House of Lords
Monday, 13 July 2009.
Prayers—read by the Lord Bishop of Newcastle.
Death of a Member: Lord Kingsland
My Lords, I rise to pay tribute to Lord Kingsland. Members of this House, I know, will be shocked to learn of the death of Christopher Kingsland. The House will want to send condolences to his family and friends for their sudden loss, but this House has lost a great deal too. This House has lost one of its most warmly and widely regarded Members. Though the lawyers of this House may find it hard to believe, there are times when this House does not want to listen to lawyers—but not Christopher Kingsland. This House always wanted to listen to Christopher Kingsland, though from these Benches—as I can personally testify—it was not always a comfortable experience. His forensic skills in debating and analysing legislation meant that taking a Bill through this House with Christopher as your opposition was one of the toughest jobs that a Minister has to do. The House always wanted to listen to Christopher Kingsland because Members knew what they would get: clever, thorough, fair-minded and searching analysis. Skilled and rigorous in opposition, Lord Kingsland was positive and constructive in opposition too. As we all know, in this House reaching agreement is often as essential as winning a vote and Christopher Kingsland was as expert and successful a negotiator as he was a debater, and legislation was very often much improved by him being so adept at both.
Lord Kingsland’s illustrious legal career saw him called to the Bar in 1972 and take Silk in 1988. His love of the law and his brilliant legal mind saw him appointed as a recorder and subsequently a deputy High Court judge, work he managed successfully to combine with his work in this House. Before he entered your Lordships’ House in 1994, Lord Kingsland served as a Member of the European Parliament, rising to become his party’s Chief Whip and leader of the Conservative group of MEPs. It was during this time in the European Parliament that I first met Christopher. I still recall the twinkle in his eye and the wonderful sense of humour which he would, in time, use to such great and painful effect against the government Front Bench in this House. I regard it as a great privilege to have sparred with him across the Dispatch Box, as I was doing only last Wednesday at what turned out to be his penultimate appearance in this House.
I am sure the whole House will mourn his death, salute his courage in fighting illness, and celebrate, value and remember his life. This House has lost a fine Member, a man who was a tribute to his party, this House, and the country he served in a range of ways. He leaves a very large gap on the Benches opposite and in this House as a whole. The House will miss him; his insight, his courtesy, his skills and his intelligence. We and his family and friends have lost a very great deal in losing Christopher Kingsland. He was a decent man, a fair man, a good man, and this House is a more diminished place today without him.
My Lords, I echo the sentiments of the Leader of the House. Lord Kingsland was one of the hardest-working Members of the Opposition, balancing his life at the Bar with that of being the shadow legal affairs Minister, which allowed him to be involved in almost any aspect of legislation that he wanted. He used that option with an energy and drive shared by few others. In his 15 years in the Lords, he built up a formidable reputation for his razor-sharp intelligence and eloquence. The House has lost a hard-working servant of the nation, and we on these Benches have lost a good, loyal friend who was always happy to lend a hand, even before he was asked.
He had a tremendous sense of the value of our nation’s ancestral constitution, which he understood deeply, and he was greatly saddened by the destruction of the office of Lord Chancellor—not for himself, as there are few as devoid of ego as was Lord Kingsland, but for the loss of a unique institution that he believed worked so well.
Lord Kingsland made his home in Shropshire, where he concentrated his political career by representing the people of that county in the European Parliament from 1979 to 1994. Europe’s loss was our gain, and once he had re-established his career at the Bar he joined the Opposition in 1997 and led for us on most of the legal and constitutional Bills that came forward from that time to this. Indeed, so great were his enthusiasm and dedication that when I spoke to him last week to try to limit the amount of time that he was spending in the Chamber, he insisted that he was well, enjoying himself and could not bear to sit on the sidelines. It was this tenacious spirit that ensured that the Government did not get their way when they repeatedly tried to remove the right to trial by jury.
Of course, politics was not his only love, but it was his underlying passion. As the noble Lord, Lord West, will affirm, he was a keen sailor in Cowes, and so he could not help but offer a word or two of advice on the Marine and Coastal Access Bill.
In a world of celebrity and intrusiveness, Lord Kingsland was a deeply private individual—not because he had anything to hide; on the contrary, he had much to be proud of, but he never wanted people to make a fuss. He would have been embarrassed by the tributes this House makes today. A couple of years ago, he was quietly married to Carolyn, and to her we send our deepest condolences for a too-brief period of their lives spent together.
It is not too much to say that his loss will be keenly felt across the political boundaries that divide this House. I held Lord Kingsland in the highest esteem and with the greatest affection. His was a life of public duty and public service, and it will be a long time before we see one like him again.
My Lords, I know that our conventions mean that many people who want to pay tribute to Lord Kingsland today will be prevented from so doing. Occasionally, when one gets that phone call that one of our colleagues has died, the feeling is one of sadness, but it has usually been about a life well lived and long lived. I do not think that I have felt a feeling such as that which I felt this morning since I heard of the death of Lord Williams of Mostyn. It was the same feeling that Lord Kingsland had so much more to offer and was someone who stretched across this House to all Benches in terms of friendship and respect for the qualities that he brought to this House.
On these Benches, my noble friends Lord Thomas of Gresford, Lord Goodhart and Lord Lester have expressed to me today their personal sadness. Lord Kingsland was, indeed, a lawyers’ lawyer, but, as has already been hinted, he was also a parliamentarians’ parliamentarian. The last time that I debated with him was during the debate on the Privy Council. I can see him hunched over that Box—well briefed, articulate, devoid of malice or ideology, but razor sharp. It is indeed a loss to those Benches and to any prospective office that he may have held, but, much more, it is the loss of a very decent man and a very good friend to all of us.
My Lords, this is a terrible shock for us all, but I think immediately of Lord Kingsland’s wife and stepchildren and of his many devoted friends and colleagues in your Lordships’ House and far beyond. I offer them my sympathies on behalf of the Cross Benches.
In my short time here, I was lucky enough to have had the benefit of his wise counsel and to witness time and again his fierce adherence to principle, whether on matters of legal precedence, free speech or parliamentary procedure. He seemed to always have time to listen and to be a very good listener, and he was prepared to change his mind if the facts warranted it.
It must be a comfort to all that he had returned to his beloved Shropshire for his final hours. I, with many others, was at a dinner which he and his wife also attended on Saturday evening in Oxfordshire. He was his usual modest, sociable and urbane self. Although, once again, the shock is very great, I and his friends and family may be comforted to know that his last night was a happy one, spent among those who deeply respected him during his long and very distinguished career in Europe, in the Territorial Army, at the Bar and in this House.
My Lords, from these Benches we add our tribute to and give thanks for the life of Lord Kingsland and the very considerable contribution that he made to the public life of this country. He was a dedicated public servant and I, for one, marvelled at his mastery of legal affairs, his skill in debate and the clarity of his mind, especially, as far as I could see, as he never ever used written notes. Meticulous attention to detail and careful and thorough preparation were his hallmarks. He was never polemical and was genuinely warmly regarded on all sides of this House. We remember his integrity, his graciousness, his humility and his lightness of touch, as befits a skilled and passionate sailor. He will be much missed by all of us, and from these Benches we send our prayers and deepest sympathy to Lady Kingsland and her family.
My Lords, before the UK can ratify the convention, its prohibitions must be implemented in UK law. A cluster munitions prohibitions Bill is included in the draft legislative programme for the fifth Session for consultation. Nevertheless, the Government have begun to implement the convention’s key provisions. All UK cluster munitions have been placed in a destruction programme and cluster munitions are now subject to the most stringent trade controls.
My Lords, I thank the Minister for his reply and declare an interest as the patron of the Port Talbot branch of Soroptimist International. International soroptimism has championed the cluster munitions campaign for many years. I warmly congratulate the Government on their decision—announced just after I had tabled my Question, although I am sure for better reasons than that—to introduce the necessary legislation to ratify the convention banning these terrible weapons, whose victims are almost all civilians, especially innocent children. Can the Minister assure the House that this essential Bill will be introduced immediately after the Queen’s Speech? In view of the broad support for the convention from noble Lords of all parties and none—all of us, in other words—will he consider starting the Bill here, thereby ensuring its swift route to completion?
My Lords, let me say to the noble Baroness that I have the best source beside me, the Leader of the House, who shares her desire to see the Bill introduced. Whether it is introduced in this House or another place first is a matter for parliamentary managers to agree, but I assure the noble Baroness that, even while we await the enactment of the Bill, we are, as I said, moving to make sure that cluster munitions are eliminated from our arsenal and that the other provisions of the Bill are essentially enacted by administrative arrangements.
My Lords, the last US Administration were one of the obstacles to negotiating a cluster munitions convention and the question of US troops operating with UK troops under such a convention was very complicated. Can the Minister assure us that the new US Administration have sufficiently changed policy on this to make life much easier for British troops on combined operations?
My Lords, we hope so. To be fair, the new Administration have had a lot on their plate, so we have not yet been able to have detailed discussions on this issue. It is important to add that a number of key countries in this industry are not signatories. It is not just the US; China, India, Pakistan and Brazil are also not signatories. Even beyond the interoperability issues regarding the US, there is a lot of work to be done to turn this into a universal convention.
My Lords, I do not disagree with the principle of banning these dreadful weapons but, in view of the large number of nations that will not be adherents to the treaty, is the Minister satisfied that that will not place United Kingdom forces at a disadvantage? Have the Chiefs of Staff been consulted?
My Lords, the Chiefs of Staff strongly support this. This weapon has done untold damage to civilians and, in doing so, risks being in breach of international humanitarian law. It is exactly the kind of weapon that, by killing innocent civilians, means that you lose the hearts and minds side of the war. I can say with great confidence that they support this. We have never used these weapons in Afghanistan. The last time that we used them was in Iraq. Even without this convention, these weapons have outlived their usefulness.
My Lords, will the Minister accept my personal congratulations on the role that he played in bringing about the British decision to sign the Dublin convention, which was considerable and not entirely straightforward? How are the Government getting on persuading countries that did not sign the Dublin convention when it was open for signature last December to join it? Will he confirm that speed of our clearing the road to ratification will be a crucial element in being part of the governance of this convention when it comes into force?
My Lords, on the latter point, I absolutely agree. The convention comes into force six months after the first 30 countries have ratified. It is enormously important that we are part of that first 30. Twelve have ratified so far, so getting this Bill through is critical. On the first point, I have to acknowledge that there is a gulf between the countries that were part of the Oslo process and those that still believe that these weapons are important. We are struggling to find a way to bridge that so that we can universalise the ban, but it is a long road ahead.
My Lords, will the Minister accept that we on this side will give full support to enabling the legislation to be brought forward for the UK to ratify this convention? He said that, of the signatories to the convention, which comprise about 98 in all, only 12 have now ratified; I do not want to be smart but I think that the latest figure is 13. The rest need to ratify and, on top of that, we need to bring China and America completely on board. Without that, we will not get the safety and security for our own Armed Forces—an issue rightly raised by my noble friend Lord Trefgarne—which they all deserve and which will bring an end to this horrific weapon in our time.
My Lords, the noble Lord is completely correct. We have to work to persuade other countries to join this. As he is aware, we have looked at other routes. A protocol was proposed to the conventional weapons treaty but unfortunately there does not seem to be a mechanism for bridging the argument between those who feel that that would dilute the convention’s provisions and those who want no constraints on the use of these weapons. There is a long diplomatic road ahead.
My Lords, I add my congratulations on what the Government are doing and what my noble friend has said, but could he help us on one point? When the legislation comes forward, will we have any difficulties with the definition of cluster munitions, because in the past the question has been raised by some whether certain munitions, especially so-called smart munitions, fall outside the definition and therefore outside the ban?
My Lords, one of the conclusions—one of the last-minute features, if you like—of the deal that brought this together was indeed to draw up a definition that no longer differentiated between so-called smart and, I suppose, non-smart weapons. The nature of the warhead and its indiscriminate number of capsules has been the key condition. Therefore, that issue is behind us.
My Lords, first, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of Trooper Christopher Whiteside of the Light Dragoons, Rifleman Daniel Hume of 4th Battalion, the Rifles, Private John Brackpool, serving as a Rifleman with the Prince of Wales's Company, 1st Battalion, Welsh Guards, Corporal Lee Scott of the 2nd Royal Tank Regiment, and Corporal Jonathan Horne, Rifleman William Aldridge, Rifleman James Backhouse, Rifleman Joseph Murphy and Rifleman Daniel Simpson, all from the 2nd Battalion, the Rifles. They were killed on operations in Afghanistan during this past week. I am sure that our thoughts are with not only those families but all those involved in current operations.
Turning to the Question, our troops are in Afghanistan alongside those of more than 40 countries under United Nations Resolution 1833, reaffirmed in September 2008. Our aim is to stop Afghanistan becoming a safe haven for those who plan terrorism that can threaten security in the United Kingdom. We are there to help Afghanistan become an effective state, with a view to transferring responsibility to the Afghan security forces over time, with international forces moving to a training and supporting role.
My Lords, on behalf of these Benches, I pay tribute to all those young soldiers. The death of so many young men shows the extent of the sacrifice that military families are making on our behalf. Ministers say, rightly, that it is vital that we succeed in Afghanistan, yet, despite promises that our troops will be supplied with everything they need, why do they still fail to provide sufficient helicopters in a country with the most dangerous roads on earth? Far too many troops are being moved by road and being killed by IEDs. Can the Minister tell the House why the Government turned down the request by commanders for 2,000 British reinforcements for Helmand?
My Lords, I am sure that the whole House agrees with the sentiments expressed by the noble Lord. Our thoughts are with military families.
I hear what the noble Lord says about helicopters. We have to be clear that helicopters are not a panacea. They are not a simplistic solution to the problems that our forces are facing with IEDs. We have increased helicopter numbers by 60 per cent since November 2006. Helicopter flying hours are up by 84 per cent. We cannot take and hold ground with helicopters; we have to use whatever means of transport or whatever tactics are appropriate at any particular time. In respect of troop numbers, the Prime Minister announced earlier this year the increase that we are making up to 9,000, particularly to provide security for the elections. It is important that other countries also do their part and increase their numbers.
My Lords, the numbers that we have, not just of soldiers but of members of all the forces, are kept under constant review. Were we to change our tasking, we would have to look at that. I am not saying that we do not need any more helicopters; I am saying that helicopters are not the simple answer to countering the problem of IEDs. I mentioned the increase both in the number of helicopters and in flying hours, but we are doing many other things such as deploying RAF Merlins that have been in Iraq and providing more powerful engines to Army Lynxes so that they can operate in that atmosphere.
My Lords, my noble friend referred to the fact that operations in Afghanistan are under the aegis of the United Nations. Will she consider reminding the BBC and ITN in MoD press releases that that is the case and that 40 other nations are fighting alongside us in Afghanistan under the United Nations’ remit?
My Lords, that point is very well made. Sometimes this is presented as being only the United Kingdom and the United States. Obviously we are trying to convince more of the partners there to provide more armed forces to do their share there. Burden-sharing has improved slightly, but there is still a long way to go and we still press the matter. This is an international commitment, because the threat from terrorism is international and could strike anywhere.
My Lords, may I express the deep regrets and condolences of those on these Benches to the families and friends of those who were so tragically killed last week? There is no doubt that overambitious aims and under-resourcing have played a part in the position that we are currently in in Afghanistan, but is not another cause also this: that we have learnt through bitter experience that unless the international community can act to a single plan in a unified manner and speak with a single voice, we cannot succeed in these matters? Will the Minister explain why, after eight years and so many deaths, this is not possible to achieve in Afghanistan? Is not at least one reason for the sacrifice of so many young lives without success being delivered that the leaders of the international community have completely failed to get their act together under a unified policy in Afghanistan?
My Lords, the mission has changed over time. When troops first went into Afghanistan, they were operating more in the north to get to Kabul to stabilise the situation there, but the real threat from terrorism has always been al-Qaeda, which was centred around the Kandahar area. It is true that not everyone has always realised that threat, and many nations operate with caveats of the kind that neither we nor those who are working with us in the south have. It is difficult in an international situation to get proper co-ordination, but we are working well with our allies in the south and we are happy with co-ordination there.
My Lords, let us hear from the right reverend Prelate.
My Lords, we on these Benches too send our condolences and our prayers to those who have lost their lives. Perhaps we in the House might also remember those in the Chaplaincy Service, for whose services there will be considerable demand as a result. Is not one of the difficulties that we face in a situation such as this that the presence of large numbers of particularly American and other western troops in Afghanistan can add strength to the radical Islamist argument that this is about western imperial ambitions? Will the Minister accept that, unless we are absolutely clear about the purposes of this operation and the boundaries of what we are seeking to achieve in a very different and distant culture, hopes for success will be undermined?
My Lords, I am very happy to pay tribute to the Chaplaincy Service. In the present circumstances, it will be strained, but it has worked well with those who have been bereaved and its contribution is very welcome and much appreciated. On the radicalism of people in that country, it is important that we try to work with the people in Afghanistan: hence the comprehensive approach and the great deal of care that is taken in developing our tactics and holding territory and working with people there. However, I remind the House that the terrorism that most shook people on 9/11 happened long before anyone went into Afghanistan or, indeed, Iraq.
British Overseas Territories: International Negotiations
To ask Her Majesty’s Government whether negotiations between British Overseas Territories and the Government of the United States for the acceptance of detainees formerly in United States custody fall within their delegated authority for conducting international negotiations.
My Lords, negotiations between British Overseas Territories and the Government of the United States for the acceptance of detainees formerly in United States custody does not fall within the delegated authority for conducting international negotiations which has been given to any overseas territory. The external affairs of a territory remain part of the special responsibilities of the governor under each territory’s constitution.
My Lords, I thank the Minister for that Answer and I thank the Foreign Office for its useful briefing on general entrustments and individual entrustments, and the technical terms of which I had not been previously aware. Is it not extraordinary that the Government of Bermuda negotiated directly with the United States Government that senior members of the White House staff would accompany the Uighurs from Washington to Bermuda without informing the British Government? Do the Government think that it is possible to sustain the current relationship with our overseas territories in the western Atlantic and the Caribbean, given the extent of their dependence on the United States for American money—legal and illegal—in those territories and the extent to which the American Administration now expect to influence what goes on in those territories, and I have not even mentioned Grenada yet?
My Lords, it is extraordinary. Clearly, there was a real breakdown here. The United States has assured us that it understood that the Prime Minister of Bermuda had the right to negotiate in this case because he asserted such to them. It has led us to announce a review of the operation of this entrustment, but it is clear that there was a breakdown.
My Lords, does my noble friend agree that there is a case for a wider review of the position of our overseas territories, given that the Turks and Caicos Islands are subject to direct rule from the United Kingdom because of events there? Given the problems in relation to the use of overseas territories as tax havens, as well as the remarkable issue raised by the noble Lord, Lord Wallace, is it not about time that overall, comprehensive consideration was given to the role of the overseas territories, their constitution and their future?
My Lords, I certainly think that the overseas territories, which have probably lived in the shadows of British foreign policy for a while, are for a number of reasons becoming more central, most of which have been mentioned in the previous two interventions. Tax havens and the impact on the economies of a number of these territories as a result of removing tax privileges, the broader impact of the economic crisis combined with the criminal issues with which some have been grappling because of their location and now this issue have put them front and centre again. It is in understanding what we do and do not delegate to them, and ensuring that they understand it, that the solution lies. I am not sure that a wider review is necessary for that common sense to prevail.
My Lords, they did. I suppose that we had hoped that they had been resolved then and that we had an understanding from future Administrations, particularly one as typically sympathetic as the Obama Administration. But it shows that even in this situation really unfortunate slips can occur.
My Lords, according to United Nations figures there are more than 10 million refugees, more than 14 million internally displaced people and 6.5 million so-called stateless people. The Government provide substantial funding to help prevent and respond to forced population movements caused by conflicts and climate change. We also press other Governments to respect and promote the welfare, protection and right to return of refugees and displaced persons.
My Lords, will the Minister remind us how many Palestinians have become refugees since 1948 and how many still want a right of return to their homes? In view of the latest World Bank report on Israel’s consumption and control of water in the Middle East, what can this Government do to ensure clean water supplies for the refugees and displaced people in the West Bank and, in particular, in Gaza, where they are now suffering from water-borne disease?
My Lords, from memory, the refugee figure in 1948 was approximately 750,000, and I think that the refugee population in Israel and the countries around it is currently 4.7 million. On the water issue, the noble Baroness referred to the World Bank report. The issue of water management in the Occupied Palestinian Territories is a continuing concern to us. As the World Bank assessment rightly points out, there are a number of obstacles to improving water sector management and development in the Occupied Territories. We continue to press the Government of Israel to ease restrictions on movement and access and seek to make progress on this at the earliest possible time.
My Lords, that is a $64,000 question. The conflict in Darfur has many sources though I am sure that climate change is aggravating a situation which is fairly intolerable in the first place. I doubt that climate change is the major cause of the conflict but I am not an expert in that field. However, I do know that the Government are putting considerable funding into assisting internally displaced persons— £19 million core funding to UNHCR, £22 million to Pakistan, £12.5 million to Sri Lanka, £29 million to Gaza and £16 million to Iraq.
My Lords, does the Minister recall the wonderful support that Her Majesty’s forces gave to Sri Lanka and the Maldives at the time of the tsunami? As the biggest problem facing the 300,000 refugees today is the clearing of the mines laid by the Tamil Tigers, and as India has sent forces there, could not Her Majesty’s Government at least release a couple of teams to help with the de-mining and thereby assist the earlier re-housing of the refugees?
My Lords, does the Minister agree that with sea levels rising twice as fast as was predicted by the IPCC only three years ago and with Britain already planning for a rise in sea levels of one metre in its coastal defence planning, we could be looking at as many as 650 million people displaced from coastal areas and small island states by the end of the century? What are we doing at Copenhagen to steer the discussion in the direction of measures that will reduce energy consumption and population growth so as to confine atmospheric CO2 within the limit of 550 parts per million equivalent, the minimum that will allow us to survive as a world without enormous disasters?
