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Lord Ackner: My Lords, before the noble Baroness sits down, does she accept that under the clause as drafted the prosecutor will have performed his duty if he honestly but unreasonably fails to produce the material?

Baroness Blatch: My Lords, certainly the prosecutor would have to be honest. If he were not honest he would have other problems; certainly he would be in breach of his own codes and could be contributing to an unsafe conviction. I am not sure that the point raised by the noble and learned Lord is appropriate in this case. If the prosecutor were inadvertently unreasonable--I believe that the noble and learned Lord is suggesting that he may be acting incompetently--that could be a contributory factor and could be challenged later on conviction.

Lord Boyd-Carpenter: My Lords, before my noble friend finally sits down, in the circumstances is not a "reasonable" opinion exactly what is wanted? What harm could possibly be done by inserting the word at this stage?

Baroness Blatch: My Lords, the difference between us is that the prosecutor must act reasonably. He is not free to act unreasonably. During the course of his work he must, under a number of codes, act fairly, justly and reasonably. It seems unreasonable even to suggest the notion that one must put in statute that the prosecutor must act reasonably.

I remain of the view personally--as well as having been advised to advocate the view--that this is an unacceptable amendment. I invite the noble Lord not to press the amendment but, in view of the debate that we have had, I should like to reflect on the other points that have been made about the drafting. If the noble Lord is prepared to withdraw the amendment, then we shall reflect on the debate as a whole before the Bill goes to another place.

Lord Williams of Mostyn: My Lords, we have reflected for quite a long time. The Minister has valiantly, if I may say so, put forward a non-sustainable brief. I do not believe that she convinces any of us even on the balance of probabilities, let alone beyond reasonable doubt.

This is not a party point but is a determined effort to try to make legislation better than it is presently drafted. It is noteworthy that no one in the massed ranks which sometimes charge forward to support Home Office legislation has been able to do so. It is noteworthy also that either all or the overwhelming majority of noble Lords who have spoken are well familiar with Bar Council duties, having been subject to them, one way or another, for longer than most of us would care to reflect about.

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In answer specifically to the discriminating intervention of the noble Lord, Lord Boyd-Carpenter, that these were duties laid upon the Bar and that the prosecutor would be expected to behave reasonably, in a voice that was not so sotto voce, the noble Lord said, "Exactly". That is exactly what I reasonably suggest. Therefore, I intend to test the feeling of the House.

3.32 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 82; Not-Contents, 114.

Division No. 1


Ackner, L.
Acton, L.
Addington, L.
Allen of Abbeydale, L.
Archer of Sandwell, L.
Attlee, E.
Bancroft, L.
Barnett, L.
Berkeley, L.
Borrie, L.
Boyd-Carpenter, L.
Brain, L.
Bruce of Donington, L.
Carmichael of Kelvingrove, L.
Chester, Bp.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Darcy (de Knayth), B.
David, B.
Dean of Thornton-le-Fylde, B. [Teller.]
Donaldson of Kingsbridge, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Farrington of Ribbleton, B.
Fisher of Rednal, B.
Gerard, L.
Gladwin of Clee, L.
Graham of Edmonton, L. [Teller.]
Greenhill of Harrow, L.
Grey, E.
Halsbury, E.
Harris of Greenwich, L.
Haskel, L.
Hayman, B.
Henderson of Brompton, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howie of Troon, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Putney, L.
Kinloss, Ly.
Kirkhill, L.
Lawrence, L.
Longford, E.
McIntosh of Haringey, L.
McNair, L.
Mason of Barnsley, L.
Mayhew, L.
Mishcon, L.
Molloy, L.
Monkswell, L.
Morris of Castle Morris, L.
Nelson, E.
Ogmore, L.
Palmer, L.
Ponsonby of Shulbrede, L.
Redesdale, L.
Rodgers of Quarry Bank, L.
Sefton of Garston, L.
Sewel, L.
Shannon, E.
Shaughnessy, L.
Shepherd, L.
Sherfield, L.
Simon, V. Smith of Gilmorehill, B. Stedman, B. Stoddart of Swindon, L. Strabolgi, L. Taverne, L. Taylor of Blackburn, L. Thomas of Walliswood, B. Thomson of Monifieth, L. Tordoff, L. Turner of Camden, B. White, B. Williams of Elvel, L. Williams of Mostyn, L. Winston, L.


