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I hope that I have indicated with sufficient clarity the occasions when consent is to be asked for, first in relation to sentencing and then in relation to those other matters. I hope the Committee will feel that the Court of Appeal is safe to be trusted with the Human Rights Act, the ECHR, the PACE conditions and the need to have a lawyer. I shall certainly be very happy to consider these matters further and to write more fully in response if noble Lords feel that that is appropriate.

We do not think that there has been any improper haste in bringing these matters forward. It is not easy to see why a defendant should feel more under pressure as a result of an immediate court appearance

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than, for instance, the prospect of a night in thepolice cells, particularly if it is for a relatively straightforward offence. I think many defendants would like to get matters over and done with and not spend a night in the police cells. It is not something that holds a lot of attraction for many defendants. Indeed, for those of us who have had the benefitof seeing them at that stage, it is something to beavoided if at all possible, but absolutely necessary on occasion.

As to the point of the noble Baroness, Lady Linklater, in relation to juveniles, I remind her—I know she is very familiar with this—that juvenile courts are specifically created to be less intimidating. Some children—dependent on their age, I know—welcome the fact that they are, for once, included in proceedings. Many children are often excluded and things happen behind their backs—they are not involved and they are not made to feel responsible—and this can inure to their disadvantage. We do not think that it should be applied to all children because, if it were, we would have all children giving evidence via a video link if they were under 17. I am not sure whether that is what the noble Baroness is suggesting but, just to put it on record at this stage, we would find that very difficult to accept.

We shall have an opportunity to talk further about this and we will be able to respond more fully if the noble Baroness, Lady Harris, on reflection, having had the opportunity to read what I have said at great speed in introducing these amendments, thinks that it is necessary.

I very much thank Members of the Committee for the very helpful and collaborative way in which they have responded. If we were into teasing, I could tease the noble Baroness, Lady Anelay, by saying that I hope she is not seeking to suggest that those who should justly be in prison should be put elsewhere, but that, too, can be left for another day.

Baroness Anelay of St Johns: I teased the noble Baroness because it is the Government, in their early release schemes, who are releasing from prison those who should be there. We can see the difficulties arising from those with life sentences who have been lost after release by the probation service. However, we will return to those matters another day.

I am grateful to the noble Baroness for her statement that it is not the Government’s intention to return to night courts. I notice that she did not say that these provisions would preclude that, but I take on trust what she said. We will consider further whether any amendment needs to be made, but I certainly accept her assurance.

The Minister also gives proper recognition of PACE and the protections it contains. Of course we accept that, but it is a question of the interplay between the protections of PACE as operated by the police and the need of people accused of a crime to be able to get the protection of legal advice as well. She is right to point out that there has to be a provision for refusing legal advice. On occasion it is the very people who refuse it and then plead guilty who ought to have taken it in the first place. They then get tied up in

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knots, saying that they did it but they did not mean to. Then we get into intentionality, so there is a difficulty there.

I accept what the Minister says about the cases likely to be at the lower end, although they are not necessarily confined there by these provisions. One would expect that to be the case. I hear what the Minister says about consent; there are still some matters where expressed consent will not be required but may be acceptable.

So far, I have been looking from the point of view of protections for the defendant. Since it is late, perhaps I may be a little frivolous, although the police may not consider it so. I saw a report last week about another use of new technology: the police are piloting the use of a helmet with a camera on it so that you are really banged to rights if you are arrested. I had this apocalyptic vision of the Government’s justice system: the police take the video, nab the person and say, “Right, my son, here you are, it’s midnightand the next thing you are going to do is pleadguilty by live link”. That is a potentially interesting development.

Baroness Scotland of Asthal: Perhaps I may help the noble Baroness. In our arrangements, the wonderful thing is that the defendant can simply say, “No, I don’t want to plead guilty. I just want to be bailed”.

Baroness Anelay of St Johns: Let us hope they have the relevant advice and the good sense to do that where it is right to do so. We are on the same side, but for some people, it is much better if the thing is disposed of properly. All of us want the proper protections to be in place so that the right result is achievable even if it is not always achieved in the justice system.

