which he has been charged: the index offences. That is a million miles from the citation that the noble Baroness is trying to make.
  Lord Lloyd of Berwick: I support entirely what has just been said by the noble Lord, Lord Carlile. The same applies to the case of R v Z, referred to by the

  717
  noble Baroness. That case is referred to in the Explanatory Notes and I have taken the opportunity to look at it. It really has nothing to say in support of a wide definition. R v Z was a case where the argument concerned double jeopardy; that is, whether the previous acquittal meant that the person could not be tried again. The evidence was admissible on ordinary similar fact evidence grounds as established in DPP v P and in subsequent cases with which I know the noble Baroness is familiar.
  Baroness Scotland of Asthal: I have sought to respond to the questions raised about the species of evidence which goes beyond the proof of conviction. A number of noble Lords have pointed out that we can understand the admissibility of conviction, but not other evidence which goes more widely and "tends to show".
  My whole point here is that if one looks at DPP v P, Boardman and R v Z, they go beyond mere conviction and are included in additional information which the court deemed it proper to admit into evidence. They would fall into the category of material which tended to show—as similar fact evidence tends to show—but is not evidence of an actual offence. The noble Lord will know the case of Boardman particularly well for that reason. That was the whole point of adducing the similar fact evidence. It was not that the person had been convicted and found guilty of previous offences, but the similar fact evidence from those earlier issues was important to verify guilt.
  I am not talking about the definition; I am dealing quite clearly wall the argument that species of evidence that fall outside convictions should be excluded. So if you exclude the words "tends to show" and you abolish under Clause 91 the previous rules under the common law, you are left with issues such as similar fact which would otherwise be excluded.
  I know perfectly well that is not what the noble and learned Lords, Lord Lloyd and Lord Mayhew, intend. Indeed, I know that even the noble Lord, Lord Carlile, who sits on the Liberal Democrat Benches, would not wish to see that. I am seeking to explain why the regime of "tends to show" is cast more widely than the simple stricture of having to prove a conviction and no more. That is why these cases are important. I see the noble and learned Lord, Lord Lloyd, nodding in understanding if not in agreement.
  Lord Lloyd of Berwick: In sympathy.
  Baroness Scotland of Asthal: In sympathy? I shall take it as agreement. I shall take what I can get.
  As noble Lords will know, the three cases I have cited were all concerned with multiple allegations where the evidence of one complainant was held to be admissible in respect of other charges. Indeed, the first major attempt at laying down similar fact principles was the case of Makin as far back as 1894. That case also involved evidence of had character other than previous convictions. It involved a charge of the murder of a baby and evidence that the bodies of 13
  718
  other babies had been found buried in the garden of the defendant's house and previous properties was admitted to rebut a defence of accidental death.
  This strand of the definition also covers evidence relating to charges on which the defendant has been acquitted. I have already mentioned the case of R v Z. If Amendment No. 138 were to he accepted, it would remove from the definition much valuable evidence that is already recognised as being admissible under the current law. Such evidence should be covered by the scheme and it is important that the definition should ensure that that is the case.
  I hope that that explanation of this part of the clause has reassured noble Lords that the amendment can be withdrawn. I look forward with joy to the debate on Clauses 92 and 93.
  6.45 p.m.
  Lord Thomas of Gresford: As I understand the noble Baroness, she is saying that the words "tends to show" are the statutory means of dealing with similar fact evidence. I have not understood that. It is a very interesting concept. I suggest that the Minister goes away and considers whether, if similar fact evidence is to be given a statutory form, it should appear specifically in the Bill so that we know what we are talking about. I had thought that,
  "tends to show that [a person]…is disposed to behave, in a way that…might be viewed with disapproval by a reasonable person",
  could cover someone who went clubbing at night and stayed in bed until one o'clock the following day. But if it is supposed to be similar fact evidence, let us have it.
  Lord Wedderburn of Charlton: I put this point to my noble friend the Minister with great humility because it breaks a self-denying ordinance that I have imposed upon myself. Although I am a lawyer I am not mainly experienced in criminal law, and with such august authorities in the Committee it is perhaps intemperate of me to put even a small point.
  I have no similar experience of the criminal law hut I have a great deal of experience of what people say, which tends to show that I am disposed to behave in a manner which might be viewed with disapproval by what they call "reasonable persons". In fact, I have spent quite a large part of my life showing to those who claim to be reasonable persons within that formula that their view could perhaps be challenged.
  I have not gone clubbing to the hours referred to by the noble Lord, or usually stayed in bed, but I have equivalent experiences, with which I shall not bore my noble friend on the Front Bench. Does she realise that this is not about going beyond convictions? I have listened very carefully—I do not think we are discussing Amendment No. 139—and this is about entering new territory where, without bothering to read all the words, "tends to show" is really quite extravagant.
  Baroness Scotland of Asthal: I do not believe that it is. I make no comment on my noble friend's

  719
  Behaviour—perish the thought—but he can be reassured that even if he did have a character which tended to show to a reasonable person what we have just outlined, it would be admissible in evidence only if it fell within Clause 92, if he was a witness in a case, or Clause 93 if he was a defendant. So my noble friend would have the security of knowing that the limitations in Clauses 92 and 93 in respect of any of that information or evidence would bite.
  Lord Morris of Aberavon: Perhaps the noble Baroness can ease my mind on the point of the phrase "tends to show". Does it seek to express the common law as regards similar facts as it is now, or does it extend it?
  Baroness Scotland of Asthal: It seeks to encapsulate the common law as it currently stands and also to extend it in a way that gives greater clarity and modernises and updates the position. For example, it is right that much of what is in Clause 93 is already reflected in some detail in the jurisprudence, the case law, with which we have had to deal for many years.
  Noble Lords—particularly those who have the wonderful pleasure of mastering Archbold —will know that the section on bad character is quite extensive and that the case law is quite complex. Practitioners should be forgiven for not knowing each and every nuance of it. For example, there are many who are not familiar with R v Z, of which we have had perhaps a mild demonstration today.
  Lord Kingsland: I find that in this—dare I say it?—distastefully populist Bill there are many poisoned chalices. Chapter 11 contains pure strychnine. I have every sympathy with the Minister. She said in the course of her response to my amendment that clarity and certainty were crucial in this complex area of the law. If that is so, I am bound to say that the Government have got off to a very bad start in Clause 90.
  I gather that the Minister is not inclined to accept the generous offer of the noble Lord, Lord Clinton, to go away and reconsider.
  Lord Clinton-Davis: Lord Clinton-Davis.
  Lord Kingsland: Lord Clinton-Davis. I beg his pardon most humbly. I certainly ought to have known that. Is that so?
  Baroness Scotland of Asthal: This, of course, is Committee, and I hope to be able to explain the Government's scheme fully and comprehensively to noble Lords so there can be a better understanding about it. Of course I will listen very carefully to everything that is said, and we will reflect upon it before the Bill comes back on Report. That is in relation to each and every clause. If the noble Lord is asking whether we will specifically resile from any of it,
  720
  I, like noble Lords, will have to listen to all the debate and give it some mature consideration, but I can certainly give the noble Lord no promise.
  Lord Kingsland: I am most grateful to the noble Baroness. Relating that to the contents of her response to what noble Lords have said, I feel compelled to test the opinion of the Committee.
  6.51 p.m.
  On Question, Whether the said amendment (No. 138) shall be agreed to?
  Their Lordships divided: Contents, 113; Not-Contents, 90.

  Division No. 4

  CONTENTS

  Ackner, L.

  Kingsland, L.

  Addington, L.

  Lane of Horsell, L.

  Allenby of Megiddo, V.

  Linklater of Butterstone, B.

  Anelay of St Johns, B.

  Liverpool, E.

  Arran, E.

  Livsey of Talgarth, L.

  Astor, V.

  Lloyd of Berwick, L.

  Astor of Hever, L.

  Luke, L.

  Barker, B.

  Lyell, L.

  Blatch, B.

  McColl of Dulwich, L.

  Bowness, L.

  Mackay of Clashfern, L.

  Bridgeman, V. [Teller]

  Mc Nally, L.

  Brooke of Sutton Mandeville, L.

  Maddock, B.

  Brougham and Vaux, L.

  Marlesford, L.

  Burnham, L.

  Mayhew of Twysden, L.

  Byford, B.

  Methuen, L.

  Carlile of Berriew, L.

  Montrose, D.

  Carlisle of Bucklow, L.

  Moynihan, L.

  Carnegy of Lour, B.

  Newby, L.

  Chalfont, L.

  Newton of Braintree, L.

  Chalker of Wallasey, B.

  Noakes, B.

  Colwyn, L.

  Northbrook, L.

  Cope of Berkeley, L.

  Northesk, E.

  Craig of Radley, L.

  Oakeshott of Seagrove Bay, L.

  Craigavon, V.

  Onslow, E.

  Crathorne, L.

  Park of Monmouth, B.

  Denham, L.

  Pearson of Rannoch, L.

  Dholakia, L.

  Peel, E.

  Dixon-Smith, L.

  Elliott of Morpeth, L.

  Razzall, L.

  Fearn, L.

  Renton, L.

  Ferrers, E.

  Roberts of Conwy, L.

  Fookes, B.

  Roper, L.

  Forsyth of Drumlean, L.

  Rotherwick, L.

  Fraser of Carmyllie, L.

  St John of Fawsley, L.

  Freeman, L.

  Saltoun of Abernethy, Ly.

  Geddes, L.

  Seccombe, B. [Teller]

  Glentoran, L.

  Selborne, E.

  Goodhart, L.

  Selsdon, L.

  Goschen, V.

  Sharp of Guildford, B.

  Gray of Contin, L.

  Sharples, B.

  Habgood, L.

  Shutt of Greetland, L.

  Harris of Richmond, B.

  Smith of Clifton, L.

  Hereford, Bp.

  Soulsby of Swaffham Prior, L.

  Hodgson of Astley Abbotts, L.

  Stern, B.

  Hooper, B.

  Stewartby, L.

  Howe, E.

  Strathclyde, L.

  Hunt of Wirral, L.

  Tebbit, L.

  Hylton, L.

  Thomas of Gresford, L.

  Jenkin of Roding, L.

  Thomas of Walliswood, B.

  Jopling, L.

  Tordoff, L.

  Kennedy of The Shaws, B.

  Trumpington, B.

  Kilclooney, L.

  Turner of Camden, B.

  721

  Ullswater, V.

  Walpole, L.

  Waddington, L.

  Wedderburn of Charlton, L.

  Wakeham, L.

  Williams of Crosby, B.

  Wallace of Saltaire, L.

  Winchester, Bp.

  Walmsley, B.

  Worcester, Bp.

  NOT-CONTENTS

  Acton, L.

  Gould of Potternewton, B.

  Ahmed, L.

  Grocott, L.[Teller]

  Amos, B.

  Hilton of Eggardon, B.

  Andrews, B.

  Hollick, L.

  Archer of Sandwell, L.

  Hollis of Heigham, B.

  Ashton of Upholland, B.

  Howells of St. Davids, B.

  Bach, L.

  Hughes of Woodside, L.

  Bassam of Brighton, L.

  Hunt of Kings Heath, L.

