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Lord McIntosh of Haringey: I reiterate the support the Government gave to the Bill at Second Reading. We are content with the amendments.

On Question, amendment agreed to.

Lord Berkeley moved Amendment No. 2:

The noble Lord said: In moving Amendment No. 2, I shall speak also to Amendments Nos. 4, 12 and 14. Amendments Nos. 2 and 14 have been grouped with Amendment No. 4. Amendment No. 14 is the principal amendment in the group.

During Second Reading I mentioned that the Bill appeared to extend to Scotland. I explained that after the passing of the Scotland Act 1998, harbour matters in Scotland—such as the subject matter of the Bill—no longer fall within the competence of the Westminster Parliament but must be dealt with in the Scottish Parliament. As I indicated then, I am bringing forward

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Amendment No. 14, the effect of which is to make clear that the provisions in the Bill do not extend to Scotland. Amendments Nos. 2 and 4 are consequential on Amendment No. 14.

The Bill as introduced applied to its provisions the definition of "local authority" contained in paragraph 12 of Schedule 3 to the Harbours Act 1964. However, that definition includes references to Scottish local authorities which will not be needed because the Bill will not extend to Scotland. Amendment No. 2 seeks to leave out the application of the definition of "local authority" contained in paragraph 12 of Schedule 3, while Amendment No. 4 seeks to insert a new definition of "local authority" which is confined to local authorities in England and Wales.

The amendments in this group also have the benefit of being drafted by Parliamentary Counsel. I beg to move.

On Question, amendment agreed to.

Lord Berkeley moved Amendments Nos. 3 and 4:

    Page 2, line 14, leave out "(1B)" and insert "(1A)(b)".

    Page 2, line 14, at end insert—

"( ) In sub-paragraph (3), paragraph (a) is repealed.
( ) After that sub-paragraph, there shall be inserted—
"(4) In this paragraph "local authority" means—
(a) in England, a county council, a district council, a London borough council, the Common Council of the City of London, the Council of the Isles of Scilly, a parish council and a parish meeting of a parish not having a separate parish council, and
(b) in Wales, a county council, a county borough council and a community council.""

On Question, amendments agreed to.

Clause 1, as amended, agreed to.

Clause 2 [Amendment of procedure where harbour revision orders are made by the Secretary of State of his own motion]:

Lord Berkeley moved Amendments Nos. 5 to 13:

    Page 2, line 21, leave out "or"

    Page 2, line 23, at end insert ", or

(d) the objection was not made within the period allowed for making it." Page 2, line 24, at beginning insert "Before making his decision under paragraph 29,"

    Page 2, line 24, leave out ", if he so decides"

    Page 2, line 26, leave out from "to" to "an" in line 27 and insert "the person who made the objection referred to in sub-paragraph (1)"

    Page 2, line 31, leave out from beginning to "by" in line 33 and insert "the objection referred to in sub-paragraph (1) is made"

    Page 2, line 38, after "shall" insert ", before making his decision under paragraph 29,"

    Page 2, line 45, leave out "12" and insert "18(4)"

    Page 2, line 45, at end insert—

"( ) In paragraph 29 of that Schedule (decision on harbour revision order proposed by Secretary of State), in sub-paragraph (1)(b), after "inquiry" there shall be inserted "and of any person appointed for the purpose of hearing an objector"."

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On Question, amendments agreed to.

Clause 2, as amended, agreed to.

Clause 3 agreed to.

Clause 4 [Short title, commencement, transitional provision and extent]:

Lord Berkeley moved Amendment No. 14:

    Page 3, line 14, after "to" insert "Scotland or"

On Question, amendment agreed to.

Clause 4, as amended, agreed to.

House resumed: Bill reported with amendments.

Public Interest Immunity

7.56 p.m.

Lord Thomas of Gresford rose to ask Her Majesty's Government whether they will review the law, practice and procedure of public interest immunity in criminal cases.

