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Baroness Seear: My Lords, surely the noble Lord cannot possibly mean that villainy is confined to one class.

Lord McIntosh of Haringey: My Lords, of course I do not. But I believe that the noble Baroness would agree that the range of social class among villains is much wider than that of lawyers.

A Noble Lord: Oh, no!

Lord McIntosh of Haringey: My Lords, the second, and perhaps the single most important, issue on which we question the judgments made in the Bill concerns the investigatory role of the commission and how it will go about that task. I was interested to note that the Minister made virtually no reference to that in her opening speech, although she must know that it is the issue which has caused by far the greatest anxiety. Indeed, not only Justice and Liberty but also the Bar Council and the Law Society have all referred to the matter with varying degrees of discontent.

The Bill provides that the investigation should be carried out on behalf of the commission by members of public bodies. "Public bodies" are defined in the Bill so as to include a wide range of bodies other than the police. But the Explanatory and Financial Memorandum to the Bill makes it quite clear that it is intended that the great majority of investigations carried out on behalf of the commission will be undertaken by members of police forces. Investigations of officers of other public bodies are expected to be very rare, so the impact on the resources of such bodies will be minimal.

I question whether that is right either as a prediction or as a prescription. I question whether it is right that there should be such a firm presumption that virtually all investigations should be carried out by the police. There are many other investigative skills which are not necessarily those of the police and which ought to be involved in the investigations carried out by the commission. For example, investigations of fraud very often require the skills of the accountancy profession, although I agree that that is not the concern in this case. However, the investigative role of Customs and Excise is very important in a number of cases and, indeed, in criminal cases. The role of forensic scientists—and the Royal Society of Chemistry has made that case effectively—is important in the investigation of miscarriages of justice. Still more, I doubt whether it is

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right, as the Bill proposes, that the investigation should in general be carried out by the police force that was responsible for the original investigation.

I appreciate that during the passage of the Bill in another place some amendments were made which increased the power of the commission to veto investigating officers proposed to it by the chief of police. But, nevertheless, it seems to me to be fundamentally in conflict with the requirement that there should be public confidence in the commission that it should be expected very largely to go back to the original police forces which were responsible for the investigation now being challenged and expect them to carry out the reinvestigation. It seems to me to go beyond the expectation that people will have of the integrity and independence of the investigation.

I am not impressed by the analogy which is made with the Police Complaints Authority. That authority contains a number of dedicated and skilled people, but the effect of the Police Complaints Authority over the years has been that 90 per cent. of complaints have resulted in no disciplinary action. I cannot believe that that is a good analogy for our new commission.

We are told that to go back to the original police force is right because it is cheaper and because the investigators need police power and accountability. However, I suggest that those objectives could be achieved in other ways. In particular, I should like to suggest that at least part of the investigative work commissioned by the commission should be undertaken by its own staff; in other words, even though some of the work will have to be carried out by police forces, nevertheless, the bulk of it should be done by people who are working for the commission, who are responsible to the commission and, indeed, who are members of its own staff. Where that is not the case, the presumption should be that, if the investigation is carried out by the police, it should be carried out by a force other than the one which carried out the initial investigation.

The third major issue which we have to consider is disclosure. There is a peculiarity in Clause 17 about disclosure by the Secretary of State to the commission itself which will have to be subject to amendment later on. But the most important provisions on disclosure are found in Clauses 23 and 24. In November of last year the Divisional Court in a judgment on the Bridgewater case said that applicants should be able to see and comment on evidence on which they have been or might be refused. It was said that that was an important principle of fairness. That judgment is not overturned by the Bill. But the fear must be that the formulation of Clauses 23 and 24, which turn disclosure on its head and put the primary emphasis on confidentiality, with only exemptions proposed in Clause 24, will weaken the power and will of the courts and of the commission to make the necessary disclosures to applicants. Therefore, the fear is that the provisions will weaken the Divisional Court ruling in Hickey and others.

The fourth major query which we have is on what the Minister called the simple rule that the court believes that the conviction is unsafe. That is not what Runciman said. The phrase used by the Royal Commission was "is

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or may be unsafe". The existing rule used by the Court of Appeal is "unsafe or unsatisfactory". We can agree that the words "or unsatisfactory" do not add significantly to it. But surely there is a need for a lower test than "is unsafe". In saying that, I have the support of the Bar Council and the Law Society, as well as Justice and Liberty.

