House of Commons
Tuesday 8 July 2008
The House met at half-past Two o’clock
Prayers
[Mr. Speaker in the Chair]
Oral Answers to Questions
Transport
The Secretary of State was asked—
Haulage Industry
I represented the UK at the June EU Transport Council where the Commission’s access to the road transport market proposal achieved political agreement. As a result of the agreement, the rules on cabotage will be simpler and easier to enforce and will limit cabotage to three operations within a seven-day period following an international journey.
I am grateful to my right hon. Friend for that reply. I have just come from chairing the all-party group on freight transport, and the Freight Transport Association had some complimentary things to say about the Minister. UK hauliers are concerned about unfair foreign competition. Does the Minister agree that rigorous enforcement of cabotage rules and safety laws is essential? Our hauliers need reassurance that enforcement is the top priority for her Department.
I thank my hon. Friend and the association for their kind remarks. I want to pay tribute to both Roger King and Theo de Pencier, who were very helpful during the negotiations. I kept in regular touch with them about the situation. My hon. Friend is absolutely right to say that enforcement is a key issue—not just on cabotage but on other road safety issues. That is why an important part of the agreement was to get a commitment from the Commission to look at the exchange of national databases, which would make enforcement much easier for us to carry out.
Has the Minister had any discussions with Her Majesty’s Treasury about the differential in price and duty levels on petrol and diesel, which is placing British hauliers, including those in Kettering, at a distinct disadvantage?
The Under-Secretary of State for Transport, my hon. Friend the Member for Poplar and Canning Town (Jim Fitzpatrick), had discussions with some of the key industry representatives last week. He listened carefully to their concerns and undertook to pass them on to the Chancellor.
I am sure my right hon. Friend is a heroine to the whole of the road haulage industry. She appears to have driven a hole through the treaty of Rome and free trade with the concessions that she has managed to get. Can she explain why, when there is unfair competition from foreign lorries that do not comply with our regulations, the graduated penalty and deposit scheme has been delayed?
I thank my hon. Friend for his kind remarks—at least I think they were kind. He is right to say that it will make a big difference in enforcement when the Commission can consider the exchange of national databases. On the other issue, I understand that statutory instruments are being drawn up to deal with the graduated penalty and deposit scheme.
According to research by National Economic Research Associates, foreign lorries operating on UK roads are imposing wear and tear costs of about £195 million a year. Do the Government still accept the principle that foreign hauliers should contribute to the cost of maintaining the UK road network?
I am sure that the hon. Gentleman will know that the feasibility study that was commissioned to consider the issue was rejected by the Treasury, as it would almost cost more to administer than would have come in in revenue. However, he might not be aware that another proposal has come forward from the Commission, and we will consider it.
I am sure that my right hon. Friend will be aware of meetings that Members have had over the past week with those in road haulage societies. One problem that was identified involved lorries coming from the continent that were not roadworthy. Will she have a word with my right hon. Friend the Home Secretary so that there are more exercises, as we suggested in the Select Committee on Transport some time ago, whereby the police and all agencies check foreign lorries? Most of them are not fit to be on our roads.
My hon. Friend is quite right to point out some of the problems that can occur. The Under-Secretary of State for Transport, my hon. Friend the Member for Poplar and Canning Town, recently announced some £24 million of extra investment to improve enforcement. As I have said, one of the key proposals to come out of the Council last week was to do with ensuring that the Commission would give a firm commitment to consider the exchange of databases, which is incredibly important in enforcement terms.
The biggest threat to our indigenous road haulage industry is not new cabotage rules but the difference in the price of diesel on each side of the channel. Eight years ago, when he was the leader of the Conservative party, my right hon. Friend the Member for Richmond, Yorks (Mr. Hague) suggested a vignette or Britdisc scheme, which was deemed not to be compliant with EU rules. Since then, however, Austria, Germany and the Czech Republic have introduced their own schemes. Has the Department examined schemes that could be introduced in this country and that do comply with EU regulations?
That is the question that I have just answered. As I explained, the previous feasibility study was rejected because the limit that could be charged was something like £7 a day, and the cost of administering the scheme would have been greater than the money charged. However, as I said to the hon. Member for Bexleyheath and Crayford (Mr. Evennett), the Commission has made new proposals, and we will of course examine them to see whether they would improve the situation.
A21
In the past three months, I have met local MPs, including the hon. Gentleman, and local authority representatives, and received several letters from MPs seeking assurances on the progress of the A21 Tonbridge to Pembury and Kippings Cross to Lamberhurst schemes.
I am grateful to the Minister for meeting me and my colleagues. He will know that it is 11 years since the dualling of the A21 was cancelled, and every year since then the cost of the scheme has gone up. A new hospital is now being built and will rely on the road. The people of west Kent are clear that the Government should get on with it, because further delay means further costs. Can the Minister assure us that the dualling of the road will continue as planned in 2010-11?
I can give the hon. Gentleman the assurance that I will do everything I possibly can to ensure that that process is expedited. My right hon. Friend the Secretary of State will announce updated scheme cost estimates to inform the upcoming refresh of priorities within the regional funding allocation. Once that information is available, the regional transport board will be able to reconfirm its priorities for that road if it wishes. That being the case, I will do everything that I can to ensure that progress is made.
Colchester Northern Approach Road
Delivery of the scheme is related to planning conditions and is a matter for developers to take forward in line with plans for the delivery of proposed housing, employment and leisure facilities in north Colchester. The road scheme must also complete its statutory processes. In view of that, a definite start date is not currently available, but work is expected to start in 2009 or 2010.
I am grateful to the Minister for that answer. His briefing will probably tell him that I asked a similar question in January 2004, which led to a productive meeting with the then Transport Minister, David Jamieson. I am pleased to say that the new community stadium, the new home for Colchester United, is nearing completion. The first fixture there is next month. The principal beneficiary of the development in north Colchester will be the national health service, which will sell land. In view of that, will the Minister meet me to consider whether there are alternative ways in which the junction can be built in advance of the land sales?
I would be more than happy to meet the hon. Gentleman and delegates from his constituency if he feels that that would be useful. We can talk about this in more detail at any subsequent meeting, but he might be interested to know that I understand that English Partnerships has already applied for community infrastructure fund money, which would allow the construction of the junction to proceed ahead of any subsequent agreement to invite private developers to contribute. I am more than happy to discuss the details of that at our meeting.
Concessionary Fares
The Department for Transport conducted regulatory impact assessments of both recent extensions to the statutory concessionary fares scheme. They showed that significant benefits such as improved social inclusion cannot be easily quantified, but that even without considering those benefits, on which it is difficult to put a price, the schemes could still offer value for money.
It will not come as a surprise to the Minister that I am going to ask here about the cross-border impact of concessionary bus travel between my constituency and Wales. I have been very disappointed by some of the answers that I have previously had from her. She has admitted that extending the scheme across borders would be very expensive, so we cannot rely on local authorities to do it, but I am very disappointed that she has said that she has no plans even to meet Welsh Assembly Government Ministers to discuss whether that might be possible at some point in future. Will she at least reconsider extending the scheme across the border?
I fear that I may continue to be a disappointment to the hon. Gentleman. That saddens me enormously, but he must recognise that extending the scheme into Wales or Scotland has some quite strong financial implications. At this stage, we want to make sure that the England-wide scheme is settling down. Obviously, negotiations about that are still going on and we want to wait before we proceed any further.
My right hon. Friend will be aware of the situation in Chorley. Concessionary travel was initially welcomed, but the council will no longer let people use the 50p scheme before 9.30 am, and its opposition to the continuation of the scheme means that people cannot travel across Chorley into any other district in Lancashire. What can she do to help pensioners who have to go to hospital, or people who have disabilities or are on training schemes, who now have to pay either full price or half price? The council’s decision seems to have led to a real anomaly.
I certainly understand the point that my hon. Friend makes. As he knows, central Government funding provides that the scheme should run from 9.30 am to 11 pm, but some local authorities have exercised the discretion that we have given them to extend it. In my area, it has been extended to carers, and people are able to use it on local trains. In addition, the hours for which it operates have also been extended. It is unfortunate that his local authority is not doing something similar, but I am sure that he will continue to campaign for such a change.
In replying to yesterday’s debate, the Minister disappointed us yet again when she admitted that the Government intended to stop reimbursing local authorities for the administrative cost of issuing bus passes. Many councils already have to subsidise what was supposed to be a Government-funded scheme. Is this another example of the Government taking the credit for something and local council tax payers picking up the bill—in this case, one of £50 million?
I wonder whether I sense another Tory spending commitment in the air. We gave local authorities a very generous grant of something like £31 million, equivalent to about £4.50 per pass, to cover the scheme’s introduction. In the past, local authorities have produced their own passes, so giving them money for the introduction of this pass was a change. However, given that something like £1 billion goes to local authorities for the concessionary fares scheme, we think it is entirely reasonable that they deal with further applications and renewals from now on.
The concessionary fare scheme has been a tremendous success. It is popular and a credit to the Government, but does my hon. Friend recall the Prime Minister saying that he wanted to remove all barriers to people receiving training and acquiring skills? Will she encourage local authorities and other bodies to come together and extend concessionary fares to young people between the ages of 16 and 19 who are pursuing further education and training?
My hon. Friend makes a very good point. As he said, something like 11 million people nationwide will be eligible for concessionary fares as a result of the changes that came in on 1 April. He is right to say that local authorities, transport authorities and other organisations in some parts of the country have come together to look at the problems facing young people undertaking training; in some instances, I think they are looking at facilitating travel for young people doing the new diplomas. We have given local authorities freedom to deal with this matter at their own discretion, and I am sure that some of them will consider what my hon. Friend suggests to be a good way forward.
Does the Minister recall the meeting that we had this morning with representatives of the Doncaster youth council? They raised the possibility of extending the scheme to students, especially those attending sixth-form colleges. Will she consider whether they might be included in the scheme in future?
Fortunately, I do remember the meeting that we had not five hours ago. My hon. Friend is right to say that Doncaster youth council was extremely keen to see the concessionary fares scheme extended to young people. As I explained to the council, extending the scheme nationwide to young people would have some severe financial implications, but as I said to my hon. Friend the Member for Tyne Bridge (Mr. Clelland), some local authorities are looking at extending it to young people, especially in areas where people want to get to school or training.
High-speed Trains
Following my recent invitation to examine longer-term options, Network Rail announced in June a study of the potential for new lines to accommodate future growth on the network. This will include an assessment of the role that high-speed lines might play. I look forward to seeing the results of the study next year. Separately, the Department is leading the procurement of new rolling stock to replace the existing fleet of high-speed trains.
I am grateful to the Secretary of State for that response. What reassurance can she give the House about the Government’s welcome ambitions for a new fleet of express trains and five high-speed routes? On the route to Penzance, as a result of rising sea levels, the line 100 miles away at Dawlish always becomes threatened when high spring tides coincide with strong easterlies. Is the Secretary of State able to factor that into the plans, or to make an announcement today that the high-speed route could be rerouted?
I am sure the hon. Gentleman would not expect me to make such an announcement today, but I understand that Network Rail is looking at the issue that he has raised with me. Network Rail needs to be in a position over the next year or so to understand where rail is going to be most intensively used, and that is why it is undertaking a study of where there might be a need for new lines, including high-speed lines. If the hon. Gentleman has issues with the scope of those studies, I am sure he will make representations to Network Rail.
I welcome the commissioning of the study, but can my right hon. Friend tell us what criteria she has set for Network Rail for assessing the feasibility of high-speed rail?
I can tell my hon. Friend that I invited Network Rail to carry out a wide-ranging study, without constraint, of where future demand might emerge on the railway, and where there might be need for extra capacity. As my hon. Friend and other hon. Members know, it takes a long time between thinking about and planning for a new line and constructing it, as with Crossrail, so Network Rail is carrying out a study with a wide scope of where extra demands might materialise and how plans can be put in place in case such a scenario arises.
High-speed rail lines from London to the continent have benefited the economy of the south-east of England. When will we see the network completed to Glasgow?
The hon. Gentleman from month to month tries to make the case for high-speed rail to Glasgow. I have not set my mind against high-speed lines; it is right that Network Rail should consider all the options, particularly how the need for extra capacity might be met. If extra capacity is needed and a new line needs to be built, it must consider whether that line should be high-speed. I do not suggest, as the hon. Gentleman sometimes does, that there is necessarily a huge carbon advantage from high-speed rail. For instance, if a high-speed line were to run between London and Manchester or London and Glasgow, one might expect a carbon advantage, but not the scale of advantage that some hon. Members sometimes suggest.
Is my right hon. Friend aware that people in Yorkshire very much want a high-speed service to the major cities of this country, not just to London? Is she also aware that recently at weekends some conspiracy between National Express and Network Rail has sealed off the northern region from the rest of the country through the disruption and damage done to the timetable?
My hon. Friend will know that there is huge investment in the network at present, including an extra £10 billion allocated to invest in capacity over the five-year period to 2014. Clearly, from time to time there will be disruption on the route, some of which may be unavoidable as a consequence of the upgrading of the line. If it is not unavoidable that is clearly unacceptable, and I am sure my hon. Friend will make representations to Network Rail, as indeed shall I on his behalf.
Does the right hon. Lady understand that it is not much fun standing on a platform and a high-speed train sucks you off because of the turbulence—[Laughter]—or whatever. The important thing is that the train should stop, so will she bear in mind the fact that high-speed trains should go not just from major centres of population to other major centres of population but, as the hon. Member for Huddersfield (Mr. Sheerman) said, to some of our great cities, including the great city of Lichfield?
The hon. Gentleman is of course right; it would not be much fun, but nor would the train be very high speed if it were to stop at every station. Clearly, there is a trade-off between reductions in journey time and the number of stations where trains stop, but I am sure those issues will be taken into account.
My right hon. Friend is aware of my support, and that of many of my hon. Friends, for the reopening of the Woodhead line over the Pennines. Will she give us an assurance today that the economic benefits to the north of such a link will be given serious consideration as part of the study being conducted by Network Rail?
My right hon. Friend the Minister of State assures me that she has met both National Grid and Network Rail to discuss precisely those issues. A freight study is being carried out to assess whether the Woodhead tunnel might be needed in future to carry freight trains, and there could of course be passenger benefits, too. My hon. Friend the Member for Sheffield, Hillsborough (Ms Smith) has ensured that the issue has been put on the table, and I can assure her in response that it is being studied seriously.
Rail Network
I am advised by Network Rail and the Office of Rail Regulation that the information is not available in the form requested. Since 1997 the channel tunnel rail link has opened, and there have been no significant closures over this period. However, we have committed to investing £10 billion in increasing capacity over the next five years, which at this stage can be done most effectively by investing in additional rolling stock and improving the existing network.
Is not the likely answer zero if the channel tunnel rail link is excluded, and is it not astonishing that the Government can spend £11.5 billion building 405 miles of major new road network, yet not put any money into extending rail? Given that the rail network will approach maximum capacity in the next few years, what plans do the Government have to expand the network and provide capacity beyond 2014?
I am afraid the hon. Gentleman’s argument is completely misleading. If we want to put extra capacity on the railway, the most important thing is to lengthen platforms and invest in new carriages. If we want to increase capacity in the road network, the most important thing is to widen roads or turn the hard shoulder into an extra running lane. However, when we look at the facts on investment, we see that last year alone an extra £3.5 billion was invested in rail capacity and just over £1 billion in roads. There was nearly three times as much investment in rail, so I do not think anyone can accuse the Government of starving the railways of investment.
Does my right hon. Friend agree that one of the most effective ways of increasing the number of miles available for the passenger network is reopening existing freight lines for passenger transport? She will be aware of a number of such schemes nationwide, but will she look again at the considerable potential for passenger use of the heavy freight line that links Leicester and Burton? Will she support the feasibility work being done on a line that could take a significant number of cars off the congested roads of Leicester and Leicestershire?
I know how interested in and passionate about the issue of freight my hon. Friend is. I assure him that as part of its new line study, Network Rail is thinking about whether there is a need for a dedicated freight line, which would not only benefit the freight industry but potentially increase capacity for passengers. Also, in the rail White Paper, we allocated an extra £200 million for investment in the strategic freight network. Together, those measures will, I hope, provide much greater reliability for the freight industry, which is incredibly important, and deliver passenger benefits.
When considering the extra capacity and lines that are needed, particularly for high-speed train services, will my right hon. Friend consider the needs of Northampton and the surrounding growth area, which will urgently need more train services as the population increases in the coming years?
My hon. Friend is persistent in making the case for her constituents in Northampton, particularly on the need for more investment in capacity. I know that Northampton is being considered as a stop for the new inter-city express trains, which would provide substantially more seats than current trains do. I am sure that we will be able to take her representations into account when we decide on the best use of those trains.
A1
The Highways Agency classified roads in the strategic roads network as national or regional roads in 2005 to support the regional funding allocation process. Roads were assessed against set criteria, and the A1 north of Newcastle was judged to be a route of regional importance. There are no plans to carry out a review of those classifications for the forthcoming round of advice on regional funding allocations.
