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Baroness Kennedy of The Shaws: My Lords, I thank the Minister for giving way. I should like to correct two points. First, in the kind of cases where psychiatry is used it is very rare for there to be private representation. In serious criminal cases, legal aid is now available across the board because of the nature of the crime. It is only by choice that people might seek to privately instruct, which is rare. The second matter goes to the heart of this.

Lord Bassam of Brighton: My Lords—

Baroness Kennedy of The Shaws: My Lords, this is a question.

Lord Bassam of Brighton: My Lords, I would remind the noble Baroness that only points of elucidation are to be raised on Report when the Minister is dealing with questions.

Baroness Kennedy of The Shaws: My Lords, but it is very important. Normally, what happens is that when a psychiatrist goes to see a patient in preparation for a report, the first thing the psychiatrist says is, "You realise that anything I ask you I may have to disclose if I am required to do so in the case". So, almost invariably a consent has been given for disclosure but the disclosure is very specifically for purposes of the defence. I am concerned that that permission might be used and I want to know whether the Minister will put on the record that such a consent given by a defendant to a psychiatrist, taking information from him, for example, about the events that took place, will still be covered by privilege even where a consent has been given. I hope my noble and learned friend is following the point. I am asking whether he is prepared to say—

Lord Goldsmith: My Lords, I thought the noble Baroness said she had two questions. I was waiting for the second.

Baroness Kennedy of The Shaws: My Lords, I wanted my noble and learned friend to agree that the example of private representation is so rare that we are really talking about publicly funded work where shopping around is a nonsense. It just does not happen. Does the noble and learned Lord agree that it very rarely happens?

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Lord Goldsmith: My Lords, I have just made it clear that there are a few privately funded cases. The considerable majority of cases are publicly funded. I have made that absolutely plain already. I have said that as a result this is something which none the less can arise in privately funded cases. So I have answered my noble friend's question. She may not like the answer, but I have answered it.

My noble friend's second question was to ask me how to interpret consents which are given to psychiatrists in certain cases. I think that I need notice of the question. I shall certainly consider it and write to my noble friend about it. I do not think that I should answer it simply standing on my feet and being faced with it for the first time.

Lord Wedderburn of Charlton: My Lords, will my noble friend put that letter in the Library of the House?

Lord Goldsmith: My Lords, I put all letters that I send to noble Lords arising from debate in the Library. So the answer to that is, of course, yes.

Lord Thomas of Gresford: My Lords, I am very grateful to the noble Lord, Lord Bassam, and to the noble and learned Lord the Attorney-General for illustrating better than I possibly ever could the reason why I do not propose to debate the matter at length at this stage. The whole topic of defence disclosure is extremely important. If these provisions go through, they could significantly alter the balance in a criminal trial from that which the noble Lord, Lord Kingsland—for whose support I am grateful—indicated has been the law for centuries.

It is entirely wrong that a debate on a subject with principles as significant as these should depend on the vagaries of the timetable—there are 20 minutes to go until 10 o'clock, when we are supposed to cease debating it—and on the presence of a very thin House. The whole legislative process is thrown into disrepute if we try to make decisions simply based upon the vagaries of the timetable when various issues come forward for debate. That is the reason why I have not expanded upon the debate we had in Committee and why I shall reserve my fire on a very important topic for Third Reading.

Furthermore, an influential and major speaker on the topic, the noble and learned Lord, Lord Ackner, for reasons that we can well understand is not able to be present at this time of night, although he was in the House earlier this evening. These are all very good reasons for this debate to be delayed.

I shall not listen to gentle hints from the noble and learned Lord the Attorney-General on the topic. I think that it is a matter of considerable public importance. That is the reason why I shall withdraw the amendment at this stage but I give notice that we

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shall have the kind of debate that was stifled—perhaps "stifled" is too strong a word—or not pursued because the noble Baroness, Lady Kennedy, was out of order under some technical rule of this House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 [Further provisions about defence disclosure]:

[Amendment No. 36 not moved.]

Clause 37 [Faults in defence disclosure]:

[Amendment No. 37 not moved.]

Clause 38 [Code of practice for police interviews of witnesses notified by accused]:

Lord Goldsmith moved Amendment No. 38:

    Page 27, line 41, after "officers" insert "and other persons charged with the duty of investigating offences"

The noble and learned Lord said: My Lords, in moving Amendment No. 38, I shall speak also to Amendments Nos. 39 and 40.

In Committee, we addressed the question of the risk that in the hands of over-zealous or unscrupulous police officers undue pressure might be applied to defence witnesses by amending the Bill to require all interviews conducted by the police under the clause to be governed by a code of practice. That is set out in Clause 38.

The amendments will further strengthen the value of the code of practice as a safeguard. As the enabling powers stand, the code of practice would apply only to interviews conducted by police officers. But it occurs to us that interviews with defence witnesses might be conducted by non-police investigators under circumstances where the considerations may not be that dissimilar—for example, Customs or the Serious Fraud Office.

Amendment No. 38 modifies the enabling powers to apply the code to non-police investigators as well as the police. Amendment No. 39 requires non-police investigators to have regard to the code. Amendment No. 40 provides that a failure to have regard to the code will not in itself expose a non-police investigator to criminal or civil proceedings. In short, therefore, the amendments extend the safeguard that we have already accepted and put into the Bill to non-police investigators. I hope that noble Lords will agree that that is a useful and important additional safeguard. I beg to move.

Lord Thomas of Gresford: My Lords, it is indeed useful tinkering with the Bill, and we agree with it. It does not go to the fundamental principles with which this section of the Bill is concerned. We will support the amendments.

On Question, amendment agreed to.

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Lord Goldsmith moved Amendments Nos. 39 and 40:

    Page 28, line 11, after "officer" insert "or other person charged with the duty of investigating offences"

    Page 28, line 41, leave out "police officer" and insert "person mentioned in subsection (3)"

On Question, amendments agreed to.

Lord Bassam of Brighton: My Lords, I beg to move that consideration on Report be now adjourned.

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Moved accordingly, and, on Question, Motion agreed to.

Waste and Emissions Trading Bill [HL]

Bill returned from the Commons agreed to with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed.

        House adjourned at two minutes past ten o'clock.

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