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Baroness Blatch moved Amendment No. 20:

After Clause 53, insert the following new clause--

Indemnification of justices and justices' clerks

(".--(1) In section 53 of the Justices of the Peace Act 1979 (indemnification of justices and justices' clerks) the following subsection shall be inserted after subsection (1)--
"(1A) So far as the duty mentioned in subsection (1) above relates to criminal matters, that subsection shall have effect as if--
(a) for the word "may" there were substituted "shall", and
(b) for the words following paragraph (c) there were substituted "unless it is proved, in respect of the matters giving rise to the proceedings or claim, that he acted in bad faith".
(2) This section applies in relation to things done or omitted on or after the appointed day.
(3) The reference in subsection (2) to the appointed day is to such day as is appointed for the purposes of this section by the Secretary of State.").

On Question, amendment agreed to.

Clause 54 [Meaning of preliminary stage of criminal proceedings]:

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Baroness Blatch moved Amendment No. 21:

Page 33, line 21, leave out ("below").

On Question, amendment agreed to.

Clause 59 [Extent]:

Baroness Blatch moved Amendments No. 22 and 23:

Page 35, leave out lines 20 and 21 and insert--
("(b) paragraphs 6 and 6A of Schedule 2, and paragraph 7 of that Schedule so far as it relates to paragraphs 6 and 6A;").
Page 35, line 24, leave out ("section") and insert ("sections (Indemnification of justices and justices' clerks) and").

On Question, amendments agreed to.

Schedule 2 [Fraud]:

Baroness Blatch moved Amendment No. 24:

Page 44, line 12, at end insert--
("6A. In the list in section 17(2) (provisions extending to Scotland) after the entry relating to section 11 there shall be inserted "section 11A;".").

On Question, amendment agreed to.

Schedule 3 [Modifications for Northern Ireland]:

Baroness Blatch moved Amendment No. 25:

Page 46, line 9, leave out ("and") and insert ("to").

On Question, amendment agreed to.

An amendment (privilege) made.

Baroness Blatch: My Lords, I beg to move that this Bill do now pass. It would not be an under-statement to record that this is a most complex and technical Bill. As such, it is only right that I should begin by paying tribute to the skill with which your Lordships have embraced its detail. This is all the more impressive given that we did not, I fear, get off to the smoothest of starts in our consideration of the Bill. As a lay person myself, I appreciate only too well that our task would have been lightened had the code of practice been available at Second Reading. Nevertheless, our collective effort has, I believe, served yet again to demonstrate the value of this House as a revising Chamber.

Although the Bill makes a number of improvements to criminal procedures, its main purpose is to reform the law on prosecution and defence disclosure. These reforms are underpinned by the need for our system of criminal justice to be fair, efficient and effective. Accordingly, noble Lords on all sides have given much thought to ensuring that the provisions are even handed. That is an aim which undoubtedly commands support throughout the Chamber. But that is not to say that we have not had our differences. In that respect, I wholly concur with the sentiments expressed at Report stage by the noble Lord, Lord McIntosh, that these are procedural and political, rather than personal.

I believe that the ground that now separates us is considerably narrower than it once was. Your Lordships' detailed deliberation of these important matters has thrown new light on a variety of issues. Much has been achieved in recent months through correspondence, meetings and, of course, constructive debate, for which I am most grateful.

The Bill has been amended to require the Secretary of State to publish a draft code of practice and to consider

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representations made to him about it, after which he may modify the draft accordingly. He may then bring it into operation by order, but only when the order has been approved by a resolution of both Houses. In that way, ultimate control over the code will rest with Parliament.

We have sought to ensure that the Bill achieves a proper balance by setting out the essential elements of the code of practice and leaving the detail to the code itself. That said, we have, wherever possible, given assurances to modify the draft of the code to take account of points made in debate. A further, revised draft of the code will be available before Second Reading when the Bill is considered in another place.

On Second Reading I signalled that it was our intention to table amendments while the Bill was before this House on three subjects: first, the arrangements for children to give evidence; secondly, improvements to the transfer for trial provisions contained in the Criminal Justice and Public Order Act 1984; and, finally, the difficult subject of the disclosure of material held by third parties.

In respect of the first of these, the House has made amendments to provide for binding rulings in respect of applications for children to given evidence by live television link or by means of a video recording. If such decisions can be taken at an early stage in the proceedings and if those decisions can be made to hold, there will be significant benefits for the children concerned. In addition, the Government are pursuing a range of further practical measures to improve the present arrangements for child witnesses to give evidence. Our debates have helped to identify the priorities and we shall be consulting widely with all interested groups in taking the work forward. I believe that that approach reflects the importance which this House and, in particular, my noble friend Lady Faithfull and the noble and learned Lord, Lord Ackner, attach to such issues.

