The
Committee consisted of the following
Members:
Chairmen: †
Frank
Cook,
Mr.
Roger Gale
†
Bellingham,
Mr. Henry
(North-West Norfolk)
(Con)
Boswell,
Mr. Tim
(Daventry)
(Con)
†
Brown,
Mr. Russell
(Dumfries and Galloway)
(Lab)
†
Eagle,
Maria
(Parliamentary Under-Secretary of State for
Justice)†
Garnier,
Mr. Edward
(Harborough)
(Con)
†
Gray,
Mr. James
(North Wiltshire)
(Con)
†
Hesford,
Stephen
(Wirral, West)
(Lab)
†
Howarth,
David
(Cambridge)
(LD)
Howarth,
Mr. George
(Knowsley, North and Sefton, East)
(Lab)
†
Iddon,
Dr. Brian
(Bolton, South-East)
(Lab)
†
Kidney,
Mr. David
(Stafford)
(Lab)
†
Lucas,
Ian
(Wrexham) (Lab)
†
Michael,
Alun
(Cardiff, South and Penarth)
(Lab/Co-op)
†
Moon,
Mrs. Madeleine
(Bridgend)
(Lab)
†
Prentice,
Bridget
(Parliamentary Under-Secretary of State for
Justice)Robertson,
Angus
(Moray) (SNP)
†
Willott,
Jenny
(Cardiff, Central)
(LD)
†
Wright,
Jeremy
(Rugby and Kenilworth)
(Con)
Alan Sandall, Committee
Clerk
† attended the
Committee
Public
Bill Committee
Tuesday
10 March
2009
(Morning)
Written evidence to be reported to the House
CJ
28 Ministry of Justice
(supplementary)
CJ
29 Ministry of Justice
(supplementary)
10.30
am
Mr.
Edward Garnier (Harborough) (Con): On a point of order,
Mr. Cook. My hon. Friend the Member for North-West Norfolk
and I learned over the weekend that the Government propose to drop
clause 152 concerning the data-sharing provision on which we have spent
a good deal of time in Committee. Indeed, it also took up time on
Second Reading. Through you, I ask the Government to clarify their
position in regard to clause 152. Such action is an extraordinary way
in which to construct a Bill. It is in bad enough shape as it is
without the Government adding yet more clauses, as they frequently do,
and then pulling one out in the middle of Committee proceedings. My
hon. Friend will try to catch your eye to deal with a parallel but not
identical point. It is deeply confusing and reprehensible to construct
legislation in this way.
Mr.
Henry Bellingham (North-West Norfolk) (Con): Further to
that point of order, Mr. Cook. The Minister has made it
clear in Committee that the Government would work with the Opposition
to find a solution and that nothing would be said to anyone until such
meetings had taken place. In
The Sunday Telegraph last Sunday,
under the headline, “Backlash forces U-turn on sharing private
data”, it was reported that the Secretary of State “is to
shelve proposals”, and that, according to a spokesman,
he
“recognised
that the clause was drafted in a way that was too wide, so it needed to
be looked at
again.”
Surely
Ministers should not have been talking to the press before talking to
Opposition spokesmen. If an announcement is to be made, it should be
made not in the press but in this Committee. You are an upholder of
Back-Bench rights and the rights of shadow spokesmen, Mr.
Cook, so surely Ministers should be careful about what they do in such
circumstances.
The
Chairman: The hon. Gentleman makes his point clearly. I am
sure that the Government will have taken note of what he said and,
given the opportunity, I am sure that they will
respond.
The
Parliamentary Under-Secretary of State for Justice (Bridget
Prentice): Further to that point of order, Mr.
Cook. I accept that the Committee in its scrutiny is aware of the
difficulties with clause 152. In fact, I have said in Committee that I
want to see
whether
“we
can come up with a more streamlined version that takes into account the
fact that Parliament has a role in scrutinising the decisions of
Ministers”.——[Official Report, Coroners
and Justice Public Bill Committee, 26 February 2009; c.
