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A Noble Lord: My Lords, what about the Armed Forces and the police?

Lord McCarthy: My Lords, yes, but are we saying that they are in the same category as the Armed Forces and the police? If that is the case, then say tonight that you are putting them in the same group as the Armed Forces and the police, but do not dare to tell me that you have not abridged their right to strike. Of course you have.

One could go on finding things on which something should be said, and about which the Government ought to come clean. In particular, the Government should come clean about how the Bill seriously undermines workers' right to take industrial action. I do not think that they are prepared to say anything, or to put anything in the Bill, but surely they ought to say

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that they will produce some explanation—call it a code of guidance or something else—that will tell those poor devils what is in train for them. I beg to move.

Baroness Turner of Camden: My Lords, I support my noble friend's amendment. As I am sure the Minister is well aware, it is usual to have codes of practice issued in connection with legislation. That is all that the amendment proposes. As he is well aware, the legislation is not terribly popular. I have received letters from the FBU opposing it. If a code of practice is issued indicating how the Government see their powers under the Bill and how they intend to proceed, it might render the whole exercise slightly more acceptable, which needs to happen.

Lord Wedderburn of Charlton: My Lords, I support the amendment. However, the problem that my noble friend put involving industrial action will be very simply remedied, because the Government can easily accept Amendments Nos. 11 and 25—I hope that the Minister will—and put the matter right. It is a very simple point, but we shall come to it then.

I wish to address the golden thread of merit in the amendment that appears in the last few words:


    "such code of guidance shall create no legal rights or duties but shall be taken into account by the courts in relation to any order".

I hope that the Government and their Chief Whip will understand the importance of those words. They are the normal formula that has appeared in many statutes. I shall not go over the same ground as my noble friend; there are all sorts of merits in a code of guidance. He outlined perfectly well the role that they can usefully play in negotiation. To be "taken into account by the courts" is the normal formula that means the court can take judicial notice of the code and solve any evidential problem, just as it does with the ACAS code.

The thread of merit goes further in view of what the Minister has said earlier about challenge in the courts. He said that Amendment No. 1 could be challenged in the courts. When I asked him how that could be done, he said that he did not know. This is a very important constitutional moment. If I were a critical chap, and if the Minister were paying attention to the point, I might say that when a Minister of the Crown tells the House that a form of words could be challenged in the courts and is then asked how that would be, to which he replies, "I do not know"—of course I have sympathy with him as it was not in his brief—that would usually be the occasion for a Statement at a later stage.

The great merit of this amendment is that it cannot possibly meet that objection. It has been well recognised that such a code of guidance is not creating rights or duties, which means that it is not legally binding on the Minister, but that the courts may take judicial notice of it. Therefore, there is no question of a challenge in the courts for the code of guidance and it would, as has already been said by both my noble friends, also have the great merit of being able to resolve situations that might otherwise lead to a more provocative dispute.

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I therefore hope that the Minister will take very seriously the idea that, once again, instead of merely telling us the Government's intentions, all of which we totally believe, they will put something about those intentions in the Bill. What the Government say is not law, but what the Bill or Act states is. We shall return to that in other amendments.

I very much hope that on this occasion my noble friend the Minister will give a favourable view towards doing something of the kind suggested by the amendment.

Midnight

Lord Evans of Temple Guiting: My Lords, I am afraid that I am going to disappoint my noble friend Lord Wedderburn of Charlton, because we believe that the amendment is unnecessary.

The Secretary of State is under a general duty to act reasonably and proportionately and the Secretary of State has made it clear—as have we, on many occasions—that the powers the Bill would confer are designed for a very specific set of circumstances. The Secretary of State is not going to decide suddenly to use the powers for an alternative purpose. Even if he did, the Bill places a duty on the Secretary of State to consult with either the negotiating body for orders under Clause 1(1)(a) or with persons affected by an order under Clause 1(1)(b) before using his powers. So the Secretary of State can respond to new, developing or unforeseen circumstances but no one can be taken entirely by surprise.