My Lords, there are many forecasts of displaced persons and other climatic tragedies arising from climate change which underline the importance of getting an agreement at Copenhagen to stabilise CO2 and reduce emissions. However, forecasting seems to me to be less important than taking action now, as we are doing in this country. We are also providing additional funding. There is a £40 million input from the disaster reduction programme at DfID. We are putting money into the international Environmental Transformation Fund, the climate development fund in Africa and the southern African regional climate change fund. There is a whole host of such funds. As I know that your Lordships like short answers, I am happy to supply a list to the noble Lord. I am sure that I would bore the House if I were to read them all out now.
My Lords, my understanding of an economic migrant is someone who moves from one country to another to improve his or her lot as the other country offers opportunities of employment and income that can sustain the family better than the country that they were born into. We are not talking about that. We are talking about people who will lose their lives as rising tides take away islands. We are talking about Bangladesh possibly half-disappearing and at the glaciers of the Himalayas possibly melting by 2035, creating refugees. These people are not economic migrants; they are refugees.
My Lords, the Government do seek to publicise these issues; they seek to make people aware and to use the media to do so. I have to say that parts of our media are fixated on migration but not on the human tragedy behind it, just on the selfish political argument of making a case against all migrants. Migration has been very helpful to this country. In the view of the Government and, I am sure, of every Member of this House, migrants have a right to be treated fairly and not to be maligned as they are in some of our national newspapers, day in and day out.
My Lords, I think your Lordships have a part to play. Everyone I have met in this House has far more expertise than me in almost every subject, and they are also people of influence in their communities. If we all did a lot more, whether writing to newspapers or speaking in our local communities, to ensure that there is a more balanced view of the important role of migrants, we would be doing a great service. We all have a part to play when it comes to the silent majority out there or the not-so-silent majority in here.
Arrangement of Business
Business of the House
Motion on Standing Orders
That Standing Order 47 (No two stages of a Bill to be taken on one day) be dispensed with on Monday 20 July to allow the Consolidated Fund (Appropriation) (No. 2) Bill and the Finance Bill to be taken through their remaining stages that day.
My Lords, will the noble Baroness the Leader of the House give an undertaking that there will be an early response to the report of your Lordships’ Select Committee on the Constitution, published on 7 July, about fast-tracking legislation? Will she also give an undertaking regarding the report’s recommendation that, before seeking to suspend Standing Order 47 that no two stages of a Bill be taken on one day, Ministers should give this House the reasons why the standing order be dispensed with?
My Lords, I think that the noble Lord is probably referring to the next Motion, but I am happy to respond to the point that he makes. As he will know, it is up to the usual channels when a debate takes place, but I fully recognise the importance of the report from your Lordships’ Constitution Committee. It is in all our interests that it should be debated at the earliest opportunity.
I have taken on board the point about a Statement from Ministers if a Bill is to be fast-tracked. I need to consult with others, but I can certainly see the merit in a Minister coming forward to the House with a Statement in some shape or form—it may be a Written Statement; that is yet to be discussed—explaining why a piece of legislation needs to be fast-tracked.
Parliamentary Standards Bill
Order of Consideration Motion
Work and Families (Increase of the Maximum Amount) Order 2009
National Minimum Wage Regulations 1999 (Amendment) Regulations 2009
Companies Act 2006 (Consequential Amendments) (Uncertificated Securities) Order 2009
Companies Act 2006 (Consequential Amendments) (Taxes and National Insurance) Order 2009
Companies (Share Capital and Acquisition by Company of its Own Shares) Regulations 2009
Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009
Community Interest Company (Amendment) Regulations 2009
ACAS Code of Practice on Time Off for Trade Union Duties and Activities
Motions to Approve
That the draft orders, regulations and code of practice laid before the House on 4, 9, 17, and 24 June be approved. 16th, 17th, 18th, and 19th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 6 July.
Companies’ Remuneration Reports Bill [HL]
Bill passed and sent to the Commons.
Perpetuities and Accumulations Bill [HL]
My Lords, I was a Member of the Committee on the Perpetuities and Accumulations Bill. While I do not wish to oppose the Bill, I want to place on record our disappointment that the Government have not taken steps to consolidate the legislation in this important, if technical, area.
In brief, the perpetuities legislation sets limits on the period during which a person may set conditions applying to his or her estate. It applies to every will made in this country, so it is potentially very wide in its application. This Bill will raise the perpetuity period from 80 to 125 years, so it is long lasting. Indeed, it was suggested by one of our witnesses that the Bill committee should be asked to reassemble in 2135 to see whether the Bill had stood the test of time.
Perpetuities and accumulations legislation was last revised in 1964, a mere 45 years ago—the twinkling of an eye in these matters. We will now have three different sets of legislation applying to perpetuities and accumulations: the legislation applying pre-1964; the legislation applying between 1964 and 2009, or whenever this Act comes into force; and this legislation, applying hereafter. It is a great shame that the Government have not taken the chance to consolidate all this legislation into one statute.
It is inherently unsatisfactory to have legislation on important issues dotted about all over the place. I hope that the Minister will be able to give the House some reassurance that at least the Law Commission, whose Bill this very largely is, will be asked to bring forward a consolidated measure in the very near future.
My Lords, I should like to take a slightly different attitude to the Bill from that taken by the noble Lord, Lord Hodgson. I am very pleased that the Bill is about to go through your Lordships’ House. It is the first Bill that has adopted the new procedure originated some years ago by the noble Baroness, Lady Ashton of Upholland, when she was Leader of the House. The procedure will enable more technical Bills of this kind, which result from work done by the Law Commission, to get through. As I think most of us know, there has been great delay in getting totally uncontroversial Bills through your Lordships’ House because of the time that they take. I hope that this Bill is the precedent to a number of others where the same process will be adopted.
My Lords, it might be appropriate if I were to add one or two words about the procedure adopted, to echo what the noble Lord, Lord Goodhart, has just said. I know that Lord Kingsland would have wanted to put on the record the fact that he appreciated that this procedure was appropriate in respect of the Bill. It is an innovation; as the noble Lord, Lord Goodhart, said, it was introduced by the noble Baroness, Lady Ashton. In practice, the procedure has only recently been approved by the Procedure Committee of this House, albeit under certain conditions, one of which is that the whole House should at some stage have the opportunity to participate in debates on the Bill, as my noble friend Lord Hodgson has just done; the other condition is that, if at any stage a Bill proves to be controversial, there should be a way of ensuring that the procedure does not go ahead. It is perhaps a mark of the success of all those who took part in every stage of this Bill that it has generally received a warm welcome.
My Lords, I thank the noble Baroness, Lady Anelay, the opposition Chief Whip, for her remarks. She is absolutely right. This Bill has been under the new procedure and has worked extremely well, not least because of the expert chairmanship of the noble and learned Lord, Lord Lloyd of Berwick, when witnesses gave evidence at a Committee of this House over two or three sittings. The Committee also received written representations from very distinguished lawyers about this subject.
I am grateful to the noble Lord, Lord Hodgson, who has taken a keen interest in this Bill from Second Reading onwards, for not attempting to disrupt the proceedings of the Bill at this stage, if I may put it that way. I have heard his point and I take it on board. I shall certainly be in touch with the Law Commission as a consequence of what he has said today.
Coroners and Justice Bill
Committee (7th Day)
Clause 62 : Qualifying offences
183ZA: Clause 62, page 37, line 25, at end insert—
“( ) grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861 (c. 100) (shooting or attempting to shoot, or wounding, with intent to do grievous bodily harm, or resist apprehension)”
In moving the amendment, I shall also speak to Amendments 183ZB to 183ZD as well as Amendments 183AB and 183AC. It is with some trepidation that I rise to speak to these amendments, put down in my name and that of my late noble friend Lord Kingsland, who was to have spoken to them. He was also, as we have just been reminded, to have spoken on the Perpetuities and Accumulations Bill and tomorrow he was going to speak on the Parliamentary Standards Bill. Moreover, he was due to speak in a number of other debates on this Bill. I shall provide a very pale shadow of him in attempting to bring expertise to the Bill. Nevertheless, I shall try to do so.
Clause 62 introduces the concept of anonymity in investigations of criminal offences in which it is thought appropriate that those helping with the investigation should be provided with some form of anonymity for their own safety. Applications under Clause 62 can be made to the court to secure an investigation anonymity order. The first four amendments in this group, Amendments 183ZA to 183ZD, probe the limits of Clause 62, which establishes the qualifying offences that would attract anonymity if needed.
At the moment, the qualifying offences are limited to murder and manslaughter. If it is right to have investigation anonymity orders, it is right to extend their ambit beyond offences of murder and manslaughter. Gangs do not just kill people; they can also hurt them and inflict non-fatal injuries. Indeed, in the qualifying offences, even attempted murder is excluded. Is it right that anonymity orders can be granted only in cases where the worst possible outcome has been realised—that is, the death of the victim? What if the intention was to kill, but swift medical action or simple good luck saved the victim’s life, despite the evil efforts of the alleged perpetrator?
It seems clear that the Government are trying to restrict anonymity orders. In principle, that is the right approach, but they are restricting them to excessively limited circumstances. We could have suggested any number of additional offences, but, for the purposes of this debate, we propose to add GBH contrary to Section 18 of the Offences Against the Person Act. Amendment 183ZA is consequential to that. I stress that the amendments are simply probing in order to promote discussion, so that we can hear what the Government intend to do.
In Clause 62(4) it is open to the Secretary of State to amend the list of offences. Are we to presume that murder and manslaughter are to be the guinea pigs in the system, to which other offences will later be added as the system beds in? If that power is intended to be used, we prefer to debate the extension of anonymity in investigations in Parliament and not just leave it to the Secretary of State. I stress again that these are probing amendments, but we may need to return to this matter in more detail on Report. I expect the noble Lord, Lord Thomas, will also want to expand on the whole question of order-making by the Secretary of State in subsection (4) when he deals with his Amendment 183A in the next group, to which we have added our names.
The same comments apply to Amendment 183ZD, which would extend the very limited range of weapons involved. Subsection (3) deals with a person being shot with a firearm and/or being injured with a knife. That ignores damage that could be done with, for example, a baseball bat, a crowbar or any number of other weapons or objects that can be used as weapons. Again, one feels that artificial distinctions are being drawn, quite possibly because the Government are being deliberately cautious. We feel that we should be wary of caution in primary legislation that is followed by bold order-making powers as a method of legislating.
Amendments 183AB and 183AC would leave out the requirements that the alleged perpetrator is between the age of 11 and 30 and the requirements that the criminal group, of which he is likely to be a member, is mostly made up of people within that age range. Investigation anonymity orders would therefore apply to qualifying offences committed by members of criminal groups of any age. The Bill as it stands is targeting groups of children and young people with measures that would not be available in relation to criminal groups, including organised criminal networks dominated by older offenders.
From the age-related conditions in Clause 66, it is obvious that the Government have in mind the problem of teenage gangs who have been involved in a number of high-profile crimes. It seems to us illogical that an upper age limit should be placed on the conditions for applications for an investigation anonymity order. I choose the most obvious and most absurd hypothetical situation: if two brothers or friends commit similar or identical crimes, but the first is 29 and the other is 31, Clause 66 would allow an application to be made in the former case but not in the latter, even though there is no or very little difference in the crimes; there is no difference in the fear engendered in the witnesses or anyone who might be able to assist in the investigation. To create such a distinction, we would argue, is artificial. We appreciate the mischief of youth gang crimes that these clauses are trying to address, but the age limit will not further that effort and may produce unintended and unnecessary contortions in practice. I beg to move.
Since we are just entering into this area, perhaps it might be useful to draw from the Government some of the principles that they think are involved. It is my experience and certainly that of my noble friend Lord Carlile—and no doubt that of the Minister—that in many cases already witnesses are referred to by letters A, B, C or D and investigations have been carried out where the anonymity of witnesses is preserved. Indeed, in all the cases that we have dealt with where anonymity has been sought and where witnesses have given evidence behind screens—just thinking on the spot, I can go back to 1993 for that—the witnesses are not identified for obvious reasons.
What is the purpose behind this extension of the witness anonymity legislation to the investigation process? It may be a good thing that what has happened as a matter of practice in the past is now to be subject to statutory regulation, in the way that these investigation orders are to be put forward. However, if that is the case, it seems extraordinary that the Government should limit it, as though it were dealing specifically with gangs or only with murder or one other offence, with the Secretary of State’s ability to extend the boundaries of cases in which this type of order can be made, as we shall see in the next group of amendments.
Are the Government simply seeking to put into a statutory framework that which has already existed for years? If so, why is it restricted to just two offences, with the Secretary of State’s power to extend it, and to gangs? It seems that the necessity for this applies to all sorts of people who are not within the age range of 11 to 30. I should like some explanation from the Minister of the thinking behind these provisions as we start this part of the Bill.
I am happy to give some explanation because the shape of the clause is necessary. We are creating a new crime in Clause 62. The noble Lord, Lord Henley, characterised us as creating this crime with caution; that is fair. In the next group, we will seek to persuade the Committee that an order-making power for its extension is appropriate.
Clause 62 creates, with other clauses in this chapter, a new tool in the battle against witness intimidation. Collectively, the clause underlines our absolute determination to get to grips with gang and gun crime. The new tool is the investigation anonymity order. Its purpose is to encourage witnesses in fear of reprisals to come forward at an early stage of an investigation, safe in the knowledge that their identity will be kept hidden. Of course, there are already a number of constraints on an authority’s ability to disclose sensitive information about witnesses, such as data protection legislation and common-law confidentiality duties. However, these are not strong enough to address the severe consequences for certain witnesses if their assistance to the police is exposed.
What sets the new order apart from these existing arrangements is a new criminal offence of breaching the order. The offence is intended to strengthen the climate of secrecy surrounding investigations where witness intimidation may be an issue. It will provide a persuasive reminder that at no time must information that might reveal the witness’s identity be disclosed outside the small circle of people who need to know about it. We hope that this prohibition, backed up by criminal sanctions, will give witnesses more confidence to come forward.
Amendments 183ZA to 183ZD seek to extend the offences in respect of which the new investigation anonymity order is available to cover grievous bodily harm with intent and cases involving death or injury caused by any kind of weapon. The impact of these changes would be to allow investigation anonymity orders to be used in a much wider range of cases, removing the Bill’s focus on gun and knife homicides.
I need hardly remind the Committee of the particular problems of witness intimidation in gang cases and especially those involving homicide. People are reluctant to come forward due to the understandable fear of violent retribution when they know they are providing information about people who have shown that they are willing to kill. While gang-related homicides remain relatively rare and confined to particular geographic areas, for those living in these areas, and for the relatives of victims, the effects are devastating. All violent crime is serious, but crimes that cause death are particularly so. In addition, the use of a lethal weapon like a gun or knife is likely to have a particularly serious impact on any witness. The new order is therefore targeted at the area where the need for action is most apparent—homicide cases involving guns and knives. We recognise that serious criminal activity by gangs is not restricted to homicide offences or to homicides caused by particular weapons; but these orders are a new device designed to target a specific problem, and the provisions of the Bill reflect this.
We believe that we have developed, in close consultation with ACPO, a useful tool to assist the police in their investigations; but it has yet to be tested in practice. That is why we have included an order-making power to enable the scheme to be applied in future, if appropriate, to cases involving other types of offence, committed in other ways. However, it will be prudent to consider this only after we have gained sufficient operational experience of the orders as they stand, so that we are in the best possible position to judge whether it is desirable or necessary to extend the list at a later date.
Amendments 183AB and 183AC would remove the age-related conditions for making an order. They are, broadly, that the suspected perpetrator was aged at least 11 but under 30 years old when the offence was committed, and that he or she belonged to a group the majority of whose members appeared to be aged at least 11 but under 30. These conditions are specifically included as part of our strategy to target gang-related gun and knife homicides. The gangs that we are targeting have certain known characteristics. They are relatively durable, predominantly street-based groups of young people who tend to identify themselves as a gang, with crime and violence integral to the group’s identity. While we do not deny that there are homicide cases where the perpetrator is over 29, our new order focuses on the probable age range of our target group. I trust that in the light of this explanation, the noble Lord will feel able to withdraw his amendment.
I am very grateful for that explanation. The difference from current practice is that to disclose the identity of a witness who has been granted anonymity will be a criminal offence. That seems very limited. There is nothing particularly wrong with adding a criminal sanction where there is a necessity for a person to remain anonymous. However, I can see all sorts of arguments arising about what a gang is and what criminal activities it has to get involved with to be a gang. This does not address a wide spectrum of cases. Certainly, gang violence is a scourge on society; but much more serious crime goes on that involves guns and knives. One thinks particularly of the field of drugs, where criminal gangs—not youth gangs—are much more organised to intimidate witnesses.
I have expressed a concern—in relation to witness anonymity orders as well as investigation orders—that the police should not go round offering anonymity to everybody. That got out of hand with witnesses, and there is a danger that it will get out of hand with investigations, with police going around telling people, “Do not worry, everything that you say will be in secret and your name will never be known”. When we are talking about murder and manslaughter, perhaps that is all right; but when we come to the next set of amendments, giving the Secretary of State the power to extend the system considerably, I will express further concern.
The noble Lord well makes the case for the narrowness of the order. We see this as very particular, early activity focused on an area of public concern; namely, gang crime. We hope that the measure will show its value in those circumstances but also its limitations. We shall extend it by order only when we have experience of how it is working.
If I have understood it correctly, the difference between what happens at the moment and what the Bill will provide for is that a criminal offence will be created under Clause 64(10) where someone discloses information in contravention of an anonymity order. That will apply to persons aged between 11 and 30 who have killed someone with either a firearm or a knife. As far as I can make out, the only argument that the Government are putting forward is that the measure is targeted on where it is most needed. Again, it seems to us a fairly arbitrary list. As regards being shot with a firearm or being injured with a knife, I am sure that gangs go out with all sorts of other weapons. I mentioned the proverbial baseball bat or crowbar. There is no reason why they could not be used. Put simply, it seems a very arbitrary distinction. I appreciate that the Secretary of State will give himself power to amend the measure—we shall discuss that when we reach the amendment in the name of the noble Lord, Lord Thomas—but, for the moment, I find it all rather peculiar. As I said, this is a probing amendment. We shall certainly want to come back to this matter on Report. However, at this stage probably the most convenient thing to do is to beg leave to withdraw the amendment.
Amendment 183ZA withdrawn.
Amendments 183ZB to 183ZD not moved.
My Lords, with the leave of the House, I will repeat a Statement made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
“First, Mr Speaker, I am sure the whole House will join me in sending our sincere condolences to the families and friends of the servicemen killed in Afghanistan in the past few days. They were: Rifleman Daniel Hume, 4th Battalion the Rifles; Private John Brackpool, Princess of Wales Royal Regiment, attached to 1st Battalion Welsh Guards; Riflemen Daniel Simpson, Joseph Murphy, James Backhouse and William Aldridge, and Corporal Jonathan Horne, all of 2nd Battalion the Rifles; and Corporal Lee Scott, 2nd Royal Tank Regiment. Three of them were just 18 years of age. It is at times of loss and sadness like these that we become ever more aware of the service and the sacrifice our Armed Forces make for our country. We owe them, and all those who have been killed or wounded in conflict, a huge debt of gratitude.
I want to make a Statement about the conclusions of the G8 meeting, the major economies forum on climate change, and our outreach meetings with African leaders; and I also want to thank Prime Minister Berlusconi for his organisation of the summit. But, first, I will focus on one of the most important challenges considered by the G8. This is a time of great challenge for our Armed Forces serving in Afghanistan. I have written to the chair of the Liaison Committee and placed a copy of the letter in the Libraries of both houses. We are also making time available on Thursday for a debate on Afghanistan. Perhaps I could take this opportunity to update the House on our current strategy and operations in Afghanistan, alongside 40 other nations, and our work with Pakistan.
Eight years ago, after September 11 2001, the case for intervention in Afghanistan was clear: to remove the Taliban regime and deprive al-Qaeda of a safe base for terrorist plots that were a threat to countries across the world. In 2009, the case for our continued involvement is the same—to prevent terrorist attacks here in Britain and across the world by dealing with the threat at its source: that crucible of terror on the border and mountain areas of Afghanistan and Pakistan. We must not forget that three-quarters of terror plots against the UK have roots in these areas. To succeed, we must succeed in both Afghanistan and Pakistan. Our strategy, which I set out to the House in April, reflects an integrated approach to both countries. If progress in one is to be sustainable, we must have progress in both. Progress requires three things: military action against terrorists and the insurgency; action to build the rule of law; and economic development to give local people a stake in their future.
In the last few months, the Pakistan Government have taken action, launching successful operations to drive out the Pakistani Taliban from the Swat and Buner regions. While the overwhelming majority of the Pakistani people fully support their Government’s action, operational success has come at a heavy humanitarian cost, with about 2 million displaced. Since we must ensure that that does not become a pretext for radicalisation, we are helping to lead in providing humanitarian assistance to Pakistan for those internally displaced people, combining our support for Pakistani military action with development assistance and help with reconstruction. In Afghanistan, international forces must take the lead in the front line, because the Afghan army and police are not yet able to maintain control alone. Again, our strategy is to combine coalition military action with civilian support for development and training the Afghan forces to take more control.
As the House knows, British troops are today involved in a major military operation, “Panther’s Claw”, fighting to bring security to areas in central Helmand until now beyond the reach of the Afghan Government. American forces are engaged in a similar co-ordinated operation in the south of the province. We are combining our military advance with civilian action. When we go to towns, villages and districts in Helmand, our forces are supported by Afghan army and police who, with our help, can hold the ground we have cleared and prevent the Taliban returning. Our civilian and military stabilisation experts work with Governor Mangal and his district governors to follow up with plans for new roads, clean water, other basic services, and, above all, justice—not the medieval brutality of the Taliban but the rule of law.
