I beg to move, That the Bill be now read a Second time.

In my statement to this House on 26 June, I set out the reasons why the Government found it necessary to bring forward this emergency legislation following the Law Lords’ judgment in the case of Davis. There is no need for me to rehearse at length the arguments that I presented to the House on that occasion. I will just outline briefly the background. It is as follows.

On 18 June, the Appellate Committee of the House of Lords—the Law Lords—unanimously overturned an earlier and also unanimous decision of the Court of Appeal criminal division that had allowed the use of anonymised witness evidence in certain criminal trials. The senior Law Lord, the noble Lord Bingham, looked at the common law and found that the courts had arrived at a position on anonymised evidence that was

“irreconcilable with long standing principle”.

Their lordships also held that the processes used in the particular circumstances of Davis had rendered the trial unfair under article 6 of the European convention on human rights, although they accepted that, in principle, anonymised evidence was not inconsistent with article 6.

Overall, Lord Bingham said that the matter may now

“very well call for urgent attention by Parliament”.

Lord Mance endorsed that approach, to deal with what he said was

“the undoubted—and there is reason to think growing—threat to the administration of justice posed by victim intimidation”.

The Government—and, I am glad to say, the House—have accepted their lordships’ invitation urgently to consider filling the void that was left by their judgment of 18 June. Although many points were raised when I made my statement on 26 June, there was widespread approbation across the Chamber for the necessity of introducing an emergency Bill.

There has been an intensive period of consultation since my statement, the product of which is reflected both in the Bill as introduced and in the Government amendments standing in my name. I am very grateful indeed to the spokesman for the official Opposition and to the Liberal Democrats for the constructive approach that they have adopted in the course of the consultation. In the intervening period, too, we have sought the most up-to-date information available from the Crown Prosecution Service regarding the scale of the use of anonymous witness evidence. A paper including that information was published Thursday last alongside the Bill.

In a snapshot survey, the CPS identified around 580 cases that it considered current. Of those, 290 involved undercover police officers completing test purchases of drugs, approximately 40 were live cases involving undercover police in other investigations and 50 were live cases involving members of the public as witnesses. The balance, of approximately 200 further cases, include those in which the defendant either has been convicted but not yet sentenced or is still able to appeal under the 28-day limit. It is the live cases that will attract the greatest concern if we do not legislate immediately. It is essential that we legislate, for those cases typically involve the gravest of crimes—crimes relating to guns, gangs and drugs, for example—which give greatest cause for public concern.

Does the right hon. Gentleman know in how many of the live cases the defendants are in custody or on bail, which may make a difference to the House’s view?

I do not have that information offhand, but I shall seek to find out whether it can be provided to the House later today. However, judging by the seriousness of the offences involved, there is a high probability that almost all those defendants will be in custody.

There is much else that we are doing to tackle those crimes, which strike so much fear among the public. We have upped the minimum sentence for knife crime, from two years to four, and established a minimum sentence for the carrying of guns. Last September, my right hon. Friend the Home Secretary set up a guns and gangs action programme in parts of four cities—London, Birmingham, Liverpool and Manchester—where the problem has been most prevalent. Since the announcement, there has been a 51 per cent. drop in firearms-related injuries and a 27 per cent. drop in all recorded firearms offences in those four areas. In the programme area in London, there has been a 53 per cent. drop in firearms offences and a 68 per cent. drop in such injuries. Sentence lengths generally have increased, too. One key driver of the dramatic increase in the prison population over the past 11 years has been a 60 per cent. increase in the number of serious and violent offenders brought to justice and then incarcerated for long periods.

Anonymised evidence and the safety of key witnesses are fundamental to getting the nasty, greedy and ruthless criminals who perpetrate those crimes off the streets. Assistant commissioner of the Metropolitan police, John Yates, said in an article in The Daily Telegraph on 21 June responding to the Davis judgment that, as a result of the provision for anonymised evidence taking, the detection rate for such murders—yardie, Operation Trident murders—had risen to about 85 per cent., up from, he said, around 40 per cent. in the mid to late 1990s.

However, the proportionate use of such evidence goes much wider than that. Undercover police officers and agents need protection if, for example, drug dealers and terrorists are to be brought to trial. So do communities where criminality and intimidation may not have quite the same life-threatening consequences, but can still ruin the lives of decent people. Closing down an off-licence that is selling drink to juveniles and acting as a magnet for drug dealing and disorder could be dismissed as trivial from the comfort of a leafy part of town, but not if it is down your street. The Bill seeks to ensure that when there is witness intimidation of a serious kind, and when other measures of witness protection, many of which have been put on to the statute book in recent years, are not adequate for the task, the evidence of the witness can be anonymised if the court accepts it and it is regarded as fair.

Like the Secretary of State, I do not want to see any more knife or gun crime on our streets, and I understand the serious problem of witness intimidation. However, will he address a problem that many people have raised: that an anonymised witness system makes it possible for old scores to be settled in a totally different way, and for a miscarriage of justice to take place? That will create two problems. First, the wrong person is in prison; secondly, the wrong person—the wrong ’un—is outside causing mayhem in the future. We could end up with something worse than the present system.

My hon. Friend is entirely right to draw attention to one of the dangers of taking anonymised evidence. It would serve no purpose for us to pretend otherwise. In principle, as the Law Lords accept—along with everyone else—it must be right, and fundamental to a fair trial, for someone accused of any crime, particularly a serious crime but self-evidently and by extension a trivial one, to have the right to confront his or her accuser, to know the accuser’s identity and to challenge his or her motives.

One of the challenges with which the courts have had to deal in the past, having established before the Law Lords’ judgment that in certain circumstances it was permissible in common law to use anonymised witnesses, and also the key challenge that we faced in drafting the Bill, is the need to ensure as far as possible first that a witness anonymity order is not granted unless and until the judge considers it necessary under the scheme of the Bill, and secondly that the circumstances in which it is granted give the defendant the maximum opportunity to challenge the credibility of the witness, although the identity of that witness has been kept from him or her. It is not unusual in some of the very serious cases with which we are dealing for the witness for the prosecution to have a grudge, and he or she may well have previous convictions for violence. That does not necessarily render his or her evidence unworthy or untrue, but of course it raises questions about it, and we must be very careful for that reason.

Let me explain the scheme of the Bill; this may give my hon. Friend the Member for Islington, North (Jeremy Corbyn) some reassurance. Clause 1 introduces the concept of statutory “witness anonymity orders” and abolishes the common-law rules. The Bill deals only with criminal proceedings because the House of Lords judgment in Davis concerned criminal proceedings alone. There is no change in the position in relation to civil proceedings. Clauses 2 to 8 set out the nature of the orders and who can make them. As I told the hon. and learned Member for Torridge and West Devon (Mr. Cox) after my statement on 26 June, they can be sought by either the prosecution or the defence.

A key part of the Bill is contained in clauses 4 and 5, which relate to the conditions and considerations involved in the making of an order. Clause 4 sets out the three conditions: that the order is necessary to protect the safety of the witness or other person or to prevent any serious damage to property or real harm to the public interest; that the measures would be consistent with the defendant’s receiving a fair trial; and that it is necessary to make the order in the interests of justice.

Clause 5 sets out the considerations to which the court must have regard. These include whether the witness’s evidence could be properly tested without his or her identity being disclosed—a point I make to my hon. Friend the Member for Islington, North; whether there are reasons to believe that the witness may not be credible; and whether alternative means short of a witness anonymity order could be used to protect the witness’s identity.

Would it be possible for the anonymity not to be complete? For example, if the witness were to be screened, would it be possible for the screen to apply only to the defendant, or certain people in the court, but not to the judge and jury, who may need to take into account the demeanour of the witness in deciding on the truthfulness of their evidence?

I can reassure my hon. Friend on that. In all the cases that I am aware of, the identity of the witness is known to the judge, and the screening—and, for example, the mechanical disguising of the voice—is for the defendant and his representatives, but the jury can see the witness. Therefore, such special measures are put in place—and precisely those arrangements were put in place in the case of Davis, which was the subject of the Law Lords’ judgment. [Interruption.] My hon. and learned Friend the Solicitor-General points out that clause 2(4) sets out the conditions. It states: “Nothing in this section”—or, indeed, in the Bill—

“authorises the court to require—

(a) the witness to be screened to such an extent that the witness cannot be seen by—

(i) the judge or other members of the court (if any);

(ii) the jury (if there is one); or

(iii) any interpreter or other person appointed by the court to assist the witness”,

and the witness’s natural voice has to be heard by those three.

In addition to the five conditions in clause 5(2), following suggestions I have received, an amendment tabled in my name proposes that courts must act so as to have regard to whether the evidence might be the sole or decisive evidence before granting anonymity. That was a concern for the Opposition parties and others, and it was central to the judgment in Davis. This is not a bar on the granting of an anonymity order, but it will be stated as a consideration in the legislation.

The Bill will come into force on Royal Assent, hopefully before the summer recess. The House, however, is well aware that there are a number of cases in the pipeline, and that there may well be defendants who have already been convicted who would seek to make out-of-time appeals, either directly or via the Criminal Cases Review Commission, in the light of their lordships’ judgment. Clauses 10 and 11 will therefore ensure that the new law can also apply to any proceedings in cases of this kind.

Clause 10 applies to proceedings and trials that are already under way. In essence, the judge has to look at existing common-law orders, which are already made, and decide whether they could have been made under the new law. If the witness has already given, or has started giving, his or her evidence and the judge concludes that the defendant cannot receive a fair trial, subsection (7) tells the judge that he must make suitable directions for bringing the trial or hearing to a conclusion, and that includes the possibility of a retrial.

Clause 11 applies to proceedings that have been completed. The appellate court then has to consider whether the new statutory anonymity order could have been made under the new law. It must treat the conviction as unsafe if it concludes that the defendant had not received a fair trial.

The remaining clauses relate to interpretation, commencement and extent.

Will the Secretary of State briefly explain why most of the Bill does not apply to Scotland, and what they do there?

They do things differently, and they always have done. The right hon. and learned Member for North-East Fife (Sir Menzies Campbell), who is present, is a good Scots lawyer, and one of the things I learned on almost the first day I began studying English law was that I would gradually become acquainted with the legal systems of Ireland, Australia, Canada and Malta, but never of Scotland. [Interruption.] Yes, and of Essex, too. My hon. Friend will therefore forgive me if I do not go down a path—

It does not stop Scots MPs voting on Bills such as this.

I refer the right hon. and learned Gentleman to the interesting report produced by the right hon. and learned Member for Rushcliffe (Mr. Clarke).

The Bill will cover England, Wales and Northern Ireland, and Scotland and the Crown dependencies as well in respect of the service courts. We have, by the way, asked the Scottish Administration whether they would like us to include reference in this Bill for them—they are fully entitled to do so—but their current view is that that is not necessary.

A week ago, a leading Queen’s counsel opined that far too many of these anonymity orders are being made. He said that between 500 and 600 are being made, and that the police are routinely going a bit over the top. Ken Jones of the Association of Chief Police Officers said that the figure is only a handful a year. Under this legislation, does the right hon. Gentleman foresee fewer applications than 500 or 600 a year, or does he think that figure will be about the same or even that there will be an increase?

I think it inherently improbable that there will be an increase in the number of orders, because we are now laying down a statutory scheme that is broadly based on past practice, subject to this really important caveat: we have also had to take account of what their lordships said in the Davis judgment, particularly in respect of Strasbourg jurisprudence. Time will tell, but I suspect that the figure will almost certainly not be more, and could be fewer. The courts and the prosecutors will be looking at whether, in certain cases where a witness anonymity order has been made in the past, it would be adequate for the task for a witness protection order to be made.

I was very glad to hear what the Lord Chancellor just said. Would he therefore care to comment on paragraph 50 of the explanatory notes? It states:

“The Bill will not generate new costs. It aims to restore the law to, broadly, the position it was believed to be prior to Davis.”

Surely it cannot go back to the position prior to Davis, precisely because of the point that the right hon. Gentleman made about the human rights position.

In that respect, the hon. Gentleman is entirely right. Happily, those are just explanatory notes.

Virtually everyone recognises the unfortunate necessity for anonymity in a very limited number of cases, and a lot of people will have been rather disturbed to discover just how many cases there have been under the common-law arrangements. Will my right hon. Friend undertake to make sure that every single order issued under the new legislation will be logged, and that there will be regular reports to the House on the numbers? We certainly would not want this legislation to allow the police to start using what is proposed as a routine response in the odd difficult case.

The Crown Prosecution Service has collected a good deal of information so far about the number of cases. There is a very strong argument for its keeping a proper log of all of them, and it is important that the House should know what has happened, not least when we come to debate the Bill later in the year or early next Session. I will therefore raise that matter with my right hon. Friend the Attorney-General, because it will be a matter for the CPS.

If my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson) looks not at the explanatory notes but at the background note on the number of cases, which we published alongside the Bill, he will see that the number that raised a concern of the sort raised by my hon. Friend the Member for Islington, North—cases in which the credibility of witnesses is an issue, because they could well have been accomplices to other crimes and could have as criminal a past as the defendants in the dock—is relatively small. It is thought to be about 40 or 50. Of the total, a large proportion involve undercover police officers or agents, and I do not think that anybody would argue that we should not routinely protect their identity.

The Director of Public Prosecutions gave evidence to my Committee this afternoon, and he said that the CPS is now logging the cases, the reasons for the applications and the outcomes. It had no reason to do so before, because the procedure was considered lawful. He also told us that he expected to see roughly the same number concerning undercover operations, but fewer instances relating to what he called the civilian cases, especially those involving gun crime under Operation Trident.

That is extremely helpful information, fresh from an evidence session, and I am grateful to my hon. Friend.

I said in my statement of 26 June—it is repeated in the explanatory notes—that it is our intention that this emergency legislation will be repealed by legislation that is to be included in next Session’s law reform, victims and witnesses Bill. The Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle), has already referred to the representations that have been made that this undertaking should be reflected in the Bill, and we have tabled amendments to that end, so there will be a sunset clause.

I have signed a statement under section 19 of the Human Rights Act 1998 that in my opinion the provisions of the Bill are compatible with the European convention on human rights.

On the issue of testing the credibility of witnesses, which is germane to the Human Rights Act 1998, is it the Lord Chancellor’s understanding that under the terms of this Bill, judges will be able to appoint an independent counsel to investigate the credibility of a witness before granting an anonymity order? If that is the case, why has he resisted adding such a provision to the Bill?

It is certainly the case that courts have an inherent jurisdiction to appoint special counsel or advocates, and they have used that in the past. Indeed, one was used in the case of Davis. That inherent jurisdiction will continue. Given the time constraints on Second Reading, I will explain when we come to the amendments on that issue why the Government intend to resist its inclusion in the Bill at this stage.

Not for the first time, the Lord Chancellor alleges that the courts have an inherent jurisdiction to appoint a special advocate, as distinct from an amicus or counsel to an inquiry, for example. When he deals with the special advocate proposals, will he please arm himself with some authority for that view? I know that he mentioned the Davis case—[Interruption.]

I shall do my best to do so. I see that the hon. and learned Gentleman has been given “Archbold” to read on the subject: perhaps we can share the page.

Further background in relation to our ECHR responsibilities is included in the explanatory notes accompanying the Bill, but permit me to quote Lord Mance from the House of Lords judgment. He noted that

“it may well be appropriate that there should be a careful statutory modification of basic common law principles. It is clear from the Strasbourg jurisprudence...that there is scope within the Human Rights Convention for such modification”.

He went on to say that

“it is not certain that there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence”.

For good measure, I might add that I found out from the ever-helpful Library research paper that there is international support—with conditions—for accepting anonymised evidence, described in the United Nations good practice guide.

The late Lord Denning once warned that

“in the very pursuit of Justice our keenness may outrun our sureness and we may trip and fall”.

My right hon. Friend has mentioned the law reform, witnesses and victims Bill, which will shortly come before Parliament and will act as the sunset for these provisions. The Bill that we are considering is creating new special measures. Is he aware that there is considerable and widespread concern in the legal profession, on both sides—prosecution and defence—that all special measures are widely overused to the point of abuse, particularly screening and the use of video links for younger witnesses, who can be as hard as any witnesses in a court? Juries do not like those measures, and they are having a contrary effect to that which was originally intended.

I am aware of that, not least because of representations that my hon. and learned Friend has made to me. I do not have a sense at the moment of the extent to which special measures, which are distinct from witness anonymity orders, are used. I am happy and ready to follow that up, as we ought to, with my right hon. and learned Friend the Attorney-General, the prosecuting authorities and others. It is important that the measures should be used as an exception and not as the rule.

In conclusion, I have quoted Lord Denning’s warning that too much haste can lead to mistakes. Hon. Members from all parts of the House are well aware of the significance of the legislation and the short time in which it has been prepared and introduced. There is a practical need for it to be passed as soon as possible in order to prevent some of society’s most dangerous criminals from escaping justice.

I am mindful of the principles at stake. More prosecutions do not necessarily mean more justice unless those prosecutions are fair. That is the balance that the legislation seeks to strike. In the time available, we have done our very best with the Bill. I am clear that it is consistent with the European convention on human rights and will ensure a fair trial for the defendant while ensuring protection for victims and the public, which is also very important. I commend the Bill to the House.

The House finds itself in an invidious position. In June, the House of Lords held in the case of Davis that measures taken to protect the identities of witnesses were incompatible with common law. As a consequence, a number of current criminal cases have been thrown into doubt and, whatever view one takes, that uncertainty needs to be addressed quickly.

The Law Lords made it clear, however, that subject to the overriding need for a fair trial, there is scope for Parliament to legislate to allow by statute greater use of anonymous evidence than common law permits. The legislation must be consistent with the right to fair trial, not least because it would otherwise be incompatible with article 6 of the European convention on human rights.

As I said in the House two weeks ago:

“We recognise our constitutional duty to scrutinise as best we can all legislation…and not to attempt to hinder the Government improperly…My party is committed to working with the Government in a constructive way to deal with this problem”.—[Official Report, 26 June 2008; Vol. 478, c. 517.]

That is what we have sought to do, and I am grateful to the Justice Secretary for his approach. Accordingly, we support the principle behind the Bill, but we have concerns about its scope.

The hon. Gentleman and the hon. and learned Member for Harborough (Mr. Garnier), who spoke before, have said that the official Opposition support in principle the reasons behind the Bill. Does not the hon. Gentleman see a contradiction in a party in official opposition wrapping itself in the Magna Carta on the issue of 42 days but discarding it when it comes to this Bill?

I shall address the balance that we need to achieve. I shall not dignify that intervention to any greater extent.

