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Baroness Blatch moved Amendment No. 3:


Page 2, line 4, leave out ("made by statutory instrument").

The noble Baroness said: It may be for the convenience of the Committee if in moving Amendment No. 3, I speak also to Amendments Nos. 13, 27, 30, 35, 50, 53, 57, 98, 104, 126, 129, 131 to 134, 141, 151, 156 and 159.

All of those amendments are designed to tidy up the Bill by removing unnecessary duplication in the way in which the Bill provides for orders or regulations to be made. They achieve this by adding one new clause after Clause 46 and removing or re-drafting other provisions in consequence.

First, in Clauses 1, 18, 21, 32 to 38, 44 and 45, the Bill refers to a day appointed by the Secretary of State by order made by statutory instrument. The amendments remove the words "made by statutory instrument" from all these clauses. They reappear in subsection (2) of the new clause after Clause 46, which provides that orders made under the Bill are to be made by statutory instrument.

Secondly, Clauses 3, 5, 6 and 7 each require the prosecutor or the accused to comply with the requirements of the clause before the end of a certain period. The period is described as consisting of a number of days to be prescribed, starting on the relevant day. The relevant day is different in each case: in Clause 3 it is where the accused pleads not guilty at a summary trial or where proceedings are transferred to the Crown Court. In Clauses 5 and 6 the period begins on the day when the prosecutor complies with Clauses 3. In Clause 7 the period begins on the day when the accused complies with Clauses 5 or 6. The number of days is to be specified in an order made by statutory instrument subject to the negative resolution procedure. The amendments to these clauses provide that the prosecutor or the accused must act within a period beginning and ending with such days as are prescribed by the Secretary of State by regulations. Subsection (3) of the new clause after Clause 46 provides that the regulations are to be made by statutory instrument subject to the negative resolution procedure. I should explain that we now take the view that the most appropriate means of prescribing the period is by regulations rather than by order, just as, for example, custody time limits are specified in regulations, and the amendments provide accordingly.

Clause 10 currently refers to the specified period described in Clauses 5 and 6. The three amendments to Clause 10 are consequential on the amendments to Clauses 5 and 6 which I have just described.

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Finally, subsection (1) of the new clause after Clause 46 provides that the power to make appointed day orders, and regulations under Clauses 3, 5, 6 and 7, may be exercised differently in relation to different cases or classes of case. In particular, the power may be exercised differently in relation to different areas, enabling the Secretary of State to bring Part III of the Bill into force on different days for different places, that is, for different Crown Court centres. The amendment to Clause 21 removes subsection (2) in consequence. I beg to move.

Lord McIntosh of Haringey: The whole issue of order-making powers and regulation-making powers exercised the Delegated Powers Scrutiny Committee, which received a lengthy memorandum from the Home Office on the subject. The very fact that we are now considering 19 amendments--and therefore 19 different provisions in the Bill--is evidence that this is one of those pieces of legislation which relies heavily on delegated powers. However, the Delegated Powers Scrutiny Committee concluded that since most of those powers are already part of delegated legislation (because they refer to the operation of the courts) this is an appropriate use of order and regulation-making powers and continues the same procedures.

As the Minister said, Amendment No. 159 is the important amendment. It introduces a new clause. The Committee should note that that new clause states that it is the power to make regulations rather than orders which is exercisable by statutory instrument subject to annulment--in other words, by the negative procedure. One never likes a Bill which contains so much delegated legislation, but I think that we can accept that in this case what is now proposed is a tidying up and that there is no particular threat in the new clause which it is proposed to insert after Clause 46.

Lord Rodgers of Quarry Bank: I would not dissent from the conclusion of the noble Lord, Lord McIntosh, but in view of the exchanges that took place before the committal of the Bill, perhaps I might say that I too was immensely grateful for the courtesy and helpfulness of the Minister in making papers available, including the comparison, for which I asked on Second Reading, between the Royal Commission report, the disclosure consultation document and the Bill. That must have required an immense amount of work and the whole Committee should be grateful for that.

However, the fact that I and others take that view of the Minister's contribution does not absolve us from still regretting that the Bill was drafted in the form that it was. As the Minister said--and as she stated in her initial letter in which she set out the changes that the Government are making--the present Bill contains an unnecessary duplication and, to follow both the Minister's words and those of the noble Lord, Lord McIntosh, a process of tidying up is taking place. I do not want to dissent from that, but I see no reason whatsoever why that tidying process should be necessary now. It would have been an easy drafting

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point to ensure that those separate provisions within the Bill were contained in a single clause. That is being done now, but it should have been done earlier.

Lord Campbell of Alloway: May I seek clarification on one aspect? I raised this point on Second Reading. Is the code of practice to be introduced by an order under subsection (2) by statutory instrument, but not be subject to any parliamentary scrutiny? Is that the position?

Baroness Blatch: Yes, it is.

On Question, amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2 agreed to.

Clause 3 [Primary disclosure by prosecutor]:

Lord Airedale moved Amendment No. 4:


Page 2, line 20, leave out ("prosecution material") and insert ("material in his possession").

