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Lord Williams of Mostyn: My Lords, I am grateful to the noble Viscount and the noble Baroness. I agree with the noble Baroness and know that noble Lords on the Opposition Front Benches hold the same view. We want Assembly elections as much as anyone. I have repeated my approval of the observations made on many occasions by the noble Lord, Lord Smith of Clifton. We very much hopeI cannot go furtherthat elections will be possible this autumn.
The noble and learned Lord said: My Lords, I beg to move that this House approve the Partnerships etc. (Removal of Twenty Member Limit) (Northern Ireland) Order 2003, a draft of which was laid before this House on 7th July 2003.
The purpose of the order is to amend the Northern Ireland law and to bring in provisions in line with those already in force in Great Britain through, as your Lordships will remember, the Regulatory Reform (Removal of 20 Member Limit in Partnerships etc.) Order 2002.
The 20-member partnerships are a historical relic. They interfere with the proper conduct of efficient business in Northern Ireland. They are a historical relic because in the 19th century, in particular, certain companies made a point of having a very large number of memberships so that it was virtually impossible for someone who was aggrieved to sue because there were so many potential defendants. To sue a deed of settlement company under common law, the aggrieved party had to be able to name all the shareholders. That was simply exploited, which was the historical origin of the 20-member limit. It is not appropriate any more. The size restriction was introduced as long ago as the Joint Stock Companies Act 1844.
The DTI has consulted extensively. It had overwhelming support. The restriction imposes burdens. It prevents the expansion of business through the introduction of new partnerships, restricts the development of multi-disciplinary and international partnerships and is quite inappropriate in a society which, in Northern Ireland, is becoming much more dynamic and innovative. I hope your Lordships will agree not only the detail, but the principle behind this order. I commend the order to the House.
Viscount Bridgeman: My Lords, I am most grateful to the Lord President for giving us the historical context to this issue. It is clearly right that Northern Ireland should be brought into line with United Kingdom law on this subject. We have no objection.
Baroness Harris of Richmond: My Lords, the noble and learned Lord has amply outlined the reasons why the order has been deemed necessary. It is right that we should encourage enterprise and remove restrictive barriers to business in Northern Irelandbarriers that have been in place, as the noble and learned Lord has very helpfully told us, since the 18th and 19th centuries in order to restrict the extent to which partnerships were open to abuse.
There has been wide consultation on the order with no apparent dissent. Therefore, it must be absolutely right to give Northern Ireland partnerships the same regulatory framework as those which operate throughout the rest of Great Britain. We, too, support the order.
Lord Carlile of Berriew: If it is permissible, I have a question to raise with the Minister about Clause 92; it would be helpful if she could provide an answer. Under Clause 92, the cross-examination of prosecution witnesses is limited, because one will be able to cross-examine a prosecution witness about their bad character only if that evidence would fall within the criteria set out in the clause.
As the noble Baroness knows, it is a common occurrence for defence counsel to cross-examine a prosecution witness about offences of dishonesty on that person's record, even if the witness is not being accused of taking part in the crime alleged against the defendant, and even if the crime alleged is not one of dishonesty. One of the most common ways of attacking the characterthe credibilityof a prosecution witness is by cross-examining him on his record. Sometimes, that is a telling form of cross-examination. Reading Clause 92, it appearsI hope that I shall be told that this is wrongthat it will no longer be possible for a defendant to attack the credibility of a prosecution witness by revealing in cross-examination a series of convictions for dishonesty.
If that is the case, that would remove an important shot in the defendant's locker and deprive the jury of one way in which prosecution witnesses can be assessed. Sometimes, especially in fraud cases or those in which obtaining by deception is alleged, for example, prosecution witnesses can look and sound very convincing but, as the noble Baroness knows, once their record of social security fraud or stealing from old ladies is revealed in cross-examination, they look a very different kind of witness.
Can the Government assure us that it will still be possible to do that? If it is not clear, will the Minister reconsider? It is plainly a matter of common sense that that type of attack on prosecution witnesses' credibility ought to remain possible.
Lord Thomas of Gresford: I further suggest the converse case, and ask whether the Government intend not to permit cross-examination of a defence witness about character. Frequently, defence witnesses, especially alibi witnesses, are not of good character and the prosecution enjoy themselves by producing the whole of their criminal record and putting the unfortunate witness through it, although it has no relevance to the evidence which the witness is giving. I should like the assurance that what applies to prosecution witnesses applies also to defence witnesses.
Another matter that I should like to raise under the clause is why evidence of bad character of a witness requires the leave of the court, whereas the bad character of a defendant does not. Can the Government give any explanation of that discrepancy?
Lord Kingsland: I respectfully agree with what both the noble Lords, Lord Carlile of Berriew and Lord Thomas of Gresford, said. I place my concern in the context of what their Lordships said. It worries me that it is much more difficult for the defendant to get admitted evidence of bad character against a prosecution witness than it is for the prosecution to get evidence of bad character admitted against the defendant. Under Clause 93 it is much easier to get a defendant's bad character put in evidence than it is a non-defendant's character under Clause 92. The Government ought to correct that inequity on Report.
Baroness Scotland of Asthal: I shall deal first with the credibility issue raised by the noble Lord, Lord Carlile. My response applies equally to the comments made by the noble Lord, Lord Thomas of Gresford. I can reassure Members of the Committee that Clause 92(1)(b) enables evidence to be given that is probative of the matters in issue. That will cover evidence going to a witness's credibility, be they prosecution or defence. As the noble Lord, Lord Carlile, said, whether or not a witness is to be believed will have an important bearing on their testimony and the facts to which it relates. Therefore, provided that the evidence is not of a trivial value, it will be admissible. The purpose of defining Clause 92 as relating to "Non-defendant's bad character" is to do precisely that. Any witness, be they for the Crown or the defence, will be subject in the same way to Clause 92.
I hear what was said by the noble Lord, Lord Kingsland, and mooted by the noble Lord, Lord Thomas of Gresford, about the difference between the witness's position and that of the defendant. The critical question regarding defendants is whether the probative value of the evidence is outweighed by its prejudicial effect. That ensures that only evidence that will properly assist the jury, rather than distract them, is admitted. However, as only the
It is, however, still important that defendants should not be able to introduce trivial or irrelevant evidence of a non-defendant's bad character. To protect non-defendants from such attacks, a test of enhanced relevance is proposed.