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Lord Campbell of Alloway: I thank the noble Lord, Lord McIntosh, for his constructive attitude. Again, he may agree that we are discussing whether this provision should be dealt with in the code of practice and whether that is the appropriate way of dealing with the substance of the amendment. Primary legislation may be left as it stands and what is proposed in Amendment No. 69 could be dealt with by way of amplification in the code of practice. But in bringing this matter to our attention in this way he has served an invaluable purpose.

4.30 p.m.

Baroness Blatch: I have made clear that I believe the code of practice to be the best place for such amendments. I have also made clear that where new amendments or modifications are suggested they will be taken into account in refining the code. To that end, it is useful. I hope that the noble Lord and his team will continue to make suggestions if they feel that the code can be improved. That is the process of consultation, and we value it.

Lord McIntosh of Haringey: I ask the Minister what she thinks about this suggestion.

Baroness Blatch: As a non-professional, it would be quite inappropriate for me to discuss the refinement of the code of practice. What is absolutely essential is that all suggestions that are made to modify, refine or improve the code of practice must at least be the subject of professional advice as to the effect and impact they will have and how they will interact with other parts of the code. Therefore, I will not personally discuss the details other than to say that they will be taken into account in refining the code.

Lord McIntosh of Haringey: I do not believe that we have yet reached agreement about what we are trying to do here. Of course, the Minister does not respond personally but responds for the Government. The Government are introducing a code of practice which, we are reminded, is admissible in evidence under paragraph 8. If it is to be admissible in evidence it has to be as good as possible. The only way in which this House can be consulted about the code of practice, which has legal status and which will, under the Bill as

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drafted, be laid before Parliament, is to raise the issues here and seek the reaction of the Government. I ask the Minister to tell the Committee whether the Government believe that there is anything in my argument. Unless I am outraged by her answer, I do not propose to push the matter to a Division and seek to have the agreement of the Committee that it be put on the face of the Bill. But, as the noble Lord, Lord Campbell, recognised, moving amendments is the right way to secure debate. It is no good having a dialogue des sourds. The Minister has to reply. What do the Government think about my suggestion? They have had an opportunity to consider it.

Baroness Blatch: I came to the Dispatch Box prepared to accept these amendments for what they were. This amendment seeks to put a certain matter on the face of the Bill. I have responded to it saying that that is not the appropriate place for it. I have responded both to this amendment and to the previous one by saying that it is a matter for the code of practice. Almost daily we receive from all the key interested parties ideas about the code of practice. It is still out for a consultation. The debate here and in another place will continue to inform those who will compile the code of practice. They will be in receipt of professional advice. I have responded in the best way possible. The ideas that will emerge from this series of amendments, whether they simply repeat the code of practice, modify it or suggest new ideas for it, will be considered seriously, and I shall respond to the noble Lord.

Lord McIntosh of Haringey: The Minister says that she will respond but she is not doing so. She does not tell me what she thinks about this amendment which proposes a new idea for the code of practice. I am sorry to repeat that all of us are in agreement that it is not the intention of this debate to write details of the code of practice onto the face of the Bill because we have already achieved an undertaking to discuss making it more effective secondary legislation. I have no intention of pressing any of these amendments to a Division, but I am entitled to ask for a response to a particular point which the Minister has had time to consider. She may have had a short time but that is not my fault. Amendment No. 70 incorporates a lengthy quotation from paragraph 5(3) of the code of practice. I have made amendments to it. When I come to move the amendment, I shall draw attention to those matters. I shall expect the Minister to say whether she thinks the amendments are helpful or that they are at least worth considering. I will not be put off by being told that the Committee is not entitled to a response from government to a code they have drawn up and which has legal effect.

Baroness Blatch: First, the amendment before the Committee is a proposal to be placed on the face of the Bill. I have responded to that. I have said that I believe the code of practice should be a code and that it should sit outside the Bill. Secondly, it is not only courteous but proper form that professionals and others, who have to have regard to, and be subject to, the code of practice should have an opportunity to comment on any suggested changes to the code. Not only have I said that all these ideas are worth considering; I have also said

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that we will consider them very seriously and take the views of those who will have to operate the code. That is the proper way to arrive at a definitive code of practice which will then be put before the House for approval.