Earlier this year, we announced an increase in our numbers for the summer campaign and Afghan election period to around 9,000. Today, the figure on the ground is 9,100, as commanders rotate troops who have been fighting at peak intensity. It is right that those operating in the most arduous conditions are given respite when they need it. We keep our force levels under constant review depending on the operational requirement, and I have been reassured by commanders on the ground and at the top of the armed services that we have the manpower we need for the current operations.
I spoke with President Karzai yesterday. He expressed his condolences at the loss of precious lives in Helmand and I urged him to make available this summer, in addition to the 500 already involved in “Panther’s Claw”, more Afghan army personnel for operations in Helmand, so that our hard won gains can be fully consolidated. Our troops will continue to face a tough and dangerous battle and we will continue to give their safety the highest priority. Since 2006-07, we have increased funding to the Afghan operation—it is from the Treasury reserve and in addition to the defence budget—year on year from £700 million, to £1.5 billion, to £2.6 billion, to over £3 billion this year. That is over and above the defence budget of over £30 billion. The Chancellor has made clear that all urgent operational requirements will be met. In the last two years, we have increased helicopter numbers by 60 per cent and, because we have provided more crews and equipment, we have increased capability by 84 per cent. Since 2006, we have spent over £1 billion in urgent operational requirements for vehicles, including 280 Mastiffs, which offer world-leading protection against mines and roadside bombs. We will go further this year with the deployment of the new Ridgeback vehicles and of Merlin helicopters. We have just agreed a £100 million programme for the upgrading of Chinook helicopters.
As the Chief of the Defence Staff has said:
“The British Armed Forces are better equipped today than they have been at any time in 40 years”—
but we are ever not complacent. Our troops operate in a dynamic, ever changing environment. This Government and our military commanders recognise the need to adapt as conditions develop. Despite the tragic losses of the last two weeks, our commanders assure me that we are having a major impact on the Taliban in central Helmand and that morale is high. But our brave service men and women know that taking the fight to the enemy as they are now doing, to prevent terrorism on the streets of Britain, will inevitably put them in harm’s way.
The majority of recent casualties have been sustained, not in direct confrontation with the insurgency, but from improvised explosive devices—and from April we have begun to deploy additional units to tackle this growing threat.
As I made clear in April when I announced for the period of the Afghan elections the temporary uplift to around 9,000 through the summer, we will review that commitment after the Afghan elections, with the advice of our commanders and in discussion with our allies.
And at the same time we will continue to strengthen our approach in the ways set out in our April strategy: by better campaign continuity, further improvements in civilian-military integration, the closest possible co-ordination with American forces, and above all by a gradual shift towards training and mentoring of the Afghan army and police.
At the G8 meeting, all members agreed on the importance of the work now being done in Afghanistan, and I talked directly with President Obama about the challenges we face together.
It has been a very difficult summer, and it is not over yet. But if we are to deny Helmand to the Taliban in the long term, and if we are to defeat this vicious insurgency, and by so doing make Britain and the world a safer place, then we must persist with our operations in Afghanistan.
I am confident that we are right to be in Afghanistan, that we have the strongest possible plan, and we have the resources we need to do the job.
Let me turn to other matters raised at the G8 summit. The summit will be remembered as the climate change summit where we achieved real progress towards our goal of reaching a global climate change agreement at Copenhagen in December. First the G8 and then the Major Economies Forum concluded that average global temperatures must rise by no more than two degrees Celsius. This is an unprecedented and universal agreement, taking in developed and developing countries alike. It reflects a worldwide consensus unthinkable only a few years ago: that the scientific evidence for climate change is irrefutable and all of us now have a duty to act.
The summit also agreed,
“that developing countries will contribute to a global agreement by promptly undertaking actions whose projected effects on emissions represent a meaningful deviation from business as usual in the mid-term”;
“financial resources for mitigation and adaptation will need to be scaled up urgently and substantially and should involve mobilising resources to support developing countries”;
and that, in order to take this forward, G20 Finance Ministers should work on this further—considering the proposals the British Government have set out, including the Mexican green fund, and reporting back at the Pittsburgh summit in September.
For the first time, the G8 countries agreed the goal of reducing their emissions by 80 per cent or more by 2050, as part of a global goal of at least a 50 per cent reduction; and that,
“consistent with this ambitious long term objective, we will undertake robust aggregate and individual mid-term reductions”.
These are the most ambitious targets ever agreed by the G8.
This summit also sent out a second wake-up call on the world economy: strongly reaffirming the commitments made at the G20 in London to take,
“all necessary steps to support demand, restore growth and maintain financial stability”;
pledging “to implement swiftly” these measures, and calling on,
“all countries to act decisively to reinforce the international economic and financial system”.
In advance of the next G20 meeting in Pittsburgh in September, the summit laid the foundations for a new “strategy” to,
“lead the global economy to stable, balanced and sustainable growth”,
by acting both “individually and collectively”.
We agreed to,
“vigorously pursue the work necessary to ensure global financial stability”,
with more bank lending, reform and funding of the international financial institutions, and fast progress on regulation of financial services; and we agreed to do what it takes to make progress on growth, on commodity prices and on trade. And we reaffirmed our commitment to a green recovery by,
“investing in measures encouraging the creation of green jobs”.
On development, we agreed that the global recession is no excuse for abandoning our commitments to the poorest. So we reaffirmed our ambitious pledges to increase aid to Africa by $25 billion, and by $50 billion globally by 2010.
The G8 agreed a global consensus on maternal and child health “to accelerate progress” on those millennium development goals where historically we have made the least progress to date.
And, in meeting with leading African nations, President Obama, I and other leaders agreed decisive action on food security to avert a hunger emergency, with a $20 billion package of assistance over three years to support the agricultural sector in poorer countries. And I am pleased to say that the United Kingdom will contribute $1.8 billion to this initiative.
The G8 leaders issued a strong statement on non-proliferation. We welcomed President Obama’s proposal to hold a conference in America next March, before negotiations on the review of the non-proliferation treaty begin, and the UK Government will be setting out their proposals to prepare for this summit in 2010. We said that if Iran does not respond to the international community’s offer of a supervised civil nuclear programme, we will put together a tougher package of sanctions in the autumn. I welcome the solidarity shown by our G8 partners, who agreed that,
“embassies in Iran must be permitted to exercise their functions effectively … without arbitrary restrictions on, or intimidation of, their staff”,
“unjustified detentions of journalists and recent arrests of foreign nationals are unacceptable”.
On Burma, we reiterated our support to do all we can to secure the release of Aung San Suu Kyi.
The G8 also discussed the measures we must take together to address swine flu.
In the coming months there will be crucial summits: on the global economy in Pittsburgh; on climate change at Copenhagen; and on non-proliferation in New York. If these meetings are to secure lasting change, now is the time for global leadership—to build a new strategy to deliver global growth; to face up to our obligations on climate change and poverty; and to face down those who would threaten our global security.
This G8 has laid the foundations for such progress, and once again—within the G8—Britain has played a pivotal leadership role.
I commend this Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I join the noble Baroness and indeed the Prime Minister in paying tribute to the servicemen killed last week in Afghanistan. I also welcome the progress made at the G8 summit in several important areas. The key now is to turn these G8 statements into practice. Agreement and talk are all very well but action is now needed.
The events last week in Afghanistan must be at the forefront of our minds. All those who serve in that country should know that they have the support and admiration of all sides of the House. Is it not time, therefore, to be absolutely clear about what our mission should be? It must be tightly defined, it must be realistic, and the Government must never lose the opportunity of explaining why they think we are there and what our objectives really are. When does the noble Baroness expect this House to be able to have a further debate on the military consequences of British troops in Afghanistan? We must learn the lessons of Iraq and focus predominantly on security and safety, and we must ensure that our troops have the equipment that they vitally need and deserve.
On Iran, we strongly support the Prime Minister’s line on non-proliferation. We know of the threat. The Iranians should disarm. We know all too well of the deplorable post-election violence and the unacceptable treatment of our embassy staff in Tehran. Does the noble Baroness agree that we should take a lead in pushing for new EU sanctions that should be adopted if Iran does not enter into meaningful talks?
The summit focused on the fundamental quartet of trade, the economy, climate change and development. On international development, we on these Benches welcome agreement on the food security plan. This morning, my right honourable friend David Cameron reaffirmed our own commitment to provide 0.7 per cent of gross income to be spent on aid by 2013. It is important to have cross-party and cross-border agreement on an issue that deals with people’s lives and welfare. Will the noble Baroness encourage other countries to do more?
Let us also consider the G8 Gleneagles commitments. By 2010, development aid was meant to increase by $50 billion, with $25 billion of that going to Africa. The campaign organisation ONE estimated in May that by the end of this year countries will be on track to meet only around half of their commitments and that there will be an $11 billion shortfall in aid to Africa. What hope is there for the latest G8 summit if there can be no assurance that the Gleneagles commitments are going to be put into effect? Can the noble Baroness tell us what they are doing to honour this country’s commitments, always bearing in mind that aid must be effective and promote real wealth creation rather than stifle it?
On climate change, we welcome the fact that all the countries signed up to a 2 degrees target for the first time, along with the G8’s 80 per cent goal for industrialised countries. Can the noble Baroness confirm reports that the major economies forum—crucially emerging economies such as China and India—could not agree on the target and that it had to be removed from the final communiqué? If that is the case, what prospect is there of an agreement with these countries before the vital Copenhagen conference in December? Are there not now too many sticking points for us to anticipate a successful solution to that conference?
Perhaps most important was the discussion on the economy. On trade the communiqué says that there needs to be agreement in Doha by the end of 2010. The 2007 G8 spoke of an agreement by the end of 2007, and last year we were told that it would be by the end of 2008. The noble Lord, Lord Mandelson, assured this House last week that,
“the Prime Minister most certainly will be pressing very hard for good, strong, positive conclusions at the G8 in favour of progress in the Doha round”.—[Official Report, 8/7/09; col. 670.]
Is this the positive conclusion that he envisaged? Is it still the case that the only stumbling blocks are now America and India, and if so, can the noble Baroness say what discussions are taking place?
On the domestic front, the G8 discussed financial regulation, support for business from banks, and the need to get the deficit under control. What can Britain be proud of out of these three things? I sincerely hope that the Prime Minister was not offering advice to others. I do not think that any of us is blind to the failure of banks to lend money to those who need it most, but a long-term recovery also means lowering the deficit. Can the noble Baroness confirm the IMF’s finding that this country is heading for the largest budget deficit not only in the G8 but in the entire G20? Is it not the case that we are heading for a deficit of 14 per cent, which is by far the largest figure since the war?
The foundation of a lasting recovery from this vicious recession must be sound banking and sound public finance. Can the noble Baroness assure the House that the Government will acknowledge their mistakes, will finally stop blaming others and take away from the G8 summit the lesson that it is action that this country needs, and not more words?
My Lords, until the last few moments when we had the party-political broadcast, I was thinking, “What a measured statement from the noble Lord, Lord Strathclyde”.
I have been involved in these gatherings since the 1970s, so I have never been overenthusiastic that any one of them would be the decisive major breakthrough. On the other hand, I have not been as cynical as many about them. I think that it is good that our leaders get together and that there is peer pressure and general encouragement to keep moving forward. From what I can see, despite our media’s ever-willingness to make snide comments about Italy—often actively encouraged by the Prime Minister of Italy—it seems to have been a well organised and effective conference. However, the noble Lord, Lord Strathclyde, is right that in terms of tying in what is said at international conferences to what is done domestically, we are looking for action not words.
The House earlier associated itself movingly with the losses in Afghanistan and I have no doubt that Ministers responsible feel as strongly as anyone in the House. However, there must be doubts and real concern about whether there is a tie-up between the strategy being expounded and the supply of men and equipment to carry through that strategy. I echo the call from the noble Lord, Lord Strathclyde, that it is time that we had a full debate again in this House on Afghanistan, as I understand that they will in the Commons—not to score party points, but to talk through the issues and to look at whether the kind of commitment that this country is making can be justified and that we can carry the British people with us in it. I worry that if it continues to look like an effort purely by the United States and the United Kingdom, we will lose British public opinion.
I know that there is the emphasis in the Statement on 40 countries being committed to Afghanistan, but I wonder whether, as well as the talks with President Obama, the Prime Minister had talks with any other leaders, European leaders, to see whether we could get some more sharp-end commitment from our allies in what is a battle for the security of us all. On the matter of Pakistan, it is important that we understand that defeat in Afghanistan and further disintegration of order in Pakistan would have massive implications for security here in the United Kingdom. Again, that emphasises the seriousness of the issues at hand.
On non-proliferation, I take a slightly different emphasis from the noble Lord, Lord Strathclyde, although his words on Iran were valid. We now have in the White House a president who really does seem to be giving a high priority to nuclear disarmament. We have the Prime Minister's own group, on which my noble friend Lady Williams has been serving, looking at the British contribution to the review in 2010. This may be one of those opportunities to make progress in that area.
On the climate change summit, as the Prime Minister described it, it is again a question of whether the high words of summitry tie in with what is actually happening in domestic policy. There is still a worry that that is out of kilter. It is important that we get Brazil, China and India signed up on issues concerning the world economy. I welcome what was just reiterated by the noble Lord, Lord Strathclyde. I refer to the commitment of the Conservatives to development aid. Their commitment to the ring-fencing of development aid is a major step forward in our domestic politics. We now have an opportunity to play a really positive role in Africa and other parts of the world in development with a broad cross-party consensus.
I have to say that, like most other Prime Ministers I have come across, the Prime Minister now always looks more at ease, more comfortable, at international conferences than he does back home, but within the context of these conferences, it seems to have been a worthwhile weekend.
My Lords, I am very grateful to both noble Lords for their positive comments about the Statement and, most importantly, about the conclusions of the G8 summit. As the noble Lord, Lord Strathclyde, said, it is action and not words that we want, so we will have to wait to see what the summit delivers. Those at the summit pushed for an accountability report on overseas development assistance—there was one report before them, and they are expecting another in the autumn. There is much more focus these days on results and outcomes and not just on warm words.
I will deal with overseas development aid up front, because I am very proud of what we in the United Kingdom are doing to ensure that we meet the 0.7 per cent target. As both noble Lords have said, it is very good that all parties at the moment are committed to it. However, just last week, the Guardian canvassed the parliamentary candidates for the Conservative Party for the next election, and while I entirely recognise that Mr Cameron, his colleagues on the Front Bench and all colleagues in this House are very much in favour of ring-fencing development aid, I do not think that quite the same is true for the Conservative Party candidates.
Our mission in Afghanistan is absolutely clear. My noble friend Lady Taylor of Bolton explicitly said at Question Time today:
“Our aim is to stop Afghanistan becoming a safe haven for those who plan terrorism that can threaten security in the United Kingdom. We are there to help Afghanistan become an effective state, with a view to transferring responsibility to the Afghan security forces over time, with international forces moving to a training and supporting role”.
I think that is clear. The noble Lord is right that the Government have to explain their role, but it is in the interests of all of us in this House to explain better what we are doing in Afghanistan. I hear what noble Lords have said about the need for a debate. That will be taken up by the usual channels.
I welcome the support from Members on both Benches for what we are doing in relation to Iran. The current situation may well involve the need for future sanctions, but it is slightly too early to discuss that need at the moment. The E3+3 has made a clear offer, and we await the response to it. However, I hear what the noble Lord says. If sanctions are needed, we will argue for them, but for the moment we wait for the diplomatic way to take its course.
The noble Lord, Lord Strathclyde, asked about the prospect of an agreement on climate change because of the attitude of the MFA. I do not know what the discussions were in the MFA, but the agreement at the G8 was that there is an awfully long way to go before we hit 2050, and who knows what will happen at Copenhagen? The fact is that it was agreed that temperatures should not exceed an increase of 2 degrees Celsius, that developed nations should cut emissions by 80 per cent before 2050 and that the whole world should cut emissions by 50 per cent. That is the first time there has been any agreement on that, so we should celebrate that. However, I recognise that there is a long way to go before Copenhagen, which is where the agreements must be made. I do not know whether agreements will be made before that date.
The Doha round is extremely important. Indeed, it is the linchpin for ensuring the economic recovery of the world. There is the political will to conclude the Doha round in 2010. I know that we have heard that before, but with President Obama in the White House—even though the Americans have some difficulties—the opportunity must be grasped, and we look forward to further progress on this at Pittsburgh.
The noble Lord asked about financial regulations. I am very proud of what the Prime Minister has done to get this country and the world out of the economic crisis. I recognise that we are heading for a large deficit, as are many countries, but we have a clear strategy for getting out of it. We believe that we must invest and continue to invest to ensure that we get out of the economic crisis in the best way possible.
I hear the doubts expressed by the noble Lord, Lord McNally, about Afghanistan and our strategy there. I am glad he believes that it can be justified. However, I shall take this opportunity to say that we should all take more pride in what our troops are doing in Afghanistan and to express our sadness at the death of our troops. I have read the statements made by the families of the 18 year-olds who were killed over the weekend. Their families are very proud of these troops and we should keep reiterating our pride in them. This is not something just from the government Benches, I recognise that all Members of this House share that pride, but it is very important to restate it from time to time.
With President Obama giving nuclear disarmament a high priority, I agree that this is an opportunity for the world to grasp and I am glad that the noble Baroness, Lady Williams, is on the Prime Minister’s group.
As for the number of troops that we have in Afghanistan and the need for more, I am confident that my right honourable friend the Prime Minister had discussions with other EU leaders in and around the G8 summit to try to ensure that more troops come from other member states of the European Union and other countries. He continually discusses the issue with his counterparts because Afghanistan is not a matter just for the United Kingdom and the United States. It is a global problem and we need a global solution, and we need as many troops from as many countries there as possible. I am very grateful for the support of both noble Lords.
My Lords, from these Benches we would like to express the same pride in the troops who are fighting in Afghanistan and the same sorrow at the deeply regrettable loss of life. My colleagues and I have been pushed by several of those who talk to us to ask why we are in Afghanistan. If the answer is as was given during Question Time—that we are there because we are part of something mandated by the UN—it would be very helpful if that was said more clearly and more regularly. There is a widespread assumption that we are there simply because certain politicians thought that it was a good idea at one stage.
Noble Lords may have had their attention drawn to the new encyclical from Pope Benedict which has come out in just the past week; there was an article by the noble Lord, Lord Griffiths, about it in the Times this morning. In it the Pope draws attention to the urgent need globally for the UN to be more effective in what it was set up to do, which it has been prevented from doing by certain countries that are rather anxious about what might happen if it really did it properly. From these Benches—I speak for myself and, I suspect, for many of my colleagues as well—we would be delighted if the Government could say a bit more, a bit more frequently, about the way in which what we are doing coheres with a global international strategy, and that is not just something that we, with one or two friends, happen to have dreamt up.
We are grateful also for what we have heard about climate change. As noble Lords will know, several of my noble friends—the right reverend Prelates the Bishop of Liverpool, the Bishop of London and others—have spoken on that in recent days. On swine flu, the churches have done a lot of preparation, hoping neither to be alarmist nor retrograde in doing what we are doing but nevertheless making appropriate preparations should there be the kind of national crisis which some have suggested might come.
A couple of other things were said on which I think some clarity would help. It is widely said among various agencies that when the western countries give aid to the third world, quite a lot of it is earmarked for the purchase of goods from our own countries. If that is not so—I see the noble Baroness indicating that perhaps it is not—it might be helpful if we could know what proportion is so earmarked. In the past it has sometimes been the case that aid has been earmarked not least for the purchase of arms, about which many people feel a very bad conscience. It would help if that could be clarified.
Finally, I was expecting to hear something—I may have missed it because the Statement ran by us rather fast—about international debt relief, on which I know the Prime Minister has been very keen in time past. He has spoken movingly and effectively about it at previous summits but I do not think that I heard anything about it today. However, as I and others have said before in your Lordships’ House, when the banks and some other large corporations were in difficulty last year we remitted debts on an enormous scale so that people could regroup and get back on track. Many of us have urged for many years that that should be done for third world countries. It has been done with very good effect for some, such as Tanzania, but there are many others, such as the Philippines, where it remains to be done. It seems to me that it is time to do for the very poor what we already, at the drop of a hat, do for the very rich. Perhaps the noble Baroness will enlighten us on what, if anything, the Government propose to do in that regard.
My Lords, I am grateful to the right reverend Prelate for enabling me again to say that we are in Afghanistan because there is a mandate from the United Nations. I accept that we should be much more up front in saying, “We are there as a part of a coherent global force”.
The Pope and the new encyclical were absolutely right to talk about the urgent need for the UN to be more effective. The Government, with the support of the Benches opposite, have been doing all that we can over the past 12 years to ensure that the UN is made more effective. Trying to get so many nations to agree to changes is rather like trying to turn round a tanker; however, slowly but surely, some are being made. But there is a need for further reform and we shall continue to press for it.
On behalf of the Government, I am grateful for everything that the churches are doing to ensure that we are properly prepared to deal with swine flu.
I can confidently say that these days the vast majority of, if not all, aid is not linked to trade. That strong link was broken some years ago and I can categorically say that there is no link between aid and arms sales.
I do not think that the summit dealt with debt relief. I recall the big three-pronged agreement on debt relief, aid and trade at Gleneagles. As a global force, the world did a great deal about debt relief at Gleneagles but we have now moved on to other things. That is not to say that to some countries, such as the Philippines, it is not still important, but at the moment our focus is on aid and trade. However, we must not forget debt relief and I can assure the right reverend Prelate that I shall take that issue back to the department.
My Lords, I wish to ask a question deriving from what the Statement says about the funding of the Afghan operation. It states:
“The Chancellor has made clear that all urgent operational requirements will be met”.
Who will determine whether a requirement is urgent or insufficiently urgent? Will it be the commanders or the Chancellor?