Even if circumstances dictate that we must legislate swiftly, that does not mean that we should do so lightly. As the Secretary of State said, important principles are at stake. As long ago as 1720, the English courts recognised confrontation as

“the most effectual method of establishing the truth”.

In 1641, this House moved to abolish the Court of Star Chamber, which, once praised for its speed and flexibility, gradually evolved into a body in which the interests of justice were subjugated to the convenience of the Crown. In the United States of America, a defendant’s right to confront his accusers is recognised explicitly in the sixth amendment to the constitution. Like much of the US Bill of Rights, that provision merely reflected contemporary English law.

The right of defendants to confront their accusers is not a mere historical nicety. It was developed in our common law precisely to ensure that justice was done. The overriding principles of justice are clear and simple: to convict the guilty and acquit the innocent. It is in no one’s interests if, in the interests of securing convictions, we risk convicting the innocent. Miscarriages of justice result in the truly guilty going unpunished and leave the public at risk. There can be no utilitarian argument for setting aside the principles of justice. That is why, with all due respect to Assistant Commissioner Bob Quick of the Metropolitan police, for whom I have the highest personal regard, his call for emergency legislation on the grounds that there is

“too much principle and not enough pragmatism in the criminal justice system”

is seriously misplaced.

Nevertheless, we recognise that a consequence of the Law Lords’ judgment may well be that the guilty go free. That, too, would be contrary to the principles of justice. If justice can be done only through the use of anonymous evidence, the courts should have the power to hear that evidence. However, it should be used out of necessity to secure justice, not out of convenience to secure convictions. Its use should be exceptional, not routine, and the court must decide whether the risk of intimidation justifies it. The assessment must be objective, and it cannot be left to the defendant. That is a weakness in the Bill and needs addressing.

I have been listening carefully to the arguments that have been advanced. One problem that I have is that both the Secretary of State and my hon. Friend talk about the need to have a fair trial. How can an accused person have a fair trial if he does not know the identity of his accuser?

That goes to the heart of the dilemma that we are confronting. The principle set out in the Bill is that a judge must be satisfied about a number of considerations, including a defendant’s general right to know the identity of a witness, before allowing the use of anonymous evidence. Those tests are in the Bill precisely to restrict the use of such evidence. Some may disagree, but I think that most Members agree that the use of anonymous evidence will not necessarily be a bar to a fair trial. The Opposition believe that it is right to allow judges to make the decision, subject to the tests that Parliament will set out.

Does the hon. Gentleman accept that article 6 of the European convention on human rights provides a long-stop defence to ensure that judges do not abuse anonymity orders? Like him, I am concerned that we must not repeat the most ghastly miscarriages of justice of the past through the misuse of those orders.

The hon. Gentleman will know that the Law Lords made it clear in their judgment that there would be circumstances in which anonymous evidence could be used in a way that is consistent with article 6 of the convention. The Government are introducing this Bill to try to ensure that consistency, but they accept that challenges to it are very likely.

Does my hon. Friend agree that the real problem with the Bill, and it is a problem that affects us all, is that the Davis judgment will be examined to determine witness credibility? The judgment makes it plain that the Davis case was sent back to the Court of Appeal because the common-law power that had previously been thought to exist did not in fact exist. Another reason why the case was sent to the Court of Appeal was that the exercise of the protective measures—they were precisely the same as those contemplated in the Bill—made the trial unfair. That problem will arise very often when the credibility of witnesses is at stake. It may stand in the way of the use of the protective measures, because Davis shows that they render a case unsafe.

The Law Lords also invited Parliament to set out a statutory framework, which we are seeking to do. It is likely that the Davis case will fall and that it will not be saved by the statutory provisions in the Bill.

I am sorry, but my hon. Friend is wrong about that. The case will fall to the extent that the common-law power will be replaced by statute, in a sense, so the fact that judges hitherto have made orders that they were not entitled to make will not by itself be grounds for appeal. However, if the protective measures render a trial unfair—as was the case in Davis—the orders will not be made. If they were made, the convictions would be quashed.

I invite my right hon. and learned Friend to make those points in greater detail during the Committee stage—not least so that my hon. and learned Friend the Member for Harborough (Mr. Garnier) can answer them. I am afraid that he has lost me.

I turn now to the weight of the provisions in the Bill, and the considerations against which the court must judge the acceptability of anonymous evidence. The explanatory notes concede that the Bill’s statutory framework draws on the model provided by New Zealand’s Evidence Act 2006. However, there are a number of significant omissions from the conditions that that legislation set out. The Government have moved already to correct one. Government amendment No. 42 adds a consideration that the court must have regard to whether the evidence from the anonymous witness might be the “sole or decisive” evidence. We pressed for that inclusion: we welcome it and are grateful for the Government’s concessions.

That leaves two considerations that are present in the New Zealand legislation but absent from the Bill—first, that the court should have regard to the gravity of the offence and, secondly, that it should have regard to the principle that witness anonymity orders are justified only in exceptional circumstances.

It is important for the House to know why the Government have excluded those tests. The Law Society has urged us

“to ensure that the legislation is robust enough to prevent witness anonymity becoming a routine request that is made in ordinary cases without very good reason. We are very concerned to ensure that these orders will only be used in the most exceptional of cases.”

That is precisely the wording used in the New Zealand legislation.

Similarly, the chairman of the Bar Council, Tim Dutton, has agreed that allowances must be made where witnesses are in genuine fear for their lives, but warned:

“We must be careful that anonymity remains the exception to the norm. Such arrangements cannot be offered routinely by prosecuting authorities to witnesses as an incentive to give evidence. It is important to recall...that special measures for witnesses, and in particular anonymity, are only ever required in exceptional circumstances”.

That shows that the Bar Council supports the provisions, but only in “exceptional circumstances”.

The Justice Secretary quoted the article by Assistant Commissioner John Yates in The Daily Telegraph of 21 June, in which he called for emergency legislation. But Assistant Commissioner Yates also said that special measures to allow witness anonymity

“should be confined only to the most serious cases.”

We have been told that 580 cases will be adversely affected if we do not continue to allow anonymous evidence, but the Government have confirmed now that only 50 cases involve members of the public as witnesses. Half of the 580 cases involve test purchasers of illicit substances, with only a minority of the 580 representing the most acute cases in terms of timing and risk. The question is, therefore, how many of the cases will, and should, be saved by the legislation? Are we being asked to legislate to secure witness anonymity in the most serious cases, or more widely than that? Clearly, it matters whether the legislation is designed to allow for anonymous evidence in drug cases, where the gravity of the offence is relatively less serious, or whether it should apply only in much more serious cases involving, for instance, terrorism, murder and gang violence, where people’s lives may be at stake.

It is also important that we understand the scale of witness intimidation and whether it is a growing trend. Such intimidation is, after all, not new. Nor has the criminal justice system in this country had problems securing very high-profile convictions in the past without resorting to witness anonymity provisions. As the Law Society has observed,

“in the past convictions have been achieved without this legislation in notorious cases”,

for example, the Kray and Richardson cases. Furthermore, Members of this House on both sides will be only too aware of the scale of witness intimidation confronting police and prosecutors in Northern Ireland during the troubles—a period in which witness anonymity was explicitly rejected as a solution to the problem of intimidation.

No one should doubt the effect of witness intimidation in serious criminal cases involving gangs and organised crime. We all want to see violent criminals successfully prosecuted in the interests of public safety, and few want to outlaw anonymity procedures entirely. Certainly, both the Bar Council and the Law Society recognise its importance. Nor do we question the many practical difficulties that the police have in encouraging witnesses—many of them young and vulnerable—to co-operate in giving evidence at a trial, but the Law Society has also noted

“concern among prosecutors that police officers are too ready to make promises of anonymity pre-trial in circumstances where it is not, or will not be, appropriate.”

Today, the Director of Public Prosecutions, I think in evidence to the Joint Committee on Human Rights, chaired by the hon. Member for Hendon (Mr. Dismore), has said that evidence that witness intimidation is growing is “anecdotal”. We need a proper assessment of the growth and nature of witness intimidation, and if that is not possible now, the Government should produce it ahead of the law reform, victims and witnesses Bill. We need to ensure that the use of anonymous evidence is proportionate to that assessed threat.

It is common ground that alternatives to witness anonymity should be preferred. The question is how effective they are. In its briefing on the Bill, Justice emphasises the importance of witness protection. It highlights the fact that in the United States, the Marshal Service boasts that it has never lost a witness under its protection.

The hon. Gentleman must be aware that where there is a problem of knife crime among young people and gangs, it is very difficult for the police to get anyone to give evidence unless they can offer some pretty cast-iron guarantees of the safety of witnesses. Otherwise, the police simply will not get any evidence: result—no prosecution, no conviction, and someone who is the leader of a gang that has treated people abominably gets off scot-free and continues to cause mayhem in an area.

I understand the hon. Gentleman’s point. I was going on to give the counter view to the point that Justice was making about the reliability of witness protection schemes as an alternative to the use of anonymous evidence. There are limits to the use of witness protection schemes. As the Court of Appeal noted in its judgment in the case of Davis

“in reality, and certainly for the individual of good character, with established roots, this kind of programme is unacceptable”.

The judgment added that

“this process is grossly invasive of the right of the witness and his family to private and family life”.

As Danielle Cable, the fiancée of Kenneth Noye’s victim, Stephen Cameron—herself in witness protection—said:

“I have lost twice—Stephen and my old life.”

Witness protection may not be an alternative to using anonymous evidence, but it is an important means of bringing some cases to justice. At present, there is no statutory witness protection scheme, and provision across police forces is still patchy and sometimes inconsistent. I hope that the law reform, victims and witnesses Bill will address those concerns where this emergency Bill plainly cannot.

In conclusion, I remind the House of what I said in my response to the Justice Secretary’s statement on 26 June. I asked him if he would

“consider carefully whether it is wise to rush through all stages of the Bill in this place in one day”.—[Official Report, 26 June 2008; Vol. 478, c. 517.]

I regret that it is exactly what is happening. We have been allocated only six hours to consider these matters as every stage of the Bill is pushed through the House in a single day. We accept the need for legislation to deal with the problem swiftly, but we do not accept that it is necessary to truncate debate and rush consideration in this way. The Government have already tabled amendments to a Bill that they introduced only days ago.

I welcome the Government’s concession that a sunset clause will be written into the Bill to ensure that the provisions are replaced in the forthcoming law reform, victims and witnesses Bill. We pressed for such a provision and I am grateful to the Justice Secretary for conceding it, as it will give the opportunity for more considered legislation and discussion of proposals such as the use of special advocates and special measures. Nevertheless, driving laws through the House in a single day is unwise and unnecessary. It will only add to concerns about the measure, not least in the other place, and is bound to increase the risk that we will get something wrong. When both the safety of our communities and the liberty of individuals are involved, that is a serious matter.

The Bar Council has said:

“The criminal process is not a static one; its procedures are not frozen in a past era of mythic perfection. But its commitment to a proper balance between the various interests and rights of those caught up in the process remains the same: to do justice in a way that serves the public interest while protecting the rights of the victims of crime, the witnesses in criminal proceedings and those suspected of serious criminal wrongdoing.”

We support the use of anonymous evidence where it can be accepted without prejudicing a fair trial. We understand the need to legislate swiftly to ensure that some serious cases do not fall, but we must ensure that the correct balance is struck. I am grateful to the Government for addressing a number of the concerns we have expressed, and I hope that spirit of constructive debate will continue. Above all, however, we should be concerned that the Bill is properly scrutinised so that justice can be done.

rose—

Order. I remind the House that Mr. Speaker has placed an eight-minute limit on Back-Bench speeches, which operates from now.

My right hon. Friend the Secretary of State for Justice obviously faced a difficult task in producing the Bill in such a short time, and he has done a pretty good job.

The Joint Committee on Human Rights, which I chair, has not yet had the opportunity to report on the Bill, although this afternoon we held an evidence session with the Director of Public Prosecutions and Mr. Paddy O’Connor, QC, who gave the defence perspective, so we heard arguments on both sides of the coin and we hope to be able to report before the Bill completes its passage in the other place. My remarks today are my own, although on the basis of the work we have been able to do so far I should be very surprised if there was dissent from other members of the Committee to what I have to say.

The Bill is broadly to be welcomed from a human rights perspective. It does not purport to prescribe what constitutes a fair trial when anonymous evidence is given, but provides a general framework for the making of discretionary anonymity orders by courts, setting out the sort of considerations that are relevant to the exercise of the court’s discretion. The right to a fair trial is adequately guaranteed under the Bill’s provisions. In view of the express protection of the right to a fair trial, and the discretion left to the trial judge to determine that question, I accept the analysis in the explanatory notes that the Bill is compatible with article 6 of the European convention on human rights. Having said that, there is always the possibility of improving the Bill, and I hope that we can make some improvements today. I fully accept that the Government amendments that have been tabled make significant improvements, too.

The Director of Public Prosecutions told us today that convictions principally based on anonymous evidence are not automatically in breach of the article 6 right to a fair trial, and I agree. Strasbourg has not had difficulties with anonymous witness evidence. The real issue is the parameters and the scheme in which the evidence is used. The right to a fair trial is a fundamental one, and not a balanced one, as may have been suggested in some of the remarks that we have heard. Clause 4(4) guarantees that fundamental right. Under the Bill, the right to a fair trial trumps everything else.

We were told by the DPP that there are 1.3 million prosecutions a year in this country. That gives us perspective, and shows us that witness anonymity is used exceptionally; we are talking about several hundred cases. They are mainly undercover police cases involving drugs or conspiracies. If the suggestion is that such cases are not sufficiently serious, I think that the suggestion is wrong. Clearly, if a drugs officer has his identity revealed in court, he can no longer be effective as a drugs officer in any future case. That may not be a problem for the case in question, but it will certainly affect the police’s ability to combat drugs in future.

The real issue is what the DPP called the civilian cases, in which members of the public are involved; there are 50 of them a year. The DPP stressed the urgency of the issue, and even Mr. O’Connor was not absolute in his opposition to, or criticism of, the need for such anonymous witnesses. Of course it is important that we prosecute those who wish to intimidate witnesses. We should bring cases of conspiracy to pervert the course of justice. Mr. O’Connor believes that convictions for intimidation have doubled. The real issues are the accuracy of the evidence and the credibility of the witness. Those issues do not really arise in undercover police cases or, for example, in cases in which an old lady has accurately recorded the registration number of a getaway vehicle after a bank robbery. A problem arises with witnesses who may themselves be involved in criminality—they may be involved with a rival gang, for example—and the Bill provides for a judge to take that credibility issue into account when deciding whether to grant an anonymity order.

The DPP told us that there would be fewer cases involving anonymity. The undercover cases would be largely unaffected, but in Trident cases—he thought that there were about 30 Trident cases a year—the criminality of witnesses means that we may well not be able to prosecute all of them, as we do now. He could not give an estimate of how many cases might not be brought. The DPP thought that the process provided by the Bill would throw up cases where credibility would be an issue, particularly as both the judge and any appeal court would know the identity of the witness concerned.

One of the key issues raised by Mr. O’Connor was the question of where the witness’s fear came from. He was concerned—there is possibly some merit in this—that the fear came from police suggestion, rather than being volunteered by the witness. We need to look into police procedure to ensure that the witness is expressing his fear, rather than having fear put into his mind by the police, as that would undermine the whole process. The witness might not be afraid at all until that point.

That, of course, rather argues for the existence of special counsel, who could, for example, question the witness on precisely the source of the fear.

I agree, and one of my amendments provides for independent counsel for that reason. I understand that it is inherent in the jurisdiction of the Crown court to appoint counsel. However, that is not the case in the magistrates court. The evidence that we were given today suggested they did not have that inherent jurisdiction, primarily because when magistrates judge cases, they are also finders of fact, with a jury role. That creates certain complications.

Does my hon. Friend recognise that there is a general perception of concern among our constituents when it comes to giving evidence about something that has been witnessed, particularly if there is an issue with a serious drug dealer in an area, and that there is a need to address that concern?

I fully accept that, and it is a very valid point, but the concern should be expressed by the witness. The police should not suggest it to the witness, as that might create fear that had not previously existed. That would actually feed the climate of fear to which my hon. Friend rightly refers. We should not make it worse than it is.

Does the hon. Gentleman not accept that the police have a duty of care to witnesses, so if they believe that someone with a violent record may try to interfere with a witness, that witness should at least be warned? There is no point a witness dropping out later in a case. The police should try to test how strong they are at the very beginning.

My concern is that that would become a routine, rather than the exception. However, in those very dangerous cases, the point that the hon. Gentleman makes is a fair one.

It has been said that we did not have this procedure in the trials of the Richardsons or the Krays, but those gangs were around for years and years, intimidating the east end. If it had been available then, we might well have been able to deal with them at an earlier stage. As far as the Director of Public Prosecutions has been able to establish, there has not been one anonymity case in a magistrates court, and only one in the juvenile courts. It has been suggested that magistrates courts should be excluded, but the fact remains that under counter-terrorism laws, some cases are triable either way, so it is dangerous to suggest that magistrates courts should be entirely excluded.

As for the relevant considerations, the Government have tabled an important amendment on the “sole or decisive” issue, which satisfies a key concern of the European Court of Human Rights. However, we must also consider the issue of the defendant being responsible for intimidation. Mr. O’Connor considered that point, and if the defendant is responsible for intimidation, he can hardly complain about witness anonymity interfering with his article 6 rights. For that very reason, that should be one of the relevant considerations, and it sends a clear message that those who become involved in intimidation should not expect witnesses to give evidence openly against them.

A number of hon. Members wish to speak, so I shall conclude. As far as I am concerned, the Bill complies with article 6. The Government have moved significantly in their amendments, although there are one or two things we can do to tweak the Bill today and in the other place. Broadly, however, my right hon. Friend the Justice Secretary has done a very good job in dealing with a very difficult set of circumstances with which he has been faced in a very urgent way.

I fully accept what the hon. Member for Hendon (Mr. Dismore) has said, and that overall the Bill complies with human rights law. However, that does not mean that there are no difficulties—not just practical ones but human rights difficulties—with some of its provisions, and I shall return to that.

As we are here because of the Davis case, it is important to understand what the court said, and more importantly, did not say. It did not say that anonymous witnesses should never be contemplated, or that anonymity always means that the trial is unfair, although some people at the criminal defence Bar seem to believe that that is so. They think that credibility is always a potential issue, so there is always a problem of that sort. However, the court did not believe that, and I do not believe it.

There is a balance to be struck between two serious threats to the rule of law. First, we have heard a great deal about the intimidation of witnesses—and I do not want to repeat earlier remarks—which goes to the heart of the judicial system itself. If we cannot get people into court to decide a matter, there is no point having a law in the first place. Therefore, it is a fundamental question about the rule of law. Secondly, on the other hand, unfair trials are themselves a threat to the rule of law. If trials simply become mechanisms for locking up people whom the state wants to lock up, we cease to have law even if we might have some order.

