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Session 2005 - 06
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Standing Committee Debates

Eighth Standing Committee on Delegated Legislation

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Eighth Standing Committee on Delegated Legislation

The Committee consisted of the following Members:


†David Taylor

†Burden, Richard (Birmingham, Northfield) (Lab)
†Burgon, Colin (Elmet) (Lab)
†Clelland, Mr. David (Tyne Bridge) (Lab)
†Coaker, Mr. Vernon (Lord Commissioner of Her Majesty’s Treasury)
Curtis-Thomas, Mrs. Claire (Crosby) (Lab)
†Foster, Mr. Michael (Worcester) (Lab)
†George, Mr. Bruce (Walsall, South) (Lab)
†Hanson, Mr. David (Minister of State, Northern Ireland Office)
†Harris, Mr. Tom (Glasgow, South) (Lab)
†Holloway, Mr. Adam (Gravesham) (Con)
Lidington, Mr. David (Aylesbury) (Con)
†Öpik, Lembit (Montgomeryshire) (LD)
†Robertson, Mr. Laurence (Tewkesbury) (Con)
Robinson, Mr. Peter (Belfast, East) (DUP)
Selous, Andrew (South-West Bedfordshire) (Con)
†Vara, Mr. Shailesh (North-West Cambridgeshire) (Con)
Tom Goldsmith, Committee Clerk

† attended the Committee

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Tuesday 12 July 2005

[David Taylor in the Chair]

Criminal Procedure and Investigations Act 1996 (Code of Practice) (Northern Ireland) Order 2005

4.30 pm

The Minister of State, Northern Ireland Office (Mr. David Hanson): I beg to move,

    That the Committee has considered the Criminal Procedure and Investigations Act 1996 (Code of Practice) (Northern Ireland) Order 2005.

Welcome to the Chair, Mr. Taylor; I hope that the order will prove uncontroversial. I welcome the opportunity to put the Government’s proposals before the Committee.

The order, a copy of which was laid before the House on 23 June, brings into operation a new code of practice under section 23 of the Criminal Procedure and Investigations Act 1996, and, if approved today, it will come into effect on 15 July. The code of practice has been laid before each House of Parliament in accordance with the statutory requirement under section 77(5) of the Act.

The purpose of the code of practice is to set out the manner in which police officers are to retain, record and reveal to the prosecutor material obtained in a criminal investigation that might be relevant to the investigation. The revised code of practice before hon. Members will replace the current version, which was made in 1997. The basic structure and much of the contents of the new code are the same as those of the current version. However, there are some significant changes that result from changes to the disclosure regime under the Criminal Justice Act 2003. I hope that they will bring the code up to date for use by the Police Service of Northern Ireland.

The new code of practice is required because part 5 of the 2003 Act will commence in Northern Ireland on 15 July. It makes significant changes to the present scheme of pre-trial disclosure in criminal proceedings. As a result, some terminology in the original code is no longer relevant and needs to be amended. For example, there are a number of references in the existing code to the primary and secondary prosecution disclosure tests. The new legislation, which comes into effect on Friday, creates a single new objective prosecution disclosure test to replace the different primary and secondary tests that currently apply before and after the accused has given a defence statement to the court and prosecutor. There are consequential changes in the phraseology of the code, which I hope are not controversial but which do change the nature of the code.

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The terminology of the code of practice has also been amended to take account of legal developments in the area of sensitive or public interest immunity material. The existing code contains a number of references to material that it is not in the public interest to disclose. It has been revised to take account of a House of Lords judgment in a case in February 2004 in which it was determined that the courts should depart from disclosure only when there is a real risk of serious prejudice to an important public interest. That is a significant change: whereas beforehand matters could be held back, that is possible now only on the grounds of real risk of serious prejudice to an important public interest.

As the code has had to be amended because of those two changes, we have looked at it again and proposed other amendments to it. It is eight years since the 1996 Act and the accompanying code of practice came into force. In that time, experience has been gained in the operation of both. It is therefore appropriate that the Government should take this opportunity not only to make necessary or desirable technical amendments to the code, but to improve it more generally.