The noble Lord said: We are invited to discuss Amendments Nos. 4 and 6 together. We now come to Clause 3, which deals with primary disclosure by the prosecutor. In paragraph (a) of Clause 3(1) we find the expression "prosecution material". To begin with, I do not regard that as the language of statute. Surely "material in the possession of the prosecutor" would be preferable. Furthermore, "prosecution material" leads one to suppose that you are talking about material which is in favour of the prosecution, but that clearly is not the case because paragraph (a) refers to,


    "prosecution material which...might undermine the case for the prosecution".

That does not seem to make much sense.

In Amendment No. 6 I have tried to get rid of the expression about undermining the case for the prosecution. It is just a question of relevance: whether the material in the prosecutor's possession is relevant. He does not have to consider whether or not it undermines his case. He does not have to consider whether he thinks that it is useful material or material which is not worthy of much belief. If it is relevant, he has to disclose it. That is what the amendment does. It substitutes relevance for the untidy wording about undermining the prosecution's case.

On Second Reading, the noble Lord, Lord Renton, said:


    "I welcome the Bill in substance but must say that, although the drafting seems to achieve its intended legal effects, it is a little spun out and laborious. I am quite sure that it could have been drafted more succinctly".--[Official Report, 27/11/95; col. 479.]

I hope that Amendments Nos. 4 and 6 take us a little way along the road that the noble Lord, Lord Renton, would like to see us go. I beg to move.

5 p.m.

Lord Campbell of Alloway: On Amendment No. 6, it is essential that the words,


    "which in the prosecutor's opinion might undermine the case of the prosecution against the accused",

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remain. That is a safeguard and must surely be retained. As to Amendment No. 4, it is a question of grammar. I understand what is said.

Baroness Blatch: On the first amendment tabled by the noble Lord, Lord Airedale, I am not sure whether he intended it but it has the effect of narrowing the range of material to which the disclosure duty in Clause 3 applies. It restricts it to material in the possession of the prosecutor, thereby excluding any material in the possession of the police rather than the prosecutor but which the prosecutor has inspected. As Clause 3(2) makes clear, both kinds of material are intended to be subject to the disclosure test. As it stands, the amendment weakens the protection for the accused provided by the Bill.

The second amendment has significant implications for the disclosure scheme in the Bill. Clause 3 currently requires the prosecutor to disclose prosecution material which he thinks might undermine the prosecution case. The amendment would widen that test significantly to require the disclosure of material which the prosecutor thought might be relevant. This is very similar to the disclosure test operating under the current law.

I can understand why the noble Lord wants to amend the clause in that way. He believes that it would reduce the risk of a wrongful conviction if the accused had access to all relevant prosecution material rather than just material which might undermine the prosecution case. But I believe that the provisions in the Bill are themselves adequate to guard against a wrongful conviction. The disclosure tests we have provided focus attention on material which might undermine the prosecution case or which might reasonably assist the defence disclosed by the accused. The prosecutor must disclose all material falling within the tests, subject to considerations of public interest, or provide a written statement that there is no such material. At the time of primary prosecution disclosure he must give the accused a schedule listing all material which has been retained and which is not subject to public interest considerations. The police will have to certify to the prosecutor that they have complied with the requirements imposed on them under the code of practice.

What is more, I am afraid that the amendments proposed by the noble Lord have some significant drawbacks. These are the same as those applying to the current disclosure test. We explained in the consultation paper on disclosure which we issued earlier this year what those drawbacks were and why we intended to narrow the test for prosecution disclosure in the way we have done. I will summarise the reasons, because it is important to put them on the record.

First, a test of relevance includes everything which might possibly have a bearing on the case. But that is very different from whether it has a bearing on the defence which the accused actually relies upon in court. The effect of the current test is that the police often have to photocopy and deliver large volumes of material to the accused, much of it unnecessary in that it is completely irrelevant to the actual defence. Where it is unnecessary it

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is also inefficient. It imposes significantly higher burdens on the police than the test we propose, and diverts police resources away from their primary task of fighting crime.

Secondly, a test as wide-ranging as "relevance" does nothing to narrow the issues in dispute in the case. The test we propose contributes to that by focusing on material which the prosecutor thinks might undermine the prosecution case. In conjunction with defence disclosure, and secondary prosecution disclosure of material which might reasonably assist the defence, our proposals will ensure that cases are much better prepared for trial than at present.

Thirdly, a test of "relevance" is inconsistent with the rest of the disclosure scheme. If the prosecutor discloses everything which might be relevant, there is no point in requiring secondary prosecution disclosure of material which might reasonably assist the defence, because there will be nothing left to disclose. The accused will accordingly be deprived of the benefit of the prosecutor reconsidering undisclosed prosecution material in the light of defence disclosure to assess whether any particular items of material might reasonably assist the defence case.

For all of those reasons, I hope that the amendment will not be pressed. The noble Lord referred to "prosecution material", and said that it was not statutory language. "Prosecution material" is defined in Clause 3(2) in terms which incorporate the language in the amendments tabled by the noble Lord, Lord Airedale. It goes further and includes material that the prosecution has been allowed to inspect.


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