As the code of guidance suggested in Amendment No. 10 would create no legal right or duty, if the Secretary of State decided he did want to exercise his powers outside the code of guidance, he could simply amend the code. So the amendment would introduce a very blunt and ineffectual tool in curtailing the use of his powers—which I assume is what is intended—compared to the existing duty to consult.

The amendment states that the code could be taken into account by courts in relation to any order made by the Secretary of State, but as noble Lords know, any order made by the Secretary of State under this Bill would be open to judicial review anyway, whether a

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code of guidance existed or not. It is right that judicial review remains the ultimate safeguard against an unreasonable use of this power.

We suggest that this amendment adds nothing helpful to this Bill and request that the noble Lord withdraw it.

Lord McCarthy: My Lords, that is not entirely a surprise, but it is remarkable. The Minister says that the amendment is unnecessary because the Secretary of State is a reasonable man. Are we not all reasonable men? However, he cannot tell us the criteria that he will use to apply his reasonability. He is just a reasonable man. If he were unreasonable, he could be taken to court. However, people want to know what is going to happen before it happens. They do not want suddenly to be told that this or that is happening.

The Minister says that people will not be taken by surprise entirely, and that they will have some idea, because the Bill has a specific purpose. We have often been told that in the course of this debate, but we are not told whether that specific purpose comes in when there is a strike, when there is no strike or when any of the many and variable situations that will take people entirely by surprise occur.

So I do not see how, when the Bill is an Act, the Government, whether or not they accept the amendment, will not have to produce something. Every Bill that I have ever got involved with has had something from some ministry—it is usually highly glossy and expensive—telling us what the Bill will do and giving some guidance. This will be a unique—and reasonable, of course—Bill. Not only will there be no code of practice, for the first time; there will be nothing but silence, while we wait for the reaction of the reasonable man.

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rooker: My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

        House adjourned at six minutes past midnight.

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Official Report of the Grand Committee on the

Extradition Bill

(Ninth Day) Wednesday, 10th September 2003.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Ampthill) in the Chair.]

The Deputy Chairman of Committees (Lord Ampthill): With the agreement of the Committee, I do not propose to waste time reading out something which we have now heard eight times over; we may proceed straight away to Clause 163 and Amendment No. 245.

Clause 163 [Entry and search of premises after arrest]:

Baroness Anelay of St Johns moved Amendment No. 245:


    Page 88, line 42, leave out subsection (9).

The noble Baroness said: As the Deputy Chairman has rightly reminded us, we now have the joy of a ninth day in Committee on the Bill, which I think we all hope will be the last such day.

Clause 163 provides for the entry and search of premises after the person in question has been arrested. The clause lays out conditions for search and entry, the relevant offences that relate to the power to search and details of what may legitimately be seized during that search. Subsection (8) states:


    "The powers conferred by subsections (2) and (5) may be exercised only if a police officer of the rank of inspector or above has given written authorisation for their exercise".

As one might expect, we entirely support that subsection. It seems sensible for authorisation to be given before any entry and search is made after the person in question has been arrested. In such circumstances, there is none of the urgency of the type that we have already discussed in relation to searches at the time of arrest itself. However, our query relates to subsection (9), which states:


    "But the power conferred by subsection (2) may be exercised without authorisation under subsection (8) if—


    (a) it is exercised before the person arrested is taken to a police station, and


    (b) the presence of the person at a place other than a police station is necessary for the effective exercise of the power to search".

I should be grateful if the Minister would tell the committee what sort of situations that provision is intended to address. Why does the Bill include one subsection ensuring that a search after arrest must be by authorisation only and then, in the following subsection, allow a search without senior officer

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authorisation? We read the Explanatory Notes, but they took us no further forward, so I hope that we may receive some clarification today from the Minister. I beg to move.


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