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Baroness Blatch: My Lords, the noble Lord's comments actually come as some relief to me. The amendments were grouped but I was invited to decouple them, which I agreed to do. However, I should be most happy to take all three amendments together, if the noble Lord opposite has no objection.

Lord McIntosh of Haringey: No, my Lords; I have no objection.

Lord Rodgers of Quarry Bank: My Lords, I am most grateful. When the Minister spoke in Committee on the amendment moved by the noble and learned Lord, Lord Scarman, I thought that she gave a fuller, more thoughtful and more convincing description of the processes of investigation and the powers provided in the Bill than we had heard hitherto. I did not have the opportunity on that occasion to say that I was indeed most grateful to her for explaining much more fully how the Government envisage the provisions of the Bill will work.

However, it did seem for a while that the Minister was arguing that the Bill already contained the provisions being requested by the noble and learned Lord, Lord Scarman. Indeed, judging by her reply to a question from the noble Lord, Lord Merlyn-Rees, it

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seemed that we had perhaps overlooked certain provisions in the Bill. However, the Minister then said very firmly and fairly what the Bill would not do. Perhaps I may quote from the Official Report where the Minister said:

    "The Bill does not provide for the establishment of a sizeable in-house team for the purpose of carrying out the sort of detailed, on-the-ground investigations that are currently carried out in a number of these cases by police forces".—[Official Report, 12/6/95; col. 1601.]

The Minister then went on to give what she called her practical reasons and reasons of "principle" as to why that was the case. Most of those reasons—and I do not complain—were of a rhetorical nature. Indeed, I believe that here were seven to eight questions in the course of a couple of paragraphs to which I believe there were convincing, non-rhetorical replies. Although I am tempted to quote them, I believe that it would detain the House unreasonably. As the noble Lord, Lord McIntosh said, we have covered that ground before and it is familiar to all of us.

I would only say that, as the Minister has conceded and as the House will know because it is provided in the Bill, there are three parties to the outcome of the Bill, taking account of discussions within the House and another place and then the appointment of an independent commission. There is the Minister and the Government who are responsible for the Bill; there is Parliament which is asked to support it; and then there is the commission which will have to operate the Bill's provisions thereafter.

I do not believe that a further debate would persuade the Minister that she is wrong and that there is a need to change the provisions on the face of the Bill, but equally—I believe this is evident—she will not persuade all Members of the House that she is right. Indeed, in the vote on the amendment moved by the noble and learned Lord, Lord Scarman, in Committee, Members from her own Benches, from the Cross-Benches as well as from the Opposition parties voted in favour of it. An honest difference of view is widely held. I should like to describe it as a drawn game. It is a drawn game from which we will leave the discussions on the Bill when eventually it has its Third Reading.

If the Government are not persuaded by their critics, and the Government's critics are not persuaded by the Minister, cannot we in some way leave it to the independent commission, given certain safeguards, to take a view as to whether an internal investigating team would make sense? The Minister thinks it would not, and has given reasons. Other Members of the House, myself included, believe that there are good reasons as to why there should be an internal investigating team. If we cannot persuade one another, why cannot we say that if in due course the independent commission decides that it would like an in-house investigating team, that missing element in the Bill will be restored by means of a statutory instrument?

I should expect the commission, after a period of no fewer than two years from the commencement of the Act—clearly it must have experience of how the processes work—in its annual report, or at another appropriate time, or in another appropriate way, to indicate to the Home Secretary that it believed that the

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powers which are denied it on the face of the Bill are now required to enable it to carry out effectively the independent function it has been given by Parliament. In those circumstances, the commission could say to the Home Secretary that it would like the Home Secretary to take those powers by statutory instrument.

It would still be within the Home Secretary's discretion to say no. The Home Secretary would still have the final say. He could say that as the Bill had been passed by Parliament, he saw no present need for those powers to be exercised. But if he, or a successor, took a different view, or the commission, over a period of time, decided that it needed those powers, it would be possible to take them by statutory instrument. That is a reasonable compromise. I hope that if the Minister finds it necessary to express her opposition to the amendment moved by the noble Lord, Lord McIntosh, which I support, she might at least, in a lifeline to the House, suggest that in rejecting that amendment she can accept mine as a reasonable compromise. She would then make us all very pleased with her, and she would find that the commission in future would regard that as a valuable concession by Her Majesty's Government.