  Berkeley, L.

  Islwyn, L.

  Bernstein of Craigweil, L.

  Jay of Paddington, B.

  Blackstone, B.

  Jones, L.

  Borrie, L.

  King of West Bromwich, L.

  Bragg, L.

  Lea of Crondall, L.

  Brooke of Alverthorpe, L.

  Lipsey, L.

  Brookman, L.

  Lofthouse of Pontefract, L.

  Brooks of Tremorfa, L.

  Macdonald of Tradeston, L.

  Burlison, L.

  McIntosh of Haringey, L.

  Campbell-Savours, L.

  McIntosh of Hudnall, B.

  Carter, L.

  MacKenzie of Culkein, L.

  Christopher, L.

  Massey of Darwen, B.

  Clark of Windermere, L.

  Merlyn-Rees, L.

  Clarke of Hampstead, L.

  Morgan, L.

  Cohen of Pimlico, B.

  Palmer, L.

  Corbett of Castle Vale, L.

  Patel of Blackburn, L.

  Crawley, B.

  Pendry, L.

  Davies of Coity, L.

  Pitkeathley, B.

  Davies of Oldham, L.[Teller]

  Prys-Davies, L.

  Dixon, L.

  Radice, L.

  Donoughue, L.

  Rea, L.

  Dormand of Easington, L.

  Rendell of Babergh, B.

  Dubs, L.

  Renwick of Clifton, L.

  Elder, L.

  Sainsbury of Turville, L.

  Erroll, E.

  St. John of Bletso, L.

  Evans of Parkside, L.

  Sawyer, L.

  Evans of Temple Guiting, L.

  Scotland of Asthal, B.

  Falconer of Thoroton, L. (Lord Chancellor)

  Simon, V.

  Temple-Morris, L.

  Farrington of Ribbleton, B.

  Tomlinson, L.

  Faulkner of Worcester, L.

  Turnberg, L.

  Filkin, L.

  Varley, L.

  Gale, B.

  Warwick of Undercliffe, B.

  Gibson of Market Rasen, B.

  Whitty, L.

  Golding, B.

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

  Goldsmith, L.

  Gordon of Strathblane, L.

  Winston, L.

  Goudie, B.

  Woolmer of Leeds, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  Lord Kingsland Lord Kingsland moved Amendment No. 139:
  Page 60, line 40, leave out paragraph (b).
  The noble Lord said: As it turned out, much of the debate with respect to Amendment No. 139 has already taken place. Could I expedite matters by asking the Minister whether she would be prepared, in the light of the previous vote, to undertake to reconsider the wording of Clause 90(1)(b) and to return with a much more specific expression that would cover the circumstances in which bad character could be evidence in the Bill and, therefore, subject to the rules on admissibility? I beg to move.
  Baroness Scotland of Asthal: We shall of course consider the consequences of the previous vote. The point of casting the net wide on subsection (1)(b) was so that as much as possible could be caught and bound by Clauses 92 and 93. We did not wish it to be argued, particularly if were moved Clause 91, that proof of bad character was outside the statutory scheme, therefore outside Clauses 92 and 93, so that the restrictions placed on admissibility did not catch that evidence. That would mean that the balance that the court would have to strike to ascertain its probative value would somehow be avoided.
  Of course, as is always the case, we shall go away and consider our position. However, the whole purpose of casting the net so wide was so that we would catch as much as possible, so that the process would be subject to the constraint and restraint that we seek to impose in Clauses 92 and 93.
  Lord Kingsland: I thank the Minister for her reply. Perhaps I could explain why I continue to be worried by the inaccuracy of Clause 90(1)(b).
  The noble Baroness has referred to the restraints in Clauses 92 and 93. Clause 92 refers to the non-defendant's bad character while Clause 93, which is the more important one, refers to the defendant's bad character. The difficulty is that Clause 93 contains very few constraints on the ability of the prosecution to put bad character in evidence. In Clause 93(1)(a) to (11), five of those eight sub-categories go in automatically. Only three are subject to the discretion of the judge, and then only if the defence applies and invites the judge to exercise that discretion. That is a world away from the existing situation.
  The reason, therefore, why the definition of bad character is so important in Clause 90 is because the protection for the defendant in Clause 93 has become so weak—as a result of the way in which the Government, themselves, have drafted the Bill. Therefore, I must ask the Minister for a clear and specific undertaking on Clause 90(1)(b) if I am to avoid asking again for the opinion of the Committee. Could the Minister say, very telegraphically, whether she is prepared to give me that undertaking? If she is not prepared to give me that undertaking, I shall ask for the opinion of the Committee.
  Lord Renton: It is a great advantage to have my noble friend with us again, not only because he is always bright and lucid but because on this matter he has emphatically pointed out how useless the expression is that he wants left out. Can Members of the Committee imagine, when deciding on criminal responsibility, using the expression, "disposed to behave"? What can it mean? It can only be very vague. And how are we to interpret,
  "might be viewed with disapproval by a reasonable person"?
  It could be said,
  "even by a reasonable person".
  Those sorts of expression must not be allowed to remain in the Bill.
  Baroness Scotland of Asthal: The only undertaking that I can give is that we shall, of course, look at the

  723
  matter. I do not know whether the noble Lord, Lord Kingsland, wishes to hear anything more from me. I note what he says in relation to Clause 93, but invite his attention to subsections (3) and (4). Subsection (3) states:
  "The court must not admit evidence under subsection (1)(d),(e) or (h) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
  Subsection (4) states:
  "On an application to exclude evidence under subsection (3) the court must have regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged".
  There is the protection to which I referred. I can say only to noble Lord who speaks for the Opposition from the Dispatch Box that we shall, of course, consider these issues between now and Report stage. It would be open to the noble Lord to divide the House on Report if he felt that we could not assist him or take the matter further. I cannot give him any further undertaking than that.
  Lord Thomas of Gresford: I merely make the point that I made before—that this appears to be an attempt to bring a similar fact evidence rule into the provisions. It simply does not work, and it has got to go. If the noble Lord chooses to vote, we shall be with him.
  Lord Kingsland: I am most grateful to the Minister for her response but, in the circumstances, I feel that I must invite the Committee to divide.
  7.9 p.m.
  On Question, Whether the said amendment (No. 139) shall be agreed to?
  Their Lordships divided: Contents, 102; Not-Contents, 81.

  Division No. 5

  CONTENTS

  Ackner, L.

  Elliott of Morpeth, L.

  Addington, L.

  Fearn, L.

  Anelay of St Johns, B.

  Ferrers, E.

  Astor of Hever, L.

  Flather, B.

  Barker, B.

  Fookes, B.

  Bell, L.

  Forsyth of Drumlean, L.

  Blatch, B.

  Geddes, L.

  Bridgeman, V. [Teller]

  Glentoran, L.

  Brooke of Sutton Mandeville, L.

  Goodhart, L.

  Brougham and Vaux, L.

  Goschen, V.

  Burnham, L.

  Gray of Contin, L.

  Byford, B.

  Harris of Richmond, B.

  Carlile of Berriew, L.

  Hereford, Bp.

  Carlisle of Bucklow, L.

  Hodgson of Astley Abbotts, L.

  Carnegy of Lour, B.

  Hooper, B.

  Chester, Bp.

  Hooson, L.

  Colwyn, L.

  Howe, E.

  Cope of Berkeley, L.

  Hunt of Wirral, L.

  Craig of Radley, L.

  Hylton.L.

  Craigavon, V.

  Jenkin of Roding, L.

  Crathorne, L.

  Jopling, L.

  Denham, L.

  Kennedy of The Shaws, B.

  Dixon-Smith, L.

  Kilclooney, L.

  724

  Kingsland, L.

  Renton, L.

  Lamont of Lerwick, L.

  Roberts of Conwy, L.

  Lane of Horsell, L.

  Roper, L.

  Linklater of Butterstone, B.

  Rotherwick, L.

  Liverpool, E.

  St John of Fawsley, L.

  Lloyd of Berwick, L.

  Seccombe, B. [Teller]

  Luke, L.

  Selborne. E.

  Lyell, L.

  Selsdon, L.

  Mackay of Clashfern, L.

  Sharples, B.

  Mackie of Benshie, L.

  Shutt of Greetland, L.

  McNally, L.

  Smith of Clifton, L.

  Maddock, B.

  Soulsby of Swaffham Prior, L.

  Marlesford, L.

  Stern, B.

  Mayhew of Twysden, L.

  Stewartby, L.

  Miller of Chilthorne Domer, B.

  Strathclyde, L.

  Montrose, D.

  Tebbit, L.

  Moynihan, L.

  Thomas of Gresford, L.

  Newby, L.

  Thomas of Walliswood, B.

  Newton of Braintree, L.

  Tordoff, L.

  Noakes, B.

  Ullswater, V.

  Northbrook, L.

  Waddington, L.

  Northesk, E.

  Wakeham, L.

  Oakeshott of Seagrove Bay, L.

  Wallace of Saltaire, L.

  Onslow, E.

  Walmsley, B.

  Park of Monmouth, B.

  Walpole. L.

  Pearson of Rannoch, L.

  Williams of Crosby, B.

  Peel, E.

  Winchester, Bp.

  Razzall, L.

  Worcester, Bp.

  NOT-CONTENTS

  Acton, L.

  Gordon of Strathblane, L.

  Ahmed, L.

  Goudie, B.

  Amos, B.

  Gould of Potternewton, B.

  Andrews, B.

  Grocott, L. [Teller]

  Archer of Sandwell, L.

  Hilton of Eggardon, B.

  Ashton of Upholland, B.

  Hollick, L.

  Bach, L.

  Hollis of Heigham, B.

  Bassam of Brighton, L.

  Howells of St. Davids, B.

  Berkeley, L.

  Hughes of Woodside, L.

  Bernstein of Craigweil, L.

  Hunt of Kings Heath, L.

  Blackstone, B.

  Islwyn, L.

  Borrie, L.

  Jay of Paddington, B.

  Brooke of Alverthorpe, L.

  King of West Bromwich, L.

  Brookman, L.

  Lea of Crondall, L.

  Burlison, L.

  Lipsey, L.

  Campbell-Savours, L.

  Lofthouse of Pontefract, L.

  Carter, L.

  Macdonald of Tradeston, L.

  Clark of Windermere, L.

  McIntosh of Haringey, L.

  Clarke of Hampstead, L.

  McIntosh of Hudnall, B.

  Cohen of Pimlico, B.

  MacKenzie of Culkein, L.

  Corbett of Castle Vale, L.

  Massey of Darwen, B.

  Merlyn-Rees, L.

  Crawley, B.

  Morgan, L.

  Davies of Oldham, L. [Teller]

  Patel of Blackburn, L.

  Pendry, L.

  Dean of Thornton-le-Fylde. B.

  Pitkeathley, B.

  Dixon, L.

  Radice, L.

  Donoughue, L.

  Rendell of Babergh, B.

  Dubs, L.

  Renwick of Clifton, L.

  Elder, L.

  Sainsbury of Turville, L.

  Erroll, E.

  Sawyer, L.

  Evans of Parkside, L.

  Scotland of Asthal, B.

  Evans of Temple Guiting, L.

