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The Earl of Clanwilliam: My Lords, before the noble Lord sits down, may I tell him that "hull down" means hovering over the horizon, waiting for the enemy to come out.

Lord McIntosh of Haringey: My Lords, I have never heard of the noble Lord, Lord Campbell of Alloway, hovering over the horizon. He is usually at much closer quarters than that.

5.2 p.m.

On Question, Whether the said amendment (No. 8) shall be agreed to?

Their Lordships divided: Contents, 72; Not-Contents, 117.

Division No. 2


Addington, L.
Airedale, L.
Ashley of Stoke, L.
Beaumont of Whitley, L.
Berkeley, L.
Birk, B.
Blackstone, B.
Borrie, L.
Broadbridge, L.
Bruce of Donington, L.
Callaghan of Cardiff, L.
Carter, L.
Castle of Blackburn, B.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
David, B.
Dean of Thornton-le-Fylde, B.
Desai, L.
Donaldson of Kingsbridge, L.
Donoughue, L.
Dubs, L.
Falkland, V.
Gallacher, L.
Gladwin of Clee, L. [Teller.]
Glasgow, E.
Graham of Edmonton, L. [Teller.]
Hamwee, B.
Harris of Greenwich, L.
Haskel, L.
Hooson, L.
Howell, L.
Howie of Troon, L.
Hughes, L.
Hutchinson of Lullington, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Putney, L.
Judd, L.
Kennet, L.
Lester of Herne Hill, L.
Lockwood, B.
McIntosh of Haringey, L.
McNair, L.
Mallalieu, B.
Mar and Kellie, E.
Mason of Barnsley, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Morris of Castle Morris, L.
Nicol, B.
Ogmore, L.
Prys-Davies, L.
Redesdale, L.
Richard, L.
Robson of Kiddington, B.
Rodgers of Quarry Bank, L.
Russell, E.
Seear, B.
Shepherd, L.
Smith of Gilmorehill, B.
Thomas of Walliswood, B.
Thurso, V.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Wedderburn of Charlton, L.
White, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Winston, L.


Aberdare, L.
Acton, L.
Addison, V.
Ailsa, M.
Alexander of Tunis, E.
Archer of Weston-Super-Mare, L.
Ashbourne, L.
Astor of Hever, L.
Belhaven and Stenton, L.
Blaker, L.
Blatch, B.
Bledisloe, V.
Bowness, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Burnham, L.
Butterworth, L.
Cadman, L.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnock, L.
Chelmsford, V.
Chesham, L. [Teller.] Clanwilliam, E.
Clark of Kempston, L.
Cochrane of Cults, L.
Constantine of Stanmore, L.
Courtown, E.
Craigmyle, L.
Cranborne, V. [Lord Privy Seal.]
Cross, V.
Cumberlege, B.
Dacre of Glanton, L.
Dean of Harptree, L.
Denham, L.
Denton of Wakefield, B.
Dixon-Smith, L.
Eden of Winton, L.
Ellenborough, L.
Elles, B.
Erne, E.
Flather, B.
Fraser of Carmyllie, L.
Geddes, L.
Goschen, V.
Hailsham of Saint Marylebone, L.
Harding of Petherton, L.
Harrowby, E.
Hayhoe, L.
Henley, L.
Hogg, B.
Holderness, L.
HolmPatrick, L.
Hooper, B.
Hothfield, L.
Howe, E.
Hylton-Foster, B.
Inglewood, L.
Jenkin of Roding, L.
Kenyon, L.
Knollys, V.
Lane of Horsell, L.
Lauderdale, E.
Leigh, L.
Lindsay, E.
Lindsey and Abingdon, E.
Liverpool, E.
Long, V.
Lucas, L.
Lyell, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L.
[Lord Chancellor.]
Mackay of Drumadoon, L.
Macleod of Borve, B.
Marlesford, L.
Marsh, L.
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Monckton of Brenchley, V.
Monk Bretton, L.
Montgomery of Alamein, V.
Mottistone, L.
Mountevans, L.
Mowbray and Stourton, L.
Moyne, L.
Munster, E.
Murton of Lindisfarne, L.
Northesk, E.
Norton, L.
Oxfuird, V.
Park of Monmouth, B.
Pender, L.
Pike, B.
Prentice, L.
Quinton, L.
Rankeillour, L.
Rawlinson of Ewell, L.
Reay, L.
Rennell, L.
Renton, L.
Shaw of Northstead, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Strathclyde, L. [Teller.]
Sudeley, L.
Swansea, L.
Swinfen, L.
Teynham, L.
Thomas of Gwydir, L.
Torrington, V.
Trefgarne, L.
Trumpington, B.
Wakeham, L.
Willoughby de Broke, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