Well, is it not time that there was a review of the classification, especially as the regional transport board, the regional development agency and all the local authorities involved think that the A1 north of Newcastle should be treated as a national strategic road? The traffic patterns—the distances travelled—seem to support that view. The Highways Agency itself spent £5.25 million working up schemes before the classification was changed.
With your permission, Mr. Speaker, it may be helpful to the right hon. Gentleman and the House if I briefly set out the four criteria. The first is an average daily traffic flow of more than 60,000 vehicles along the length of the route. Secondly, the road must link at least two of the top 20 English cities by population, or link one of those cities with an airport or seaport, or with Wales or Scotland. Thirdly, heavy goods vehicles must make up 15 per cent. or more of the traffic, on average, along the length of the route. Fourthly, the road must be part of the European Union’s trans-European transport network. I have to tell him that the A1 north of Newcastle does not meet those criteria.
May I ask the Minister to reconsider the matter in the light of the opening of the second Tyne tunnel, which is due to take place in 2012? The Tyne tunnel road was originally the A1, and the A1 was routed round to the west of Newcastle, but that was some 20 or 30 years ago. May I ask him to reconsider the matter, as some of the information to which he just referred would look entirely different if we considered the future of the trunk road network through the built-up area of Tyne and Wear?
My hon. Friend is right inasmuch as, to quote John Maynard Keynes,
“When the facts change, I change my mind. What do you do, sir?”
Of course, if the facts change, the Government will look at the matter again, but we have to make sure that the criteria are consistent across the whole country. I advise my hon. Friend, and other right hon. and hon. Members, that simply reclassifying a road does not create any extra resources with which to upgrade and expand it. The amount of money in the pot stays static. Of course, if we have to fund a particular scheme from central resources, that means fewer resources for the regional funding allocation.
Learner Drivers
The Driving Standards Agency is working with the Scottish Qualifications Authority and other interested parties to design a course that young people and potential employers will value. Our plans are for the qualification to be available in Scotland from this autumn, and then become available in the rest of Great Britain.
Does my hon. Friend share my concern about the fact that the overall casualty rates for young people have not changed since the mid-1990s? In contrast, overall, serious accidents and deaths have fallen by over 30 per cent. How does he think the initiative that we are discussing would reduce the casualty figures?
The whole House will welcome the data published two weeks ago by the Department showing that road deaths in the UK fell below 3,000 for the first time since 1926, when records were first kept. However, my hon. Friend is absolutely right to point out that incidents in which young drivers are killed or suffer serious injury are not falling at the same rate. The learn-to-drive consultation that the Department is running to try to improve the standards of skill for our young drivers is very much part of the drive to make sure that those figures keep moving downwards, and we are confident that the qualification will help in that regard.
How much time will it take for motorcyclists to travel from the Isle of Wight to places where they are tested, and might they not, as an alternative, drive indefinitely on L-plates?
The multi-purpose test centres have been designed, first, to comply with the European directive on testing motorcyclists and, secondly, to comply with our safety ambition to cut the numbers of motorcyclists who die on our roads. In 2006, there were 599 such deaths; in 2007, there were 588. They are the biggest single category of deaths on the road, and many motorcyclists are victims of other road users. We are trying to make sure that the MPTCs are as close as possible to where people live, and targets have been set. I know that the hon. Gentleman is aware of that, and he knows, too, that we are engaged in that examination.
While I applaud what my hon. Friend said about reducing deaths on the roads, there have unfortunately been several deaths on the A23 in Sussex in the past year. Can he fit what he said about safety on the roads with the closure of both test centres in Brighton and Hove, so that learner drivers must travel to Burgess Hill, not just to take their test, but possibly to familiarise themselves with the roads? The most direct route to that test centre is on the dual carriageway on the unfortunate A23.
My hon. Friend raises the question of the journey to the test centre for people who want to take their driving test. Some ADIs—approved driving instructors—spend a lot of time with their trainees on the test course, but we are trying to say that that is not what they ought to be doing. Rather than teaching people how to pass the test, they are supposed to teach them how to drive. Some people will have to travel longer distances, but for the majority, the centre will still be within 45 minutes of their home. We are trying to improve the centres, which will be compliant with the Disability Discrimination Act 2005 and will be better for staff and examiners. We want to achieve the objective of cutting the number of people killed and injured, which is why we are revising the whole exam course.
I am sure that the Minister will agree that some of the safest drivers are older drivers. Will he give the House a commitment that his consultation on fitness to drive will not discriminate against older drivers?
Obviously, demographics are important: we are living to an older age, and we have an ageing population. There is a question mark over people living to a very old age and their ability to drive. We have an arrangement whereby, once someone reaches the age of 70, they have to re-qualify, and there is a three-yearly recertification process. We will consult on that, and on health aspects in due course. At this point, however, we have no plans to change the existing arrangement.
Six times as many young men under 21 as young women are killed on our roads when driving. Young men are the problem, so what are we doing to address that issue?
My hon. Friend makes the same point as my hon. Friend the Member for Birmingham, Perry Barr (Mr. Mahmood). Newly qualified drivers, particularly young men, feature disproportionately among those who are killed and seriously injured. The new qualification that we will take into schools and youth clubs will address the culture of being a passenger as well as the prospect of being a driver. It will deal with how someone should act towards other users in a courteous manner, as well as how to deal with peer pressure, because their girlfriend or boyfriend is in the car, or their mates are in the back trying to gee them up. That is very much a matter of trying to make people more mature in their approach to driving, and the qualification about which my hon. Friend the Member for Birmingham, Perry Barr asked is very much part of preparing people for driving. In addition, by fundamentally reviewing the exam, we will test whether people are able to drive, not just manoeuvre a vehicle.
Protecting learner drivers from sexual offenders must be an important consideration for the Department, but two years ago I alerted it to the loophole in the law that prevents the suspension of recently convicted sexual offenders from the approved driving instructors register. That meant that sexual offenders who were driving instructors would be allowed to continue for a further 45 days after conviction, and I was told by the Minister at the time that that serious loophole would be closed. Why has nothing been done during that period? Why are women now at risk throughout the country? The Government have failed to act to close the loophole.
Order. Perhaps in future, the hon. Gentleman should be briefer, and he was a bit wide of the question.
Prospective approved driving instructors must provide enhanced-level criminal record checks. Existing ADIs must undergo such checks when re-registering every four years, and the position of driving instructor has the status of a notifiable occupation, so the Driving Standards Agency is informed of convictions. The DSA is seeking a suitable Bill to allow for the suspension of ADIs. The hon. Gentleman has quite correctly drawn attention to the matter and it has been under review. There have been changes, but clearly further matters must be pursued.
Regional Airports
Regional airports generate regional growth, jobs and investment, and we support their development provided that environmental considerations are addressed. Our White Paper, “The Future of Air Transport”, invited airports to publish master plans outlining how their future development proposals would help regional economies, and many have now done so.
I thank my right hon. Friend for that answer. She will know the tremendous benefits to industry and commerce not only in Greater Manchester but throughout the north-west of England of having a large regional hub airport based at Manchester. Will she ensure that the vital economic role played by regional airports such as Manchester is properly considered in the current aviation policy consultation and in the current debate about the expansion of Heathrow?
My hon. Friend makes an incredibly important point. In fact, I think that about 35,000 jobs are supported by Manchester airport alone, and businesses choose where to locate in Britain partly because of international connectivity. The economic impact of transfer passengers has been widely debated inside and outside the House, and when we consider the issues about Heathrow expansion, it is important to take into account the impact of such passengers within the UK. After all, one quarter of all transfer passengers at Heathrow come from regional airports. That is one factor that we must take into account, but obviously the decision will be based on local environmental considerations as well as on the overall economic impact.
I agree with the Secretary of State that regional airports make a very important contribution to the economic development of the regions in which they are located, but does she agree that it is also important that, like all other forms of economic activity, regional airports are subject to proper planning controls and constraints in the interests of the communities around them? In that connection, does she think it reasonable for the Government to plan for East Midlands airport to become a major air freight hub, with the implication that there will be an increased amount of night flying, without any controls on night flights in and out of the airport to reflect the balance of interests between night-flying operators and the communities around the airport?
The right hon. Gentleman will know about our proposals in the air transport White Paper. There are clearly issues in respect of East Midlands airport, but he would not expect me to touch on them in the House, partly because they are being contested. The fact is that regional airports are hugely important for regional and UK economic growth, and the provision of specific places for air freight is also important for the country’s economic growth. Clearly, they need to be properly planned, and clearly we need to take into account the local environmental impact, including the impact on noise and air quality.
Could the Secretary of State impress on her Treasury colleagues the concerns of regional airport operators, who feel that they are being asked to set up a cumbersome and expensive bureaucracy to collect the new aviation tax, instead of that being left to the airlines, which currently collect the aviation air passenger duty that the new tax is replacing?
I take that as confirmation that the Conservative party supports the Government’s proposals for an aviation tax that reflects the impact of aviation on the environment. The Treasury is consulting on the detail, and my right hon. Friend the Chancellor is thinking about the issues with a view to making decisions later this year.
Multi-purpose Driving Test Centres
The Driving Standards Agency plans to establish a network of 66 multi-purpose driving test centres. The capital budget for the project is £71 million and revenue costs will be £13 million per annum.
The Minister has rightly confirmed that the Government are planning to spend £71 million because of a European Union directive. However, if the Government had applied for a derogation from the directive so that 50 kph was translated to 30 mph, no expenditure would have been necessary. Why did the Government waste £71 million rather than apply for a derogation?
We do not see it as wasting £71 million, but as something that improves the test and the facilities for examiners and the examined. It will enable the tests to be conducted off-road because of the manoeuvres that are expected to be required. That will enhance safety because it will improve the skills of those who go to the new multi-purpose driving test centres.
I sincerely hope that Crawley will have a multi-purpose test centre. It is vital that the new centres should allow people to take a variety of tests, provide safety and comfort to those taking their tests as they wait for people to arrive and provide secure accommodation for those who are teaching. I hope that all those things will be achieved at Crawley.
The new purpose-built MPTCs are environmentally friendly and compliant with the Disability Discrimination Act 2005. They provide improved facilities for customers and staff. When my hon. Friend visits her new centre, I am sure that she will be impressed by the facilities on offer.
I call Crispin Blunt.
Question No. 19, sir.
No, we are now on topical questions.
My apologies, Mr. Speaker; I had not seen that the previous three questions had been withdrawn. In that case, may I ask whether the Secretary of State thinks that the management and accountability structures of Network Rail are satisfactory? If her answer is yes, will she seek some early medical attention? If the answer is no, what does she propose to do about it?
The Government have no plans to look again at the structure of the railway industry. I am confident that the current governing procedures for Network Rail are satisfactory. They are delivering for the passenger and the railway industry.
We turn now to topical questions; my apologies to the hon. Member for Reigate (Mr. Blunt).
Topical Questions
I am delighted to tell the House that, on 9 June, I was pleased to announce the Government’s support for a £2.8 billion investment package for public transport in Greater Manchester by awarding its transport innovation fund bid programme entry. Last month, I announced that Bristol had been appointed Britain’s first cycling city, alongside an additional 11 cycling demonstration towns winning a share of a record £100 million to increase cycling in their areas. Yesterday, following the publication of Professor Gallagher’s review of biofuels, I announced my intention to consult on slowing down the rate of increase of the renewable transport fuels obligation to take into account emerging evidence about the sustainability of biofuels and to establish international sustainability standards and controls. Today I made a statement on the timing of the Heathrow consultation process that set out how I intend to ensure that all the evidence can be considered before crucial decisions are taken before the end of the year.
I was delighted to hear my right hon. Friend confirm in yesterday’s statement that the Gallagher review has rejected a moratorium on biofuels development. Will she acknowledge and accept that by slowing down the rate of use of biofuels, which according to the targets set will be 5 per cent. by 2010-11, we will undermine investment and research in the world’s leading biofuels company on Teesside?
My hon. Friend makes an important point. Partly underlying the Gallagher conclusions on the renewable transport fuel obligation and the decision to keep the 5 per cent. in place, albeit on a slowing timetable, was the desire to keep innovation in the industry and to encourage the investment in the north-east that has already been found. Importantly, Professor Gallagher said that we should amend but not abandon our biofuels policy. The RTFO is set to rise to 5 per cent. I hope that the industry can now have some certainty that that will happen, albeit at a slightly slower pace.
EU limits on NOx pollution become legally binding in 2010. At the weekend, Professor Mike Pilling, who chaired a Government expert group on Heathrow air quality, disputed DFT claims that an expanded Heathrow is capable of complying with those limits. The Environment Agency has also highlighted the impact of NOx and worsened air quality on mortality and morbidity around Heathrow. Is the Secretary of State planning to listen to her environment advisers or ignore them?
Of course we are planning to listen to our advisers, just as we are planning to listen to all the responses to the consultation. This morning, I told the House that we were going to carry out a rigorous process and ensure that we analyse all the responses to the consultation and provide a full impact study—including on equalities, which is another issue that has been raised—in order to make an appropriate decision based on the science before the end of the year.
The right hon. Lady’s environmental calculations on Heathrow are under sustained attack. The flight path proposals from NATS could destroy the tranquillity of much of rural England. Her plans for Stansted make no sense and command no support. Is it not time for her to rethink her “predict and provide” approach to aviation, go back to the drawing board on the environmental data on Heathrow and drop her deeply misguided proposals for a second Stansted runway?
I do not agree. I find it quite surprising, that the Conservative party has turned its face against any expansion of aviation in the south-east. That view is not supported by the business community. The clear evidence is that there would be a substantial negative impact not only on the London economy but on the UK economy. Clearly, we have to balance that impact against any local environmental considerations. Our modelling at the Department for Transport shows that, even with the third runway, NOx emissions from Heathrow would fall by almost 50 per cent. between 2002 and 2030. We have been very clear about our intention to put that modelling into the public domain, to have it scrutinised and challenged, and to reflect on the outcome of that. It is absolutely imperative that we make our case based on the scientific evidence, not on some arbitrary political positioning.
My right hon. Friend probably has more influence than I do, but of course I am willing to take up the case. My hon. Friend is right—all the evidence is that the more car parking space is provided at railway stations, the more people will use public transport, particularly the railways. Virgin and Network Rail are aware of the situation at Warrington Bank Quay, which remains problematic unless new land is bought or the car park is double-decked. Nevertheless, I am informed that Virgin and Network Rail aim to provide 140 new car parking spaces by November 2009.
Essentially, the hon. Gentleman is asking that new, low-noise surfacing should be imposed on particular stretches of motorway, even when they do not require resurfacing as a result of wear and tear. The Government’s position is that the best value for money for the taxpayer is to use low-noise surface material when it is necessary to resurface a motorway. If the hon. Gentleman believes that a huge extra expenditure in his area is justified, he should speak to those on his Front Bench, but I do not think that they would be willing to put their hands in their pockets and make that commitment.
Order. We should use temperate language.
My hon. Friend obviously feels strongly on this matter, but the issue in question is devolved to the Mayor of London. No doubt my hon. Friend will make his views clear to him.
That decision is a matter for the CAA, which makes the recommendations. There is an outstanding legal case, in which easyJet is undertaking a judicial review of certain decisions made, and those matters will be resolved in the courts shortly.
My hon. Friend makes an important point about the investigation of alternatives. There are various ways in which we can assist in that process. Research programmes have been undertaken to look at some of the alternatives and, in some instances, we are assisting businesses in that respect. With the reform of the bus subsidy for operators, we will be able to look at what can be done to encourage alternative, more efficient vehicles.
I do not want to disappoint my hon. Friend, but we do not have plans to make such schemes compulsory. As she has outlined, we have given guidance, and we hope that local authorities take up the opportunity to introduce 20 mph speed-limit zones, where they think it appropriate. That could involve nurseries or shopping precincts and not just schools. The matter is very much under local control, depending on the profile of road safety in that area.
To help with take-up, we plan to collect data from towns and cities where such schemes have been introduced. That project is now in hand. The preliminary evidence shows that where zones have been introduced with physical restrictions—be they road humps or chicanes—we have seen about a 60 per cent. reduction in crashes and a 67 per cent. reduction in crashes involving children. There is great value in the introduction of 20 mph zones. Local authorities throughout the country have shown great interest in them, and we hope that many more will take up the option.
Yet again this year, as in every year, the Government are pushing up train fares above the cost of inflation, with their flawed retail prices index-plus policy. At the same time, franchised train companies are having to pay a premium—a kind of stealth railway tax—for their franchises, which might account for the fact that the Government’s expenditure on railways is due to fall next year, according to their own figures. When are the Government going to get off the fare escalator, abandon the RPI formula and give fare-paying passengers a fair deal?