Lord Hylton: My Lords, it is by now well known that most serious miscarriages of justice took place in the cases known as the Birmingham Six, the Guildford Four, and the Ulster Defence Regiment Four. After many years, and, in some cases, several appeals and investigations, 13 out of 14 of those men were eventually rehabilitated. I had personal knowledge and dealings with a number of those men who have subsequently been cleared.

In the process of that, I wrote many letters to many different Secretaries of State. Out of those cases it became clear that circumstances can arise in which the conventional police forces have great difficulties in investigating one another. One can understand those difficulties. That is why I believe that it is of the greatest importance that the new commission should have the widest possible reserve powers in special and difficult circumstances. I take no view as between these various amendments and the various forms of drafting, but I hope that the Government appreciate the strength of the case for wide reserve powers relating to investigations.

Baroness Blatch: My Lords, I hope that I can allay some of the misgivings that people have about this part of the Bill. We had a very useful debate in Committee, as a result of which it seemed to me that we were all virtually agreed on the question of who may be appointed to carry out inquiries on the commission's behalf. It was said by the noble Lord, Lord McIntosh, and other noble Lords that the commission would want to make use of police investigators in a substantial number of cases, but that in some cases it would want investigations done for it by someone other than a police officer, including, possibly, in some exceptional cases where a police officer would otherwise have been the natural choice. That is an entirely reasonable view and the Government share it.

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I would support Amendments Nos. 7 and 8 if they were necessary to enable the commission to have investigations done by its own staff or by someone else other than a police officer. But they are not necessary: the Bill already allows those things to be done.

The commission has power under paragraph 4(1) of Schedule 1 to appoint its own employees, with no restriction as to the sort of people its employees may be. It must be plain that the commission does not need special provision in order to direct and supervise its own staff. Nor does it need such provision in order to engage the services of an outsider—for example, an accountant—to investigate a case for it. The commission could contract such a service; the terms of the contract would provide the commission with the necessary ability to supervise and direct matters. Alternatively the commission could itself employ the accountant or whoever on a temporary basis.

The amendments are therefore simply not necessary to achieve the flexibility on which we are all agreed. A power to require that an investigating officer be appointed is necessary in relation to police forces and other investigating bodies in order to ensure that police officers and members of those other bodies are available to assist the commission in relation to matters for which the police service or those other bodies have some wider responsibility. That is the purpose of Clauses 18 and 19.

While, I understand, therefore, the spirit behind these amendments I have to say that they would add nothing at all to the Bill—the point made by my noble friend Lord Renton. They confer no power on the commission or on any other person which is not already available under the Bill as it stands.

Amendment No. 8, on the other hand, appears rather surprisingly to limit the flexibility which the commission already has under the Bill. Instead of preserving the commission's ability to inquire into a case by whatever means at its disposal it judges best, it would appear to oblige the commission, before asking someone to carry out inquiries for it, to trawl police forces and other public bodies throughout the country to see if one of their officers could do the task. So the accountant I mentioned earlier could not be engaged until every police force had been asked whether an officer with suitable knowledge of financial dealings might be available. I am doubtful whether that is what the noble Lord intended, but I fear it will be the effect of the amendment.

I cannot commend these amendments because they add nothing to the Bill, as my noble friend Lord Renton said, except what, in the case of Amendment No. 8, appears to be an unhelpful restriction on the commission's freedom to inquire into cases by whatever available means it sees fit to use. Therefore I hope that the amendment will not be pressed.

I turn to the amendment tabled by the noble Lord, Lord Rodgers of Quarry Bank. The Bill confers a number of specific duties on the commission, such as those in Clause 13(7) and (9) (which require the commission to give its reasons to the court when referring a case, and its reasons to the applicant when refusing to refer his case); Clause 14, subsections (1), (3) and (4) (investigations on behalf of the Court of

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Appeal); Clause 15, subsections (10) and (92) (assisting the Secretary of State in relation to the Royal Prerogative of Mercy); and Schedule 1, paragraphs 8 and 9 (the requirement that the commission prepares annual reports and accounts and submits these to the Secretary of State). It also provides it with all the powers that the Government believe it will need to carry out its work.

Briefly, the commission will have the power to approve the choice of investigating officer. It will be able to require that another person be selected and appointed if it is not satisfied with the first person chosen; to insist on the appointment of an investigating officer from a force or public body other than the force or other public body which originally investigated the case and to approve the choice of the outside force or body; to direct what inquiries should be made; and to supervise their conduct to the extent the commission thinks necessary. The commission's directions can be as precise, and its supervision as close, as the member of the commission in charge of the case thinks fit. In addition to these extensive powers, the commission may take any other steps that it thinks appropriate to investigate its caseload.