So far, I have looked at all the procedures from the point of view of the defendant, who may or may not be guilty. But one’s overall concern is still with the victim, as the noble Baroness says—the victim and the public. There is accountability to the victim and the public which sometimes only a court appearance can bring. We must get the right balance and make sure that we do not avoid public accountability through a court appearance where that is the right thing to do.

I welcome the opportunity to look at these matters during the summer. In the mean time, I beg leave to withdraw the amendment.

Amendment No. 191C, as an amendment to Amendment No. 191B, by leave, withdrawn.

[Amendments Nos. 191D to 191J, as amendments to Amendment No. 191B, not moved.]

On Question, Amendment No 191B agreed to.

9.30 pm

Baroness Scotland of Asthal moved Amendment No. 191K:



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 USE OF LIVE LINK FOR EVIDENCE OF CERTAIN ACCUSED PERSONS (a) that the conditions in subsection (4) or, as the case may be, subsection (5) are met in relation to the accused; and (b) that it is in the interests of justice for the accused to give evidence through a live link. (a) his ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by his level of intellectual ability or social functioning; and (b) use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise). (a) he suffers from a mental disorder (within the meaningof the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function; (b) he is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court; and (c) use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise). The court may exercise this power of its own motion or on an application by a party. (a) giving or discharging a live link direction, or (b) refusing an application for or for the discharge of a live link direction, and, if it is a magistrates' court, it must cause those reasons to be entered in the register of its proceedings. (a) to see and hear a person there; and (b) to be seen and heard by the persons mentioned in subsection (2); and for this purpose any impairment of eyesight or hearing is to be disregarded.

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 (a) the judge or justices (or both) and the jury (if there is one); (b) where there are two or more accused in the proceedings, each of the other accused; (c) legal representatives acting in the proceedings; and (d) any interpreter or other person appointed by the court to assist the accused. (a) any power of a court to make an order, give directions or give leave of any description in relation to any witness (including an accused), or (b) the operation of any rule of law relating to evidence in criminal proceedings.””

[Amendments Nos. 191L to 191N, as amendments to Amendment No. 191K, not moved.]

On Question, Amendment No. 191K agreed to.

Baroness Scotland of Asthal moved Amendment No. 191P:

(a) a “live link direction” is a direction that the appellant (if he is being held in custody at the time of the hearing) is to attend the hearing through a live link from the place at which he is held; and (b) “live link” means an arrangement by which the appellant is able to see and hear, and to be seen and heard by, the Court of Appeal (and for this purpose any impairment of eyesight or hearing is to be disregarded). (a) must not give a live link direction unless the parties to the appeal have had the opportunity to make representations about the giving of such a direction; and (b) may rescind a live link direction at any time before or during any hearing to which it applies (whether of its own motion or on the application of a party).” “(ca) to give a live link direction under section 22(4);”.”

[Amendments Nos. 191Q and 191R, as amendments to Amendment No. 191P, not moved.]

On Question, Amendment No. 191P agreed to.

Clause 47 [Orders and regulations]:

Baroness Henig moved Amendment No. 192:



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The noble Baroness said: I shall also speakto Amendment No. 193, standing in my name. Amendment No. 193 is the key amendment, Amendment No. 192 being consequential. It is very much a probing amendment.

We debated at length on earlier Committee days the proposals to put many of the Bill’s provisions in secondary legislation and I do not wish to rehearse all those issues. However, as I said, key principles should be placed in primary legislation while only genuine matters of administrative detail should be in secondary legislation. I am not entirely convinced that we have yet achieved that balance, although I note and thank my noble friend for her offers to continue discussions with key stakeholders over the summer to try to resolve some of the more contentious issues.

I would expect that ultimately, and in some cases rightly, many provisions will still be subject to secondary legislation. The question then arises about whether those provisions should be subject to negative or affirmative resolution procedures. My noble friend has already indicated that she is likely to accept the recommendations of the Delegated Powers and Regulatory Reform Committee. The amendment would clarify what further issues she thinks should be subject to positive resolution—which are the important matters of principle that she would accept ought to be debated by Parliament and which are merely matters of administrative detail. Given that the criminal justice system is such an important guarantor of the freedoms of the people of this country, does she agree that it is important that fundamental changes to it should be fully scrutinised and debated by Parliament? I beg to move.

