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Lord Mayhew of Twysden: My Lords, perhaps I may comment on the subject of exculpatory material. I am glad to see Amendment No. 42D, tabled by the Government and I associate myself with what has been said by the Front Benches. I said some harsh words a couple of nights ago on the basis that the Bill looked as though it gave authority for the Secretary of State to withhold from the suspect material that was exculpatory of him and I am glad to see that Ministers, as I would have expected, have demonstrated their good faith in that regard.

Baroness Ramsay of Cartvale: My Lords, I speak very briefly just to seek some reassurance from the noble and learned Lord the Lord Chancellor and/or the noble Lord, Lord Kingsland, regarding the same debate about which the noble and learned Lord, Lord Mayhew, was holding forth very strongly about exculpatory material and evidence. We were also talking about intercept evidence being put into court. The reassurance that I am seeking is that, as I read it now, intercept material would, of course, be seen by the Secretary of State, but that it would not be necessary for him to put that into the court. I seek this reassurance, especially because I heard the right honourable David Davis this morning on the radio, stating categorically a big list of things that his party would not go back on, including the inclusion of intercept evidence in court. Could I have some sort of answer?

Baroness Whitaker: My Lords, as a non-lawyer, could I confess to some puzzlement about the amendment that says that:

I had thought that Article 6 was among the articles in the ECHR which had been incorporated into the Human Rights Act and, therefore, was part of British
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law. Surely, it is unnecessary to put on the face of a statute that the rules of court must comply with UK law?

Lord Thomas of Gresford: My Lords, I add my personal thanks for the drafting of Amendment No. 42D. it was a matter about which your Lordships may recall I was concerned at Second Reading. I am grateful that the Government have dealt with that in such a satisfactory way.

Amendment No. 40A raises a matter which I raised in Committee and on Report, concerning,

We had a fruitful debate and concerns were expressed in various parts of the House about the Court of Appeal's judgment, which permitted evidence that had been obtained by torture to be used in court, provided that the torture was carried out by people who were not servants of this state. I have had quite a lot to say on that matter.

However, that amendment does not form part of the Motion, so it is not a matter that I shall press. I just hope that the Judicial Committee of the House of Lords will come to the conclusion which, with his usual foresight, my noble friend Lord Lester of Herne Hill said yesterday that they would come to. If that is not the case, I hope that we shall return to this topic at some later date.

Lord Falconer of Thoroton: My Lords, three points are left. First, why should it be the Lord Chancellor and not the Lord Chief Justice? The reason for that is that the orders need to be made in a hurry. It is wrong that the Lord Chief Justice should be in the special position. It should be the Lord Chancellor. The merit of that can be tested by the fact that the draft rules have now been published, so that people can form their own views in relation to it.

Secondly, I have made it clear that Article 6 does apply. The noble Lord, Lord Kingsland, knows that it would be bad drafting to put Article 6 in here and not in other statutes, because the Human Rights Act applied to every act carried out by a public authority, and the Lord Chancellor, the Lord Chief Justice and the Civil Procedure Rules Committee are public authorities. The noble Lord sends the wrong legal signal. Despite the earlier decisions of the House, the one thing that it should be doing is approaching these issues with some sense that we are moving forward and have reached a responsible conclusion.

The noble Lord, Lord Goodhart, put his point accurately regarding the effect of our position. We have put it that way, not because we would intend to come back with identical rules, but because you need to deal with the question of what would happen if there
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were no rules. Of course, we would respect the conclusion of the House, or Parliament, if it had voted down the rules, but you need some provision which allows you to come back with something, if only for a temporary period. That is why we have done it and I hope that that will give the noble Lord pause for thought.

Finally, regarding the point made by the noble Baroness, Lady Ramsay, the material could go to the court—even material that might give rise to a national security problem. But if it did affect national security, it could not go to the suspect or his lawyers. That is where the firewall is. If it endangers national security, then it does not go to the suspect or his lawyers; it goes to the court.

I hope that, in the light of those explanations, the House would behave in the way that it normally does in relation to such issues by not pushing the amendments to a vote, as they are sensible responses.

Lord Kingsland: My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his reply. I shall glance this afternoon at the draft rules, if I have an opportunity to do so, since he has drawn to my attention that they are now available.

Regarding Article 6 of the convention, it was plain, when the Bill first came before your Lordships, that the rules proposed did not conform with Article 6. This amendment was tabled for that reason; and it is wholly appropriate that it should remain on the statute book. No derogation has been sought by the Government to resile from Article 6. The Government have stated politically that they will support Article 6.