There has been discussion about whether the problem of the intimidation of witnesses has become worse, and we have discussed the Kray twins, the Richardsons and so on. In other discussions, reference was made to the fact that the problem of witness intimidation goes back to ancient times. It is very difficult to judge whether the problem is getting worse, but it is likely to be growing where gang culture is growing. Whether growing or not, intimidation is a sufficiently serious problem, because it strikes at the heart of the system, for us to take it very seriously indeed. I am with those who say that witness protection is not sufficient, because it is not enough to say to a potential witness, “You have to completely change your entire life—to give up your entire life—just because of this one case.” Not many people are going to take up that offer, so we must have measures that fall short of full witness protection.

Some commentators have said that the issue is not one of balance—that we cannot balance the right to a fair trial against anything else, because it is an absolute right. Even David Pannick, QC, said so in The Times last week, but I do not think that that is correct. The human right to a fair trial is absolute, but whether that right has been violated in a particular case is a matter of degree. Going beyond that and to echo what has already been said, human rights legislation and the human rights system set a limit on what can be done, but that before we reach it, there is a balance to be struck. The Pannick view is correct only if anonymity always and automatically violates human rights. I do not think that it does.

In the Davis case, the House of Lords did not lay down a bright-line test or say, “If X, Y and Z happened, there must have been a violation of the human rights standard.” However, the House of Lords did say—this is the hard case that we all must consider—that in a case in which anonymous witness evidence was the sole or decisive evidence, and in which witness credibility is a real issue, not an issue that the lawyers have made up, it is very unlikely that the granting of a witness anonymity order will pass muster. That is because if credibility is an issue, it strikes at the heart of the trial. It is almost impossible to cross-examine a witness about credibility if one does not know who they are, or one does not know about their tendency to lie or to exaggerate, or about any animus against the defendant. All those things depend ultimately on knowing who the witness is.

The House of Lords was clear on another matter, too, and we will have to discuss it in detail in Committee of the whole House. The Lords said that if we are to have anonymous witness orders in some circumstances, we must have a clear procedure—a much clearer procedure than that which has grown up in the courts, in the prosecution service and in the police up to now. As the hon. Member for Hendon (Mr. Dismore) said, it cannot be right for the police to offer anonymity as a matter of course in certain cases. It becomes an issue in cases in which a threatening atmosphere has developed on an estate, but as he said, the police offering anonymity can make matters worse because it fuels the existing fear. The idea that anonymity orders should be exceptional is an important one, and I am still anxious because the idea is not in the Bill.

May I caution the hon. Gentleman? I understand and have some sympathy with his argument, but the House passed legislation whereby mere possession of a firearm carried a mandatory five-year sentence, save in exceptional circumstances. When the legislation went to the courts, judges adjudged almost two thirds of cases to be exceptional, which to my mind, mathematically, is not possible.

The hon. Gentleman is of course absolutely correct to say that, arithmetically, the majority of cases cannot constitute an exception to the rule. However, other aspects of the existing procedure need to be corrected, such as the idea that applications for witness anonymity orders can be made purely on paper, without any opportunity to question whether the case has been made out of necessity. Judges are often told that either they grant the order or the case will collapse on the spot, so they are coerced into granting orders or put in a position whereby the case itself does not succeed. That is not good enough, and we owe a debt of gratitude to the House of Lords for pointing it out and making us go back to first principles in respect of hearing the other side as a standard of justice.

There is a very important passage at paragraph 79 of the judgment, in which Lord Mance discusses what the Equality and Human Rights Commission said about such circumstances. He says that the standard is a proper verification process, so that the anonymity order is tested between both sides and the court can come to a conclusion about what to do on the basis of argument, not assertion.

Does that not reinforce the proposition that the appointment of special or independent counsel should be liberally undertaken in such cases? In the disclosure procedure to which I referred my hon. and learned Friend the Member for Harborough (Mr. Garnier) briefly, it is exceptional that the special counsel is instructed to help the court, but does the hon. Gentleman agree that on witness anonymity orders, the special counsel should generally be instructed?

Yes, I completely agree. The special counsel procedure is a way out of a range of difficulties with the proposal, and I urge the Government to reconsider the idea. I shall return to it in a few moments and in Committee.

The hon. Gentleman referred to the point about the need for verification, but how can there be verification of the second aspect of condition A, which relates to

“real harm to the public interest”?

We know that public interest considerations are often played like jokers in situations in which no one can question, challenge or demonstrate what is involved, so how can verification apply to “the public interest”? It seems to have been tailgated on to the Bill on the back of the issues that the Davis judgment raised.

Yes, I am concerned about how that aspect of the Bill is worded. The Government are quite right to say that there must be protection for undercover police work and for other undercover work, but the Bill does not include it. It refers very generally to “the public interest”, as the hon. Gentleman says. That is over-broad, and the Government should reconsider how that aspect of the Bill has been designed.

The question is whether the Bill has met the difficult challenge—created by the situation—of striking the right balance between two fundamental problems with, and threats to, the rule of law, within the limits of human rights legislation. The answer is: not quite yet. A good deal of progress has been made, but there are still serious problems with the Bill.

I have mentioned the problems with procedure, and I shall add one other point about that. What standard should the evidence meet to be admitted when a decision is made about an order? I think that it should be admissibility in the trial itself, but there is nothing in the Bill to say whether that is the case. The biggest problem of all is that raised by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) about the lack of independent counsel procedure. Such procedure is in the New Zealand legislation. It is too early to say whether it has been a success in New Zealand, but it seems a good bet for resolving a number of the problems in the Bill.

The hon. Gentleman talks about evidence. Does he consider the singularity and crucial importance of the evidence to be relevant? Lord Bingham used the words “sole” and “decisive”. Are those considerations not as crucial as all the other factors that we are talking about? Are not the nature and particularity of the evidence key if we are to get the balance right?

That is right. However, there is no suggestion in their lordships’ speeches that the sole or decisive test is a bright-line test. It is simply part of an overall concept of what, as a matter of degree, would amount to an unfair trial. The Government are right to give way on putting that test in the Bill, but also right to make it a factor rather than a condition. That is the right way in which to go forward.

I return to the independent counsel idea. The counsel would be there primarily to investigate two things. The first would be whether the necessity for the order had been made out—whether there was evidence to suggest that the conditions under which an order should be made had been reached. The second would be whether there was a serious problem with the credibility of the witness, and the counsel would assist the court in coming to a conclusion about that.

It is important to bear in mind that having the independent counsel system is a protection not only for the defence. It is not just a safeguard for the defendant, but a way of safeguarding the prosecution’s case—either against, as the right hon. and learned Gentleman said, the order not being made in the first place and the case not succeeding, or against the case being appealed and quashed.

There is another important characteristic— that the police will not as a matter of routine promise anonymity because they will come to realise that the independent counsel investigating the case will say that the factual basis is not made out. Therefore the anxiety about an extension in the numbers of the orders might be reduced.

That is absolutely correct. This is a way of getting away from the purely paper process that has developed in some courts.

The Government have said that there is an inherent jurisdiction, but their point has two problems. One has already been raised. It is that there does not seem to be any inherent jurisdiction in the magistrates court. The other way out of that problem, of course, is not to extend the power to the magistrates court in the first place. The second problem is that a large number of judges will be surprised to learn that they have that inherent jurisdiction. The best way in which to draw that jurisdiction to the attention of the judiciary is to put it in the Bill.

There is also a problem with the scope of the Bill. I do not want to go into detail about that now, as we will come back to the issue in Committee. However, I have raised one point about it, and I shall mention it again. Why does the procedure extend to the magistrates court? It is not obvious that there are that many such cases in the magistrates court in the first place. If, as the hon. Member for Hendon (Mr. Dismore) mentioned, a case is triable either way, presumably the issue could be one of the factors that can be taken into account in sending the case to the Crown court instead. I admit that there would be problems in respect of youth justice, but those should be faced as a separate issue and should not govern how we deal with the whole problem.

I shall only detain the hon. Gentleman for a moment. It is not that many of those cases have arisen in the magistrates court, but some have. One case was about a breach of a control order under the Terrorism Acts. In such a case, a breach is an either-way offence, and the defendant must have consented to the magistrates court’s dealing with the matter and the prosecution must have made no objection. Therefore, the case stayed in the magistrates court. It was entirely appropriate that it should have done and that an anonymous witness order should have been made.

There is also the reported case of R v. Watford Magistrates Court ex parte Lenman and others. The divisional court made a decision, on appeal from the magistrates court, that expressly allowed for witness anonymity orders to be made in the magistrates court in the circumstances of that and similar cases. In that case, the applicants were charged with violent disorder under section 2 of the Public Order Act 1986. A group of youths had rampaged through Watford and violently attacked four persons, one of whom was seriously stabbed. That was also dealt with by the magistrates court and it is entirely appropriate that in such a circumstance the order should be available.

The opposite point of view is that it is precisely cases of that seriousness that should go to the Crown court in the first place. The anonymity order would still apply, but in the right court. There is no bar against that happening in the adult court; only in the youth court is there some difficulty about how to proceed. However, as I said, I do not think that that difficulty should determine what happens in the adult court.

There is one further problem, to which I shall return in Committee. It relates to clause 3(2), and I shall just mention it now. Clause 3(2) shows a fundamental inequality between defence and prosecution. It says that if the defence manages to get an anonymity order—it is good that the Bill allows that—it must nevertheless reveal the identity of the witness to the prosecution. However, the same does not apply the other way around. That is still a problem and I have not heard any argument from the Government so far that would justify that stance.

I do not want to end on a negative note. There has been immense progress on the Bill, which has improved during its short existence, including on the sole and decisive evidence point, on which the Government have tabled a reasonable amendment. The transitional provisions have become tighter and clearer, especially in dealing with the part-heard cases. I am especially pleased that the Government have accepted the principle of the sunset clause; they have accepted the idea that the fact that this is temporary legislation should be in the Bill and that we shall return to it in next Session’s law reform, victims and witnesses Bill.

This Bill is necessary, but I am not entirely happy with it as it stands. It has a lot of problems and we have a very short time to put them right—if not here, then in another place. The Bill is, however, moving in the right direction. Witness anonymity is occasionally justified, but it should never become the norm. Practice was moving in that direction before the case of Davis at the House of Lords. The House of Lords has brought us back from the brink. The Bill is starting to strike a better balance.

rose—

I rise slightly unexpectedly, as the hon. and learned Member for Medway (Mr. Marshall-Andrews) was getting to his feet. I do apologise; my notes were down below, but I now have them in my hand.

Clearly, the Bill is important; it has important implications for the criminal law. I have already expressed this view, but truncating the debate into one day is very undesirable. I agree entirely with what the hon. Member for Cambridge (David Howarth) said: a fundamental principle of the criminal law is that, in general, a defendant should be able to know the identity of the witness against him. That is because, as those of us who practise in the criminal courts well recognise, when credibility is at issue it is extraordinarily difficult to challenge the Crown’s case unless one knows the identity of the witness.

The allegation may be, for example, that the witness has previous convictions, that he has a private grudge against the defendant, that he has a propensity to lie, or that he was somewhere else, as happened in the case of Tadic. One cannot put those suggestions unless one knows who the person is. That is why the courts held for a very long time that the principle of anonymity was wrong; why, no doubt, the American constitution makes that provision in its sixth amendment, as my hon. Friend the Member for Arundel and South Downs (Nick Herbert) reminded us; why article 6(3)(d) of the European convention on human rights was couched in the terms that it was; and why, when Lord Diplock and Lord Gardiner considered the question of anonymity in the context of Northern Ireland in the 1970s, at a time when there was very considerable violence, they came to the conclusion that it was impossible to abrogate the rule and yet do justice to the defendant.

I have long held the view, although it is not entirely popular, that it is much better that the guilty are not convicted than that the innocent should be convicted. Ultimately one has to take a stand, and that is where I stand. I am perfectly willing to accept, however, that there are a small number of cases in which the intimidation of witnesses is such that it is right and proper to have an anonymity order. It is true that, in view of the Davis case, we need to put that on a statutory basis, but we need to define in our own minds and in statute the principles to which we should adhere. Above all, we must place it in statute that the fairness of the trial is the paramount consideration.

There is another thing to keep in mind, because there is some misunderstanding about the judgment in Davis. I believe that most protective measures taken where the issue is one of credibility will fail the test of fairness and prove to be incompatible with European jurisprudence. I well understand that the criteria will be satisfied where, for example, one is dealing with police officers who are undercover agents or with an old lady whose credibility is not an issue, merely her powers of recollection. However, protective measures in such cases will continue to be unsafe, broadly speaking, unless—this is an important proviso—the defendant himself has been responsible for the intimidation. In that case, as the hon. Member for Hendon (Mr. Dismore) rightly said, he is in no position to complain.

We should set out some criteria in the Bill. I will deal with this very briefly, because I know that my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and the hon. and learned Member for Medway want to speak. There are some things that should appear on the face of the statute. The order should be confined to exceptional cases. We need to define the test of sureness for when the court has to decide whether the conditions have been made out. There must be a statement that it is a presumption that the identity of the witness before the court is known to the defendant.

I am listening to the right hon. and learned Gentleman with great interest. There is a slight dilemma in my mind, and I am wondering about his views on it. In such an exceptional case, would the jury take the view that because the judge had reached the decision to grant anonymity in that particular case, there must therefore almost be a presumption of guilt?

There is always that danger—it arises under existing law in relation to protective measures. If the identity of a witness is screened, it is easy—although it would be wrong—for a jury to come to inappropriate conclusions. It is therefore important that in his or her summing up the judge points out to the jury that the adopting of these measures must not be held against the defendant. To be fair to the Government, there is a specific provision in the Bill saying that that should happen.

Let me turn briefly to the remaining criteria that should be in the Bill. It is important that we should have specific reference to the independent or special counsel. I recognise that the Government will say that that is within the inherent jurisdiction of the court, but, as the Justice Secretary will know, the matter is dealt with in “Archbold”, at chapter 12(80)(d), where he will see that it is described as an exceptional power, to be sparingly used. However, having regard to the witness anonymity orders and their implications, it should be generously employed here—and if that is the case, it should be stated in the Bill. I agree with the hon. Member for Cambridge: I strongly suspect, as I am guilty of this as well, that many practitioners did not know of the existing power, which makes it all the more important that it should appear on the face of the Bill.

We knew, but we needed to be reminded.

That is very generous of my hon. and learned Friend.

The court must be directed always to look at alternatives, although I accept that witness protection schemes have but limited application in a number of cases. Finally, the anxieties of the potential witness must be judged on whether they are evidence-based, not merely introduced into the chap’s mind by a police officer, and whether they are reasonable.

At the end of the day, we are in the business of ensuring a fair trial. There are things that we can do in the Bill to make the situation better, and I very much hope that we will. We do not have enough time—that is my chief objection to what is going on, hence the view that I took on the timetable. The Bill has a sunset clause, and I welcome that; that is why I will not vote against Second Reading.

Let me start, perhaps uncharacteristically, by congratulating my right hon. Friend the Secretary of State on the Bill, which is small but near-perfectly formed.

I do not agree—in fact, I fundamentally disagree—with some of the commentary in the press over the past two or three days, which has come from people who not only should know better, but who do not represent, as we do, real people in the real world. I particularly noted the commentary that said that we managed to convict the Kray brothers and the Richardson brothers without laws relating to anonymity. I well remember the extraordinary difficulty that we had in convicting the Kray brothers and the Richardson brothers, and the mayhem, chaos and pain that was caused during the course of the period when we could not convict them, for precisely those reasons. It is no more than common sense to say that we should have sensible anonymity rules, and enshrined in the Bill are very nearly wholly sensible anonymity rules.

Let me turn to specifics. I hope to take far less than the eight minutes that we have been allotted. I entirely agree that special counsel are wholly appropriate in these circumstances. I was wholly against them when they were mooted in this House, but they have worked very well in terrorism cases, and my experience of them has been nothing but good. The idea has been commendable, and there seems to be no reason why it should not be adopted, particularly in this Bill.

I, too, would favour a clause that refers to the exceptional nature of the power—not that that would do any good, in truth. As my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) pointed out, the word “exceptional” is in the eye of the beholder; it is merely an adjective that can be used by courts as they so wish. However, it does set a climate—it is very important to do so—in having regard to what is happening at the moment in criminal courts, particular in senior criminal courts, in relation to special measures generally. The Bill will simply add another special measure.

It is undoubtedly the case, and it is causing widespread concern, that special measures are now being used to such an extent that we are creating a culture of witness protection rather than necessary witness protection. The effect of that, as has been alluded to many times, is that special measures become a form of inducement used by prosecuting authorities to obtain witnesses when those witnesses do not need them and should not have them. Giving evidence is never a pleasant thing, and it is sometimes hard, but that is what citizens are there to do. To create a culture of this kind is ultimately extremely damaging, because people who hear that such provision is available are less likely to give evidence if they do not get it.

There is another aspect worth considering, if the aim of these measures is, as it undoubtedly is, to obtain more, though just, convictions. Juries do not like them. Juries do not like screening, in particular, and they do not like obtaining evidence by video link when it is plainly unnecessary. Some cases involve the giving of evidence by young people who are as tough as old boots. They may be members of opposing gangs—they often are—and they sit in a separate room, in circumstances of conspicuous comfort, being watched by a jury who are asking themselves time and again, “Why is that man not in this court?” Skilful manipulation of the cross-examination of a witness in those circumstances, by repeated questions such as, “Are you sitting comfortably?”, “Is everything all right?”, “Do you still feel vulnerable?”, “Is this a photograph of you on the top of a bus at the time?” or “Is that your pit bull terrier?” does the cause of justice, in terms of prosecuting people and obtaining convictions, very little good.

I make a plea now, in advance of the Bill into which these measures are bound to be incorporated in due course, that we do not approach them on the basis that witnesses need more protection. At the moment we have too much, and we need to cut into what is becoming an extremely damaging culture.

I welcome the fact that I am following the hon. and learned Member for Medway (Mr. Marshall-Andrews), particularly on this relatively rare occasion when I agree with almost, but not quite entirely, everything he said.

I welcome this Bill. I welcome the fact that the Government have responded quickly to the invitation of the Law Lords to place the practice of allowing anonymous evidence in our criminal courts on a statutory basis. I welcome the way in which my right hon. and hon. Friends on the Front Bench have co-operated with the Government in facilitating the passing of the legislation through this House on an expedited basis—although it is a bit too expedited, which is why I voted against the programme motion. I disagree, however, with those among my right hon. Friends who have suggested that the time at which the legislation reaches the statute book should be postponed until after the summer recess. It is urgent, and I hope that it will reach the statute book before then.