I certainly understand the pressure on people’s personal finances. I am determined that we shall restore passengers’ confidence in rail fares, and the hon. Gentleman raises the issue of regulating rail fares. We cap fare increases after inflation to protect passengers from unduly high fare increases. It is worth remembering for a moment that almost half of all rail journeys are made with regulated fares, which are no more expensive in real terms than they were at the time of privatisation, so clearly the regulatory cap is serving a purpose. It is important that we simplify the system and ensure that people are confident that they receive good value for money when they pay a rail fare. The Association of Train Operating Companies has promised to promote price simplification and, ultimately, bring in a price promise, but I think that we may need to go further. That is why I have asked Passenger Focus, the rail passenger representative group, to conduct a study to see what further changes are necessary.
My right hon. Friend issued a statement this morning that will delay the decision on Heathrow until the end of the year at least. For my constituents, that means continued blight. I have families with young children living in overcrowded accommodation in my constituency who cannot sell their properties. Lenders are no longer lending to people in my area, blighted by Heathrow, to enable them to purchase and sell properties. The solution is to drop the madcap scheme for expansion but, in the meantime, will my right hon. Friend meet a delegation of constituency MPs from the area and consider the introduction of an emergency blight package to compensate those people affected by the Government’s delay in their decision-making processes?
I appreciate my hon. Friend’s concern on behalf of his constituents. Whichever way the decision goes, he is clearly concerned about delay in the process and its impact locally. It is important, however, that we rigorously analyse the consultation responses. We have an independent process for doing that, which will be peer reviewed to ensure that all the responses are taken into account. I have promised the House that I will give an update later this year. We have to look, too, into the impact on the demographic groups and equalities in the boroughs likely to be affected by any change. However, I shall pass on my hon. Friend’s comments about the detriment that his constituents are facing to those involved in the consultation, so that they can think about how best to improve the situation locally.
Will the Secretary of State join me in welcoming today’s decision by the east of England regional planning panel to recommend prioritisation of the A11 upgrade from Thetford to Fiveways corner? Will she also assure me that the Government will take account of the East of England regional assembly’s advice and confirm funding without delay, thus bringing an end to years of waiting for a dual carriageway linked to Norfolk?
The Government have already pledged £8 billion to regional transport boards throughout England over a period of 10 years. We always accept and take seriously the advice of regional transport boards, and things will be no different in this case. However, it remains up to the regional transport board in the hon. Gentleman’s area to look into the priorities that it has already established, in the light of the refresh that will take place in the second half of this year.
I take my hon. Friend’s points on board. Obviously the TIF bid presents an important opportunity for the people of Greater Manchester, but it also involves a very big decision, and it is vital for all those affected to be able to have their say. I am sure my hon. Friend will appreciate that it not for me to comment on each specific aspect of the consultation, but it is important for it to be full and thorough. I urge him to continue to pursue the matter with the Greater Manchester authorities.
Why do Network Rail’s plans for a western high-speed rail route end in Bristol rather than extending to Wales? Do the Government support that vision of a two-speed Britain?
I do not think anyone could honestly claim that the Government have done anything other than put their money where their mouth is in developing the railway network. The hon. Gentleman’s constituents are set to benefit from the upgrading and restructuring of Reading station, which is costing more than £400 million. It will relieve a crucial bottleneck on the Great Western line, which is also where I expect the new inter-city express programme trains to be piloted from 2015.
Point of Order
On a point of order, Mr. Speaker. Is there any way in which, within the rules, I can convey the House’s congratulations to Sir Igor Judge, who has just been appointed Lord Chief Justice? As you will recall, Sir Igor was one of the judges who decided that MPs’ home addresses should be made publicly available. Does not this promotion illustrate the fact that one silly mistake need not wreck a promising professional career?
I think the hon. Gentleman is trying to draw me into an argument. As for his first point about congratulations, he could always table an early-day motion, at which he is very expert nowadays.
Public Contracts (UK Tax Requirements)
I beg to move,
That leave be given to bring in a Bill to place certain requirements relating to payment of tax in the UK on companies bidding for public contracts; to prohibit the transfer of such contracts overseas; to require companies bidding for public contracts to provide certain information relating to tax payments; and for connected purposes.
I am glad to have the opportunity to present a Bill that is motivated by fairness and justice—values that are, I am sure, important to every hon. Member. I am not the first to raise the matter in the House: my hon. Friend the Member for Great Grimsby (Mr. Mitchell) tabled early-day motion 1108, for which I commend him.
Let me begin by informing the House of the Bill’s bald and brief title. It is called the Public Contracts (UK Tax Requirements) Bill. If I wished to translate that into the vernacular, I could do no better than direct Members’ attention to an article by Professor Prem Sikka on the private finance initiative that appeared in the May edition of the magazine Chartist. Prem Sikka is professor of accounting at the University of Essex, and I am indebted to him and his research on the complex workings of the PFI for much of the illustrative detail that I shall use to explain the purposes of my Bill.
I referred to the vernacular. The main heading that appears over Professor Sikka's article reads “Biting the hand that feeds them”. As if that were not sufficiently clear, the subheading is even snappier and more explicit: “Prem Sikka on the tax avoidance scam operated by some PFI companies”. Not much ambiguity there! Furthermore, tax avoidance is readily understood by the general public, and, in the United Kingdom, condemned as being unfair and unjust.
That is important. One of the selling points about PFI among the general public is how easy it is to understand in terms of our own lives in a modern, property-owning democracy. The vast majority of people, when buying a house or a flat, take out a mortgage. They agree to pay off their loan plus interest over a period of years, according to the terms of the mortgage. That is why many of the opponents of PFI talk in terms of mortgaging the future of our country. Be that as it may, the concept of borrowing and paying off the loan plus interest has become acceptable to the vast majority of the British people, who, until comparatively recently, even trusted the lender to behave both honourably and competently.
The private finance initiative is a partnership between public services and private companies. Private companies are paid from the public purse to build, and often to maintain, projects for what may well be a period of 30 years—a bit like our mortgage, the general public might be thinking. The problem is that some companies that have won PFI contracts would appear to have transferred their ownership to a tax haven. In this way, they could avoid paying UK tax on their income and profits. What I find particularly outrageous—and I think the electorate do, too—is that these profits come from the public purse; in other words, the untaxed profits come from hard-earned taxpayers’ money.
The real difficulty is that there is a lack of transparency, and that currently those awarding contracts in the public-private partnerships or PFIs are not required to request sufficient explanation and detail about the tax arrangements of the companies bidding for these contracts. We all understand that large companies will have projects and businesses in many different countries, but the British public want to be sure that their tax money is not going to fund schemes by paying companies that are somehow not paying their full dues in UK tax. There will always be a suspicion that an investment company such as 3i Infrastructure Ltd—which has a 50 per cent. equity stake in Alpha Schools, a company formed to bid for a £134 million project to build and refurbish 11 schools in the Scottish highlands—has a specific reason for being registered in Jersey. A company spokeswoman is reported as saying:
“Alpha Schools is a company registered in the UK and liable to UK tax. It has two main shareholders: 3i Infrastructure Ltd and Galliford Try—a leading construction firm.
3i Infrastructure is a Jersey-based investment company. However, the PFI companies in the portfolio of that company are registered and taxed in the UK in the normal way. The post-tax profits from these PFI companies are simply aggregated by 3i Infrastructure, before being passed on to investors.”
Is this really sufficient to allay the public’s fears? I suggest not, and that is why we need this ten-minute Bill.
It is not sufficient that Treasury rules state that Government Departments should pay attention to the “propriety of tax arrangements” of companies involved in public-private partnerships or PFI deals. To reassure the public that such firms are paying the appropriate UK tax for the money that they make on public-private partnerships, we must require firms to make more information available. It is important to note that these proposals do not impose any additional costs on companies, as they already have the information that is required.
A few minutes ago, I gave what I described as the “bald and brief title” of my Bill. Let me now describe what the Bill would mean in practice. It would mean that public contracts could not be awarded to companies or investors resident outside the UK for tax purposes. It would mean that companies would be forbidden to transfer any aspect of PFI contracts to a location outside the UK. It would mean that all companies bidding for public contracts would have to include a public account of tax payments for the preceding five years. This account would have to include copies of their tax returns and a table showing the jurisdictions that they operate from, together with sales, costs, profits, employees, liabilities and assets in each.
In conclusion, my Bill is not only designed to tidy up an accounting anomaly. It is, rather, motivated by a sense of the unfairness and injustice that can be allowed by the current arrangements, and, perhaps just as importantly, by a wish to restore the public’s confidence that the accounting is transparent and that untaxed profits cannot come from hard-earned taxpayers’ money.
Regardless of what anyone thinks of the underlying principles of PFI, it cannot have been the intention of those who originally gave us the concept to have allowed such tax-funded tax avoidance, but that, in effect, is what we have. This, surely, is a blatant example of the law of unexpected consequences. Having had it brought to our attention, it is surely our duty to put right what has gone wrong, and to replace injustice with justice and inequity with fairness. I commend the Bill to the House.
Question put and agreed to.
Bill ordered to be brought in by Nia Griffith, Gordon Banks, Ms Karen Buck, Mr. David Chaytor, Michael Connarty, Linda Gilroy, Kelvin Hopkins, Mr. Kevan Jones, Ian Lucas, Rob Marris, Ann McKechin and Dr. Alan Whitehead.
Public Contracts (UK Tax Requirements)
Nia Griffith accordingly presented a Bill to place certain requirements relating to payment of tax in the UK on companies bidding for public contracts; to prohibit the transfer of such contracts overseas; to require companies bidding for public contracts to provide certain information relating to tax payments; and for connected purposes: And the same was read the First time; and ordered to be read a Second time on Friday 17 October, and to be printed [Bill 135].
Orders of the Day
Consolidated Fund (Appropriation) (No. 2) Bill
Order for Second Reading read.
Question, That the Bill be now read a Second time, put forthwith, pursuant to Standing Order No. 56 (Consolidated Fund Bills), and agreed to.
Bill accordingly read a Second time.
Question, That the Bill be now read the Third time, put forthwith, and agreed to.
Bill accordingly read the Third time, and passed.
Criminal Evidence (Witness Anonymity) Bill (Allocation of Time)
I beg to move, That the following provisions shall apply to the Criminal Evidence (Witness Anonymity) Bill:
Timetable
1.–(1) Proceedings on Second Reading, in Committee, on consideration and on Third Reading shall be completed at this day’s sitting in accordance with the following provisions of this paragraph.
(2) Proceedings on Second Reading shall (so far as not previously concluded) be brought to a conclusion three hours after the commencement of proceedings on the Motion for this Order.
(3) Proceedings in Committee, on consideration and on Third Reading shall (so far as not previously concluded) be brought to a conclusion six hours after the commencement of proceedings on the Motion for this Order.
Timing of proceedings and Questions to be put
2. When the Bill has been read a second time—
(a) it shall (notwithstanding Standing Order No. 63 (Committal of bills not subject to a programme order)) stand committed to a Committee of the whole House without any Question being put; and
(b) the Speaker shall leave the Chair whether or not notice of an Instruction has been given.
3.–(1) On the conclusion of proceedings in Committee, the Chairman shall report the Bill to the House without putting any Question.
(2) If the Bill is reported with amendments, the House shall proceed to consider the Bill as amended without any Question being put.
4. For the purpose of bringing any proceedings to a conclusion in accordance with paragraph 1, the Chairman or Speaker shall forthwith put the following Questions (but no others)—
(a) any Question already proposed from the Chair;
(b) any Question necessary to bring to a decision a Question so proposed;
(c) the Question on any amendment moved or Motion made by a Minister of the Crown;
(d) any other Question necessary for the disposal of the business to be concluded.
5. On a Motion so made for a new Clause or a new Schedule, the Chairman or Speaker shall put only the Question that the Clause or Schedule be added to the Bill.
6. If two or more Questions would fall to be put under paragraph 4(d) in relation to successive provisions of the Bill, the Chairman shall instead put a single Question in relation to those provisions.
Consideration of Lords Amendments
7.–(1) Any Lords Amendments to the Bill shall be considered forthwith without any Question being put.
(2) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.
8.–(1) This paragraph applies for the purpose of bringing any proceedings to a conclusion in accordance with paragraph 7.
(2) The Speaker shall first put forthwith any Question already proposed from the Chair and not yet decided.
(3) If that Question is for the amendment of a Lords Amendment the Speaker shall then put forthwith—
(a) a single Question on any further Amendments to the Lords Amendment moved by a Minister of the Crown, and
(b) the Question on any Motion made by a Minister of the Crown that this House agrees or disagrees to the Lords Amendment or (as the case may be) to the Lords Amendment as amended.
(4) The Speaker shall then put forthwith—
(a) a single Question on any Amendments moved by a Minister of the Crown to a Lords Amendment, and
(b) the Question on any Motion made by a Minister of the Crown that this House agrees or disagrees to the Lords Amendment or (as the case may be) to the Lords Amendment as amended.
(5) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown that this House disagrees to a Lords Amendment.
(6) The Speaker shall then put forthwith the Question that this House agrees to all the remaining Lords Amendments.
(7) As soon as the House has—
(a) agreed or disagreed to a Lords Amendment, or
(b) disposed of an Amendment relevant to a Lords Amendment which has been disagreed to, the Speaker shall put forthwith a single Question on any Amendments moved by a Minister of the Crown and relevant to the Lords Amendment.
Subsequent stages
9.–(1) Any further Message from the Lords on the Bill shall be considered forthwith without any Question being put.
(2) Proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.
10.–(1) This paragraph applies for the purpose of bringing any proceedings to a conclusion in accordance with paragraph 9.
(2) The Speaker shall first put forthwith any Question which has been proposed from the Chair and not yet decided.
(3) The Speaker shall then put forthwith the Question on any Motion made by a Minister for the Crown which is related to the Question already proposed from the Chair.
(4) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown on or relevant to any of the remaining items in the Lords Message.
(5) The Speaker shall then put forthwith the Question that this House agrees with the Lords in all the remaining Lords Proposals.
Reasons Committee
11.–(1) The Speaker shall put forthwith the Question on any Motion made by a Minister for the Crown for the appointment, nomination and quorum of a Committee to draw up Reasons and the appointment of its Chairman.
(2) A Committee appointed to draw up Reasons shall report before the conclusion of the sitting at which it is appointed.
(3) Proceedings in the Committee shall (so far as not previously concluded) be brought to a conclusion 30 minutes after their commencement.
(4) For the purpose of bringing any proceedings to a conclusion in accordance with sub-paragraph (3), the Chairman shall—
(a) first put forthwith any Question which has been proposed from the Chair but not yet decided, and
(b) then put forthwith successively Questions on motions which may be made by a Minister of the Crown for assigning a Reason for disagreeing with the Lords in any of their Amendments.
(5) The proceedings of the Committee shall be reported without any further Question being put.
Miscellaneous
12. Paragraph (1) of Standing Order No. 15 (Exempted business) shall apply so far as necessary for the purposes of this Order.
13.–(1) The proceedings on any Motion made by a Minister of the Crown for varying or supplementing the provisions of this Order shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.
(2) Paragraph (1) of Standing Order No. 15 (Exempted business) shall apply to those proceedings.
14. Standing Order No. 82 (Business Committee) shall not apply in relation to any proceedings to which this Order applies.
15.–(1) No Motion shall be made, except by a Minister of the Crown, to alter the order in which any proceedings on the Bill are taken or to recommit the Bill.
(2) The Question on any such Motion shall be put forthwith.
16.–(1) No dilatory Motion shall be made in relation to proceedings to which this Order applies except by a Minister of the Crown.
(2) The Question on any such Motion shall be put forthwith.
17. The Speaker may not arrange for a debate to be held in accordance with Standing Order No. 24 (Emergency debates)—
(a) at this day's sitting, or
(b) at any sitting at which Lords Amendments to the Bill are, or any further Message from the Lords is, to be considered,
before the conclusion of any proceedings to which this Order applies.
18.–(1) Sub-paragraph (2) applies if the House is adjourned, or the sitting is suspended, before the conclusion of any proceedings to which this Order applies.
(2) No notice shall be required of a Motion made at the next sitting by a Minister of the Crown for varying or supplementing the provisions of this Order.
19. Proceedings to which this Order applies shall not be interrupted under any Standing Order relating to the sittings of the House.
The motion provides for all the stages of this Bill to be taken today. It provides for six hours of debate in two segments: the first three hours for the debate on this motion and on Second Reading, and the second three-hour segment for Committee, Report and Third Reading. I would be the first to acknowledge that six hours to debate the important issues addressed in this Bill is less than ideal, and it would certainly be undesirable if the emergency legislation today were not to be superseded by a Bill in the next Session allowing much fuller parliamentary scrutiny. However, I would like to explain briefly why we need to press ahead at such speed.