My Lords, I shall read what my right honourable friend the Chancellor said. He stated:
“You can’t send troops into the front line and not be, not be prepared to see it through in terms of the equipment, the resources that they need … these are things … discussions that we have continually with the chiefs of staff, with the commanding officers, to make sure that these troops are properly supported … we owe it to them to do it”.
So there is a process. The Chancellor or the Treasury are in discussion with the commanders on the ground. There is a process and I am sure that the Chancellor will adhere to that process to ensure that the troops have the equipment as and when they need it.
My Lords, following on from the question of my noble and learned friend Lord Mayhew, the Prime Minister’s Statement made clear that the cost of the Afghan operation is £3 billion a year, which is funded from the contingency fund. Is it not the plan that this should be phased out over two years? Basically, that means that for all other defence expenditure we are facing a cut of £1.5 billion next year and £3 billion the year after.
My Lords, this is a very complex subject and I am not entirely sighted on it. I shall come back to the noble Lord, but it is not as simple as he would perhaps say. I do not mean to be rude to the noble Lord but these are very complex issues. I do not think that we will change the way in which the Afghan war is funded in the way he suggests. However, I shall come back to him in writing.
My Lords, further to what the noble Baroness says, it is not at all complicated. The issue is whether or not the funds that are needed to fight the Afghan campaign are to be provided out of the contingency reserve and are additional to the defence budget. Can she confirm that that will still be the case?
Yes, my Lords, as I understand it, that will be the case. The Afghan war is still funded out of the contingency reserve. I again quote the Chancellor when he said that we owe it to them. He said:
“You can't send troops in to the front line and not be prepared to see it through in terms of the equipment, the resources that they need”.
I realise that there is a distinction with regard to the contingency reserve. Everyone is shaking their head, but this is what I am assured by my noble friend behind me, and I will come back to noble Lords in writing.
My Lords, it is certainly a question of money but it is not just money—it is men and women on the ground. If I heard the Statement by the Prime Minister correctly, he said that he felt that there was sufficient in Afghanistan at the moment. We can say that there are 5,000 troops or forces out in Afghanistan, but that is a paper figure. When you take away those killed, wounded, injured and sick, and those moving to and fro, the number comes down. Also, when a unit or a platoon has been slightly decimated, with five or 10 people killed, we do not have an immediate reinforcement programme that I can see. In most past wars, we have always been able to reinforce a unit quickly, within 24 to 48 hours, and not doing so has a very detrimental effect on the unit. What is the immediate reinforcement programme or system for bolstering a unit that has lost quite heavily?
My Lords, it is important to say that morale on the ground is high, but I understand the points made by the noble Viscount. Our response to needs on the ground is swift, and that is demonstrated by the way in which we have just provided 700 extra troops to go to Afghanistan to cover the period of the elections. That is a temporary increase in our number of troops and it is not yet clear what will happen after the elections. That demonstrates that we are able to provide extra troops as and when necessary. I remind your Lordships that we always talk in terms of numbers of troops, but there are many other personnel in Afghanistan, working in development and governance.
My Lords, the Minister has been kind enough to repeat a Statement that the Prime Minister made that one cannot send troops, by inference, into war underresourced. Does she not mean, in view of what has happened, that one should not send troops into war underresourced?
No, my Lords, I absolutely mean that we must not and do not send our troops into war underresourced. Our troops, as the commanders on the ground will tell us, are very well resourced, better resourced now than they have been for many years.
My Lords, the Statement refers to the $1.6 billion which will be contributed towards the food security plan, a figure much to be welcomed. However, does the noble Baroness agree that in the long run, if these intractable issues of food security, particularly in sub-Saharan Africa, are to be addressed, it cannot be done just by aid, however generous? Ultimately, it will have to be done by the transfer of suitable technology, particularly in agricultural sciences. This country has a proud record of increased production and still has a reasonably successful science base. The problem is that the priorities are not determined according to the needs of those who need food security. Do we not need to reorganise the determination of how we set our priorities for agricultural research so that we make a lasting contribution to food security?
My Lords, the noble Earl makes an extremely important point which I shall take back to DfID. In terms of food security, the additional money that is being allocated is, I believe, not just for food aid; it is to assist farmers in the countries where aid is needed to produce their own crops. That is precisely where the noble Lord’s point about science comes in. I will take the point back to the department.
My Lords, I think it is the intention of the Canadians to hold a G8 meeting next year when they hold the presidency but, as I understand it, President Sarkozy has suggested that perhaps under his chairmanship the G8 should be in the expanded form of the G14 or the G20.
Coroners and Justice Bill
Committee (7th Day) (Continued)
183A: Clause 62, page 37, line 30, leave out subsection (4)
I shall speak also to Amendment 185ZG, which relates to the removal of Clause 86(7). When he was responding to the previous amendment, the Minister told us that the provision for anonymity in investigations is narrowly drawn. The provision set out in the Bill may be narrowly drawn, but under subsection (4), it can be widened to any extent, merely by an order passing through this House and the other place to add or omit an offence in the list in subsection (2) or to add, omit or modify a condition to be satisfied in relation to an offence. Under paragraph (a) of subsection (4), it is possible, for example, to omit paragraph (b) of subsection (2), manslaughter, but I do not think that that is the purpose. I think it is to add whatever offence occurs to the Secretary of State at the time. It could be driving without due care or something of that sort.
So far as the conditions are concerned, although we are told that this clause is specifically directed at gangs of young men between the ages of 11 and 30 using specific weapons—firearms or a knife—under paragraph (a) of subsection (4), all those conditions could be modified as the Secretary of State thinks fit. It can be anything. Getting in through a crack—that is to say, by using the most serious offences of murder and manslaughter and limiting it to a particular group—and then expanding it wholesale without anything other than an order being passed through the House is a bad way to legislate. We have often commented on how ineffective orders are as a method of scrutiny and change.
Clause 86(7) is concerned with special measures in offences involving weapons. Schedule 12 to the Bill adds a schedule to the Youth Justice and Criminal Evidence Act 1999 and contains a list of offences with a power for the Secretary of State to amend that schedule so as to add whatever he thinks fit. I am anxious to hear from the Minister how he justifies so wide a power being granted in that way. If the Government think that these orders should be limited, they should say in the Bill how they are to be limited. To say, “Well, we shall just see how they go and then extend them as we think fit”, is not a proper way in which to deal with a serious matter such as this. I beg to move.
I added my name to the first of the noble Lord’s amendments, to leave out subsection (4), giving power to the Secretary of State to add or omit an offence. As the noble Lord implied, we suspect that Secretary of State will not be omitting any offences—he will merely be adding, and simply adding, omitting or modifying one of the other conditions. That presumably means bringing in baseball bats, or whatever, should that be seen as necessary, or extending the age limit from 30.
I agree entirely with the noble Lord, Lord Thomas, that this seems a peculiar way in which to deal with criminal law, in that we are giving a power to the Secretary of State to amend it as he thinks appropriate by, I imagine, merely the negative resolution procedure. We suspect that the Government themselves feel that they may have gone a step too far in that, before any amendment was tabled by opposition parties suggesting that if there were to be such an order it might be more appropriate to have an affirmative resolution procedure, they came forward with that amendment, in Amendment 185A. That seems the absolute bare minimum, if we are to change criminal law; Parliament should have a good opportunity to discuss it, under the affirmative resolution. We all know that it is so easy under the negative resolution procedure for things to slip through without us noticing, try as we do to keep an eye on them.
I have one other question to put to the Minister. Will the Minister tell us, with regard to the new offences created in these clauses, when the offence for someone to disclose information in contravention of an investigation anonymity order in Clause 64(10) will come into effect? If it is not going to come into effect when the Bill gets Royal Assent, what are the Government’s plans for bringing it into effect? As the Minister knows, I have a sneaking suspicion that quite a large amount of government legislation, particularly legislation that has come in the past from the Home Office and now comes from the Ministry of Justice, goes through both Houses of Parliament and is enacted and then takes some considerable time to come into effect. Sometimes it is repealed before it even comes into effect. I would be grateful if the Minister could deal with that point as well as the basic point about whether it is appropriate that the Secretary of State should make amendments in this way.
The proposal concerns me. The Minister was speaking against Amendment 183ZA, which would have extended the use of this clause beyond murder and manslaughter. However, under subsection (4), the Secretary of State could enlarge it to anything at all, although the Government seem at the moment opposed to enlarging it in any way. I find this sort of clause worrying and very unsatisfactory. I am not content by the idea of it being an affirmative statutory instrument. As a member of the Merits Committee, I have noticed that quite a few affirmative statutory instruments slip quietly through the Moses Room in Grand Committee without anybody really looking at them. I do not believe that I have ever seen a subsection quite like this, and it seems to me to be very unsatisfactory.
The only reason I mentioned Amendment 185A is that I thought it was a bare minimum to at least make it affirmative. I agree with the noble and learned Baroness that both affirmative and negative instruments can slip through. I just mentioned it as I thought it was some indication that the Government possibly had felt a smidgen of guilt; that they had been caught out; and that is why they brought the amendment forward to try to make it look marginally more respectable.
The noble Lord has given his view that clearly the idea of affirmative statutory instrument means that the Government are having some sort of second thoughts. I suggest that they might have third thoughts and wonder whether this is an appropriate subsection.
All through my life, I have found that when I think that something is straightforward and reasonable, the rest of the world does not. The essence of these clauses is taken up in many ways by the noble and learned Baroness, Lady Butler-Sloss. We were not against an extension of this provision, but we think that we should do that after we have seen how it works in a very narrow way to address a problem that we have now. We believe that, if it proves successful and we understand the right caveats and protections to put around it by order or particularly through guidance, it may be appropriate to extend it through an affirmative order.
We are creating a new offence. It will come into action—this covers the point brought up by the noble Lord, Lord Henley—by means of a commencement order. We aim to bring it in next spring after development of guidance for the police and the CPS. It is not our intention to use this provision, as the noble Lord, Lord Thomas, suggested, on every crime. To some extent, we have not got across—because in some ways legislation does not help us—what this new crime is about. For that reason, I should like to write to noble Lords setting out in a little more detail how it would work in effect and what the processes are. I hope that from that we will be able to illustrate that we will need not only a proper set of processes to create one of these orders but also some development. It is right to keep it narrow and it is right then to consider it for greater expansion.
Amendment 183A would remove the order-making power from Clause 62, preventing its amendment in the future so as to include further offences or other methods by which the qualifying offence for an investigation anonymity order must be committed. We envisage that there may be scope for widening the use of this new investigation anonymity order in the future. The purpose of the order is to encourage people to come forward to help the police who otherwise would not do so due to fear, which does not in principle preclude any offence from possible inclusion. However, let us first tackle the pressing problem of witnesses failing to come forward in cases of gang homicide and let us see how well the orders work in practice within their current scope.
Any future extension of the scope of the scheme would be considered on a case-by-case basis and any statutory instrument made under this power would be subject to affirmative resolution procedure, therefore permitting detailed parliamentary scrutiny. We do not consider it necessary or desirable for such changes to be made by primary legislation, especially if we wish to retain the flexibility to add new offences or conditions at short notice.
I remind the Committee that this order-making power was considered by the Delegated Powers and Regulatory Reform Committee. In its report on the Bill, the committee did not object to this delegated power. While it commented that the power was “significant”, it concluded that,
“this seems sufficiently recognised by the affirmative procedure”.
I spent a year or two on the Merits of Statutory Instruments Committee and have since taken some affirmative orders through in the Moses Room with some of the noble Lords here present. The process does not allow things to slip through. Indeed, we will see tonight in the Dinner Break business a number of controversial affirmative orders which will be debated at some length. I have no doubt that the Government will come under appropriate scrutiny and pressure. It is worth reminding—
I remind the Minister that it is a question not just of whether things slip through unnoticed. When primary legislation such as this comes before the House we have the power to amend it, whereas when a mere order goes through we do not. Although the order gets some scrutiny and debate, both by the Merits Committee and by your Lordships, there is no power to make amendments to it.
I will comment on the process of making an order. While the noble Lord is quite right that there is no opportunity to amend an order within the House of Lords, the process of consultation that leads to an order is one in which the Government take account of inputs to alter and amend. Any future extension of the scope of the scheme would be considered on a case-by-case basis. Any statutory instrument made under this power would be subject to the affirmative resolution procedure, thereby permitting detailed parliamentary scrutiny. We do not consider it necessary or desirable for such changes to be made by primary legislation, especially if we wish to retain the flexibility to add new offences or conditions at short notice. I remind the Committee that this order-making power was considered by the Delegated Powers and Regulatory Reform Committee, which approved it.
The last time the House voted against a Motion approving an affirmative instrument was 28 March 2007, on the Gambling (Geographical Distribution of Casino Premises Licences) Order 2007, when the Government were defeated by 123 votes to 120. As a result, noble Lords will recall, that provision—the super-casinos provision—was withdrawn by the Government. That saw the end of that idea. Before that, records indicate that Governments have been defeated on three occasions on statutory instruments, one negative and two affirmative.
Government Amendment 185A relates to Clause 86, which extends automatic eligibility for special measures to witnesses to certain gun and knife offences listed in Schedule 12. The amendment responds to a recommendation by the Delegated Powers and Regulatory Reform Committee. Eligibility for special measures is determined by reference to a list of relevant offences, which may be amended by order subject to the negative resolution procedure. The committee recommended that this power should be subject to the affirmative procedure. We are happy to accept the committee’s recommendation and seek to amend Clause 86 accordingly.
I hope that this also answers the concerns of the noble Lord, Lord Thomas, whose Amendment 185ZG would remove the power of the Secretary of State to add to or otherwise amend the offences in Schedule 12. This power is included as a sensible precaution to provide flexibility for the future. It will enable us, for example, to add, where appropriate, any new offences involving the use of knives and guns that may be created in the future. It also follows the form established in the parent legislation, the Youth Justice and Criminal Evidence Act 1999, where, under Section 18(5), the Secretary of State has the power to add to or amend the special measures provisions by affirmative order. In the light of this explanation and the conclusions of the Delegated Powers and Regulatory Reform Committee, I hope that the noble Lord will feel able not to press his amendment.
I will make two points. First, I vividly recall the super-casino debate on the affirmative resolution. It was a quite exceptional situation. My recollection is that the House did not like super-casinos and voted, quite unusually, against the resolution. Secondly, on the subject of Clause 62(4), I am not opposed to having the opportunity to reconsider, although perhaps it would be preferable to reconsider limiting the provision to murder and manslaughter and add to it now, as has been suggested in other amendments. What concerns me is subsection (4)(a). Subsection (4)(b) is perfectly sensible, but subsection (4)(a) could add any offence at all—although I appreciate that, with an affirmative resolution, it may well be that one would not. However, to move in a Bill from murder and manslaughter to any offence is a considerable leap.
I thank the noble Baroness for those reflections. When we write to noble Lords and set out how the new, relatively narrow law will apply, and the procedures, conditions and guidance, it will be clear that we will look to this capability only for serious offences and will extend it only very carefully. I know that others see things differently but, from the Government’s point of view, getting affirmative orders through that are controversial is tough, and there are opportunities for the House—
The noble Lord cannot get away with that. He knows that it is more or less a nuclear option to vote down an order in this House. The convention is that we very rarely do. As the noble and learned Baroness said, the casinos order was exceptional. It is exceedingly rare for us to vote down an order. I can remember scarcely more than two or three occasions in the 30 years that I have been in the House.
The noble Lord is quite right—I was able to illustrate only one case from the recent past, and three from the records. However, that is in the minds of the Government when they create affirmative orders, especially controversial ones. That is why we go through a process of considerable consultation before they are pressed. However, I recognise that noble Lords may well come back to this on Report. I hope that, for the moment, the amendments will not be pressed and that, in the light of the further information that I intend to send, the concept of a narrow provision that will be extended very carefully by order will eventually appeal to the House.
We will come back to this on Report. The Minister should appreciate that the identity of an informer has been kept secret for centuries, and still is. This provision has been introduced to deal with a very narrow area: murder or manslaughter caused with a firearm or knife by someone between the ages of 11 and 30 who appears to be a member of a gang. As I said, I do not know why that should be singled out, but that is what the Government want to do. In so doing, they have simply put a foot in the door. Throwing the door wide open is exactly what Clause 62(4) is about. I am very grateful to the noble and learned Baroness, Lady Butler-Sloss, for her support on that. I think that both subsections (4)(a) and (4)(b) are offensive. The Government should consider how they might properly narrow the discretion of the Secretary of State if he wishes to extend beyond the particular terms and conditions set out in the Bill. I look forward to receiving the letter to which the noble Lord referred, to see what further thinking the Government can give along those lines. For the moment, I beg leave to withdraw the amendment.
Amendment 183A withdrawn.
Clause 62 agreed.
Clauses 63 and 64 agreed.
183AA: After Clause 64, insert the following new Clause—
“Review of investigation anonymity orders
The Secretary of State must, no later than two years after the commencement of this Part, review the operation of investigation anonymity orders made under section 64, and lay a report of that review before Parliament.”
In moving this amendment, I wish to speak also to Amendments 183B and 183C in the name of the noble Lord, Lord Thomas of Gresford, and Amendment 184 in the name of the noble Lord, Lord Dubs.
The new clause that I propose should be inserted after Clause 64 is a simple review clause. The reasoning for it is simple and follows on from the debates that we have had on the previous two groups of amendments. The Government are introducing an innovation in the form of investigation anonymity orders. As we discussed on the previous amendment, the Secretary of State is giving himself various powers to amend those, as he so wishes, after their introduction next spring, as I think the noble Lord put it. Much will need to be tried out and no doubt mistakes will be made and lessons will be learnt. Therefore, we propose a review so that after two years Parliament will be guaranteed the chance to look at the scheme again and assess whether it is a success and is helping to protect those involved in potentially dangerous investigations. I beg to move.
I wish to speak to Amendments 183B and 183C. I do not pursue Amendment 183B but Amendment 183C would add something to the Bill. In order that the Committee can understand what it is about, let me explain that the application for an investigation anonymity order will be made to a justice of the peace by a chief police officer or a director of one of the prosecuting services. The justice of the peace may make an order if he is satisfied that there are reasonable grounds for believing that the conditions set out in subsections (3) to (8) of Clause 66 are satisfied. Subsection (8) sets out the condition,
“that the person who would be specified in the order—
(a) is able to provide information that would assist the criminal investigation … and
(b) is more likely than not … to provide such information”.
But that is not enough. These orders should be exceptional and should not be applied for or made unless, in addition to those two conditions set out in subsection (8), a further condition is met, which is that the person concerned,
“would be unwilling or unable to provide such information if the order were not made”.
That indicates that it is an exceptional circumstance.
Clause 75(5) sets out as a condition for making a witness anonymity order that,
“the witness would not testify if the proposed order were not made”.
That condition is applied when it comes to giving evidence in court—that the witness anonymity order can be made if it is the only way of getting the person into the box. To emphasise that the investigation orders should be exceptional, a similar condition should be imposed on the making of those orders.
I understand where the Government are coming from in seeking to give anonymity to witnesses, but they should always remember that people may come forward to the police with malign intent and with the intention of making false accusations against people. To grant wholesale anonymity in those circumstances, unless the conditions are pretty clearly established, is to leave open the opportunity that a person may be arrested and held and be subjected to all the problems of a criminal investigation as a result of a malign person inventing things against him. It is important that giving anonymity to witnesses should be not a regular thing but only used in exceptional circumstances. My suggestion in Amendment 183C—that it should be given only if the court or the justices of the peace are satisfied that the witness would be unwilling or unable to provide such information if the order was not made—is essential. If not, you open the door to the neighbour or tittle-tattler who wishes to do down a particular person.
Amendment 184 stands in my name. It stems from a recent report of the Joint Committee on Human Rights, of which I am a member. I am concerned again with investigation anonymity orders. The Bill provides that investigation anonymity orders should be available in cases of murder or manslaughter where death was caused by a gun or a knife. The argument for making such an extension of the provision is to encourage witnesses to come forward in the most serious gang-related crimes, where witnesses might otherwise be reluctant to do so because they fear reprisals. That is understandable. However, there is a difficulty.
Witness anonymity orders can be applied for by the police or other investigative body as well as by the DPP. However, there is a practical problem about the effectiveness of such orders. Unless the witness is also confident that his or her anonymity will be protected at the trial, they are unlikely to come forward at the investigation stage. Yet the investigating authorities are not in a position to know at that point whether such a trial anonymity order is likely to be applied for by the DPP, let alone given by the court. The requirement that an application for such an investigation anonymity order should first obtain the consent of the DPP would address that practical problem. It would give the witness confidence that their anonymity would be protected right through all the stages, not just at the investigation stage.
When the Joint Committee on Human Rights wrote to the Minister pointing that out and asking whether there was any reason why the consent of the DPP should not be required before an application for an investigation anonymity order was made, the Government’s answer was that an investigation anonymity order is essentially an investigative tool to assist the police in their investigations of a particular kind of crime. They were talking about an early stage of the investigation before the CPS is involved. According to their response to us, the Government do not consider it appropriate to require the DPP to consent before the police apply for these orders.
I have already explained the difficulty. Surely, in the interests of witnesses coming forward, it makes sense to do this in the way that the amendment suggests rather than simply saying, “Okay, during an investigation a witness will have anonymity, but we cannot guarantee anything beyond that”. It will make them shut up and not want to come forward.
There is a further point which is close to that made by the noble Lord, Lord Thomas of Gresford. The Joint Committee is also concerned that evidence suggests that the police have in practice not regarded applications for witness anonymity orders as exceptional. Without requiring the CPS’s involvement in such orders, there must be a risk that the number of such applications by the police would be disproportionately large.
My name is attached to the amendment of the noble Lord, Lord Dubs, and he has set out the reasons for it. I add only this. Of course the Director of Public Prosecutions is able to delegate his responsibility, and in each large police station these days a CPS representative is customarily stationed to advise the police on their investigation and how it should be carried out, and to advise on the charge. Therefore, it is not as though an application has to be approved by the Director of Public Prosecutions in person. It would be perfectly possible for the representative of the CPS who is assigned to a particular police station to give the consent that the noble Lord, Lord Dubs, is seeking. That would be an appropriate safeguard, bearing in mind the narrow scope of the application, as outlined by the Government so far, without the criticisms that I have made on its potential expansion.