I welcome the fact that the Law Lords have on this occasion deferred to Parliament; I hope that this is the beginning of a new trend. I have been critical, on more than one occasion, of the tendency of judges to arrogate to themselves decisions which I believe should be taken by Parliament. Of course, in many cases Parliament has only itself to blame. The Human Rights Act expressly invites the courts to take decisions, such as decisions on the proportionality of an Act of Parliament, which seem to me the kind of decisions that democratically accountable parliamentarians should take.

The trend to judicial activism preceded the Human Rights Act, however. It found its expression in the dictum of a very distinguished former Law Lord that if parliamentary opposition was weak, the courts should intervene to fill the gap. That has always seemed to me to be utterly wrong. What we have here is a recognition by the Law Lords, no less, that if what they regard as a fundamental departure from our principles of criminal justice is to be sanctioned, Parliament is the appropriate body to grant that sanction. I very much welcome that recognition by the courts that there are limits to what they can do, and that there are important decisions which can be taken only by Parliament. I hope that we shall see a lot more of that.

I am in no doubt of the need for this measure. Anyone who has experience of the housing estates in our country where so many of our less fortunate citizens live—either directly, through living there, or vicariously, through representing such areas in this House or through visiting them and listening to local residents—knows of the deep misery that crime can cause. The least fortunate of our fellow citizens disproportionately bear the brunt of crime and suffer its consequences, and they need our help. Much of that help will come through the range of measures that the Government, the police, and the criminal justice system seek to provide.

There are many of us, on both sides of the House, who have laboured mightily to try to provide that help. But at the end of it all, that help is useless if criminals cannot be brought to justice. Far too often, that is not possible because of the stranglehold of fear that criminals can exert on their victims and those who could give evidence against them. The tentacles of that fear can reach far and wide. They can often give those who control them effective immunity from prosecution, which is not a state of affairs that we can tolerate. That is why we need to make provision to allow witnesses to give evidence anonymously. It is why we need this legislation.

Of course we need safeguards. There are always dangers in passing legislation too quickly. We are right to probe the Government by tabling amendments and to seek to ensure that proper safeguards are put in place. The arguments have already begun, and will continue over the next few hours, about the precise form those safeguards should take. I welcome the fact that the Government have accepted the need for a sunset clause. I am impressed by the arguments for a special counsel and for the desirability of including provision for a special counsel in the Bill. I am less persuaded by the argument that the powers in the Bill should not extend to the magistrates court. I agree with the points made by the Justice Secretary to the effect that there was a need for such powers in the magistrates court, and as things stand, at any rate, that is the side on which I would come down. Those arguments will continue in this House and another place. On the need in principle for this legislation, however, I have absolutely no doubt.

It is a pleasure to follow the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) and the hon. and learned Member for Medway (Mr. Marshall-Andrews). We have heard several good speeches today, which have been interesting and informative.

Since the Bill became common knowledge a few days ago, we have all rather been rushing into it. Like the right hon. and learned Member for Folkestone and Hythe, I feel a little uncomfortable with the time given to ensure that we get a proper Bill. I would also say that the Secretary of State for Justice has a difficult job in front of him, with little time to spare. I accept that point. However, the hon. Member for Cambridge (David Howarth) said that he saw this Bill as having been improved in the past few days. If we had a few more days, no doubt it would be greatly improved; it would be a wonderful Bill in about four or five weeks’ time. Let us not run away with that idea, however. Although we sometimes get legislation wrong when we rush it through, we took four years on the Hunting Bill and still got it wrong—it is now an unenforceable Act—so we do not always get it right when we take a long time, either.

I agree broadly that we need some form of statutory footing for anonymity. There is no question about that. The Davis judgment has brought matters to a head, and they had been simmering for some time. As the hon. and learned Member for Medway said, there has been widespread misuse of special measures. In any preliminary hearing, in any Crown court, on any day of the week, the judge will turn to counsel and say, “Any special measures required in this case?” Whether it is a relatively minor case in the Crown court or a serious one, that is a regular occurrence. People are asked whether they want special measures. They might think, in passing, “Yes, I’ll have some special measures,” and get up and ask for them—and more often than not, they will be granted.

I am afraid that the practice is falling into misuse. Things have reached the stage where something has to be done. Coming to the Davis judgment and where we are now with the Bill, I hope that all those issues can be brought into sharp focus and that we can look again into what special measures, are for. They are measures for special occurrences to be used just as I hope the Bill will be used—infrequently.

Mr. Bob Jones of the Association of Chief Police Officers says that such occurrences will be very rare. However, the same ACPO presides over a situation in which applications for anonymity are made in 500 to 600 cases a year. They include huge drugs cases, murder cases and so on, and I fully understand all that, but I am sure that in many cases such applications are not necessary. If the Bill is properly implemented, as I hope it will be, it should limit the number of anonymity applications to cases in which they are strictly necessary, to ensure that the interests of justice are met.

What the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said about special counsel is quite right, and his suggestion was very useful. He referred to “Archbold”, showing immense recollection of the exact provision; he has been there many times in practice, and he assisted us today. What he said is important. If we are to make the Bill work, special counsel should be a core consideration. That will undoubtedly assist the judge and the interests of justice; indeed, it will assist everybody. I hope that the right hon. and learned Gentleman’s suggestion, which he advanced very well, will be taken seriously by the Government, although I do not know whether amendments could be introduced in the other place.

Useful reference has been made to New Zealand’s Evidence Act 2006. The criteria that the court must have regard to in making an anonymity order under that legislation are as follows. First, witness anonymity orders are justified only in exceptional circumstances. Secondly, the gravity of the offence must be taken into account. The third criterion—this is interesting; I wonder why there is no reference to this in the Bill—is whether there is other evidence that corroborates the witness’s evidence. That is a consideration; it is not necessarily a veto on making the order, but it is an important factor to consider. The judge must have regard to that consideration under the New Zealand Act in making an anonymity order or not doing so.

In the few minutes left, let me say how grateful I am that the Government have accepted a sunset clause. I hope that we will have some further information about the numbers of applications at that later stage, since the CPS is now keeping a record of all applications made, those granted, those refused and the reasons why, and so on, as the hon. Member for Hendon (Mr. Dismore) helpfully told us. That information will undoubtedly inform the debate when the matter next comes before the House.

Finally, the amendments that the hon. Member for Cambridge has tabled to clause 3(2) are sensible. In effect, clause 3(2) says that if a defendant wants anonymity for a witness, they have to give full details to the prosecution. Why should the prosecution not do the same for the defence? [Interruption.] The Secretary of State for Justice shakes his head; no doubt he will address that point in due course. If we are serious about the scales of justice and so on, there is an important principle at stake: the equality of arms principle.

For example, what if the name of the person is leaked by a police source? I am not impugning the police; my brother is a serving officer, as was my father. I am not anti-police in any way, but there are bad apples in every barrel. We have seen several police leaks recently that have caused mayhem here and there. I am concerned that a defendant has to give full details, which could end up anywhere, whereas the prosecution does not. [Interruption.] The Secretary of State will no doubt address that point, so I will not dwell on it.

In broad terms, the Bill is necessary, but there are improvements that we need to make—and, given more time, I am sure that we would make even more. At the end of the day, as we are on a tight schedule, I hope that we do not create a situation of injustice. That is the last thing that anybody in the Chamber would want. I hope that those in the other place will have slightly more time to reflect on the Bill and that we will be able to introduce some necessary amendments.

As the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) said at the outset of his remarks, this has been an informative debate, and we are the better for it. However, where there is broad agreement, there is a need for additional caution. It is in debates on Bills such as this that the other place comes into its own. I hope that we will learn from and be advised by its deliberations later this week and next.

The consensus that has emerged, both from our discussions before this debate and, in particular, during this debate, has not only been consolidated, but has moved subtly on the following issues—issues that I shall come to describe, although they have already been usefully described and considered not only by the Secretary of State and my hon. Friend the shadow Secretary of State, but by the hon. Member for Hendon (Mr. Dismore), who had the advantage of listening to the Director of Public Prosecutions this morning, the hon. Member for Cambridge (David Howarth), who gave us another highly considered contribution, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), who as ever came armed with a textbook, the hon. and learned Member for Medway (Mr. Marshall-Andrews), my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and, most recently, the hon. Member for Meirionnydd Nant Conwy.

The consensus that I would draw out from all those contributions centres on the following points. First, we do not want anonymity orders to be used routinely—they should be the exception—and we do not want to encourage lazy policing, lazy prosecuting or an informal process to emerge under which such orders become the norm. My experience in the Crown court as a recorder is not quite the same as the experience of the hon. Member for Meirionnydd Nant Conwy. It may just be the luck of the draw, but I find that applications for special measures are quite rare, and those that are made I rarely grant, but there we are.

We all want sensible and proportionate rules in place for the judges to consider and apply. We want a presumption in favour of openness, because open justice leads to fair justice, and fairness is required under the European convention—and was required under common law—and, whether under common law or the convention, was recognised by the Judicial Committee in the Davis case as essential.

I suggest—the Government might want to consider my suggestion, both this evening and between now and the Bill’s arrival in the other place—that there is also a consensus on special counsel. My right hon. and learned Friend the Member for Sleaford and North Hykeham spoke about that point in interventions and at further length in his speech. I suggest—I am sure that the hon. and learned Member for Medway, who has considerable criminal justice experience as a barrister, would make the same suggestion—that we need to employ special counsel in such cases.

I would add to the list the need for an objective test of anxiety—that is, an objective assessment of the risk to the anxious witness or those associated with him. We should not allow a witness simply to assert that he is anxious for his safety, his life or his property. I suggest that the judge would be assisted by the intervention of special counsel dispassionately to lay out the facts and help him to reach a just conclusion.

A consensus has formed on the introduction of a sunset clause, too. A number of amendments and new clauses have been tabled that propose different dates and mechanisms, but the House has come to an agreement—and, through their new clause, the Government have joined that agreement—that a sunset clause is imperative.

My right hon. and learned Friend the Member for Folkestone and Hythe congratulated the Judicial Committee on not asserting some form of supremacy over this place, but inviting us to do what we should do—legislate to fill the vacuum that its decision has created. Too often nowadays the response to judicial activism is parliamentary abuse, but my right hon. and learned Friend’s speech was an exception. Indeed, in all parts of the House today there has been a proper recognition of the need to respect the wisdom and advice of the Law Lords, and to fulfil our duties in dealing with the problem that they have set us. It is now up to us, in the period that remains to us this evening—I trust that it is not controversial to say that we have not enough time in which to scrutinise the Bill properly—to produce a scheme for the provision of anonymous witness orders that meets the requirement for justice in each case, and provides fairness under the rule of law.

I shall respond briefly, given that I shall deal in more detail in Committee with some of the points that have been raised.

I welcome the constructive way in which Members in all parts of the House have dealt with the Bill so far. There has been wide agreement on much of it. My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) observed that it was small but perfectly formed. I do not think I have ever heard him say that about a Bill before. Between all of us, we must be doing something right. I am also grateful to the Front Benchers in all parties for the constructive way in which they have worked during the short period available to produce the Bill in its current form. We are all determined to produce a Bill that is fair to the defendant, protects the public from dangerous offenders, and ensures that witnesses receive the protection that they need from intimidation and violence in appropriate cases.

Many of those who have spoken in this short debate have raised issues of concern that remain. I can assure them that, as far as the Government are concerned, the granting of witness anonymity should be an exception and should not become routine. Some Members who are legal practitioners clearly feel that it has become rather too routine. However, as my hon. Friend the Member for Hendon (Mr. Dismore), who made an erudite and helpful contribution with the benefit of having heard the Director of Public Prosecutions give evidence to his Committee earlier today, pointed out, according to a snap survey conducted by the Crown Prosecution Service, witness anonymity has been attached to some 580 of 1.3 million cases in the courts over the past year. That indicates that it is exceptional rather than routine, and we certainly do not intend to turn it into a routine procedure.

I think we all agree that sensible and proportionate arrangements are needed for the granting of anonymous witness orders, and that there must be a presumption of openness. Open justice is the most important element, and the article 6 rights of the defendant must be the primary consideration in ensuring a fair trial. That requirement is at the core of the Bill.

A number of Members approved of the proposal for a special counsel. A group of amendments deals with that issue, but I will say now that it is not absolutely clear from either the amendments or the comments that have already been made what role is envisaged for the special counsel—whether, for instance, he or she might be a friend of the court or a protector of the rights of the defendant. We must be clear about that if we are to proceed, but if we are not able to consider it during the passage of this Bill, it may be possible for us to do so when we debate the replacement legislation later in the year.

I am glad that there has been general agreement on both sides of the House, although not in every detail, as the new clauses show, that the provision of a sunset clause is right in the particular circumstances of the Bill. I am glad that, having discussed the issue with Opposition Front Benchers and others with an interest, the Government have been able to reach a view that is acceptable to all.

I enjoyed the speech of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). I know how bruising it can be to be Home Secretary, and to have to hold one’s tongue when judicial reviews are flying around and decisions are being made with which one may not agree. Revenge is a dish best served cold, and the right hon. and learned Gentleman clearly enjoyed that aspect. What I particularly enjoyed was the irony that judicial activism of an extreme nature has led the judges to set out the boundaries of their capacity to influence these matters. They have certainly alerted us to the existence of an issue that needs to be resolved.

I agree with all Members who have accepted that the Government are acting in good faith. The matter needs to be dealt with swiftly, and we are grateful for the co-operation that we have received. I understand the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) about the undesirability of speed. I hope that, whatever goes on to the statue book at the end of July, we can return to the issue more fully and at rather more leisure in debating the fourth Session Bill.

Question put and agreed to.

Bill accordingly read a Second time.

Bill immediately considered in Committee, pursuant to Order [this day].

[Sylvia Heal in the Chair]

Clauses 1 and 2 ordered to stand part of the Bill.

Clause 3

Applications

I beg to move amendment No. 35, page 2, line 26, leave out subsection (2).

With this it will be convenient to discuss the following:

Government amendment No. 40.

No. 20, page 2, line 27, leave out ‘prosecutor’ and insert ‘court’.

Government amendment No. 41.

Amendment No. 2, page 2, line 27, at end add—

‘(3) The court must give every party to the proceedings the opportunity to be heard on the application.

(4) For the purpose of considering an application for a witness anonymity order the court may appoint an independent counsel to assist the court, and, without limiting the directions that the court may make, the court may direct the independent counsel—

(a) to inquire into the matters that are set out in sections 4 and 5 and any other matters that the court may think relevant, and

(b) to report his findings to the court.

(5) Where an independent counsel has been appointed, the party who applied for the witness anonymity order must make available to the independent counsel all information in relation to the proceeding that is in the party’s possession.’.

Amendment No. 18, page 2, line 27, at end add—

‘(3) For the purposes of considering an application for a witness anonymity order the judge may appoint a special advocate to represent the interests of the party not present.’.

Amendment No. 19, page 2, line 27, at end add—

‘(3) Any application for a witness anonymity order must be made to the court at the earliest opportunity.’.

Amendment No. 36, page 2, line 27, at end insert—

‘(3) The application must be heard by the court in chambers and determined on evidence admissible in a criminal trial.’.

New clause 6—Independent counsel—

‘The court may appoint independent counsel to test any evidence of, and to advise it upon, the witness’s fears under section 4(6) and the relevant considerations under section 5(2).’.

New clause 7—Independent counsel (No. 2)—

‘(1) For the purposes of considering an application for a witness anonymity order, the court may appoint an independent counsel to assist the court.

(2) The court may direct the independent counsel to investigate on the court’s behalf any matter the court thinks fit, subject to any instruction the court thinks fit, and in particular to inquire into any matter referred to in section 4(3), 4(6) or 5(2)(d).

(3) The party applying for the witness anonymity order must make available to the independent counsel all information relating to the proceeding that is in that party’s possession.

(4) The party applying for the witness anonymity order is responsible for paying the fees of the independent counsel.’.

Amendment No. 35 relates to clause 3(2), but many other amendments and new clauses tabled by Members on both sides of the House deal with the important issue of the independent counsel, and I expect the debate to concentrate more on that than on amendment No. 35. The group also includes amendments concerning procedure requirements, including Government amendment No. 41, which I very much welcome.

Clause 3(2) builds on the provision earlier in the Bill that anonymous witness orders may be sought not just by the prosecution but by the defence. It goes on to say, however, that if the defence obtain an order, the prosecutor will still get to know the identity of the witness. However, it is a fundamental aspect of the Bill that if the prosecution obtains an anonymity order for one of its witnesses, the defence team does not learn the identity of the witness. This is a bad idea for a reason that goes to the heart of the problem with anonymous witnesses. If one knows the identity of a witness, one can research their background and record, and with that information one can conduct a far more effective cross-examination than one can without it. The prosecution will, therefore, be in a far better position if the defence obtains an anonymous witness order than the defence will be in the opposite circumstances. The defence cannot know the identity of the anonymous witness, so it cannot conduct effective research into that witness. It will, therefore, be in an unequal and unfair position compared with the prosecution. The amendment therefore seeks simply to strike out subsection (2).

There is also a fundamental human rights problem, which I do not think the Government have properly addressed so far—and I wonder whether it has been addressed by the Joint Committee on Human Rights. Article 6(3)(d) of the European convention on human rights says that defendants are entitled to examine witnesses on their

“behalf under the same conditions as witnesses against”

them. It is clear to me that subsection (2) violates that rule. What will happen in a case where both the defence and the prosecution obtain witness anonymity orders? It will not be true that the two sides are operating under the same conditions; they will be operating under fundamentally different conditions.

The Government have said that this is not a problem because the prosecution will not tell the police the identity of the witness. It is technically true that the police are not the prosecution’s client, but how will the prosecution investigate the background of an anonymous defence witness, whose name they will often know, other than through the police? In the television programmes where lawyers go gallivanting around the countryside doing their own investigations lawyers might look into the background of witnesses themselves, but in the real world the police carry out the investigations. Furthermore, simply saying that the information will not go to the police, which I do not think is true, does not meet the point about fairness and unequal treatment; in fact, it reinforces it.

The obvious way out of the clause 3(2) problem is the independent counsel—an institution that could be used not just in the ordinary case of a prosecution anonymous witness, but in the opposite case of a defence anonymous witness. That way out of the problem is much better than the Government’s.

I hear what the hon. Gentleman says, but is there none the less not a difficulty in that if the independent counsel is to investigate the witness, they will have to know who the witness is and something about them, and that information can very often only come from the police, who have access to intelligence and other material not known to anybody else?

