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Baroness Blatch: Clause 17, as the noble Lord said, requires the Secretary of State to give the commission all documents or material received, other than from a person serving in a government department, if it is relevant to a case which he has under consideration when his powers are transferred to the commission, or to a case previously
The Secretary of State may also give the commission any other material which is relevant to a case; for example, there may be internal notes by officials recording information received from investigating officers, or from the applicant or his advisers. In brief, we intend that the commission should have access to all relevant information held by the Secretary of State, whether it is representations by, or on behalf of, any person claiming wrongful conviction, or police reports, forensic science reports, opinions from lawyers, doctors and other independent experts, transcripts of legal proceedings, correspondence and records of telephone conversations.
What will not be given to the commission, however, is material which contains purely the opinions of government officials, as the noble Lord pointed out, or Ministers when they have considered a case previously. If it were to have access to such material, the commission would be placed in an invidious position when it took its decisions. It would be vulnerable to the charge of having been unduly influenced by the views taken during the earlier consideration of the case by a different authority.
Over and above that however there are two reasons why the Government believe it would be unhelpful to the commission if Clause 17 were to be deleted from the Bill. First, there would be no straightforward mechanism by which the commission would be able to receive the material it will need on cases which are under consideration by the Secretary of State when the commission starts work or which he has previously considered and have been raised with the commission. Secondly, the commission would have no clear guidance as to precisely what material it could reasonably expect to obtain in what is likely to be an extensive number of cases. Outside the clear area of representations and material received from outside the the department, it must be right for the Secretary of State to make that judgment, and indeed only he or she will be in a practical position to do
Reference was made to the Hickey case. That case was about reports received by the Home Secretary together with documents, such as witness statements. They must be disclosed under Clause 17(3) (b). The noble Lord asked also whether reasoned opinions would be disclosed. They will not if they are purely advice to Ministers on how to decide the case; but if they contain evidence necessary to understanding the case, that evidence will be given to the commission.
Lord McIntosh of Haringey: It was never my intention to divide on a clause stand part Motion. It is not a thing I would ever wish to do, because I appreciate that within the architecture of a Bill each clause serves a purpose, and to take one out causes enormous difficulty.
The Minister said that Clause 17 is designed to help the commission. I accept that part of Clause 17 is designed to help the commission. It is the bit that starts with Section 14 which refers to that information which the Secretary of State may give to the commission rather than shall give to the commission that causes me concern. The Minister repeatedI anticipated that she would say itthe false analogy between advice given to Ministers by officials in general on public policy, and advice given to the Secretary of State by members of C3 division when they are acting in the quasi-judicial capacity which is rightly being abolished by the Bill.
I shall not proceed with my opposition to the question that Clause 17 shall stand part, but I give the Government notice that I shall apply myself rather more carefully than I have done so far, and come back at a later stage with amendments which will secure that the falsity of that analogy is made clear, and that the use of that analogy to deny necessary information to applicants and to the commission will be exposed, and, if possible, rejected.
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