Fifthly, surely there is a need for a lower test which may not cause the conviction to be quashed immediately but could, for example, trigger a retrial. Surely there is need for a recognition of the phrase "lurking doubt" which arose in the first place in 1968 or 1969 in the Cooper case. There is a need for recognition that something has to be done if there is a material irregularity in the investigation or the trial. We shall be putting down amendments about the criteria for quashing the conviction at a later stage. Indeed, I draw attention now to the minority report by Professor Michael Zander to the Royal Commission. It seems to me that there is a great deal of wisdom in his views about the necessity for correcting not only what happened at the trial but also looking at serious defects in the pre-trial proceedings.

Sixthly, there is the issue raised in Clause 13 about new evidence or argument. I wonder whether it is not more suitable to ask whether the issues have been adequately raised or adequately considered at the original trial; in other words, not to rely simply on new evidence. I return now to relatively minor matters because I appreciate that I must bring my remarks to an end—the question of legal aid and preparing cases for submission, which has been raised by a number of those concerned, and the question which the Law Society has raised about the leave to appeal, which is the issue in Clause 1 of the Bill.

It is clear that there is—I am sure that there are other issues—a great deal of meat in this Bill which is, I accept, an honest and honourable attempt to deal with the great problems which exist with the present system. There is still amendment to be done and it is the role, I suggest, of your Lordships to undertake that task. We shall do our best to help that.

3.43 p.m.

Lord Rodgers of Quarry Bank: My Lords, as the House will recall, this Bill was apparently an afterthought in the Government's legislative programme for this year, being identified only in the vaguest way in the gracious Speech. We are nevertheless glad to see it. It is, as the Minister said today, a Bill of great importance.

When the noble Baroness referred to the Bill in the debate on the Address, it sounded like a short and simple measure. The Bill as drafted is rather more substantial, but not the worse for that. In another place it took a whole day on Second Reading and virtually a whole day on Report, with over 12 hours in Committee in between. I would not expect your Lordships to be quite so prodigal with your time, but there is much that deserves detailed scrutiny and the Bill could be improved by amendment.

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In her speech on 22nd November last, the noble Baroness asked for a general welcome for the Bill. That welcome was given and is being repeated today. As the noble Lord, Lord McIntosh, said, there was no vote on Second Reading in another place, which is unusual enough especially with a Home Office measure. That, I think, is a way of judging the extent to which it has support across all Benches. However, I hope that a general welcome and support from all sides will produce a reciprocal response from the Minister. I hope that, as we are supporting her Bill sympathetically, she will in turn consider supporting our amendments. It is, after all, a constitutional duty of this House to improve Bills and I am sure that she will have an opportunity of sharing in that process.

When I spoke previously in your Lordships' House the noble Baroness gave me what I think I must call a thorough ticking off. I had the temerity to be critical of the Home Secretary in relation to penal policy. I had criticised his attitude to what I called "saloon bar populism" and said that in penal matters his rule appeared to me to be a case of,


    "Give me a misconceived perception and I will yield to it". —[Official Report, 27/4/95; col. 1089.]

The Minister is a loyal and doughty fighter—I have no quarrel with that—and she admonished me. The noble Lord, she said, referring to me, has,


    "not for the first time, personalised much of what he said". —[Official Report, 27/4/95; col. 1094.]

Of course she was right; indeed I did that. However, we do not have an anonymous system of government in this country. We have heads of great departments of state who exercise personal authority. They like to stamp their own style and ideas on their departments. That is how we work; that is how governments of all parties work. Indeed, it is how the Minister herself works. She is a strong and positive Minister. Things are different because she is there. Therefore, I shall continue to personalise Home Office policy when it is clearly policy made on the initiative of the Home Secretary. Indeed, if in response to the Minister's strictures I ceased doing so, I would be unable to praise the present Home Secretary for bringing this Bill forward. Other Home Secretaries could have brought before Parliament provisions for a criminal cases review commission —indeed, the noble Lord, Lord McIntosh, referred favourably to Mr. Kenneth Baker—but they did not do so. Michael Howard has done so, and with the Minister's permission I thank him for that.