That is a problem, but it is one that arises in the ordinary case in any event, because in most cases the police are not the primary investigatory tool of the defence. One hopes in a perfect world that they might be, but, as I understand it, that is not how things actually work.

The problem can be overcome by having one or two independent counsel, depending on whether both sides obtain witness anonymity orders, and for each side to be treated exactly the same. One cannot, however, overcome the problem that the prosecution has at its disposal the forces of the state. It is one of the fundamental problems with criminal prosecution that the state always—or nearly always—has more resources than the defence. That is one of the reasons why I agree with the right hon. and learned Gentleman’s view about the balance between convicting the innocent and acquitting the guilty.

I hope that the Government will listen to the case that will be made for having the independent counsel. One view, which I have heard Ministers allude to, is that the judge can do the investigatory work. That is implausible given the judge’s other tasks, and it is also implausible to expect a judge who was, for example, a commercial silk suddenly to turn into a criminal defence or prosecution lawyer. [Interruption.] The hon. Member for Wolverhampton, South-West (Rob Marris) mentions French television. He is right that one of the fundamental aspects of the independent counsel idea is that it introduces an investigatory element into our system, but it does so in a way that preserves some basic adversarial aspects, in so far as the questioning is by a lawyer, not a judge.

I constantly return to the point that the independent counsel system will protect not only the defendant, in being a safeguard against a miscarriage of justice, but the process itself when otherwise the court might decide not to grant an anonymity order, or an appeal would be successfully lodged. In the most difficult case of all—the “sole” or “decisive” case—where credibility is an issue, the only hope of getting through the human rights standard is the independent counsel. Therefore, if the Government turn down this method, in effect they will be saying that in future fewer cases will have a chance of succeeding than do now.

The Government asked how the system would work: what process do its proponents envisage? It is true that it is a hybrid between what happens now and what might happen in a more continental system, but fundamentally the independent counsel, as it says in the New Zealand statute, assists the court. The job is to assist the court in deciding whether to grant the order.

Independent counsel will investigate two matters and report to the judge: whether the need for an anonymity order has been established—whether there is evidence of threat to the safety of the witness, or of the other criteria laid down in statute—and whether the witness lacks credibility. Independent counsel would therefore be of great assistance to the court with both those tasks.

Or retrials.

As the hon. and learned Gentleman says, it would also be less expensive than fighting retrials. In any case, the current position whereby independent counsel can be appointed seems a parallel one, although, as we said in an earlier debate, whether the current judiciary know that they have such power seems unclear.

What does the hon. Gentleman think should be the test for the judge in listening to the report of the special counsel? That the witness is capable of belief? That he is prima facie telling the truth? What burden should the judge impose on the special counsel to convince him—if the task is to convince him—that someone is not to be called as an anonymous witness?

That is an issue for a future debate on a later clause, and I would prefer not to spend the Committee’s time on it now. The answer with regard to the independent counsel is that the task is investigating according to the standard in the statute—whatever standard that is—and is therefore governed by what the statute says.

With great respect to the hon. Gentleman, the question that the hon. and learned Member for Torridge and West Devon (Mr. Cox) has just asked him is very germane to this debate. It is incumbent on those moving that these provisions should be included in this emergency Bill to be clear about what the exact implications are. I beg to suggest that the hon. Gentleman is not all that clear.

I do not want to be accused of anticipating a future debate, but this issue is precisely that raised by the amendment of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), on whether the standard should be that the court may make an order if it is satisfied about the conditions, or only if it is sure. The independent counsel would work to whichever of those standards was in the statute, and I do not see how that issue is at all relevant to the question of whether we should have an independent counsel system in the first place.

The other point that the Government seem to be making is that this issue could be dealt with by issuing guidance on the existing power. The trouble with that is that the existing power appears, first, not to apply to the magistrates court. Secondly, it seems to be exceptional, and, as we have already discussed, it ought to be exercised rather more often than exceptionally. Thirdly, on a practical matter, it is not clear under the existing system exactly who pays and how much. That issue should be dealt with by the statute.

I doubt whether the situation is as the hon. Gentleman says. As I understand it, magistrates would be able to write to the Attorney-General to ask for a special counsel to be appointed, just as a judge would do, I think, using the more ordinary route. They would not just appoint under inherent jurisdiction, but would write to the Attorney-General asking for an appointment to be made in that fashion. I do not think, therefore, that there is a bar on magistrates courts having such assistance—if assistance it be—but it is very difficult to get a clear view of what special counsel is intended to be at all in this case. Is it to be a person who represents the defence, so that there are no secret things that the defence counsel cannot know, because he must pass them on to his own client? Alternatively, is it, as the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) suggested, really an aid to the judge; or is it, as the hon. and learned Member for Harborough (Mr. Garnier) suggested, somebody who susses out whether the witness is really frightened or not? All three conflict with each other. Is that not the problem with trying to get a provision such as this into legislation now, rather than waiting until we have sorted out what we really want?

On the hon. and learned Lady’s point about magistrates courts, this seems to add yet another problem to the existing arrangements, in that one has to apply to the Government to get a special counsel. I suggest that that is not the right thing to do; there should be a more direct route. On her second point, it seems clear to me that the independent counsel assists the court and thereby protects the defendant, but also thereby protects the process itself from challenge. That seems perfectly straightforward.

I really cannot understand the Government’s argument that there is a lack of clarity about the counsel’s role, given that it is set out explicitly in new clause 7, in my hon. Friend’s name. What could be more explicit than the phrase

“an independent counsel to assist the court”,

followed by a reference to the independent counsel’s acting on the direction of the court in such a way as the court may see fit?

That is precisely right. Our new clause is explicit, but my impression is that the amendments and new clauses proposed by other Members have the same intention—that the purpose is to assist the court in coming to the decision that it is given by the statute to make.

Does the hon. Gentleman not agree that the purpose of the amendments and new clauses drafted by him and by me is in no sense to relieve the judge of the obligation of determining whether he or she is satisfied that the conditions and the criteria are laid out, but to investigate things preparatory to their making that adjudication, and that the judge can ask questions of the relevant witnesses, informed by a prior report from the special counsel?

That appears to be what happens in the New Zealand example, and it is one way in which I would expect the system to work here. This is a way of getting better, higher-quality and more defensible decisions from the court when it is required to make the decision that the statute requires it to make.

I agree with the hon. Gentleman’s argument. When I questioned the Justice Secretary earlier, he shook his head violently at the idea that there is not equality of arms in this clause. This provision would deal with that problem, but it would presumably keep the whole matter in-house, as well, and there would be a report specifically to the judge—be it regarding anonymity of a prosecution witness, a defence witness or both. This is a good example of a practical solution.

That is precisely right. This idea solves a lot of problems, which is why I am confused and unclear about why the Government seem to be resisting it.

I hope that the hon. Gentleman will forgive my observing that if we had had more time, we would be getting in touch with the New Zealand authorities to ask them about their experience. That might have resolved all the problems raised by the Solicitor-General.

I am sure that e-mail works rather better than ordinary mail did in the old days, but in principle I agree with the right hon. and learned Gentleman.

I want to let other Members speak and there are a number of other amendments in this group, but I want to finish by referring briefly to an issue on which the Government have moved, for which I thank them. Regarding the group of amendments on the procedure for deciding whether to grant an order, there was concern that no procedural provisions were being made in the Bill. The Government have now moved amendment No. 41, which goes a long way towards removing those concerns. I still have one small worry, however, about the standard of evidence admissible in the hearing before the judge. That is why I have moved amendment No. 36—just to test the issue and to ask the Government how they see that question being answered. On the basis that amendment No. 41 shows that the Government are listening, I welcome it. I just hope that they will also listen on the central issue of the independent counsel.

I largely agree with the broad thrust of what the hon. Member for Cambridge (David Howarth) has said and I do not share the confusion that appears to have arisen in the mind of the Solicitor-General. I also accept the point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) that if we had more time, these niggles could be ironed out, but we do not, so we will have to do the best that we can.

While I accept what the hon. Gentleman said about the need for a special advocate, I approach his arguments about amendment No. 35 somewhat differently. Our suggestion is not that the whole of subsection (2) should be deleted, but that the equality of arms that we seek should be achieved through amendment No. 20, which requires the insertion of the word “court” instead of the word “prosecutor” in clause 3(2), so that the court, not the prosecutor, would have to be informed about the identity of the witness.

I shall not rehearse the arguments about the links between the police and the prosecution system, because that would be tedious and repetitious, but those arguments are important. The Bill and the system of justice would be strengthened were the information to be given to the court, not the prosecutor. If the Government accept amendments relating to the appointment of special counsel or advocates, it would be sensible for the court to include the special prosecutor, because he would be conducting himself for the benefit of the court, albeit by collateral advantage—if he did his job properly, it would be to the benefit of both the warring parties, the prosecution and the defence in any given case.

I, too, am pleased to note the Government’s amendments in relation to the process by which the applications will be made. It must be sensible that those interested should be given an opportunity to be heard and to explain their case—or their resistance to the case—on the application as appropriate. I accept that on some occasions the application will be made, at least initially, ex parte, but it may on occasion be right and just that the matter should be contested inter partes at a later stage.

However, we urge that any application—this is the thrust of amendment No. 19—for a witness anonymity order must be made to the court at the earliest opportunity. That may be an obvious request, but far too often advocates or lawyers advising either the prosecution or the defence do not apply their minds to the marshalling of the necessary administrative orders until far too late a stage, which delays the speed at which the trial can progress. I urge that any change to the Bill should include a requirement along the lines of amendment No. 19.

None of the amendments on special advocates were tabled by me or my colleagues on the Front Bench, but I do not think that that matters. What is important is that we get the Bill right. Amendment No. 2, tabled by my right hon. and learned Friend, is an attractive attempt to address the problem, although I do not suggest that he has every dot and comma in the right place or that an inclusion in the Bill of a provision on special counsel should necessarily be in this form. For my part, I dealt with it as a relevant consideration in amendment No. 24 (ai) to clause 5.

I shall not detain the Committee for long, but I wished to address the powers of independent counsel and give a harmless example of how one might be used in a hypothetical case. I have burdened the Solicitor-General with precisely this example already, so I apologise to her for the repetition.

Let us take the not unlikely hypothesis that I am representing somebody in a serious criminal case and anonymity is sought for a witness. The witness, of course, is named with a pseudonym, or simply as A, and we have a statement that is heavily redacted so that everything in it that should give us the identity of that witness has been removed. None the less, the witness is important from our point of view.

It appears from the case papers that the witness does not have an axe to grind and was a bystander or someone who was otherwise innocently involved, but the evidence is still important. I say to my client, “What do we say about this?”, and my client says, “I think that this witness is X. There are things that I see on these papers that lead me to believe that I can identify the witness and I can tell you that the witness is not the innocent bystander that she makes herself out to be.” The client might say that the witness was partisan, for example, because she was married to or related to the main prosecuting witness, and had an axe to grind in some way that was not revealed in the papers.

Without a special advocate, I can put all that in writing and articulate it in court, if necessary. I can give it to the judge and ask him to make his own inquiries about whether I am right or wrong, but I cannot take it to the next stage if the judge says, “Well, you’re right, as a matter of fact.” What can I then do about it? What representations and advocacy will be made to me about the steps that I can take once I have established, as a first fact, that my client has correctly identified the person on the statement? That is when an advocate is required. The advocate will go to the judge’s chambers, with prosecuting counsel, and the judge will say, “You are right. This witness is X, but we do not know at this stage whether the witness is partisan or whether the allegations made by you to me are true.” The special counsel will be acting after a conference with me as defence counsel in which I will have told him all the things that we believe and asked him what he thinks we ought to do. Special counsel will then say to the judge, “You ought to set in train the following inquiries.”

What does the hon. and learned Gentleman think is the difference between the situation that he is outlining and that which frequently arises in the courts when an application is made by the Crown to disguise the identity of an informant? Precisely the same considerations arise, yet no special counsel is allowed. I wonder whether the Government’s concern is that by opening the door in this Bill they will be opening the door for matters relating to disclosure in Crown courts.

With great respect, if the hon. and learned Gentleman does not mind, I do not want to go down that interesting diversionary route. Public interest immunity is different. PII judges are armed with different considerations and prosecuting counsel has clear lines of inquiry. The concept of informants is well known. What I am talking about is a witness in a case who might have completely misled the prosecuting authorities about the nature of his role as a witness. I want to concentrate on that for a moment, if the hon. and learned Gentleman does not mind. PII is imperfect, as we all know, but this provision could be very imperfect.

In such cases, what is necessary is an advocate who knows what the facts are, knows the identity of the witness and can advocate what the judge should do in those circumstances. More than hypothetically—almost certainly—they could say, “It is our submission that you should put into train the following inquiries in relation to this witness before you make a decision. If necessary, you must use the prosecution in order to do so.” That would mean that somebody could come back and say, “Yes, on inquiry, they are right. This witness is apparently not the person that he or she appears to be.”

In such circumstances, an advocate is needed. It cannot be done in the abstract. There are two reasons for that. First, advocacy is not a bad idea anyway. Secondly, and more importantly, if the judge says, “I will not do that. I will not put those inquiries in train”, there is cause for appeal based on what the judge has said. If one does not have a special advocate, one does not know the basis on which the judge has arrived at that decision, and one never will. That is a hypothetical example.

Might I suggest to the hon. and learned Gentleman a further advantage? If one is right to think that the protective measures in cases where credibility is the primary issue will, generally speaking, always fall foul of the unfairness rule, the special counsel approach, which he is advocating, will go a long way to meeting the European jurisprudence and satisfying the test of fairness.

I agree entirely. That is a strong tangential point to the one that I hope I am making.

I would have thought that if one did not have an advocate in such circumstances, the chances that a number of cases would transgress article 6 and other parts of the convention would be very high indeed. An inquiry would take place extra-territorially, which is extremely undesirable when we ought to be able to do it ourselves.

I have wearied the Committee with this example. I hope that it is thought to be one that is reasonable in the circumstances and likely to occur in a number of serious cases. I have thought about a way around that and I can find none. It prompts one particular question, which has something to do with angels and pins: who precisely does the special counsel represent and what is his role? That is not difficult. The special counsel is manifestly a minister of justice in the same way as everybody else. He is there to see that justice is done. One of his roles is precisely the same as that of a Special Immigration Appeals Commission counsel, who talks to the representative of the terrorist or suspected terrorist who is subject to a control order, finds out what his instructions are, and conveys those instructions back to the tribunal, to which he has unique and independent access. I can see nothing wrong with that, but I can see enormous advantages, particularly as it is a power that will be rarely used. It will be used only in the most serious cases and when judges, in accordance with that, perceive the need for that additional power.

I shall listen with interest to see what the Government say is wrong with that. So far, I have heard nothing on it. I dare say that something will come, but this is an attempt to be as helpful as one possibly can be.

I rise briefly to endorse what the hon. and learned Member for Medway (Mr. Marshall-Andrews) has said. His explanation of the circumstances in which the special counsel is likely to be required is entirely accurate and seems to meet the real difficulty that Davis has thrown up. To go back to Davis, the problem that we rarely confront when we discuss the detail of the Bill is not the question of whether the common-law power ever existed, but the question of whether protective measures, when credibility is at issue, can ever be fair or, to go a little further, whether they can ever be compatible with the European jurisprudence. It is important to keep in mind the fact that the Law Lords all held that the protective measures in that case were such as to render the trial unfair and incompatible with the European jurisprudence. We must ask ourselves how, using protective measures as prescribed by the Bill, we can still ensure fairness.

What the hon. and learned Gentleman has suggested seems to me to be the clear way forward. If we do not follow his advice, or accept amendment No. 2, which I have taken the liberty of tabling, I suspect that the measures set out in the Bill will very seldom be invoked when credibility is an issue. The outcome will almost certainly be deemed unfair, either on appeal or when the order is applied for. To endorse the point made by the hon. Member for Cambridge (David Howarth), the presence of a special counsel is a way of ensuring that applications can be made, but also a way of ensuring that they are not made inappropriately. I hope that Ministers will seriously consider putting that provision in the Bill, either today or in the other place.

Would not the confusion about the precise role of the special counsel, which has been identified in the debate, be likely to be in the mind of any tribunal seeking to exercise an inherent power that was not set out in statute, as my right hon. and learned Friend suggests it should be?

That is entirely right, although of course confusion does currently arise when an independent or special counsel is appointed in the context of disclosure, for instance. The query that the Solicitor-General raised can arise in that situation. Amendment No. 2, which is based almost word for word on the New Zealand Act, clarifies the point precisely. Under it, the independent counsel would answer to the judge, address the considerations and conditions set out in clauses 4 and 5 and respond to specific queries from the judge. In other words, he would be acting as a minister of justice, as the hon. and learned Member for Medway said. In one sense he would represent the defendant’s interests, but he would also represent those of a court that needed to be better informed. Putting that role in statute would both respond to the point that my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) identified, and satisfy the anxieties that the Solicitor-General expressed.

May I remind my right hon. and learned Friend about the specific provisions in the Special Immigration Appeals Commission legislation? It states not that the special advocate is to represent the respondent but that he may represent their best interests.

Yes, indeed. My hon. and learned Friend is quite right. In all the legislation in which special counsel has been provided for, it has been stated explicitly that that he does not answer to the defendant or respondent. He has a special free-standing role, and is a minister of justice, but he is subject to the authority and directions of the judge. That is a way forward, and would ensure that the cases in question had a much better chance of satisfying EU requirements.

I rise to speak to new clause 6, which is my proposal on independent counsel. But before doing so, I shall respond to the hon. Member for Cambridge (David Howarth), who asked whether the Joint Committee on Human Rights had considered the point that he raised about article 6(3)(d) of the European convention. We have not considered it specifically, but we did raise it with the Director of Public Prosecutions this afternoon and discuss with him the equality of arms, or otherwise.

We are comparing apples and oranges, because why would a defence witness require anonymity? Their position is rather different from that of a prosecution witness, who might well be afeared of victimisation by the defendant or his associates. What could a defence witness be afeared of? Victimisation by the police, perhaps, but it is rather unlikely.

Will the hon. Gentleman give way?

I shall finish the point and then give way.

It is probably more likely that defence witnesses would fear victimisation by other criminal associates. In those circumstances, the prosecution must have the opportunity of looking into the antecedents of a defence witness. That is a different kettle of fish entirely from a prosecution witness, who will have different fears. The hon. and learned Gentleman’s point about the need to give the information to the court gets us no further, because the judge knows the anonymous witness’s identity anyway, as would an appeal court. That is the position now, and will continue to be the position.

Might not a witness who has been called by one defendant apply for an order because he is worried about another defendant, represented by a different counsel? The defendant who has called him might say, “It wasn’t me who caused the affray, it was so-and-so, and here’s a witness.”