The noble Lord said: My Lords, the Question I pose today has been sparked off by the answer that the noble and learned Lord the Attorney-General gave to the Starred Question of my noble friend Lord Goodhart on 6th November last year. The Question concerned reviewing the circumstances surrounding the prosecution of Paul Burrell.

In reply to my noble friend's supplementary question, which inquired about the public interest immunity issue, the noble and learned Lord said:

    "No Minister was asked to give a public interest immunity certificate or to sign one; a draft certificate was not ever prepared; and nor was any consideration given by anyone to preparing such a certificate to place before the judge".—[Official Report, 6/11/02; col. 715.]

That is not an issue.

My first question to the Attorney-General is whether, following the Scott inquiry and report, it is the Government's intention ever to rely upon public interest immunity certificates again. In such instances, Ministers claim the immunity; the courts will not interfere and so they are effectively deciding the matter in their own cause. I had understood that the practice—at least so far as criminal proceedings were concerned—would fall into desuetude and the question of public interest immunity would be pursued in the ordinary way, allowing the court, the judge, to make the decision as to whether such immunity is properly claimed.

But that was not the Question my noble friend Lord Goodhart posed. The issue was why there were three days in the Paul Burrell trial on which the court did not sit and during which there were discussions between the prosecutor, on his own, and the judge. The prosecutor explained to my noble friend Lord Carlile at the time that a public interest immunity application was taking place. My noble friend contemporaneously noted it in his notebook, and I have seen his notes.

When pressed on the matter by myself, the Attorney-General said that the discussions with the judge were technically a PII application but were not

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what most of us would think of as a PII application; it was not an attempt to keep back evidence but to continue with the trial. But if the decision to withdraw the prosecution had already been taken, there was no need for three days' delay before that fact was communicated to the defence. If it had not been taken, then the possibility was still alive that the prosecution would continue with the case if the court was prepared to order non-disclosure of the sensitive material.

We now know that this material was, essentially, the recollection of Her Majesty with regard to some of the facts in issue. That was not sensitive in any of the senses set out in the code of practice under the Criminal Procedure and Investigations Act 1996, which covers national security, intelligence information, confidential information, identity of informants, police methods and so on.

Our concerns were immediately raised that matters, the disclosure of which were merely slightly embarrassing because of their very late discovery, were being withheld on the grounds of public interest immunity. I hope that the noble and learned Lord the Attorney-General will give an assurance that it was not the intention to extend the boundaries of non-disclosure to matters which are merely embarrassing. I am not concerned so much with the facts of the particular case or the way in which it might have been embarrassing to certain people, but I am concerned that such applications should not be made where there is merely material that is embarrassing, particularly to political figures who might have the power to suppress information that the court should know about. Well, it is all water under the bridge now.

A date was fixed in January for this Question, rather closer to the time, but it was postponed. I do not think that either the noble and learned Lord the Attorney-General or I understood why. Perhaps it was just coincidence that another case against another royal butler was withdrawn the day after the Question was due to be heard. However, I take this opportunity to discuss the efficacy of the current law, practice and procedure relating to public interest immunity applications. Those applications are now an industry involving many people in a considerable amount of work and labour which is, in my view, costly and not of great advantage.

The fundamental grievance of the present procedure from the point of view of the defendant is that applications are made to the judge in not only his absence but the absence of his legal advisers. So the judge hears an application in his chambers without any representation for the defendant, who naturally asks what on earth is going on.

The history of public interest immunity in criminal cases is not very long. There was in the past Crown privilege, a concept with which we were all very familiar. It covered informers and matters of that sort. That was rather different from the sort of concepts that have now emerged. The Attorney-General's guidelines in 1981, which had no force of law, set out exceptions to the common law duty to disclose to the defence evidence of potential assistance to it. Sensitive

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material, in particular, was defined in very similar terms to those in the current code of practice. The guidelines included,

    "details of private delicacy to the maker . . . might create the risk of domestic strife".

That type of sensitive material no longer appears in the current guidelines.

In practice, such material was frequently disclosed by the prosecutor to defence counsel on a counsel-to-counsel basis. The noble Lord, Lord Carlisle of—

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