  Simon, V.

  Falconer of Thoroton, L. (Lord Chancellor)

  Temple-Morris, L.

  Tomlinson, L.

  Farrington of Ribbleton, B.

  Turnberg, L.

  Faulkner of Worcester, L.

  Warwick of Undercliffe, B.

  Filkin, L.

  Watson of Invergowrie, L.

  Gale, B.

  Whitty, L.

  Gibson of Market Rasen, B.

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

  Golding, B.

  Goldsmith, L.

  Woolmer of Leeds, L.

  Resolved in the affirmative, and amendment agreed to accordingly.
  7.19 p.m.
  The Deputy Chairman of Committees (Lord Geddes): The Question is whether Clause 90, as amended, shall stand part of the Bill.
  Lord Ackner: This is designed to be the coup de grâce before we have an intake of a little refreshment.
  We have perhaps overlooked, because it seems such a long time ago, the Second Reading. The noble and learned Lord the Lord Chief Justice took the unusual step, so that it would not be said that he had detained the House too long, of placing in the Library of the House a memorandum which represented not only his views but the views of all the High Court judges and the views of the Court of Appeal Criminal Division. Therefore, the material which is to be found there is, I think, the shortest way of my dealing with this. It is to be found on page 4 of the memorandum, headed "Evidence of Bad Character, Part II, Chapter 1". Paragraph 12 states:
  "This part abolishes the common law rules and introduces new rules which require greater disclosure of evidence of bad character in the course of proceedings than would have been required hitherto"—
  Lord Bassam of Brighton: For the convenience of the Committee, perhaps the noble and learned Lord could indicate to which clause he is speaking. As I understand it, we are still on Clause 90.
  Lord Ackner: I am speaking to Clause 91.
  The Deputy Chairman of Committees: The Question that I put to the Committee was whether Clause 90, as amended, should stand part of the Bill.
  Clause 90, as amended, agreed to.
  Clause 91 [Abolition of common law rules]:
  On Question, Whether Clause 91 shall stand part of the Bill?
  Lord Ackner: I do apologise. I shall take as read what I said. in the hope that Hansard will put it in. I had reached paragraph 13, which is where the meat begins. It states:
  "The provisions as a whole are extremely confusing and will prove very difficult to interpret. They will result in lengthy arguments in court, more appeals and more scope for technical errors on the part of the trial judge that could give rise to convictions being overturned. Evidence that would previously have been considered neither admissible nor relevant will apparently be treated as both admissible and relevant.
  The definition has two limbs. First, evidence that the person 'has committed an offence'. There is no difficulty here. However, it is then provided that evidence 'which shows or intends to show that…he has behaved or is disposed to behave in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person' is also evidence of bad character. This latter test of had character is far more uncertain than it should be and is likely to give rise to a prolonged argument during a trial as to whether particular conduct falls within it. Furthermore it is likely to lead to appeals (see clause 90).
  An example of the sort of complications that are likely to arise as a consequence of chapter I is provided by clause 96. That clause is designed to introduce into a trial an issue as to whether a defendant has a propensity to commit an offence or a propensity
  726
  to be untruthful and then allow evidence of had character to he given. This evidence of propensity is particularly dangerous. A trial should relate to whether an accused has committed an offence or is untruthful and not questions as to whether the defendant has a propensity. Again the judiciary consider this provision is likely to complicate proceedings and prolong trials without any benefit. (It is appreciated that evidence as to a propensity to he untruthful is limited by clause 97.)
  Another curiosity relates to the provisions as to the defendant's bad character. The judge is allowed to exclude evidence of had character if it would have 'such an adverse effect on the fairness of the proceedings that the court ought not to admit it', but this discretion does not apply to all the situations where evidence of had character can be admitted. In addition. the clause addresses when the judge is to exclude the evidence. It would be preferable if this clause and many similar clauses gave the judge a discretion to admit such controversial evidence and not to exclude it. (clause 93(3)).
  The situations not included are set out in subclauses (c), (f) and (g). Sub-clause (c) refers to 'important explanatory evidence'. Sub-clause (f) relates to evidence that has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant. Sub-clause (g) is evidence to correct a false impression given by the defendant. What is not clear is whether the general discretion of a judge to exclude evidence because its prejudicial value exceeds its probative value is excluded. If it is intended to be excluded, then it certainly should not be".
  Those were the views of the senior judiciary, a High Court judge and the Court of Appeal Criminal Division. It is a clear indication that the clause is not one that should be allowed to exist. Although this matter will end inevitably in a Division, Divisions are unnecessary because the whole clause should he swept aside.
  Lord Renton: I warmly support what the noble and learned Lord has said. I hardly need to remind your Lordships that for generations—not by statute but under the common law—it has been against the rules of our courts to admit evidence of bad character in proof of a fresh offence. Criminal cases in our system have over the years avoided injustice to a remark able extent. But if we simply let in evidence of bad character and there is a hit of doubt about the case which the prosecution has put forward, is there not then a danger that the jury may well say, "Yes, well, the prosecution case was not very good but this man is no good: he has been convicted before. Let us convict him"? That would be terrible injustice. That is why I support the noble and learned Lord.
  Lord Cooke of Thorndon: I, too, support the opposition to Clause 91 of my noble and learned friend Lord Ackner. On another controversial issue—that pertaining to jury trial—I have unsuccessfully, and against fearful odds, supported the Bill in principle. But so far I have not been reconciled to the excessively complex provisions of this chapter. To me they are redolent of a drawing board in a government office rather than the flesh and blood reality of a criminal trial.
  The existing common law of England and Wales as to the admissibility of similar fact evidence was liberalised in England by the Appellate Committee of your Lordships' House in the 1991 case already referred to this evening—Director of Public Prosecutions v P— in a

  727
  speech delivered by the Lord Chancellor as he then was, the noble and learned Lord, Lord Mackay of Clashfern, whom it is a delight to see present tonight.
  Previously it had been understood that the test for admissibility was whether the evidence showed conduct by the defendant strikingly similar to the conduct now charged. The noble and learned Lord, Lord Mackay, held that the striking similarity test was too narrow. The question is always whether the evidence has sufficient probative force on the present charge to justify its admission, notwithstanding that it prejudices the accused by showing that he is not of good character. Mere propensity is not enough. There must be relevance and probative value such that to deny the jury the full picture would be an affront to common sense.
  In the course of his speech, the noble and learned Lord recognised that the law of New Zealand had already undergone a similar development, citing certain New Zealand cases. Since P, English and New Zealand law have marched hand in hand on the subject. The sufficient probative value test prevails and is calculated to do justice. Being a question of degree, it is uncertain in the sense that it requires a judge to exercise judgment on the facts of particular cases. However, the law is necessarily full of grey areas where such judgments are essential. Judges are appointed to judge, not to apply automatically inexorable formulae. By comparison with tests suggested in the Bill, the evolved common law is at least more certain, simpler and fairer.
  I shall briefly make that good by referring to two key provisions in the Bill. Clause 93(3) states that the court must not admit certain evidence if,
  "on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
  Apparently, "some adverse effect" on fairness would not be enough. "Such" seems to require something blatantly unfair. Be that curiosity as it may, in posing a test concerning unfairness in a particular case, the provision would require a discretionary judgment, wider if anything than the probative value test.
  Clause 96(1)(a), on whether certain evidence is admissible, includes within the qualifying matters,
  "the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence".
  That provision does not specify who is to adjudicate when admissibility has to be decided on the "no more likely" question. Obviously at that stage, it could only be the judge. It also seems obvious that that will present for the courts questions of degree subtly different from the question posed by the case of P—questions novel, difficult and contentious.
  In the light of such intricacies—I have given but two examples—the Bill will be improved if the chapter is simply omitted. It was dismaying to hear the noble Baroness, Lady Scotland, say that it was an extremely important part of the Bill.
  7.30 p.m.
  The Lord Bishop of Worcester: I should like to oppose the Question that Clause 91 stand part of the Bill. I do so because I have an uneasy feeling that it is somewhere near both the heart of the matter with which the Bill is an attempt to deal and the flaws that, frankly, I think are in it.
  I dare to say from these Benches that I have the sense that the wisdom of the common law arises from a fundamental Christian conviction about the use of inductive logic in relation to human beings. That is to say that it is possible to make inductive statements of a scientific sort about all sorts of issues, but that human beings have to be considered in a rather different way. It is extremely worrying, but we all know that we have within ourselves a tendency to make inductive judgments about human beings—"That's the sort of person who might well have done such-and-such"—on grounds that have subsequently proved extremely prejudiced.
  Therefore, in thinking about the clause, we ought to be very aware of the doctrinal history that lies underneath our common law and our practice. We must be very careful that we do not give validation to ways of thinking about human beings to which we are all prone but which, in our human wisdom, we have thought inappropriate to make deciding factors when it comes to people's liberty.
  Baroness Kennedy of The Shaws: I, too, support the views expressed. I want to remind the Committee that when we discussed juries the noble Lord, Lord Mishcon, told a wonderful story about how he as a young lawyer was sitting in Bow Street magistrates' court when someone was brought in and tried. The basis on which the magistrate reached his conclusion that the man was guilty was that he was clearly a tramp. The accusation was that he had sidled up to someone and taken his wallet. What came to light afterwards was that the man had gone back to his house and found his wallet in the pocket of a suit, and that it had not been stolen at all. However, the magistrate expressed the view at the time that the tramp was exactly the kind of person that he suspected would be up to such an activity.
  The problem is that even judges and magistrates, never mind juries, can be very easily misled into thinking that someone is the kind of person who might commit a particular sort of offence. I had the opportunity of discussing that with some judges from South Africa recently. They reminded me that, even under apartheid when judges alone and not juries tried cases, they made a very clear rule and stuck to it that people's previous convictions would not be put before the judges. They knew how strongly that could act against the interests of those on trial.
  Like others, I feel very strongly that the clause may be one of the most offensive parts of the Bill, and I ask that the Government think again.
  The Earl of Erroll: It is with great temerity that I, a layman, speak in the debate, but I do so because I did jury service a year ago. We have to be careful about