My hon. Friend is entirely right, and it would be appropriate for the prosecution to be able to investigate that. A defence witness is a completely different kettle of fish from a prosecution witness. As I have said, the JCHR has not discussed the matter in detail and come to a view on it, but I am giving mine, which pretty much relays what the DPP said to us today.

Is not that explanation a further argument for rethinking clause 3(2)? It seems that it is intended to deal with a number of different problems. On one side there is the witness who is afraid of what the police might do, and on the other there is the witness who is afraid of what other defendants might do. It seems entirely wrong for one clause to deal with both those problems. With the latter type of witness in particular, consent will be an issue. They might want the police to investigate, in which case they could say so.

If that is the case, there is no problem. I do not see any significant difficulty with clause 3(2), for the reasons that I have given. I certainly agree with the hon. Gentleman’s more important point that the way to resolve the difficulties is by having an independent counsel, who could get to the bottom of the story.

There has been some loose language in the debate. Hon. Members have talked about independent counsel, special counsel and special advocates. We need to be more precise and tight in our language. I have not used the term “special advocate” in the new clause, because it has certain connotations in our legal system. Special advocates have given evidence to the JCHR on several occasions, both formally and informally, and one of their main concerns is what they call “mission creep” in terms of how the system of special advocates has spread from counter-terrorism. That is why I have used the term “independent counsel”, which I believe is drawn from the New Zealand system.

The new clause is intended to codify the inherent jurisdiction that already exists. It would not create anything new, as I am effectively proposing a type of amicus whose job is to advise the court without specifically representing either party involved in the case.

We need to be careful because, as the Government have said, the provisions could easily get out of hand. I am concentrating on the “civilian cases”, as the DPP puts it—the 50 or so cases that do not involve the police or security services, in which credibility will be the key issue. I have phrased the new clause to exclude public interest cases, such as those involving undercover police, and to focus on the key issues: the basis of the witness’s fears and whether the relevant credibility considerations in clause 5(2) are met. The independent counsel would test the evidence for that and advise the court accordingly. It seems to me that that would create a regime limited enough to meet the Government’s concerns and objections and also provide the necessary independence that we all want, yet at the same time one that would not get completely out of hand when it came to the other issues.

My hon. Friend may well be coming to this point, but will he deal with what appears to be an immediate and obvious problem? How will the evidence be tested? Will there be a trial-within-a-trial—a voir dire—and, if so, how will that take place? Who will preside over it? Will it be in chambers or open court? I do not want to go on, but is that the sort of trial that he envisages?

The starting point would be a hearing before the judge, as happens now. Government amendment No. 41 proposes an initial ex parte application followed by an inter partes hearing, and the independent counsel would play a role in both aspects.

I do not think that we can achieve perfection, but that is probably the way forward. It may be possible to test some of the evidence on paper initially, but it may ultimately be necessary to have the witness at least on an ex parte basis. That would depend on what the system throws up: we are talking about a relatively small number of cases, and I do not think that what I propose would be unmanageable.

Might I suggest that one answer to the question from the hon. and learned Member for Medway (Mr. Marshall-Andrews) is that there might have to be a voir dire, in which the witness is questioned in front of the judge? The judge would also be able to ask questions. The preliminary research by independent counsel would be made available to the judge, so that there could be informed questioning at the voir dire.

The right hon. and learned Gentleman is right, and what he suggests would have to be on an ex parte basis. That is where the independent counsel comes in, as he would perform any cross-examination of the witness that proved to be necessary.

That approach would be something of a last resort, to be used only when a preliminary inquiry had thrown up real questions of credibility. There may be no credibility problem in many of the 50 cases that we know about. The DPP said that such problems would arise in some of the 30 Operation Trident cases, but that implies that they would not in many others. The approach that I have outlined might be necessary in cases such as the Davis case, but that eventuality would probably turn out to be the exception to the exception to the exception, as it were. The inherent jurisdiction, together with the Government’s proposal for ex parte applications and inter partes representations, starts to achieve the outcome that I have set out.

We are told that there are concerns about costs, but a maximum of 50 or so cases a year will not lead to costs that are unmanageable, given the importance of the cases that we are talking about and the overall interests of justice. I think that the costs should be borne by public funds.

As for magistrates courts, it is presumably within the Attorney-General’s discretion to grant any application made to him. The process is extremely complicated, whereas it would be simpler to allow the magistrates to have a similar jurisdiction. I put that to the DPP earlier today: he agreed that if magistrates did not have that inherent power, the suggestion to give it to them had merit.

There seems to be consensus around the House, if not in the Government, about the importance of independent counsel. I hope that Ministers have listened to the debate and that, if they cannot resolve the matter this evening, they might introduce amendments to this Bill in the other place. If that is not possible, I hope that they will bring forward suitable proposals to resolve the problem in the long term in the more substantive Bill that we will see in the next Session.

I thank the Government for Government amendment No. 41, which makes it clear that there has to be a hearing, and that no trial will be held entirely on paper, unless that is what all the parties involved agree to.

I want to make some remarks about the independent counsel. I am quite attracted to amendment No. 2 and new clause 7. I hope that the Government can make some movement on those proposals or persuade me that there is no need for an independent counsel. As a lay person—I am a solicitor, but I have not done much criminal law, and even then not for many years—it seems to me that fairness demands that there should be an independent counsel. I understand from the helpful remarks made by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) that similar systems are in place elsewhere. I remember the discussions that we had with the Special Immigration Appeals Commission about what should be done in respect of terrorist and other cases, and it seems to me that an independent counsel could be of great assistance both for fairness and the for appearance of fairness.

He is.

I am grateful to my right hon. Friend for that sedentary clarification. If the Government do not think that the amendments are appropriate, I hope that he will elucidate why. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) has said that amendment No. 2 is very similar to the provisions in the New Zealand legislation on which the Bill is broadly based. I think that it is a good idea, and I hope that the Lord Chancellor will show some movement on the proposals. Failing that, I hope that he will present some cogent arguments as to why the amendment would not be appropriate. He needs to explain why it would merely be a fig leaf when it comes to giving an appearance of fairness, and why it would have other negative effects. As I have said, it sounds rather attractive to several of us on the Government Benches.

This has been a measured debate, and I thank hon. Members of all parties for their contributions. I shall deal with the various amendments that we are considering before I come to the special advocate proposal which, given the weight of opinion in the House, is the most important proposal before us.

Government amendments Nos. 40 and 41, and part of amendment No. 2, relate to a party’s right to be heard and the need to put it on to a statutory footing. I am glad that the Government amendments have been generally welcomed on both sides of the House. That is one of the benefits of our detailed consultation with the Opposition parties, even though that inevitably took place in a very short space of time.

Amendment No. 19, moved by the hon. and learned Member for Harborough (Mr. Garnier), would require that an application for an order be made at the earliest opportunity. I accept that in principle, but I ask the hon. and learned Gentleman to accept that the criminal procedure rules are the right place for such a provision. Indeed, the phrase “earliest opportunity” begs a question: it is improbable that the prosecution would delay applying for such an order, as any such application would disrupt the trial process. Exactly at what point they are able to do that, however, will depend on the merits of the individual case.

Amendment No. 36 would place in the Bill a requirement that the application for a witness anonymity order must be heard in chambers and determined on evidence admissible in a criminal trial. I ask the House to consider for a moment what the implications of that proposal would be. The applications will take place before a judge in chambers, away from the jury. We have exclusionary rules of evidence in England and Wales precisely because of the nature of the jury system. Applications are made without the jury on all sorts of matters that, by definition, may be held by the judge to be outwith our exclusionary rules of evidence and therefore are not to be brought out in evidence to the jury, but have to be before the judge when he is hearing the application. Otherwise, the whole process would end up being risible. As I read the amendment, which refers to the rules of criminal evidence, it would greatly restrict the power of the court in chambers, without the jury present, to consider all kinds of evidence.

Some of the evidence that a court will need to consider in determining whether to make the order will be evidence that the prosecution might wish to adduce, but the judge has held that it cannot, and some will be evidence that the prosecution most certainly does not wish to bring out in open court, such as police and security services intelligence reports, which are the subject of a public interest immunity application but are germane to consideration of the order. Given that explanation, I hope that those who tabled the amendment will not press it too far.

I should say to the Lord Chancellor that I do not intend to press that amendment. One of its main purposes was to probe the Government on what sort of evidence they thought should be used in the hearings. It seems to me from what he has just said that it looks like evidence that is usually inadmissible put in ex parte. Is that not yet another reason why there should be an independent counsel to make sure that both sides are heard?

I will come to that in a moment. Current practitioners in the House at the moment have far more experience than my zero experience of handling cases of this kind. My understanding is that, where applications are being made, the judge has to be satisfied that there is a reason for withholding what would otherwise be fundamental evidence from the defence—for example, the witness’s identity and aspects of the witness’s background that could lead to his identity. The court has to be satisfied as to the reasons. That may well be police intelligence reports, and indeed Government amendments Nos. 40 and 41 allow for that possibility. I will come to the issue of the special counsel in a moment.

Next, and penultimately, I shall deal with amendment No. 20, which would allow, where there is a defence application, for an order to be made for the witness’s real identity to be given to the court but not to the prosecutor. The argument is that there has to be equality of arms between prosecution and defence. It is a straightforward truth in any system of justice worthy of its name that there has to be such equality, but a moment’s thought will explain to us that equality of arms does not mean complete symmetry between the role and predicament of the defendant and the role and predicament, if any, of the prosecutor. The vested interests are completely different. It is the defendant who is in the dock. The prosecutor is not in the dock. There is not an either-way verdict which will lead to either the defendant or the prosecutor going to jail. As soon as one points that out—if I may say so, it is a statement of the blindingly obvious, but—

It has never stopped the right hon. Gentleman in the past.

That may be so, but the point was absent from the argument of those who said that the importance of the principle of equality of arms closed the argument as to whether, where an application for an order was made by the defence, the real identity of the witness for the defence should be disclosed to the court but not to the prosecution.

There may well be cases, but I have never heard of one, in which the character of the prosecutor is called into account. It would be extraordinary were that to be the case. Moreover, those acting down the years on behalf of defendants quite properly and rightly have argued that there should be no equality of treatment when it comes to the provision of evidence to the other side. So we have rules under our system whereby not only does the prosecution obviously have to lay the full details of the case that it is going to make in open court before the defence, but it has to disclose sometimes mountains of unused prosecution evidence to the defence. No such equivalent duty is on the defendant, and notwithstanding efforts that have been made by the previous Administration and this one to deal with the situation in which the defence ambushes the prosecution, and the increasing concerns of the courts to see those rules properly applied, there is not, and can never be, equality there.

I will deal with what is at the heart of amendment No. 20. There will be rare cases in which the defence properly feels that it should make an application for a witness anonymity order for a defence witness. I guess that the most likely example that could arise is where there is an argument between co-accused. The defence will come forward with its application to the court. It is of great importance that the court knows who the person is. That will be disclosed to the courts even under amendment No. 20, but the court also has to know a good deal about the witness before it can come to a view. The court has no information about the witness. How could it? The only way in which the court could obtain that information is from the prosecutors, who in turn would have to obtain it from the police. On what other basis could the court learn about the antecedents of the witness, who may well have kept them from the defendant? The antecedents may be incomplete.

Those of us who have to deal routinely, as we all do in the House, with constituents who have criminal records never cease to be amazed at the way in which they forget about the most egregious convictions on their record.

They remember only convictions of the most trivial nature. Indeed, recently I met a man who was applying for a job in the public service. He had a conviction years ago for being drunk and disorderly and he told me in front of a witness, who does not need to remain anonymous, that it was his sole conviction, so I wrote a gentle, but non-committal, letter. Upon further inquiry by me, it turned out that he did indeed have a conviction for being drunk and disorderly a long time ago, but he also had a recent conviction for quite a serious robbery. When he came back to see me, aggrieved that I had not been able to get him the post in the public service, he said that he had forgotten about that conviction and that in any event it was rather trivial. That sort of thing goes on frequently, so the police would have to make inquiries in such cases.

I am fascinated by the Secretary of State’s story.

In the absence of a special counsel, I would accept the thrust of what the Secretary of State is saying, but as that would be the purpose of a special counsel he cannot dismiss my arguments—or rather those I borrowed—in relation to amendment No. 20 without bringing into the picture the need for a special counsel. Once a special counsel was doing the job that the Secretary of State did in his surgery, or that somebody else might do for the court, much of his objection would fall away.

The answer to the hon. and learned Gentleman’s point was given earlier in the debate. For sure, the special counsel has a role that is different from that of the judge or the prosecutor, but no information is directly available to special counsel; they, too, would have to go to the police. One of the arguments raised about that is that the police could leak the name of the witness. That is an inherent problem in any such case, but I know of no example where the clear order of a court requiring that the identity of a witness be prohibited has been broken. If it was, it would be contempt of court and the police officer would find himself in prison rather quickly.

I take a position that is slightly different from that of my hon. and learned Friend the Member for Harborough (Mr. Garnier) and that of the Liberal Democrats. It seems to me that where a defendant who has a co-defendant wishes to have a witness anonymity order made in respect of a witness, the Crown ultimately has a duty to the co-defendant to inform them of any criminal antecedents or other considerations that may make the evidence of the to-be-anonymised witness prejudicial to the co-defendant. The Crown can discharge that obligation only if they know the identity of the anonymised witness.

I am extremely grateful to the right hon. and learned Gentleman for making my point in a rather more elegant way. That is exactly the point. I understand why the amendment was tabled. It is not that there will not be equality of arms—there will—but there cannot be symmetry in a criminal trial, and thankfully no one has suggested that there would be. The amendment reflects concern to ensure that the protected identity of a defence witness is not somehow leaked. However, another area of no symmetry is that it is inherently improbable that if the prosecutor, or even the police, knew the identity of the defence witness whose identity was being protected they would go round and put the witness’s windows in, set fire to their motor car or intimidate their children at school, yet all those things could occur in the opposite situation, where the identity of the prosecution witness is being kept quiet.

I turn to the major issue in respect of this group of amendments—the argument contained in amendments Nos. 2 and 18 and new clauses 6 and 7 that the Bill should include a provision that a special counsel be appointed. I shall set out why I ask the House to accept not that there is a profound case against having special counsel—that is not my argument—but that there is insufficient time, not only today but in the limited time of a week that we have to bring the Bill’s proceedings to a conclusion, to pin down exactly how a statutory scheme could work. As we have already heard, there is at least one statutory scheme for the appointment of a special advocate. My hon. Friend the Member for Hendon (Mr. Dismore) was right to make the important distinction about the appointment of a special advocate in respect of the proceedings of the Special Immigration Appeals Commission, which some of us have come to know and love only too well. It was established by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). I got it going and it has been enhanced since.

In addition, as we have heard, there is an inherent power for the court to appoint a special counsel. It is not used often and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), who drew our attention to an entry in “Archbold”, was correct in saying that it is used only exceptionally. As it happens, the Court of Appeal, in the Davis appeal, sought and was granted the appointment of a special counsel. Those who believe that the appointment of a special counsel is a stay in jail card as far as the prosecution is concerned, and a guarantee against any breach of article 6, might bear in mind the fact that, notwithstanding the appointment of special counsel and the extensive use of special counsel by the Court of Appeal in the Davis case, although the Court of Appeal found in favour of the prosecution in Davis, that was not a particularly persuasive point when the case went to the House of Lords Appellate Committee. The fact that there had been special counsel was of no consequence when the Committee reached its 5:0 judgment on whether there was common-law authority and, to a degree, article 6 authority.

I do not dismiss any of the arguments made this evening by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews)—I was about to say “Maidstone” but that was a Freudian slip. Both constituencies begin with “M” and both are in Kent; both are close to the very first constituency I fought, which was Tunbridge and Malling—[Interruption.] I lost. Indeed, I came third and took a pound off the Liberal candidate who was convinced it would be him, so at least I came away from the count with something.

I listened with great care to what my hon. and learned Friend the Member for Medway said, as I did to the other right hon. and hon. Members on both sides of the House. We have to pin down some serious issues—[Interruption.] I gently point out to those who say we should do it now that the matter is really quite complicated and the proposal is not absolutely necessary because, as everybody has accepted, the court already has an inherent power. Those who say we should do it now are also talking about the dangers of legislating too fast and without proper thought.

My right hon. Friend said that there was not enough time to introduce a statutory scheme under the Bill. The Bill will be subsumed into the law reform, victims and witnesses Bill in the next Session of Parliament. Will he give an indication—or, I hope, an undertaking—that he will seriously consider including a statutory scheme for an independent counsel on the witness anonymity programme, as it were, in that Bill, if not in the Bill that we are discussing tonight?

Yes, of course. My undertaking is that before we publish that Bill, I will indeed give active and urgent consideration to whether a scheme is feasible and necessary, together with my right hon. and learned Friend the Attorney-General and my hon. and learned Friend the Solicitor-General, others within the court system, the Crown Prosecution Service, defence lawyers and right hon. and hon. Members of the House. I do not for a second rule out such a scheme, but I want to get it right.

Will the Lord Chancellor go one stage further than that? The Bill is an uncovenanted bonus, in that it gives us months in which to see whether or not the system works, although I am not suggesting that that is a good way to make criminal justice legislation. Will the Lord Chancellor consider indicating to the judiciary that in that interim period they should consider, in light of the cases that come before them, whether the existence of independent counsel would be of use to them? We could then be given some indication of the answer, possibly through the Lord Chief Justice, when the Bill comes back before the House.

Yes, that is a very sensible suggestion; I will do that. I do not know whether the possibility of courts appointing independent counsel in such cases is less well known than it should be. I am quite clear that it will become better known, not least as a result of these debates, and also through efforts that I will make. That certainly will be factored into the work of the Crown Prosecution Service.

There are issues that we need to consider very carefully to get the measures right. First, there is the question of the kind of witness anonymity order to which a power in respect of special counsel would apply. My hon. Friend the Member for Hendon believes that, in practice, use of the power would be confined to so-called civilian cases, in which civilians—not police officers or intelligence officers—were witnesses to really awful crimes. Some would be innocent bystanders, and some would be far from being innocent bystanders. We need to consider whether to exclude altogether, or provide a presumption against, such special counsel ever being applied for where undercover police officers are used—there are 40 such cases indicated in the CPS’s current analysis—or in the case of undercover test purchases; there are currently 290 such cases. We have to pin the matter down before we come through with a legislative scheme. The facility should certainly not be available in the case of test purchases, and probably not in the case of undercover police officers, but we have to look very carefully at the circumstances.

There was debate—and, frankly, uncertainty—about the exact role of special counsel. The hon. and learned Member for Torridge and West Devon (Mr. Cox) asked the hon. Member for Cambridge (David Howarth) some really pertinent questions on the subject, and they remain unanswered. They are not really questions that can be answered in the Chamber. We have to think very carefully about them.