Lord Campbell of Alloway: To save time on this and all related amendments, with respect to the noble Lord, Lord McIntosh, he asks the Minister, quite rightly, not for her answer but the answer of the Government. She obviously cannot give it at the moment. All she can say is what she has said. The Minister could give the noble Lord her personal reactions. If he wishes to have mine, which are totally worthless, I believe the proposal to be a perfectly reasonable one, but that is of no use to anybody. I speak for no one. Perhaps the noble Lord, Lord McIntosh, could lay off a little and give the Minister some accommodation on the issue.

Lord McIntosh of Haringey: I am very anxious to lay off. I am not anxious to be tedious. I hope that I am not often tedious. However, I entirely recognise that the Minister says that in the end the code of practice has to be workable. Part of the issue as to whether or not it is workable will be the judgment of the practitioners. Anything that the Government say in Committee is subject to further consultation on any changes that may be made.

I do not resile from what I said. The only way in which we can bring these matters to the attention of the House is by amendments which put them on to the face of the Bill, because there is nowhere else to put them. Both we and the Government know that it is a device, but the Government must not hide behind the fact that it is a device to avoid debating a substantive issue. If all that I am to get is a statement from the Minister that she will take it away and consider it, I suppose that I will have to put up with it, but I do not believe that as a general principle the Minister should say in all debates of this kind that because the amendment is in the form of an amendment to primary legislation she will not give an opinion on it. In previous amendments she has given opinions on matters which she thinks ought not to be in primary legislation. There is no contradiction there. It would be helpful and sensible if this debate were two-sided, not one-sided. That is all I ask for. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 70:

Page 11, line 6, at end insert ("including--
(i) crime reports (including report forms, relevant parts of incident report books or police officers' notebooks);
(ii) both draft and final versions of witness statements, including any exhibits mentioned (unless these have been returned to their owner on the understanding that they will be produced in court if required);
(iii) interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects);
(iv) reports of work carried out by experts such as forensic scientists, and schedules of scientific material prepared by such an expert for the purposes of criminal

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proceedings, including samples, materials on which the report was based, analytical data, working notes and calculations;
(v) any material casting doubt on the reliability of a confession; and
(vi) any material casting doubt on the reliability of a witness.").

The noble Lord said: We now come to a precise case. In paragraph 5(3) and (4) of the code of practice there are detailed and, to my mind, very helpful specifications of the kind of material which may be included in a schedule. We believe that two particular improvements can be made. We put this to the Committee in order that anybody else who has a view on the matter can express that view. If the Government have a view on the matter they can express it. In that way, we will have a sensible debate on issues which are of relevance to the legislation, even though none of us wants to put them on the face of the Bill.

The first change that we propose is in sub-paragraph (ii) of the amendment. As drafted, the code of practice refers simply to "witness statements, including any exhibits mentioned". We are suggesting that it should refer to both draft and final versions of witness statements.

Anyone who has been involved with these things--most people have been involved with them more than I have--knows that witness statements are often inadequate, unclear or incomplete when they are first made and that the investigating officer has to say at the end of the interview, "In order to make this clear, shall we go through it again, write it down and try to make it more logical and more complete?". That is the version which, under the code as drafted, is the only version which would be included in the schedule. We are suggesting that changes may take place between the first draft, or first drafts, and the final version which may be relevant and may be helpful to the prosecutor and, or course, in certain circumstances, helpful to the defence. We are suggesting that that should be allowed for.

Sub-paragraph (iv) states,

    "reports of work carried out by experts such as forensic scientists",
and so on. Those are in the code of practice. We are suggesting that that should be amplified by the wording of the last two lines, which state,

    "including samples, materials on which the report was based, analytical data, working notes and calculations".

We think that these are constructive and helpful suggestions of the kind that may be made by anyone, whether or not expert in the law or police work. Without wishing to press the amendment to a Division, we invite the opinion of Members of your Lordships' Committee and of the Government. I beg to move.

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