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Baroness Symons of Vernham Dean: My Lords, I am tempted to say, "Yes, of course all these options have been discussed". I am pleased to hear what the noble Lord said about the balance in our Terrorism Act. Of course, there is an issue here. The noble Lord, Lord Howell of Guildford, was right to remind us of the seriousness of the crimes. Let us not forget that some of the crimes at the root of this are heinous and horrendous crimes. It is enormously important that we do everything we can to ensure that the people responsible are brought to justice.

That said, the whole system loses credibility unless there is a fair trial process. When so much of what we are arguing about is fairness and justice in the world, it is enormously important that the system we use to bring people to justice is self-evidently as fair as possible—that is, balancing the rights of the individual on trial against the rights of the rest of the world to security. The issue of federal courts is very interesting. So far, United States' citizens have gone through a quite different court procedure—a point which I am sure will not have escaped many of your Lordships. Again, this is a point on which one is tempted to argue that a system that is not quite right for United States' citizens might not be quite right for a great number of other citizens too.

The noble Lord makes the important point about international tribunals. Of course, he knows that the United States has not signed up to the International Criminal Court, much as we have urged it to do so. I take the point of the three options; the fact is that none of those three options is on offer. We have quite simple choices. We either stay in the room and argue for fair trials—or as fair as we can obtain—or we leave the room. I am for staying in the room.

Lord Hylton: My Lords, I am grateful for the Statement and for what the Minister has said about a fair trial being essential. Will the Government continue to press for the remaining seven British prisoners to be either charged or released? Secondly, would the noble Baroness use all her influence to secure adequate exercise facilities for these people?

Baroness Symons of Vernham Dean: My Lords, on the first point, yes. The noble Lord made a very important point about these other individuals. There are terrible choices here. These individuals can either have a lengthy stay without knowing what will happen to them or they can go forward to a trial process which may have many shortcomings and about which we have reservations. It is very important that the issue of the other seven is resolved. On the second point raised by the noble Lord

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of adequate exercise, we have pressed for that. It is not just a question of exercise, there should also be more contact through family letters. There is some evidence that family correspondence is not getting through. That has been the cause of quite a lot of distress. On both issues of family letters and exercise, we shall continue to make representations.

Lord Mayhew of Twysden: My Lords, it is impossible not to sympathise with the position the Government find themselves in. The Minister will have a clear idea of the concern and anger in all parts of your Lordships' House. Will she use her best endeavours to come back to the House when we resume in September with a progress report?

Baroness Symons of Vernham Dean: My Lords, indeed I will. Your Lordships may be interested to know that this issue falls into my ministerial portfolio as the Minister for counter-terrorism. Therefore I am well placed to return to your Lordships on this issue.

Baroness Kennedy of The Shaws: My Lords, the Minister says that it is important to bring influence to bear on a Government with which we have very close relations. We saw that in the run-up to the war in Iraq where it was publicly argued that we played a very important role by being in the room. At what point do we say we are going to leave the room and make it clear that we find something wholly unacceptable and that there is a fault line in our relationship?

Baroness Symons of Vernham Dean: My Lords, I find it difficult to speculate. I shall tell my noble friend why. I am not sure how that helps the individuals about whom I am most concerned—those who may stand trial. My noble friend talks about what might be some wholly unacceptable arrangement. It is also unacceptable to leave British citizens abandoned to their fate. Saying that we find it impossible to go on does not serve any useful purpose. We should continue to hold our nerve and continue to argue as vigorously as we can. My right honourable friend has arranged to have further discussions with Colin Powell later this week.

Lord Maclennan of Rogart: My Lords, the Minister has the whole-hearted support of this House in making clear to our friends in the United States that the British public will find baffling the refusal of the US authorities to consider the reasonable options advanced by my noble friend Lord Lester of Herne Hill. This refusal comes from a country which has had a close relationship with us, both in the conduct of the war against terrorism in the aftermath of 9/11 and more recently over Iraq. The failure to accept the handing over of British nationals to the British authorities suggests a lack of trust in our own ability to handle terrorism threats. This is simply not consonant with the close alliance of which we are a part.

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Baroness Symons of Vernham Dean: My Lords, I agree with the noble Lord. The reaction of the British media has been very clear. In recent days many people have said to me that they find what is being proposed unacceptable. The Government have strong reservations. We must engage with the United States about this. They have indicated that they are still open to suggestions about the way trials are conducted. They have said they wish them to be open. I do not believe it is a lack of trust in the United Kingdom that lies at the root of this. It is the belief of the United States that they, as the retaining power, have the right to put these individuals on trial. However much we find that a difficult notion, we have to deal with the situation as we find it. It is enormously important that we engage as friends and use our not inconsiderable powers of persuasion.

Criminal Justice Bill

4.35 p.m.

Lord Bassam of Brighton: My Lords, I beg to move that the House do now again resolve itself into Committee on the Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

House in Committee accordingly.

