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Baroness Blatch: It is not my intention--nor is it my nature--to be pedantic about a particular word. Of course I shall take the matter away and look to see whether there is anything of substance in what the noble Lord said. If there is, the word will be left out.

Lord McIntosh of Haringey: I am most grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 68:

Page 11, leave out lines 3 and 4 and insert--
("(a) that when information is obtained or inspected in the course of a criminal investigation it is recorded at the time it is obtained or inspected or as soon as practicable after that time;").

The noble Lord said: In moving this amendment I shall speak also to Amendment No. 91. These issues are of considerable importance in the code because the code rightly goes into a great deal of detail about the way in which a schedule of material yet to be revealed to the prosecution--I believe that I can use the word "yet", although we have not considered the amendment on the wording--should be carried out. We are concerned that there does not appear to be adequate provision in the code for the material to be collected, gathered and put into a schedule contemporaneously; in other words, in the words of the amendment, "as soon as practicable" after the time that it has been obtained or inspected. Amendment No. 68 seeks to insert:

Amendment No. 91 states that:

    "The code shall provide that a document shall be prepared under subsection (3) in every case except where the accused has indicated an intention to plead guilty".
The point about Amendment No. 91--I did not read the whole of it--is that we do not seek a proto-schedule to be prepared in every single case even when it is obvious that it will not be necessary because the accused has either pleaded guilty already, admitted the fact or, when caught in the act, not denied it. So we do not ask for an intolerable burden. We feel that when it is obvious that a schedule is going to be necessary, it should be as immediate, actual and therefore as accurate as possible. I beg to move.

Baroness Blatch: This is the first of a series of amendments which provide for Clauses 16 and 17 to specify a number of additional matters to be included in the code of practice prepared under Clause 16. Some of these incorporate provisions of the draft code of practice issued recently, without any changes. Others incorporate amended provisions of the draft code, or include new provisions.

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It may be for the convenience of the Committee if I make some general comments in this debate, which apply to all the related amendments on this subject tabled by noble Lords opposite.

As I explained in the debate on the new clause before Clause 15, I do not in principle believe that it would be desirable to place the provisions of the draft code of practice, amended or not, on the face of the Bill. It takes up time in this Chamber and another place if the provisions need to be amended in the light of reflection, as they probably will. It requires the introduction of new primary legislation if the provisions need to be amended after they are enacted. Nor do I understand why some parts of the draft code are deemed sufficiently important to be included in primary legislation, whereas others are to be left to secondary legislation. The criteria are not obvious when reading through the amendments.

In so far as these amendments incorporate provisions of the draft code into the Bill, their effect is to place the same or similar provisions in both primary legislation and secondary legislation. In my view, the proper course is to leave all of the provisions of the draft code as they are, and to put in the Bill those enabling powers which are needed to ensure that what the code provides is not ultra vires.

I do not propose to comment in detail on these or other related amendments. Where they incorporate the provisions of the draft code without changes, there is nothing I can add to the general remarks I have just made. Where they do amend the provisions of the draft code, or make new provision, we shall take that into account in considering the next version. For those reasons I invite the Committee to reject the amendment.

Lord Campbell of Alloway: I thank my noble friend for her constructive attitude to the related amendments, particularly because--as I have already said--in my view the criteria as to what should or should not be in primary legislation is of cardinal importance. That is why I could not support the provision for bringing the matters in the code into a schedule of the Bill.

The sensible way must be the way advanced by my noble friend the Minister; that is, to deal with all related matters on the basis that they will be included in a revised code. The drafting of these two amendments is far more useful and efficacious than the way in which the clause is worded. However, we can spend hours tinkering around. It is surely better that these matters are discussed by all those interested, who can then find some accommodation.

Lord McIntosh of Haringey: We will be happy to do that. However, the noble Lord, Lord Campbell, will recognise that we have hardly had an opportunity for discussion between the time the code was published and the time that we had to meet to consider the matter in Committee.

The Minister said, and the noble Lord echoed, that these are issues as between primary and secondary legislation. As the Bill is drafted, they are not; they are issues between primary and tertiary legislation. Tertiary legislation, if I am defining it for the first time, is legislation which may be laid before Parliament but is

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not subject to either the negative or the affirmative procedure. There may even be quaternary legislation, which is not even laid before Parliament.

The events of the past hour have secured that, by proposing to put the matter on the face of the Bill--to which the Committee decided not to agree--we succeeded, with the help of the noble Lord, Lord Campbell, in obtaining an undertaking from the Minister to consider whether something more than tertiary legislation is appropriate status for the code of practice. The Minister said that now she has seen the recommendations of the Delegated Powers Scrutiny Committee she will go away and think about it. We can then perhaps debate it and come back at a later stage. So we have achieved something by opening this debate in relation to the issue of primary, secondary or tertiary legislation. I am not apologetic for starting that process.

We come to the detailed consideration of the code of practice. The only way in which we can consider the code of practice as a revising Chamber is by drawing attention to the provisions in the code of practice which we consider to be important--it may be that we are wrong in our judgment about what is important, but we have made our judgment on that point. If we agree with the provisions and think that they are important, then we bring them before the Committee to have them elevated in status. If we do not feel that they are satisfactory, we bring them forward with amendments. That is what we have done in several subsequent amendments.

Again, I do not apologise for that procedure. That is the right way to do it. At one stage I had to write an entire code of practice in as an amendment and amend it myself as a way of bringing the issues before the Chamber. I did not apologise for that, though many people misunderstood it. We are doing the right thing. We are drawing attention to important issues.

The Minister gave a general reply and indicated her support for the wording in Amendments Nos. 68 and 91, which are drawn directly, without amendment, from the code of practice. The difference between us is not whether the wording is right, but what should be the status of the wording. In view of the undertaking to consider further the issue of secondary status of affirmative or negative resolutions, I shall not press the difference between us because it is so narrow. On that basis, and on that basis alone, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 69:

Page 11, line 6, at end insert ("both in a durable form and so far as practicable in its original form").

The noble Lord said: Amendment No. 69 suggests a change in the wording of the code of practice, which says that material shall be preserved in a written or other durable form.

The point we are making may be a minor one, but there may be a distinction between "durable form"--for example, the transcript of a telephone conversation--and the original material. The transcription into a

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durable form, which is necessary, may involve some distortion. The amendment suggests that where possible, and as far as practicable, it should be in its original form.

For example, a 999 call to the police or to the ambulance service may be critical evidence in identifying somebody who drew attention to a crime or was involved in the crime in some way, perhaps as a perpetrator or as the victim. No transcription can do justice to the tone of voice, the background noises and all the surrounding circumstances of a 999 call, which may be critical. Of course the call must be transcribed into a durable form. Of course that transcription must be maintained, and the code of practice allows for that, but surely the original should be kept as well. I beg to move.

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