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Lord McIntosh of Haringey: My Lords, both those additional points seem helpful to my argument. I am very glad to hear the point about the security services. However, it follows that what is good enough for the security services is good enough for others who collaborate with the police or undertake criminal investigations on their own. Incidentally, I see no difficulty in regard to those agencies that are responsible both for investigation and prosecution. There should be no difficulty at all--other than its simply being a little laborious--why the code should not be adapted for them to recognise the fact and to streamline, as it were, the process of revealing information to themselves.

I turn to the other question raised by the Minister on subsequent case law to the Police and Criminal Evidence Act 1984. That strengthens my case. Knowing the need, recognised by the courts, for a wider applicability of the codes of practice under PACE, we cannot seriously allow ourselves to pass legislation now which would have to be interpreted by the courts in the same way as the Police and Criminal Evidence Act has had to be interpreted. Surely, once it has been recognised that "have regard to" is not good enough and there needs to be subsequent case law to establish what the relationship is, the right alternative is to do it now.

On that basis, I suggest that this proposal is not only a correct extension of the code of practice but is the minimum extension that provides that the code of practice, which is not on the face of the Bill, shall provide the necessary reform for the avoidance of miscarriages of justice--the basis on which this legislation in the first instance and the report of the Royal Commission were framed. I wish to seek the opinion of the House.

On Question, Whether the said amendment (No. 46) shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 106.

Division No. 1


Acton, L.
Addington, L.
Allen of Abbeydale, L.
Annan, L.
Archer of Sandwell, L.
Avebury, L.
Barnett, L.
Borrie, L.
Bruce of Donington, L.
Carter, L.
Castle of Blackburn, B.
Chapple, L.
Clinton-Davis, L.
Craig of Radley, L.
Darcy (de Knayth), B.
David, B.
Donaldson of Kingsbridge, L.
Donoughue, L.
Dormand of Easington, L.
Ezra, L.
Falkland, V.
Farrington of Ribbleton, B.
Fisher of Rednal, B.
Gladwin of Clee, L. [Teller.] Graham of Edmonton, L. [Teller.] Gregson, L.
Grey, E.
Halsbury, E.
Hamwee, B.
Haskel, L.
Henderson of Brompton, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Kennet, L.
Kinloss, Ly.
Lincoln, Bp.
Longford, E.
McCarthy, L.
McIntosh of Haringey, L.
McNair, L.
Mallalieu, B.
Marsh, L.
Masham of Ilton, B.
Mason of Barnsley, L.
Methuen, L.
Milner of Leeds, L.
Molloy, L.
Nicol, B.
Palmer, L.
Peston, L.
Prys-Davies, L.
Rea, L.
Redesdale, L.
Richard, L.
Richardson, L.
Robson of Kiddington, B.
Rodgers of Quarry Bank, L.
Sainsbury, L.
Shaughnessy, L.
Shepherd, L.
Simon, V.
Simon of Glaisdale, L.
Stallard, L.
Stedman, B.
Stoddart of Swindon, L.
Strabolgi, L.
Taylor of Gryfe, L.
Thomson of Monifieth, L.
Tordoff, L.
Turner of Camden, B.
Wallace of Saltaire, L.
Warnock, B.
Wedderburn of Charlton, L.
White, B.
Wigoder, L.
Williams of Elvel, L.
Williams of Mostyn, L.