The new code makes a number of detailed improvements to the existing version, all of which have been welcomed by the bodies to which it applies. One example is the definition of sensitive material in paragraph 2.1. The code now allows local disclosure officers to make their own decisions at local level on whether material is classed as sensitive, rather than having to refer the matter up the line to more senior officials. In addition, paragraph 6.4 requires disclosure officers to complete a schedule of sensitive material, even if only to indicate that there is no such sensitive material available for disclosure. Finally, paragraph 5.1 enables material to be retained in the form of a copy, where that is reasonable, in all circumstances. The existing code permits material to be retained in the form of a copy where the original is perishable or has to be returned to its owner. There are other situations in which the retention of original material is required. Occasionally, that may be both unnecessary and resource intensive. The best example that I can give surprised me. The state had to retain a ship that figured in a drug trafficking conviction for many years, because it could not be disposed of as it was primary evidence.

The consultation on the proposed code has been extensive. The Government have been engaged in discussions with practitioners about the new code since before the Criminal Justice Act received Royal Assent in November 2003. A public consultation document was produced in August 2004, setting out the proposed changes to the existing code of practice. The code for Northern Ireland is broadly similar to the codes that came into effect in England and Wales on 4 April 2005, following affirmative resolutions in the House of Lords and the House of Commons. The present order has already been agreed in another place; it was taken through by Lord Rooker.

A great deal of thought has gone into the document. It has been subject to wide consultation and is welcome. I hope that it is not controversial. It updates
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legislation and changes certain terminology, but, essentially, provides a framework for improved disclosure of information for prosecutions to help criminal cases in Northern Ireland proceed at a fairer, better and speedier rate. I commend the order to the Committee.

4.37 pm

Mr. Laurence Robertson (Tewkesbury) (Con): I welcome you to the Committee, Mr. Taylor.

Having looked at the order, I cannot find anything controversial in it. I am sure that it will be a useful advance on the state of affairs in Northern Ireland and, before the hon. Member for Montgomeryshire (Lembit Öpik) stands up, I will say again that I regret the need to do this sort of thing through statutory instruments. I hope that we shall move from that situation soon. However, for today, I have no objection to the order.

4.38 pm

Lembit Öpik (Montgomeryshire) (LD): I increasingly feel like an observer of the politburo, which probably had more ability to amend proposals before it than we have. Once again, we have an all-or-nothing opportunity to embrace wholeheartedly the Criminal Procedure and Investigations Act 1996 (Code of Practice) (Northern Ireland) Order 2005 or to reject it.

To the best of my understanding, the order is not too controversial. However, the difficulty is that if there were only one thing wrong with it, we would have no capacity to change it. Although the Government claim to have consulted extensively, and I have no reason to think otherwise, what really frustrates those of us who care considerably about the Province is the fact that we have to balance whether the errors are so great that we have to vote against the measure as a whole. That simply cannot be acceptable.

In addition, this is the second time that most of us have assembled today to consider an order. How on earth are we meant to give weighty and mature consideration to statutory instruments when we are working full time just to keep up with the interpretation of what is being proposed? I make that point, Mr. Taylor, on each occasion, because at some point the Government will have to provide a more satisfactory solution. I agree very much with the comments made by the hon. Member for Tewkesbury (Mr. Robertson) about the process.

Having said that, there is a second issue, which the hon. Gentleman mentioned earlier today. We are discussing this order on 12 July. As every member of the Committee knows, that is a significant date for everybody in Northern Ireland, whichever side of the political or religious community they find themselves on. The Minister said earlier that the usual channels had been consulted. I would ask, with the benefit of hindsight, that we collectively be more considerate to those people who are absent today, and who may hold different views from those of the mainland United Kingdom parties. Perhaps the usual channels in all parties need to be more sensitive to that in future.

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The order sets out to do what the Minister described—tidy things up. So, the Liberal Democrats support its content. Our one condition is that something in the small print not spotted by us because of the lack of time could do something dramatic that we did not intend to support. That is the tragedy of the situation. In agreeing with what appears to be a sensible order, we are playing a probabilities game and hoping that we have not missed something significant.

