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Lord McIntosh of Haringey: I am about to make some disobliging remarks. Before I do so, I acknowledge that the Minister is right in drawing attention to Clause 19(1) and the fact that that brings other investigating officers under the scope of the code of practice. To that extent, and it is very considerable, my amendment is misconceived and I shall not pursue it.

I see from Clause 19(1), which I should have examined more closely, that the obligation on persons other than police officers is only to "have regard to" any relevant provision of the code. I have been involved in too many debates across this Table on the significance of the phrase "have regard to" not to know that there is

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a difference between having regard to something and conforming to something, complying with something, or other phrases to the same effect. When we argued that people should "comply" with a code or with a direction from a department, we were told very firmly, no, it should be "have regard to" rather than "comply". I am therefore prompted to think that at the next stage of the Bill we shall have to return with an amendment to Clause 19(1) to strengthen the obligation on persons other than police officers.

I want to say a word about the Minister's argument about the Secretary of State not being responsible for other than police officers. My understanding is that in legislation there is only one Secretary of State and the Secretary of State is responsible for all aspects of any legislation that comes before Parliament whichever particular department may be promoting the Bill. The expression of the noble and learned Lord, Lord Hailsham, confirms me in that view.

Therefore, it is not good enough for the Minister to say, "My Secretary of State is the Home Secretary and he does not have responsibility for other departments of state". In legislation the Secretary of State has responsibility for all departments of state. If he then wishes to issue subordinate legislation, it will of course be proper for him to do so, in conjunction with the Secretary of State for the Environment, for trading standards officers or whomsoever it may be, and therefore for other investigating officers. But the whole basis of the executive responsibility to Parliament is that the Government as a whole are representative of Parliament. If Parliament wants something to be done, departmental boundaries will not inhibit its being done. I ask the Minister to look again at the brief with which she was provided. I ask her to consider whether it represents the way in which she or any other government Minister wants to introduce legislation before Parliament because in my view it is not only mistaken but damaging to the power of government to seek commitments from Parliament to legislative change.

Having made those disobliging comments, I return to my obliging comments. The Minister is right about Clause 19, and I was wrong. There is work still to be done, but in recognition of the correctness of her response on that matter, I beg leave to withdraw Amendment No. 64.

Amendment, by leave, withdrawn.

[Amendment No. 65 not moved.]

Lord McIntosh of Haringey moved Amendment No.66:

Page 10, line 39, at end insert ("including samples").

The noble Lord said: This is simply a probing amendment. A definition of "material" in paragraph 2(e) of the code states:

    "material of any kind, including information and objects, which is obtained in the course of the criminal investigation".

I believe that there has been legal debate about whether that in fact includes samples. I know that the code refers to "material of any description", but I should

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be grateful for confirmation that it includes samples of material as well as the original material itself. I beg to move.

Baroness Blatch: I believe that I am able wholly to satisfy the noble Lord on this point. Since "material" includes "objects of all descriptions", it includes objects which may be described specifically as samples. There would have to be some particular reason for singling out samples rather than any other object and I am not sure that I understand what that would mean anyway. The noble Lord will be aware that the Police and Criminal Evidence Act 1984 already makes specific provision for the retention of samples in accordance with its provisions and for their destruction in certain circumstances. If the noble Lord takes the view that objects do not include samples unless expressly defined to include them, the amendment will not ensure that samples are disclosed to the accused. That is because it does not affect the definition of "material" for the purposes of the disclosure provisions in Part I. I can say that samples are subsumed in the definition.

Lord McIntosh of Haringey: I am indeed wholly satisfied with that answer. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 agreed to.

Clause 16 [Code of practice]:

Lord McIntosh of Haringey moved Amendment No. 67:

Page 11, line 2, leave out ("designed").

The noble Lord said: Clause 16 introduces a code of practice for the first time. It does so in rather curious words. Subsection (1) states:

    "The Secretary of State"--
not the Home Secretary--

    "shall prepare a code of practice containing provisions designed to secure ... (a)",
and so on. The code is "designed to secure".

Does that mean that the provisions are allowed to fail to secure and the code is not to be held to account if they fail to secure? I cannot see what the word "designed" adds to the meaning of that clause, unless it is to imply a weakening of the intention to secure the objectives of the code of practice. I cannot see why we should support what, in effect, are weasel words--words which do not help the definition or the efficacy of the code of practice. I do not believe that anything would be lost and feel that a considerable amount would be gained if this amendment were agreed to. I beg to move.

Lord Campbell of Alloway: I support the noble Lord. The only effect of that word is to qualify the efficacy of the intendment of this section. There is no justification at all for it.

Baroness Blatch: I am not so sure that the amendment has any practical effect. It seems more natural to me to say that a code of practice contains provisions which are designed to secure certain things rather than that the provisions secure them themselves.

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The code secures nothing. It is designed to make sure that the processes that follow secure what is designed by the code.

Since Clause 16(1) requires the Secretary of State to prepare a code of practice which at that time has no effect in law and since the things to which the provisions relate are all in the future, I cannot see how its provisions can properly be said to secure anything, although the code may be designed to secure it. That is the reason for designing. The code itself does not secure it. It is the practice that follows according to the code which secures the proper practices.

4.15 p.m.

Lord Campbell of Alloway: But, with respect, it has an effect in law under Clause 19(3). Any breach of that code has to be taken into account in such a manner--I paraphrase--as the judge considers appropriate to the question in issue. It has a legal effect. I hope that it will have parliamentary approval. With the greatest respect, I believe that my noble friend's brief is again adrift on this point.

Lord McIntosh of Haringey: I feel that there ought to have been a reply from the Minister to that point. I still feel that there should be a reply.

Baroness Blatch: I can only rest my case by saying that the code is designed to secure a proper process. People must have regard to it. Of course, the code will be designed and come before the Chamber for approval. Its primary aim is to secure a proper process.

Lord McIntosh of Haringey: The noble Lord, Lord Campbell of Alloway, rightly referred to Clause 19(3) which states that:

    "In all criminal and civil proceedings a code in operation at any time by virtue of an order under section 18 shall be admissible in evidence".
That means that it has legal status. It is no good saying that the code is not designed to do anything but its provisions are designed to do something, which was the Minister's first argument, because the code consists of its provisions, nothing more and nothing less. Nor is it enough to say, as the Minister said in her second argument, that because the phrase is in the future--the Secretary of State "shall prepare"--it does not secure anything until it has been passed in whatever form it is approved.

Legislation is designed--I nearly said "designed to secure" and that would have been very dangerous--to put something on the statute book; to create laws. It is not there at the time of enacting the legislation, but when the legislation is enacted all parts of that legislation have effect, whether they are on the face of the Act or in codes of practice which follow on the Act. Since the Bill specifically states in Clause 19(3) that the code of practice is admissible in evidence we need to have the strongest possible words for the intention of the Government in drawing up that code of practice. To my mind, that involves removing the word "designed" which, as the noble Lord, Lord Campbell of Alloway,

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recognised and agreed, weakens and serves only to weaken the intention of the Government in drawing up the code of practice.

I do not want to divide the Committee on this matter and had not intended to do so but I should like to have a better answer from the Minister than we have heard so far.

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