Aberdare, L.
Addison, V.
Ailsa, M.
Aldington, L.
Alexander of Tunis, E.
Archer of Weston-Super-Mare, L.
Arran, E.
Astor of Hever, L.
Belhaven and Stenton, L.
Blaker, L.
Blatch, B.
Blyth, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Braine of Wheatley, L.
Brentford, V.
Brougham and Vaux, L.
Butterworth, L.
Cadman, L.
Campbell of Alloway, L.
Campbell of Croy, L.
Chelmsford, V.
Chesham, L. [Teller.] Clanwilliam, E.
Cockfield, L.
Constantine of Stanmore, L.
Courtown, E.
Cranborne, V. [Lord Privy Seal.] Cumberlege, B.
Dean of Harptree, L.
Denham, L.
Denton of Wakefield, B.
Dilhorne, V.
Elibank, L.
Ellenborough, L.
Elles, B.
Elliott of Morpeth, L.
Ferrers, E.
Fraser of Carmyllie, L.
Fraser of Kilmorack, L.
Gage, V.
Gainford, L.
Gardner of Parkes, B.
Gilmour of Craigmillar, L.
Goschen, V.
Gray of Contin, L.
Hailsham of Saint Marylebone, L.
Harding of Petherton, L.
Hayhoe, L.
Henley, L.
HolmPatrick, L.
Hooper, B.
Inglewood, L.
Johnston of Rockport, L.
Kimball, L.
Lane of Horsell, L.
Lauderdale, E.
Liverpool, E.
Long, V.
Lucas, L.
Lyell, L.
McConnell, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.] Macleod of Borve, B.
Manton, L.
Merrivale, L.
Mersey, V.
Middleton, L.
Miller of Hendon, B.
Milverton, L.
Monteagle of Brandon, L.
Mottistone, L.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Norrie, L.
Northesk, E.
O'Cathain, B.
Orkney, E.
Oxfuird, V.
Peel, E.
Pender, L.
Peyton of Yeovil, L.
Pym, L.
Rankeillour, L.
Reay, L.
Rennell, L.
Renwick, L.
St. Davids, V.
Seccombe, B.
Shaw of Northstead, L.
Shrewsbury, E.
Skelmersdale, L.
Slim, V.
Strathcarron, L.
Strathclyde, L. [Teller.] Sudeley, L.
Swinfen, L.
Swinton, E.
Teviot, L.
Teynham, L.
Thomas of Gwydir, L.
Trumpington, B.
Vivian, L.
Wynford, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5 Feb 1996 : Column 20

3.45 p.m.

Clause 16 [Code of practice]:

Lord McIntosh of Haringey moved Amendment No. 47:

Page 10, line 2, leave out ("designed").

The noble Lord said: My Lords, we debated this amendment also in Committee. However, we tabled it again because we did not think that the answers were at all satisfactory. The amendment provides not just that the code of practice "shall" secure the various provisions--the phrasing is:

    "The Secretary of State shall prepare a code of practice containing provisions designed to secure",
various objectives and results.

We take the view that that is simply not good enough. The word "designed", which provides that the intent is satisfactory even if the result is not satisfactory, is not simply unnecessary but positively dangerous. Even with all the precautions that are now being taken and even allowing for the probability of parliamentary approval, the code of practice has to be justified in itself; it has to provide that the objectives of the legislation are in fact carried out.

As the code of practice and the provisions for the code of practice in the Bill at present stand, they are rather curious. Clause 15 looks at the definitions used in the code of practice and in the definition of a criminal investigation. Clause 16 provides certain elements of a code of practice which the Government consider to be so important that they ought to be spelt out in the Bill, although, for reasons that we shall discuss later, some of them are only spelt out in terms of "may" include rather than "shall" include.

Clause 17 is even more peculiar. It states:

    "This section gives examples of the kinds of provision that may be included in the code".
I do not believe that I have ever before seen quite that degree of vagueness in legislation. It always used to be argued by lawyers with whom I found myself debating these matters that if one includes one example, another example is excluded. There must be some Latin words for that which the noble and learned Lord, Lord Hailsham, will give us in a minute if he is tempted any further. He tells me that it is expressio unius est exclusio alterius.

Here is a whole clause of a Bill which simply gives examples of things that may be included. If I were a Minister and the Opposition proposed a clause of that kind, I should be inclined to say, "It is entirely unnecessary. We can do what we like and there is

5 Feb 1996 : Column 21

nothing to stop us, whether or not it is included in the legislation". But that is another matter and one which perhaps we can deal with in more detail when we discuss Clause 17.

At the present time, we are dealing with Clause 16. Clause 16(1) provides specifically for some core elements in the code of practice. But that provision and the firmness of it is ruined by the inclusion of the word "designed". It is not just that it makes it possible for a code of practice to be drawn up which, although designed to produce such results, does not in fact do so. It means that there is not any objective criterion afterwards to judge whether the code of practice complied with the constraints laid down by Parliament in the legislation. All that the Secretary of State has to say is, "Well, okay, we accept that it does not do what Parliament said it should do, but it was designed to do it and so that is perfectly all right; and any criticism of the code of practice on the basis that it frustrates the will of Parliament has no basis in law". That can be dealt with extremely simply by taking out the one word "designed". I beg to move.

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