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Viscount Runciman of Doxford: Before I speak in support of the amendment, which stands also in my name, I have been asked by the noble Lord, Lord Alexander of Weedon, to convey his apologies for not being able to be present this evening due to a speaking engagement which has to have priority. He also asked me to say that he would have spoken in support of the amendment in his capacity as chairman of the

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organisation Justice, whose arguments on this very point are well known. I should like to add that the experience of that admirable body, which was of great help to us at the time the Royal Commission was sitting, lends strong support to the arguments in favour of the amendment and the arguments which have been very forcefully and eloquently advanced by the noble and learned Lord, Lord Scarman.

We considered this matter very carefully on the commission and, as I think your Lordships are all aware, we were quite clear that we were not recommending the creation of a kind of Pinkerton's army of police directly employed by the new review authority. We expected (this seems to be common ground) that in the majority—I would be prepared to say the very great majority—of cases the powers which the Bill provides for the review commission to supervise investigations carried out by a police force, and if necessary by a police force selected in effect by the review commission in consultation, as appropriate, with the inspector of constabulary, would be all that would be required to enable the commission to place before the Court of Appeal its conclusions as to whether the Court of Appeal needed to consider whether a miscarriage of justice might have taken place.

I do not have very much to add to the arguments, all of which I endorse, which the noble and learned Lord, Lord Scarman, put before the Committee. I would, however, like to add that unfortunately I was abroad at the time of the Second Reading debate but I read that debate extremely carefully. I understand the concerns which Ministers voiced as to why there are arguments—and, indeed, there are—against giving the new commission this power, but I should like to endorse the view, if anything more strongly than the noble and learned Lord, Lord Scarman, that these fears are groundless.

We on the commission were careful not to attempt to lay down exactly how the new review authority, as we called it, would operate. We thought it was very important that before legislation was introduced there should be widespread consultation with all interested parties so that by the time a Bill came before Parliament all the relevant arguments should have been canvassed by interested parties and by those best qualified to make recommendations as to how the new body could best do the work for which it was to be created. But, as I envisage it, in the rare minority of cases where the review commission—or, in practice, someone who, for the sake of argument, I would call the case controller who will be in charge of looking at a particular case—has reason to think that the interests of justice require that an independent investigator directly employed by the review commission should be put on to a particular investigation, I cannot see an argument against it.

It is quite unrealistic to suppose that that is the thin end of a wedge which would lead to those who staff the new review commission using their own investigators to duplicate, interrupt or impede the normal run of investigations. I envisage the investigators directly employed by the commission only being used—this again is common ground—where there is a particular reason to think that the investigation will be more effectively carried out by that route. The particular cases

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that are well documented by Justice, the organisation which the noble Lord, Lord Alexander of Weedon, chairs, show precisely the types of case which in themselves constitute perhaps the most powerful argument for the new commission being given this power.

There are a very small number of cases but they are those—and they will continue in the future to be those—which quite rightly arouse the greatest public concern. It is not simply, as the noble and learned Lord, Lord Scarman, said, that it must be seen that the new commission is independent and can demonstrate its independence in contentious cases of this kind. It is also that the most disturbing cases on record are those where it turns out that a would-be appellant has been serving several years of a prison sentence for a crime which someone else in fact committed. In a small number of cases the reason why it has taken so long to discover that a miscarriage of justice has taken place can be directly traced to the conduct—not necessarily the misconduct, although it may be so—of the police force initially concerned in the inquiry and to what was done or not done when it should have been by that force which led to a conviction at the court of first instance.

Surely that, above all, is what we in this House and in the other place would like to see the new review commission rendering as unlikely as possible in what we all recognise will continue to be an imperfect world. I very much hope that the Government will be willing to recognise the force of the arguments and to accept the amendment.

Lord Rodgers of Quarry Bank: The noble and learned Lord, Lord Scarman, said that there had been so much discussion and debate on this issue that he intended to speak only briefly. But, as always, he did so most persuasively. The question which we must ask ourselves is this. In view of the arguments of the noble and learned Lord, Lord Scarman, the noble Viscount, Lord Runciman, and others who have already contributed to this debate, why in the limited circumstances that they anticipate this different procedure being followed should Ministers so far remain obdurate? We must always hope that the arguments themselves this evening will make the Minister change her mind or, better still, that having taken wise counsel in the interval since Second Reading, she will be able to make an announcement tonight. Were that not to be the case, it is reasonable for us to ask ourselves what is in the minds of Ministers which means that they are unable to make a concession of this kind.