1 Feb 1996 : Column 1580

1 Feb 1996 : Column 1581

5.10 p.m.

[Amendments Nos. 9 and 10 not moved.]

Clause 4 [Primary disclosure: further provisions]:

[Amendment No. 11 not moved.]

Lord McIntosh of Haringey moved Amendment No. 12:

Page 3, line 20, at end insert--
("( ) and the prosecutor has satisfied himself that the document includes all material except sensitive material.").

The noble Lord said: My Lords, this is a simple amendment but it refers to the important issue of who is to decide what is sensitive material. I shall not detain the House by reading out the full definition of "sensitive material". We put that in an amendment at Committee stage and it is available for inspection by your Lordships in the code of practice which the Government have kindly placed in the Library and made available more generally to the House. Anybody who has looked at it will realise that the definition of "sensitive material" is very wide. It starts with matters of national security and goes on to include matters of intelligence and foreign intelligence. It quite properly includes the protection of the identity of witnesses who might otherwise be at risk, and a whole range of provisions for material which, because it is sensitive, is not only not disclosed, but its existence is not disclosed in a schedule.

The question is simply: who shall be responsible for deciding what is sensitive and what is not sensitive? The Bill as drafted allows the investigator, the police, to decide what is sensitive and what is not sensitive. I yield to nobody in my admiration of the police and of the rules which govern police investigations, both under the Police and Criminal Evidence Act and, I hope, in the code of practice under Part II which will eventually be agreed and approved by Parliament. At the same time, however, I suggest that the police themselves would not wish to be the sole arbiters of what is sensitive and what is not. In the end, it is the prosecutor (who has the responsibility of deciding what is disclosed to the defence) who should also have the responsibility of deciding what is sensitive and what is not, and he should do so having had the opportunity to inspect the material which is claimed to be sensitive as well as the material which is not claimed to be sensitive.

We are seeking to provide in Clause 4 that the prosecutor should satisfy himself

    "that the document includes all material except sensitive material".

I do not think that it is an earth-shattering amendment. It is not intended in any way to diminish the very great responsibilities which the Bill will place on the police. It is intended to ensure that the prosecutor, who is ultimately responsible to the courts for the disclosure process, shall be able to, and shall, satisfy himself that sensitive material has been withheld and that non-sensitive material has not been withheld. There is no proposal to change the definition of what is "sensitive". It is simply a matter of who is responsible for deciding what is and what is not sensitive. I beg to move.

Lord Campbell of Alloway: My Lords, I oppose the amendment. We are concerned with sensitive material

1 Feb 1996 : Column 1582

which can affect national security. Under the Bill, the investigator decides what is sensitive. There are very few Silks at the Bar who are cleared for security. At this moment I am not; at one time I was, but for other reasons than my profession. It is most important that such material should not go beyond the investigator. For those reasons, national security being of paramount importance, I oppose the amendment.

5.15 p.m.

Lord Williams of Mostyn: My Lords, I am sorry to say that for the very reasons which the noble Lord, Lord Campbell of Alloway, set out, I entirely support the amendment. Of course, relatively few leading counsel would be cleared for security purposes, but they are precisely those who would be nominated to prosecute in such a class of case. I believe that to be well known. The noble Lord said that it is important that this should not go outside the province of the investigator; I profoundly disagree. It is in precisely that class of case that one needs a different view--not a partisan view, but a view from someone who has the ethical duties which the Minister has rightly referred to on numerous occasions. It is essential that one has a filter. There is no danger to national security if the matter is considered by counsel and, in extreme cases, considered if necessary by the Attorney-General. It is an important principle, for which we shall continue to contend.

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