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Baroness Hollis of Heigham: My Lords, I am sure that it has already been given. It may well be a printing error which has been well spotted for its omission. The crucial issue is the undertaking that was given in writing when the Bill was originally published and that stands.
Lord Higgins: My Lords, I understand that very well. I have never noticed it before. It is possible that an amendment has been made which is not in conformity with the convention. However, the noble Baroness says that that is not so, but it is possible. What is relevant to the present debate is that it seems possible now that we are putting the matter on a statutory basis, that there is something in the code of practice which does not conform. I do not believe that that is stretching the matter too much. The assurance that has been given needs to be considered by the House. Perhaps in a more general sense--and it is not appropriate to discuss it at this point--the House should consider whether the way in which we handle this particular issue is the best way of doing so.
Perhaps I may return to one other point as regards the amendment before making one or two general points on the draft code of practice. I am not quite clear how subsections (7) and (8)in the new clause interact. Subsection (7) states,
I have covered most of the points that I need to make. As regards the pure drafting of the code, it appears that no-one has read it straight through. For example, I refer to paragraph 2.4 which begins,
Baroness Hollis of Heigham: My Lords, I thought I had made that point clear in my original remarks, but perhaps I was speaking too rapidly. I said that we were still in discussion with local authorities. That code will be incorporated into the other and we hope that it will be in place, subject to discussion and agreement, in time for the Committee stage in another place. We have gone further and faster in our discussions with business than with local authorities, although they are in parallel track.
Lord Mackay of Clashfern: My Lords, I welcome the amendment, which provides for a statutory code. I think that I am right in saying that the provisions to which my noble friend Lord Higgins has drawn attention are very similar to, if not exactly the same as, the provisions about the Highway Code, which have existed for some considerable time. The important thing is that the definition of offences has to be in the Bill. I wondered whether that was absolutely plain when the Minister was responding to the previous
On the other hand, a failure to comply with the provisions of the code might be evidence that an offence defined under the statute has been committed. It is important that the statute defines the offences. One cannot use the code to modify or reduce the scope of the statutory provision for offences. I should be glad to have that confirmed.
Earl Russell: My Lords, I listened to that intervention with great interest. I shall re-read the code of practice with that question in mind between now and Third Reading, as I am sure the Minister and many others will also do.
On the whole, it seemed to me that the code was concerned with creating defences rather than offences. In the very short time available to me, I have not seen anything in the wording of the code to which I wish to object. I warmly congratulate the Minister on the work that she has done on the subject. In our preliminary meeting, she made encouraging noises about the code of practice and its time of appearance. She has performed a great deal more than she has promised. That is entirely the right way round. I take her point that consultation is still in progress. We saw it in progress a few minutes ago and I very much welcomed its operation. I am in no position to complain about that.
It is highly unlikely that we have done anything contrary to the European Convention on Human Rights that was observed by neither the noble Lord, Lord Grabiner, nor my noble friend Lord Goodhart. I am inclined to fall back on Locke's remark when he saw the proofs of his Second Treatise of Civil Government--that printers have ways all their own, not united by the general fairness that cements mankind.
Lord Grabiner: My Lords, on the point about the certificate of endorsement, for the sake of the record the first version of the Bill carried the endorsement by my noble friend the Minister to the effect that the provisions of the Bill were compatible with the convention rights. The current version, produced after Committee stage, does not carry that endorsement. Section 19(1) of the Human Rights Act 1998, which contains the obligation to produce the statement, provides that before Second Reading the Minister must,
The second point that has been raised was on the code. I welcome the welcome that has been given around the House to the code. The noble Lord, Lord Higgins, referred to an apparent incompatibility between subsections (7) and (8) on what was liable. Subsection (7) says that a failure to comply with the provision will not render a person liable to civil or criminal proceedings. That is a standard in statute providing for codes of practice. It ensures that the authorised officer will not incur personal liability merely for breaching the code. It will not prevent him being prosecuted for an offence committed in connection with his duties. Subsection (8) provides that the code shall be admissible as evidence in any civil or criminal proceedings. In other words, a court may have regard to the code when considering whether an authorised officer has acted properly in his exercise of the information powers set out in the Bill. If the noble Lord wants further elaboration, I shall be happy to write to him.
Finally, in response to the thoughtful speech of the noble and learned Lord, Lord Mackay of Clashfern--we would expect nothing less--I shall re-read his comments and see whether we need to take any further action, but we agree with what he said.