  729
  thinking of juries as a bunch of people who can be easily influenced and have the wool pulled over their eyes.
  I have great respect for juries as a result of my service, because everyone took their duties very seriously. Yes, in the jury room there was the usual split of two for hanging, two for acquitting, and eight undecided who then went one way or the other and the matter was dealt with. However, we wanted more information, because huge arguments went on in court without us present about what we were and were not to be allowed to hear. It was very frustrating, because it was as if we were idiots, and we were not.
  The perfectly sensible people on juries are quite capable of filtering information and are probably less cynical than the judge and magistrates. They might have a more realistic view of who and what can be trusted. We are perhaps getting too frightened of putting too much control into place.
  My second point is that if we are going to replace common law, which is a body of wisdom that has built up, by a rule-based system, that would be difficult and dangerous. One can draw those rules so tight that suddenly a lot of evidence cannot be presented in front of a jury. I would prefer to see a system which is more widely drawn. That is why I supported the Government on the previous two amendments.
  Initially, we need a system that probably allows more evidence to be presented to juries. We will filter it down, as we did with common law, into something that is sensible later. If we have a rigid, rule-based system on day one which does not allow anything to be presented to juries, they will become even more frustrated. In one case where I sat as a juror, the judge became so fed up with us passing notes and asking questions that he had to tell us to stop and try the case on the evidence presented by two adversarial lawyers who I did not think were doing a very good job; and nor did the jury.
  Lord Kingsland: The debate on Clause 91 has covered almost every other clause in Part 11, except Clause 91, but your Lordships need not apologise because Clause 91, in its context, invites that kind of debate. It is important to distinguish the definition of bad character from the rules of admissibility that relate to its role in a trial. Although Clause 91 refers to the rules of admissibility, I understood the noble Baroness to be saying that it referred also to the definition.
  We have discussed, so far, only the definition in Clause 90. As far as that is concerned, I am wholly in agreement with what each and every one of your Lordships has said in the debate. As far as issues of admissibility are concerned, I would prefer to wait until we discuss Clauses 92 and 93 to express an opinion.
  Baroness Scotland of Asthal: I thank all those who have participated. We take very seriously the comments of the noble and learned Lords, Lord Ackner and
  730
  Lord Cooke, not least because they have a wealth of experience, and I heard what the noble Lord, Lord Renton, said in support.
  I shall explain why we think that the common-law rules should no longer remain. It goes to the root of the issue raised by the right reverend Prelate the Bishop of Worcester who said that the "inductive logic" does not apply in relation to human beings.
  We are not seeking to set out a rigid structure which will not be amenable to jurisprudential development by the courts. We know from looking back at every other piece of statute that Parliament proposes, that, in the end, in terms of interpretation, the courts have the habit of disposing. This is not the end of the common law, but it is a removal of the common-law rules that have hitherto applied. Our intention is that a scheme should be introduced in the Bill that will provide a comprehensive statutory basis for the admission of bad-character evidence and replace the existing statutory and common-law provision in that area. We have already touched on some of the complexities which that marriage has brought about, some of them not always happy in union.
  It has been widely accepted that the current law is confusing and difficult to apply and that there is a clear case for reform. At present, the law relating to the admissibility of a defendant's previous misconduct or criminal disposition is contained in a variety of common-law rules and statutory provisions, added to and adapted in a piecemeal fashion over a number of years. That haphazard and fragmentary approach has left the law as a highly complicated set of rules.
  The Law Commission in its report, Evidence Of Bad Character In Criminal Proceedings, concluded that:
  "The present law suffers from a number of defects…they constitute a haphazard mixture of statute and common-law rules which provide inconsistent and unpredictable results, in crucial respects distort the trial process, make tactical considerations paramount and inhibit the defence in presenting its true case to the factfinders whilst often exposing witnesses to gratuitous and humiliating exposure of long-forgotten misconduct".
  Noble Lords will find that quote in the Law Commission's report, Law Com No. 273, at paragraph 1.7.
  When Lord Justice Auld looked at the criminal courts in his review, he noted that,
  "it has long been acknowledged that the law in this area is highly unsatisfactory in its complexity and uncertainty".
  One needs to refer only to the relevant chapters in criminal evidence textbooks, such as Archbold or Blackstones, to see the volume of case law to which this difficult area of the law has given rise in the courts, and the convoluted rules that have been produced as a result.
  The fundamental issues are still being debated and we will debate them under Clauses 92 and 93. We are not expunging the common law of England and Wales. We are removing the common-law rules, which refer to had character, and replacing them with a statutory

  731
  framework that will be applied and will in due course come to be looked at—
  Lord Thomas of Gresford: The Minister referred to the Law Commission and spoke about setting up a statutory structure. Will she explain why she has not followed the Law Commission in important respects? For example, the Law Commission set out proposals that evidence of had character, whether it be of the defendant or some other person, should be admissible only if the court gives leave for it to be adduced. The Law Commission also concluded that evidence of bad character should be admitted only in such circumstances when it is in the interests of justice for it to be admitted, taking into account its prejudicial effect. In significant ways, which no doubt will be expanded upon in later debates, the Government have moved away from the Law Commission and it is rich that the noble Baroness chooses to quote the commission in support of the proposals.
  Baroness Scotland of Asthal: I hear what the noble Lord said about it being rich; it is also right. We have introduced and applied many of the Law Commission's recommendations. Your Lordships will know that the drafting, for example, of Clause 93(3) is drawn from Section 78 of PACE. That drafting has already been considered and interpreted to include the tests in the common law, under which probative value and prejudicial effect are weighed against each other. We have adopted that drafting precisely because it has been interpreted in that way and so as to be clear.
  To take up the point of the noble and learned Lord, Lord Cooke, the court will come to look at those issues. It will be the judge who has to determine what the probative value of any evidence will be when an application is made to that judge. Clause 93(3) is in place. The noble and learned Lord will know, as other noble Lords appreciate, that courts throughout the country are asked every day to make just such judgments as to which pieces of evidence should be admitted and which pieces should not. We do not seek to change the ordinary functioning of the judicial process, but clarity can be—
  Lord Kingsland: I apologise to the noble Baroness for interrupting her. I rise in support of the noble Lord, Lord Thomas, and his observations about the Law Commission. It is true, of course, that the Government have followed the Law Commission in certain respects. But in other respects the Government have chosen to ignore what the Law Commission said—most importantly, in relation to Clause 93 and the way in which the bad character evidence can be admitted. I say with great respect to the noble Baroness that, far from echoing the Law Commission, the Government have reversed the way that the Law Commission believes these issues should be dealt with, at least so far as concerns matters of admissibility.
  732
  Of course, this is a matter for debate under Clause 93. I do not want to anticipate that debate by getting into the detail; but I hope that the noble Baroness recognises that, so far as concerns Clause 93, the Government and the Law Commission are a long way apart.
  Baroness Scotland of Asthal: I hear what the noble Lord says. He is right: we shall have an opportunity to debate both Clause 92 and Clause 93. I anticipate that. if the earlier debates foreshadow the latter. we shall debate those for quite some time.
  The scheme introduced in this part of the Bill sets out clearly the circumstances in which the evidence of bad character can be given. The Bill will therefore provide greater certainty and clarity to the law and encourage the admission of such evidence where it will properly assist the courts. I believe that we need to take on board very powerfully what was said about the need for juries to have proper information available to them so that they can make an informed judgment. We believe that the Bill will do that.
  I am sure that noble Lords will have different views on the circumstances in which this type of evidence should be admissible and, as I said earlier, I look forward to that debate. But while the circumstances in which evidence of bad character is admissible under the current law have informed our proposals, the scheme introduced by the Bill is intended to create a new statutory regime.
  Clearly, to enable the scheme to be the authoritative statement of the law in this area, it is necessary to abolish the current common law governing the admissibility of such evidence. Therefore, Clause 91 abolishes the common law rules—not the common law but the common law rules—governing the admissibility of bad character evidence. That will include the abolition of the general exclusionary rule prohibiting the use of evidence of a defendant's previous misconduct or other disposition, as well as the rules providing exceptions to this principle, such as the "similar fact" doctrine.
  Obviously, not only the common law but also statute deals with the admission of bad character evidence—in particular, Section 1(2) of the Criminal Evidence Act 1898, which governs the cross-examination of the defendant on his had character. These, too, need to be repealed in order to complete the process of putting the law on a new footing, and that is dealt with in Part 4 of Schedule 31. I hope that both the noble Lords, Lord Thomas of Gresford and Lord Kingsland, will agree that the Law Commission believes that such a replacement of the rules was merited and well founded. That is all that Clause 91 seeks to do.
  Lord Ackner: Your Lordships have been most patient and must, by now, be very hungry. I wish to say only that nothing in my proposal in any way suggests that there should not be amendments. Clearly much

  733
  needs to be done, but this is not the way to do it—hence, my Question. I should like to test the views of the House accordingly.
  7.54 p.m.
  on Question, Whether Clause 91 shall stand part of the Bill?
  *Their Lordship divided: Contents, 83; Not-Contents, 36.

  Division No. 6

  CONTENTS

  Acton, L.

  Grocott, L.

  Ahmed, L.

  Hilton of Eggardon, B.

  Amos, B.

  Hollick, L.

  Andrews, B.

  Hollis of Heigham, B.

  Archer of Sandwell, L.

  Howells of St. Davids, B.

  Ashton of Upholland, B.

  Hoyle, L.

  Bach, L.

  Hughes of Woodside, L.

  Bassam of Brighton, L.

  Hunt of Kings Heath, L.

  Berkeley, L.

  Islwyn, L.

  Bernstein of Craigweil, L.

  Jay of Paddington, B.

  Blackstone, B.

  Jones, L.

  Borrie, L.

  King of West Bromwich, L.

  Brooke of Alverthorpe, L.

  Lea of Crondall, L.

  Brookman, L.

  Lofthouse of Pontefract, L.

  Burlison, L.

  Macdonald of Tradeston, L.

  Campbell-Savours, L.

  McIntosh of Haringey, L.

  Carter, L.

  McIntosh of Hudnall, B.

  MacKenzie of Culkein, L.

  Clark of Windermere, L.

  Massey of Darwen, B.

  Clarke of Hampstead, L,

  Morgan, L.

  Cohen of Pimlico, B.

  Pendry, L.

  Corbett of Castle Vale, L.

  Pitkeathley, B.

  Crawley, B.

  Rendell of Babergh, B.

  Davies of Coity, L.

  Rooker, L.

  Davies of Oldham, L.

  Sainsbury of Turville, L.

  Dixon, L.

  Sawyer, L.

  Dubs, L.

  Scotland of Asthal, B.

  Elder, L.

  Simon, V.

  Erroll, E.

  Skidelsky, L.

  Evans of Temple Guiting, L.

  Taylor of Blackburn, L.

  Falconer of Thoroton, L. (Lord Chancellor)

  Temple-Morris, L.

  Tomlinson, L.

  Farrington of Ribbleton, B.

  Turnberg, L.

  Faulkner of Worcester, L.

  Turner of Camden, B.

  Filkin, L.

  Warwick of Undercliffe, B.

  Gale, B.

  Watson of Invergowrie, L.

  Gibson of Market Rasen, B.

  Whitaker, B.

  Golding, B.

  Whitty, L.

  Goldsmith, L.

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

  Gordon of Strathblane, L.

  Goudie, B.

  Winston, L.

  Gould of Potternewton, B.

  Woolmer of Leeds, L.

  NOT-CONTENTS

  Ackner, L.

  Hooson, L.

  Addington, L.

  Hylton, L.

  Allenby of Megiddo, V.

  Kennedy of The Shaws, B.

  Barker, B.

  Linklater of Butterstone, B.

  Burnham, L.

  Mackie of Benshie, L.

  Carlile of Berriew, L.

  McNally, L.

  Carlisle of Bucklow, L.

  Chalfont, L.

  Miller of Chilthorne Domer, B.

  Chester, Bp.

  Onslow, E.

  Cooke of Thorndon, L.

  Palmer, L.

  Fearn, L.

  Park of Monmouth, B.

  Harris of Richmond, B.

  Renton, L.

  Hereford, Bp.

  Roper, L.

  734

  Shutt of Greetland, L.

  Wallace of Saltaire, L.