Lord Falconer of Thoroton: My Lords, does the noble Lord dispute the proposition that the ECHR applies to the rules and that if they were in breach of Article 6, they would be struck down?

Lord Kingsland: My Lords, I have no doubt whatever that if they were in breach of Article 6 they would be struck down. My concern is that the noble and learned Lord accepts that a civil right is involved, but he does not accept that the later criminal provisions of Article 6 apply to the procedure. That is the difference between us and that is why we are keen that Article 6 remains on the face of the Bill.

Perhaps I may put it as I did in my opening remarks. Why is the noble and learned Lord so concerned about Article 6 being on the face of the Bill if he is confident that he will meet the obligation? I respectfully invite your Lordships also to accept the amendment to the noble and learned Lord's own amendment that has been tabled by the noble Lord, Lord Goodhart.

3 p.m.

On Question, Whether the said amendment (E1) shall be agreed to?

Their Lordships divided: Contents, 200; Not-Contents, 129.
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Division No. 4


Ackner, L.
Addington, L.
Ahmed, L.
Alderdice, L.
Allenby of Megiddo, V.
Alliance, L.
Ampthill, L.
Anelay of St Johns, B.
Ashcroft, L.
Astor, V.
Astor of Hever, L.
Avebury, L.
Baker of Dorking, L.
Ballyedmond, L.
Beaumont of Whitley, L.
Bell, L.
Berkeley, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Chalker of Wallasey, B.
Chorley, L.
Clement-Jones, L.
Cope of Berkeley, L. [Teller]
Courtown, E.
Crathorne, L.
Crickhowell, L.
Cuckney, L.
Darcy de Knayth, B.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Dykes, L.
Eccles of Moulton, B.
Eden of Winton, L.
Elis-Thomas, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Fearn, L.
Feldman, L.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Garden, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Greaves, L.
Greengross, B.
Greenway, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Haskins, L.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Home, E.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Hurd of Westwell, L.
Hylton, L.
James of Holland Park, B.
Jenkin of Roding, L.
Judd, L.
Kalms, L.
Kennedy of The Shaws, B.
Kimball, L.
Kingsland, L.
Knight of Collingtree, B.
Laing of Dunphail, L.
Laird, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lucas, L.
Ludford, B.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Monro of Langholm, L.
Monson, L.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Moser, L.
Mowbray and Stourton, L.
Murphy, B.
Murton of Lindisfarne, L.
Naseby, L.
Neuberger, B.
Newby, L.
Northbourne, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Oppenheim-Barnes, B.
Park of Monmouth, B.
Pearson of Rannoch, L.
Perry of Southwark, B.
Peyton of Yeovil, L.
Phillips of Sudbury, L.
Platt of Writtle, B.
Plumb, L.
Plummer of St. Marylebone, L.
Quirk, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Renton, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Russell-Johnston, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheldon, L.
Shutt of Greetland, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Southwell, Bp.
Steel of Aikwood, L.
Stern, B.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Tenby, V.
Thatcher, B.
Thomas of Gresford, L. [Teller]
Thomas of Walliswood, B.
Tombs, L.
Tope, L.
Tordoff, L.
Trumpington, B.
Ullswater, V.
Vallance of Tummel, L.
Waddington, L.
Wade of Chorlton, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Wilcox, B.
Williamson of Horton, L.
Windlesham, L.
Wright of Richmond, L.
Young of Hornsey, B.


Acton, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bhattacharyya, L.
Billingham, B.
Bledisloe, V.
Blood, B.
Borrie, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter, L.
Carter of Coles, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Brookwood, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hayman, B.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jones, L.
Jordan, L.
Kerr of Kinlochard, L.
Kilclooney, L.
King of West Bromwich, L.
Layard, L.
Leitch, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Marsh, L.
Massey of Darwen, B.
Maxton, L.
May of Oxford, L.
Merlyn-Rees, L.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Manchester, L.
Pendry, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Roll of Ipsden, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Snape, L.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Thornton, B.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warner, L.
Weatherill, L.
Williams of Elvel, L.
Winston, L.
Young of Norwood Green,L.

Resolved in the affirmative, and amendment agreed to accordingly.

10 Mar 2005 : Column 920

On Question, Motion, as amended, agreed to.

3.11 p.m.

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