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Lord McIntosh of Haringey: My Lords, it goes without saying that I am in no way impugning the professional integrity of the Forensic Science Service, nor indeed of anybody else involved as a forensic scientist in investigations, because, as the Lord Advocate will recognise, not all forensic science investigations are carried out by the Forensic Science Service. There is, for example, still the Metropolitan Police forensic science laboratory and there are also independent accredited forensic science laboratories which also work to full professional standards. I acknowledge the validity of the point about police surgeons, but that can be very easily remedied by an amendment to the Bill, as the Lord Advocate said, as it goes to another place.

However, the fundamental point has not been addressed. The Government have recognised and considered it right that the investigation should be held under a code of practice by providing one in accordance with the wishes of the Delegated Powers Scrutiny Committee and by providing that the code of practice shall be laid before Parliament and subject to its

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approval. If it is considered right for the investigation to be covered by a code of practice, then that must be right for all parts of the investigation, including those parts which are subcontracted to experts. As the Lord Advocate is now claiming that professional codes of conduct are sufficient for the purpose, then there is no reason to have the code of practice which is before us and which Parliament will be invited to approve.

I do not believe that the Government can have it both ways. We are arguing for a code of practice which gives the only assurance that matters; namely, that the investigation was carried out according to common standards. There will need to be variations for experts and for different types of investigator and investigation, and nobody denies that. But the principle that they should all be covered and be responsible ultimately to parliamentary approval is what I am sure the Delegated Powers Scrutiny Committee intended and what the Government now intend. I am sad that they do not recognise the validity of the point of providing for the inclusiveness of the code of practice, which is what is really needed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 [Power to order preparatory hearing]:

Baroness Blatch moved Amendment No. 12:


Page 14, line 20, leave out ("person").

The noble Baroness said: My Lords, in moving Amendment No. 12, I should like to refer also to Amendments Nos. 14, 15, 16, 21, 22, 24 and 25 and to Clauses 40, 41, 42, 54, 59 and Schedules 2 and 3.

I can give an explanation of the detailed effects of the amendments if the House would find that helpful, but they are all either technical or designed simply to tidy up the drafting of the Bill. I beg to move.

On Question, amendment agreed to.

Clause 37 [Indemnification of justices and justices' clerks]:

Baroness Blatch moved Amendment No. 13:


Leave out Clause 37.

The noble Baroness said: My Lords, your Lordships will recall that on Report the noble and learned Lord, Lord Ackner, successfully moved an amendment to Section 53 of the Justices of the Peace Act 1979. The intention underlying the amendment was to strengthen the indemnity which Section 53 provides to justices and justices' clerks against orders for costs and other sums in respect of matters arising from criminal jurisdiction. Perhaps I should just remind your Lordships at this point what the terms "indemnity" and "immunity" mean in this context. Indemnity here means the payment by the magistrates' courts committee of any sums which have been ordered to be paid by a justice or justice's clerk, whereas immunity means protection against a costs order being made against them. As your Lordships will recall, the effect of the amendment was to bring the test of whether indemnity should be given to justices in criminal matters in line with the test for immunity in respect of actions arising from matters outside a magistrate's jurisdiction.

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The amendment which your Lordships have before you today does not seek in any way to challenge the substance of that amendment. Far from it: the aim is simply to improve the drafting and to clarify that amendment. The noble and learned Lord, Lord Ackner, will, I hope, welcome the spirit of that response.

As your Lordships will see, the proposed new clause would insert a new subsection, to be numbered 1A, into Section 53 of the Justices of the Peace Act. This new subjection sets out the provisions which apply to matters arising from criminal jurisdiction and provides that indemnity shall be given unless it is proved that the justice or justice's clerk acted in bad faith. That is the new provision which the noble and learned Lord introduced by his amendment. The existing subsection (1) will cover all other cases. In those such cases, there is an entitlement to indemnity if the justice or justice's clerk acted reasonably and in good faith.

There will thus be an important distinction between the provisions which will now apply to criminal matters and those which apply to cases arising from civil jurisdiction. In civil matters, the magistrates' courts committee has a general power to provide indemnity and is obliged to provide indemnity if the justice or justice's clerk acted reasonably and in good faith. In criminal cases, indemnity will have to be given unless bad faith is proved: in civil cases, indemnity has to be given if good faith and reasonableness are demonstrated. The Government believe that it would aid clarity and avoid confusion to set out the different criteria which, reflecting the will of the House as expressed at Report stage, will now arise under the two jurisdictions in separate subsections in the way which is proposed.

Your Lordships will also remember that when I spoke on this matter previously I explained that my noble and learned friend the Lord Chancellor was aware of the concerns which justices have about their potential liability for costs and, in particular, their view that, as a matter of principle, they should be given immunity against such orders. The amendment moved by the noble and learned Lord, Lord Ackner, and approved by your Lordships, does not address the question of immunity. In addition, it is restricted to criminal cases because to have included civil cases would have taken it outside the scope of the Bill. Although it therefore does not cover many of the cases which have given rise to the anxieties which justices feel, it is very much in keeping with the Lord Chancellor's approach to look for ways of giving protection provided there has not been bad faith. The Lord Chancellor still believes that it would be right to consult before bringing forward legislation to address this and intends to issue a paper in the summer.

While this work on immunity is under way, my noble and learned friend the Lord Chancellor has also said that he will look at ways of improving the arrangements for providing indemnity so that, in the interim, justices and justices' clerks can have confidence that the current statutory provisions will work.

Finally, commencement provisions have been included. The amendment, while improving the position of justices and justices' clerks, does, in theory at least,

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have financial implications for magistrates' courts committees. For that reason, it follows established principles in providing for commencement to be on a date as soon as possible after Royal Assent. I beg to move.

5.15 p.m.

Lord Ackner: My Lords, in moving Amendment No. 13, the noble Baroness spoke also to Amendments Nos. 20 and 23, which appear with it on the groupings list. That tells the whole story which she has recounted.

I accept the amendments proposed since they are designed to put in the form which is considered most appropriate the amendment which I moved, and succeeded in, on Report. Your Lordships will appreciate that my amendment removed from justices the potential liability to pay costs in criminal cases where it was considered that they had acted unreasonably, and restricted it in future to cases where they had acted in bad faith. It was limited to criminal cases, not through any lack of ambition to safeguard them from the unusual and surprising liability with regard to civil cases, but because I was restricted to criminal matters as a result of the nature of the Bill. I hope that my noble and learned friend the Lord Chancellor, with whom the noble Baroness has so successfully interceded, will deal with that anomaly as soon as possible.

The noble Baroness will no doubt be pleased to know that the amendment has given great comfort to some 30,000 magistrates, although they appreciate that it is hoped that there will be more to follow. In particular, the noble Baroness has made very contented a Somerset magistrate on the Western circuit, my old circuit, who has been looking forward to what we have partially achieved since, he says, 1989, when my noble and learned friend the Lord Chancellor made a promise of indemnity for magistrates in a speech in which he undertook to,


    "introduce legislation at the earliest opportunity".
I hope that "the earliest opportunity" will not involve a wait of another seven years.

Perhaps I may add this for the benefit of the noble Baroness: since that amendment was moved, my post has revealed that two class members of the judiciary are left out in the cold. My heart yearns for the first, the general commissioners of income tax; while the second class, to which I refer with some anxiety, comprises coroners. Again, I express my gratitude to the noble Baroness.


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