  Smith of Clifton, L.

  Walmsley, B.

  Stern, B.

  Wedderburn of Charlton, L.

  Thomas of Gresford, L.

  Winchester, Bp.

  Tordoff, L.

  Worcester, Bp.

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

  [*The name of a Lord who voted in both Lobbies has been removed from the voting lists.]
  Resolved in the affirmative, and Clause 91 agreed to accordingly.
  8.4 p.m.
  Lord Bassam of Brighton: My Lords, I beg to move that the House do now resume. In moving that Motion I suggest that the Committee begin again not before four minutes past nine.
  House resumed.

Northern Ireland Act 2000 (Modification) (No. 2) Order 2003
Lord Williams of Mostynrose to move, That the draft order laid before the House on 3rd July be approved [25th Report from the Joint Committee].
The noble and learned Lord said: My Lords, as your Lordships know, following suspension on 15th October, Section 1 of the Northern Ireland Act 2000 came into force. By virtue of the schedule to that Act there is a power to legislate by Order in Council. That power was limited to the first six months of suspension but can be extended for a period of six months at a time. The House agreed an extension in April. This second order, therefore, provides for a further renewal of these powers for six months from 14th October 2003.
A number of your Lordships who have an interest in Northern Ireland made very firm representations, to which I hope I paid careful attention, that we need a sensible period of time to be able to reflect on and discuss, if necessary informally, new legislation before it comes before Parliament as an Order in Council.
We have done our very best, where practicable, to allow a twelve-week consultation period, as I promised your Lordships earlier, for new legislation before it is laid before Parliament as an Order in Council. As your Lordships know, that has already been done in respect of proposals for draft orders on employment and partnerships, and similar consultation is underway with draft legislation on gambling and licensing. Such an approach will give your Lordships ample opportunity to influence legislation before it is finalised. I recognise that many noble Lords will regard this further continuance as a regrettable necessity; a necessity I suggest it is. I beg to move.
Viscount Bridgeman: My Lords, we accept that this is a consequential effect of the suspension of the Assembly. We express our thanks and appreciation to the Lord President of the Council for giving us this substantial consultation period. We have no objections.
Baroness Harris of Richmond: My Lords, we too thank the noble and learned Lord the Leader of the House for the consideration he has always shown in matters concerned with Northern Ireland. However, for the second time we find ourselves having to renew this order. It is most unfortunate that we have to do so. It is our fervent hope and expectation that this will be the last time we have to renew it.
The order runs to 14th April 2004. Long before then we anticipate that elections will have been held and that the Assembly is once again sitting in Northern Ireland and dealing with its own devolved legislation.
As my noble friend Lord Smith of Clifton reminded the House last Friday, we on these Benches supported the Government's case, albeit reluctantly, to postpone elections in the spring of this year. We gave fair warning then and subsequently that we would not be willing to do so again. Can the noble and learned Lord give us any idea when those elections might be called? It is vital that we are able to give all the people of Northern Ireland hope that very soon they will once again be able to manage their own affairs without having continually to look towards Westminster.
Lord Williams of Mostyn: My Lords, I am grateful to the noble Viscount and the noble Baroness. I agree with the noble Baroness and know that noble Lords on the Opposition Front Benches hold the same view. We want Assembly elections as much as anyone. I have repeated my approval of the observations made on many occasions by the noble Lord, Lord Smith of Clifton. We very much hope—I cannot go further—that elections will he possible this autumn.

Partnerships etc. (Removal of Twenty Member Limit) (Northern Ireland) Order 2003
8.9 p.m.
Lord Williams of Mostynrose to move, That the draft order laid before the House on 7th July be approved.
The noble and learned Lord said: My Lords, I beg to move that this House approve the Partnerships etc. (Removal of Twenty Member Limit) (Northern Ireland) Order 2003, a draft of which was laid before this House on 7th July 2003.
736
The purpose of the order is to amend the Northern Ireland law and to bring in provisions in line with those already in force in Great Britain through, as your Lordships will remember, the Regulatory Reform (Removal of 20 Member Limit in Partnerships etc.) Order 2002.
The 20-member partnerships are a historical relic. They interfere with the proper conduct of efficient business in Northern Ireland. They are a historical relic because in the 19th century, in particular, certain companies made a point of having a very large number of memberships so that it was virtually impossible for someone who was aggrieved to sue because there were so many potential defendants. To sue a deed of settlement company under common law, the aggrieved party had to be able to name all the shareholders. That was simply exploited, which was the historical origin of the 20-member limit. It is not appropriate any more. The size restriction was introduced as long ago as the Joint Stock Companies Act 1844.
The DTI has consulted extensively. It had overwhelming support. The restriction imposes burdens. It prevents the expansion of business through the introduction of new partnerships, restricts the development of multi-disciplinary and international partnerships and is quite inappropriate in a society which, in Northern Ireland, is becoming much more dynamic and innovative. I hope your Lordships will agree not only the detail, but the principle behind this order. I commend the order to the House.
Moved, That the draft order laid before the House on 7th July be approved.—(Lord Williams of Mostyn.)
Viscount Bridgeman: My Lords, I am most grateful to the Lord President for giving us the historical context to this issue. It is clearly right that Northern Ireland should be brought into line with United Kingdom law on this subject. We have no objection.
Baroness Harris of Richmond: My Lords, the noble and learned Lord has amply outlined the reasons why the order has been deemed necessary. It is right that we should encourage enterprise and remove restrictive barriers to business in Northern Ireland—barriers that have been in place, as the noble and learned Lord has very helpfully told us, since the 18th and 19th centuries in order to restrict the extent to which partnerships were open to abuse.
There has been wide consultation on the order with no apparent dissent. Therefore, it must be absolutely right to give Northern Ireland partnerships the same regulatory framework as those which operate throughout the rest of Great Britain. We, too, support the order.
Lord Williams of Mostyn: My Lords, I am grateful.

Northern Ireland (Monitoring Commission etc.) Bill [H.L.]
8.12 p.m.
Standing Order 47 having been dispensed with, Report received; Bill read a third time; an amendment (privilege) made; Bill passed, and sent to the Commons.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 9.4 p.m.
[The Sitting was suspended from 8.13 to 9.4 p.m.]

Criminal Justice Bill
9.4 p.m.
House again in Committee.
Clause 92 [Non-defendant's bad character]:
On Question, Whether Clause 92 shall stand part of the Bill?
Lord Carlile of Berriew: If it is permissible, I have a question to raise with the Minister about Clause 92; it would be helpful if she could provide an answer. Under Clause 92, the cross-examination of prosecution witnesses is limited, because one will be able to cross-examine a prosecution witness about their bad character only if that evidence would fall within the criteria set out in the clause.
As the noble Baroness knows, it is a common occurrence for defence counsel to cross-examine a prosecution witness about offences of dishonesty on that person's record, even if the witness is not being accused of taking part in the crime alleged against the defendant, and even if the crime alleged is not one of dishonesty. One of the most common ways of attacking the character—the credibility—of a prosecution witness is by cross-examining him on his record. Sometimes, that is a telling form of cross-examination. Reading Clause 92, it appears—I hope that I shall be told that this is wrong—that it will no longer be possible for a defendant to attack the credibility of a prosecution witness by revealing in cross-examination a series of convictions for dishonesty.
If that is the case, that would remove an important shot in the defendant's locker and deprive the jury of one way in which prosecution witnesses can be assessed. Sometimes, especially in fraud cases or those in which obtaining by deception is alleged, for example, prosecution witnesses can look and sound very convincing but, as the noble Baroness knows, once their record of social security fraud or stealing from old ladies is revealed in cross-examination, they look a very different kind of witness.
738
Can the Government assure us that it will still be possible to do that? If it is not clear, will the Minister reconsider? It is plainly a matter of common sense that that type of attack on prosecution witnesses' credibility ought to remain possible.
Lord Thomas of Gresford: I further suggest the converse case, and ask whether the Government intend not to permit cross-examination of a defence witness about character. Frequently, defence witnesses, especially alibi witnesses, are not of good character and the prosecution enjoy themselves by producing the whole of their criminal record and putting the unfortunate witness through it, although it has no relevance to the evidence which the witness is giving. I should like the assurance that what applies to prosecution witnesses applies also to defence witnesses.
Another matter that I should like to raise under the clause is why evidence of bad character of a witness requires the leave of the court, whereas the bad character of a defendant does not. Can the Government give any explanation of that discrepancy?
Lord Kingsland: I respectfully agree with what both the noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, said. I place my concern in the context of what their Lordships said. It worries me that it is much more difficult for the defendant to get admitted evidence of bad character against a prosecution witness than it is for the prosecution to get evidence of bad character admitted against the defendant. Under Clause 93 it is much easier to get a defendant's bad character put in evidence than it is a non-defendant's character under Clause 92. The Government ought to correct that inequity on Report.
Baroness Scotland of Asthal: I shall deal first with the credibility issue raised by the noble Lord, Lord Carlile. My response applies equally to the comments made by the noble Lord, Lord Thomas of Gresford. I can reassure Members of the Committee that Clause 92(1)(b) enables evidence to be given that is probative of the matters in issue. That will cover evidence going to a witness's credibility, be they prosecution or defence. As the noble Lord, Lord Carlile, said, whether or not a witness is to be believed will have an important bearing on their testimony and the facts to which it relates. Therefore, provided that the evidence is not of a trivial value, it will be admissible. The purpose of defining Clause 92 as relating to "Non-defendant's bad character" is to do precisely that. Any witness, be they for the Crown or the defence, will be subject in the same way to Clause 92.
I hear what was said by the noble Lord, Lord Kingsland, and mooted by the noble Lord, Lord Thomas of Gresford, about the difference between the witness's position and that of the defendant. The critical question regarding defendants is whether the probative value of the evidence is outweighed by its prejudicial effect. That ensures that only evidence that will properly assist the jury, rather than distract them, is admitted. However, as only the