There is no practical difficulty in doing precisely what the noble Lord, Lord Dubs, says. It would be satisfactory that, before going before a justice of the peace, the chief officer should take the advice of the CPS representative who is advising.
I turn first to Amendment 183AA in the name of the noble Lord, Lord Henley, and say in passing how much we appreciate the suddenness with which he has had to take on this major responsibility. I thank him very much for doing so straight away. All of us around the House are extremely sad about the circumstances which led the noble Lord to have to take command, as it were, at this stage.
We have some sympathy with the thinking underlying the amendment. Investigation and anonymity orders are a novel measure designed to address the serious problem of gang-related gun and knife crime. As with everything new, it is uncertain exactly how the orders will operate in practice. Of course it is right that their operation is closely monitored and we made it clear in another place that we intend to keep their working under close review.
Whether a formal report to Parliament, as envisaged by the amendment, is required is for us another matter. We do not think it is necessary because, as I have said, we intend to review the provisions anyway and keep a close watch on how they are working. So it is not necessary for such an amendment to be in the Bill.
Amendment 184 would require the Director of Public Prosecutions to consent to all applications for an investigation anonymity order. It would therefore prevent police officers and other prosecuting authorities applying for such an order without his or her consent. The amendment would restrict the power to give consent to the DPP, but we take the point that under Section 1(7) of the Prosecution of Offences Act 1985 the DPP automatically delegates his or her consent functions to Crown prosecutors who would presumably also be able to give consent.
Clause 65 makes it clear who can apply for an investigation anonymity order. It would not be appropriate for the DPP to have to consent to every investigation anonymity order application. As was said in another place, these new orders are an investigative tool which should be available to the police during the early stages of an investigation—perhaps on an urgent basis. Furthermore, any specified prosecuting authority should be capable of deciding whether or not to exercise the powers without reference to the DPP. These orders are not linked to witness anonymity orders; they are an independent tool.
With regard to the suggestion in the Joint Committee’s report that there is a risk of a disproportionately large number of applications if the director does not have to give consent, perhaps I may answer by saying that these orders are available only in relation to a narrow class of gang-related homicides. It is difficult to imagine applications being made in disproportionately large numbers. More significantly, the Joint Committee’s observation overlooks a fundamental aspect of these orders; namely, that they are intended to protect witnesses in criminal investigations. Unlike at the trial stage, no one’s liberty is at issue.
The Joint Committee also seems to be saying that, if the DPP gives his consent to the application for an investigation order, he will have then made a decision on, or will be likelier to know, whether he will apply also for a trial order later on. The implication seems to be that this will address the practical problem raised by the Joint Committee, and in Committee this afternoon, of informants being reluctant to come forward unless they know that they will get a trial anonymity order. However, I have to be frank with the Committee: the police, the CPS and the DPP can give absolutely no guarantee that a court will grant a trial anonymity order at any stage of a case; nor will the DPP be able to say with any certainty that the informant will indeed be required to provide evidence at trial at these very early stages of an investigation. I repeat that in our view investigation anonymity orders and trial anonymity orders are quite separate tools and they serve different purposes. There may well be examples of where it is impracticable for the CPS to provide cover for urgent police applications, and that is why we ask noble Lords not to press Amendment 184.
The noble Lord, Lord Thomas, spoke to his Amendments 183B and 183C. The first proposes the deletion of subsection (8) but Amendment 183C suggests the insertion of additional paragraph (c) to supplement existing paragraphs (a) and (b). One of the preconditions for the grant of an order is that the witness has useful information to give, but the deletion of subsection (8) would remove that requirement. There is no point in making orders in respect of people who have no information or who would be willing to provide information without anonymity, and that is why, if the noble Lord had argued for Amendment 183B, we would have rejected it.
New paragraph (c) proposed in Amendment 183C would require the police to prove that the witness would be unwilling or unable to provide information without an order. We think that that is too closely related to our existing paragraph (b), which, with the amendment, would remain. It would call into question the effect of existing paragraph (b), which, in our minds, already sets out a similar condition and would probably make it more difficult for the police to obtain an order. We do not want to make the requirements for obtaining an investigation anonymity order unduly onerous. I repeat that we need to bear in mind that we may be dealing here with the very early stages of an investigation where the police need to obtain an order but have only very limited information at their fingertips. We think that subsection (8) is appropriate for what we are trying to do in this field. For those reasons, I ask the noble Lord to withdraw his amendment and for the other amendments in the group not to be pressed in due course.
I thank the Minister for his very kind opening remarks in his response to the amendments. I also thank him for the assurance that the department will keep these matters under review. I expected him to make that clear and, for that reason, I shall in due course withdraw my amendment.
Perhaps if I had been more on the ball this morning when I first started looking at these amendments, I would have suggested that they were not very appropriately grouped, in that I think that those in the names of the noble Lords, Lord Dubs and Lord Thomas of Gresford, deal with slightly different matters from the ones that I was getting at. We all know that in an ideal world the Government Whips Office would like to group all amendments into one supergroup, thereby facilitating debate and getting through matters somewhat more quickly. We all know that we spend our time undoing the Government’s attempts to put things together. On this occasion, I think that they got it wrong, so I suggest to noble Lords that, when in due course they come to their amendments, they consider doing with them as they think fit. However, as I said I would, I beg leave to withdraw my amendment.
Amendment 183AA withdrawn.
Clause 65 agreed.
Clause 66 : Conditions for making order
Amendments 183AB to 184 not moved.
Clause 66 agreed.
Clauses 67 to 73 agreed.
Clause 74 : Applications
185: Clause 74, page 45, line 23, at end insert—
“(7A) The court has the power to appoint special counsel to represent the interests of the defendant in his or her absence, if it appears to the court to be appropriate to do so in the circumstances of the case.”
Amendment 185 also stems from a report by the Joint Committee on Human Rights. The Joint Committee recommended in the report that the Bill should be amended to give the trial judge a discretion to appoint special counsel to represent the interests of the defendant in his or her absence if it appears to the court to be appropriate to do so in the circumstances of the case. In the Government’s view, there are rarely cases where special counsel might be required, and they believe that the present arrangements permitting judges to invite the Attorney-General to request the appointment of special counsel are adequate. The Attorney-General’s guidelines state that such an invitation by a court should be regarded as exceptional. I wonder whether it ought to be that exceptional. It should not be commonplace, but to date there appears to have been only two applications to the Attorney-General for special counsel to assist the court with a witness anonymity application, both of which have been granted.
Of course, fairness does not require special counsel to be appointed in every case where an application for an anonymity order is made; it will depend on the circumstances. As I said, however, only two have been granted so far, out of a total of 136 applications. It is quite possible that the defence has requested the appointment of special counsel many more times than the two occasions on which they have been requested by the court.
There is a certain uncertainty about whether magistrates’ courts have the power to invite the appointment of special counsel, because they are creatures of statute and therefore do not possess inherent jurisdiction. We on the Joint Committee noted that although the vast majority of applications for witness anonymity orders have been made in the Crown Court, three orders have been made in the magistrates’ court. As long as there is the possibility of applications for anonymity being made in the magistrates’ court, it is undesirable that uncertainty should remain about whether there is power to appoint special counsel in such cases.
Finally I note that at the time of the passage of the 2008 Act, the Government told Parliament that courts had powers under their inherent jurisdiction to appoint special counsel as and when the court considered it appropriate. Since that date, however, the Attorney-General seems to have adopted a different position about the power of the courts to appoint special advocates, arguing that it is the Attorney-General and not the court that has the power to appoint. There is some doubt here—the situation is uncertain—and some clarity from the Minister would be helpful.
Courts can request the Attorney-General to appoint special advocates, but whether or not to do so is a matter for the Attorney-General. In our view, that further strengthens the case for putting the power of the court to appoint special counsel on to an express statutory footing. We on the Joint Committee remain of the view that the legislation should be amended to place on an express statutory footing the trial judge’s discretion to appoint special counsel, and the right of the defence to request the appointment of such special counsel. I beg to move.
We have tabled Amendment 185ZZA, which would do something similar to the amendment in the name of the noble Lord, Lord Dubs. We will also hear later from the noble Lord, Lord Thomas, about his Amendment 185ZE, which pursues the same track.
We all remember the witness anonymity orders that were pushed through Parliament last year in response to a court ruling that made an expedited legislative procedure necessary. As a responsible Opposition, we agreed to truncated intervals between stages of the Criminal Evidence (Witness Anonymity) Bill, something that is only rarely considered, as the noble Lord will be aware as a result of tomorrow's business. We resisted the temptation to amend it at the time. The Government, to their credit, worked closely with us to draft a new law. With the inclusion of a sunset provision, we were, if not wholly content, at least persuaded by the circumstances to allow the Bill to pass.
Now that we have had the opportunity to give the powers proper scrutiny, we have been able to dust off some of our old arguments. One issue on which there was widespread feeling around the House was the need for an independent figure who would assess the information provided to the court to determine whether anonymity was granted. In order to assess the need for an order to be granted, a great deal of information may be laid at the feet of the court. A judge will, most likely, not have the resources at his disposal to establish the background matters in respect of a proposal that a witness be given anonymity. However, through the appointment of an independent counsel, the court could properly analyse the necessary information, and that person would be able to make inquiries to establish if the conditions in Clause 75 and the considerations in Clause 76 had been fully satisfied.
It seemed to us a year ago, and it still seems to us now, that the best way to support the conflicting interests of defence and prosecution is to appoint an independent counsel, who will have at his disposal certain inquisitorial powers to determine the claims of the witness who seeks protection. The principle that anonymity in criminal trials should be so exceptional from the norm demands that exceptional steps are taken to safeguard the rigour and the fairness of the process.
We have before us three different ways of achieving that. I suppose that we could invite the Government, like Paris, to decide which is the fairest of them all.
The amendment to which the noble Lord, Lord Henley, spoke, is really a rehash of what I proposed last year in relation to the witness anonymity Bill—the Committee will see mine repeated as Amendment 185ZE. Somehow they managed to get theirs first on to the Marshalled List today. I said then that the role of independent counsel would be to examine or cross-examine a witness who claims that he is in fear, if there is any doubt about that, or to test the circumstances he refers to or his honesty or dishonesty generally, for the purposes of assisting the court in coming to its conclusions.
I remind your Lordships about the scheme for an application for a witness anonymity order. Under Clause 75(2), as now drafted:
“The court may make such an order only if it is satisfied that Conditions A to C below are met”.
In coming to its conclusion, the court must, under Clause 76(1), have regard to the considerations set out in subsection (2)—six of them. As drafted, all that the judge can do is look at the person in front of him and think, “Do I like this chap? Am I told by the policeman who is making this application something that makes me satisfied as to conditions A, B and C? Have I taken into account all those considerations?”. That is a very difficult task for a judge to undertake.
The wording in the clause is now almost the same as it was in the witness anonymity Act of last year, which came under the close scrutiny of the Court of Appeal in the case of Mayers, Glasgow and others in the judgment delivered on 12 December 2008 by the Lord Chief Justice. The Lord Chief Justice made some interesting comments in his judgment about the drafting of the Act and the need for special counsel. He said:
“Notwithstanding the abolition of the common law rules, it is abundantly clear from the provisions of the Act as a whole that, save in the exceptional circumstances permitted by the act, the ancient principle that the defendant is entitled to know the identity of witnesses who incriminate him is maintained”.
He went on:
“It is … clear that an anonymity order should be regarded as the special measure of last practicable resort”.
In paragraph 10 of the judgment, the Lord Chief Justice set out principles to enable the judge to come to the conclusion to which he must come. He said:
“The principles which govern the use of special counsel to protect the overall fairness of the trial when the question whether information should be withheld from the defence is being addressed should be adapted when its possible use arises in the context of witness anonymity. Nothing in the legislation suggests, and we can see no justification for any blanket rules, one way or the other. Sometimes special counsel may contribute significantly to the fairness of the process, sometimes not. There is however one significant difference between the use of special counsel for public interest immunity purposes, and such use for the purposes of witness anonymity. The former is concerned with the circumstances in which non-disclosure to the defence may be appropriate, the latter with whether sufficient and complete investigation and consequent disclosure have taken place”.
It is clear that he had been reading what I said about this amendment earlier.
The Lord Chief Justice continued:
“If the judge entertains reservations about the good faith of the efforts made by the prosecution investigation into any relevant consideration bearing on the question of witness anonymity, an application for witness anonymity will be met with a point blank refusal. The services of special counsel may however enable the judge to ensure that any investigative steps specific to the case, and not perhaps otherwise apparent, have been taken. Our approach to this issue enables us to highlight that the obligations of the prosecution in the context of a witness anonymity application go much further in the ordinary duties of disclosure. As we shall see when we examine the statutory considerations a detailed investigation into the background of each potential anonymous witness will almost inevitably be required”.
What detailed investigation into the background of each potential anonymous witness did he have in mind—that the judge should get off the bench and carry out an investigation himself, or that there should be a mechanism, such as the one in my amendment, which would enable the judge to be properly informed to ensure that any investigative steps specific to the case have been taken?
The Lord Chief Justice came back to the issue of the special counsel at a number of points in his judgment. In paragraph 21, for example, he said:
“The defence statement provides the benchmark against which the disclosure process must be examined. So, for example, a defendant who believes that he may be the victim of a malevolent plot to incriminate him when he is innocent should normally be able to give some indication of his concerns in his defence statement, and to indicate the identity of anyone who he believes may have a malign motive to incriminate him. It can then, if raised by him, be the subject of further inquiries, perhaps indeed with the use of special counsel”.
Again, he referred in paragraph 35 to considering the considerations, and said:
“The difficulties are well within the knowledge and experience of trial judges. Sometimes, of course, specific evidence may be required by the judge so that he can probe it, and indeed if necessary, he can seek the assistance of special counsel”.
The Lord Chief Justice finally concluded:
“The use of the word ‘necessary’ requires that the court must be satisfied to the highest standard that”,
conditions A, B and C have been satisfied. He said that it was not enough to satisfy two of the three conditions; all must be satisfied. He continued:
“’Probably’ necessary will not do. Even if the ‘necessity’ foundations for conditions A and C are established, the order cannot be made unless the court is also satisfied that the forthcoming trial, or the current trial, would be, or continues to be fair”.
A five-judge court of the Court of Appeal, with highly experienced judges who are versed in the criminal law, came to that analysis of the previous Act. As I say, the provisions are in the Bill. If the Lord Chief Justice points out the utility of special counsel and seeks to underline my argument, which I advanced on a previous occasion, how much more must the Government be satisfied before they make a provision, whether it is expressed in the terms of the noble Lords, Lord Dubs or Lord Henley, or my amendment, and how much more important is it that the Government take this on board and table a proper amendment on Report?
I support the spirit of the amendments and in so doing remind myself of the issue that led to the 2008 Act, which was passed almost exactly 12 months ago. The case of Davis had been decided, if I remember rightly, on 18 June last year, and spelt out that the practice that had developed very gradually over the years of allowing anonymity was wholly illegal. Parliament had to intervene to legitimate something that was illegal under common law. The mechanics of that were not difficult because of the sovereignty of Parliament, but there was a second question: how does one remove the injustice which this legitimatisation could bring about? That is very much more complicated.
The provisions of Clauses 75 and 76 are very similar, as has already been pointed out, to the wording of the 2008 Act. If the six matters, which are set out in Clause 76(2) and establish whether conditions A, B and C under Clause 75 have been satisfied, are no more than what a conscientious careful judge would have been doing over the past 15 years or so, how do they protect the position of a person who may have to face a most damning accusation without knowing who his accuser is? With great respect to the Minister, if he concludes that any conscientious judge would have applied his or her mind to each and every consideration in Clause 76(2)(a) to (f) pre R v Davis last year, how is the situation improved? In other words, all Parliament will have done is convert a rule of practice on anonymity that turned out to be illegitimate into a statutory checklist, but it will not have advanced the situation at all. I hope that I make myself clear. I should be grateful if the Minister will say whether there has been close consultation with judges on this matter and whether they were of the view that there was any difference between the statutory checklist in Clause 76 and what was done from day to day and from year to year previous to R v Davis last year.
One further consideration is that this matter has not been finally adjudicated on in Strasbourg, which was mentioned at Second Reading. If the Strasbourg court was of the view that these conditions, which were the very minimum necessary to bring about a just conclusion for the defendant, have not been satisfied, all that we are doing is rendered utterly nugatory.
I do not for a moment argue that there is anything sacrosanct in the issue of a special counsel. If there are other ways of doing it, so be it. It is not the special counsel that is important, but the principle that a person should not face grave accusations without knowing who his or her accuser might be. But is there any other way? That is the experience of other countries which have gone down this path. I understand that it is the experience of New Zealand and Netherlands. I think I am right in saying that nearly the whole structure of the 2008 Act was culled from the New Zealand Evidence Act 2006. Under that Act, a specific section, which I seem to remember was Section 115, deals with special counsel. Is there any other way that the result for which I have argued can be achieved; that is, that a judge should have a factual matrix on which to determine conditions A, B and C in Clause 75, and paragraphs (a) to (f) in Clause 76(2)?
As regards the Court of Appeal decision of December 2008, to which the noble Lord, Lord Thomas of Gresford, referred, the judge would have to be satisfied not only as to conditions A, B and C, but to each of the six considerations under Clause 76. It must follow because Clause 76 proves or disproves conditions A, B and C in Clause 75. In other words, is there any way of dealing with this situation, which could be one of grave injustice, without a special counsel? I appreciate that it would be churlish of me to pretend that there is not a problem. Of course there is a problem. There has been a problem with regard to witnesses since the dawn of time.
At Second Reading, I quoted an article written some years ago by my noble friend Lord Pannick on this matter. In 70 BC, when Cicero was about to prosecute the consul general of Sicily, it was maintained that it was impossible to proceed with the trial because it was feared that all the witnesses had been bribed. There is nothing new in this situation. As the House will remember, there were reports on this by Lord Diplock and Lord Gardiner. Indeed, this problem cropped up at the time of the trials of the Kray brothers and the Richardson gang. This is nothing new at all. But is there any way in which to deal with the situation to avoid a grave injustice? Therefore, on that basis, I am glad to support the principle underlying these amendments.
I thank everyone who has spoken in this debate. Perhaps I may start by giving a few statistics, which may be of use to the Committee. From July 2008 to the end of May 2009, the CPS made 232 anonymity applications to the courts. Of those, 206 were granted and 26 were refused. Of the 206 granted, 79 were for undercover officers, 63 for test purchase officers and 57 were for civilians. The final seven were other investigators or interpreters. Of the 26 applications that were refused, 21 were for civilian witnesses and five were for undercover police officers. Of the 232 applications, 222 were made to the Crown Court, one to the youth court and nine to the magistrates’ court. Of the nine applications made to the magistrates’ court, five were granted and four were refused. I hope that that is helpful. In that period, two special counsel requests were made to the Attorney-General, both of which she granted.
These three amendments would make statutory provision for special counsel or, as described in two of the amendments, independent counsel. We consider the amendments to be unnecessary. The Bill makes no provision for special counsel because courts may already ask the Attorney-General to appoint special counsel to assist with applications for witness anonymity orders and can be expected to do so where they consider it necessary. This option is set out in a practice direction issued on 28 August 2008 by the then president of the Queen’s Bench Division following the implementation of the emergency legislation. If any party to the proceedings raises the question of special counsel, the court is already in practice bound to consider it.
The tradition is that under current arrangements the court asks the Attorney-General, and it is the Attorney-General who appoints the special counsel. The Attorney-General exercises a general discretion in this area and it would be inappropriate to suggest that, for example, she will normally comply with the court’s request, although she has done so on the two occasions where the request has been made so far.
Would I be right in thinking that the JCHR report said that something like 120 applications were made to the court and that the court should request the Attorney-General, but that the court made only two requests, both of which were granted? I believe that those were the statistics before the JCHR.
I am having that checked, but my understanding is that that is not right. I will come back to the noble Lord a little later. We have seen no evidence that the current arrangements are not working satisfactorily. Thus, we are not persuaded that there is any need to put them on a statutory footing. As I have said, in two cases, the court has asked the Attorney- General to appoint special counsel and both were granted. One of our fears is that the proposed changes could have a significant knock-on effect for special counsel in other kinds of criminal proceedings. In principle, the use of special counsel is available in a much wider range of cases than anonymity applications. We do not think that this Bill is the place to place special counsel in criminal proceedings on a statutory footing.
The Committee will be very grateful to the noble Lord, Lord Thomas, for having analysed the leading case of Mayers, which of course discussed the law relating to special counsel as well as to features of the new statutory anonymity regime enacted last summer. In our view, two things stand out from that case. First, the Court of Appeal did not call for special counsel to be placed on a statutory basis. Secondly, it gave no indication that it considered the present arrangements—or as they had worked until that case—unsatisfactory.
As regards the figures, that quoted by the noble Lord, Lord Thomas, is for applications for witness anonymity orders and not for applications for the appointment of special counsel. If there is some confusion between us about the figures, I will write to the noble Lord.
My information is that the concern of the Joint Committee was the very small number of cases in which special counsel have been appointed; that is, two out of a total of 136 applications. There may be other figures. I have not checked all the details of the report, but that is a fairly small number.
I suspect that that refers to the number of applications for anonymity witness orders, not for special counsel. I shall have that checked and write to noble Lords confirming whether or not I am right. There is a certain ambiguity in what my noble friend has just read out.
In Mayers, the Court of Appeal focused on the duties of the prosecution. The role of special counsel in a particular case may be one where special counsel helps the court probe the evidence. It did not suggest that special counsel carry out a police investigatory role. The noble Lord, Lord Thomas of Gresford, cited the court when he said that there was no justification for any blanket rules, one way or another. The court already has sufficient flexibility to ask the Attorney to appoint special counsel when it considers it necessary. Our approach today is wholly consistent with the Court of Appeal judgment in Mayers.