Following the decision by their lordships in the case of Davis, there is a broad consensus—indeed, we saw it at the time of the statement to the House by my right hon. Friend the Secretary of State for Justice and Lord Chancellor following that judgment—that we need to legislate urgently to restore the power of the courts to make witness anonymity orders in appropriate cases. That is widely accepted by Front Benchers in both Houses, by outside commentators and experts of various kinds, and by the Law Lords themselves. They, in the leading judgment by Lord Bingham, said that urgent legislation might be appropriate. I accept that not everybody would think that, but there is a broad range of people who do. Failure to act quickly could lead to a significant number of ongoing and pending trials having to be abandoned and, potentially, to a large number of appeals against convictions secured, to a greater or lesser extent, on the basis of evidence provided by anonymous witnesses. That is the basis of the need for urgency and the reason the timetable motion is as it is today.
I completely understand the general drift of the hon. Lady’s argument and do not quarrel with it. However, I understand that the House of Lords will have two days for the Bill and we have only one. Surely the elected House should have at least as much time as the House of Lords.
The hon. Gentleman is slightly misinformed. The other place will have two half days, equating to one full day, so there is a basic equality in the time allowed. I appreciate his general point about the undesirability of having a short time, but we need to move swiftly.
Having read the Davis judgment and listened to the beginning of the Minister’s speech, I agree that time is of the essence. Would it not be appropriate, therefore, to have a sunset clause? We know that the Bill will be superseded at some point, but we could make absolutely sure—belt and braces—through a sunset clause. I think that that would be accepted on both sides of the House.
The hon. Gentleman is stealing my thunder. The Government have tried to act consensually, given the need for speed, and in consultation with other parties we have accepted the principle that the Bill should contain a sunset clause. If the House agrees, it will be added to the Bill later. No doubt, we will have some discussion about what form it should take, and we have several options to consider.
We all agree that it is a good idea to provide protection for brave witnesses who want to give evidence to put criminals into prison. However, does the Minister agree that legislation passed in such haste can cause more problems than it provides solutions? Will she reflect on the fact that slightly more time might be needed to get it right? It could still go through relatively quickly.
I appreciate the general point that the hon. Gentleman makes in that there is some danger in hasty legislation. We have said, and will say again later, that the Bill will be a stopgap. There is to be a sunset clause, as I have said, and we will consider amendments to include it in the Bill later. My right hon. Friend the Lord Chancellor has made it clear that further legislation will be introduced next Session—the law reform, victims and witnesses Bill—that will subsume the contents of this Bill and enable full parliamentary scrutiny. At the same time, we will have cover for the urgent problems caused by the sudden arrival of the judgment in Davis.
The amendments tabled by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) have not been selected, but I know the substance of what he suggests—and he will no doubt make his own contribution later. He suggests that we should take the summer recess to consider the issues raised by the Davis judgment in more detail and not take the Lords stages of the Bill until the spill-over in the autumn. I fully understand his concern about the undesirability of hasty legislation, as I have already said, and about the timetable motion we are considering, but I cannot commend such a delay to the House as it would cause added distress and worry to many vulnerable and intimidated victims and witnesses, and undermine confidence in the criminal justice system generally, which none of us would be happy to see. Such confidence is vital if justice is to be done and the guilty brought to book.
The right hon. and learned Gentleman says that courts should adjourn these cases for four months, while we take the time to consider more fully, and ask the Law Commission and other experts for their views. But many victims of serious violent offences, or their relatives, or intimidated witnesses looking forward to the day when the trauma of giving evidence is behind them, would not agree that four months is a short delay. They would want the trial completed as soon as possible. What of a defendant remanded in custody? He, too, would want justice to be done with appropriate speed. While it may be true that if found guilty he will get credit for the time that he has spent inside, not all those tried are found guilty. Therefore, in some circumstances, people could be locked up for longer than necessary, even if they are not found guilty. Moreover, such a delay would leave the whole issue of anonymous evidence in legal limbo. That is not a sensible or acceptable way, in my judgment, to proceed.
We have, I believe, a sensible way forward that will meet the concerns of the right hon. and learned Member for Sleaford and North Hykeham about the speed with which the timetable motion seeks to take the Bill through all its stages. As I have mentioned, my right hon. Friend the Lord Chancellor has given a firm undertaking that he will repeal and subsume the provisions of the Bill into next Session’s law reform, victims and witnesses Bill. That will allow further and fuller debate of these important provisions, but with the cover of the arrangements in this Bill to prevent the mischief of courts having no power to grant anonymity to witnesses in the intervening period.
I hope that I have explained the urgency that we face today.
I fully understand why the hon. Lady wants to accelerate proceedings. I have listened carefully to her, but I do not entirely understand why the apparent desire to finish proceedings at 10 o’clock should take precedence over the need to scrutinise every clause of the Bill. Why do we not simply accelerate but maintain our proceedings until such a time this evening when every clause has been properly scrutinised and every amendment has been considered?
I am grateful to the hon. Gentleman for those comments. The workings of the usual channels have always been a complete mystery to me, as I have never been a part of them, but there we are. There has been some sort of agreement and it is incumbent on us to get along and debate the important points of the Bill as swiftly as we can. On that basis, it is probably time I resumed my seat.
I want to make it clear at the outset that the official Opposition do not accept the Government’s timetable, although we accept the principle behind the need for the legislation. The Bill has not come upon us by surprise. The decision of the Judicial Committee of the other place was made two or three weeks ago, but the trial took place as long ago as 2004, the murder took place in 2002 and the Court of Appeal considered the matter in 2006. Throughout that time, I suspect that lawyers within the Government will have been anticipating—if they were not, they should have been—one result or the other. That is to say, a confirmation—[Interruption.] If the Home Secretary would keep her mouth shut briefly, we could get on. [Hon. Members: “Oh!”] I mean that quite seriously, Mr. Speaker—
Order. We must have temperate conversation and language. The important thing is that I am listening to the hon. and learned Gentleman.
I could not be more grateful, Mr. Speaker.
As I said, the Court of Appeal decision was in 2006 and it must have been within the contemplation of the Government that the House of Lords would either disagree or agree with the Court of Appeal and that contingency arrangements should therefore be arranged. However, we do not deny that there is urgency, artificial or otherwise, when it comes to dealing with the problem. We therefore think that there is some ground for the Government’s case for urgency. However, what we are about is a fairly fundamental change in the law as it is now declared to be.
We are not talking about a pro forma Bill. Before we got on to this business, we dealt with the Consolidated Fund (Appropriation) (No. 2) Bill, which went through all its stages in about five seconds—
That is only all the money.
The hon. Gentleman is quite right; it only deals with the money.
Since the 1979-80 Session, 60 Government Bills have gone through the Commons with all their stages being dealt with in one day. They were largely uncontroversial Bills, such as those to do with consular fees, friendly societies, the Commonwealth Development Corporation—there were two such Bills in that period—the borrowing powers of British shipbuilders and international monetary arrangements. There was the Caravans (Standard Community Charge and Rating) Bill, the Community Charges (General Reduction) Bill, the Australian Constitution (Public Record Copy) Bill, the Parliamentary Corporate Bodies Bill, the Stamp Duty (Temporary Provisions) Bill, the Welsh Development Agency Bill and so on. There was a Bill to amalgamate county and European election dates, and others that were more controversial in their implications if not in their deliberation, by which I mean those to do with the peace process in Northern Ireland.
I suggest that although there is some urgency for the current Bill to be dealt with before the end of this term, there would be nothing to prevent the Government from urging the House to sit beyond 22 July if it were thought appropriate for the Bill to be given greater consideration.
The Minister is right that the House of Lords will consider the Bill on two separate days, but they will be half-days. The importance of that is not so much the amount of time available on each of those days but the gap between them, when outside interests and their lordships will be able to consider better the implications of the Bill. We will not get that advantage. We are to go from Second Reading to Third Reading by 10 o’clock. I suggest to the House that that is not a sensible way to deal with this extremely important Bill.
May I infer from what my hon. and learned Friend says that there was an attempt to negotiate a better timetable through the usual channels, and that those negotiations failed?
Like the Minister, I am not a member of that secret society, the usual channels, so I have absolutely no knowledge of what has been going on behind the scenes. I can say, as she did, that there have been discussions between our party and the Government, and I dare say between the Liberal Democrats and the Government, about the content of the Bill. Given the constrained timetable, we wanted to reach as much agreement as possible. However, legislation should be made in this Chamber, not in ministerial meetings outside it. Although I thank both the Secretary of State and the Minister for their consideration in being as open as they can with us, that does not undermine the thrust of my argument that the timetable is inadequate for this important Bill.
Will the hon. and learned Gentleman give way?
I will if the hon. Gentleman will be very brief.
Does the hon. and learned Gentleman not accept that there is a certain contradiction between the two limbs of his argument, one of which is that the Government have had plenty of time to consider the matter since 2004, and the other of which is that he feels stampeded? He and his party have had plenty of time to consider the issue, too.
The hon. Gentleman misunderstands. It is the Government’s Bill. We did not see it until it was in its draft form last week.
Nor did we.
There we are—nor did the Government. Perhaps unwittingly, the hon. Gentleman has made my point about the lack of preparedness that the Government are guilty of.
I shall stop there, because I know that others wish to speak and we need to get on with the Bill. I understand the parliamentary arithmetic, but as a matter of principle the official Opposition will resist the motion.
I, too, accept the need for speed in this situation. A large number of cases pending, or recent cases pending appeal, were decided on the basis of the law as it was believed to be before the Davis decision. In addition to the factors that the Minister mentioned, there is the fact that custody time limits might well run out while a resolution of the legal position is awaited. I would not want a lot of defendants to find themselves with a presumption in favour of bail because we had acted too slowly. It is reasonable to say that if we fail to act swiftly, a lot of people might be released who should not be.
Additionally, as the Minister said, the House of Lords invited Parliament to act quickly on the Davis case, and that is what we are doing. Members of all parties agree that there should be some rules; it is simply a question of deciding what those rules should be, and there is a good deal of urgency to that.
However, I accept that there are grave dangers in legislating too quickly. Knee-jerk legislation is one of British politics’ besetting sins, especially in the area of criminal justice. The Dangerous Dogs Act 1991 and the Prevention of Terrorism Act 2005 are just two examples, although the original Official Secrets Act 1911, passed by the last Liberal Government, was also far too quick. Slow politics, rather like slow food, tends to be healthier and more productive.
The hon. and learned Member for Harborough (Mr. Garnier) asked one question that I hope the Government will answer at some point. I hear what other hon. Members have said about this Bill being an opportunity for other parties, but the Government seem to have been taken by surprise by the Davis decision. Various legal practitioners thought that there was at least some possibility that the decision would be as it was, so I am surprised that the Government have been in such a rush to get legislation in place.
Given that we are where we are, however, we have to act quickly. Because of the two factors that the Minister mentioned, I am far less inclined than I would otherwise have been to oppose this rather brutal allocation of time motion. The first factor is the promise that the entire debate will be rerun quite soon in the forthcoming law reform, victims and witnesses Bill, although I hope that the Government will be able to tell the House when that Bill will be introduced. Will it be early in the next Session’s legislative programme, or late? I would be more reassured if I knew at least approximately when that would happen.
Would the hon. Gentleman be further reassured if the Government were to say that adequate time will be given to consideration of that Bill? Does he agree that the successor to this Bill and all the welcome provisions in it should not be shovelled into a portmanteau Bill considered in one day?
I thank the hon. Gentleman for that important suggestion. On various occasions, especially in Committee and on Report, we have found ourselves discussing newly arrived Government amendments rather than the original proposals. Some reassurance on that would be welcome.
The second important point that the Minister made was that the Government were including a sunset clause in this Bill. It is not the one that we would propose, although it is closer to that than I expected. However, the Government have accepted the principle, and that shows that they accept that this legislation is temporary.
The one thing that I am confident of is that we will make some mistake or other with this Bill. I do not know what it will be, but at least we will have the chance to put it right soon.
There was an interesting exchange at the end of the speech by my hon. and learned Friend the Member for Harborough (Mr. Garnier). He said that he had not seen the draft Bill until the end of last week, and the Minister made a sedentary intervention to the effect that Ministers had not seen it either. That means that we are actually dealing with Government by decree, or enactment by officials. We are so truncating the parliamentary process that, broadly speaking, we are dealing with a Bill drafted exclusively by officials, and I am against that.
I am going to say something about the timetable motion, although I am sure that that will cause people to say, “You’re taking time out of the substantive debate on Second Reading.” That is perfectly true, and there are three answers to that point. First, if we are doing something that is wrong, we should say so, and the only place for that is on the Floor of the House. Secondly, and differently, the Government have chosen to draft the allocation of time motion in such a way that this debate comes out of the time for Second Reading. They did not have to do that, but that was their choice, and I suspect that they made it to truncate debate. In my view, that is scandalous.
The third answer is that the Government are determined to get this Bill passed today in the form that they want. Anything that we say or do in this Chamber today is utterly irrelevant because the Government have the troops and they intend to push the Bill through. So I make no apology about speaking to the allocation of time motion or for taking time out of the Second Reading debate.
I move from those points to the substance of what I want to say. This is an important Bill for the kind of reasons that my hon. and learned Friend outlined. It is the kind of Bill that requires serious consideration. It is the kind of Bill that normally would fall within the ordinary parliamentary process—pre-legislative scrutiny, Second Reading, delay, Committee, Report, Third Reading and up to the other place. All of that would allow the Government and hon. Members to consider where they stood and to receive representations from outside. That is not happening today.
This thing was published on Thursday, rather late. We have had little opportunity to do research and have received little comment from outside. The Government have had little chance to reflect further. That does not alter the fact that they have already tabled five amendments and a new clause, and doubtless they will table others in the other place as well. I am conscious even as I speak that there are amendments that I should have tabled but have failed to do so. I tried to table them in manuscript this morning but, understandably, they were not accepted. The hon. Member for Cambridge (David Howarth) said that we were going to make mistakes, and by God we are. That is the inherent characteristic of legislation of this kind.
The Bill is actually an example of where we could learn considerably by experience because there is other legislation in place. There is a New Zealand Act—the Evidence Act 2006—which I believe was a consolidation Bill, which means that the legislation had been in place there for some time. It would have been interesting to know the experience in New Zealand and the extent to which the legislation worked for justice or injustice. That is research from which we will not be able to benefit. I understand that in the Netherlands a counterpart piece of legislation is in place. I would have been interested to know what the experience of the Dutch was on a Bill of this kind, but we are going to be denied that.
There is another point that we need to keep in mind. The House of Lords did not merely decide that the common-law power did not exist; it also decided that the protective measures put in place by the trial judge in the case of Davis rendered the trial unfair. So the House of Lords decided the case on two bases—the absence of the common-law power and the fact that in any event the protective measures rendered the trial unfair. We need to reflect seriously on how the powers that we propose to take unto ourselves would not have an unfair consequence.
Let me suggest what we should do. In an ideal world, yes we need to legislate. I am perfectly willing to accept that there is a small number of cases in which witness anonymity orders are appropriate. We need the Law Commission’s advice, in my view, and we need research too. I do not believe that we need to get this thing through by the end of this sitting. It is true that there are cases under way. I do not know how many, but there will be some. They can be adjourned. It is quite usual for criminal cases to be adjourned for several months. My proposal is that they should be adjourned until the back end of this year. The appeals could be relisted for the same sort of reasons.
If there is urgency, I would like to see happen something like the following. The Bill should clear the House by the end of July and go up to the other place, which would consider the Bill in October. Meantime, the Government could embark on proper consultation and seek the advice of the Law Commission. If the Bill needed to be changed as a result of that advice or consultation, amendments could properly be tabled in the other place in October and brought back to this House in October or November. The Bill would then become law by the end of this Session—by December. I believe that that would provide for the degree of urgency that the Government say they require and give this House the opportunity to make a more informed decision as to the merits of what we are doing.
The Government know that is my position; the Minister perfectly fairly set out my proposals, but I fear they will not be accepted—she made that point plain. In that case, and for that reason, I shall vote against the timetable.
After listening to this brief debate, I rise to support what my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) said. I speak as a non-lawyer but I accept the need for legislation in this case, although I, too, cannot understand why a Government who have introduced dozens of criminal justice Bills since 1997 could not have foreseen the problem and prepared accordingly.
I, too, am aware that it is when the House legislates in a rush that it makes mistakes. Some of us remember the Dangerous Dogs Act 1991, and realise that when we all agree rather quickly about something we often make mistakes. That Act has certainly been widely found unworkable and inappropriate, so I have a strong prejudice against doing something quickly.
We are not dealing with a matter of trivia, but with a constitutional matter; the rights of the accused are, in my view, constitutional. We are dealing with the coercive power of the state, and such matters should be approached with great humility and care. In other countries, the rights of the accused form an important part of the written constitution. The sixth amendment to the United States constitution, which is part of the Bill of Rights, actually forbids anonymous evidence altogether, and has been strictly interpreted by the American courts, although they may get round it by using witness anonymity programmes and suchlike.
Doubtless the framers of the American constitution were responding to previous abuses; the inquisition, for instance, regularly denied the accused knowledge of the charges against them or the names of their accusers. As a result, subsequent written constitutions have made protecting the rights of the accused a matter of prime importance.