Most of the points that I wanted to pursue on the Bill are matters for Committee. They need detailed and precise discussion. I would also like to hear the views of other noble Lords, both today and later, especially those with close experience of the criminal law. If the Bill is to be improved their views are crucial. There are only two points to which I wish to refer, as against the six of the noble Lord, Lord McIntosh. The first concerns the funding of the review commission. The noble Viscount, Lord Runciman, who chaired with such distinction—as is generally agreed—the Royal

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Commission on the criminal law, had offered in a lecture elsewhere some afterthoughts about its conclusions. He said:


    "I wish we had argued more strongly the need to ensure that the new criminal cases review authority ... is properly—which means abundantly—funded".

I asked in the debate on the Address for Ministers to confirm that that would be the case. The noble Lord, Lord Mackay of Ardbrecknish, gave the undertaking. He baulked at the word "abundantly" but not at "properly". The Minister has used the same word today. But the Financial Memorandum is not reassuring. The net cost of the commission's accommodation and administrative overheads appears to be £3.5 million. That seems modest and I hope that it does not mean any restraint on the independence of the commission to make whatever provision it thinks necessary for its work. I agree that it is reasonable. One would take for granted that it must agree its budget with the Home Secretary from year to year, but I hope that the Minister in winding up today will confirm again that there will be no unreasonable restraint upon the money which the commission may spend.

However, much more worrying than the question of the cost of accommodation and administrative overheads is the assumption that the Bill will not give rise to extra demands on police resources. I find that difficult to believe. It would be very unfair if police forces received no extra help whatever when many are under great financial strain at present and some are reducing their services to the public.

My second point relates, as I am sure will the remarks of other noble Lords, to Clause 18 and, more generally, the question of who should carry out the investigations initiated by the commission and whether it should have discretion to appoint an in-house team.

In Committee in another place the noble Baroness's colleague, Mr. Maclean, said on this matter that the Government were not convinced that an in-house investigative team will be helpful or necessary. It would add significantly to the commission's costs and would not be an efficient use of resources. However, I can find no quantification of those costs. Ministers may say that it is not the main consideration, but they have introduced the idea of its relevance and it would have been irresponsible to do so without having relative data. I hope that later this afternoon the Minister can say—because there will have been time to check the figures—what "significantly" means. What estimate have the Government made of additional costs at the centre and the savings in police resources that may follow from independent investigation?

As to the principle of either an in-house team, which seems most practical, or a team hired for specific investigations, I hope very much that the Government will agree at the end of our debate in this House to an element of flexibility being built into the Bill. This is an independent commission. It will be independent of the Government and independent of the courts. The Government want it that way, and I am sure that your Lordships will want it that way. However, not everyone has faith in our system. If the commission fails to establish itself in the public eye as independent some

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of its purpose will be lost. Not everyone will feel that investigations undertaken by police forces will ever be wholly independent of the Government and the courts—what I have called "the system" in all its separate parts.

I do not understand why the option of alternative means of investigation should not be written into the Bill. If the independent commission found that an in-house team would be unhelpful or unnecessary—words which the Minister used in another place—of course it would not employ one. That would be its independent decision, not the Government's, as revealed in the omission from the Bill. At the very least there ought to be provision in the Bill for second thoughts by which, if the commission so desired, it could be given such further powers by statutory instrument. Neither the Minister nor this House, nor those who may compose the commission, can know how the process will work. We cannot know now how it could be most effective in its purpose. All I suggest to the Minister is that if that option were available, if necessary by statutory instrument, it could be taken up without resort to primary legislation, which would not be a sensible use of the time of this House.

I hope that the Minister will consider that possibility. As I say, it would introduce flexibility. It would be a reasonable compromise which might command wide support. It could make this, which is a good and welcome Bill, even better. In that spirit, I hope that the House will send the Bill on its way.

3.54 p.m.

Lord Taylor of Gosforth: My Lords, before I address the House on the Bill I hope that your Lordships will consider it right and appropriate if I make brief mention of the late Lord Goodman and say how sad we all are at his passing. I should like to pay a personal tribute to the enormous contribution he made to the law and to public life generally.


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