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Lord McIntosh of Haringey: Is there some confusion about the numbering? We are talking about amendments in the 50s. Is the Minister referring to page 21?

Baroness Blatch: The noble Lord is absolutely right, but I have to say that I do not have the relevant brief with me. I do not know whether the Committee is sufficiently indulgent as to allow me to go on to speak to Amendment No. 62 and return to this amendment, or whether that is not allowed.

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9 p.m.

Lord Harris of Greenwich: What will happen? We are in a state of mild confusion and difficulty. What exactly is it suggested that we should do?

Baroness Blatch: I am advised that the best I can do now is not to move the amendments and return to them at the next stage of the Bill if that is agreeable.

[Amendment No. 54 not moved.]

[Amendments Nos. 55 to 61 not moved.]

Lord McIntosh of Haringey moved Amendment No. 62:

Page 23, line 22, at end insert:
("( ) In every report made under sub-paragraph (1) the Commission shall, on the basis of their investigations into cases and references to the Court of Appeal, make such recommendations to the Home Secretary as they consider necessary for changes in law, procedures and practices.").

The noble Lord said: This is a modest amendment, as befits its place in a schedule rather than the main body of the Bill. I hope that the Minister will feel that it is a reasonable but small extension of the responsibilities of the commission in compiling its annual report.

At the moment the schedule is entirely vacant in what it says should be included in the annual report. But from the public point of view, and that of ensuring that the improvements in the criminal justice system which are supposed to be brought about by the Bill actually come about, it is a matter of great concern. No body is better qualified than the commission to make recommendations for such further consequential changes as may be necessary. Only the commission has the control, supervision, direction—or whatever word we choose to use—of the investigations and can therefore bring together the case experience of its work and of the submissions it makes to the Court of Appeal for public consideration by means of its annual report to the Home Secretary.

One can imagine a number of examples of the opportunities that it may have and the contribution it may make; for example, the application of the complex rules of the Police and Criminal Evidence Act formulated in codes of practice which we agreed in this Chamber only a couple of months ago. They are enormously complicated. They evolve over time—without any criticism being made of those who devise them in the first place—and whether or not they work will be more apparent to the commission than to any individual police force.

A less happy example perhaps is the provisions of the Criminal Justice and Public Order Act 1994. Some of us, as the Minister will know, felt at the time that short cuts were being taken in the Act, notably the increase in comment that might be made on the exercise of the right to silence, which posed a serious danger to the criminal justice system. Many of the changes have only come into force in the past month or two. But over time and during the early life of the commission, we shall need evidence in regard to the extent to which the changes introduced by the 1994 Act have affected the risk of miscarriages of justice. The possibility cannot be ruled out that miscarriages of justice may be greater as a result of the 1994 Criminal Justice and Public Order Act than they were before.

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The Minister does not have to agree with that analysis of the 1994 Act, but I hope that she will agree that it will be in the interests not only of the commission but also of the criminal justice system and the public as a whole for the commission to be positively encouraged, as it is in Amendment No. 62, to make recommendations in the context of its annual report on matters upon which the commission knows far more from detailed investigation than anybody else. I beg to move.

Baroness Blatch: I hope that I shall be able to allay the fears of the noble Lord because the point he makes with regard to informing the Secretary of State is important. I appreciate the intention behind the amendment and agree that if the commission comes across some aspect of the criminal justice system which causes concern it should draw it to the attention of the Secretary of State and no doubt will do so from time to time.

The Bill as drafted does not preclude the commission from doing that. Indeed, the requirement that it places upon the commission to produce an annual report on the discharge of its functions affords it the opportunity to do so if necessary. But that is a different matter from requiring the commission to make recommendations for change in its annual report. Placing the members of the commission under a duty to make recommendations would have the effect of extending the commission's role and require that part of the commission's resources to be devoted to monitoring current arrangements and developing proposals for change.