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defendant in the case is at risk of conviction, the test is apt only for their protection. Members of the Committee will see that in Clause 93(3). I said earlier that the reason that the provision had been included was that the test is already well understood and can be applied. We did not seek to change the test, so it is echoed in Clause 93(3).
It is, however, still important that defendants should not be able to introduce trivial or irrelevant evidence of a non-defendant's bad character. To protect non-defendants from such attacks, a test of enhanced relevance is proposed.
I hope that that satisfies the noble Lord about the difference between the two provisions and reassures him.
Lord Thomas of Gresford: I regret to say that I do not feel reassured. I am sure that the noble Baroness is aware of the concerns expressed about whether the provisions accord with the European Convention on Human Rights. The Joint Committee on Human Rights has expressed a strong view that there is no equality of arms as a result of those clauses. I am sorry that that has not been taken on board in the Bill. I will consider the Minister's response, but the matter will undoubtedly recur.
Lord Carlile of Berriew: Before we determine the matter, perhaps I might ask the Minister to reflect on the matter, for two reasons. First, as she knows, in a criminal trial one cannot adduce evidence that goes to credit alone. It is not a matter in issue in the trial. I have a concern about whether the words of subsection (1)(b) would in themselves allow cross-examination as to credit on the basis of a witness's previous convictions, when the witness's credit is not a matter in issue in the trial in the conventional sense.
The second matter that I ask the Minister to reflect on is the effect of subsection (3) on subsection (1)(b). Earlier in our debates, the Minister said that there was a lot of material in Archbold about the existing law on had character. During the dinner break, I nipped into the Library and looked in Archbold 2003. There are 15 pages—pages 1135 to 1150—on a body of law that has existed in its present form since, at least, the Criminal Evidence Act 1898. Fifteen pages for 105 years of law is not bad.
It seems to me, looking at subsections (1)(b) and (3), that we will have 15 pages of Archbold on that narrow subject in two or three years, if we are not careful. I urge the Minister to be certain that we are not unintentionally making the law worse, before she tries to persuade the Committee that we should definitely accept the clause.
9.15 p.m.
Baroness Scotland of Asthal: We will consider the matter, but it is our understanding that the way in which Clause 92(1)(b) should be interpreted would enable evidence to be given that is probative of the matter in issue. That will cover evidence going to the
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witness's credibility. That is our understanding of the clause. I do not suppose that the noble Lord wants me to reconsider that, as it seems to accord with what he would wish. If our understanding were to change, on reflection, I will, of course, come back on the matter, but I do not think that the noble Lord would want me to.
Clause 92 agreed to.
Clause 93 [Defendant's bad character]:
Lord Kingsland Lord Kingsland moved Amendment No. 140:
Page 62, line 10, after first "if" insert "it has direct relevance to issues in the case"
The noble Lord said: I want to say immediately that our view of the expression "issues in the case", as contained in the amendment, is that it is narrower than the definition provided by the Government in Clause 96(1)(a) and (b). In Clause 96, the Government include, as an issue between the defendant and the prosecution, the question of whether the defendant has,
"a propensity to commit offences of the kind with which he is charged".
We disagree.
At the end of the sitting before dinner, the noble Lord, Lord Thomas of Gresford, raised the question of the compatibility of the Government's proposals with the views of the Law Commission. The Law Commission has expressed a view on the scheme of Clause 93, and it is contained in paragraphs 6.64 and 6.65 of its report Evidence of Bad Character in Criminal Proceedings. The report says:
"it is axiomatic that only relevant evidence should be admitted. Not all evidence for bad character is relevant to the issue of guilt. The admission of irrelevant bad character evidence might not matter, if it were not prejudicial; but often it is. It can lead to a person being convicted on inadequate evidence, or where the fact-finders are not in fact sure that the charge has been made out. Therefore, bad character evidence which is not relevant should in our view be excluded as a matter of course, not merely as a matter of discretion. We therefore favour a general rule excluding bad character evidence (subject to exceptions) rather than a general inclusionary rule, subject to a discretion to exclude".
The position taken by the Law Commission is diametrically opposed to that taken by the Government.
The issue of relevance is of central importance as a gateway to admitting any bad character evidence. I beg to move.
Lord Hylton: I would like to ask a nave layman's question. This clause and the preceding one, Clause 92, both say that:
"all parties to the proceedings agree to the evidence being admissible".
When would that agreement be reached—in open court, in chambers or in some previous negotiation, before the trial?
9.30 p.m.
Baroness Scotland of Asthal: If I may, I will deal with the question asked by the noble Lord, Lord Hylton, first. The agreement over evidence can be reached at any of the times mentioned by the noble Lord. Noble

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Lords will know that, when the matter is committed, evidence is served by the prosecution, and it may be agreed that that is an appropriate way. As the trial continues, evidence may come up and the defence and prosecution may together agree that it is appropriate and pertinent that certain information goes forward. It would always be possible of course, if they were to make an application to the judge for the evidence of a witness to go in, for example, that the court could conceivably disagree with the balance. However, if both parties were to agree that would be unlikely to happen it would go in. Timing need not be a matter of difficulty.
The noble Lord, Lord Kingsland, spoke extremely succinctly to the amendments. In posing his questions, he asked a wide and broad question, so it is only right that I should give him a comprehensive answer.
Clause 93 goes to the heart of the new statutory rules on bad character and deals with the circumstances in which evidence of a defendant's bad character will be admissible in criminal proceedings. To set the context for the debate on these and subsequent amendments, it might assist the Committee if I say a few general words about this provision.
We have already had several useful debates, not least the one in the context of Clause 91, about the abolition of the common law rules on bad character and about letting the law stand as it is. Your Lordships will know that we do not believe that that would be an acceptable course to take. At present, the law is contained in a variety of forms that we touched on before the short adjournment, and, rightly, it was generally thought by all that amendment was needed. The difficulty and complexity of the current structure brought this area of law no credit, either to the courts and practitioners or to the public at large. An area of the law as important as this cannot be the preserve simply of experts. It may also have a chilling effect on the application of the law inhibiting the admission of relevant evidence even when this is appropriate and justified. Both Sir Robin Auld and the Law Commission have offered substantial criticism of the current state of affairs.
Leaving the law in its current state, therefore, is no longer an option. A new statutory scheme is required. The amendments relate to what form that statutory scheme should take. Therefore, our intention is to set out, as clearly as we can, a new scheme for admitting bad character, building on recognised concepts in the current law, but stating them in a comprehensive and coherent fashion—accessible to all and capable of straightforward application.
The scheme we propose consists of three key elements. The first is a new inclusionary rule that a defendant's bad character is admissible if it meets one or a number of conditions. The plethora of rules that have developed over the previous century or more, couched on an exclusionary basis and unclear in their application, inhibit the admission of this evidence, denying fact finders relevant material for determining the cases before them. That cannot be right. We must
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ensure that the framework for admitting this sort of information in the future facilitates, rather than restricts, the hearing of relevant evidence.
Therefore, our starting point is that the new scheme should be one of inclusion, which promotes the hearing of relevant evidence by the courts where it is appropriate and justified. We believe that it is right to place more trust in our juries and magistrates to reach common sense decisions on the basis of the widest range of relevant evidence, unless there are good reasons for exclusion in the circumstances of the case. The Bill sets out a new framework for the admission of a defendant's bad character, under which the basic rule is one of inclusion rather than exclusion.
The second element of the scheme is a number of categories of admissibility. The Bill sets out eight categories, which are intended to cover all evidence that might be relevant in a case and to provide a straightforward and clear statement of admissibility. They reflect evidence that is admissible or is admitted under current law.
Paragraphs (a) and (b) of Clause 93(1) cover circumstances in which the defendant is content for the evidence to be admitted. Such evidence is admissible at present. Clause 93(1)(c) covers important explanatory evidence. Common law also already recognises that evidence of bad character can be admitted outside the similar fact rule as background evidence. I shall return to that shortly in the context of Amendment No. 141.
Clause 93(1)(d) is intended to create a presumption that certain convictions will be relevant to a case and therefore should be admitted, unless their probative value is outweighed by their prejudicial effect. We wish to make the new statutory scheme for evidence of bad character as straightforward and as accessible as possible. That presumption is intended to reflect the fact that, generally speaking, convictions for the same or a similar offence will be most relevant to issues in the case. Again, we shall have a chance to debate that more fully shortly.
Clause 93(1)(e) builds on current law, which enables evidence of a defendant's previous misconduct to be admitted where it is relevant to the question of Built. It still takes more than 40 pages of one of the leading books, Cross and Tapper on Evidence, to describe the rules governing this area of the law. A clear restatement of the law is certainly needed. I do not want to play one-upmanship with the noble Lord's 15 pages of Archbold: he and I both know that Archbold may be the Bible, but others look elsewhere for the New Testament.
Paragraphs (f), (g) and (h) of Clause 93(1) cover matters that are dealt with by common law and the Criminal Evidence Act 1898. For example, in relation to co-defendants, a defendant may, under common law, adduce evidence relating to a co-defendant's had character if it is relevant to his defence. A defendant is also entitled to cross-examine a co-defendant on his record under the 1898 Act if the co-defendant has given evidence against him.

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Evidence is also admissible under common law in cross-examination of witnesses and in rebuttal to correct any misleading claims made by, or on behalf of, the defendant to be of good character. Such a claim also means that the defendant can be cross-examined on his record under the 1898 Act. I know that many of those issues are very familiar to Members of the Committee. Finally, the 1898 Act also enables a defendant to be cross-examined on his record if he attacks the character of a prosecution witness. Paragraphs (f), (g) and (h) of subsection (1) make provision to cover similar circumstances in the future.
The third element of the scheme is a test for excluding evidence where admitting it would create unfairness; that is, its probative value would be outweighed by its prejudicial effect. This represents an important safeguard to protect the interests of defendants. It is not the only one included in the scheme and we shall have an opportunity at a later point to discuss others, such as those in Clauses 98 and 100.
We shall also have an opportunity shortly to debate in more detail the terms of the exclusionary test, so I will not take up much of the time of the Committee at this point. However, I mention it to provide noble Lords with a clear overall picture of the new rules governing a defendant's bad character.
To conclude, therefore, we believe that there is a wide consensus that the current law is unsatisfactory. Clause 93 represents a new departure with a comprehensive, statutory scheme that brings together all the rules in this area and restates them in a clear and coherent way. This will bring clarity to an obscure area of law, representing a better balance in the system than does the current complexity and uncertainty.
I turn now to the two specific amendments in this group. Amendment No. 140 inserts a general requirement that evidence of a defendant's bad character be of "direct relevance" to issues in the case. We do not agree that this would be a helpful addition to the Bill. It sets out carefully the basis on which a defendant's bad character should be capable of admission. All of these are circumstances in which the evidence will have a clear bearing on the case, either in assisting the defendant fully to put his case or in helping the jury to understand and determine the issues in the proceedings. That might be because it goes directly to issues relevant to the defendant's guilt or those that have a bearing on those issues by going to the defendant's character and credibility in appropriate circumstances.
A requirement for relevance is already clearly reflected in the various heads of admissibility where evidence is being admitted as probative to the issues of the case. It is explicitly mentioned in paragraphs (e) and (f) as evidence that is relevant to issues between prosecution and defence, or between co-defendants. Here, it is not clear what a requirement of "direct" relevance would add.
The issue of relevance also underpins the presumption created by paragraph (d) in favour of admitting convictions for the same or a similar offence. That
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provision is of course also subject to the exclusionary test in Clause 93(3), under which probative value will be assessed against prejudicial effect. However, to add a further requirement of "relevance" as a condition for the provision being met would undermine the clarity and simplicity of approach that this presumption is intended to achieve. I think that it was the noble and learned Lord, Lord Cooke, who said earlier in the debate that probative value is now the guiding principle, both in New Zealand and over here. We do not intend to change that because there still has to be an assessment of the probative value.
On the other hand, we think that the amendment is likely to cause confusion. In the case of explanatory evidence, for example, Clause 85 requires the evidence to be such that, without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case. Evidence in this category is not admitted because of its probative value to the issues in the case, but rather to put other evidence in its proper context so that it can be understood. Evidence can be admitted on this kind of basis under the current law, and it is not clear what a requirement for "direct relevance" would add in these circumstances, other than confusion over the proper reason for admitting this kind of evidence and questions of whether the evidence needed to meet some further requirement of being probative.
A requirement of direct relevance is also likely to add confusion where evidence is being adduced by a defendant who may wish to make a clean breast of his record at the outset to demonstrate that he is putting his cards on the table or to counter any presentational disadvantage in it coming out piecemeal in cross-examination.
A number of noble Lords will know the kinds of incidents to which I refer, particularly where a defendant says, wish to tell the court that I have these convictions. I have always pleaded guilty. I am not pleading guilty this time because I did not do it". It would be most odd if the court were to rule that the defendant could not present his case in such a way because his bad character was of insufficient direct relevance to the issue.
Difficulties might also arise in the context of evidence admitted to address a misleading claim of good character or in response to a defendant's attack on the character of another. These categories reflect circumstances in which bad character evidence is admissible under the current law and represent important categories for such evidence, ensuring that the jury receives a balanced picture of the character of the defendant where he seeks to give a misleading impression about himself or further his case through attacking a witness.
But it is not clear what additional purpose would be served by requiring the evidence also to be directly relevant. What additional requirement would this impose? It would be very odd if this evidence could only be admitted in these circumstances if it was also directly relevant to the defendant's guilt.