I am not satisfied that this matter has been properly ventilated. For instance, we normally receive a good many representations from human rights organisations and outside lobby groups, but I have received very few, so I must ask the Minister whether she is satisfied that the normal process of scrutiny, not just in Parliament but outside, has been carried out. Are we certain that a statutory right to anonymity will not gradually be expanded over time, for the convenience rather than the safety of witnesses, and become fairly routine? It would undermine a cardinal principle of the safeguard that in normal circumstances the accused should be confronted by his or her accusers, who can thus be cross-examined.
My final point is that although the Secretary of State says that the measure is compatible with the European convention on human rights, my reading of the convention is that it is very strict indeed about this matter.
There is a further related point. Does my right hon. Friend recall that Lord Mance, one of the Law Lords who gave the judgment, made it plain that in his opinion the particular protective measures put in place were incompatible with European jurisprudence?
If that is true—I defer to my right hon. and learned Friend’s opinion—it is very serious indeed, because the House is being misadvised on an important matter. We have heard nothing about it, although perhaps we shall on Second Reading.
All these things should not simply have been left to exchanges in the Chamber on a single day, but should have been explored outside with legal bodies and human rights organisations. We have not been given time to do that. The process is objectionable, and I agree with the points made by my right hon. and learned Friend: this is exactly how mistakes are made.
I agree with almost everything that the right hon. Member for Wells (Mr. Heathcoat-Amory) has said. Every Member of this House knows—not thinks—that legislation made in haste is almost inevitably bad, but here we are, producing such legislation again, and doing it with our eyes open. That says something very serious about the House. This short debate has revealed certain extremely worrying aspects of the matter. The Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle) said that there was nothing that she could do about the timetable, because although she did not understand the usual channels—well, she has only been in the House for 10 years or so—she was powerless before them. Whose usual channels are they? They are our usual channels, and they are the servants of Secretaries of State and Ministers. We are not the creatures of the usual channels; they do the bidding of Ministers, in co-operation with the Opposition Whips. To say, “There’s nothing we can do, because the usual channels make it impossible for us,” is ridiculous.
The Secretary of State said that he had not seen the Bill until last week. What on earth is going on? I agree with the hon. and learned Member for Harborough (Mr. Garnier): what on earth are we doing looking at legislation when the Secretary of State says that he did not see it until a few days ago, and asks us to nod it through?
My hon. Friend knows very well why we are introducing this emergency legislation. Their lordships did not reach their judgment until 18 June. We have acted with great rapidity, and most people are willing to give us credit for that. We then had to agree instructions to counsel. There were detailed consultations with the other parties, and with others outside the House. If we had rushed ahead without those consultations, we would have ended up with a far less well drafted Bill. I fail to understand the criticism, given that everybody in the Chamber, bar one or two Members, accepts the need for speed in this case. I will explain that need when we move on to Second Reading.
I am grateful to my right hon. Friend for that. Yes, I think that everybody does accept the need for haste, but not necessarily breakneck haste, with the Bill having to complete all its stages this evening. Also, we do not need to finish at 10 o’clock. There is nothing in our Standing Orders to say that debate has to finish then. Indeed, most of us who have been in the House for 15, 20 or 25 years know that many times, when it was necessary, we have debated matters far into the night. Nobody likes doing that, and it does not necessarily make for very intelligent debate or very good consideration, but it is certainly better than having an artificial limit, and saying, “We must go home to our beds at 10 o’clock, and we’ll confine and constrain consideration of the Bill simply to get us out of the building by then.” That is not how matters should be conducted in Parliament. We should give legislation the time that it needs. As the right hon. Member for Wells rightly said, we are not talking about any old legislation; we are talking about criminal legislation. We are deciding on measures that will determine whether people are at liberty. We owe criminal justice legislation rather more respect and caution than normal legislation.
We are rushing things through totally artificially. We do not need to finish today, or at 10 o’clock, yet we are saying that we will accept all that. That is not right. Surely that demonstrates that one of the things which is so desperately wrong with this Parliament, and recent Parliaments, is that we are becoming completely supine before the view of the Executive. If the Executive say that they want something straight away, we give in to them. The House should start to assert itself. It should ask, “Is this right? Do we consider this to be the right way of doing things?” It should make its will felt. Unless it does so, and unless we take control of our business and our agenda, the whole parliamentary system will be brought into disrepute. That is quite apart from the issue of the validity of the Bill and of the way in which we are considering it. We are becoming supine in our own Chamber, and it is about time that we asserted ourselves.
I have listened to what has been said, and I agree that we need to act. We cannot allow the situation to remain in limbo. Everybody across the House understands that. I am not party to the discussions of the usual channels. I was once a Whip, but that does not mean that I got involved in their murky dealings and black arts. Having said that, the point was well made that we are not dealing with the wrongful prosecution of a dog owner whose dog is of a slightly different breed to those listed in an Act that was rushed through. We are dealing with people’s liberty. We are dealing with the right to a fair trial, and we are dealing with a defendant’s right to be confronted by his accuser.
As a practitioner, it is sometimes vital that one knows who the accuser is, because one may know something about the accuser that renders the accuser’s evidence unreliable. If that is the case, one defends one client with all one’s vigour, and one ensures that that person’s character is brought into question thoroughly and without exception. However, from my reading of the Bill, it is not possible to do so in this instance. People who are far more learned than me are concerned about the matter. I read the New Zealand statute, largely because the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) suggested that I do so, but I am extremely concerned about this measure. If it is to be restricted to a small minority of cases—as I hope it will be—we can accept that, because overall, the judge will decide on the fairness of the process.
I am interested in what the hon. Gentleman is saying, but he is discussing the merits of the Bill, and the motion is about the allocation of time. Once this debate is over, we can talk about the merits of the Bill.
I fully accept what you say, Mr. Speaker, and I hope to catch your eye at a later stage. In conclusion, if the power is to be used sparingly and only in very rare cases, all well and good, but learned counsel tell me that in 500 to 600 cases a year, it is routinely used by the police. If we are opening the gates up to that, we are opening the gates to injustice.
I would like far longer to discuss this, and I hoped that the timetable motion would allow more time, perhaps even an extra day. I understand the pressure on Government, and the need to move, but an extra day would help all of us in our research. To plonk this on us at the end of last week, and expect us to go through all the Bill’s stages today, is unreasonable. As has been said, when we make law in haste, we get it wrong. I am sure that we will get it wrong today, but I am heartened by what the Under-Secretary said about the sunset clause. At least that is something that we can look forward to in the next 12 months. All in all, I believe that we deserve more time to discuss these important matters.
I, too, was somewhat reassured by what the Minister said about the sunset clause. I was partly reassured by what I took to be an indication that there will be no pressure on the House when that major piece of legislation is introduced in the next parliamentary Session. She is nodding assent, for which I am grateful.
I am entirely persuaded of the need for the Bill, much as I accept the points that were about to be developed by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) when you rightly cut him short, Mr. Speaker. That is partly because of the knowledge and experience of Northern Ireland that I have gained in the three years for which I have chaired the Select Committee on Northern Ireland Affairs. I am delighted that the hon. Member for East Antrim (Sammy Wilson) is in the Chamber, because we both know that there are times when it is absolutely necessary to protect the anonymity of key witnesses.
There is an interesting point to be made about Northern Ireland, because in 1992 Lord Diplock, and then Lord Gardiner, held that the anonymity of witnesses could not be allowed in Northern Ireland, because that would impugn the criminal process in the Northern Irish courts.
Yes, but the circumstances were very different, as my right hon. and learned Friend knows far better than I do.
I appreciate the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), but does the hon. Member for South Staffordshire (Sir Patrick Cormack) accept that increasingly, the evidence in Northern Ireland suggests that those who were involved in paramilitary activity, or who are still involved in it, interfere with witnesses on a regular basis, which makes it difficult for the due process of law to be carried out?
Order. Once again, although we are on an allocation of time order, we have gone back to discussing the merits of the Bill.
I shall not do that, Mr. Speaker, save to say that I accept what the hon. Member for East Antrim says.
We are, indeed, discussing the timing, and although I accept the need for urgency and—unlike my right hon. and learned Friend the Member for Sleaford and North Hykeham—the need to get the legislation through before the House rises for the summer recess, I do not accept that we have to do it all in one day. Some intricate arguments will need to take place. I am not a lawyer and I shall probably not take part in those, but I am mindful of the fact that when we legislate in haste, we often get it wrong, although, as the hon. Member for East Antrim reminded me from a sedentary position a while ago, sometimes we can take four years over legislation, as we did on hunting, and still get it wrong.
Although I accept that the legislation is urgent and necessary, the fact is that we could have had, at the very least, two days. The Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle) quite correctly put me right when she said that the other place was having two half days rather than two days of debate, but my hon. and learned Friend the Member for Harborough (Mr. Garnier) responded from the Front Bench by saying that two half days with a period for reflection in between is better than six hours on the trot.
I realise that the legislation will go through. The hon. Member for Stoke-on-Trent, Central (Mark Fisher) made an impassioned plea for the House to assert its authority, but he knows better than I that the House cannot exert its authority if the Government have a majority and whip the legislation. It is as simple and as depressing as that. On the Liaison Committee last week, I reminded the Prime Minister that if he really wanted to put Parliament back at the centre of the nation’s life, he could take away the power of the Executive to impose a timetable on every Bill. I do not know precisely what happened in the usual channels—once famously referred to as the most polluted waterways in Europe—but I do know that it would have been better if the timetabling of this Bill, as of any other Bill, had been in the hands of those who are not entirely the creatures of the Executive or of the shadow Executive.
So, we will proceed with the Bill. I do not want to make a long speech and delay the debate about the substantive issues, but it is a great pity that the timetabling did not allow for a period of reflection so that we could have returned to the Bill tomorrow or on Thursday. We could have sat one day longer—on 23 July—without any great inconvenience to people. It is fairly inconvenient to come back for two days, a Monday and a Tuesday, so to have added the Wednesday would, frankly, have made the week more justifiable. I rest my case—but I think it is a pity that we are doing things in this way.
In the Lord Chancellor’s oral statement to the House on 26 June, he said that if the Bill before us were passed, it would be repealed in the next Session and subsumed into the forthcoming law reform, victims and witnesses Bill. Will the Minister assure the House that when that Bill comes before the House, we will have at least two days on Second Reading?
Order. My advice is that the question that the Minister has been asked has nothing to do with the matter before us. There may be an opportunity for it to be dealt with at a later stage.
Question put:—
The House proceeded to a Division.
I ask the Serjeant at Arms to investigate the delay in the Aye Lobby.
Criminal Evidence (Witness Anonymity) Bill
Order for Second Reading read.
I beg to move, That the Bill be now read a Second time.
In my statement to this House on 26 June, I set out the reasons why the Government found it necessary to bring forward this emergency legislation following the Law Lords’ judgment in the case of Davis. There is no need for me to rehearse at length the arguments that I presented to the House on that occasion. I will just outline briefly the background. It is as follows.
On 18 June, the Appellate Committee of the House of Lords—the Law Lords—unanimously overturned an earlier and also unanimous decision of the Court of Appeal criminal division that had allowed the use of anonymised witness evidence in certain criminal trials. The senior Law Lord, the noble Lord Bingham, looked at the common law and found that the courts had arrived at a position on anonymised evidence that was
“irreconcilable with long standing principle”.
Their lordships also held that the processes used in the particular circumstances of Davis had rendered the trial unfair under article 6 of the European convention on human rights, although they accepted that, in principle, anonymised evidence was not inconsistent with article 6.
Overall, Lord Bingham said that the matter may now
“very well call for urgent attention by Parliament”.
Lord Mance endorsed that approach, to deal with what he said was
“the undoubted—and there is reason to think growing—threat to the administration of justice posed by victim intimidation”.
The Government—and, I am glad to say, the House—have accepted their lordships’ invitation urgently to consider filling the void that was left by their judgment of 18 June. Although many points were raised when I made my statement on 26 June, there was widespread approbation across the Chamber for the necessity of introducing an emergency Bill.
There has been an intensive period of consultation since my statement, the product of which is reflected both in the Bill as introduced and in the Government amendments standing in my name. I am very grateful indeed to the spokesman for the official Opposition and to the Liberal Democrats for the constructive approach that they have adopted in the course of the consultation. In the intervening period, too, we have sought the most up-to-date information available from the Crown Prosecution Service regarding the scale of the use of anonymous witness evidence. A paper including that information was published Thursday last alongside the Bill.
In a snapshot survey, the CPS identified around 580 cases that it considered current. Of those, 290 involved undercover police officers completing test purchases of drugs, approximately 40 were live cases involving undercover police in other investigations and 50 were live cases involving members of the public as witnesses. The balance, of approximately 200 further cases, include those in which the defendant either has been convicted but not yet sentenced or is still able to appeal under the 28-day limit. It is the live cases that will attract the greatest concern if we do not legislate immediately. It is essential that we legislate, for those cases typically involve the gravest of crimes—crimes relating to guns, gangs and drugs, for example—which give greatest cause for public concern.
Does the right hon. Gentleman know in how many of the live cases the defendants are in custody or on bail, which may make a difference to the House’s view?
I do not have that information offhand, but I shall seek to find out whether it can be provided to the House later today. However, judging by the seriousness of the offences involved, there is a high probability that almost all those defendants will be in custody.
There is much else that we are doing to tackle those crimes, which strike so much fear among the public. We have upped the minimum sentence for knife crime, from two years to four, and established a minimum sentence for the carrying of guns. Last September, my right hon. Friend the Home Secretary set up a guns and gangs action programme in parts of four cities—London, Birmingham, Liverpool and Manchester—where the problem has been most prevalent. Since the announcement, there has been a 51 per cent. drop in firearms-related injuries and a 27 per cent. drop in all recorded firearms offences in those four areas. In the programme area in London, there has been a 53 per cent. drop in firearms offences and a 68 per cent. drop in such injuries. Sentence lengths generally have increased, too. One key driver of the dramatic increase in the prison population over the past 11 years has been a 60 per cent. increase in the number of serious and violent offenders brought to justice and then incarcerated for long periods.
Anonymised evidence and the safety of key witnesses are fundamental to getting the nasty, greedy and ruthless criminals who perpetrate those crimes off the streets. Assistant commissioner of the Metropolitan police, John Yates, said in an article in The Daily Telegraph on 21 June responding to the Davis judgment that, as a result of the provision for anonymised evidence taking, the detection rate for such murders—yardie, Operation Trident murders—had risen to about 85 per cent., up from, he said, around 40 per cent. in the mid to late 1990s.
However, the proportionate use of such evidence goes much wider than that. Undercover police officers and agents need protection if, for example, drug dealers and terrorists are to be brought to trial. So do communities where criminality and intimidation may not have quite the same life-threatening consequences, but can still ruin the lives of decent people. Closing down an off-licence that is selling drink to juveniles and acting as a magnet for drug dealing and disorder could be dismissed as trivial from the comfort of a leafy part of town, but not if it is down your street. The Bill seeks to ensure that when there is witness intimidation of a serious kind, and when other measures of witness protection, many of which have been put on to the statute book in recent years, are not adequate for the task, the evidence of the witness can be anonymised if the court accepts it and it is regarded as fair.
Like the Secretary of State, I do not want to see any more knife or gun crime on our streets, and I understand the serious problem of witness intimidation. However, will he address a problem that many people have raised: that an anonymised witness system makes it possible for old scores to be settled in a totally different way, and for a miscarriage of justice to take place? That will create two problems. First, the wrong person is in prison; secondly, the wrong person—the wrong ’un—is outside causing mayhem in the future. We could end up with something worse than the present system.
My hon. Friend is entirely right to draw attention to one of the dangers of taking anonymised evidence. It would serve no purpose for us to pretend otherwise. In principle, as the Law Lords accept—along with everyone else—it must be right, and fundamental to a fair trial, for someone accused of any crime, particularly a serious crime but self-evidently and by extension a trivial one, to have the right to confront his or her accuser, to know the accuser’s identity and to challenge his or her motives.
One of the challenges with which the courts have had to deal in the past, having established before the Law Lords’ judgment that in certain circumstances it was permissible in common law to use anonymised witnesses, and also the key challenge that we faced in drafting the Bill, is the need to ensure as far as possible first that a witness anonymity order is not granted unless and until the judge considers it necessary under the scheme of the Bill, and secondly that the circumstances in which it is granted give the defendant the maximum opportunity to challenge the credibility of the witness, although the identity of that witness has been kept from him or her. It is not unusual in some of the very serious cases with which we are dealing for the witness for the prosecution to have a grudge, and he or she may well have previous convictions for violence. That does not necessarily render his or her evidence unworthy or untrue, but of course it raises questions about it, and we must be very careful for that reason.