I do not need to point out that there are significant differences between the three amendments and I hope that none of them will be pressed today. There are obviously differences between special counsel and independent counsel but I do not need to go into detail. I was asked by the noble Lord, Lord Henley, to play the role of Paris in choosing between these three sirens, if siren is the right expression from all that time ago. However, if he will forgive me, I will not choose a Helen today; I take the same attitude to the three temptations on offer and reject them all. I ask my noble friend to withdraw his amendment.
If I have misled the Committee on the figures, I apologise, but I do not think I have. I am relying on the report of the Joint Committee on Human Rights. In its 8th report, House of Lords Paper 57, page 43, paragraph 1.134, dealing with special counsel, it states:
“We are concerned, however, by the very small number of cases in which special counsel has so far been appointed: two out of a total of 136 applications. This suggests that the appointment of special counsel may be being treated as a wholly exceptional course rather than one which fairness may sometimes require on the facts of a particular case. We note that there is no record of the number of times special counsel were requested or applied for by the defence but that request or application was not acceded to by the court”.
So there is quite a lot of information. My noble friend the Minister may have more up-to-date information, which he could let us have.
I shall write with the latest statistics to make the position clear to all noble Lords. I am conscious that I have not really answered the noble Lord, Lord Elystan-Morgan, on the points he makes. I do not think he expects me today to go into the details of the problems that he has always considered arise in cases of this kind. I hope that in the letter that I write to noble Lords I will be able to say something about what he asked me today.
Could the noble Lord also apply his mind to the question he has already raised: that there is no blanket policy one way or the other? I believe I am right in saying that the learned editor of Archbold, in the current edition, says of special counsel that such an appointment should be very sparingly used. Therefore it does not matter whether the figures given by the noble Lords, Lord Dubs and Lord Thomas of Gresford, are correct; there seems already to be a mentality that accepts that there is a blanket policy.
I also understand that the Attorney-General’s guidelines state that such an invitation to appoint a special counsel by a court to the Attorney-General should be regarded as exceptional. Whatever the figures, my noble friend may also care to comment on whether the guidelines say what I believe they say: that is, that they should be regarded as exceptional. It does not happen often.
I am not totally convinced by my noble friend’s reply. I shall ponder what he said when I read Hansard in detail. For the moment, I beg leave to withdraw the amendment.
Amendment 185 withdrawn.
Amendment 185ZZA not moved.
Clause 74 agreed.
Clause 75 : Conditions for making order
185ZA: Clause 75, page 45, line 34, leave out paragraph (b) and insert—
“(b) in order to avoid compromising the practice of undercover policing or undercover operations by police (or both), law enforcement agencies or the security services, whether in relation to specific operations or generally”
I want first to address Amendment 185ZE, in the previous group, for the purposes of replying to the Minister—as I am entitled to do. I am rather heartened by the few applications that have been granted. As the noble Lord, Lord Elystan-Morgan, said, these witness anonymity orders were being handed out wholesale. I came to the witness anonymity Bill last year straight from a case in the Old Bailey where no fewer than five witnesses in a murder case had given evidence with their voices changed. Acting on behalf of the defendant, I had no idea who they were and it was impossible to cross-examine them. They were the only witnesses; there was no forensic evidence in support of the prosecution’s case. Apart from one young lady, the girlfriend of the deceased, who said, “I am not going to give my evidence anonymously”—even though an order had been made in her favour she refused to give evidence in that way and therefore gave evidence in open court—there was no other evidence against the defendant. It was a wholly unfortunate thing to happen and these must be regarded as exceptional orders.
The framework that was put in place last year seems to be working and the guidance in Mayers—that these are measures of last resort—will be very influential. The practice of the police offering to witnesses that they would all be treated anonymously seems to have ceased and I am pleased about that.
However, it is not satisfactory that special counsel should be appointed by the Attorney-General. The purpose of the amendments was that special counsel should be appointed by the court where the court thinks it is necessary and that the court should not regard it as an exceptional matter when it is required to come to a conclusion on the highest degree of proof—beyond reasonable doubt—and has to take account of all the considerations and conditions that have to be fulfilled. It is a matter for the court to consider whether it has enough information. We will have to return to this on Report and see whether we can have a joint amendment which will perhaps meet with the Government’s favour.
I now turn to Amendment 185ZA and a series of amendments that are grouped together that cover quite disparate matters. I apologise to the Committee that they are not being deal with separately. However, I shall endeavour to cover them all.
Amendment 185ZA relates to subsection (3)(b). The first condition to be met for the granting of a witness anonymity order is condition A; that is,
“in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest”.
That is an extraordinarily wide concept. The purpose of the amendment is to confine that possibility in paragraph (b):
“in order to avoid compromising the practice of undercover policing or undercover operations by police (or both), law enforcement agencies or the security services, whether in relation to specific operations or generally”.
The statistics that were given by the noble Lord in answer to the previous question make the point. By far the bulk of the orders that have been granted have been to undercover policemen or to those who are engaged in investigating food and matters of that sort. That is what we are seeking to confine the public interest to. To prevent real harm to the public interest, as set out in condition A, could mean anything. Subsection (5)(b) introduces the same concept in terms that were not in the original Act of last year, that there would be real harm to the public interest if the witness were to testify without the proposed order being made. What public interest is there? I should be glad to hear from the noble Lord what the Government have in mind.
Amendments 185ZB and 185ZC are drafting amendments to emphasise that subsection (6) should be redrafted in a way that makes sense. If they were accepted, the provision would read:
“In determining whether the proposed order is necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to”—
“fear on the part of the witness … that the witness or another person would suffer death or injury, or … that there would be serious damage to property … if the witness were to be identified”,
was reasonable. We cannot permit witness orders to be made because a person has a fear for his personal safety which is completely unjustified. The person who applies for such an order needs to satisfy the court that the fear of death or injury or serious damage to property is founded on something and is not just the subjective view of the witness concerned.
Amendment 185ZD would insert a new clause providing that the prosecution should not disclose the identity of a witness to other defendants. The Bill suggests that a defendant may make an application for a witness anonymity order. In such circumstances, if the application is made by the defendant, then it is necessary to have a provision that nothing in the Criminal Procedure and Investigations Act 1996 or any law relating to disclosure of material by a prosecutor to the defence should apply to the identity of an anonymous witness who is made anonymous by the application of the defendant.
These are separate and quite different points. We heard that one application had been made in the youth court—that was the statistic that the noble Lord gave. Nine applications had been made to magistrates’ courts, of which five had been granted. When the previous Bill was going through, I pointed out, on behalf of these Benches, that magistrates’ courts are not really suited to granting witness anonymity orders. In any event, not all courts have the practical means of disguising someone’s voice or identity, or of putting up screens, and so on. Nor is it right as a matter of principle that in trivial offences, there should be taken away from the defendant his right of common law and fair trial under Article 6 and his right to know the identity of his accuser. It may be necessary in serious offences, but when it comes to the magistrates’ court, it is our contention that witness anonymity orders should not be used. Perhaps if a case is triable both ways and the question of anonymity arises, it should be sent to the Crown Court.
These orders should not be made by justices. If only nine such orders were applied for last year, they will have had very little or no experience of making the determination and considering those conditions and the considerations that are set out in the Bill as well. We suggest that that is far too complicated and that the magistrates’ court should be left out of this. However, the youth court—were the defendant an adult, he would have been tried in the Crown Court—is a different matter. In that very specific case, when only one application was made last year, we concede that perhaps an anonymity order could be made but, as a general principle, not otherwise. I beg to move.
I should like to deal briefly with the three government amendments in this group—218B, 218C and 218D. These are simple, technical amendments to improve the appeal procedures in cases that involve anonymity orders. Amendment 218B would enable a single judge to vary or discharge as well as make an order in the interests of the efficient operation of the Court of Appeal. The power of a single judge of the Court of Appeal to make an order is also available in the service context and in Northern Ireland. Accordingly, Amendments 218C and 218D make a like change. Amendment 218D would also make it clear that a single judge of the Court of Appeal in Northern Ireland cannot discharge or vary an anonymity order where he or she has already made it in the Crown Court. I will move those amendments in due course.
I shall deal with the amendments of the noble Lord, Lord Thomas of Gresford, as briefly as I can. Amendment 185ZA would change the wording of the second limb of condition A to refer explicitly to avoiding compromising the practice of undercover policing or undercover operations by police, or both, law enforcement agencies or the security services. Our view is that the amendment is unnecessary. As we explained during the passage of the emergency legislation last year, the public interest wording is intended to cover two areas—first, national security interests generally and, secondly, the undercover work of the police and relevant agencies. Having done so, we believe that further elaboration is unnecessary. Indeed, to change the wording could cause confusion as to what change was intended, bearing in mind that the 2000 Act contains the same wording as this Bill.
What is now Clause 75(3)(b) has been in force for almost a year without, to our knowledge, any difficulty. It will be noted also that the present amendment covers only undercover operations; it would not cover other circumstances where damage to national security would be caused by identifying a witness.
Amendments 185ZB and 185ZC would, as the noble Lord said, change the order of the words in Clause 75(6). The court will necessarily have to consider any fear of the witness and the circumstances to judge whether it is reasonable. I echo what my honourable friend Maria Eagle said in another place: there is no need for us to get too het up about which bit is subjective and which objective. The point is that the judge would be empowered to make a commonsense judgment in any particular set of circumstances about whether the fear of a witness was reasonable. No sensible judge—and all judges are sensible—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. The judge would have to be convinced that there was at least something to it. That is what we are trying to capture generally in the way that we have phrased the subsection.
Amendment 185ZD deals with the extent to which the anonymity provisions override the prosecution disclosure requirements in the Criminal Procedure and Investigations Act 1996. The concern is that where an order is made on a defence application for an anonymity order in a multi-handed case, the prosecutor may be compelled by the 1996 Act to disclose the identity of the witness to the other defendants, thus defeating the purpose of this legislation. A trial anonymity order overrides any prosecution obligation to disclose material to a defendant under the 1996 Act to the extent the court thinks fit in any particular case. We do not think the amendment spoken to by the noble Lord is necessary.
Finally, Amendment 185ZF would prevent magistrates’ courts making a witness anonymity order, which the Bill currently allows. The position at common law was that anonymity orders could be made by the Crown Court and the magistrates’ court. This position was preserved in the emergency legislation. Our position is that if anonymity is required to secure justice, it does not matter where the case is heard. We see no convincing reason why magistrates' courts should not be permitted to make such orders provided that the requirements in the Bill are met. As the noble Lord, Lord Thomas of Gresford, reminded us, since the passage of the Bill in the previous Session, nine orders have been sought in the magistrates’ court, of which five have been granted and four refused, which shows that the magistrates seem to have a pretty robust way of dealing with applications that they do not think to be good applications.
In the light of the explanations I have attempted to give, I invite the noble Lord to withdraw his amendment.
Amendment 185ZA withdrawn.
Amendments 185ZB and 185ZC not moved.
Clause 75 agreed.
Clause 76 agreed.
Amendments 185ZD and 185ZE not moved.
Clauses 77 to 83 agreed.
Clause 84 : Interpretation of this Chapter
Amendment 185ZF not moved.
Clause 84 agreed.
Clause 85 agreed.
Clause 86 : Eligibility for special measures: offences involving weapons
Amendment 185ZG not moved.
185A: Clause 86, page 50, line 34, leave out subsection (3) and insert—
“(3) In section 64(3) (orders subject to affirmative resolution procedure), in paragraph (a) after “section” insert “17(7),”.”
Amendment 185A agreed.
Debate on whether Clause 86, as amended, should stand part of the Bill.
We submit that special measures should be used only if their use does not compromise the defendant’s right to a fair trial and they are genuinely useful in helping to maximise the quality of the witness’s evidence, where that quality would otherwise be compromised because of age, fear, vulnerability or disability or where protection of identity is otherwise exceptionally necessary. It is simply not the case that all witnesses in weapons cases will fulfil these criteria.
Where special measures will not help to maximise the quality of a witness’s evidence, they should not be used. First, special measures can have a prejudicial impact on the defendant’s trial by suggesting, for example, that he is a person to be feared. I can assure your Lordships that, if witnesses appear to be so fearful that they have to peep from behind curtains, that is prejudicial to the defendant and cannot be wholly cured by a direction to the jury from the judge. Secondly, we are concerned that special measures could impair the quality of evidence if used in inappropriate cases in relation to defendants who are under 18 or who have mental health problems or learning disabilities. There are grounds for particular concern since the defendant may be very young or vulnerable to a similar or even greater degree than the witnesses.
Decisions as to special measures should depend not on the witness’s wishes but on the interests of justice. For that reason, we suggest that this clause be removed from the Bill. Without it, special measures would continue to be available under the normal criteria of the Youth Justice and Criminal Evidence Act 1999. These criteria are sufficient to provide for special measures in appropriate cases. For these reasons, we oppose the clause standing part of the Bill.
The provisions in Clause 86 form part of the Government’s strategy to tackle gun and knife crime, which tends to see high levels of witness intimidation. The aim is for this provision to give witnesses to such crimes reassurance at an early stage in the investigation that they will be eligible for special measures assistance should that be needed to give evidence in court. In turn, we hope that this will encourage more witnesses to these offences to come forward. Eligible witnesses are able to opt out should they not require special measures assistance.
While the Bill makes eligibility for special measures automatic for the class of witness, the court will continue to have full discretion to determine which special measures, if any, should be available to any particular witness. In determining this, the court must consider which, if any, of the measures would be likely to improve the quality of evidence given by the witness and whether the measures might inhibit the evidence being effectively tested. It is unlikely that a court would decide that certain witnesses needed the assistance of special measures to improve the quality. Essentially, the court will have the test of whether it might inhibit the evidence being effectively tested.
Clause 87 amends the existing legislation by creating one rule for all child witnesses and by providing greater flexibility in the way in which young witnesses may give their evidence. This responds to concerns that the present provisions are too rigid and do not give young witnesses any choice about the way in which they give their evidence. The clause abolishes the distinction between child witnesses in cases involving sex or violence and child witnesses to other types of offence. It provides a presumption that all child witnesses, regardless of the type of offence, will give their evidence via video-recorded statement and live link, unless this would not maximise the quality of their evidence. However, it also provides that the witness may opt out of giving evidence this way, wholly or in part, subject to the agreement of the court. If child witnesses wish to give evidence in the courtroom, there is a presumption that they will do so behind a screen. Should witnesses not wish to use a screen, they will have a further opportunity to opt out, again subject to the agreement of the court.
We are committed to helping vulnerable child witnesses to give evidence in the best way possible for them in court, in a way that reduces the trauma of the experience and enables them to give their evidence. The current system, established by the Youth Justice and Criminal Evidence Act 1999, is based on the view that all children should be protected from giving evidence in the courtroom, particularly witnesses to offences of sex and violence. Thus, at present, child witnesses in these cases, regardless of their views, must give their evidence in chief via video-recorded statement and live link, unless to do so would not be in the interests of justice.
However, these provisions have been criticised for their complexity and inflexibility. After six years, independent research shows that many young witnesses want more choice in the way in which they give their evidence. This view was supported by a review of child evidence that led to a public consultation exercise in 2007. The vast majority of respondents to that exercise were largely in favour of this change. I assure noble Lords that the provision will not reduce the protection offered to young witnesses but will ensure that special measures are flexible and tailored to the needs of an individual witness, rather than assuming that all young witnesses are the same.
It is my fault that I did not address Clause 87 earlier, but perhaps I may make one or two points about it. Section 17 of the Youth Justice and Criminal Evidence Act at the moment provides that a witness is eligible for assistance if the court is satisfied that the quality of the witness’s evidence would be reduced on the grounds of fear or distress about testifying. The court takes into account a number of factors as well as the views expressed by the witness. Clause 87 gives automatic eligibility for assistance to witnesses in proceedings relating to gun and knife crimes as set out in the schedule, so that it ceases to be a matter for the discretion of the court altogether. There is automatic protection, not because a person is in fear or distress but because of the nature of the crime before the court.
We consider it imperative that, as far as possible, special measures be left to the discretion of the court to determine on a case-by-case basis, because it is undoubtedly true—and it is my personal experience—that once the jury sees a witness screened off with their voice distorted, it will assume that the defendant is a dangerous criminal capable of serious violence. Special measures should not therefore be used automatically, as Clause 87 suggests. It should be for the court to weigh the prejudice occasioned by the manner in which the evidence is given against the need, if there is a need—the fear and distress of the witness—to protect the witness. It is a question of balance, not of automatic qualification for these measures. It would have an impact on the whole concept of a fair trial if, without any request, a witness should be automatically granted these provisions. That is why I am opposed to Clause 87. I know that the Minister has already dealt with it in his reply—I apologise for that—but I was taking it in stages.
Perhaps I may say something about Clause 87 from the perspective of a former family judge. My own experience, and that of those who have represented children—particularly child and adolescent psychiatrists, who have had to help children who are likely to have to give evidence—has been that most children are extremely scared about giving evidence in court. The younger the child, the more scared they are, but anyone up to the age of 18 is intensely vulnerable. This seems to be one area of the Bill on which the Government are to be congratulated and I for one would like to see the clause go through.
I thank the noble and learned Baroness for her support. I should re-emphasise the role of the court. There is a distinction. Eligibility is automatic, but the court must still determine whether a special measure would be likely to improve the quality of evidence, which is the essential test to be applied in all cases.
Clause 86, as amended, agreed.
Schedule 12 agreed.
Clause 87 agreed.
Clauses 88 to 90 agreed.
Clause 91 : Examination of accused through intermediary
Amendment 185B not moved.
Debate on whether Clause 91 should stand part of the Bill.
Perhaps the Minister will deal with a couple of queries. As he is well aware, Clause 91 deals with the examination of the accused through an intermediary, but we have questions about the situations in which this will be deemed to be appropriate. Where a defendant’s level of intellectual ability or social functioning is so compromised that he is unable to understand and respond to questions asked in language appropriate to his age by a prosecutor, defence lawyer or the court, it is very unlikely that he will be able to participate effectively in his trial for the purposes of the trial being fair according to Article 6 of the ECHR. In these circumstances, he should not be on trial at all, but should be diverted to an appropriate alternative process, whether through fitness to plead or some alternative procedure.
If the defendant is unable to have a broad understanding of the nature of the trial process, or to have the “effective participation” in his own trial as was demanded in the judgment in the 2004 case of SC v United Kingdom, which includes an understanding of the significance of any penalty that may be imposed, the presence of an intermediary is unlikely to be a remedy. I welcome the Government’s comments on that.
Another concern is that the intermediary may not be wholly independent of the defendant and may risk giving evidence on his own account when he ought simply to be transmitting the information going to and from the defendant. These concerns have been brought to our attention by, among others, the Law Society and Justice. As I made clear, our opposition to the clause is purely probing in nature at this stage, but we seek assurances from the Government on the two points raised. If what the Minister says is unsatisfactory, we might want to come back to the matter at a later stage.
I think that the noble Lord, Lord Henley, and I were expecting the amendment to the clause to be moved, so if noble Lords will forgive me, I shall use my overall notes suitably amended.
Clause 91 enables the court to permit eligible vulnerable defendants to be assisted by an intermediary to communicate and understand if and when they give oral evidence at trial. Intermediaries are already available to assist vulnerable witnesses under Section 29 of the Youth Justice and Criminal Evidence Act 1999.
The 2005 ECHR judgment in the case of SC held that, when there was a risk of a defendant’s being unable to participate effectively in criminal proceedings because of youth or “limited intellectual capacity”, it was “essential” that the courts,
“give full consideration to, and make proper allowance for, the handicaps under which he labours, and adapt its procedure accordingly”.
Crown Courts already have inherent powers to permit a vulnerable defendant to use an intermediary when giving their oral evidence if it is necessary to ensure that they receive a fair trial. This clause puts this power on a statutory footing and extends the availability of intermediaries to vulnerable defendants in magistrates’ courts.
An intermediary’s role is limited to assisting the witness to communicate and understand. They can therefore communicate to the witness questions asked by the court, the defence and the prosecution. They can also communicate the answers that the witness gives. The intermediary may also explain questions and answers if it is necessary to enable the witness and the court to understand each other.
Intermediaries are independent of the defendant. Their paramount duty is to provide a service to the court. They are not on the side of either the prosecution or the defence; they are neutral and take an oath to the court to perform their services faithfully, as a translator of a foreign language would. The court may also discharge such a direction and, as a safeguard, may vary one where this is necessary. The Government intend that this clause will assist those defendants who genuinely have severe recognised communication problems to give their evidence and thus ensure that they receive a fair trial.
The questions of whether the defendant is fit to plead and the use of an intermediary are two separate issues. The tests that the court is asked to apply in each case are different. In the case of fitness to plead, the common law test is more stringent and about a defendant’s capacity to comprehend the course of the proceedings so as to make a proper defence. The law enables the defence or prosecution to make a claim to the court that the defendant is unfit to plead. This is a matter for them to decide. If such a claim is made, the judge will determine this only in the light of evidence from medical practitioners, at least one of whom must have special experience in the diagnosis or treatment of mental disorder. A separate application by the defence for an intermediary will instead be relevant if a contested trial is to proceed and the defendant intends to give evidence and requires assistance with communication for this purpose.
It does not follow that, when an intermediary is needed in the interests of a fair trial, a defendant should not be tried at all. While I understand the concerns that have prompted the amendment, it would be wrong in principle to restrict the ability of the defence to apply for an intermediary for a defendant by making it a condition that fitness to plead must be determined first. This would be an inappropriate and unnecessary restriction on the defence, particularly bearing in mind their professional duty to their client. There will be many defendants who are fit to plead and yet, in the interests of a fair trial, require some aid communicating when giving their evidence. We expect that fitness to plead will ordinarily be determined first, before arraignment.