I support what the Minister wants the order to do. I an wholly dissatisfied with the process with which the Minister intends to achieve those aims. The Government still arrogantly refuse to listen to respectful requests from all sides to give us the opportunity to amend legislation should that be desired.

4.40 pm

Mr. Hanson: I am grateful for the support of the hon. Members for Tewkesbury and for Montgomeryshire on the content of the order. I will make two or three comments in response to the issues mentioned.

First, the hon. Member for Montgomeryshire knows that it is the intention of the Government to ensure that, while the Northern Ireland Assembly is suspended, there is widespread consultation on documents and orders that come before Committees. We have had this discussion on every occasion in which an Order in Council has been before a Committee since I was appointed after the general election, so the hon. Gentleman knows that we wish and hope to restore devolved Administration to Northern Ireland. In general terms, the hon. Gentleman knows that we want that.

As it happens, the order deals with matters that are not devolved and are rightly the responsibility of this House. Later this week, we shall discuss the modification order, the suspension of the Assembly and the way in which we deal with legislation and Orders in Council. I know that the hon. Members for Tewkesbury and for Montgomeryshire will contribute to that debate. The hon. Member for Montgomeryshire knows that, subject to any statement made by the IRA in due course, we hope that progress will shortly be made towards restoring devolved Administration in Northern Ireland. That will help with the process that concerns him. We have had this discussion.

I will happily talk to the hon. Gentleman about how we deal with the issue again, but I point out that we share the objective of restoring the devolved Administration and considering how we can have involved discussion on such procedures.

Lembit Öpik rose—

The Chairman: Order. Before the hon. Gentleman contributes, I point out that I intend not to allow any further discussion on the procedure. We must return to the content of the order.

Lembit Öpik: In that case, my contribution would not be appropriate.

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Mr. Hanson: I just wanted to answer the question that the hon. Gentleman raised.

I wish to put two other points on the record in response to the comments that have been made. They relate to the order. First, on consultation, the hon. Gentleman mentioned that he may have some concerns about the document and about the fact that there is no opportunity to amend it today. As I mentioned in my introduction to the order on the code of practice, we had a 12-week consultation.

Consultation responses were received by the Department of Health’s social services inspectorate, the deputy chief inspector of the Department of Trade and Enterprise, the Director of Public Prosecutions for Northern Ireland, the Police Superintendents Association, the Police Service of Northern Ireland and the permanent secretary of the Department of Health. Not one of those included the Liberal Democrats, so if they had a point, they could have read the order and the consultation document and submitted comments to me. I would have acted on them as part of the discussion. The order was consulted on.

Lembit Öpik: I believe that it is in order for me to point out that this is exactly the problem. With the best will in the world, the Minister must understand that we have much more limited resources than he has with which to investigate the ins and outs of the order. I am grateful for the assurance that there has been wide consultation, and I accept that. Without going further
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into the process, I hope that the Minister is satisfied that all sides genuinely feel that the order is acceptable in its current form.

Mr. Hanson: With due respect, I point out that, if the order were amendable, the hon. Gentleman would have had to propose some amendments so that he would be happy with it. If he was not happy with the order, those amendments could have been proposed as part of the consultation, and I would have reflected on them. The resources available to his party are the same regardless of whether the order is amendable.

The Chairman: Order. Will the Minister return to the content of the order?

Mr. Hanson: I am trying to respond to the terminology of the discussion of the order.

The final question on the order was why it is being tabled today. The simple reason is that the statutory instruments Committee, which establishes the Committee to examine the order, was formed only on 5 July. The order must come into play on 15 July, and this was the only opportunity to consider it. The date was decided on through the usual channels.

With those points, I hope that the Committee can accept the order. I thank you, Mr. Taylor, for your consideration.

Question put and agreed to.


    That the Committee has considered the Criminal Procedure and Investigations Act 1996 (Code of Practice) (Northern Ireland) Order 2005.

Committee rose at fifteen minutes to Five o’clock.


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