Let me explain the scheme of the Bill; this may give my hon. Friend the Member for Islington, North (Jeremy Corbyn) some reassurance. Clause 1 introduces the concept of statutory “witness anonymity orders” and abolishes the common-law rules. The Bill deals only with criminal proceedings because the House of Lords judgment in Davis concerned criminal proceedings alone. There is no change in the position in relation to civil proceedings. Clauses 2 to 8 set out the nature of the orders and who can make them. As I told the hon. and learned Member for Torridge and West Devon (Mr. Cox) after my statement on 26 June, they can be sought by either the prosecution or the defence.
A key part of the Bill is contained in clauses 4 and 5, which relate to the conditions and considerations involved in the making of an order. Clause 4 sets out the three conditions: that the order is necessary to protect the safety of the witness or other person or to prevent any serious damage to property or real harm to the public interest; that the measures would be consistent with the defendant’s receiving a fair trial; and that it is necessary to make the order in the interests of justice.
Clause 5 sets out the considerations to which the court must have regard. These include whether the witness’s evidence could be properly tested without his or her identity being disclosed—a point I make to my hon. Friend the Member for Islington, North; whether there are reasons to believe that the witness may not be credible; and whether alternative means short of a witness anonymity order could be used to protect the witness’s identity.
Would it be possible for the anonymity not to be complete? For example, if the witness were to be screened, would it be possible for the screen to apply only to the defendant, or certain people in the court, but not to the judge and jury, who may need to take into account the demeanour of the witness in deciding on the truthfulness of their evidence?
I can reassure my hon. Friend on that. In all the cases that I am aware of, the identity of the witness is known to the judge, and the screening—and, for example, the mechanical disguising of the voice—is for the defendant and his representatives, but the jury can see the witness. Therefore, such special measures are put in place—and precisely those arrangements were put in place in the case of Davis, which was the subject of the Law Lords’ judgment. [Interruption.] My hon. and learned Friend the Solicitor-General points out that clause 2(4) sets out the conditions. It states: “Nothing in this section”—or, indeed, in the Bill—
“authorises the court to require—
(a) the witness to be screened to such an extent that the witness cannot be seen by—
(i) the judge or other members of the court (if any);
(ii) the jury (if there is one); or
(iii) any interpreter or other person appointed by the court to assist the witness”,
and the witness’s natural voice has to be heard by those three.
In addition to the five conditions in clause 5(2), following suggestions I have received, an amendment tabled in my name proposes that courts must act so as to have regard to whether the evidence might be the sole or decisive evidence before granting anonymity. That was a concern for the Opposition parties and others, and it was central to the judgment in Davis. This is not a bar on the granting of an anonymity order, but it will be stated as a consideration in the legislation.
The Bill will come into force on Royal Assent, hopefully before the summer recess. The House, however, is well aware that there are a number of cases in the pipeline, and that there may well be defendants who have already been convicted who would seek to make out-of-time appeals, either directly or via the Criminal Cases Review Commission, in the light of their lordships’ judgment. Clauses 10 and 11 will therefore ensure that the new law can also apply to any proceedings in cases of this kind.
Clause 10 applies to proceedings and trials that are already under way. In essence, the judge has to look at existing common-law orders, which are already made, and decide whether they could have been made under the new law. If the witness has already given, or has started giving, his or her evidence and the judge concludes that the defendant cannot receive a fair trial, subsection (7) tells the judge that he must make suitable directions for bringing the trial or hearing to a conclusion, and that includes the possibility of a retrial.
Clause 11 applies to proceedings that have been completed. The appellate court then has to consider whether the new statutory anonymity order could have been made under the new law. It must treat the conviction as unsafe if it concludes that the defendant had not received a fair trial.
The remaining clauses relate to interpretation, commencement and extent.
Will the Secretary of State briefly explain why most of the Bill does not apply to Scotland, and what they do there?
They do things differently, and they always have done. The right hon. and learned Member for North-East Fife (Sir Menzies Campbell), who is present, is a good Scots lawyer, and one of the things I learned on almost the first day I began studying English law was that I would gradually become acquainted with the legal systems of Ireland, Australia, Canada and Malta, but never of Scotland. [Interruption.] Yes, and of Essex, too. My hon. Friend will therefore forgive me if I do not go down a path—
It does not stop Scots MPs voting on Bills such as this.
I refer the right hon. and learned Gentleman to the interesting report produced by the right hon. and learned Member for Rushcliffe (Mr. Clarke).
The Bill will cover England, Wales and Northern Ireland, and Scotland and the Crown dependencies as well in respect of the service courts. We have, by the way, asked the Scottish Administration whether they would like us to include reference in this Bill for them—they are fully entitled to do so—but their current view is that that is not necessary.
A week ago, a leading Queen’s counsel opined that far too many of these anonymity orders are being made. He said that between 500 and 600 are being made, and that the police are routinely going a bit over the top. Ken Jones of the Association of Chief Police Officers said that the figure is only a handful a year. Under this legislation, does the right hon. Gentleman foresee fewer applications than 500 or 600 a year, or does he think that figure will be about the same or even that there will be an increase?
I think it inherently improbable that there will be an increase in the number of orders, because we are now laying down a statutory scheme that is broadly based on past practice, subject to this really important caveat: we have also had to take account of what their lordships said in the Davis judgment, particularly in respect of Strasbourg jurisprudence. Time will tell, but I suspect that the figure will almost certainly not be more, and could be fewer. The courts and the prosecutors will be looking at whether, in certain cases where a witness anonymity order has been made in the past, it would be adequate for the task for a witness protection order to be made.
I was very glad to hear what the Lord Chancellor just said. Would he therefore care to comment on paragraph 50 of the explanatory notes? It states:
“The Bill will not generate new costs. It aims to restore the law to, broadly, the position it was believed to be prior to Davis.”
Surely it cannot go back to the position prior to Davis, precisely because of the point that the right hon. Gentleman made about the human rights position.
In that respect, the hon. Gentleman is entirely right. Happily, those are just explanatory notes.
Virtually everyone recognises the unfortunate necessity for anonymity in a very limited number of cases, and a lot of people will have been rather disturbed to discover just how many cases there have been under the common-law arrangements. Will my right hon. Friend undertake to make sure that every single order issued under the new legislation will be logged, and that there will be regular reports to the House on the numbers? We certainly would not want this legislation to allow the police to start using what is proposed as a routine response in the odd difficult case.
The Crown Prosecution Service has collected a good deal of information so far about the number of cases. There is a very strong argument for its keeping a proper log of all of them, and it is important that the House should know what has happened, not least when we come to debate the Bill later in the year or early next Session. I will therefore raise that matter with my right hon. Friend the Attorney-General, because it will be a matter for the CPS.
If my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson) looks not at the explanatory notes but at the background note on the number of cases, which we published alongside the Bill, he will see that the number that raised a concern of the sort raised by my hon. Friend the Member for Islington, North—cases in which the credibility of witnesses is an issue, because they could well have been accomplices to other crimes and could have as criminal a past as the defendants in the dock—is relatively small. It is thought to be about 40 or 50. Of the total, a large proportion involve undercover police officers or agents, and I do not think that anybody would argue that we should not routinely protect their identity.
The Director of Public Prosecutions gave evidence to my Committee this afternoon, and he said that the CPS is now logging the cases, the reasons for the applications and the outcomes. It had no reason to do so before, because the procedure was considered lawful. He also told us that he expected to see roughly the same number concerning undercover operations, but fewer instances relating to what he called the civilian cases, especially those involving gun crime under Operation Trident.
That is extremely helpful information, fresh from an evidence session, and I am grateful to my hon. Friend.
I said in my statement of 26 June—it is repeated in the explanatory notes—that it is our intention that this emergency legislation will be repealed by legislation that is to be included in next Session’s law reform, victims and witnesses Bill. The Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston (Maria Eagle), has already referred to the representations that have been made that this undertaking should be reflected in the Bill, and we have tabled amendments to that end, so there will be a sunset clause.
I have signed a statement under section 19 of the Human Rights Act 1998 that in my opinion the provisions of the Bill are compatible with the European convention on human rights.
On the issue of testing the credibility of witnesses, which is germane to the Human Rights Act 1998, is it the Lord Chancellor’s understanding that under the terms of this Bill, judges will be able to appoint an independent counsel to investigate the credibility of a witness before granting an anonymity order? If that is the case, why has he resisted adding such a provision to the Bill?
It is certainly the case that courts have an inherent jurisdiction to appoint special counsel or advocates, and they have used that in the past. Indeed, one was used in the case of Davis. That inherent jurisdiction will continue. Given the time constraints on Second Reading, I will explain when we come to the amendments on that issue why the Government intend to resist its inclusion in the Bill at this stage.
Not for the first time, the Lord Chancellor alleges that the courts have an inherent jurisdiction to appoint a special advocate, as distinct from an amicus or counsel to an inquiry, for example. When he deals with the special advocate proposals, will he please arm himself with some authority for that view? I know that he mentioned the Davis case—[Interruption.]
I shall do my best to do so. I see that the hon. and learned Gentleman has been given “Archbold” to read on the subject: perhaps we can share the page.
Further background in relation to our ECHR responsibilities is included in the explanatory notes accompanying the Bill, but permit me to quote Lord Mance from the House of Lords judgment. He noted that
“it may well be appropriate that there should be a careful statutory modification of basic common law principles. It is clear from the Strasbourg jurisprudence...that there is scope within the Human Rights Convention for such modification”.
He went on to say that
“it is not certain that there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence”.
For good measure, I might add that I found out from the ever-helpful Library research paper that there is international support—with conditions—for accepting anonymised evidence, described in the United Nations good practice guide.
The late Lord Denning once warned that
“in the very pursuit of Justice our keenness may outrun our sureness and we may trip and fall”.
My right hon. Friend has mentioned the law reform, witnesses and victims Bill, which will shortly come before Parliament and will act as the sunset for these provisions. The Bill that we are considering is creating new special measures. Is he aware that there is considerable and widespread concern in the legal profession, on both sides—prosecution and defence—that all special measures are widely overused to the point of abuse, particularly screening and the use of video links for younger witnesses, who can be as hard as any witnesses in a court? Juries do not like those measures, and they are having a contrary effect to that which was originally intended.
I am aware of that, not least because of representations that my hon. and learned Friend has made to me. I do not have a sense at the moment of the extent to which special measures, which are distinct from witness anonymity orders, are used. I am happy and ready to follow that up, as we ought to, with my right hon. and learned Friend the Attorney-General, the prosecuting authorities and others. It is important that the measures should be used as an exception and not as the rule.
In conclusion, I have quoted Lord Denning’s warning that too much haste can lead to mistakes. Hon. Members from all parts of the House are well aware of the significance of the legislation and the short time in which it has been prepared and introduced. There is a practical need for it to be passed as soon as possible in order to prevent some of society’s most dangerous criminals from escaping justice.
I am mindful of the principles at stake. More prosecutions do not necessarily mean more justice unless those prosecutions are fair. That is the balance that the legislation seeks to strike. In the time available, we have done our very best with the Bill. I am clear that it is consistent with the European convention on human rights and will ensure a fair trial for the defendant while ensuring protection for victims and the public, which is also very important. I commend the Bill to the House.
The House finds itself in an invidious position. In June, the House of Lords held in the case of Davis that measures taken to protect the identities of witnesses were incompatible with common law. As a consequence, a number of current criminal cases have been thrown into doubt and, whatever view one takes, that uncertainty needs to be addressed quickly.
The Law Lords made it clear, however, that subject to the overriding need for a fair trial, there is scope for Parliament to legislate to allow by statute greater use of anonymous evidence than common law permits. The legislation must be consistent with the right to fair trial, not least because it would otherwise be incompatible with article 6 of the European convention on human rights.
As I said in the House two weeks ago:
“We recognise our constitutional duty to scrutinise as best we can all legislation…and not to attempt to hinder the Government improperly…My party is committed to working with the Government in a constructive way to deal with this problem”.—[Official Report, 26 June 2008; Vol. 478, c. 517.]
That is what we have sought to do, and I am grateful to the Justice Secretary for his approach. Accordingly, we support the principle behind the Bill, but we have concerns about its scope.
The hon. Gentleman and the hon. and learned Member for Harborough (Mr. Garnier), who spoke before, have said that the official Opposition support in principle the reasons behind the Bill. Does not the hon. Gentleman see a contradiction in a party in official opposition wrapping itself in the Magna Carta on the issue of 42 days but discarding it when it comes to this Bill?
I shall address the balance that we need to achieve. I shall not dignify that intervention to any greater extent.
Even if circumstances dictate that we must legislate swiftly, that does not mean that we should do so lightly. As the Secretary of State said, important principles are at stake. As long ago as 1720, the English courts recognised confrontation as
“the most effectual method of establishing the truth”.
In 1641, this House moved to abolish the Court of Star Chamber, which, once praised for its speed and flexibility, gradually evolved into a body in which the interests of justice were subjugated to the convenience of the Crown. In the United States of America, a defendant’s right to confront his accusers is recognised explicitly in the sixth amendment to the constitution. Like much of the US Bill of Rights, that provision merely reflected contemporary English law.
The right of defendants to confront their accusers is not a mere historical nicety. It was developed in our common law precisely to ensure that justice was done. The overriding principles of justice are clear and simple: to convict the guilty and acquit the innocent. It is in no one’s interests if, in the interests of securing convictions, we risk convicting the innocent. Miscarriages of justice result in the truly guilty going unpunished and leave the public at risk. There can be no utilitarian argument for setting aside the principles of justice. That is why, with all due respect to Assistant Commissioner Bob Quick of the Metropolitan police, for whom I have the highest personal regard, his call for emergency legislation on the grounds that there is
“too much principle and not enough pragmatism in the criminal justice system”
is seriously misplaced.
Nevertheless, we recognise that a consequence of the Law Lords’ judgment may well be that the guilty go free. That, too, would be contrary to the principles of justice. If justice can be done only through the use of anonymous evidence, the courts should have the power to hear that evidence. However, it should be used out of necessity to secure justice, not out of convenience to secure convictions. Its use should be exceptional, not routine, and the court must decide whether the risk of intimidation justifies it. The assessment must be objective, and it cannot be left to the defendant. That is a weakness in the Bill and needs addressing.
I have been listening carefully to the arguments that have been advanced. One problem that I have is that both the Secretary of State and my hon. Friend talk about the need to have a fair trial. How can an accused person have a fair trial if he does not know the identity of his accuser?
That goes to the heart of the dilemma that we are confronting. The principle set out in the Bill is that a judge must be satisfied about a number of considerations, including a defendant’s general right to know the identity of a witness, before allowing the use of anonymous evidence. Those tests are in the Bill precisely to restrict the use of such evidence. Some may disagree, but I think that most Members agree that the use of anonymous evidence will not necessarily be a bar to a fair trial. The Opposition believe that it is right to allow judges to make the decision, subject to the tests that Parliament will set out.
Does the hon. Gentleman accept that article 6 of the European convention on human rights provides a long-stop defence to ensure that judges do not abuse anonymity orders? Like him, I am concerned that we must not repeat the most ghastly miscarriages of justice of the past through the misuse of those orders.
The hon. Gentleman will know that the Law Lords made it clear in their judgment that there would be circumstances in which anonymous evidence could be used in a way that is consistent with article 6 of the convention. The Government are introducing this Bill to try to ensure that consistency, but they accept that challenges to it are very likely.
Does my hon. Friend agree that the real problem with the Bill, and it is a problem that affects us all, is that the Davis judgment will be examined to determine witness credibility? The judgment makes it plain that the Davis case was sent back to the Court of Appeal because the common-law power that had previously been thought to exist did not in fact exist. Another reason why the case was sent to the Court of Appeal was that the exercise of the protective measures—they were precisely the same as those contemplated in the Bill—made the trial unfair. That problem will arise very often when the credibility of witnesses is at stake. It may stand in the way of the use of the protective measures, because Davis shows that they render a case unsafe.
The Law Lords also invited Parliament to set out a statutory framework, which we are seeking to do. It is likely that the Davis case will fall and that it will not be saved by the statutory provisions in the Bill.
I am sorry, but my hon. Friend is wrong about that. The case will fall to the extent that the common-law power will be replaced by statute, in a sense, so the fact that judges hitherto have made orders that they were not entitled to make will not by itself be grounds for appeal. However, if the protective measures render a trial unfair—as was the case in Davis—the orders will not be made. If they were made, the convictions would be quashed.
I invite my right hon. and learned Friend to make those points in greater detail during the Committee stage—not least so that my hon. and learned Friend the Member for Harborough (Mr. Garnier) can answer them. I am afraid that he has lost me.
I turn now to the weight of the provisions in the Bill, and the considerations against which the court must judge the acceptability of anonymous evidence. The explanatory notes concede that the Bill’s statutory framework draws on the model provided by New Zealand’s Evidence Act 2006. However, there are a number of significant omissions from the conditions that that legislation set out. The Government have moved already to correct one. Government amendment No. 42 adds a consideration that the court must have regard to whether the evidence from the anonymous witness might be the “sole or decisive” evidence. We pressed for that inclusion: we welcome it and are grateful for the Government’s concessions.