As has been said before in this House, when this Bill was first referred to in the debate on the Address last November, the Home Secretary in another place made it clear that he hoped that it would receive Cross-Bench support. It has received it, but if we are obliged to make concessions to the Minister in so far as the Bill is not quite what others may have drafted, it is reasonable to expect concessions from her in view of the arguments which took place at Second Reading and which we are hearing now.

So what are the objections to this concession, if one can try to read the minds of Ministers? The first one referred to by the noble and learned Lord, Lord

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Scarman, is cost. Without in any way seeking to suggest that the Minister has misled the Committee in that respect, would it really be as expensive as has been implied to have this fall-back reserve position? It is reasonable for the Committee to ask, as it was asked at Second Reading, for at least some figures to sustain that argument.

I find it very surprising indeed that some figuring has not been done within the department about the present cost that falls on the police forces. Indeed, it would be irresponsible not to make some assumption of what an inquiry of this kind would cost in view of the very tight budgets with which most of our police forces work at present. I am not saying that it is possible to give a detailed figure. It would depend on how many inquiries were undertaken. But surely some information must be available from the police forces themselves about the cost which has fallen on them in the past for the Minister to tell the Committee what significant additional costs might be involved if these inquiries were undertaken by the commission.

There is a further point which is relevant to forming any view. If indeed the police forces were relieved of an inquiry from time to time because the commission carried that responsibility itself, surely it would be simply a matter of transferring costs from where they fall now on the police force to the commission, and it would be no more than that. I fully understand that the Treasury is always reluctant to see these sorts of transfers or to admit that they would take place. The Treasury would much rather see the cost of these inquiries lost, as it is lost now, apparently, in the overall cost of the police forces which undertake them. We have a right to ask either for figures or for transparency of some kind if the Minister is seriously to argue that cost is a major consideration, or even a significant one, in ruling out this option.

Beyond the question of cost there are two other factors which may well be in the minds of Ministers. The first is something which is subtle but very real. In the absence of a better description I call it the orthodoxy of government. By that I mean the orthodoxy of all governments and not simply this one. It is what happens when Ministers are required to find a method of following a new course to achieve new objectives. It is always the safe way which is adopted: it is to use the tramlines on which other things have been done in the past. The great advantage of that is that, if criticism were to arise, officials who advised that course and Ministers who adopted it would be able to say, "We simply followed precedent. We followed the practice which has been found adequate before". I believe that an element of orthodoxy has come into this because, if the method indicated in the Bill is followed, the department will at least feel that it has some control and understanding of how the process has been gone through.

The third point is one on which we must all give the Minister the benefit of the doubt in so far as the Minister will say, "We do not know that this procedure will work but we believe it to be the best one". That is a perfectly reasonable position to adopt. But, as I suggested at Second Reading, the Minister does not know whether this procedure is the best one and the House does not

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know either. The commission, which has not yet been appointed, cannot know either. It may well be that in the experience of the commission, after perhaps a relatively short period of time, it will take the view—and Ministers may be persuaded by the commission that it is the right view to accept—that, as both the noble and learned Lord, Lord Scarman, and the noble Viscount, Lord Runciman, said, in a very small minority of cases that may be the right course to adopt.

If the Minister and her colleagues genuinely believe that this is the most effective way, will they at least concede that they could be wrong and that the views expressed in this Committee may be the ones which turn out to be right? In those circumstances it would be easy to accept the amendment of the noble and learned Lord, Lord Scarman. All he is asking the Committee to do is to accept a reserve power. It will not often be exercised, but it will be there. I would have thought it very reasonable to ask the Minister to make that one minor concession. Nothing will be lost. There would certainly be no loss of face. Unless we have evidence to the contrary, there will be no significant additional item on the total bill.

7.15 p.m.

Lord McIntosh of Haringey: I support the noble and learned Lord's amendment but I am puzzled at the Government's attitude to this matter at Second Reading. The arguments for this amendment and for an independent power of investigation for the commission have been put with great authority by the noble and learned Lord and the noble Viscount, Lord Runciman, and I do not need to repeat them. But what puzzles me is that in these clauses generally the Government are taking a very sensible and rational line.

In Clause 19 in particular the Government are providing for very wide powers of supervision of investigations by the commission's staff. My noble friend Lord Merlyn-Rees teased some of those out at Second Reading and he got some very good and satisfactory answers from the Minister. Therefore, the more reasonable the rest of the arguments are—and I believe that they are reasonable—the more this particular restriction sticks out like a sore thumb. I beg the Government to realise that the unanimity of view which has been expressed, and in particular the evidence from the chairman of the Royal Commission, means that it would be perhaps a small step for the Government, but quite a big one in asserting the independence of the new commission, if they were to accede to this amendment or to something very like it.


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