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Baroness Barker: I thank the Minister for her characteristically comprehensive reply. I very much welcome the commitment to produce clearer guidance. That will be enormously helpful.

I am a comparative novice; I have been around this track only once or twice before. Nevertheless, I recognise the drill that any list prompts a response that it will be exclusive. That is why the amendments—I say this in defence of them—were drafted so that they would not be. The list would include, but not be limited to, certain items. The wording was particularly

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designed to bear in mind the fact that there are innovations in equipment. Equipment changes, and things come along that are inestimably better than before.

At a different stage, I might like to take up one or two more issues, particularly those about means testing for items for which the disabled facilities grant may come into play. We may be talking about people having to have ramps built and so on.

When the Minister dealt with intermediate care, I was astonished at her assertion that local authorities would be allowed to use their common sense to extend over a period of six weeks. That runs contra to the ethos throughout the Bill. When time equals money as much as it does in relation to such matters, given the direct consequences for budgets, the freedom for practice managers on the ground to make such decisions will become less and less.

I took some heart from what the noble Baroness said in response to the noble Earl, Lord Howe, about information to people. However, I am concerned on the provision of so-called free nursing care. When one begins to hear of cases, as I have done recently, where people suddenly find that the free nursing care provided to their relatives and care charges have gone up in bandings accordingly for no reason whatever, I begin to worry about the strength of individuals to stand up to some of the systems as they are imposed on them.

I believe that small pieces of equipment make more difference to individual people's lives than much heavier interventions. I shall go away and consider in Hansard what the Minister said. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 126 to 131 not moved.]

8 p.m.

Earl Howe moved Amendment No. 132:

    Page 8, line 38, at end insert ", save that the first such statutory instrument under this section shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament"

The noble Earl said: This amendment seeks to amend Clause 12(6). As I said, we welcome the provision of free services to patients following their discharge. However, it would be extremely helpful to know what is intended to be covered. Neither the Explanatory Notes nor the draft regulations are particularly helpful. There is great interest in many quarters about the precise coverage of Clause 12. That is why we are proposing that the first statutory instrument under the clause should be subject to the affirmative procedure. We are not asking that every amendment to the regulations should come to both Houses of Parliament for approval; we are simply focusing on the first statutory instrument.

The underlying assumption is that that first SI will be a meaty one, containing the way in which the scheme will operate at the outset. I know that this procedure will have been used with other Bills involving other government Ministers and that it has

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worked very successfully. Therefore, I hope that the Minister will not throw it out of court completely but will perhaps think about it. It is a substantive matter which we shall not have had the chance to debate as the Bill has progressed through the House. I beg to move.

Lord Hunt of Kings Heath: The noble Earl, Lord Howe, is tempting me to read out a list. I cannot go that far. I believe that the Explanatory Notes in relation to Clause 12 give a broad indication of what is meant to be included. As the noble Earl rightly said, subsection (1) confers the powers to make regulations which will define the services that are to be made free of charge. It is intended that the services to be so defined will be the provision of community equipment and intermediate care. The Explanatory Notes go on to give a broad indication of what is meant by that.

So far as concerns the question of the affirmative resolution, I listened very carefully to what the noble Earl said. However, I am not convinced that it is justified for this to be an affirmative resolution; neither do I accept that the negative procedure gives inadequate parliamentary scrutiny for these policy proposals—not least because the rules regarding charging for residential accommodation are mainly set out in regulations subject to the negative procedure. In respect of other types of charging, a discretion is given to local authorities, subject to guidance issued by the Secretary of State.

I can assure the Committee that, in developing the regulations, we shall wish to consult all the parties who have an interest. I believe that that should cover the point raised by the noble Earl, Lord Howe, concerning full involvement in the process of developing the regulations. Ultimately, it is open to him to pray against the regulations at the time if he so wishes.