I think that my right hon. Friend is in danger of mixing up the special advocate process with the independent counsel process that we are discussing. Special advocates are limited in number because they have to be security-cleared. They perform a different function. Perhaps independent counsel do not have to have the same level of clearance, particularly if we are talking about civilian cases, not undercover or secret service cases. Those are the ones for which security clearance is needed, not the ordinary, bog-standard criminal trial.

I was doing my best not to confuse myself, and I hope that I did not do so on that occasion. We can continue this discussion outside the House, because the hon. Member for Mid-Sussex (Mr. Soames)—

Wants his dinner.

Yes, and it is always dangerous to keep him away from his dinner, so I commend the amendments in my name.

On amendment No. 35, we have heard that clause 3(2) is not fit for purpose. It tries to deal with too many different sorts of cases. It tries to deal with cases in which the witness does not want information to be passed to the police; cases where the same person is effectively witness for the prosecution and witness for the defence; and cases where the witness is afraid of the other defendants. That confirms my view that the obligation in the clause goes too far. The Government could well think about the clause again and redraft it, but at the moment it seems to be entirely badly drafted.

I accept the offer from the official Opposition to vote for our amendment on the grounds that, if it were carried, the only plausible way out of the situation—and I think that it is the only plausible way anyway—would be to adopt the independent counsel system. It is on that issue that most of the debate has concentrated. Having heard the hon. and learned Member for Medway (Mr. Marshall-Andrews), the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the hon. Member for Wolverhampton, South-West (Rob Marris) and other contributors, I believe that there is an overwhelming case for using that institution. The Lord Chancellor said that it was no guarantee that cases would be able to proceed that would otherwise not be able to proceed, because in the Davis case, at a late stage, there was an attempt to use special counsel. However, that was not the perfect use of an institution that did not have any statutory basis, and there was a lack of clarity about how it would be used. That makes it all the more important that it should be given a statutory basis.

Nevertheless, the argument is not that independent counsel would guarantee better results, but that it would simply make it less likely that cases that would not otherwise go ahead would disappear from the list. All the arguments effectively come down to time. There is not enough time to get this right, but if we do not do anything, it is quite possible that we will make the situation worse. The Lord Chancellor’s argument came down to saying that doing nothing can have no consequences, whereas doing something always has bad consequences. With that in mind, we should vote on amendment No. 35.

Question put, That the amendment be made:—

I beg to move amendment No. 3, in page 2, line 31, leave out ‘satisfied’ and insert ‘sure’.

With this it will be convenient to discuss the following amendments:

No. 4, page 2, line 31, leave out ‘C’ and insert ‘D’.

No. 21, page 2, line 34, leave out ‘safety of the witness or another person’ and insert

‘witness or another person from death or serious injury.’.

No. 5, page 2, line 35, leave out from ‘property’ to end of line 38.

No. 6, page 2, line 39, leave out subsection (4) and insert—

‘(4) Condition B is that the making of the witness anonymity order would not deprive the defendant of a fair trial.’.

No. 7, page 3, line 1, after ‘not’, insert

‘, and could not reasonably be expected to,’.

No. 8, page 3, line 1, at end insert—

‘(5A) Condition D is that there is no reason to believe that the witness has a motive or a tendency to be dishonest, having regard to the circumstances of the case and (where applicable) to the witness’s previous convictions or the witness’s relationship with the accused or any associates of the accused, and to any other consideration that may be relevant to that issue that the court may think appropriate.’.

No. 22, page 3, line 3, leave out from ‘must’ to end of line 4 and insert

‘assess the reasonableness of any fear alleged on the part of the witness or another person.’.

No. 23, page 3, line 5, after second ‘or’, insert ‘serious’.

No. 17, page 3, line 5, leave out from ‘injury’ to the end of line 6.

No. 32, page 3, line 6, leave out ‘property’ and insert

‘his property, or the property of a close relative of his’.

No. 31, page 3, line 6, at end insert ‘or serious financial loss’.

No. 9, in clause 5, page 3, line 9, leave out ‘C’ and insert ‘D’.

No. 11, page 3, line 22, leave out paragraph (d).

I rise to speak—I hope fairly briefly—to amendments Nos. 3 to 8, which stand in my name. I shall take the Committee of the whole House through them swiftly. Amendment No. 3 would substitute “sure” for “satisfied”. May I explain why? It seems right that the standard of proof required to satisfy the conditions should be the criminal standard—beyond reasonable doubt. I know that the phrase “is satisfied” is often used in legislation, but standing by itself it does not have a clear meaning. The word “sure” does have a clear meaning. I tried to make precisely the same substitution in the Counter-Terrorism Bill, but that was met by the argument that the word “sure” is not readily recognised in statutory language and that the courts gave a fairly clear interpretation to the word “satisfied”. However, that argument is not correct.

The Committee will remember a Court of Appeal decision in the case of Davies—that name is indeed a coincidence—this year. It was reported in The Times of 19 May. The Court of Appeal was required to adjudicate on whether a court, when setting a sentence in a homicide case, had to be satisfied beyond reasonable doubt or on the balance of probabilities about the existence of aggravating factors. In other words, notwithstanding the fact that the word “satisfied” is well known to the courts, the Court of Appeal was asked to define what it meant in that context. Given that, we should use language that makes our meaning clear, and our meaning should be that the court is satisfied beyond reasonable doubt—hence the word “sure” in this context.

To bolster his argument as he sums up to the jury, the judge tells them that they should come to a conclusion about which they are sure; the judge does not say that they should be satisfied beyond reasonable doubt any more. That reinforces the right hon. and learned Gentleman’s argument.

I believe in using language that says exactly what is meant. The danger is that the word “satisfied” will result in further litigation down the track when the Court of Appeal is asked to determine by what standard the court must be satisfied—hence the suggestion that we should use “sure”, which at least makes the point absolutely plain.

Amendment No. 5 would delete clause 4(3)(b). It goes a little further than I should have done; I am perfectly willing to accept that in respect of undercover officers and so on there is a case for protecting the identity of the witnesses. However, the language used in paragraph (b) goes far beyond that and erects the concept of the public interest, damage to the state and this and that to such a point that I can see the Crown seeking to shelter a whole lot of nefarious activities behind the rubric of the paragraph.

rose—

I shall finish my point, then of course I shall give way.

I would like to confine anonymity protection to a narrow class; I certainly accept that undercover officers come into that class. Perhaps another class of individuals should be included, but the burden rests on the Solicitor-General to make the case.

Will my right hon. and learned Friend give way?

I shall give way first to the hon. Member for Oxford, West and Abingdon (Dr. Harris).

The right hon. and learned Gentleman will be supported in his argument that the paragraph should be narrower, rather than deleted, by what happened in the Joint Committee on Human Rights this afternoon. I asked Sir Ken Macdonald, the Director of Public Prosecutions, whether he thought that the provision that the right hon. and learned Gentleman seeks to delete in the public interest covered more than, as the organisation Justice has put it, undercover agents—police and other agents—and their ability to go about their work. He did not think that it covered more than that; at least, he did not offer any other factor. In fairness to him, I should say that he did not argue that the provision was too broad. However, I put it to the Committee that it is too broad if it can be narrowed and if, according to the DPP, nothing else needs to be captured.

I am grateful to the hon. Gentleman. If there is a requirement other than to protect undercover agents and officers, it is for the Crown to establish the case. At the moment, the provision is widely drawn and the Crown has not made the case.

I propose to my right hon. and learned Friend an example from my own experience. In a case involving the alleged export of a nuclear firing system to Iraq in the early 1990s, the identity of a very senior nuclear weapons designer was deemed by the Old Bailey judge to be an issue to be withheld from the defence. In some circumstances, it may be in the public interest for the identity of somebody of great seniority and significance to the state, such as the designer of a nuclear weapon for this country, to be concealed, although that person’s expertise is required in a criminal case.

My hon. and learned Friend makes a perfectly sound point and a good case. However, the language of subsection (3) goes further:

“in order to prevent real harm to the public interest”.

Then we come to the identity of particular people or otherwise. I am merely saying that the language of the subsection goes very wide. We should be slow to give immunities of that kind. It is for the Crown to prove its case, so let it do so. The burden rests on the Solicitor-General to satisfy the criterion that there is a good cause.

Amendment No. 6 would amend condition B to reinforce the principle that the trial must be fair. The Government’s drafting is slightly flaccid in that it merely requires the court to be satisfied that the order is

“consistent with…a fair trial”.

I want to elevate the bar so that the court must be satisfied that the defendant is not deprived of a fair trial. This is modelled on the New Zealand legislation and goes higher than the Government’s drafting in protecting the defendant, which is what I want to do.

Amendment No. 7 asserts that the witness’s refusal to testify could be reasonable. I can imagine a lot of circumstances where a witness does not want to testify: because, as the hon. Member for Hendon (Mr. Dismore) suggested, things have been put into their mind by police officers; because they do not want to be cross-examined by difficult counsel such as my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox); or because the situation is altogether difficult. We should legislate so that, first, the refusal to testify must be evidence-based; and, secondly, it must be reasonable when tested by the judge or by the special advocate. That is what I want to be done and what the amendment is designed to achieve.

Amendment No. 8 would insert a new condition, namely condition D. It would create another overarching condition—in effect, that there is no reason to doubt the credibility of the witness. The Bill as drafted provides that issues of credibility are relevant considerations in the making of the order, but that such an issue is not an overarching condition, as are conditions A, B and C. The issue of credibility should be an overarching condition, and that is the intention of condition D as contained in the amendment. I commend the amendments to the Committee.

I support, to some extent, the arguments of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), but I will concentrate mainly on the amendments tabled by Conservative Front Benchers.

Amendment No. 21 essentially seeks to redesign subsection (3), which deals with condition A. It would delete the words,

“safety of the witness or another person”,

and replace them with,

“witness or another person from death or serious injury.”

Our argument is that witness anonymity orders should be made only in cases where there is a genuine and substantial risk of very serious injury, and even death. The expression in the Bill—

“to protect the safety of the witness or another person”—

is too vague to allow the court to hold to that as a condition. No doubt the safety of the witness is encompassed within the risk of death or serious injury, but we suggest that the condition needs to be much higher.

From “property”.

Thank you very much. I am most grateful to the Solicitor-General. [Interruption.] I have argued that already. I am sorry; I am not being very sensible this evening.

I shall get right back on stream. I would now like to talk about amendment No. 22. This amendment does apply to clause 4(6), and it deals with the difference between an objective and a subjective test. We believe that the point at issue is whether the person who alleges anxiety should have a trump card that destroys the ability of others to resist the application.

Our courts are for all and are, and must be seen to be, impartial. The criminal law must do justice and ensure fairness. Of course opinions vary and the facts will be different in each case, but one of the bedrocks of our justice system is that our courts and judges must be dispassionate, disinterested and consistent in the application of the law to the facts of a given case. Objectivity is perhaps the one word that describes those imperatives. Any change to the law, judge made or by statute, must ensure that the application of the change is based objectively, rather than subjectively to suit one party or another.

When we discuss a statute that proposes parliamentary licence for the giving of anonymous evidence in criminal trials, we must be rigorous in ensuring that it is the judge—the arbitrator and guarantor of fairness under the law—who decides and assesses where the balance should lie between, on the one hand, the public and private interest that the defendant should be tried in open court on evidence that is properly and lawfully introduced into the trial and, on the other hand, both the competing private interest of a vital witness that he should be protected from death or serious injury when he performs his public duty to give evidence of a crime, and the public interest that serious criminals should be brought to justice.

That is not an easy task, but it is an essential one. Article 6 of the convention reminds us of our solemn duty to ensure fairness in our trials. Convenience for the police, the prosecuting authorities and the administration of the courts are not the passwords to justice. Therefore, we say that where a witness says that he believes that he will suffer harm if he gives evidence in open court without the protection of a witness anonymity order, his word alone is not enough. The court must decide. The witness cannot produce the ace of personal apprehension to trump the right of the citizen to a fair trial. The Bill as drafted tips the balance too much in favour of anonymity. That needs to be redressed.

The hon. and learned Gentleman’s amendment No. 22 proposes inserting the words

“assess the reasonableness of any fear alleged on the part of the witness or another person”

in clause 4(6). Is that because he does not believe that the “reasonable fear” that the clause as drafted refers to is an objective test—it seems to me that it is indeed an objective test for the court to decide—or because of the lack of a requirement for the court to assess it? I would have thought that in order to have regard to such a fear, one would have to assess it. I am therefore not convinced that his amendment adds anything, particularly if the Minister clarifies my understanding when she responds to the debate. Have I missed something in his argument?

I cannot tell what the hon. Gentleman may or may not have missed, but, as far as I am concerned, when the Bill says that the court

“must have regard (in particular) to any reasonable fear on the part of the witness”,

it is simply providing a non-exclusive list of things that the court must have regard to. The reasonable fear on the part of the witness might be a reasonable fear in the mind of that witness, but it is not necessarily a reasonable fear in the mind of an objective assessor. Someone can have a fear that is subjectively reasonable to the person with that apprehension, whereas a third party, coming from the outside and assessing it, may find that it is an honest fear, but not a reasonable one.

The hon. and learned Gentleman has hit the question. My reading of the provision in other statute is that the test is objective. The fear is not deemed reasonable because a witness is nervous; rather, there is an objective test of whether the fear of that witness under the circumstances is, in the view of the court, reasonable. However, if the hon. and learned Gentleman, who is more learned than me by definition, feels that that is not clear enough—I think that he is saying that in his amendment—perhaps the Minister can provide some clarity in her response and make it clear that the test is an objective test, exactly as he wishes it to be.

It may be—we will find out. If the hon. and medical Gentleman—sometimes curative, but not always—understands what I am saying, which he might not, he may accept from me that clause 4(6) as drafted at least leaves an ambiguity over the test to which the court must have regard.

I tend to agree with the hon. Member for Oxford, West and Abingdon (Dr. Harris) that the test is objective. I do not think the word “reasonable” can be interpreted in any other way. However, that is combined with the requirement for the court to ensure that the anonymity measures are necessary. It is a pretty absolute requirement for the court to be sure that what it is doing is necessary in the light of the objective “reasonable” underlying fear. That can be contrasted with the completely different language in some of the provisions on the self-defence beliefs, which is extremely subjective.

I disagree with the hon. Gentleman’s final point. I think he is confused.

Surely the problem is that condition C requires the judge to be satisfied that the witness would not testify if the order were not made. The question for the judge to decide is what standards he should apply if a witness will not testify, and whether it is reasonable for him not to testify. Under subsection (6), regard must be had to any fear on his part that he will suffer death or injury.

I commend amendment No. 7, tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). If the wording of clause 4(5)(b) were replaced by the words “the witness could not reasonably be expected to testify if the order were not made,” we could import the objective element without needing to amend subsection (6). Others may have more sophisticated thoughts on the subject.

All those suggestions are helpful. Whereas I have sown confusion, it may well be that my hon. and learned Friend has shone some light. But in so far as I have shone confusion—

Shone confusion?

Shone confusion sounds like an Irish female pop singer, does it not? I must confess that my knowledge of Irish pop singers is very limited.

The confusion in my mind, which other Members may not share, concerns what the Government intend, at least by the words that they have used. Their intention may well be that the court should examine condition C objectively, but the impression I gain from subsection (6) is that although the witness may present what to him is a reasonable fear that he will suffer death or injury, that fear will turn out to be unreasonable when it is objectively considered.

It may well be that I have confused myself, and it may well be that I am leading myself up a blind alley, but it is significant that I may have done so. I confess that I am no longer a full-time practitioner at the Bar, still less at the criminal Bar, but it seems to me that the language used by the Government in subsection (6) is confusing enough to warrant clarification, which may be provided either by the Minister who responds to the debate or by the use of alternative wording in the Bill. In any event, I think it essential that we reinforce the need for objectivity. If the hon. Member for Oxford, West and Abingdon (Dr. Harris), the hon. Member for Hendon (Mr. Dismore) and my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) believe either that the subsection does not need to be adjusted or that it can be adjusted by means of amendment No. 7, we shall all go away happy, but the main point is that we need to be assured that it is the objective test with which we are concerned.

I hope that that deals with amendment No. 22. I want the court to have a positive duty to assess the reasonableness of any fear alleged on the part of the witness or another person, and I submit that that is not currently clear in the Bill.

Amendment No. 23 proposes the addition of the word “serious” before the word “injury”. That is self-explanatory, and it ties in with my other concerns in relation to clause 4(3). I have already dealt with—albeit accidentally—my amendment No. 31, which addresses the issue of serious financial loss. The amendments of my right hon. and learned Friend the Member for Sleaford and North Hykeham are more than worthy of the Government’s consideration, and I hope that the Minister will deal with them and with my amendments, and perhaps take up the issues that might, or might not, be raised by the hon. Member for Oxford, West and Abingdon.

I must say that I found the remarks by the hon. and learned Member for Harborough (Mr. Garnier) at the end of his contribution rather confusing, and I think he probably did, too, when he was reading them out.

I rise to speak primarily to my amendment No. 32, but before doing so I would like to address a couple of points that have been made. The hon. and learned Gentleman has got himself into a bit of a mess by trying to see the three conditions of A, B and C as disjunctive rather than conjunctive. If we put them together—I am thinking in particular of condition A, which cross-refers to clause 4(6)—things become a lot clearer. The provisions in subsection (6) are pretty objective in looking at the level of “reasonable fear”, and the word “necessary” makes it clear that the court will apply a high standard in relation to condition A both of itself and in terms of the cross-reference to subsection (6).

I disagree with the hon. and learned Gentleman about adding the word “serious” in front of “injury”, because how do we define “serious”? Are we talking about a grievous bodily harm level, because I suspect most people would be put off from giving evidence as a result of a rather lesser degree of violence? Common assault might, perhaps, create sufficient fear. We have to be realistic about the level of fear involved, and I certainly think it would be rather less than that of the grievous bodily harm level of injury. By putting all the elements of clause 4 together, the way it is phrased leaves it ultimately to the judge to use his good sense to make the decision on the evidence put before him.

My main concern is the question of property. I take issue with the hon. and learned Gentleman on trying to extend the risk to property to include financial loss, because that could be compensated by giving money back. I do not think people can realistically be seen to be fearful of financial loss in these circumstances.