That leaves two considerations that are present in the New Zealand legislation but absent from the Bill—first, that the court should have regard to the gravity of the offence and, secondly, that it should have regard to the principle that witness anonymity orders are justified only in exceptional circumstances.
It is important for the House to know why the Government have excluded those tests. The Law Society has urged us
“to ensure that the legislation is robust enough to prevent witness anonymity becoming a routine request that is made in ordinary cases without very good reason. We are very concerned to ensure that these orders will only be used in the most exceptional of cases.”
That is precisely the wording used in the New Zealand legislation.
Similarly, the chairman of the Bar Council, Tim Dutton, has agreed that allowances must be made where witnesses are in genuine fear for their lives, but warned:
“We must be careful that anonymity remains the exception to the norm. Such arrangements cannot be offered routinely by prosecuting authorities to witnesses as an incentive to give evidence. It is important to recall...that special measures for witnesses, and in particular anonymity, are only ever required in exceptional circumstances”.
That shows that the Bar Council supports the provisions, but only in “exceptional circumstances”.
The Justice Secretary quoted the article by Assistant Commissioner John Yates in The Daily Telegraph of 21 June, in which he called for emergency legislation. But Assistant Commissioner Yates also said that special measures to allow witness anonymity
“should be confined only to the most serious cases.”
We have been told that 580 cases will be adversely affected if we do not continue to allow anonymous evidence, but the Government have confirmed now that only 50 cases involve members of the public as witnesses. Half of the 580 cases involve test purchasers of illicit substances, with only a minority of the 580 representing the most acute cases in terms of timing and risk. The question is, therefore, how many of the cases will, and should, be saved by the legislation? Are we being asked to legislate to secure witness anonymity in the most serious cases, or more widely than that? Clearly, it matters whether the legislation is designed to allow for anonymous evidence in drug cases, where the gravity of the offence is relatively less serious, or whether it should apply only in much more serious cases involving, for instance, terrorism, murder and gang violence, where people’s lives may be at stake.
It is also important that we understand the scale of witness intimidation and whether it is a growing trend. Such intimidation is, after all, not new. Nor has the criminal justice system in this country had problems securing very high-profile convictions in the past without resorting to witness anonymity provisions. As the Law Society has observed,
“in the past convictions have been achieved without this legislation in notorious cases”,
for example, the Kray and Richardson cases. Furthermore, Members of this House on both sides will be only too aware of the scale of witness intimidation confronting police and prosecutors in Northern Ireland during the troubles—a period in which witness anonymity was explicitly rejected as a solution to the problem of intimidation.
No one should doubt the effect of witness intimidation in serious criminal cases involving gangs and organised crime. We all want to see violent criminals successfully prosecuted in the interests of public safety, and few want to outlaw anonymity procedures entirely. Certainly, both the Bar Council and the Law Society recognise its importance. Nor do we question the many practical difficulties that the police have in encouraging witnesses—many of them young and vulnerable—to co-operate in giving evidence at a trial, but the Law Society has also noted
“concern among prosecutors that police officers are too ready to make promises of anonymity pre-trial in circumstances where it is not, or will not be, appropriate.”
Today, the Director of Public Prosecutions, I think in evidence to the Joint Committee on Human Rights, chaired by the hon. Member for Hendon (Mr. Dismore), has said that evidence that witness intimidation is growing is “anecdotal”. We need a proper assessment of the growth and nature of witness intimidation, and if that is not possible now, the Government should produce it ahead of the law reform, victims and witnesses Bill. We need to ensure that the use of anonymous evidence is proportionate to that assessed threat.
It is common ground that alternatives to witness anonymity should be preferred. The question is how effective they are. In its briefing on the Bill, Justice emphasises the importance of witness protection. It highlights the fact that in the United States, the Marshal Service boasts that it has never lost a witness under its protection.
The hon. Gentleman must be aware that where there is a problem of knife crime among young people and gangs, it is very difficult for the police to get anyone to give evidence unless they can offer some pretty cast-iron guarantees of the safety of witnesses. Otherwise, the police simply will not get any evidence: result—no prosecution, no conviction, and someone who is the leader of a gang that has treated people abominably gets off scot-free and continues to cause mayhem in an area.
I understand the hon. Gentleman’s point. I was going on to give the counter view to the point that Justice was making about the reliability of witness protection schemes as an alternative to the use of anonymous evidence. There are limits to the use of witness protection schemes. As the Court of Appeal noted in its judgment in the case of Davis
“in reality, and certainly for the individual of good character, with established roots, this kind of programme is unacceptable”.
The judgment added that
“this process is grossly invasive of the right of the witness and his family to private and family life”.
As Danielle Cable, the fiancée of Kenneth Noye’s victim, Stephen Cameron—herself in witness protection—said:
“I have lost twice—Stephen and my old life.”
Witness protection may not be an alternative to using anonymous evidence, but it is an important means of bringing some cases to justice. At present, there is no statutory witness protection scheme, and provision across police forces is still patchy and sometimes inconsistent. I hope that the law reform, victims and witnesses Bill will address those concerns where this emergency Bill plainly cannot.
In conclusion, I remind the House of what I said in my response to the Justice Secretary’s statement on 26 June. I asked him if he would
“consider carefully whether it is wise to rush through all stages of the Bill in this place in one day”.—[Official Report, 26 June 2008; Vol. 478, c. 517.]
I regret that it is exactly what is happening. We have been allocated only six hours to consider these matters as every stage of the Bill is pushed through the House in a single day. We accept the need for legislation to deal with the problem swiftly, but we do not accept that it is necessary to truncate debate and rush consideration in this way. The Government have already tabled amendments to a Bill that they introduced only days ago.
I welcome the Government’s concession that a sunset clause will be written into the Bill to ensure that the provisions are replaced in the forthcoming law reform, victims and witnesses Bill. We pressed for such a provision and I am grateful to the Justice Secretary for conceding it, as it will give the opportunity for more considered legislation and discussion of proposals such as the use of special advocates and special measures. Nevertheless, driving laws through the House in a single day is unwise and unnecessary. It will only add to concerns about the measure, not least in the other place, and is bound to increase the risk that we will get something wrong. When both the safety of our communities and the liberty of individuals are involved, that is a serious matter.
The Bar Council has said:
“The criminal process is not a static one; its procedures are not frozen in a past era of mythic perfection. But its commitment to a proper balance between the various interests and rights of those caught up in the process remains the same: to do justice in a way that serves the public interest while protecting the rights of the victims of crime, the witnesses in criminal proceedings and those suspected of serious criminal wrongdoing.”
We support the use of anonymous evidence where it can be accepted without prejudicing a fair trial. We understand the need to legislate swiftly to ensure that some serious cases do not fall, but we must ensure that the correct balance is struck. I am grateful to the Government for addressing a number of the concerns we have expressed, and I hope that spirit of constructive debate will continue. Above all, however, we should be concerned that the Bill is properly scrutinised so that justice can be done.
rose—
Order. I remind the House that Mr. Speaker has placed an eight-minute limit on Back-Bench speeches, which operates from now.
My right hon. Friend the Secretary of State for Justice obviously faced a difficult task in producing the Bill in such a short time, and he has done a pretty good job.
The Joint Committee on Human Rights, which I chair, has not yet had the opportunity to report on the Bill, although this afternoon we held an evidence session with the Director of Public Prosecutions and Mr. Paddy O’Connor, QC, who gave the defence perspective, so we heard arguments on both sides of the coin and we hope to be able to report before the Bill completes its passage in the other place. My remarks today are my own, although on the basis of the work we have been able to do so far I should be very surprised if there was dissent from other members of the Committee to what I have to say.
The Bill is broadly to be welcomed from a human rights perspective. It does not purport to prescribe what constitutes a fair trial when anonymous evidence is given, but provides a general framework for the making of discretionary anonymity orders by courts, setting out the sort of considerations that are relevant to the exercise of the court’s discretion. The right to a fair trial is adequately guaranteed under the Bill’s provisions. In view of the express protection of the right to a fair trial, and the discretion left to the trial judge to determine that question, I accept the analysis in the explanatory notes that the Bill is compatible with article 6 of the European convention on human rights. Having said that, there is always the possibility of improving the Bill, and I hope that we can make some improvements today. I fully accept that the Government amendments that have been tabled make significant improvements, too.
The Director of Public Prosecutions told us today that convictions principally based on anonymous evidence are not automatically in breach of the article 6 right to a fair trial, and I agree. Strasbourg has not had difficulties with anonymous witness evidence. The real issue is the parameters and the scheme in which the evidence is used. The right to a fair trial is a fundamental one, and not a balanced one, as may have been suggested in some of the remarks that we have heard. Clause 4(4) guarantees that fundamental right. Under the Bill, the right to a fair trial trumps everything else.
We were told by the DPP that there are 1.3 million prosecutions a year in this country. That gives us perspective, and shows us that witness anonymity is used exceptionally; we are talking about several hundred cases. They are mainly undercover police cases involving drugs or conspiracies. If the suggestion is that such cases are not sufficiently serious, I think that the suggestion is wrong. Clearly, if a drugs officer has his identity revealed in court, he can no longer be effective as a drugs officer in any future case. That may not be a problem for the case in question, but it will certainly affect the police’s ability to combat drugs in future.
The real issue is what the DPP called the civilian cases, in which members of the public are involved; there are 50 of them a year. The DPP stressed the urgency of the issue, and even Mr. O’Connor was not absolute in his opposition to, or criticism of, the need for such anonymous witnesses. Of course it is important that we prosecute those who wish to intimidate witnesses. We should bring cases of conspiracy to pervert the course of justice. Mr. O’Connor believes that convictions for intimidation have doubled. The real issues are the accuracy of the evidence and the credibility of the witness. Those issues do not really arise in undercover police cases or, for example, in cases in which an old lady has accurately recorded the registration number of a getaway vehicle after a bank robbery. A problem arises with witnesses who may themselves be involved in criminality—they may be involved with a rival gang, for example—and the Bill provides for a judge to take that credibility issue into account when deciding whether to grant an anonymity order.
The DPP told us that there would be fewer cases involving anonymity. The undercover cases would be largely unaffected, but in Trident cases—he thought that there were about 30 Trident cases a year—the criminality of witnesses means that we may well not be able to prosecute all of them, as we do now. He could not give an estimate of how many cases might not be brought. The DPP thought that the process provided by the Bill would throw up cases where credibility would be an issue, particularly as both the judge and any appeal court would know the identity of the witness concerned.
One of the key issues raised by Mr. O’Connor was the question of where the witness’s fear came from. He was concerned—there is possibly some merit in this—that the fear came from police suggestion, rather than being volunteered by the witness. We need to look into police procedure to ensure that the witness is expressing his fear, rather than having fear put into his mind by the police, as that would undermine the whole process. The witness might not be afraid at all until that point.
That, of course, rather argues for the existence of special counsel, who could, for example, question the witness on precisely the source of the fear.
I agree, and one of my amendments provides for independent counsel for that reason. I understand that it is inherent in the jurisdiction of the Crown court to appoint counsel. However, that is not the case in the magistrates court. The evidence that we were given today suggested they did not have that inherent jurisdiction, primarily because when magistrates judge cases, they are also finders of fact, with a jury role. That creates certain complications.
Does my hon. Friend recognise that there is a general perception of concern among our constituents when it comes to giving evidence about something that has been witnessed, particularly if there is an issue with a serious drug dealer in an area, and that there is a need to address that concern?
I fully accept that, and it is a very valid point, but the concern should be expressed by the witness. The police should not suggest it to the witness, as that might create fear that had not previously existed. That would actually feed the climate of fear to which my hon. Friend rightly refers. We should not make it worse than it is.
Does the hon. Gentleman not accept that the police have a duty of care to witnesses, so if they believe that someone with a violent record may try to interfere with a witness, that witness should at least be warned? There is no point a witness dropping out later in a case. The police should try to test how strong they are at the very beginning.
My concern is that that would become a routine, rather than the exception. However, in those very dangerous cases, the point that the hon. Gentleman makes is a fair one.
It has been said that we did not have this procedure in the trials of the Richardsons or the Krays, but those gangs were around for years and years, intimidating the east end. If it had been available then, we might well have been able to deal with them at an earlier stage. As far as the Director of Public Prosecutions has been able to establish, there has not been one anonymity case in a magistrates court, and only one in the juvenile courts. It has been suggested that magistrates courts should be excluded, but the fact remains that under counter-terrorism laws, some cases are triable either way, so it is dangerous to suggest that magistrates courts should be entirely excluded.
As for the relevant considerations, the Government have tabled an important amendment on the “sole or decisive” issue, which satisfies a key concern of the European Court of Human Rights. However, we must also consider the issue of the defendant being responsible for intimidation. Mr. O’Connor considered that point, and if the defendant is responsible for intimidation, he can hardly complain about witness anonymity interfering with his article 6 rights. For that very reason, that should be one of the relevant considerations, and it sends a clear message that those who become involved in intimidation should not expect witnesses to give evidence openly against them.
A number of hon. Members wish to speak, so I shall conclude. As far as I am concerned, the Bill complies with article 6. The Government have moved significantly in their amendments, although there are one or two things we can do to tweak the Bill today and in the other place. Broadly, however, my right hon. Friend the Justice Secretary has done a very good job in dealing with a very difficult set of circumstances with which he has been faced in a very urgent way.
I fully accept what the hon. Member for Hendon (Mr. Dismore) has said, and that overall the Bill complies with human rights law. However, that does not mean that there are no difficulties—not just practical ones but human rights difficulties—with some of its provisions, and I shall return to that.
As we are here because of the Davis case, it is important to understand what the court said, and more importantly, did not say. It did not say that anonymous witnesses should never be contemplated, or that anonymity always means that the trial is unfair, although some people at the criminal defence Bar seem to believe that that is so. They think that credibility is always a potential issue, so there is always a problem of that sort. However, the court did not believe that, and I do not believe it.
There is a balance to be struck between two serious threats to the rule of law. First, we have heard a great deal about the intimidation of witnesses—and I do not want to repeat earlier remarks—which goes to the heart of the judicial system itself. If we cannot get people into court to decide a matter, there is no point having a law in the first place. Therefore, it is a fundamental question about the rule of law. Secondly, on the other hand, unfair trials are themselves a threat to the rule of law. If trials simply become mechanisms for locking up people whom the state wants to lock up, we cease to have law even if we might have some order.
There has been discussion about whether the problem of the intimidation of witnesses has become worse, and we have discussed the Kray twins, the Richardsons and so on. In other discussions, reference was made to the fact that the problem of witness intimidation goes back to ancient times. It is very difficult to judge whether the problem is getting worse, but it is likely to be growing where gang culture is growing. Whether growing or not, intimidation is a sufficiently serious problem, because it strikes at the heart of the system, for us to take it very seriously indeed. I am with those who say that witness protection is not sufficient, because it is not enough to say to a potential witness, “You have to completely change your entire life—to give up your entire life—just because of this one case.” Not many people are going to take up that offer, so we must have measures that fall short of full witness protection.
Some commentators have said that the issue is not one of balance—that we cannot balance the right to a fair trial against anything else, because it is an absolute right. Even David Pannick, QC, said so in The Times last week, but I do not think that that is correct. The human right to a fair trial is absolute, but whether that right has been violated in a particular case is a matter of degree. Going beyond that and to echo what has already been said, human rights legislation and the human rights system set a limit on what can be done, but that before we reach it, there is a balance to be struck. The Pannick view is correct only if anonymity always and automatically violates human rights. I do not think that it does.
In the Davis case, the House of Lords did not lay down a bright-line test or say, “If X, Y and Z happened, there must have been a violation of the human rights standard.” However, the House of Lords did say—this is the hard case that we all must consider—that in a case in which anonymous witness evidence was the sole or decisive evidence, and in which witness credibility is a real issue, not an issue that the lawyers have made up, it is very unlikely that the granting of a witness anonymity order will pass muster. That is because if credibility is an issue, it strikes at the heart of the trial. It is almost impossible to cross-examine a witness about credibility if one does not know who they are, or one does not know about their tendency to lie or to exaggerate, or about any animus against the defendant. All those things depend ultimately on knowing who the witness is.
The House of Lords was clear on another matter, too, and we will have to discuss it in detail in Committee of the whole House. The Lords said that if we are to have anonymous witness orders in some circumstances, we must have a clear procedure—a much clearer procedure than that which has grown up in the courts, in the prosecution service and in the police up to now. As the hon. Member for Hendon (Mr. Dismore) said, it cannot be right for the police to offer anonymity as a matter of course in certain cases. It becomes an issue in cases in which a threatening atmosphere has developed on an estate, but as he said, the police offering anonymity can make matters worse because it fuels the existing fear. The idea that anonymity orders should be exceptional is an important one, and I am still anxious because the idea is not in the Bill.