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The amendment reflects a concern that irrelevant bad character information should not be adduced. We understand that concern. Indeed, it is laudable. However, the Bill makes careful provision on the circumstances in which a defendant's bad character can be admitted. A blanket provision for "direct relevance" would cut across this and not aid clarity.
Amendment No. 141 would delete the provision for evidence to be admissible as "important explanatory evidence". The common law already recognises that evidence of bad character can be admitted outside the similar fact rule as background evidence. For example, in the case of Sidhu ((1994) 98 Cr App R 59), the defendant was charged in relation to conspiracy to possess explosives in England. A video showing the defendant apparently leading the activities of a group of armed rebels in Pakistan was admitted as evidence of a "continual background of history". And in the case of Stevens ([1995] Crim LR 649), evidence of previous occasions on which the defendant had assaulted the victim was admitted as part of the background to a charge of murder.
As the Court of Appeal explained in the case of Pettman (1985 unreported):
"Where it was necessary to place before the jury a continual background of history relevant to the offence charged, and that account would be incomplete or incomprehensible if not given in its totality, evidence forming part of that account should not be excluded merely because it established the commission of an offence with which the accused was not charged. A conclusion to the contrary. requiring events to be viewed in total isolation from their history, would make it difficult for the jury to do its job".
So, in terms of our current jurisprudence, there is already a vehicle through which such evidence can be admitted where probative.
However, the Law Commission identified in its 2001 report that there was considerable difficulty with defining the boundaries of this kind of evidence and that it was often confused and conflated with evidence admissible as part of the res gestae—that is, matters that are closely bound up with the facts of the offence in time, place or circumstance—and that admissible under the similar fact rule. It therefore recommended making clear distinctions between evidence to do with the facts of the offence, evidence admissible because of its explanatory value and evidence admissible because of its probative value. We have sought to reflect that division in the way in which we have crafted these provisions.
The Bill takes that opportunity and makes clear provision for evidence to be admitted where its value to the case is in helping the jury to understand the other evidence that is being presented. In these circumstances, it is difficult to describe the evidence as "probative" because, strictly speaking, it does not prove an issue relating to guilt. but sets other evidence in context. We believe that this should be separately recognised to avoid the confusion that has arisen under the current law. We do not, therefore, consider that it would be appropriate to remove paragraph (c). I therefore resist the amendments and invite the noble Lord to consider and withdraw them.
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I have tried to be as comprehensive as I can at this stage because I know we will be picking up various issues when we come to each specific section. I hope I will not have to repeat this, but I hope that it will help noble Lords to see the context in which we frame all the provisions and how they will sit.
Baroness Kennedy of The Shaws: It is very helpful that my noble friend the Minister has outlined the way in which the Government are approaching this issue because many people outside the Chamber do not know. They do not understand what this is all about.
The question asked by the noble Lord. Lord Hylton, touched on this in some way. I was asked earlier, outside the Chamber, by a noble Lord from these Benches to explain how, in Clause 93(1)(a), all parties to the proceedings could agree to the evidence being admissible. He said, "Who could complain about that?" The answer is that no one currently complains about that. Frequently in trial, the parties—the Crown and the defence—will put their heads together. The defence will ask for a formal admission in writing that can be given to the jury on all sorts of matters. One such matter might be to tell the jury that the accused person, who is charged with robbery, has never been in trouble in his life save once, when he was only 17 and was convicted of shoplifting. That is done on the basis that giving the jury that information will help them to see that he is not a man who commits burglary regularly and that they may speculate if it is not provided. But it is done by way of agreement.
The general public do not seem to understand that in many circumstances the defendant's bad character is already placed before the jury. It is being presented by the Government as though this never happens. It happens on a regular basis, but on good reasoning.
It has been admitted tonight, and I hope it will be given some coverage, that we are seeing something that has never happened before. Instead of the presumption to exclude, we are seeing the presumption to include—to put convictions in. That is a disgrace. It is a disgrace that the Government should be lowering themselves to that level. It is a source of sadness to many of us that that is happening. It is a volte face; it flies in the face of principle that has been developed over many years to protect those who stand trial. It should be a source of shame to those on these Benches and to the Front Bench that they should be arguing this, and arguing that it has been put forward to make simple that which is complex. What dissembling. It has nothing to do with making simple what is complex; it is to do with putting people's previous convictions in front of juries in order to increase convictions. Shame on you.
Let it be clear to all those who will look at the record of this debate and vote at a later stage what this is about. That is why most of us are saying that this amendment should be made to the Bill. Judges, lawyers and every justice organisation in the country are outraged and shocked that the Government should think of doing this. Shame!
9.45 p.m.
Lord Thomas of Gresford: There is not much that one can say after that, save this: that the measure is contrary to the Law Commission's proposals; it is a break with hundreds of years of tradition; and it is being proposed entirely for the reason given by the noble Baroness, Lady Kennedy, to put convictions in front of juries. We have had no explanation why the onus is now on the defendant, who only in certain circumstances may challenge the admission of convictions, and yet in other instances, as listed, is not able to do that. Absolutely no justification has been given for that at all.
I was brought up to believe that evidence that is relevant is admissible and that which is irrelevant is not admissible. It is terribly simple. I have never had any problems in advising clients about putting their character in. One knows that if one attacks a prosecution witness, the character is going to go in. One knows all the circumstances when the character is going to go in, and there are no problems about it.
If there are 15 pages in Archbold and 40 pages in that much battered volume, Cross and Tapper On Evidence, dealing with the subject, that is simply to illustrate what is an attack on another person's character; what is a false impression given by a defendant; what is an important matter in issue; and what is important explanatory evidence. All the issues that arise in the simple common law structure that we have at the moment—those issues for decision by the judge—will still be there. I reject the concept that people will read this statutory framework in a local pub and be satisfied that they understand the law a lot better. That is a ludicrous way of defending a completely unacceptable proposition by the Government.
Lord Kingsland: I shall not ask the Committee to divide on the amendment tonight, but I hope that the Minister has listened carefully to the remarks of all the Members of Committee who spoke, with which I totally agree. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 141 not moved.]
The Deputy Chairman of Committees (Baroness Gould of Potternewton): Before calling Amendment No. 142, I must inform Members of the Committee that, if Amendment No. 142 is carried, I cannot call Amendment No. 143 for reasons of pre-emption.
Lord Kingsland Lord Kingsland moved Amendment No. 142:
Page 62, line 16, leave out paragraph (d).
The noble Lord said: I believe that I am right in saying that Amendment No. 142 refers to Clause 92(1)(d). The issue concerns the way in which the Government intend to define the expression "the same category". That is dealt with in Clause 95(1), which says that,
"two offences are of the same category as each other if they belong to the same category of offences prescribed for the purposes of this section by an order made by the Secretary of State".
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It is unsatisfactory that the matter should be dealt with by order; the categories should appear in the Bill.
Moreover, Clause 95(2) states that offences of the same category can merely,
"consist of offences of the same type".
According to Explanatory Note 336, it will be sufficient for evidence to be admissible under the same type test if, for example, the old and the new offence are offences of violence. Therefore, to compound the admissibility of evidence of bad character, which does not go to any issue in the trial, Clause 95(2) allows for the admission of evidence of past offending, which in its detail may be remote from the offences in issue. I beg to move.
Lord Carlisle of Bucklow: I fully appreciate that, when dealing with the Committee stage of such a Bill, one often becomes confused as to the effect of particular amendments. However, I have always regarded this amendment as almost the most important of all in highlighting objections to the Bill. I support everything that the noble Baroness, Lady Kennedy of The Shaws, said. It seems to me that Clause 93(1)(d) will make it far easier than ever before to put in the evidence of a defendant's previous convictions. Like her, I ask myself why the Government are doing it. The only answer I can think of is that they want to increase the conviction level but not necessarily the justice of those convictions. If,
"evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged",
is to be part of the future burden of proof, there is a real risk that many people will be convicted on the basis of their past rather than the offence they are alleged to have committed.
Is it seriously said that the trial of a 50-year-old man charged with burglary—perhaps he put his hand through a window on a summer's afternoon to take something that was readily available—could in cross-examination include evidence that, at age 14, with others, he committed an offence of burglary? Such a proposal reeks of the danger and possibility that people will be convicted on their past rather than on the evidence. Individuals and juries could well put undue importance on a person's previous convictions.
Such convictions could be put before the jury without the leave of the judge. It is true that subsection (3) says the court may not admit that evidence if there is an application by the defendant to exclude. However, those very words, as against the necessity of persuading the judge to allow the evidence to be introduced, imply that we are changing the burden of proof.
I listened with interest at an earlier stage to the speech by the Minister, for whom I have great respect and regard. She said that the Government are doing nothing here but putting into statutory form the rather complicated position concerning similar fact evidence. With respect, I think that they are doing more than that. They are not only putting it into statutory form; they are substantially reversing it by changing the burden of proof.