Earl Howe: I thank the Minister for that somewhat disappointing reply. I shall consider what he said. I did not think that my proposal was unreasonable. However, I know that Ministers tend to resist wherever possible the idea of automatic parliamentary scrutiny for statutory instruments. It is possible to pray against a negative instrument in this House but, as the noble Lord will know, in another place a Prayer can be laid but may not be selected for debate. However, I do not wish to pursue the matter further today. I shall read what the Minister said and consider it but, for the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 agreed to.

Clause 13 agreed to.

Clause 14 [Consequential amendments]:

Lord Hunt of Kings Heath moved Amendment No. 133:

    Page 9, line 7, after "services" insert "and services for carers"

On Question, amendment agreed to.

[Amendment No. 134 not moved.]

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Lord Hunt of Kings Heath moved Amendment No. 135:

    Page 9, line 12, after "services" insert "and services for carers"

On Question, amendment agreed to.

[Amendment No. 136 not moved.]

Lord Hunt of Kings Heath moved Amendment No. 137:

    Page 9, line 19, after "services" insert "and services for carers"

On Question, amendment agreed to.

[Amendment No. 138 not moved.]

Clause 14, as amended, agreed to.

Clauses 15 and 16 agreed to.

Clause 17 [Short title, commencement and extent]:

[Amendments Nos. 138A to 142A not moved.]

Clause 17 agreed to.

[Amendments Nos. 143 to 146 not moved.]

House resumed: Bill reported with amendments.

Courts Bill [HL]

8.7 p.m.

The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Simon) in the Chair.]

Clause 79 [Power to change certain requirements relating to Committee]:

[Amendment No. 115 not moved.]

Clause 79 agreed to.

Clause 80 [Process for making Civil Procedure Rules]:

[Amendments Nos. 116 to 120 not moved.]

Clause 80 agreed to.

Lord Hunt of Wirral moved Amendment No. 121:

    Before Clause 81, insert the following new clause—

(1) In section 9 of the Criminal Appeal Act 1995 (c. 35) (cases dealt with on indictment in England and Wales), after subsection (4) there is inserted—
"(4A) In proceedings before the Court of Appeal following a reference under subsection (1), the appellant's grounds of appeal shall be restricted to the matters specified in the Commission's statement of reasons given under section 14(4), unless the Court of Appeal grants leave to the appellant to include other matters in the grounds of appeal."

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(2) In section 10 of the Criminal Appeal Act 1995 (c. 35) (cases dealt with on indictment in Northern Ireland), after subsection (4) there is inserted—
"(4A) In proceedings before the Court of Appeal following a reference under subsection (1), the appellant's grounds of appeal shall be restricted to the matters specified in the Commission's statement of reasons given under section 14(4), unless the Court of Appeal grants leave to the appellant to include other matters in the grounds of appeal.""

The noble Lord said: Amendment No. 121 stands in my name and that of my noble friend Lord Kingsland. The Criminal Appeal Act 1995 was a landmark achievement of the previous government, welcomed on all sides of the Chamber for establishing a framework for the correction of miscarriages of justice. I pay tribute in particular to the work of my noble friend Lady Blatch in piloting that Act through this place.

The amendment has its origin in the recent comments of senior judges in the Court of Appeal who have raised the issue of whether the existing provisions in the Criminal Appeal Act 1995 are as effective as they might be because they allow an unfettered discretion to appellants whose cases have been referred to the Court of Appeal by the Criminal Cases Review Commission to raise any grounds of appeal, even ones which had not been considered by the CCRC and, indeed, even ones which were specifically rejected by the CCRC.

Normally, an appellant is able to argue before the Court of Appeal only those grounds which he or she has at an earlier stage been granted leave to argue. The amendment would restrict an appellant who was before the Court of Appeal following the referral of his case by the commission to use as the basis of his appeal the grounds given by the CCRC in its statement of reasons for making the reference unless the Court of Appeal granted leave to extend the grounds of appeal. I confess that the wording of the amendment is based on the recommendations for change set out by the Court of Appeal.