390.]
I also
said:
“I
acknowledge that the clause as drafted has the potential to be far
wider than it is intended to
be.”——[Official Report, Coroners and
Justice Bill Public Bill Committee, 26 February 2009; c.
386.]
As a result of our
scrutinising matters in Committee, we have decided to remove clause
152. I apologise to the hon. Member for North-West Norfolk that such
details should have appeared in the press before they were brought to
the attention of the Committee. However, I have followed the proper
process and have asked Cabinet colleagues to withdraw the clause from
the Bill so that we can have further consultation. I hope that we shall
be able to look at how we can draft a more appropriate clause, not
necessarily under the Bill, but at some further stage, so that we can
put in place a proper data-sharing provision. I hope that I have
clarified the
position.
Clause
87
Examination
of accused through
intermediary
David
Howarth (Cambridge) (LD): I beg to move amendment 464, in
clause 87, page 50, line 24, leave
out ‘accused’ and insert
‘defendant’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 465, in clause 87, page 50,
line 27, leave out ‘accused’ and insert
‘defendant’.
Amendment
466, in
clause 87, page 50, line 30, leave
out ‘accused’ and insert
‘defendant’.
Amendment
467, in
clause 87, page 50, line 33, leave
out ‘accused’ and insert
‘defendant’.
Amendment
448, in
clause 87, page 50, line 33, at
end insert—
‘(2A) The court
may give a direction under subsection (3) if, and only if, it has made
a determination that the defendant is fit to
plead.’.
Amendment
468, in
clause 87, page 50, line 35, leave
out ‘accused’ and insert
‘defendant’.
Amendment
469, in
clause 87, page 50, line 39, leave
out from first ‘the’ to end and insert
‘defendant, questions put to the
defendant,
and’.
Amendment
470, in
clause 87, page 50, line 41, leave
out ‘accused’ and insert
‘defendant’.
Amendment
471, in
clause 87, page 51, line 2, leave
out ‘accused’ and insert
‘defendant’.
Amendment
472, in
clause 87, page 51, line 3, leave
out ‘accused’ and insert
‘defendant’.
Amendment
473, in
clause 87, page 51, line 4, leave
out ‘accused’s’ and insert
‘defendant’s’.
Amendment
474, in
clause 87, page 51, line 6, leave
out ‘accused’s’ and insert
‘defendant’s’.
Amendment
475, in
clause 87, page 51, line 7, leave
out ‘accused’ and insert
‘defendant’.
Amendment
476, in
clause 87, page 51, line 9, leave
out ‘accused’ and insert
‘defendant’.
Amendment
216, in
clause 87, page 51, line 10, leave
out ‘Act 1983’ and insert ‘Acts 1983 or 2007 as
appropriate’.
Amendment
485, in
clause 87, page 51, line 11, leave
out first ‘and’ and insert
‘or’.
Amendment
477, in
clause 87, page 51, line 12, leave
out ‘accused’ and insert
‘defendant’.
Amendment
478, in
clause 87, page 51, line 15, leave
out ‘accused’ and insert
‘defendant’.
Amendment
479, in
clause 87, page 51, line 21, leave
out ‘accused’ and insert
‘defendant’.
Amendment
480, in
clause 87, page 51, line 23, leave
out ‘accused’ and insert
‘defendant’.
Amendment
481, in clause 87, page 51, leave out
line 25 and insert
‘defendant is able to see and hear
the examination of the
defendant.’.
Amendment
482, in
clause 87, page 51, line 43, leave
out ‘accused’ and insert
‘defendant’.
Amendment
483, in
clause 87, page 51, line 45, leave
out ‘accused’ and insert
‘defendant’.
Amendment
484, in
clause 87, page 52, line 2, leave
out ‘accused’ and insert
‘defendant’.