Some amendments have been made to improve the transfer for trial provisions. We are currently engaged in renewed consultation with practitioners who have suggested some further technical refinements, which require careful consideration. I hope that noble Lords will agree that it is preferable for the Government to take the views of those practitioners fully into account so as to ensure that we have an effective and workable system. I am afraid that it means that some detailed, technical amendments will be needed when the Bill reaches another place.

We also had hoped to bring forward amendments on the disclosure of material held by third parties. We have consulted widely to establish what it would be possible and desirable to achieve in the Bill. But we have not yet been able to devise a scheme of third-party disclosure which covers all aspects of the problem, which ensures that the accused is afforded proper assistance to present his defence and which avoids adding to delay and complexity in the system. We have, however, identified some modest procedural changes that should have practical benefits for third parties.

Your Lordships will appreciate that this is a difficult and very complex area. Indeed, the Lord Chief Justice, having responded to our proposals for procedural

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change, has suggested that further consultation with the judiciary would be desirable. In practical terms, the need for further consultation will, I am afraid, mean that any necessary amendments cannot now be tabled until the Bill passes to another place.

Finally, I wish to thank all noble Lords who have contributed to our deliberations on the Bill, especially the noble Lord, Lord McIntosh. As ever, the noble Lord has been assiduous in prosecuting his case with, of course, the assistance at the Dispatch Box of his noble friends Lord Williams and Lady Mallalieu. I also wish to thank the noble Lord, Lord Rodgers of Quarry Bank, for representing his Front Bench; and, indeed, I thank my colleagues and noble friends on these Benches. I should like to express my particular thanks to my noble and learned friend the Lord Advocate who has found the time, in what I know to be an extremely busy schedule, to assist me on the Bill.

I am confident that this House, as is customary, has responded positively as a revising Chamber and, as a result, will despatch to another place what I believe is a much improved Bill.

Moved, That the Bill do now pass.--(Baroness Blatch.)

Lord McIntosh of Haringey: My Lords, this has been something of a roller-coaster of a Bill. It started in a very friendly sense in that I hope it was clear--indeed, we tried to make it so--that we support the principle behind the Bill. Our amendments and our deliberations were intended to make the legislation work better rather than to oppose it. I do not believe that the Minister or anyone else would say that our attitude towards the Bill has been what the Deputy Prime Minister called being on the side of the villains.

We then had a certain number of little local difficulties in the sense that, as the Minister rightly said, the code of practice was produced very close to the Committee stage rather than soon after Second Reading. In addition, the Government tabled virtually 100 amendments in Committee, a very considerable number of them on Report and, indeed, quite a few on Third Reading. The result is that the Bill which started out with 35 pages now has 55. Therefore, I believe it could be argued that we are not now dealing with entirely the same Bill as we were at an earlier stage of the proceedings.

The difficulty that we had in Committee was, first, the fact that the code of practice which is an integral part of the Bill--indeed, Part II of the Bill is wholly concerned with it--was not available in time. Secondly, we had not really worked out between us ways of debating that code of practice adequately; and, thirdly, there was no provision, despite the recommendations of the Delegated Powers Scrutiny Committee, for the code of practice to be subject to parliamentary approval.

I am not sure whether we have yet worked out a way to debate codes of practice which are not included in legislation. I have now tried two ways of doing so--first, by writing it into the Bill as a schedule and then amending it myself as, indeed, I did on this and earlier occasions; and, secondly, by attempting to put, on the

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face of the Bill, as it were, the amendments which we would seek to make to the code of practice. Perhaps a future solution would be for the Government to table a code of practice as a schedule, thereby making it open for debate and amendment, with a view to taking it out at the end so that it would be subject to parliamentary debate, although it would not be subject to the rigid procedure of primary legislation. I do not know the answer. Perhaps the Procedure Committee would like to consider the issue.

However, I do know that such Bills which rely on codes of practice--and many do--ought not to be introduced without the code of practice being available. Further, they ought not to be published without amendments--which, as in this case, were clearly in preparation before the Bill was printed--being included on the face of the Bill. Such amendments should not have to be made in Committee, on Report or even, as the Minister just acknowledged, later when the Bill goes to another place.

Nevertheless, there have been some improvements during the course of the debates, although not all of them appear on the face of the Bill. First, and most important, the recommendations of the Delegated Powers Scrutiny Committee about parliamentary approval and consultation were accepted. Secondly, there were considerable improvements promised in the draft code--such as, reconsideration of the role of disclosure and investigation officers, the retention of draft witness statements and the recording of information as soon as practicable. Thirdly, there were also improvements in the way that the retention of material, such as samples, should be legislated for, and, as the Minister just said, there will be further amendments on transfer for trial.