In the case of R v Garner [2002] EWCA 1166, the Vice-President of the Court of Appeal, Lord Justice Rose, said at paragraph 10 of the judgment that:

    "by virtue of section 14(5) of the Criminal Appeal Act 1995, the somewhat curious situation arises that, once a case has been referred to this Court by the Commission and, in consequence, is treated as an appeal, it is open to an appellant to argue any ground, once the matter has been referred. An appellant is not limited to those grounds on which the Commission refers the case".

In the case of Re v Smith, [2002] EWCA Crim 2907, Lord Justice Buxton said, in giving the judgment of the Court of Appeal at paragraph 25, after referring to the judgment of Lord Justice Rose which I have just quoted:

    "Lord Justice Rose described this as a somewhat curious situation. We would, with respect, go somewhat further, and say we have to find it very surprising indeed that this licence is given to a person who benefits from a CCRC reference, and particularly surprising to find that in this case, as we do find, that approach is open to an appellant even in respect of a ground that has been rejected in terms by the CCRC. That, however, we are constrained to say, is the law, subject to the Act being amended and we would respectfully suggest that an amendment in these terms, certainly to exclude the sort of case we have before us at the moment, is

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    much to be commended. But as the law stands at the moment, Mr Smith is entitled to put forward any ground that he is advised can properly be pursued in relation to the case below".

Finally, unless the Minister wishes to rise to say, "I concede"—no?—in Re v Bamber [2002] EWCA Crim 2912, a case which attracted great public attention as a result of the terrible murders committed by Bamber, Lord Justice Kay said at paragraph 3 of the judgment:

    "This case comes back before this court following a reference by the Criminal Case Review Commission ("the CCRC") under Section 9 of the Criminal Appeal Act 1995. As we shall explain the reference came about solely because of fresh scientific evidence. However, once the reference has been made, under the legislation as it presently stands, it is open to those advising the appellant to take any point that they wish. That is so whether the other point is related to the initial reference point or not and there is no requirement to obtain the leave of the court to pursue a particular ground as there would be on any other form of appeal against conviction".

Lord Justice Kay concluded—I shall not quote his conclusion in full although I refer the Minister to paragraph 522—in this way:

    "We would not want to see an appellant shut out from trying to raise a point following a referral but we can see no justification for not having the filter present in such circumstances of requiring leave to raise additional matters to those referred by the CCRC that is present in all other appeals brought by a convicted person. The Court of Appeal Criminal Division is pressed to deal sufficiently expeditiously with the caseload that it has and time unnecessarily wasted means that cases where the court subsequently determines that someone is wrongly detained in prison are delayed. We hope that thought will be given to making this relatively modest change to the legislation that would enable the court to make more efficient use of its time".

Those suggestions as to how the wording of the Act could be improved advanced by the Court of Appeal in its judgments are the basis for Amendment No. 121. As the Minister will recognise, it is still possible for an appellant to obtain the leave of the Court of Appeal to raise matters not considered by the CCRC or, indeed, matters rejected by it. That was the solution put forward by Lord Justice Kay, which I have just quoted.

I recognise that these are issues of great importance and that the existing wording was enacted by Parliament in 1995. But we, as legislators, would not be doing our job properly if we did not examine and review the effectiveness of the legislation we pass, especially where the courts make such clear recommendations pressing us to make amendments.

I therefore tabled the amendment to give the Committee an opportunity to consider the recommendations made by the Court of Appeal. I also ask: what consideration have the Government given to the judgments in the cases that I have cited, which were given last year? I beg to move.

8.15 p.m.

Lord Thomas of Gresford: In the cases cited by the noble Lord, Lord Hunt, one hears—as one frequently hears from the Court of Appeal—the words, "expedition, efficiency" and so on. One does not necessarily hear the word "justice". From time to time points arise during an appeal or in its preparation which absolutely demand to be heard and there is

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nothing more frustrating than to hear the Court of Appeal say, "You did not get leave on that point". I oppose the amendment.

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