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Lord Renton: My Lords, if I may say so, the amendment--moved with the best possible motives--contains, from the drafting point of view, something which causes me a little uncertainty. I say that because the word "except" is used twice. Not having been able to be here during the Committee stage or, indeed, on the first day of the Report stage, it is possible that I have not understood the matter as well as I should have.
However, could it be that the reference to "sensitive material" in the amendment relates to national security? I think that must be so. Therefore, in effect, by the use of the word "except" twice, the amendment gives rise to a double negative. Even though the substance of the point made by the noble Lord is sound, I must confess that I am a little worried about the drafting of the amendment.
On one construction, the effect of the amendment would be that the prosecutor would be under a duty to satisfy himself that the schedule setting out the non-sensitive material contained all such material which had been held by the police in connection with the investigation, whether or not it was on the schedule of sensitive material. In other words, it would require the prosecutor to go right through the material available and carry out, again, the work which had been done by the police in the discharge of their duties under the scheme which the Bill proposes. The structure of the proposal is that the police are responsible for investigating, collecting material and making it available to the prosecutors with the relevant schedules. The prosecutor is then under a duty to consider what falls to be disclosed to the accused, whether initially under primary disclosure or in the continuing duty set out very clearly under Clause 9(2) of the Bill. Those duties are separate but complementary.
I repeat what I said on the last occasion when we considered the matter. Were it to be the case that the police knew in every instance that the work they carried out to categorise material as sensitive or non-sensitive would be reviewed on that approach by the prosecutor, there is a risk that they would not accept its importance and, therefore, would not fully implement the important duty which lies upon them.
I hear the noble Lord, Lord McIntosh, saying that that is a dreadful thing to say. In response, although I accept that that comment may have had an element of jocularity about it, I must point out that anyone who has practised as part of a team, who knows that he is the junior member of it and that a senior member of the team will review the work, cannot and will not--and indeed, never does--put that thought out of his mind. Certainly, any junior counsel who knows that senior counsel is the person who will be reviewing the pleadings and ultimately defending the position in court, knows that there is that failsafe mechanism, if I may put it in those terms, lying ahead. One cannot put that out of one's mind.
I suggest to your Lordships that if the police felt that their initial assessment was merely an initial assessment which the prosecutor would have to reconsider de nouveau, they would have a similar view to the one which I described. It is important that one considers these matters as two separate but complementary responsibilities.
Lord Rodgers of Quarry Bank: My Lords, before the noble and learned Lord sits down, I hope I may ask him a question which may be an elementary one. Unlike the noble Lord, Lord Renton, who prefaced his remarks by saying he had not been present at the earlier stages of the Bill, I confess that I was here and therefore I probably have no excuse for my ignorance. The question arises from the amendment in the name of the noble Lord, Lord McIntosh. Who decides what is and is not an issue of national security? Recent experience has made plain that it is easy for those who wish to preserve secrets, or to deny the availability of documents, to argue that national security justifies that denial. It would be helpful to know who will decide and what safeguards there are as regards documents being withheld on grounds of national security which could have been made available.
Lord Mackay of Drumadoon: My Lords, on one view that question should be asked of those who tabled the amendment because it is not the Government who are suggesting that an issue of national security should be addressed at this stage. The point raised by the noble Lord is valid because were this amendment to be implemented as framed, on one view it would be the police who would take the view that a box of documents gave rise to an issue of national security. It would be for the police to say whether documents are sensitive and involve an issue of national security, and therefore the prosecutor does not have the duty which is proposed in this amendment. Whether or not that is a desirable approach is obviously another matter altogether. In the context of the Third Reading of this Bill I do not think that we wish to become embroiled in the important issues which may lie ahead. However, I suggest that one implication of accepting this amendment is that one would run into difficult territory as regards who would have the responsibility of indicating that in a particular case an issue of national security arises, and therefore whether the provisions of this amendment apply in that case.
Lord McIntosh of Haringey: My Lords, I wish to respond first to the noble Lord, Lord Renton, who queried whether the amendment contained a double negative in that the word "except" is used twice. The word is first used in the phrase,
I feel as strongly about this issue now as I did on that occasion. The noble and learned Lord the Lord Advocate now says that the provision would have a dramatic effect on the way in which the Bill operates. I do not believe for a moment that it would have a dramatic effect. I believe that it would place the responsibility for passing material in primary disclosure to the defence where it should lie; namely, with the prosecutor, and not with the police. The whole structure of the Bill concerns primary disclosure by the prosecutor. Unless the prosecutor sees what material has been classified as sensitive and is able to make his own judgment, he is not able to fulfil his obligations under the Bill. I believe in that principle as strongly now as I did at Report stage.
The noble and learned Lord the Lord Advocate also said that the provision would put a burden on the police who would have to decide whether or not a matter was one of national security, and whether therefore it should be passed to the prosecutor. That, of course, is true, but how much less of a burden would it be than the present provision in the Bill which provides that all matters which may fall under any of the categories of sensitive material have to be adjudged as sensitive or not by the police and not in any way by the prosecutor? The argument that the police will not do their job properly because someone else is looking at their work, and, also, the argument that the provision is a burden on the police seem to me utterly unfounded. I believe that the Government are wrong on this matter and that they have misunderstood the responsibility of the prosecutor in deciding what the primary disclosure should consist of. The Government will regret that and I believe they will discover, when this Bill goes to another place, that there will be disagreement as regards the formulation in the Bill not just on the part of the Opposition but also on the part of legally qualified Members of their own party. However, we should not continue to divide on these matters at Third Reading. I shall withdraw the amendment but only because we are at Third Reading. I beg leave to withdraw the amendment.