Following this order would have the additional benefit that the evidence of specialist medical practitioners as to the defendant’s fitness to plead might also address whether, if the trial were to go ahead, that defendant had communication problems for which an intermediary might be required. However, in the interests of the accused, the court may postpone the issue of fitness to plead to any time up to the end of the prosecution case. The issue of fitness may be raised by the defence, prosecution or court itself. This provides for the necessary flexibility to accommodate circumstances when—for example, due to the nature of the disability—it may not be appropriate to determine the question from the outset. In the light of this explanation, I hope that the noble Lord will support the clause.
We do support the clause. I have had the experience of defending a person who was absolutely deaf and could not speak—so was the deceased and so were four or five of the witnesses, which meant that most of the trial was conducted in sign language. It was astonishing to me that those who were signing could communicate more quickly than in ordinary speech, so the interpreters of the sign language, who were telling the jury what was being said, were unable to keep up. The use of intermediaries in such a situation is very much in the interests of a defendant and I am pleased to see that this clause contains something giving statutory approbation to it.
I am very grateful, as always, to the Minister for his response to my opposition to the clause standing part of the Bill. As I stressed at the beginning, my opposition was purely probing. I want to consider very carefully in due course—we have the whole summer in which to do it—what he had to say. I will also consider comments from bodies such as the Law Society and Justice on what he said and then decide whether further examination of this clause is necessary at Report.
Clause 91 agreed.
Clause 92 agreed.
Clause 93 : Directions to attend through live link
Debate on whether Clause 93 should stand part of the Bill.
Clause 93 seeks to remove the requirement of the consent of an accused person before a live link is used at preliminary and sentencing hearings. Chapter 4 amends the Crime and Disorder Act 1998 in relation to the use of live video links. The greatest concern is this clause, which systematically replaces the existing requirements in that Act that the accused must give his or her consent to the use of a live link at preliminary hearings and sentencing hearings. Instead, the court may direct the accused’s attendance by way of a live link when it is satisfied that it is not contrary to the interests of justice to do so. There is no direction on how that is to be assessed or whether representations can be made. Similarly, the amendment removes the requirement for consent on the part of the accused to the giving of evidence at preliminary or sentencing hearings.
The requirement that the accused consents to live link directions is an important safeguard against potential abuse. The physical appearance of the accused in court at pre-trial and sentencing hearings is a prerequisite for the effective exercise of rights under Articles 3, 5 and 6. By the accused appearing in court, the court may see first hand whether the accused has been subject to any abuse of any sort. Clause 93(4) of the Bill provides that the accused may continue from a preliminary hearing by live link directly to a live link sentencing hearing—for example, when he or she pleads guilty—at the direction of the court, so that the accused may never have the opportunity to present himself or herself in court. That increases the risk, however minimal it might be perceived, that an abused prisoner might be induced to plead guilty.
I apologise to your Lordships for referring always to experience, but it is only at the beginning of this year that I had a situation in which a client who was kept in prison suffered from a very bad back injury and was unable to attend the court at any time. That caused problems from the defence point of view—problems in getting into the prison to see him and problems on the day of the hearings in getting proper instructions. Your Lordships may well take it from me that live links are not always working. It is difficult, if something emerges in the course of a hearing, to take any instructions about it. Therefore, to impose a live link on a defendant when he does not want it is, in my respectful submission, a breach of his right to a fair hearing. If, on the other hand, as happened in January of this year, the defendant is unwilling to go to court because of physical injury, that is a different matter. His consent to the hearing is something that he can give. To remove that consent altogether is not appropriate, which is why we oppose the clause standing part.
At present, consent is required for the use of a live link for certain sorts of hearing, while it is not required for others. It is difficult to justify this inconsistency. A live link hearing ought to be treated much like any other hearing.
Everyone is aware of the need for increased efficiency in the justice system. We believe that the increased use of live links that this clause provides for will enable cases to be progressed more quickly and ensure the best use of available resources and technology. Crucially, the quality of justice will not be affected by these changes: live link hearings will take place under the same rules and guidelines as usual, and the defendant will have access to all existing legal safeguards.
Live links now have a history. They were first introduced in the Crime and Disorder Act 1998 and were subsequently amended in the Police and Justice Act 2006, which also extended live links to cover certain sentencing hearings.
The current situation, as I say, is inconsistent in that defendants already in prison cannot veto the use of live links for their preliminary hearings, but they can veto the continued use of a live link for sentencing if they plead guilty during the preliminary hearing. Such defendants must give separate consent if they are to give oral evidence at this sentencing hearing. The defendant’s consent is also necessary where he has been convicted and is to be sentenced at a live link hearing from prison called for this purpose. Again he must also give separate consent if he is to give oral evidence at that hearing.
In virtual court hearings where the defendant is at the police station, either having been detained there or having returned there to answer what is described as “live link bail”, the defendant’s consent to the live link is required. These police station-to-court live links are a new initiative—indeed, an oral Question about them was asked in the House just a couple of weeks ago—and are being operated, as noble Lords may know, as a pilot in four London police stations. As of 3 July, 23 cases have been heard that way. There has been an average of four hours between charge and first hearing, and approximately 75 per cent of cases heard so far have resulted in a guilty plea and sentence, meaning that the cases have been concluded on the day of charge, demonstrating the potential of virtual courts to speed up justice for all those involved. That, of course, includes defendants too.
The clause will remove the requirement for defendants’ consent to live links in the following situations: first, preliminary hearings where the defendant is at a police station—virtual courts—and hearings to sentence the defendant where he has pleaded guilty during that virtual court hearing; secondly, hearings to sentence the defendant where the defendant is in prison and has pleaded guilty during the preceding live link preliminary hearing; and, thirdly, hearings arranged for the purpose of sentencing a defendant already in custody. In those last two situations the clause also abolishes the requirement that a defendant give separate consent if he is to give oral evidence during these types of hearings.
The safeguard in the clause adds a requirement that a live link direction is not to be given in any of these circumstances unless the court is satisfied that it is not contrary to the interests of justice to give the live link direction, and, importantly, a court can rescind a live link direction at any time for the same reason. In practice, this will mean that a court will take into account a defendant’s view on the use of a live link, or any particular needs he may have that renders the use of a live link unsuitable.
It hardly needs saying that these changes have enormous potential to increase the speed, efficiency and effectiveness of our criminal justice system without affecting the quality of justice. This will, we hope, deliver a better deal for victims and witnesses as cases will be resolved more quickly; a better deal for the taxpayer, as precious resources will be used more efficiently; and a better deal for the defendant himself or herself, as their case will be progressed more quickly.
The noble Lord asked how a court will satisfy itself that it is not contrary to the interests of justice to give a live link direction. My reply is that the court will take into account the wishes of the defendant. So while it may not be enough for him merely not to consent, he will be asked his wishes regarding live link and, of course, about any particular needs that the defendant might have that might render the use of a live link unsuitable. As I say, the court can rescind any live link direction at any time in the proceedings. So where it is or becomes inappropriate to have a live link direction, the case can be sent for a regular court hearing in the usual manner. I should add that no trials can take place under a live link; they have to take place in court itself. I should also add that the defendant has the chance through the live link of seeing the Crown prosecutor, the tribunal and all other interested parties
There has been concern about defence representatives. Where the defence representative is at the magistrates’ court, that lawyer will be able to communicate privately with the defendant using the video link in advance of the hearing. For such discussions the defendant will use a live link from a private interview room in the police station through which he will be able to see and hear his lawyer at the magistrates’ court. The defendant will be alone for the duration of such discussions, thus preserving confidentiality.
We are moving forward with this scheme because so far it seems as though it has worked well. Of course we are watching it with extreme care. If there are any signs that it is not working well, we will look carefully to see what we should do about it. The safeguard for the defendant is that the tribunal has the right to say no to such a link. It also has the right to stop any link taking place if it is felt to be unjust. We therefore ask that Clause 93 stand part of the Bill.
I hear what the Minister says. I have limited experience—but I have experience. What I think is not understood is the physical limitations for the use of live links. In a very busy Crown Court that I know of, which has some 17 courts operating, there are two rooms where it is possible to take instructions along the lines that the noble Lord has mentioned. Of course there is a queue. You have to wait. It is quite impossible to go back, as I said earlier, to take instructions as a case develops. That is just physically impossible. Although the equipment can work, sometimes it does not.
I am afraid that we are moving towards a situation where defendants are going to be even more packaged up and removed from the ambit of the courtroom where the judge can see and hear a real person. If this goes through, the judge will be able to sentence a person without his consent to a live link. He cannot ask him any genuine real questions by live link. He cannot appreciate the atmosphere in which the case is being advanced. We are approaching what used to be called a 1984 situation, with defendants popping up on a screen and being popped away without any physical contact with the court scene. I think that this is a retrograde step, but I will not oppose the matter any further.
Clause 93 agreed.
Clauses 94 to 99 agreed.
Clause 100 : Powers in respect of offenders who assist investigations and prosecutions
185C: Clause 100, page 61, line 13, leave out “Enterprise and Regulatory Reform” and insert “Innovation and Skills”
These are purely technical amendments which do not affect the substance of the clause. Clause 100 extends to the Financial Services Authority and the Secretary of State for Business, Enterprise and Regulatory Reform the statutory powers in the Serious Organised Crime and Police Act 2005 for prosecutors to confer immunity from prosecution in respect of defendants who co-operate in the investigation and prosecution of others. There is also provision for defendants who turn Queen’s evidence to receive a reduction in their sentence in return for their co-operation.
Following the machinery of government changes announced by the Prime Minister last month, it is necessary to replace the various references to the Secretary of State for Business, Enterprise and Regulatory Reform with references to the Secretary of State for Business, Innovation and Skills. Following Royal Assent it will be possible, in response to any future machinery of government changes affecting this clause, to amend this provision through a transfer of functions order. I beg to move.
I am somewhat intrigued by these amendments, which we are told are minor and technical. In my experience, references to “the Secretary of State” in any legislation refer simply to “the Secretary of State” on the basis that “the Secretary of State” is a single legal entity. You then infer from the Act which Secretary of State it is. So, in my days in education, when we were passing education Bills, when the Bill said “the Secretary of State”, that meant the Secretary of State for Education.
Later, under this Government, what was the Department of Education started changing its name with monotonous regularity. If we had put in the words “the Secretary of State for Education”, every time a new education Bill came through, further drafting amendments would presumably have had to be made to a whole host of bits of legislation, suggesting that his or her name should be changed to whatever the Government had decided that that department should now be called.
This has happened in this case because the Government started by saying “the Secretary of State for Business, Enterprise and Regulatory Reform”, which is a pretty silly title anyway, and now want to change it to the almost sillier title of “the Secretary of State for Business, Innovations and Skills”. We understand that that also includes universities, but for some reason they did not want to add that to the title.
Anyway, on this occasion we are told that we will have the full title of the Secretary of State. Perhaps the Minister can assist me. It might be because, on this occasion, we have in Clause 100(3)(a),
“the Secretary of State for Business, Enterprise and Regulatory Reform, acting personally”.
Well, if he is acting personally, one might have gone further. Rather than giving his title, we could have used a whole raft of titles, such as “Lord Mandelson of Foy in the county of Herefordshire and of Hartlepool in the county of Durham, Lord President of the Council, Secretary of State, Deputy Prime Minister”—the whole lot. I honestly do not know.
Put simply, can the Minister tell us why we cannot have just “the Secretary of State”, as we have always had in the past? When does the Minister expect to seek to amend the Bill further when the Prime Minister changes the title of that department again? Is this an appropriate way to go about things? If the Minister is going to suggest that the clause stays as it is, might this be one of those occasions where we have a new regulation-making power—it could even be negative; I would not even insist that it be affirmative—so that we could change the title as appropriate by means of negative instruments?
The noble Lord, Lord Henley, makes the case for spelling out which Secretary of State quite well. I believe—and I will write to the noble Lord if this is not correct—that it is essentially for the avoidance of doubt. Our amendments already pick up his suggestion. There will be no requirement for future changes to the Secretary of State’s title in primary legislation. It will be covered in the transfer of functions order, as I said earlier. That will have the power to change the title in this case.
I, too, was curious about what “acting personally” means. My answer begins:
“There is no intention that the Secretary of State will actually use these powers himself”,
which I thought was a great start. The powers will be used by an appropriately senior prosecutor within the department. Where a Secretary of State is ordinarily granted a power in legislation, unless otherwise specified this power may automatically be exercised on his behalf by a large number of officials within his department. We want to ensure that these powers can be delegated by the Secretary of State only to no more than two appropriately senior prosecutors within the department. That is the sole reason behind the use of the phrase “acting personally”.
This is complete nonsense. I suggest that the noble Lord takes the amendment away, goes back to his draftsmen and suggests to them that we go back just to “the Secretary of State”. He is creating more confusion by specifying which Secretary of State, because it casts into doubt all the other statutes that refer simply to “the Secretary of State”. I suggest that the Minister has another look at it and comes back with further amendments on Report that put us back on to the normal footing that we understand, on the basis that we all know who the Secretary of State is. We always find a means of understanding what any particular statute means.
I have every faith in those who drafted these clauses. I am sure that when we come back and probably propose precisely the same clauses everybody will be convinced by the extensive arguments I shall field. However, I recognise the mood of the Committee and shall withdraw the amendment. I expect to retable the amendments on Report. I suspect that they will be the same, but we will be backed up both by more reasons for why it is necessary to name the Secretary of State and by a response to the question about how we believe a court might react. I beg leave to withdraw the amendment.
Amendment 185C withdrawn.
Amendments 185D and 185E not moved.
Clause 100 agreed.
Clause 101 : Bail: risk of committing an offence causing injury
Amendment 185F not moved.
Clause 101 agreed.
Amendment 186 had been withdrawn from the Marshalled List.
Amendments 186A to 186C not moved.
Clause 102 : Bail decisions in murder cases to be made by Crown Court judge
Amendments 186D to 186F not moved.
Clause 102 agreed.
187: After Clause 103, insert the following new Clause—
“Independent Commissioner for Terrorist Suspects
(1) The Secretary of State shall appoint a person to be known as the Independent Commissioner for Terrorist Suspects (the “Commissioner”) and such appointment shall be subject to the approval of the Lord Chief Justice, and shall be on such terms as to length of service and remuneration as the Secretary of State shall determine.
(2) The principal function of the Commissioner shall be to monitor the detention and treatment of terrorist suspects held under section 41 of and Schedule 8 to the Terrorism Act 2000 (c. 11) and in particular to give the judicial authority such independent assistance as it may require in deciding whether or not to extend the period of detention, and to perform such other related functions as the Secretary of State may determine.
(3) In order to fulfil his functions under this section, the Commissioner shall be entitled to visit Paddington Green Police Station, and any other place of detention where terrorist suspects are held, so as to ensure that the questioning of suspects is being carried out diligently and expeditiously, and in accordance with the provisions of Schedule 8 and PACE Code H.
(4) Such visits shall take place at the discretion of the Commissioner and may be unannounced.
(5) The custody officer shall inform the Commissioner within 24 hours of a terrorist suspect being detained.
(6) The police shall give the Commissioner such assistance as he may reasonably require so that he can fulfil his functions under this section.
(7) The Commissioner shall be entitled to interview terrorist suspects with their consent, and may require such interviews to take place in the absence of the police and he may also attend interviews, conducted by the police.
(8) The custody officer shall inform the Commissioner whenever the prosecution are to make an application for the extension of the period of detention and the Commissioner shall be entitled to be present at the hearing.
(9) The Commissioner shall make an annual report to Parliament as to the carrying out of his functions under this section.”
The purpose of the amendment is to require the Secretary of State to appoint an independent commissioner for terrorist suspects. The commissioner would have two main functions. First, he would be able to monitor the detention and treatment of suspects detained under Section 41 of the Terrorism Act 2000. Secondly, he would act as the eyes and ears of the judge when the prosecution apply for an extension of time from seven days to 14 days and, ultimately, to 28 days under the provisions of Schedule 8.
Eight months ago, in November 2008, I moved an almost identical amendment to the Counter-Terrorism Bill. That amendment was supported by the noble and learned Lord, Lord Mayhew, whom I am glad to see in his place, the noble Viscount, Lord Colville of Culross, the noble Lord, Lord Dear, the noble Baroness, Lady Manningham-Buller, and many others, including the two opposition Front Benches. At the end of the debate, the noble Lord, Lord West, said that at first he had been minded to resist the amendment, but that, having listened to the debate, he would accept the amendment in substance, but needed more time to look at the wording. This Bill seemed to present a good opportunity to bring back the amendment before the Committee.
I will remind the Committee of the benefits that will flow from the amendment, if it finds favour. I can do so briefly, because we went into it at some length last year. There are two main benefits. The first is that it will bring reassurance to members of the Muslim community—a point made very strongly on the previous occasion by the noble Baroness, Lady Falkner of Margravine. It comes about in this way. When terrorist suspects are arrested, often in circumstances of great publicity, and then released without charge after 28 days or whatever period it may be, it causes much resentment. It is resented, naturally, by the suspect himself. However, it is also resented by the suspect’s neighbours, and by the Muslim community at large. The presence of an independent commissioner at Paddington Green would do much to reassure the Muslim community, not just that the suspects are being well treated, as should surely go without saying, but also that the police are getting on with the investigation as quickly as they can. In other words, the community needs to be reassured that suspects are not being detained for a day longer than is absolutely necessary. The amendment that I am moving will be in accordance with recent government policy, which is to remove, so far as can be done, the causes of alienation among ethnic minorities. The policy sometimes goes under the name “Respect”. I may be wrong about that, but I hope that the Minister, when he replies, will say at least that this idea comes within the general scope of that important policy.
The second benefit flowing from the amendment is less obvious, but is equally important in the interests of justice. As the Committee knows, suspects are detained in the first instance for seven days. An application can then be made before a judge to extend the period to 14 and ultimately 28 days. As things stand, the judge has nothing to go on except what he is told by the prosecution. It is true that the suspect’s counsel may be present and can make submissions. However, neither the suspect himself nor his counsel will have access to the closed material; so counsel’s submissions on the point of whether there should be an extension will be based necessarily and to a large extent on guesswork.
The advantage of having a commissioner is that, unlike counsel, he will have seen all the closed material in relation to all the suspects who are being investigated. He will be in a much better position than counsel to assist the judge by expressing an independent view on whether, for example, the police are getting on with the investigation as quickly as they should; or, to take another example, on whether the case against some of the suspects is so weak that they ought to be released at once. Since the commissioner will be present at the hearing of the application for an extension, he will be able to express his concerns to the judge and can be questioned by the judge about them. Of course, the prosecution will be able, so far as it can, to answer the concerns.
I remember well, when we were asked to extend the detention period to 42 days, that a great deal was made of the fact that it would be a judge who made the decision on whether to extend the time. That was to be the great safeguard; but that safeguard is illusory unless the judge has heard both sides of the argument. That is the object of the amendment.
There are only two arguments the other way. The first is a fear on the part of the police that it will hamper their investigation to have the commissioner present at Paddington Green. I do not understand their concern. The commissioner will be present during interviews at Paddington Green as an observer—nothing more. He will not stop the police conducting the investigation in any way that they may think appropriate. He will not stop them asking any questions that they want to ask. I hope that the Minister will explain why the police are so concerned, if indeed they are. The fear that the presence of the commissioner will hamper their investigation reminds me greatly of the fears that used to be expressed when it was first suggested that interviews should be recorded. Now the recording of interviews is seen as the most natural thing in the world: indeed, the police positively welcome it. The role of the commissioner being present at interviews will come to be seen in the same way.
The second objection is on the ground of cost. It is said that the cost of a single commissioner at Paddington Green will be £50,000 a year. Is that not a small price to pay for ensuring that the judge gets all the help that he needs in making his important decision and for reassuring the Muslim community that suspects are not being held longer than is absolutely necessary? I beg to move.
As a former police commissioner, I support the amendment, but not without reservations. I see a number of practical problems relating to the disruption of the meticulously planned chronology of the questioning of terrorist suspects. However, I believe that, on balance, the greater good that may be achieved by the creation of the commissioner post far outweighs any potential problems. As the noble and learned Lord said in moving the amendment, the potential engendering of confidence in the wider community by means of these provisions is well worth while. I support the amendment.
I am a complete amateur in this matter. I have just one question to ask the noble and learned Lord, Lord Lloyd of Berwick. Does he foresee a possibility that an assiduous commissioner might disagree with Her Majesty’s Government on substantive points from time to time? If that were the case, would it not be better to give some security of tenure and describe the circumstances in which he might be required to relinquish his post?
I assure the Minister who is about to reply that my support for this proposal has not diminished in any way since I expressed it when we went into all this last November. As regards the police objection that their investigations would be hampered if the commissioner was present in police stations, exactly that misgiving was expressed when I had some responsibility for Northern Ireland and I introduced a system, staffed in the first instance by Sir Louis Blom-Cooper QC, whereby a commissioner was present when the police questioned a suspect. In a very short time, Sir Louis Blom-Cooper secured the support of all concerned with this procedure, including the police. I very much endorse what was said in that regard by the noble and learned Lord, Lord Lloyd of Berwick, a few minutes ago.
There is a necessary but inherent weakness in the procedure for the extension of detention from seven to 14 and ultimately to 28 days. It is a necessary weakness but it can be addressed by having a commissioner present and informed in the way in which the noble and learned Lord has described. It is not easy for a judge to determine whether the case for an extension has been made, particularly where the defence counsel is not able to see the strength of a case against him. Judges in this rather unwelcome position need all the support that they can get. I believe that that is provided to a significant extent by the terms of the proposed new clause.
I intervene to support the amendment as a trustee of an English charitable organisation, Forward Thinking. Over the past four or five years it has worked, through Muslims, with Muslim communities in England to break down feelings of alienation and being in a ghetto that may, and do, exist. We have had some success. The amendment would prevent English Muslims from feeling that they were being attacked or vilified for supporting terrorism. Therefore, I am all in favour of it.