It is not clear to me what additional duties should be imposed on the commission, nor what powers the commission might require in addition to those which I have described. Indeed, I know of no evidence to suggest that the commission will require any additional powers. But even if some such evidence should come to light in due course, I have to say to your Lordships that I do not believe that the procedure proposed in the amendment for conferring further powers or duties on the commission would be the right one. The powers and duties of the commission should be settled by Parliament in primary legislation, not by order of the Secretary of State.

I find myself in the ironic situation of considering how extraordinary this amendment is. If the Government had suggested that this open-ended power should be given to my right honourable friend the Home Secretary—that is, to say that any such other powers which may be deemed by the Secretary of State to be necessary shall be enacted by secondary legislation—I should be called to the Dispatch Box to be told that it was an abuse of secondary legislation and we should not give an open-ended power to my right honourable friend to come forward and extend the powers of the commission. I believe that it is a matter for primary legislation.

I turn now to some of the issues that were raised during the debate. The noble Lords, Lord McIntosh and Lord Hylton, mentioned several cases. I hope that they will agree that the intention of the Bill is here almost precisely because of some of the examples raised by noble Lords. There is a genuine attempt on behalf of the Government to ensure that we do not see the like of those decisions again.

I wish to clear up the point about the commission having its own central unit. The Government intend that the commission should have its own unit of experienced investigators to advise it and also, as the noble Lord

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suggested, to play a part in the direction of investigations. Therefore, the amendment is not necessary to enable that to be done, nor would it add anything to the Bill.

In making references to other cases, the noble Lord, Lord McIntosh, referred to the case of Mary Druhan. I hope that he will allow me to write to him about that. Under the Bill as proposed the commission will have powers which the Home Secretary at present does not have. In other words, if the commission wishes to appoint an outside police force, that can be done under the new circumstances.

It would not be appropriate for me to take the individual cases referred to by noble Lords because the purpose of the Bill is to ensure that those injustices are not repeated. I hope that the amendments will not be pressed.

6.30 p.m.

Lord McIntosh of Haringey: My Lords, that was a very remarkable reply because it raised a whole line of argument which was not raised in Committee, nor, as far as I know, when similar amendments were moved in another place. I listened to the Minister most carefully and I hope that I represent her argument correctly. She said that the powers already exist because of Schedule 1, paragraph 4(1). It states:

    "The Commission may appoint a chief executive and such other employees as the Commission think fit, subject to the consent of the Secretary of State and the Treasury as to their number and terms and conditions of service".

Clearly, that provision refers to the permanent employed staff of the commission.

I now turn to Clause 18, which we are considering. It requires that the investigations should be carried out when the commission thinks fit and in two different circumstances. Subsection (2) provides that if the offence was investigated by persons serving in a public body—I shall return to the definition of "public body", which appears in Clause 21—the requirement may be imposed on the person who runs the public body or on a successor body if the public body ceases to exist. I have turned the wording of the subsection into English as opposed to legislative language. Subsection (3) provides that if no offence was investigated by persons serving in the public body, a requirement may be imposed on a chief officer of police.

Taking those two subsections together, the only people who can carry out investigations are those who are in public bodies, whether the offence was investigated by the public body or not. Clause 21 defines "public body" as:

    "(a) any police force,

    (b) any government department, local authority or other body constituted for purposes of the public service, local government or the administration of justice, or

    (c) any other body whose members are appointed by Her Majesty, any Minister or any government department or whose revenues consist wholly or mainly of money provided by Parliament",
leaving on one side the Northern Ireland aspect.

The Minister brought together in her argument the provision in Schedule 1 which refers to the permanent staff of the commission and the provisions in Clause 18

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which require that the investigation should be carried out by a public body. Is she telling the House that under Clause 21(1) (c) a public body—in other words, any other body whose members are appointed by Her Majesty—can include the commission itself? If she is, we are totally satisfied and there is no problem whatever. If she is not telling us that the commission itself can constitute a public body as defined in Clause 21(1), what is the relevance of her reference to Schedule 1, paragraph 4(1)?

I must ask the Minister for a response to that question because it is fundamental to the amendment and to the powers of the commission. I hope that she will be able to give me an answer before I decide what to do about the amendment.

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