I do see the force of the argument in relation to property, however, but I raise the issue primarily because of what was said about the New Zealand provisions, which the Bill mirrors in relation to the phrasing of the issue as it relates to property. I believe the New Zealand system to be preferable to ours and, unlike here, in New Zealand the advice on compatibility given by the Attorney-General is published. He raised the question of whether the risk of harm to property would be acceptable in international jurisprudence. He particularly drew attention to the fact that physical harm to the person was clearly included, but he went on to say:

“Having regard to the approach of the European Court to these matters generally, if faced with an anonymity order made on the basis of risk of damage to property only, it is highly likely that the court would find that the accused’s convention rights were breached.”

He said in conclusion that whereas it would be an exceptional case for the risk of property damage without any accompanying risk to persons to be the basis of a witness anonymity order,

“in most cases there will need to be some kind of risk to persons for the damage to property to be serious.”

If that analysis is right, it calls into question the way in which the Bill is currently phrased. We put this to the Director of Public Prosecutions earlier today, and he disagreed with that analysis. He gave an example, saying, “Well, what happens if I’m told by an associate of the suspect that my house will be fire-bombed?” That may or may not raise the risk of injury to person as well, but it certainly would be a very real threat in relation to property, and I think we ought to be able to take that into account.

I do not think that that is the best argument. As the hon. Gentleman knows, in a case such as the Attorney-General of New Zealand had in mind, there would be some risk to persons for the damage to property to be serious, and fire-bombing a residence clearly contains that risk. So the question—this also relates to my amendment—is whether damage to property alone, without risk to person, is sufficient. I do not know what that might be, but perhaps the hon. Gentleman can come up with an example.

I was about to make that point. I think that I just said that if a house is fire-bombed, there would clearly be a risk to person anyway. However, let us suppose that there was a threat to torch a car. My car is not worth a great deal, but some people’s are. Suppose that the car in question is worth £5,000 or £10,000. It is not just a question of buying a new car—there is all the inconvenience that goes with it, and the fear that that threat creates. There is an argument for saying that threat to property ought to be included in the Bill. My amendment, however, attempts to limit that a little by specifying that it should be the property of the witness or a close relative. That might help to square the circle to a degree by reducing the very broad nature of the test currently before us.

I hope that my hon. Friend the Minister will address this issue when she responds and bear in mind the points that the New Zealand Attorney-General made in his published advice. It is a pity that advice on compatibility is not published here, because that would make our job an awful lot easier.

I am pleased to have the opportunity to address the Committee. I had an amendment in the previous group, but given that it was subsumed entirely in amendments pre-tabled through a feat of nimbleness, by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), of which I am not capable in reaching the Public Bill Office—

It is called a fax machine.

As a result of that, I was able to fulfil another engagement and leave it to him to put the case, as I know he did.

On this group of amendments, the hon. Member for Hendon (Mr. Dismore) made the preamble that I wished to make about the comparison with New Zealand and serious damage to property. There is a published opinion on the Strasbourg jurisprudence, which we did not get on this issue from the otherwise pretty comprehensive opinion of Lord Mance in the Davis case. However, the key question, which is probably best dealt with by my amendment No. 17—it would delete subsection (6)(b), rather than only addressing clause 4(3)(a)—is whether the phrase “serious damage to property” is appropriate. Serious damage to property might not necessarily lead to serious financial loss.

The hon. Gentleman made an interesting point about serious financial loss being recompensed. I would have thought that insurance applies in most cases of damage to property, such as torching his car or, indeed, a warehouse, which is clearly not a residence and therefore would not be caught by the provision on risk of injury or death to person. I urge the Minister and the House of Lords to consider modifying the property provision. It could say, “Where there would be serious damage to property, leading to serious financial loss”, which implies, I think, financial loss not otherwise compensated for through insurance. If the phrase is left as “serious financial loss”, it could apply to uncompensated time spent in court by witnesses who are no longer able to work because they have been summoned to give evidence.

Will the hon. Gentleman give me an example—I am looking at clause 4(6)(b)—of “serious damage to property” that does not involve a serious financial loss? Is he thinking of the destruction of a derelict building, or does he have something else in mind?

I am not an expert in this area, and I am warned by my hon. Friend the Member for Cambridge (David Howarth) that tort law has a lot to say on it. However, I would have thought that if something is insured and one knows that it is, that is not going to lead to serious financial loss, although it might lead to other losses and inconvenience. I do not know if the question of whether the financial loss is serious is dealt with after an insurance claim, or otherwise.

But surely public policy cannot allow a person who wishes to intimidate a witness out of giving evidence to get away with it on the basis that an insurance company would take the hit? We must accept loss wherever it is, and the fact that the owner of the property is covered by insurance is not a relevant consideration.

I think that it is, because we have to draw the line on threats somewhere. Public policy perhaps should not distinguish between something that is listed in the Bill and something that is not. For example, financial loss, intimidation and serious damage to property are not listed, but unless there is an exhaustive list, public policy will have to draw a line somewhere. The overall impact on the person—the coercive nature of what is happening—is the critical factor, and that should be borne in mind. I have made my point about my view and I started from the position of the hon. and learned Member for Harborough on subsection (6) being objective. We await the Minister’s view on that.

The issue of real harm to the public interest was introduced by the right hon. and learned Member for Sleaford and North Hykeham, and the question was whether subsection (3)(b) is too broad. My understanding is that it is intended to cover the ability of undercover agents to be safe and to continue their work. It may also have something to do with national security issues. I have been unable to identify other matters that the provision is designed to cover. The understanding of the issue of real harm to the public interest might be broader—as the other words are in parentheses—in the sense that it is used with respect to public interest immunity. It is much broader than national security and the ability of undercover agents to do their work.

I am supported in that view by representations from Justice, which reminded us of the citing by Lord Mance in his opinion of the recommendations of the Committee of Ministers of the Council of Europe. It stated:

“Anonymity should only be granted when the competent judicial authority, after hearing the parties, finds that…the life or freedom of the person involved is seriously threatened or, in the case of an undercover agent, his/her potential to work in the future is seriously threatened.”

That is an alternative wording.

Liberty is also concerned that the provision is rather wide. The Bar Council, in its representations on this point, felt that the public interest category should be narrow and limited to serious concerns such as threats to national security or prejudice to a serious criminal investigation. It suggests that the wording should reflect a real risk of serious harm to the public interest, such as a threat to national security or prejudice to an ongoing investigation into serious crime.

I put it to the Minister that a combination of those wordings might be reassuring to policy makers who fear that the provision might be read rather too widely. The more I examined clause 4—I started from a sceptical position—the more I was pleased with how strict it is, with the exceptions that I have mentioned, especially backed by the Government’s amendment to clause 5.

I shall be interested to hear from the Minister about the points that I have raised.

I have not tabled any of the amendments in this group, but I want to make a couple of comments on some of them. I commend the lead amendment, amendment No. 3. The word “satisfied” is simply half a test—one can be satisfied on the balance of probability, on the preponderance of evidence or on some other basis. The question for the Government is whether they intend to leave the second half of the phrase in the hands of the courts, which is one possible approach, or whether they intend something else. That phrase needs to be cleaned up.

The first two lines of clause 4(6) state:

“In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard…to any reasonable fear”,

whereas subsection (3)(a) states that the measures to be specified in the order are to be necessary

“in order to protect the safety of the witness or another person or to prevent any serious damage to property”.

That is manifestly an objective test. How, in applying an objective test, is it necessary to protect that person’s safety? Does one apply what may be the subjective test of fear, even if it is reasonable? The measure is either necessary for safety or it is not. The reasonable fear seems irrelevant.

That is a better point, because courts are being asked to judge fear as a way of helping to judge safety. I do not want to take on the role of the Minister, but one answer would be that fear is not the only factor. There are both objective and subjective elements to safety, and fear is a more subjective part than the clause as a whole covers. I remember spending 20 years of teaching law telling my students not to use the words “objective” and “subjective” until they were at least third-years, because they are inherently confusing.

May I line myself up for an undergraduate bashing from the hon. Gentleman? I do not want to destroy his argument, but to follow on from what my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) said about the words “any reasonable fear”, is there not a difficulty in the use of the word “reasonable”? It imports subjectivity. Would it not be safer for us to use a term such as “honestly held fear” or “honestly apprehended fear”, which would be plainly and honestly subjective? The court could then subjectively assess the honesty or reasonableness of that fear.

I think that it will work by the court taking the witness’s set of fears and eliminating the unreasonable ones. It will then take the reasonable fears that are left and assess them against what clause 4(3) says about safety. I think that that is what it means, but the Government might have to examine this debate and decide whether it needs some adjustment.

I only did two years of academic law study—I did not get to the third year. Does the hon. Gentleman see the test in clause 4(6) about

“reasonable fear on the part of the witness”

as a subjective or an objective test, or an unholy mixture of the two? If, as I suspect, it is the last of those, how does that mixture play out? I confess that I did not quite understand what he was saying about taking some reasonableness, looking at what we have left over, doubling the number we first thought of and all that.

Fear is inherently an internal state. Some fears can be judged by others to be reasonable and some to be unreasonable, and the use of the word “subjective” is part of the problem, which is why it is probably better avoided. Once a court has decided what a witness’s internal state is and how reasonable it is, the question is how it uses that information to judge safety. However, safety itself can plausibly have objective and subjective elements, because it is both an internal feeling and an external state. Some further drafting work on the clause might well be needed.

I do not want to comment on amendment No. 31, except to say that those of us who have spent many years trying to work out the difference between property damage, financial loss and pure economic loss would not want the term “financial loss” to be used in statute without further definition.

I turn finally to amendment No. 17, tabled by my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris), which would remove the reference to property damage. Usually, the threat of serious property damage such as arson, or even the threat to the hon. Member for Hendon’s car, would carry some threat of personal injury, but not necessarily. As my hon. Friend said, the question is what cases are envisaged in which it would not carry that threat, which would mean that something is added by the reference in the clause to “serious damage to property”. It would have to be something like a threat to burn down a lock-up shop at night when the witness would not be there.

What are we trying to get at here? Is that enough of a reasonable fear to justify making an anonymity order? The clause lacks a test to decide whether the threat is serious enough. Whether injury is threatened to property or the person is not the most important matter.

Ultimately, condition C is the test to determine the seriousness of a threat. It asks whether

“it is necessary to make the order”

to ensure that “the witness should testify”. The importance of the evidence is then material, and the next question—whether the witness will turn up—is addressed by my amendment No. 7.

That is a good point. The question is whether the degree of coercion is great enough to justify the order, and that is what condition C in particular is trying to capture. The right hon. and learned Gentleman is right that his amendment on that point would change the nature of that clause in an interesting and perhaps useful way.

Finally, amendment No. 32, in the name of the hon. Member for Hendon, deals with the property of the witness or a close relative. I do not think that the property condition in its unamended form can be retained but, if it were retained, the amendment would be an improvement.

We have had an extensive debate on this group of amendments. At times it has been confusing, at others illuminating, but all the amendments would change, in one way or another, the conditions for making the witness anonymity order set out in clause 4.

As the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) explained in his commendably succinct remarks, amendment No. 3 would require the court to be “sure”, rather than “satisfied”, that the conditions for making a witness anonymity order were met. In many areas of criminal legislation, a court is required to be satisfied that the applicable conditions are met before an order is made. The right hon. and learned Gentleman said that the word “satisfied” did not have a clear meaning, and he tried to anticipate the arguments that I might use, on the basis that he had heard them before in other contexts. He thought that I might say that the word did have a clear meaning, and so he produced the case that he had spotted in a bid to trump that argument.

Fortunately, I was not going to focus on that approach, so in a sense the right hon. and learned Gentleman did his research for nothing. However, people have mulled over the various conditions in clause 4 during the debate, and it is important to remember the statutory framework that we are setting out. In the past, judges have granted orders on the basis of what they thought was their power in common law. They used their common sense to assess the facts of the case in front of them, but it is inherently difficult to legislate for the common sense of judges. That is one reason why there has been no statutory provision in respect of order making in the past, but an examination of the overarching framework might help us to deal with some of the points made in the amendments.

All three conditions for a witness anonymity order must be satisfied: they are conjunctive rather than disjunctive, as my hon. Friend the Member for Hendon (Mr. Dismore) noted. An order must be necessary. It must—this is tremendously important—have regard to all the circumstances consistent with the defendant getting a fair trial. Finally, it must be in the interests of justice. The right hon. and learned Member for Sleaford and North Hykeham was right to say, in response to the hon. Member for Cambridge (David Howarth), that in the interests of justice it is important that a witness with something to say about a case must be able to testify. The whole edifice of the Government’s proposals is designed to deal with the fear that might prevent him from doing so.

We had some exchanges about which fears are subjective and which objective. A witness who tells the prosecutor or the police that he is worried about having his house burned down is obviously expressing a subjective fear. He goes along and says, “I’m worried. I’m fearful because of where I live, and because of the person who I know is behind all this.” That is obviously subjective. The points made by the hon. Member for Oxford, West and Abingdon (Dr. Harris), by my hon. Friend the Member for Hendon (Mr. Dismore) and, in the early part of his remarks, by the hon. Member for Cambridge are correct.

We do not need to get too het up about which bit is subjective and which objective. The point here is that the judge will be empowered to make a common-sense judgment in any particular set of circumstances about whether the fear of a witness is reasonable. No sensible judge would make an anonymity order if a witness had a completely irrational fear and there was absolutely no chance of any danger to safety or risk of damage to property. He would have to be convinced that there was at least something to it. This is what we are trying to capture generally.

The judge has to say, “To what standard am I satisfied?”

He is making a common-sense assessment on the basis of the statutory framework that we are offering to him in lieu of the now no longer existing common-law good sense that he was applying before Davis. He is having a general look at the facts of the case and asking, “Does this seem reasonable? Am I satisfied?” I do not think that judges would find that unusual or alien to the way in which they do their job.

We need a clearer answer from the Minister in response to my right hon. and learned Friend’s question. Judges frequently say out loud, “I am satisfied to the criminal standard of proof,” about this, that or the other during an interlocutory application. I know that the Solicitor-General is nodding her head—

She is shaking it.

Moving her head. I am reasonably sure—I am satisfied—that the Solicitor-General was moving her head. Often the question will be asked during the course of argument before a judge, “What is the burden and what is the standard of proof?” I appreciate that many cases are not necessarily decided on the standard or burden of proof, but we are making criminal justice legislation here and it is incumbent on us not to rush this through simply because it is getting late. It is important that we lay out clearly to the courts how we expect them to apply the legislation.

The judge is not making a finding of fact that is germane to the outcome of the trial. He is deciding whether he ought to grant a witness anonymity order in the circumstances and the case before him. We are not seeking to turn this into some kind of mini-trial of everything before the judge gets on with the trial. He will use his common sense.

I have heard what hon. Members have said about some of this. I want to make some points on some of the amendments, but I am obviously not going to be able to satisfy the hon. and learned Member for Harborough (Mr. Garnier) about the tightness with which the provision is drawn. I understand if the hon. and learned Gentleman is not satisfied, but I hope that he will allow me to go on and deal with some of the other amendments.

Amendment No. 21, which is one of those tabled by the hon. and learned Member for Harborough, would change the first condition for granting a witness anonymity order from one based on the

“safety of the witness or another person”

to one based on the risk of “death or serious injury”. The main impact of the change of the wording that he has proposed would be to require the court to decide if the risk of injury was serious enough to justify granting an order. Safety is a relatively broad concept—enough to cover any risk of harm to the witness—but the test with which the hon. and learned Gentleman proposes to replace the current wording appears to be inappropriate. It is undesirable for witnesses to be exposed to any risk of harm. However, whether the harm to which a witness is exposed in any particular set of circumstances in a particular case is sufficient to justify the making of an order has to be a matter for the court when it addresses the three conditions set out in the Bill and the framework that we seek to create for that purpose.

Amendment No. 5 would remove the second limb of the necessity test provided for under condition A—the prevention of real harm to the public interest, which was raised by a number of Members in their contributions to this part of the debate. I need to make it absolutely clear that the purpose of the wording is to capture circumstances in which the intelligence agencies, or, for example, the police or the Serious Organised Crime Agency, are doing their job. Many Members accepted that that was what the wording was getting at, but suggested that it was too wide. If it helps Members, I can say that those are the only circumstances intended; I am aware of no other circumstances, beyond national security and the undercover work of the police and relevant agencies, that this part of the Bill is meant to cover. I hope that helps in any Pepper v. Hart situation that we might run across. There is no other intention in that part of the Bill. The Strasbourg jurisprudence specifically mentioned the reuse of undercover agents as one of the purposes that might justify the grant of anonymity, so we are not outwith wider arrangements in other jurisdictions in that respect.

Amendment No. 6 would amend the fair trial test with the intention of ensuring—I think—that the defendant is not deprived of a fair trial. I think everybody would accept that that is overwhelmingly the most important purpose of the work we are doing in respect of the Bill, but we believe that the current wording already guarantees it. I know that the right hon. and learned Member for Sleaford and North Hykeham was not too keen on the wording of condition B, which he thought a bit bland. However, condition B has the merit, along with conditions A and C—all of which have to be met—of making it absolutely clear that for the anonymity order to be granted it has to be necessary in the interests of justice and consistent with the defendant receiving a fair trial. In addition, there are article 6 considerations. Although I realise that the right hon. and learned Gentleman is not too keen on the current wording, we believe that it does the job it is meant to do.

Amendment No. 7 would require the court to take into account before deciding whether it was necessary in the interests of justice to make an anonymity order not only the fact that a witness would not be prepared to testify without an order, but that they could not reasonably be expected to testify without an order. The additional reasonableness test is unnecessary because clause 5(2)(e) already requires the court to consider whether it is reasonably practicable to protect the witness’s identity by means other than a witness anonymity order.

On amendment No. 8, there was some debate about the witness’s credibility, which is currently a consideration that the judge should have in mind when deciding whether the three conditions are met before granting the order. The right hon. and learned Gentleman made it clear that the amendment would elevate that consideration to another condition, and move it up a tier in the framework. The amendment is unnecessary because it goes into the question of whether the defendant will have a fair trial, which is already secured by condition B for the making of an order as set out in clause 4(4). The high-level principles of the conditions—necessity, fairness of trial and the interests of justice—are for the court to apply, whereas the credibility of a witness is an aspect in assessing to what extent the trial is fair in the circumstances of the case before the judge who is making the decision. We think that it sits correctly among considerations, rather than being important enough to be a condition, although I understand from the right hon. and learned Gentleman’s remarks that he was trying to emphasise the importance of a fair trial. We do not disagree about the importance of a fair trial, but we think that the current framework achieves it.

Amendments Nos. 17, 22, 23, 31 and 32 would all amend clause 4(6), about which there has been a bit of debate. It sets out the matters to which the court is required to have regard in deciding whether the measures in the order are necessary for the purposes mentioned in subsection (3)(a)—in other words, to protect the safety of the witness or another person, or to prevent serious damage to property.