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Baroness Blatch: It would appear that the intention of the noble Lord, Lord McIntosh, here is to ensure that a convicted person will be given details of the information found by the commission in the course of its inquiry so that he may make further representations on his case before any decision is taken to refer it or, when his case is referred, to enable him to prepare for the resulting appeal.

Clause 13(7) requires the commission where a case is referred to provide the court with a statement of its reasons for referral. This statement must be sent to all those who appear to the commission to be likely parties to the resulting appeal, but the person whose case is referred will be fully aware of the commission's reasons for making the referral.

The duty of disclosure, as in all appeals, will rest on the Crown in the form of the prosecution rather than on the commission. Of course, that means that the commission will have to assist the Crown in order to enable it to discharge its duty. But there would be a good deal of potential for confusion and mistake if the commission and the prosecution were to be involved simultaneously in disclosure. The gateways provided in Clause 23(1) are wide enough to enable the commission to make all the necessary disclosures to the Crown.

Clause 13(9) lays a duty on the commission to provide a statement of its reasons for a decision not to refer a case. We intend that this should be a full and reasoned

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explanation. The convicted person will know why his application has been rejected. The commission will, as the Government made clear in the debates on this Bill in another place, be governed by the same duty of fairness and by the same resulting requirements for disclosure as the Divisional Court set out in its judgment last November in R v. Secretary of State for the Home Department ex parte Hickey, which has been mentioned by the noble Lord.

The provisions of Clause 23(1) (e) are sufficient to enable the commission to keep convicted persons informed of the progress being made in investigating their case and, subject to the need for necessary confidentiality, to disclose information to them so that they can, in the interests of fairness, make further representations.

The court expressly recognised in that judgment the need to maintain a balance between disclosure and necessary confidentiality. That will involve in some cases not just matters of public interest immunity, but also the need to protect witnesses. The court expressly recognised too that the decision in such matters had to be taken on a case-by-case basis. We have adopted that principle. The Bill does not therefore impose rigid conditions as regards disclosure, but leaves matters to the commission's direction, operating in accordance with statute which creates it, and subject to review by the Divisional Court. We believe that that is the right balance and the right approach.

In order to reassure the noble Lord, we believe that the Bill's provisions reflect our acceptance of that judgment. As regards the Bridgewater Four, I can say to the noble Lord that I am happy to confirm that we are continuing to make the appropriate disclosures in that case which is being urgently considered now that the police inquiries have been completed. In view of what I have said, I hope that the Committee will understand that I cannot support the amendments, but maybe there is some comfort in my reply.

Lord McIntosh of Haringey: That was a complex and, in some respects, a helpful reply. The Bill is very bald about this matter. It says that the commission shall give a statement of the reasons for their decision to the person who made the application. The Minister has now said—and I am repeating it because it is on the record already and it is useful as regards Pepper v. Hart cases—that they should give a full and reasoned explanation which is rather better than just saying the reasons.

Then the noble Baroness said that there is a duty of fairness as expressed by the Divisional Court in the case of ex parte Hickey and others. She explicitly said that it is the intention that the judgment of the Divisional Court in that case is not being overturned or reduced in any respect by the provisions of the Bill. All those statements are extremely helpful, as is her assurance that the information being given to the advisers of those in the case of Hickey and others and those involved with the Bridgewater case, has now been resumed and will not be curtailed.

On the basis of those statements by the Minister and the expectation that when I come to read her remarks in more detail in Hansard there may be other things which I find helpful, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Clause 13 agreed to.

Clause 14 [Investigations for Court of Appeal]:

Baroness Blatch moved Amendment No. 27:

Page 12, line 23, leave out ("on behalf of") and insert ("for").

The noble Baroness said: In moving this amendment, I shall speak to Amendments Nos. 28 to 30 and Amendment No. 41. I say, with apologies to the Committee, that this is an afterthought by counsel, who are considering the word "obtained" in the Bill. These amendments address that.

Amendments Nos. 27 to 30 to Clause 14 and Amendment No. 41 to Clause 19 are essentially drafting amendments. Clause 14 makes provision for investigations by the commission following a direction by the Court of Appeal under the provisions introduced by Clause 5 of the Bill.

Among other things, the commission is required to report its findings to the court. Subsections (6) and (7) provide for the report to be accompanied by any statements, reports and opinions obtained by them or on their behalf, other than the report of the investigating officer appointed to investigate as a result of a requirement under Clause 18.

We have been looking again at the wording of this provision and have come to the conclusion that the word "obtained" is a little ambiguous. We believe that it could have two meanings in this context—a wide one suggesting "everything that has come into the possession of" the commission and a narrower one which suggests that the commission has caused the document or documents in question to come into being as in, for example, "taking a statement".

The narrower interpretation is clearly unsatisfactory, since it could result in the court not receiving all the documents relevant to the commission's findings. Old reports or opinions to which the commission would have access would not be covered since they would not have been commissioned for the purposes of the commission's investigations.

Amendments Nos. 27 to 30 are designed to replace the word "obtained" with the word "received". That change is proposed to put it beyond doubt that a court will receive all the documents relevant to the commission's conclusions which it has investigated for the court.