The commission is not intended to be a watchdog on the criminal justice system and its individual components. Its role is to investigate possible miscarriages of justice and refer those cases, which in its view meet the criteria for referral, to the courts. Its resources must be devoted to that task. It is absolutely essential that where it believes that points are coming through about which it would wish to recommend changes to the law it is absolutely free to convey that to the Home Secretary. To alter the commission's role in the way proposed would not be right and I cannot therefore commend the amendment to the Committee.

Lord Harris of Greenwich: If a form of words was devised which gave a clear indication that the commission would be encouraged to do precisely that, would that be acceptable to the Government?

Baroness Blatch: My understanding of statute is not that it is words of encouragement. That can be given in guidance or by other forms of exhortation. As I understand it, legislation relates to duties and obligations.

Lord Harris of Greenwich: I understand that the role of the commission is that in appropriate cases it draws to the attention of the Secretary of State what it regards as a defect in the law following its consideration of a case. Were such an approach to be put forward, is the noble Baroness prepared to indicate that she will consider it?

Baroness Blatch: I have made it absolutely clear that the commission can do that. There is absolutely nothing to prevent or preclude the commission from giving the Secretary of State advice about possible changes to the

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law. If one accepts the Pepper v. Hart guidance, then the words are now on the pages of Hansard, or will be by tomorrow morning.

Lord McIntosh of Haringey: The amendment does exactly what the noble Lord, Lord Harris, is asking for. It says that,

    "the Commission shall"

I admit that it says "shall" rather than "may"—

    "make such recommendations to the Home Secretary as they consider necessary for changes in law, procedures and practices".

Therefore, all of what the Minister said about putting all these terrible obligations on the commission is quite wide of the mark. If it does not want to make any recommendations, if it does not think it is necessary, it does not have to do so. All we are doing is seeking to take advantage of the unique position of the commission to understand the way in which miscarriages of justice occur all over the country and to say to it, "As you go about your day-to-day work of investigation, think always what it means and how it might be possible to take advantage of your knowledge in order to reduce the occurrence of miscarriages of justice in the future".

The Minister has said that nothing precludes the commission from saying that—on that basis, I shall not press the amendment to a vote—but she is quite wrong in saying that there is anything unusual in putting an obligation of this kind on a commission of this kind. It is the commonsense continuation of the work it is doing on a day-to-day basis. It is a way of ensuring that it does so under the eye of the cosmos, so to speak, and that it does so in full consciousness of the implications of its work in a wider sense. Indeed, I should have thought that the Government would have welcomed an opportunity to encourage the commission actually to seek a reduction in its workload by improving the law, improving practice and improving procedures in order to make sure that fewer cases have to come before it in future years. I do not know whether the Minister wants to add anything to what she has said.

Baroness Blatch: I believe that the commission can do that. If the commission feels that it wishes to give advice to the Home Secretary, it can do that. The amendment says:

    "In every report made under sub-paragraph (1) the Commission shall",

and so on. All we are saying is that there is very little between us in that we should do nothing to inhibit the commission from giving the Home Secretary advice about its view of improvements to the law.

Lord Harris of Greenwich: I see the point that the noble Baroness has made and I am encouraged to hear that she thinks there is nothing between us on this matter. I am sure that the noble Lord, Lord McIntosh, and I both hope that there is not anything between us. However, I hope that between now and the next stage of the Bill the noble Baroness will agree to look at this matter. I take her point about the use of the words "in every report" and the use of the word "shall". But having made that concession at her direction, I really do hope that she will consider this matter.

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It seems to me that the noble Lord, Lord McIntosh of Haringey, is absolutely right. It is highly desirable that this should appear on the face of the Bill. The noble Baroness is quite right in saying that the commission can, if it so chooses, make any representation it wants to any Minister. But we are talking here about an important new commission which has been established because of major miscarriages of justice. In that situation it is highly desirable to try to reach some common agreement on this point. All I am saying to the noble Baroness is that I hope that she will agree to look at this matter between now and the next stage of the Bill to see whether in fact we can reach some form of agreement.

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