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Lord Rodgers of Quarry Bank: My Lords, the discussion seems to me to illustrate an unsatisfactory element in our procedures. We have before us the draft code of practice, and I shall refer to its timetable shortly. We are in the difficult position of wishing to discuss it and consider whether it is adequately drafted but are unable to do so except by following the procedure adopted by the noble Lord, Lord McIntosh of Haringey, and attempting to write its provisions on to the face of the Bill.
As the noble Lord said, it is wholly unsatisfactory that the code was not available until Wednesday of last week. Indeed, at Second Reading a number of us made clear that if it had not been available by yesterday the Committee stage should not have proceeded.
I am concerned that the code is still a draft. In a letter the noble Baroness, Lady Blatch, said that although the code had been the result of consultation with the police, the CPS and other investigators and prosecutors the Government were still considering its detailed provisions, and it might need further refinement before a final draft was ready for publication. Therefore, in so far as we seek to discuss the code today, we are discussing a draft which may be at a relatively early stage. If we sought, for example, to query whether the design of the code, with definitions which are not complete on the first page and many separate questions to be asked about wording on subsequent pages, not only would it delay our proceedings but we might find ourselves working on a draft which in any event the Minister sought later to amend.
One of the principal claims of this House, which is generally accepted even by those who would seek to change the House, is its record of scrutiny. We go through Bills in great detail, and legislation benefits from the role that we perform. However, not only are
Baroness Blatch: Taking Amendments Nos. 63 and 162 first, I believe that it would be better if the code remained a code of practice rather than being enshrined in primary legislation. I say that for the following reasons.
First, this is a code of practice for police officers which resembles more than anything else the codes of practice issued under the Police and Criminal Evidence Act 1984. Like those codes it goes into detail about everyday police practice. Therefore, I do not see in principle why this code of practice should be on the face of a statute whereas those codes are not.
The second reason is that the Royal Commission on Criminal Justice recommended that the detail of the supporting arrangements on disclosure should be in subordinate legislation or a code of practice. On that point we agree with the Royal Commission. I seem to recall the noble Lord, Lord McIntosh, saying earlier in the debate on the Address that in so far as the Bill followed the recommendations of the Royal Commission it would have his support. Therefore, I am a little disappointed that this is yet another point on which the noble Lord does not support the Royal Commission.
Fourthly, once a provision is on the face of an Act it is no small matter to change it. We would need to introduce primary legislation to effect any necessary changes on points of detail, however minor, and there may well be such changes. Clause 18 foresees the need for such changes by enabling the Secretary of State to revise the code of practice previously brought into operation under Part II. The code may need to be changed in the light of developing case law, developments in police practice or procedures, or other legislative changes.
Perhaps I may cite the PACE codes of practice again. We brought into operation revised codes earlier this year to replace those brought into operation in 1991. There were many changes to that code, partly because of the legislative changes in the Police and Criminal Evidence Act 1984 and partly in the light of experience with the code since 1991. When consulting on draft revised codes, we received of the order of 600 suggestions for amendment. It would have been much harder to revise the codes if they had been enshrined in primary legislation. However, that is what will happen to this code of practice if it goes into the Bill. I do not believe that anyone concerned with managing the business of this House would welcome that.
I turn now to Amendments Nos. 97,99 and 100. Perhaps I may explain why the provisions of Clause 18 are as they are. We do not believe that this code of practice needs to be subject to the affirmative resolution procedure, as is the case with the PACE codes of practice, because in our view this code of practice is a purely procedural code which does not affect the liberty of the subject in the way that the PACE codes do. But nor did we believe that it was necessary in the Bill to require a consultation process, primarily because it is obvious that this code cannot be prepared without consulting others with an interest. Indeed, we have already started that process of consultation on the present draft code.
However, having said that, I should like to take away Amendments Nos. 97, 99 and 100 and reflect on them in the light of the comments of the scrutiny committee. I have to say that I only had sight of the scrutiny committee report as the noble Lord opposite spoke to the amendment. Through my office I have tried in vain to obtain a copy. I do not know why I do not have a copy. I think that I heard the noble Lord refer yesterday to having seen a copy of the scrutiny committee report.
Lord McIntosh of Haringey: The Delegated Powers Scrutiny Committee report was published on 5th December. It has been available since then in the Printed Paper Office. There seems to be an extraordinary lack of co-ordination in the Minister's office.
Baroness Blatch: That is a matter for me to follow up. However, until coming into the Chamber today I have been asking for a sight of the scrutiny committee report. I have been asking what it says; I have been told that it is not available. I had it passed to me as the noble Lord opposite was on his feet. It is for me to find out why that should be so.
In summary, I believe that the code of practice should remain a code of practice and should remain outside the Bill. In the light of the report, and of what has been said in the debate by noble Lords opposite and by my noble friend, I should like to take the other amendments away and come back at Report stage.
Lord McIntosh of Haringey: It is good to know that a Minister is willing to take away other amendments in the group. I have to say that someone should be sacked because the scrutiny committee report was published. It covers a number of Bills as well as this Bill. It was ordered to be printed on 5th December. I do not have my copy because I have passed it to Hansard so that it can correctly reproduce my quotations from it. But something is very seriously wrong if the Minister cannot and could not obtain the report despite asking for it. I should be looking for a few heads to roll.
The Minister said something very strange. I wrote the words down as best I could. She said that she would be taking the opportunity to refine the code before placing it before Parliament. However, as she rightly recognised, Clause 18(1) only provides for it to be laid
Baroness Blatch: Before the noble Lord sits down--and this is in no way to detract from his intentions--perhaps I may say this for the purposes of the record. Whether the code of practice is laid before the House as a matter of information prior to my right honourable friend using his order-making powers to bring it into effect, or whether the suggestions made by my noble friend Lord Campbell of Alloway, or those contained in Amendments Nos. 97, 99 and 100, are brought into effect, it is absolutely right that the code of practice--it will be the operational manual for implementing these procedures--should be subject to the comments in debate in this House and in another place, and of those people outside who will have to operate under it. All those comments should be taken into account. When it comes before the House for approval, the code should be in a definitive form and should benefit from all that consultation.
Lord McIntosh of Haringey: I entirely accept that. Our amendments to Part II of the Bill reflect our willingness to consider the text of the code and the important matters raised in it, and to subject them to parliamentary scrutiny in the hope that by those means the provisions can be improved.
I do not expect to win a Division on this amendment. If I do not win a Division, I can assure the noble Baroness that, in the light of her assurances on Amendment Nos. 97, 99 and 100, I shall not press them to a vote. However, I wish to express my displeasure, and the displeasure of my noble friends. I want to take the opinion of the Committee.
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