Aberdare, L. Addison, V. Ailsa, M. Aldington, L. Alexander of Tunis, E. Allenby of Megiddo, V. Ampthill, L. Archer of Weston-Super-Mare, L. Arran, E. Ashbourne, L. Astor of Hever, L. Blaker, L. Blatch, B. Boardman, L. Brabazon of Tara, L. Bradford, E. Braine of Wheatley, L. Cadman, L. Campbell of Croy, L. Carnegy of Lour, B. Carnock, L. Chelmsford, V. Chesham, L. [Teller.] Constantine of Stanmore, L. Courtown, E. Craig of Radley, L. Cranborne, V. [Lord Privy Seal] Cuckney, L. Cullen of Ashbourne, L. De Freyne, L. Dean of Harptree, L. Dixon-Smith, L. Eccles of Moulton, B. Elles, B. Elliott of Morpeth, L. Erroll of Hale, L. Faithfull, B. Ferrers, E. Finsberg, L. Fraser of Carmyllie, L. Fraser of Kilmorack, L. Gainford, L. Gardner of Parkes, B. Gilmour of Craigmillar, L. Gisborough, L. Goold, L. Goschen, V. Gray of Contin, L. Hailsham of Saint Marylebone, L. Hayhoe, L. Henley, L. Hertford, M. Hogg, B. Holderness, L. Howe, E. Hylton-Foster, B. Inglewood, L. Ironside, L. Jenkin of Roding, L. Johnston of Rockport, L. Killearn, L. Kimball, L. Lauderdale, E. Layton, L. Leigh, L. Long, V. Lucas, L. McConnell, L. Mackay of Ardbrecknish, L. Mackay of Clashfern, L. [Lord Chancellor.] Mackay of Drumadoon, L. Macleod of Borve, B. Marlesford, L. Mersey, V. Miller of Hendon, B. Milverton, L. Montgomery of Alamein, V. Mowbray and Stourton, L. Munster, E. Murton of Lindisfarne, L. Noel-Buxton, L. Norfolk, D. Norrie, L. Northesk, E. Onslow, E. Orr-Ewing, L. Oxfuird, V. Pearson of Rannoch, L. Pender, L. Peyton of Yeovil, L. Pilkington of Oxenford, L. Pym, L. Quinton, L. Renwick, L. Rippon of Hexham, L. St. Davids, V. Saltoun of Abernethy, Ly. Seccombe, B. Shaw of Northstead, L. Skelmersdale, L. Strange, B. Strathcarron, L. Strathclyde, L. [Teller.] Sudeley, L. Terrington, L. Trefgarne, L. Trumpington, B. Vaux of Harrowden, L. Westbury, L. Whitelaw, V. Wilcox, B. Wolfson, L. Wynford, L. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

19 Feb 1996 : Column 872

3.40 p.m.

Clause 4 [Primary disclosure: further provisions]:

Lord McIntosh of Haringey moved Amendment No. 3:

Page 3, line 26, at end insert--
("( ) and, except where an issue of national security arises, the prosecutor has satisfied himself that the document includes all material except sensitive material.").

The noble Lord said: My Lords, with this amendment we return to the issue of sensitive material. Noble Lords who took part in the earlier consideration upon the Bill will remember that we were worried about a number of aspects of the definition and use of sensitive material in the disclosure process.

Our first concern was that it was the prerogative of the police, the investigator, alone to decide which material was or was not sensitive. We had some minor

19 Feb 1996 : Column 873

worries about the definition of "sensitive material". But the principal concern was that the prosecutor who has to hand over all non-sensitive material in the primary disclosure process does not have any way of satisfying himself as to which material is and is not sensitive.

The code of practice which the Government helpfully published, and which is now, of course, to be subject to statutory instrument, sets out the definition of "sensitive material". That is due to the fact that we tabled it as an amendment so that everyone could see it, apart from it being available in the Library. Noble Lords will recall that the definition is very wide indeed. It starts with matters of national security and includes such things as foreign intelligence, but it goes on to include material, for example, which is given or gathered in confidence. Indeed, there is an extremely long list of types of material which may be considered sensitive.

When we proposed that the prosecutor should have the responsibility for satisfying himself as to whether or not material was sensitive, the noble Lord, Lord Campbell of Alloway, (who we are sorry not have with us this afternoon), objected to our amendment on the grounds that, in cases of national security, prosecuting counsel might not be cleared in security terms. I did not think very much of that argument, as the noble Lord realised at the time. However, in our usual reasonable way, we have attempted to meet the objection which might be raised and to be as modest and as helpful as we possibly can in drafting our amendment.

Under the amendment, the prosecutor would still have the responsibility of judging what is and what is not sensitive, except in cases of national security. I do not believe that we can go much further than that if we are to continue to express our serious concern at the imbalance of responsibility between the police--the investigator--and the prosecution in deciding what evidence shall be disclosed at the primary disclosure stage. Therefore, we very much hope that the Government will find it possible to accept the amendment, which has been drafted not in an adversarial spirit but in a genuine effort to seek the agreement of government. We hope that it will be acceptable also to the House. I beg to move.

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