Amendment No. 41 makes a similar change to Clause 19(7). As the Committee will know, Clause 19 makes provision for inquiries made by investigating officers pursuant to Clause 18. Subsection (7) requires an investigating officer to attach to his report any statements, opinions or reports obtained by him in connection with his inquiries on behalf of the commission. The word "obtained" could similarly be interpreted in the two ways that I have already described. In seeking to substitute the word "received" for "obtained", the amendment makes it clear that the commission should receive all the statements, reports or opinions gathered by the investigating officer in the course of his investigation, whether obtained by him or commissioned during an earlier stage of investigations into the case. I beg to move.

On Question, amendment agreed to.

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Baroness Blatch moved Amendments Nos. 28 to 30:

Page 12, line 26, leave out ("obtained by or on behalf of the Commission") and insert ("received by the Commission in the investigation of the matter specified in the direction or any related matter investigated by them").
Page 12, line 28, leave out from ("reports") to end of line 31 and insert ("so received.").
Page 12, line 33, leave out ("19") and insert ("19(6)").

On Question, amendments agreed to.

Clause 14, as amended, agreed to.

Clauses 15 and 16 agreed to.

Clause 17 [Documents etc. relating to old cases held by Secretary of State]:

Baroness Blatch moved Amendment No. 31:

Page 13, line 35, leave out ("having considered") and insert ("consideration of").

The noble Baroness said: This is a drafting amendment. Clause 17(1) disapplies the provisions of Clause 16 in relation to certain documents or other material in the possession or control of a person serving in a government department. The amendment makes the extent of the disapplication clearer and, in so doing, brings the wording of Clause 17(1) into line with that in the rest of the clause. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 17, as amended, shall stand part of the Bill?

Lord McIntosh of Haringey: I do not like to speak against the Question that a clause stands part of a Bill. I much prefer to amend the provisions of a clause in detail rather than to attack it in this broad-brush way. However, I am afraid that Clause 17 is so objectionable that there is no civilised way of doing this. The Minister has acknowledged that the amendment which has just been agreed is a drafting amendment only, so the clause remains substantially as it appears in the Bill.

The problem with Clause 17 is a fundamental one. Clause 16, which we agreed without debate, properly provides the powers for the commission to obtain documents which are necessary for its investigations. Clause 17 excepts from that general power documents which are held, according to the sidenote, by the Secretary of State but according to the text of the clause by a person serving in a government department. I do not know whether there is any significance in that difference of wording. Clause 17(3) provides:

    "The Secretary of State shall give to the Commission any document or other material which—

    (a) contains representations made to him in relation to any case to which this subsection applies, or

    (b) was received by him in connection with any such case otherwise than from a person serving in a government department".

So far, so good. However, the subsection then provides that the Secretary of State,

    "may give to the Commission"—

that is, in other words he may not give—

    "any document or other material which is relevant to any such case but does not fall within paragraph (a) or (b)".

That is the really difficult part and why it is so difficult to amend the clause in detail.

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As I said when speaking to Amendment No. 26 which related to Clause 13, in view of the number of miscarriages of justice that have been caused by the failure of the prosecution to disclose all documents or other material, it is ironic that the Bill does not impose on the commission the duty to disclose all the documents. Similarly, it does not impose on the Secretary of State an adequate duty to disclose all the documents.

I am well aware of all the arguments about informers. That point has been well recognised. However, I do not believe that there are not ways of getting round that which are not provided for in the Bill as drafted. There are plenty of ways of ensuring that the identity of informers shall not be revealed and of ensuring that their work for the police is not endangered.

However, the combination of Clause 17 and Clauses 22 to 24, to which I have already referred, bring forward the risk that the right of access to documents which was established by the ex parte Hickey case will be overturned or limited. I say that despite what the Minister said on Amendment No. 26. I recognise that the noble Baroness said that there is no intention of in any way reneging on ex parte Hickey. However, I should now like the Minister to go a little further. Her intention is clearly right, but I now want to be assured that the reasons and opinions which formed the basis of the previous rejection by the Home Secretary will be disclosed and that their disclosure will not be inhibited by the words that I have quoted from the end of Clause 17(3).

It can be argued that the Secretary of State and government departments have an extra right to confidentiality. I do not think that I would care to argue that case too fully given that the Scott Commission has not yet reported, but there are people who would make that argument, and I can see their point. However, the point here is that the Home Secretary and C3, the Home Office, have not been acting in this respect as an Executive, but C3 has been acting, and until the Bill is passed will continue to act, as part of the judicial process. Therefore, the evidence which it produces and the reasons and arguments that lie behind it do not fall into the category of the confidential advice to Ministers which it is normally and properly accepted should not be made generally available. If the Minister is proposing to argue that the advice that she now receives as Minister of State at the Home Office will not be available to me when I am Minister of State at the Home Office in a couple of years' time, I can accept that part of the argument, but I do not accept that it applies to information which C3 gets in its quasi-judicial capacity.

Therefore, although I should like Clause 17 to be amended, I recognise that that is not possible and I am afraid that it is necessary to say that the clause is an undesirable restriction on the proper disclosure provisions which are made elsewhere in the Bill. Therefore, I record my opposition to the Question that Clause 17 stand part of the Bill.

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