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If there is a code, it is not enough to rely upon the assurance given by the noble Lord, Lord Renton, that the people concerned will be bound by the codes of practice. What happens when the people concerned do not bind themselves by the codes of practice but breach them? If evidence is produced in a criminal or civil court as a result of the breach of the codes, what is to be the result? Surely there has to be some sanction. The sanction under the codes introduced under the Police and Criminal Evidence Act which are concerned with the interrogation of suspects is provided in Section 78 of the Act, whereby the judge can rule evidence to be inadmissible on the grounds of unfairness.
Lord Renton: If the noble Lord will allow me to intervene, perhaps I may say with deep respect that he is confused. As regards the codes of practice and evidence of breaches of the codes of practice, we do not need to have it written in the Bill, as does Amendment No. 31, that a code issued shall be admissible. It is admissible whether or not it is produced in evidence. It
Lord Thomas of Gresford: I am grateful to the noble Lord for his help and assistance. I do not contest that a code is admissible, or that a court can have regard to the contents of a code. However, I place the greatest emphasis on the words,
One can readily envisage, certainly so far as Clause 67 is concerned, that there could well be breaches of the code that is promulgated and that those are matters which could be of very considerable concern to a court. An hour or so ago the Minister spoke against the concept of having a commissioner to oversee the implementation, the fairness and accuracy of the work of the NCIS. He or she having gone, the phrase that comes to my mind to be adapted is "Quis custodiet codices ipsos?" Somebody has got to ensure that these codes are maintained and obeyed.
Baroness Blatch: Amendments Nos. 29, 30 and 31 to Clause 28 and Amendments Nos. 65, 66 and 67 to Clause 72 all relate to the provisions in the Bill which enable the Secretary of State to issue codes of practice about the way in which the service authorities discharge their function. Clause 28 relates to the NCIS service authority while Clause 72 deals with the National Crime Squad, as the noble Lord has already pointed out. I emphasise that it is the service authorities to whom any such codes of practice would apply, not the services themselves. That is a crucial point to bear in mind when considering these amendments.
The amendments seek to achieve three main purposes. First, they require any codes of practice to be subject to formal consultation requirements and the affirmative resolution procedure before they can come into effect. Secondly, they seek to require that persons performing functions under Clauses 89 and 91 of the Bill, which deal with the authorisation of intrusive surveillance, should have regard to these codes of practice. Finally, they provide that the provisions of these codes of practice are admissible in evidence in civil and criminal proceedings. Clauses 28 and 72 of the Bill are identical to Section 39 of the Police Act 1996, which enables the Secretary of State to issue codes of practice about the way in which police authorities discharge their functions. The purpose of the power is to allow the Secretary of State to issue binding guidance
Lord Thomas of Gresford: Would the noble Baroness agree that there is a marked distinction between ensuring that administrative matters are carried out by police authorities under codes of practice and a situation that is envisaged in this Bill, where we are dealing with the collection of evidence one way or the other, whether through the NCIS or the crime squad provisions?
Baroness Blatch: I am just coming to the distinction, because the distinction is a very important one and I hope that the noble Lord, Lord Thomas, will see the point. The only code of practice issued to police authorities was published in 1994 and covered financial management by police authorities. Where a code was issued to a service authority, it would be subject to precisely the same consultation and precisely the same parliamentary procedures as a code issued to police authorities.
As I say, Clauses 28 and 72 of the Bill are identical to Section 39 of the Police Act. The distinction is between that and the moving on to the codes of practice which will cover the intrusive surveillance part of the Bill. I will come to that in a moment. All of that is perfectly reasonable, given that the codes will be concerned with matters of detail about the discharge of functions which have been subject to thorough parliamentary scrutiny. We can see no possible justification for dealing with codes of practice relating to the service authorities any differently from those of police authorities. The Select Committee on Delegated Powers and Deregulation of this House is also satisfied that there is an appropriate degree of parliamentary control over these powers. Although we have no present plans to issue codes of practice under these provisions of the Bill, we cannot in these circumstances accept that these amendments are necessary.
Turning to the second element of the amendments, this seems to be based on a misunderstanding of the nature of the codes of practice envisaged. Any codes will be concerned with how the service authorities discharge their functions. The service authorities and police authorities generally have no role whatsoever in the authorisation of intrusive surveillance--this is the distinction I make--to which Clauses 89 and 91 relate. That will be a matter, under the Bill as presently drafted, for chief constables and will be one for which a specific code of practice will be issued. It would be totally inappropriate and indeed unnecessary for chief constables performing those functions to have regard not only to their own specific code of practice but, as these amendments require, to codes of practice issued under these very different provisions in the Bill.
Finally, as I have already mentioned, the codes of practice will be concerned with matters of detail about how the service authorities discharge their functions. As such, they will not be relevant as evidence in criminal or civil proceedings, which was the point made by my
We believe that the Bill makes perfectly adequate provision based on the arrangements for police authorities for these codes of practice to be prepared and to be laid before Parliament. These amendments are unnecessary and in some respects inappropriate, and therefore we cannot support them.
Lord McIntosh of Haringey: I did not actually expect the Government to support the amendments and I do not think it was only the pleading of the noble Lord, Lord Renton, that persuaded them not to. I have to say to the noble Lord that, unusually for him, his observations were almost entirely misconceived. Codes of practice are treated in this way in particular in the Police and Criminal Evidence Act and codes of practice, which form such a large part of the Police and Criminal Evidence Act, and therefore of our criminal procedures, are subject to exactly these constraints on consultation, on parliamentary approval, on observance and on use in evidence.
I suspect that I am wrong, not so much in the wording of these amendments but in where they have been placed. I accept that the Minister is right in that to some extent the wording I have used is more appropriate to police activities than to the activities of the service authorities. I also think that my amendments are wrong in their references to Clauses 89 and 91. I think they should be dealt with separately when we come to Part III of the Bill. Indeed, as the noble Baroness will know, we have a number of amendments down about the code of practice which she has so kindly supplied to us in draft.
These are clearly not amendments which I can pursue, but the point which I tried to make at the beginning and which was powerfully backed up by the noble Lord, Lord Thomas of Gresford, is still true. In other words, if you have codes of practice--and they are referred to in Clause 28--then they have got to be properly enforced. The provisions of subsections (2) and (3) of Clause 28 and the comparable provisions of Part II of the Bill simply do not provide adequate enforcement procedures; nor do they provide for adequate consultation. To that extent, the analogy of the codes of practice in the Police and Criminal Evidence Act is very relevant, and this is a matter which I shall have to come back to at a later stage.