Baroness Scotland of Asthal moved Amendment No.32:

    Page 6, line 13, leave out "and" and insert—

"( ) the General Council of the Bar,
( ) the Law Society of England and Wales,
( ) the Institute of Legal Executives, and"

The noble Baroness said: I wish to speak to all the amendments standing in my name. Several of the amendments to this Clause suggest being more specific about those whom the Home Secretary must consult about new codes or proposals to amend existing codes. Currently Clause 9 specifies as consultees only persons representing the interests of police authorities and persons representing the interests of chief constables, together with such other persons as the Home Secretary thinks fit. We agree that it is sensible to include the Law Society and the Bar Council and they are covered by government Amendment No. 32 That amendment also includes the Institute of Legal Executives as members of that organisation will frequently be involved in advising detainees at police stations and will therefore have day to day dealings with the codes. That was a point made in Committee in another place and we accept its validity.

We do not agree that magistrates need to be specified as consultees in every case as suggested by Amendment No. 33 They have a direct interest in only certain aspects of the codes and the proposals in Clause 9 allow ample scope for them to be consulted where that is necessary. Amendment No. 34 would expand the reference to the Secretary of State consulting with such other persons as he thinks fit to

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specify that such persons must have experience in the general field of activity covered by the codes. We do not think that is necessary, as targeted consultation would obviously be directed towards people who are in a position to comment on new codes and proposed changes from an informed position.

Amendment No. 35 would require that the persons to be consulted on new or revised codes at the discretion of the Home Secretary should be specified in a list issued by him and should include organisations involved in consultations on revisions of the codes prior to these latest proposed amendments to PACE. We think that would defeat a key objective of Clause 9, which is to enable consultation in each individual case to be directed towards those organisations and individuals best placed to comment on the particular issues raised, which will vary from item to item. Requiring what would be very broad consultation for even the most minor amendments would tend to reinforce the bureaucratic nature of the whole process rather than to make matters more straightforward in the way we are proposing.

Amendment No. 36 would require that among those whom the Home Secretary thinks fit to consult should be included those representing the interests of the victim, lay and professional witnesses and defendants. Once again, we suggest that that would tend to undermine the intention of allowing for targeted consultation according to the specific subject matter. The requirement to consult the main representative bodies for the legal profession, which we are intending to include, does much to cover the interests of defendants, victims and witnesses. However, there will clearly be many situations where broader consultation will be necessary and the clause allows for that.

We are looking to minimise the bureaucracy surrounding the introduction of any new or revised code and provide a targeted and focused approach to consultation. Amendment No. 37A may provide an element of bureaucracy. It would add an unnecessary feature of laying the list of consultees before Parliament at the same time as a code. We have already indicated in considering Amendments Nos. 34 and 35 that the Secretary of State will consult as considered relevant and necessary. The focus should be on the content and effectiveness of any new or revised code and not on elements of the process of achieving that outcome.

Following on from discussion in another place and taking into account the views of the Home Affairs Select Committee, we have been considering the procedural options for dealing with new and amended codes. We now accept that the affirmative procedure is justified for new codes and significant amendments and that is reflected in government Amendment No. 37, which stands in my name. However, we have been trying to devise a quicker route for handling minor and straightforward changes.

We have looked hard at the scope for involving the Home Affairs Select Committee in advising on whether specific changes warrant detailed parliamentary scrutiny or not. However, there are substantial legal difficulties in

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the way of specifying a role for the committee in the Bill. In particular, the difficulties arise from the fact that the names and functions of parliamentary committees are subject to change over time. We have seen that happen in the past few years. We might in due course be faced with a need to change primary legislation to remove or modify a statutory requirement for consultation that was not compatible with the way Parliament reorganised its business. I understand that there are also difficult issues linked to the mechanism by which the Secretary of State would consult such a committee in pursuance of a statutory obligation and the remedies available to the committee if he failed to do so.

A more workable alternative is to amend the legislation so that there is effectively a choice between affirmative resolution and simply laying before Parliament for any proposed changes. That is the approach reflected in Amendment No. 37. Further to that, I am prepared to give an undertaking here in Committee that the Home Secretary will seek the Home Affairs Committee's advice on the appropriate procedure for each and every proposed amendment to the codes and also that he will be bound by the committee's advice in every case. That will effectively ensure informed parliamentary oversight of the procedure to be used, but without referring to the committee in the Bill.

In summary, the government amendments which have been proposed go a considerable way towards meeting the concerns that have been raised and ensuring that new and revised codes are subject to adequate processes of consultation and parliamentary consideration. We recognise that the proposed involvement of the Home Affairs Select Committee is an innovative idea, but we hope that it can prove very effective in practice in ensuring sensible levels of parliamentary scrutiny. While we resist the opposition amendments, that is against the background of our own proposed amendments picking up what we regard as the most telling and important points that they raise. We also recognise that the Delegated Powers and Regulatory Reform Committee has not yet had an opportunity to consider our amendments. We shall of course consider its comments very carefully and, if necessary, review the position in the light of its recommendations. With that explanation, I hope that noble Lords will feel able to be content.