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As has been made clear in almost all our debates this evening, beginning with that on the wording of Clause 90, the Government ought to look back and see whether they can relate the wording concerning admissible evidence of had character to that which currently applies in similar fact evidence. That requires two things. First, to be admissible, the evidence should he both relevant and probative. I do not find much reference to the words "relevant" or "probative" anywhere in Clause 93. That is why I said that, of this Bill as a whole with all its good parts and its bad parts, I believed the most disturbing was that which dealt with the wider ability to introduce defendants' convictions into an ordinary trial. I repeat that the danger is that it is motivated by a desire to see the number of convictions rise and to claim that as a success rather than by the justice of those individual convictions.
I am sorry that the noble and learned Lord, Lord Williams, is not present as I would have said this with greater ease if he were. I should love to know what would have been the reaction of the party opposite if a Conservative government had proposed matters of the kind we are discussing. We know where the noble Baroness, Lady Kennedy of The Shaws, stands on the matter. I suspect, although he is not here, that I might even know where the noble Lord, Lord Brennan, stands. Had a Conservative government proposed such matters, noble Lords opposite would have been out in the street howling about the extreme right-wing nature of a government that changed laws which had applied in this country for many years merely to attain a higher conviction rate.
I should particularly like to know where the noble and learned Lord, Lord Williams, stands. I remember when he was chairman of the Bar Council listening with some degree of infuriation to him speak morning after morning on the eight o'clock programme castigating the government of the day, which was a Conservative government. He said that the Bar Council was totally opposed to this or that measure which Michael Howard, or even milder people like the noble Lord, Lord Waddington, wanted to introduce. I did not necessarily always agree with the noble and learned Lord, Lord Williams, when he said that he spoke for the Bar Council as a whole. However, I cannot help feeling that if he were on the Back Benches of the Opposition at the moment, together with the noble and learned Lord the Attorney-General, for whom I have great regard, and the noble Baroness, Lady Scotland. for whom I have even more regard, they would quietly lead the objections to the changes that we are being asked to accept.
Lord Thomas of Gresford: I hope that the Committee will permit another Queen's Counsel from north-east Wales to speak. I note that the noble and learned Lord, Lord Williams, is standing behind the Bar. Perhaps he will speak on this matter. It is fundamental to the criminal justice system of this country that there is a presumption of innocence. That is where we all start from—that an offence has to be proved by the prosecution to the satisfaction of a magistrate or a jury.
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If you introduce irrelevant past convictions into the equation, is it to be supposed for a moment that the presumption of innocence is the same for a man with those previous convictions as it is for a person of completely clean character? Of course, it is not. When you introduce something like that to distort the criminal justice system as it has grown up there will be miscarriages of justice. There have been so many well-known miscarriages of justice in this country over the past 10, 15 and 20 years that the confidence of the public in the investigation and prosecution of crime has been shaken. I am sure that my noble friend Lord Carlile of Berriew may have had the same experience, but, over the period of my professional life, I strongly suspect that acquittals are more readily to be obtained, particularly in certain parts of the country where miscarriages of justice have taken place because confidence in the police and in the investigation of crime and in the fairness of prosecutions has been undermined. Once you do that, you are hitting at the very root of justice.
We shall no doubt discuss the subsection in some detail at a later stage but noble Lords on these Benches wholeheartedly support the amendment.
10 p.m.
Lord Renton: I must point out before coming to paragraph (d)—the subject of the amendment—that it is in Clause 93(1), which refers to criminal proceedings in general. It does not make any distinction between those proceedings that decide guilt or innocence and those relevant to deciding on the sentence. That should be made clear. It could be quite easily done; we could have words at the beginning such as, "When deciding whether the defendant was guilty or innocent of the offence charged". What follows would be made clear, because on sentence we of course already have evidence of any previous convictions.
Paragraph (d) would be utterly unacceptable in achieving justice, and I warmly support what my noble friend said a little earlier. We get into a very confused situation if we do not regard the whole of subsection (1) as needing redrafting. When deciding innocence or guilt, we must stick to the present well-established system, which has achieved justice time and again.
Lord Carlile of Berriew: I agree with what has been said, particularly with the reasons given by my noble namesake about the importance of the principles at stake. If one reads Clause 93(1)(d) alongside Clause 95, as one must, it seems that a fundamental change is made by the provisions.
We have been using the noble and learned Lord, Lord Williams of Mostyn, as our template. Indeed, my noble friend Lord Thomas of Gresford and I have had the advantage of doing cases with and against the noble and learned Lord when we were all very much younger. I can almost hear the noble and learned Lord protesting to a judge, "But, my Lord, that only goes as to propensity. It is not evidence of the crime charged". The provisions, especially subsection (1)(d), make a presumption that evidence of propensity is evidence of

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guilt of the crime charged. That is the absolutely fundamental change made here. It is a very dramatic change in the law.
The Minister cannot get away with trying to persuade this House—particularly this House, where there is a lot of experience of conducting criminal cases, which continues for many of us—that this is no more than a simplification or codification of the existing law to make it more comprehensible to ordinary people and juries. It is not. The Bar certainly does not think it is, and nor do solicitors. I am quite sure that the judges are as outraged as we are about it, and it promises immense and amoral complexity to the law.
Baroness Seccombe: I did not intend to speak in this debate, but it brought to mind an occasion when I sat as a magistrate on which we had been through all the formalities when a defendant was accused of theft from a shop. We came to the first witness—the owner of the shop. Having pointed out the defendant—the person connected with the offence—he was asked what drew his attention to the lady, to which the answer was, "I had seen her do it before". There was absolute consternation in the court, and the whole case was adjourned and had to be heard by another Bench. How glad I was, because it is so wrong that anyone, whether jurors or magistrates, should know about previous convictions.
Lord Mayhew of Twysden: The Minister was having a pretty torrid time tonight and conducted herself with her usual coolness, sang-froid and courtesy, but would she be good enough to say what the reason is for the change? Is it, as we were given to understand earlier, in order to make simple what is at present complex, or is it something else and if so, what?
Baroness Scotland of Asthal: I say straightaway that I understand the anxiety that has been expressed about the new change. I may not share it, but I understand it, because any time one embarks on what appears to be a significant change from that which is known, loved and accepted, it provides us all with a challenge. I empathise with the statements made thus far, but I would like to respond directly to some of the questions raised by the noble Lords, Lord Thomas of Gresford and Lord Carlile of Berriew—this was touched upon by the noble Lord, Lord Carlisle—about the reason for the changes being made, and to seek to answer the noble and learned Lord, Lord Mayhew.
The changes have not been made in order to generate more convictions for convictions' sake. The Government are as committed and as passionate about justice as any who have already spoken in the Chamber. However, it is right that we want to bring more people to justice justly and fairly. It would be wrong to fail to recognise that there is the perception outside the Chamber that we have not been able to get the balance just right and that many do not understand what our rules are, not least because of the way in which they have developed over a period of time—we
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explored that earlier in debates—and because we have had fragmented development, which has not always been easy to follow. We are making a genuine attempt to put those provisions in one place to make them accessible.
I have listened with great care to everything that has been said, not all of it with the temperance with which I would perhaps have been more comfortable, but I understand the passion of those saying it. Passion, quite often, is the odd bedfellow of temperance. While I understand that, it would be quite wrong and unjust to accuse the Government of seeking to rebalance the system in a pernicious and unfair way. That is not what we intend.
If noble Lords would care to do the exercise that I have sought to do, by going through each and every provision, they will be comforted to find that there is already authority supporting virtually all that is in Clause 93. However, it is right that in Clause 93(1)(d), the Government are making an attempt to broaden the issue a little further. Amendment No. 141, tabled in the name of the noble Lord, Lord Hodgson, and the noble Baroness, Lady Anelay, and spoken to so ably, as always, by the noble Lord, Lord Kingsland, would test the issue a little further. I have spoken in general terms about the new scheme.
Clause 93(1)(d) is intended to create a presumption that certain convictions will be relevant to a case and should therefore be admitted, unless their probative value is outweighed by their prejudicial effect. I know that sometimes, for the purposes of the beauty of the argument, it is almost convenient to forget about Clause 93(3), but we really should remember it because it is that which speaks of probative value. I take this opportunity to remind Members of the Committee of it because it states:
"The court must not—
therefore, we have a mandatory provision—
"admit evidence under subsection (1)(d)"—
about which we are now talking—
"(e) or (h) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
As I said earlier, that drafting of Clause 93(3) is drawn directly from Section 78 of PACE. The drafting has already been considered and interpreted to include the test in the common law under which probative value and prejudicial effect are weighed against each other. We have adopted that drafting precisely because it has been interpreted in this way and will be clear, rather than adopting a new form of words which may cause confusion.
Therefore, to be read into Clause 93(1)(d) is that nothing that falls within that category could or should be admitted unless it complies with the injunction set out in Clause 93(3)—that is, its probative value should outweigh its prejudicial effect. That is a principle with which we have all been comfortable for a very long time and have become increasingly so as the jurisprudence has developed.

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I believe it would be quite unjust, even if one were to differ on whether it is right to go one stage further, as Clause 93(1)(d) appears to do, to say that that is for some pernicious or ill intent. It is not. The court still has the ability to hold burden.
However, I do not believe that we should run away from the idea that the things included in Clause 93 do not already impinge on the way in which our courts operate. They are an expression of the jurisprudence which we all respect and by which, if we are practitioners, we are bound.
As I said, the test is designed to reflect the existing position. Therefore, Clause 93(1)(d) and, indeed, our intention in including it in legislation is to create a presumption that certain convictions are relevant and should be admitted. That would not be conclusive but would provide a clear starting point for admissibility that reflects the reality of the operation of the similar fact rule.
I am aware that a separate amendment has been tabled specifically to limit this clause to convictions for the same offence and to remove the inclusion of convictions for a similar offence. That is Amendment No. 143 in the names of the noble Lord, Lord Hodgson of Astley Abbotts, and the noble Baroness, Lady Anelay, who I see nodding her assent. Although that amendment is in a different group, the amendment that we are considering—Amendment No. 142—would remove the admissibility of a conviction for both the same offence and a similar one. Therefore, perhaps I may say a few words about similar offences.
The case for extending this provision to convictions for similar offences is strong. Their probative value may be just as strong as convictions for the same offence—for example, if someone has previously committed actual bodily harm, the fact that he had previous convictions for grievous bodily harm should be admissible just as readily as a previous conviction for actual bodily harm. That is the case as the probative value lies not in the fact that the defendant committed that particular crime but in the nature of the offence. In this case, the probative value lies in the violence of previous offences.
Lord Thomas of Gresford: Does the Minister not agree that that simply goes to propensity? We have always turned our face against evidence of propensity.
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All she is saying is that the fact that you have assaulted someone before just proves propensity to assault somebody else.
Baroness Scotland of Asthal: It does not go just to propensity. Indeed, the noble Lord will know that there are many cases that currently allow such evidence to be admitted. We are not going significantly further than that. As I say, the law in this area has been beset with complexity and confusion. The new statutory scheme is intended to set out a clear and predictable set of rules.
Clause 93(1)(d) promotes that aim by providing a clear and simple route to admissibility that will assist the courts and practitioners alike. I emphasise that Clause 93(1)(d) will remain subject to Clause 93(3), which means that probative and prejudicial have still to be weighed in the balance. That is an issue on which the judges of this country have always been entrusted with the ability to determine. I think that noble Lords in this debate will agree with me that they have determined it in a way which has always inured to the benefit of justice.
Lord Kingsland: I am much obliged to the noble Baroness. What she seems to be saying in a nutshell is, "Yes, Clause 93(1)(d) does go beyond the existing law"—I would suggest that it goes way beyond the existing law—"but we should not really worry about that because the defendant will have the protection of Clause 93(3) in relation to (d)".
That may or may not be true. We shall consider Clause 93(3) on another occasion not, I trust, tonight. But that is no excuse and no justification for the way that Clause 93(1)(d) has been drawn. It will allow offences that have nothing whatever to do with the offence with which a person is charged to be brought in evidence against them. Quite apart from the general principle of doing that, I can see no justification for the Government expanding the geography of the definition of had character to that extent.
I shall not invite the Committee to divide on this matter now. I beg leave to withdraw the amendment but I shall certainly return to it on Report.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: I beg to move that the House do now resume.
House resumed.
House adjourned at eighteen minutes past ten o'clock.