We still believe that there are great problems with the relatively clumsy and rigid procedures proposed in the Bill. The high level of disclosure, both from prosecution and defence, will cause difficulties and extra work, even though we acknowledge that it is intended to reduce the burden which is perceived by the Government. We still think--and this is extremely important--that the procedures involved in the Bill will provoke unnecessary "not guilty" pleas in order to get sight of primary disclosure. That, in turn, will clog up the magistrates' courts.

In our view, the application of the code of practice to other investigating authorities and to those assisting them is still unclear and inadequate. We are not satisfied with the power given to the prosecuting authorities to make adequate decisions about sensitive material. Indeed, we are certainly not satisfied that the Bill goes forward without the Government having achieved agreement between police forces as to the length of time for which material shall be retained.

However, that is life. That is what these Bills are like. Some of the measures we argued for have been accepted with relatively good grace; some of the measures we argued for have been rejected with a measure of understanding; some appear to me to have been rejected without any real understanding at all. Nevertheless it is a pleasure once again to see the noble Baroness, Lady

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Blatch, at the Dispatch Box as we did when she was the Minister in other departments in the past. After our initial difficulties, I pay tribute to her hard work, to her understanding of the issues although she is not a lawyer, and to her courtesy throughout in supplying us with information and explanations.

I welcome the noble and learned Lord the Lord Advocate to the Dispatch Box where he has proved himself a natural from the beginning. I am grateful to my noble friends Lord Williams of Mostyn and Lady Mallalieu for their assistance at all stages of the Bill. I am grateful, too, to our research assistant, Claire Cozens, to Roger Ede of the Law Society, to Anne Owers and Razia Karim of Justice, and to others who have taken the trouble to inform us of their anxieties with the Bill. We have had the pleasure of listening to many lawyers--too many to name--from all sides of the House, and also to the noble Viscount, Lord Runciman of Doxford, who chaired the Royal Commission. We are grateful for his incisive contributions at all stages of the Bill. There is still plenty of work for the House of Commons to do. I wish it well with the Bill and I hope that it will produce, in the end, a Bill which maintains the essential balance in our adversarial system between prosecution and defence so that the guilty are convicted and the innocent go free.

6 p.m.

Lord Rodgers of Quarry Bank: My Lords, the noble Baroness, Lady Blatch, said that we did not get off to the smoothest of starts. However, we got off to a good start at Second Reading. Noble Lords on all sides of the House made clear their wish to make progress with the Bill. However, as the noble Baroness later implied--and as the noble Lord, Lord McIntosh said--there were some rather fractious and unhappy events on 19th December. We were all relieved when we were able to put that behind us.

There are lessons to be drawn from the progress of the Bill. I still take the view--although I do not hold the noble Baroness responsible--that the Bill should never have been introduced into your Lordships' House given the early stage of preparation at which it proved to be. As the noble Lord, Lord McIntosh, said, there were over 100 Government amendments at Committee, and I believe there were over 60 at Report stage. The Bill goes forward not in its final form so far as the Government can make it so but in the clear knowledge that there will be a need for further amendments in another place.

The noble Lord, Lord McIntosh, referred to the code of practice. Our main argument on 19th December was whether the code then represented the policy of Her Majesty's Government or whether Her Majesty's Government were somehow neutral about it. The impression was then given--I think this gave rise to the problem which we sought to overcome--that Her Majesty's Government were indeed neutral about it at that stage. However, as the noble Baroness, Lady Blatch, later made clear, it was at that time the Government's best view of the proposal that should be included in the code of practice notwithstanding, as we all understood, that further consultation would have to

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take place. My own conclusion, both from the state the Bill was in when it started, and the state it is in now, is that your Lordships would have been able to scrutinise it much more completely and much more satisfactorily, and we would have avoided some of the fraught discussion which occurred, if the Bill had been delayed before presenting it to your Lordships until it had been more fully prepared.

I see no remedy for my next point within the immediate future. I conclude that although there were important differences of opinion on the Bill, and although it was the duty of the Opposition parties to seek to represent the views of those outside the Chamber with important points to make, it was never a Bill which divided both sides of the House strictly on narrow party lines. For that reason I wish we had a means by which a Bill of this kind, although controversial, could be dealt with in a less adversarial way. Unfortunately, circumstances oblige us to deal with it in that way. It would have been far better if we had been able to prepare ourselves on a different timescale for some of the problems with which we were confronted at a later stage.

However, that having been said, I am most grateful for the considerable efforts made by the Minister, and all those who advised her, to try to meet the needs of the House on many extremely detailed matters. In a slip of the tongue she attributed to me a learning which I do not possess. However, there were times when I thought that the noble Lord, Lord McIntosh, might indeed have been referred to as a noble and learned Lord. I pay tribute to the skill with which he, as a non-lawyer, dealt with many of the detailed matters which came before the House. It is a better Bill than it would have been and that is reassuring.

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