I, too, support the amendment. It is very important that not only the terrorist suspect but his family, children, friends and neighbours within the Muslim community are all reassured. This matter usually, but not necessarily, involves Muslims but could also affect Sikhs or other local communities. It is important to have the reassurance provided by the appointment of a commissioner. If any problem arises regarding how the commissioner should exercise his powers, I have no doubt that the noble and learned Lord, Lord Mayhew, would give advice on that. However, I should have thought that guidance could be provided to the commissioner on the appropriate way to carry out his duties. It is important that those who may be incorrectly suspected of terrorism, and are rightly picked up by the police in these dangerous days in which we live, should know that someone will be there to keep an eye on them.
This matter was debated at length on a previous occasion when the noble Lord, Lord West of Spithead, said that he would like to accept the substance of the amendment. On that occasion, my noble friend Lady Falkner of Margravine, who is present, said how important it was to restore confidence among ethnic minority communities. We support the amendment.
I, too, support the amendment put forward by the noble and learned Lord, Lord Lloyd. The Government are apparently worried about the proposal for an independent commissioner and are concerned that his presence would somehow cause delays in judicial hearings. They are perhaps worried that police investigations would be delayed because of the need to accommodate the commissioner at short notice. These arguments, which seem to rest on convenience and administrative efficiency, do not seem to me to be the whole story. As the noble and learned Lord, Lord Lloyd, pointed out, the presence of the commissioner could make the proceedings more efficient as well as having the advantage of reassuring minority communities, as he pointed out.
I go further: reassuring communities outside the legal process, and the families of those involved, that the process is fair and just is a form of efficiency. What are you trying to do at the end of the day? We should be trying to deliver justice and convince the outside world that justice is being delivered. It is inefficient not to go the necessary short distance to increase the possibility of being able to do that. I am disappointed that it appears that this idea will not be included in the legislation, as there is no government amendment.
We ought also to bear in mind the fact that the Joint Committee on Human Rights has consistently concluded that the current arrangements for judicial authorisation of extended pre-charge detention do not satisfy the requirements of either habeas corpus or Article 5 of the European Convention on Human Rights. This amendment would help in that regard. The committee has found that the hearing of an application for further detention is not fully adversarial and that judicial oversight is inadequate as a result of the narrowness of the questions that the court is required to answer in making its decision. The establishment of a commissioner would help in all those respects.
The Government may have alternative ideas. If they involve the statutory reviewer of terrorism legislation taking on a further duty in this respect, I should point out that the noble Lord, Lord Carlile, is already a very busy man. It would be difficult for him to take on the full role that is required to provide the reassurance that a special commissioner would be able to offer.
I very much hope that the Government will think yet again about this. If the way in which we conduct these trials continues to be criticised, it seems to me that not only is justice not delivered but we provide grounds for potential appeal. Above all, we ought to do our very best to ensure that the proceedings that we conduct not only deliver justice but are seen to deliver justice to all those involved, particularly minority communities.
Before I respond to the amendment, I pass on the apologies of my noble friend Lord West of Spithead, who—partly, I suspect, because of the speedy passage of business in the past hour or so—is not able to be present due to government commitments. He very much wanted to take part in this debate. I hope that the Committee accepts his regret that he is not able to be present.
Members have already recalled the depth of the debate that we had on a previous occasion, which is undoubtedly why the contributions of the noble and learned Lord and other noble Lords, reiterating positions previously taken, have been modest in length and have not repeated the argument to which my noble friend Lord West of Spithead sought to respond. As the noble and learned Lord, Lord Lloyd, has pointed out, my noble friend gave a commitment to establish such a role at Third Reading on the Counter-Terrorism Bill on 17 November. We have heard again, very much in shorthand form, many arguments from those who favour such a position. Although the case that the noble and learned Lord and others is one in which they believe strongly—on the occasion that we last considered it, it brought forward a lot of sympathy across the House—I am afraid that the Government cannot accept the amendment.
Since the debate last November, we have consulted further with the police, prosecutors and the Courts Service, in Scotland and Northern Ireland as well as in England and Wales. As a result of those consultations, we now believe that an independent commissioner as envisaged by the amendment would have a detrimental effect on the conduct of terrorist investigations.
Two main arguments have been made for establishing an independent commissioner. The first is that judges who consider extension applications do so on the basis of limited information and that the police do not conduct investigations quickly enough. That is why Amendment 187 provides for an independent commissioner to advise a judge at extension hearings on whether continued detention is justified. It is worth pointing out, however, that judges are already required by legislation to ensure that suspects are not detained for longer than necessary and that investigations are carried out “diligently and expeditiously”. The application by police or the CPS for extended detention is a rigorous process; it is not a rubber-stamping job. Indeed, an independent report of the inspection of the counterterrorism division of the Crown Prosecution Service in April this year found that, in all pre-charge detention cases that were reviewed, extended detention had been applied only where it was properly justified.
The second argument for an independent commissioner is that the commissioner would ensure that suspects were not ill treated and thus provide communities with reassurance. Many of your Lordships will know that PACE code H already sets out the detailed conditions for detention of suspects. It includes access to medical assistance, legal advice, visits from friends and family, provision for religious observance, exercise, meals and reading materials. All interviews with suspects are already recorded. Again, it is worth noting that there have been no complaints from suspects that PACE code H has not been adhered to or that the conditions of their detention have not been satisfactory.
Against the arguments in favour of an independent commissioner for suspects, we also have to look at the views of those who deal with the process on the ground—the police, the prosecutors and those who deal with the application for detention in our courts. As I said, we have consulted further all these organisations. Their strongly held view is that allowing a commissioner a role in extension hearings would delay those hearings. The question was raised: why was there police concern? One aspect of it is that there is a belief that suspects will insist on the commissioner being present, therefore delaying interrogations, briefings, conversations—call it what you will—while the commissioner is found, and that they will insist on interviews with the commissioner for reasons that will delay prosecution.
The period between arrest and charging is one of considerable pressure and there are concerns that unannounced visits from the commissioner and the need to provide him or her with papers again would delay investigations, achieving the exact opposite of what is intended by the proposal. It is also possible that suspects could use the role of the commissioner to manipulate and control the time available for an investigation. As I said, the police were concerned about people requesting private interviews or insisting on the presence of the commissioner in police interviews. There are clear and strong operational reasons for not establishing an independent commissioner of the sort envisaged by the amendment.
There is also a case for saying that such a commissioner is unnecessary. Suspects’ interests are already looked after by independent reviews in three different bodies. It might help if I briefly say what those are. First, the Police Reform Act 2002 already provides for independent custody visiting of persons held in police detention, including those detained under counterterrorism legislation. Custody visitors can make random, unannounced visits to suspects and can discuss with them their treatment and conditions of detention. They may examine custody records and inspect detention facilities. A report is completed after each visit. Secondly, in 2008, Her Majesty’s Inspector of Prisons and Her Majesty’s Inspectorate of Constabulary began jointly to inspect prison custody suites. They have unfettered and unannounced access to such facilities and can interview detainees. Part of their role is to ensure adherence to PACE codes and the appropriateness of treatment and conditions in which suspects are held. Thirdly, the noble Lord, Lord Carlile, already has a statutory role in relation to the operation of the Terrorism Act 2000. That includes visits to custody suites and reporting annually on the operation of pre-charge detention. Therefore, there are a number of very strong independent safeguards to ensure that suspects are properly detained and their welfare is looked after.
Finally, I point out that the role envisaged by this amendment would be too much for one person. The noble and learned Lord referred to Paddington Green as the centre where this would take place. However, over a nine-month period in Northern Ireland, the independent commissioner for detained terrorist suspects conducted 61 visits and interviewed detainees on 122 occasions. That involved only one place of detention. We therefore assess that at least five commissioners would be required to cover the whole United Kingdom, particularly as suspects are increasingly likely to be detained outside London. Assuming that each commissioner would cost in the region of £50,000 per annum, we estimate that the cost would be a minimum of £250,000 a year, not the £50,000 figure that the noble and learned Lord refers to. For these reasons, I unfortunately cannot accept this amendment.
That said, there are a number of things that we can do to provide further reassurance on the detention of terrorist suspects. First, we can look at extending the role of independent custody visitors. In particular, the role could be extended to provide an annual report to the Home Office specifically in relation to custody visits that involve the detention of terrorist suspects. It may also be possible to extend their role so that they can view recordings of any interviews with a suspect, as is now the case in Northern Ireland. Additional training could also be given specifically on the detention of terrorist suspects before charge. Secondly, we could ensure that the noble Lord, Lord Carlile, was informed of all arrests under Section 41 of the Terrorism Act 2000. He would then be able to visit any detention facility where suspects were held and to view interview tapes. He can already attend any extension hearings that he may choose and he can reflect the outcome in his annual report on the operation of terrorist legislation. Given that, I therefore ask the noble and learned Lord to withdraw his amendment. If that is not possible, I am afraid that the Government have no choice but to resist it.
As always, I am grateful to the noble Lord for what he has said and for offering certain alternatives that came to mind. However, I have not been persuaded that the amendment will not bring the benefits that I outlined and which other noble Lords have supported. Therefore, I wish to test the opinion of the Committee.
House resumed. Committee to begin again not before 8.40 pm.
Identity Cards Act 2006 (Information and Code of Practice on Penalties) Order 2009
Motion to Approve
Moved By Lord West of Spithead
That the draft order laid before the House on 6 May be approved.
Relevant Documents: 14th Report from the Joint Committee on Statutory Instruments, 19th Report from the Merits Committee.
My Lords, these draft statutory instruments are being made under the Identity Cards Act 2006, which received Royal Assent in March 2006, and together will enable the Government to deliver on their 2005 election manifesto commitment to introduce identity cards.
We are discussing five draft statutory instruments, whereas we had laid before the House a package of six separate affirmative statutory instruments. However, as the Home Secretary announced in a Written Ministerial Statement on 30 June, the sixth order, the draft Identity Cards Act 2006 (Designation) Order 2009, has now been withdrawn. The explanatory memoranda published at the same time as each of the statutory instruments refer to this sixth order, and therefore those references should be ignored. The decision to withdraw the designation order was made so that obtaining an identity card will now be on an entirely voluntary basis—just as it is for passports for British citizens—including the identity cards that will be issued to airside workers at Manchester and London City airports later this year, and as they are issued in France where the vast majority of the population chooses to carry them.
This also means that the concerns of the aviation sector unions have been addressed. This was the key issue which was drawn to the House’s attention by the Merits of Statutory Instruments Committee in its 19th and 20th reports on these statutory instruments. As usual, we are very grateful for these reports and have taken them fully into account.
Through a phased commencement of the provisions of the Identity Cards Act, we will start to issue voluntary identity cards to airside workers, but also to ordinary people resident in Greater Manchester, starting in the autumn, and with a subsequent extension to other parts of north-west England.
I will briefly run through the purpose of each statutory instrument. Initially, I shall explain the purposes of the draft Identity Cards Act 2006 (Information and Code of Practice on Penalties) Order. First, to confirm the identity of passport and identity card applicants, this order sets out the government departments and organisations which may be required to provide information in support of an identity card application or to verify information already held on the register. The prescribed organisations listed in the SI were engaged throughout the 12-week consultation process and are content to be included in the order.
Secondly, the order will enable the police to verify the identity of people where there has been a death or serious injury but there is no criminal investigation—for example, such as following a major natural disaster. It will allow information from an individual’s entry on the national identity register to be provided, without their consent, to the Scottish Crime and Drug Enforcement Agency and to the Security Industry Authority, as is currently the practice with passports.
Finally, it provides for the code of practice on civil penalties to come into force. A civil penalty regime will be in place to encourage individuals’ compliance with the requirement to notify changes, such as a change of name or address, that would affect the accuracy of the register, to surrender an identity card or to report a card lost or stolen. The code sets out when a civil penalty should be issued and how the amount of the penalty should be calculated. It explains the processes in an accessible format and is the one document for which we have a legal requirement to consult, although we have in fact carried out a 12-week public consultation on the entire package of secondary legislation.
The civil penalty scheme will not be punitive or revenue-raising. If there is good reason for failure to comply or if the requirements of the Act have been complied with, the usual procedure will be to waive any penalty. We do not expect to need to apply the civil penalty regime to any great extent. However, without it, there would be a serious gap in our ability to ensure that the register was up to date and reliable. The imposition of civil penalties would not lead to any sort of criminal procedure, so a person on whom a penalty was imposed would not receive a criminal record and there would be no possibility of imprisonment as a result. The maximum penalty allowed for in the Act is £1,000, which incidentally is the maximum fine for failure to update driving licence details with the DVLA. However, as the code of practice makes clear, the basic penalty level would be £125.
Secondly, I move on to the draft Identity Cards Act 2006 (Provision of Information without Consent) Regulations. The purpose of these regulations is to ensure that information from an individual’s entry on the national identity register can be provided to a limited number of government departments for defined functions, and to specify who can receive information on behalf of the prescribed individuals in the security and intelligence services, the Serious Organised Crime Agency, the police and Her Majesty’s Revenue and Customs. The Identity Cards Act does not allow information to be provided from the national identity register to any private sector organisations without the consent of the individual to whom the information relates. The regulations extend the list of government departments to which information may be provided without consent and set out the function. They are primarily based on our experience of providing information from passport records, and they establish a transparent and clear framework for data provision from the national identity register.
The Identity Cards Act 2006 (Fees) Regulations establish a fee of £30 for either a first or a replacement identity card. These regulations also establish a number of cases where the fee is waived. There is a waiver of the fee where the original card issued to an individual proved to have been faulty or damaged in the manufacturing or issuing process. In addition, we have agreed to waive the fee for airside workers at Manchester and London City airports for an initial 18-month evaluation period.
It is also important to note the matters for which we are not charging a fee. Any change that does not require a replacement identity card to be issued, such as a change of address, will be free of charge.
I turn now to the draft Identity Cards Act 2006 (Prescribed Information) Regulations 2009. These set out the information that will be printed on the face of the identity card and held electronically in an encrypted form on the chip. There is a statutory requirement in the Identity Cards Act for some information to be encrypted as a safeguard.
The regulations make provision for a national identity card that will be issued to British citizens and British subjects with a right of abode. As this card will include the holder’s nationality, it will be valid as a travel document within Europe. The second type of card, the identification card, will be issued to European economic area nationals, including Irish nationals, who are resident in the United Kingdom and it will not include nationality. As a result, it will not be a valid travel document. It can therefore also be issued to British citizens who are not entitled to be issued with a travel document—for example, people such as drug traffickers on whom the court has put a limitation or travel restriction.
As listed in these regulations, the information on both card variants will be very similar to that on the personal details page of the passport. The card will also incorporate a chip which will include the same information as recorded on the front of the card, along with two fingerprint images and a digitised image of the holder. Additional security features will also be included in the chip, such as cryptographic keys and certificates. These will provide protection for the information on the card, as well as prevent the fingerprints recorded being read by those unauthorised to do so. This is all in line with specifications for biometric travel documents recommended by the International Civil Aviation Organisation. As was made clear as part of the public consultation, the holder’s address and national identity registration number will not appear on these cards.
The Identity Cards Act 2006 (Application and Issue of ID Card and Notification of Changes) Regulations 2009 outline how an individual can apply for an identity card and what information must accompany their application during the initial phase of the National Identity Service. The application form will be very similar to today’s passport. At a National Identity Service customer centre, applicants will be able to record their biometrics, have their photograph taken and register “shared secrets”. These act as a password that will allow them to report a lost or stolen card or a change of address over the telephone once they are registered.
The form will request some basic personal information about the applicant, such as name, address, address history, gender, nationality, date and place of birth, national insurance number, a contact telephone number and signature, as well as the name of a referee who has agreed to vouch for their identity, similar to the countersignatory for a passport, and information that confirms that they are entitled to a travel document.
When an applicant does not already hold a valid British passport, there will be some additional requirements to verify their nationality. These regulations also introduce a requirement to update key personal details on the register within three months of a change and to report a lost, stolen or damaged identity card within a month of the cardholder being aware that such an event has occurred. Where the change relates to a change of information recorded on the card itself, such as a change of name, the notification process is the same as that necessary to get a replacement card.
However, to report a lost or stolen card, or changes of information that do not relate to the information on the card, such as a change of address, the change can be made by calling a telephone service to be established by the Identity & Passport Service, during which the individual will be asked for their “shared secret”. Finally, these regulations also set the validity period of the identity card which again, in line with passports, will be 10 years.
I trust that this explanation has clarified the purpose of these five statutory instruments and I commend them to the House. I will of course be very happy now to deal with any points or questions that noble Lords might have.
My Lords, I thank the Minister for introducing these five statutory instruments, which I shall deal with now. I have a Motion to Resolve for discussion later on.
This is a slightly unreal debate. The Minister said that these statutory instruments, which implement the arrangements for the provision of identity cards, were due to have come to this House several weeks ago, but were delayed on the appointment of the new Home Secretary for his reconsideration. I think we all hoped that he would reconsider them out of existence.
On 30 June, in a Written Statement, the result of his cogitations was announced. It was that only the intention to make airside workers have compulsory ID cards in addition to those already required by their employers was to be changed from compulsory to voluntary. It was evident that the concerns of the unions, which had been against compulsion, had weighed heavily on the Home Secretary and he had thus given in. Hence the departure of one of the six statutory instruments—the Identity Cards Act 2006 (Designation) Order 2009 from those we are considering today.
This has blown a hole in the Government’s strategy for ultimately having compulsory identity cards and has made it inevitable that they will now be issued to those who apply for them, apart from foreign nationals, and those who want them. That is a far cry from the original intention, and there must now be a serious question as to the level of take-up there will be.
The rationale for introducing identity cards for all citizens has had a slipping genesis. When first promoted in 2005 it was to prevent terrorism. Then when it became obvious that it most certainly would not do that, the script changed to one of helping prevent identity fraud and to help prove eligibility for social security purposes. It is now to enable citizens to travel in Europe without a passport and, as a Minister in the other place said, to provide us all with a secure and reliable means of proving our identity. So, we are some way from where we started. Why should we want to do that with a government-inspired ID card when there are many other ways that citizens can prove who they are.
The question is whether there is any justification to enter on another expensive government-inspired and controlled venture which will involve yet another national database with all the hazards that that involves—of the Government not having the finest record regarding their databases. We do not believe that there is such a justification.
My honourable friend Chris Grayling has written to all the contractors involved in, or bidding for, the work to implement this strategy, putting them on notice that if the Conservatives win power at the forthcoming general election, this entire scheme will be cancelled. It is clear that the savings on identity cards alone will be very significant. The detail in the five remaining statutory instruments raises many questions. Turning to them not in the order in which the Minister has dealt with them, just to make it easier for everybody, I refer first to the fees regulations 2009, which introduce a £30 fee for each identity card. Can the Minister explain, perhaps better than the Minister at the other end, how that sum was arrived at? Is it based on the baseless case of known cost of the number of cards that will be issued annually? If so, when might the scheme be expected to break even? Does the Minister agree that the estimated costs for identity cards have already risen by more than £160 million.
The current card production contract, which was entered into on the policy of a fast roll into compulsory cards has, according to the Minister responsible for borders and immigration has capacity to issue 250,000 cards annually. As this is now permanently a voluntary scheme, take-up simply cannot be known, but the fee will stay at £30 for the next two years. Will the Minister tell us whether it is likely that, as with passports, the costs will spiral thereafter?
I have a few further questions on this regulation. What is the contracted cost for the ID card scheme alone, as opposed to a joint one with biometric passports? Is it correct that any airside worker who decides to have an identity card will be issued with one free of charge, and to how many other categories of people will free cards apply? Is it intended to issue free cards for all the lucky over-75s, and young people? If so, when will the orders be laid to that effect, as the regulations on fees today do not do that? Why would the over-16s want another identity card to identify themselves when they can already access one to prove their age?
Moving on to the Identity Cards Act 2006 (Information and Code of Practice on Penalties) Order 2009, the first question that springs to mind concerns the list of specified persons from whom the Secretary of State can obtain information to verify information for an ID card or a request for inclusion on the register. Will he say what possible role a credit agency should have in that regard? Further, what reason is there for including details of the referee on the register? Presumably, such a referee is marked as for a passport—a magistrate or some other person of integrity or position. Once their bona fides have been established, why should their name be kept on the register? Why indeed, would they want to act as a referee if their details are held after verification?
There will now be a civil offence for failure to amend information such as an address, and a fine. Does that apply as much to the referee as to the applicant? What room is there for a civil offence in a voluntary scheme? The provisions in this order make it very clear that this process is not directed towards enabling individuals to identify themselves, but a move by the Government to hold a considerable amount of information on each individual who is misguided enough to opt to have an ID card. Such information can then, under the regulations, be passed to other bodies. Indeed, under the Identity Cards Act 2006 (Provision of Information without Consent) Regulations 2009, that information can be passed on without the individual’s consent. Can the Minister tell us why, under those circumstances, anyone would risk applying to hold a card—especially someone who had something to hide? What safeguards will be in place to prevent any information between agencies and government departments going AWOL or falling into the wrong hands?
The orders and provisions have not changed since they were printed, prior to their being withdrawn for further consideration. They are still couched in terms of a mandatory identity card scheme. Neither the words nor the provisions are appropriate to something that is now purely voluntary and should be for the benefit of the individual, rather than of the Government.
The two remaining orders—on the application for and issue of ID cards, and the notification of changes regulations and prescribed information—give details of the reams of information that will be required when applying for documents and the information that will be put on the card. The Minister said that some of that will be encrypted. Can he tell us which bits of information will be encrypted? That was not made clear in the other place.
Having read all the orders, the one thing that strikes one forcefully is that an ID card will be of no greater value than a biometric passport, which will indeed be of some value. In order to travel further than the borders of Europe, one will still have to have a biometric passport. In applying for an identity card, one is giving government departments and bodies carte blanche to hold and pass between them personal information about those who have cards. What is now being proposed is a complete pig-in-a-poke in comparison to where this all started.