4.45 p.m.

Lord Hodgson of Astley Abbotts: As the Minister said, we have tabled some amendments in this group. I listened carefully to what she said in justifying her position and attempting to destroy ours. I hear the words "targeted consultation" and "minimising bureaucracy", which is all good stuff. However, we are not entirely happy, and the amendments require a further airing.

As the Minister said, the amendments revise the codes of practice. We are grateful that the Government have tabled amendments that have gone some way to meeting our concerns. However, the practical operation of the last eight clauses that we have been debating will be governed by the codes. Much of our

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discussion in the Chamber has been understandably at a strategic—even a bird's eye—level, but the PACE codes of practice are the fundamentals of the system, where it comes most closely into contact with the general public.

Until now there has been a wide consultation process, laid down in Section 67(1) of PACE, which states that:

    "When a Secretary of State proposes to issue a code of practice to which this section applies, he shall prepare and publish a draft of that code, shall consider any representations made about the draft and may modify the draft accordingly".

We are concerned that under the umbrella of bureaucracy minimisation and cutting down on and focusing consultation, the Government are proposing to narrow and shorten the consultation process too much. We agree with the Government that maintaining public confidence in the integrity of the system is absolutely critical. Is it wise in such circumstances to reduce the consultative process?

We also have some more specific concerns that our amendments address. Clause 9(4) lists the people who have to be consulted before any revision of a code. We agree with the noble Baroness that, as originally drafted, the consultation process seemed a little one-sided. Subsection (4)(a) refers to the police authorities, subsection (4)(b) to the chief officers of the police and subsection (4)(c) to such other persons as are thought fit. Of course, the police need to be involved, but there are others who need to be involved and to be able to make their views known.

The Law Society has provided us with a very helpful briefing on this point; it observes that the codes affect all aspects of pre-charge investigation, in turn affecting the post charge process, and can often affect the operation of the duty solicitor scheme. Accordingly, where there is to be a change in practice, it is in the interests of effective implementation, as well as in the interests of justice, for there to be obligatory consultation with all relevant parties.

Amendment No. 33 widens consultation to include what one might describe as "the legal professionals", two of which the Minister swept up in her amendment. However, we remain concerned that magistrates are being overlooked. They are very much at the sharp end of the practical implication of the codes. We should also like to see the Central Council of Magistrates' Courts Committees and the Magistrates' Association brought into the consultation process.

Our Amendments Nos. 34 and 36 take the issue wider, including representatives of the general public who become involved with the courts, as well as interest groups that deal with the impact of the judicial system. We have had a most helpful briefing from the Children's Society, which outlined some of the practical difficulties and implications if consultation is to be restricted in future. It says:

    "The Children Act 1989 gave a technical legal definition of the term 'in care', meaning a child is subject to some form of care order, introducing the term 'looked after' for children living away from home and 'accommodated' for children for whom the local authority does not have a share in the Parental Responsibility. It

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    is only after many years of representations that the significance of this has been acknowledged in the Codes of Practice. There is now a changed wording over who may act as the appropriate adult for looked after children consistent with the language and concepts of the Children Act 1989. Without the current duty to consult widely the representations necessary to effect this change would not have been considered and this long overdue change not happened".

Finally, the noble Baroness said that Amendment No. 37A was unduly restrictive, but it is an attempt to ensure that consultation on future codes is sufficiently wide by requiring the Secretary of State to disclose who has been consulted. Otherwise, the assurances given by the noble Baroness this afternoon—no doubt in absolutely good faith—will not bear heavily on her successors. The noble Baroness, Lady Walmsley, has taken a similar approach for the Liberal Democrats with Amendment No. 35, to which my noble friend Lady Anelay has added her name. I look forward to her contribution.

Our case for the amendments can be simply put. We are all agreed that maintaining public confidence in the system of justice is critical. Transparency is a vital ingredient in maintaining that confidence. The provisions of the PACE codes will be experienced at first hand by literally thousands of our fellow citizens. For many of them the code will govern their only contact with the judicial system. It is very important that there should be avenues for them to make their views known on the efficacy or otherwise of the codes when revisions are contemplated.

There is another, more pragmatic reason for keeping the consultation process on revision as wide as possible. As Mr Grieve observed in Committee in another place on 7th January at col. 123, where the maximum consultation on revisions to the codes has taken place, their new provisions are more likely to be accepted and it is less likely that their detail will be subject to challenge in court. That underlines the importance of Amendment No. 37A. We are seeking to mirror closely the present consultation process. There do not appear to have been any problems with it. "If it ain't broke, don't try to fix it", seems to be good advice on this occasion.

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