Baroness Harris of Richmond: I support Amendment No. 193. The amendments would remove references to the process of negative resolution whereby orders put forward by the Secretary of State under aspects of this Bill would not necessarily be debated by Parliament, as the noble Baroness, Lady Henig, said. It makes all order-making powers proposed in the Bill subject to positive resolution, which means that orders must be debated and approved by both Houses of Parliament.

Once again, and finally, we reiterate that we have concerns about how secondary legislation is being used within the Bill to determine or change key constitutional functions. Assuming that at least some of those key aspects will remain in the Bill at the end of the legislative process, this is an additional safeguard to limit the use of those powers and ensure that secondary legislation formulated under the Bill is open to some parliamentary scrutiny.

Baroness Anelay of St Johns: I added my name in support of Amendment No. 193. The noble Baroness, Lady Henig, has neatly returned us, at the end of day four in Committee, to the concerns underlying all the debates that we had on that first day in Committee when we looked at the number of matters that had been shifted from primary to secondary legislation. She has underscored the concerns that we retain, not

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only that matters should be dealt with by negative resolution, but that they should be dealt with by secondary legislation at all.

Of course, I appreciate that Governments want flexibility, but there are some occasions on which one loses the security and effectiveness of an organisation if one removes matters from primary legislation. We have concerns about the maintenance of the tripartite relationship and the way in which it has been built up because of some of the provisions in the Bill. That is a signal to the fact that when we reach Report, we shall want to focus on some more closely defined issues. We had—or at least I had—a scattergun approach on the first day in Committee. I know that I shall spend the summer looking at the Bill far more narrowly. There may be only two or three issues that I shall wish to return to, but in some strength, on the matter of what should be in primary and secondary legislation and what is the appropriate method of scrutiny of that secondary legislation. So this is an appropriate way in which to end our debates. I know that there is a technical government amendment to follow, but otherwise the noble Baroness has achieved a neat and elliptical move.

Baroness Scotland of Asthal: I certainly agree with the noble Baroness, Lady Anelay, that this is a nice way in which to end, because it is a summation of where we have reached at the end of these four days in Committee. The short answer to my noble friend Lady Henig is that those orders are listed in Clause 47(5). We have said that we shall look again at the provisions relating to the membership or functions of police authorities with a view to tabling amendments on Report. I certainly envisage writing more of the detail into primary legislation. The Delegated Powers and Regulatory Reform Committee did a very good job in looking through the specific details and trying to differentiate between those aspects that could properly be dealt with by negative resolution and those that should properly be dealt with by affirmative resolution. I reaffirm my commitment that we shall together look at those issues between now and Report so that we can better hone any issues on which we can no longer agree.

I hope to be able to convince noble Lords that the division that we shall eventually arrive at is fair and proper. I absolutely understand that the noble Baroness in her scrutiny will come to a slightly different balance, but I hope that we shall not, because through this trilateral partnership that has taken place on many Bills we have been able to come to a resolution that has inured to the benefit of everybody. I am very hopeful that we shall be able to do that again. With that promise, I hope that my noble friend and noble Lords opposite will be content to rest this issue here and to move swiftly on to our last remaining, short consensual amendment.

Baroness Henig: I am very grateful for what my noble friend has said and the conciliatory spirit in which the points have been made. In view of the lateness of the hour, I beg leave to withdraw the amendment.



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Amendment, by leave, withdrawn.

[Amendment No. 193 not moved.]

Clause 47 agreed to.

Clauses 48 to 50 agreed to.

Schedule 15 [Minor and consequential amendments]:

Baroness Scotland of Asthal moved Amendment No. 193A:

“(b) that any computer containing any program or data to which the accused by doing that act secured or intended to secure unauthorised access, or enabled or intended to enable unauthorised access to be secured, was in the home country concerned at that time.”
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