Amendment
256, in
clause 107, page 66, line 3, leave
out ‘Act 1983 (c. 20)’ and insert ‘Acts 1983 and
2007’.
David
Howarth: The Minister’s last point should lead the
entire Committee to celebrate the fact that clause 152,
which received little support from hon. Members, has now been
withdrawn. I thank her for her
statement.
Clause
87 is about examining a defendant through an intermediary if the
defendant suffers from a disability that makes it difficult for them to
participate effectively in the proceedings. The logic behind the
clause, as I understand it, is that provision already exists to help
witnesses in such circumstances, and since defendants are also often
witnesses they should be offered the same facility. There are questions
to be asked about why the criteria for defendants seem to be much
stricter than those for prosecution witnesses. Either way, it is
arguable that it is an improvement for the defendant, because they do
not have to apply for intermediary help, but they are allowed to do so
through their counsel.
There is one
obvious difference between witnesses and defendants: witnesses are not
on trial. The question arises with regard to a defendant—but not
a witness—of why a person who suffers from a disability that
interferes with his or her ability to participate effectively in the
proceedings should be on trial in the first place. I accept that it is
possible for that not to be the case and that the person with a
disability could, with the help of an intermediary, overcome the
disability for the purposes of the trial. But it is not clear to me
exactly what kind of case—what sort of person, disability or
circumstance—the Government have in mind, and I will ask them to
put that on record. Even if there are such cases, as there might well
be, obviously that will not always be so. That is why we tabled
amendment 448, which provides the safeguard that, before moving to the
procedure laid down in the clause, the court must ask itself whether
the defendant is fit to
plead.
For
example, if the defendant cannot comprehend the proceedings so as to
make a proper defence, or to challenge jurors, understand evidence or
give instructions to his or her legal advisers, the defendant is not
fit to stand trial in the first place, at which point the judge has a
number of options. The judge can make a guardianship order, a
supervision and treatment order, or simply give the defendant an
absolute discharge. The Government might say that the defence could
raise that point anyway, because the defence is able to raise the
fitness to plead point itself, but it might not. If it does not, there
is no obligation on the court, as I understand it, to raise it of its
own motion, although the court may do so if it wishes.
Another
argument against the proposal is that the defence might have a tactical
reason for not wanting the issue of fitness to plead to
arise—for example, if they
do not want there to be the possibility of a supervision and treatment
order. The question is why a defendant who is not fit to plead should
be treated as one who is. If the problem is that the options open to
the court on a finding of unfitness to plead are not flexible enough,
perhaps we should revisit that area of the
law.
Amendment
485 points to an apparent anomaly in the way in which under-18s and
adults are treated under the clause. For an under-18 to qualify for an
order, the defendant’s ability to participate
effectively in the proceedings must have been compromised by their
level of intellectual ability or social functioning, which seem to be
two different ways of describing a learning
disability.
However,
for an adult to qualify, the defendant must be
“unable to
participate effectively in the
proceedings”,
either
because of a mental disorder, or because of a
“significant
impairment of intelligence and social
function”.
Three
questions therefore arise out of the way that the clause is drafted.
First, why does mental illness count for adults, but not for under-18s?
Secondly, why is the test for under-18s that their ability to
participate effectively is compromised by their condition, whereas an
adult must be “unable to participate”? The under-18 test
seems to be much easier than the over-18 test. The third point, which
is specifically the subject of amendment 485, is why does
the possibility of an order arise for an under-18 if there is either a
problem with the defendant’s intellectual ability, or with the
defendant’s social functioning, whereas for an adult it must be
both a matter of intelligence and a matter of social function? In
passing, what is the reason for the apparently unnecessary variation in
phraseology—intellectual ability on one side, and intelligence
on the other; social functioning on one side, and social function on
the other? Those are my main points.
The other
amendments in the group simply raise the verbal question of why the
clause maintains the old-fashioned language of the
“accused” instead of the modern language of
“defendant”.