May I caution the hon. Gentleman? I understand and have some sympathy with his argument, but the House passed legislation whereby mere possession of a firearm carried a mandatory five-year sentence, save in exceptional circumstances. When the legislation went to the courts, judges adjudged almost two thirds of cases to be exceptional, which to my mind, mathematically, is not possible.
The hon. Gentleman is of course absolutely correct to say that, arithmetically, the majority of cases cannot constitute an exception to the rule. However, other aspects of the existing procedure need to be corrected, such as the idea that applications for witness anonymity orders can be made purely on paper, without any opportunity to question whether the case has been made out of necessity. Judges are often told that either they grant the order or the case will collapse on the spot, so they are coerced into granting orders or put in a position whereby the case itself does not succeed. That is not good enough, and we owe a debt of gratitude to the House of Lords for pointing it out and making us go back to first principles in respect of hearing the other side as a standard of justice.
There is a very important passage at paragraph 79 of the judgment, in which Lord Mance discusses what the Equality and Human Rights Commission said about such circumstances. He says that the standard is a proper verification process, so that the anonymity order is tested between both sides and the court can come to a conclusion about what to do on the basis of argument, not assertion.
Does that not reinforce the proposition that the appointment of special or independent counsel should be liberally undertaken in such cases? In the disclosure procedure to which I referred my hon. and learned Friend the Member for Harborough (Mr. Garnier) briefly, it is exceptional that the special counsel is instructed to help the court, but does the hon. Gentleman agree that on witness anonymity orders, the special counsel should generally be instructed?
Yes, I completely agree. The special counsel procedure is a way out of a range of difficulties with the proposal, and I urge the Government to reconsider the idea. I shall return to it in a few moments and in Committee.
The hon. Gentleman referred to the point about the need for verification, but how can there be verification of the second aspect of condition A, which relates to
“real harm to the public interest”?
We know that public interest considerations are often played like jokers in situations in which no one can question, challenge or demonstrate what is involved, so how can verification apply to “the public interest”? It seems to have been tailgated on to the Bill on the back of the issues that the Davis judgment raised.
Yes, I am concerned about how that aspect of the Bill is worded. The Government are quite right to say that there must be protection for undercover police work and for other undercover work, but the Bill does not include it. It refers very generally to “the public interest”, as the hon. Gentleman says. That is over-broad, and the Government should reconsider how that aspect of the Bill has been designed.
The question is whether the Bill has met the difficult challenge—created by the situation—of striking the right balance between two fundamental problems with, and threats to, the rule of law, within the limits of human rights legislation. The answer is: not quite yet. A good deal of progress has been made, but there are still serious problems with the Bill.
I have mentioned the problems with procedure, and I shall add one other point about that. What standard should the evidence meet to be admitted when a decision is made about an order? I think that it should be admissibility in the trial itself, but there is nothing in the Bill to say whether that is the case. The biggest problem of all is that raised by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) about the lack of independent counsel procedure. Such procedure is in the New Zealand legislation. It is too early to say whether it has been a success in New Zealand, but it seems a good bet for resolving a number of the problems in the Bill.
The hon. Gentleman talks about evidence. Does he consider the singularity and crucial importance of the evidence to be relevant? Lord Bingham used the words “sole” and “decisive”. Are those considerations not as crucial as all the other factors that we are talking about? Are not the nature and particularity of the evidence key if we are to get the balance right?
That is right. However, there is no suggestion in their lordships’ speeches that the sole or decisive test is a bright-line test. It is simply part of an overall concept of what, as a matter of degree, would amount to an unfair trial. The Government are right to give way on putting that test in the Bill, but also right to make it a factor rather than a condition. That is the right way in which to go forward.
I return to the independent counsel idea. The counsel would be there primarily to investigate two things. The first would be whether the necessity for the order had been made out—whether there was evidence to suggest that the conditions under which an order should be made had been reached. The second would be whether there was a serious problem with the credibility of the witness, and the counsel would assist the court in coming to a conclusion about that.
It is important to bear in mind that having the independent counsel system is a protection not only for the defence. It is not just a safeguard for the defendant, but a way of safeguarding the prosecution’s case—either against, as the right hon. and learned Gentleman said, the order not being made in the first place and the case not succeeding, or against the case being appealed and quashed.
There is another important characteristic— that the police will not as a matter of routine promise anonymity because they will come to realise that the independent counsel investigating the case will say that the factual basis is not made out. Therefore the anxiety about an extension in the numbers of the orders might be reduced.
That is absolutely correct. This is a way of getting away from the purely paper process that has developed in some courts.
The Government have said that there is an inherent jurisdiction, but their point has two problems. One has already been raised. It is that there does not seem to be any inherent jurisdiction in the magistrates court. The other way out of that problem, of course, is not to extend the power to the magistrates court in the first place. The second problem is that a large number of judges will be surprised to learn that they have that inherent jurisdiction. The best way in which to draw that jurisdiction to the attention of the judiciary is to put it in the Bill.
There is also a problem with the scope of the Bill. I do not want to go into detail about that now, as we will come back to the issue in Committee. However, I have raised one point about it, and I shall mention it again. Why does the procedure extend to the magistrates court? It is not obvious that there are that many such cases in the magistrates court in the first place. If, as the hon. Member for Hendon (Mr. Dismore) mentioned, a case is triable either way, presumably the issue could be one of the factors that can be taken into account in sending the case to the Crown court instead. I admit that there would be problems in respect of youth justice, but those should be faced as a separate issue and should not govern how we deal with the whole problem.
I shall only detain the hon. Gentleman for a moment. It is not that many of those cases have arisen in the magistrates court, but some have. One case was about a breach of a control order under the Terrorism Acts. In such a case, a breach is an either-way offence, and the defendant must have consented to the magistrates court’s dealing with the matter and the prosecution must have made no objection. Therefore, the case stayed in the magistrates court. It was entirely appropriate that it should have done and that an anonymous witness order should have been made.
There is also the reported case of R v. Watford Magistrates Court ex parte Lenman and others. The divisional court made a decision, on appeal from the magistrates court, that expressly allowed for witness anonymity orders to be made in the magistrates court in the circumstances of that and similar cases. In that case, the applicants were charged with violent disorder under section 2 of the Public Order Act 1986. A group of youths had rampaged through Watford and violently attacked four persons, one of whom was seriously stabbed. That was also dealt with by the magistrates court and it is entirely appropriate that in such a circumstance the order should be available.
The opposite point of view is that it is precisely cases of that seriousness that should go to the Crown court in the first place. The anonymity order would still apply, but in the right court. There is no bar against that happening in the adult court; only in the youth court is there some difficulty about how to proceed. However, as I said, I do not think that that difficulty should determine what happens in the adult court.
There is one further problem, to which I shall return in Committee. It relates to clause 3(2), and I shall just mention it now. Clause 3(2) shows a fundamental inequality between defence and prosecution. It says that if the defence manages to get an anonymity order—it is good that the Bill allows that—it must nevertheless reveal the identity of the witness to the prosecution. However, the same does not apply the other way around. That is still a problem and I have not heard any argument from the Government so far that would justify that stance.
I do not want to end on a negative note. There has been immense progress on the Bill, which has improved during its short existence, including on the sole and decisive evidence point, on which the Government have tabled a reasonable amendment. The transitional provisions have become tighter and clearer, especially in dealing with the part-heard cases. I am especially pleased that the Government have accepted the principle of the sunset clause; they have accepted the idea that the fact that this is temporary legislation should be in the Bill and that we shall return to it in next Session’s law reform, victims and witnesses Bill.
This Bill is necessary, but I am not entirely happy with it as it stands. It has a lot of problems and we have a very short time to put them right—if not here, then in another place. The Bill is, however, moving in the right direction. Witness anonymity is occasionally justified, but it should never become the norm. Practice was moving in that direction before the case of Davis at the House of Lords. The House of Lords has brought us back from the brink. The Bill is starting to strike a better balance.
I rise slightly unexpectedly, as the hon. and learned Member for Medway (Mr. Marshall-Andrews) was getting to his feet. I do apologise; my notes were down below, but I now have them in my hand.
Clearly, the Bill is important; it has important implications for the criminal law. I have already expressed this view, but truncating the debate into one day is very undesirable. I agree entirely with what the hon. Member for Cambridge (David Howarth) said: a fundamental principle of the criminal law is that, in general, a defendant should be able to know the identity of the witness against him. That is because, as those of us who practise in the criminal courts well recognise, when credibility is at issue it is extraordinarily difficult to challenge the Crown’s case unless one knows the identity of the witness.
The allegation may be, for example, that the witness has previous convictions, that he has a private grudge against the defendant, that he has a propensity to lie, or that he was somewhere else, as happened in the case of Tadic. One cannot put those suggestions unless one knows who the person is. That is why the courts held for a very long time that the principle of anonymity was wrong; why, no doubt, the American constitution makes that provision in its sixth amendment, as my hon. Friend the Member for Arundel and South Downs (Nick Herbert) reminded us; why article 6(3)(d) of the European convention on human rights was couched in the terms that it was; and why, when Lord Diplock and Lord Gardiner considered the question of anonymity in the context of Northern Ireland in the 1970s, at a time when there was very considerable violence, they came to the conclusion that it was impossible to abrogate the rule and yet do justice to the defendant.
I have long held the view, although it is not entirely popular, that it is much better that the guilty are not convicted than that the innocent should be convicted. Ultimately one has to take a stand, and that is where I stand. I am perfectly willing to accept, however, that there are a small number of cases in which the intimidation of witnesses is such that it is right and proper to have an anonymity order. It is true that, in view of the Davis case, we need to put that on a statutory basis, but we need to define in our own minds and in statute the principles to which we should adhere. Above all, we must place it in statute that the fairness of the trial is the paramount consideration.
There is another thing to keep in mind, because there is some misunderstanding about the judgment in Davis. I believe that most protective measures taken where the issue is one of credibility will fail the test of fairness and prove to be incompatible with European jurisprudence. I well understand that the criteria will be satisfied where, for example, one is dealing with police officers who are undercover agents or with an old lady whose credibility is not an issue, merely her powers of recollection. However, protective measures in such cases will continue to be unsafe, broadly speaking, unless—this is an important proviso—the defendant himself has been responsible for the intimidation. In that case, as the hon. Member for Hendon (Mr. Dismore) rightly said, he is in no position to complain.
We should set out some criteria in the Bill. I will deal with this very briefly, because I know that my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and the hon. and learned Member for Medway want to speak. There are some things that should appear on the face of the statute. The order should be confined to exceptional cases. We need to define the test of sureness for when the court has to decide whether the conditions have been made out. There must be a statement that it is a presumption that the identity of the witness before the court is known to the defendant.
I am listening to the right hon. and learned Gentleman with great interest. There is a slight dilemma in my mind, and I am wondering about his views on it. In such an exceptional case, would the jury take the view that because the judge had reached the decision to grant anonymity in that particular case, there must therefore almost be a presumption of guilt?
There is always that danger—it arises under existing law in relation to protective measures. If the identity of a witness is screened, it is easy—although it would be wrong—for a jury to come to inappropriate conclusions. It is therefore important that in his or her summing up the judge points out to the jury that the adopting of these measures must not be held against the defendant. To be fair to the Government, there is a specific provision in the Bill saying that that should happen.
Let me turn briefly to the remaining criteria that should be in the Bill. It is important that we should have specific reference to the independent or special counsel. I recognise that the Government will say that that is within the inherent jurisdiction of the court, but, as the Justice Secretary will know, the matter is dealt with in “Archbold”, at chapter 12(80)(d), where he will see that it is described as an exceptional power, to be sparingly used. However, having regard to the witness anonymity orders and their implications, it should be generously employed here—and if that is the case, it should be stated in the Bill. I agree with the hon. Member for Cambridge: I strongly suspect, as I am guilty of this as well, that many practitioners did not know of the existing power, which makes it all the more important that it should appear on the face of the Bill.
We knew, but we needed to be reminded.
That is very generous of my hon. and learned Friend.
The court must be directed always to look at alternatives, although I accept that witness protection schemes have but limited application in a number of cases. Finally, the anxieties of the potential witness must be judged on whether they are evidence-based, not merely introduced into the chap’s mind by a police officer, and whether they are reasonable.
At the end of the day, we are in the business of ensuring a fair trial. There are things that we can do in the Bill to make the situation better, and I very much hope that we will. We do not have enough time—that is my chief objection to what is going on, hence the view that I took on the timetable. The Bill has a sunset clause, and I welcome that; that is why I will not vote against Second Reading.
Let me start, perhaps uncharacteristically, by congratulating my right hon. Friend the Secretary of State on the Bill, which is small but near-perfectly formed.
I do not agree—in fact, I fundamentally disagree—with some of the commentary in the press over the past two or three days, which has come from people who not only should know better, but who do not represent, as we do, real people in the real world. I particularly noted the commentary that said that we managed to convict the Kray brothers and the Richardson brothers without laws relating to anonymity. I well remember the extraordinary difficulty that we had in convicting the Kray brothers and the Richardson brothers, and the mayhem, chaos and pain that was caused during the course of the period when we could not convict them, for precisely those reasons. It is no more than common sense to say that we should have sensible anonymity rules, and enshrined in the Bill are very nearly wholly sensible anonymity rules.
Let me turn to specifics. I hope to take far less than the eight minutes that we have been allotted. I entirely agree that special counsel are wholly appropriate in these circumstances. I was wholly against them when they were mooted in this House, but they have worked very well in terrorism cases, and my experience of them has been nothing but good. The idea has been commendable, and there seems to be no reason why it should not be adopted, particularly in this Bill.
I, too, would favour a clause that refers to the exceptional nature of the power—not that that would do any good, in truth. As my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) pointed out, the word “exceptional” is in the eye of the beholder; it is merely an adjective that can be used by courts as they so wish. However, it does set a climate—it is very important to do so—in having regard to what is happening at the moment in criminal courts, particular in senior criminal courts, in relation to special measures generally. The Bill will simply add another special measure.
It is undoubtedly the case, and it is causing widespread concern, that special measures are now being used to such an extent that we are creating a culture of witness protection rather than necessary witness protection. The effect of that, as has been alluded to many times, is that special measures become a form of inducement used by prosecuting authorities to obtain witnesses when those witnesses do not need them and should not have them. Giving evidence is never a pleasant thing, and it is sometimes hard, but that is what citizens are there to do. To create a culture of this kind is ultimately extremely damaging, because people who hear that such provision is available are less likely to give evidence if they do not get it.
There is another aspect worth considering, if the aim of these measures is, as it undoubtedly is, to obtain more, though just, convictions. Juries do not like them. Juries do not like screening, in particular, and they do not like obtaining evidence by video link when it is plainly unnecessary. Some cases involve the giving of evidence by young people who are as tough as old boots. They may be members of opposing gangs—they often are—and they sit in a separate room, in circumstances of conspicuous comfort, being watched by a jury who are asking themselves time and again, “Why is that man not in this court?” Skilful manipulation of the cross-examination of a witness in those circumstances, by repeated questions such as, “Are you sitting comfortably?”, “Is everything all right?”, “Do you still feel vulnerable?”, “Is this a photograph of you on the top of a bus at the time?” or “Is that your pit bull terrier?” does the cause of justice, in terms of prosecuting people and obtaining convictions, very little good.
I make a plea now, in advance of the Bill into which these measures are bound to be incorporated in due course, that we do not approach them on the basis that witnesses need more protection. At the moment we have too much, and we need to cut into what is becoming an extremely damaging culture.
I welcome the fact that I am following the hon. and learned Member for Medway (Mr. Marshall-Andrews), particularly on this relatively rare occasion when I agree with almost, but not quite entirely, everything he said.
I welcome this Bill. I welcome the fact that the Government have responded quickly to the invitation of the Law Lords to place the practice of allowing anonymous evidence in our criminal courts on a statutory basis. I welcome the way in which my right hon. and hon. Friends on the Front Bench have co-operated with the Government in facilitating the passing of the legislation through this House on an expedited basis—although it is a bit too expedited, which is why I voted against the programme motion. I disagree, however, with those among my right hon. Friends who have suggested that the time at which the legislation reaches the statute book should be postponed until after the summer recess. It is urgent, and I hope that it will reach the statute book before then.
I welcome the fact that the Law Lords have on this occasion deferred to Parliament; I hope that this is the beginning of a new trend. I have been critical, on more than one occasion, of the tendency of judges to arrogate to themselves decisions which I believe should be taken by Parliament. Of course, in many cases Parliament has only itself to blame. The Human Rights Act expressly invites the courts to take decisions, such as decisions on the proportionality of an Act of Parliament, which seem to me the kind of decisions that democratically accountable parliamentarians should take.
The trend to judicial activism preceded the Human Rights Act, however. It found its expression in the dictum of a very distinguished former Law Lord that if parliamentary opposition was weak, the courts should intervene to fill the gap. That has always seemed to me to be utterly wrong. What we have here is a recognition by the Law Lords, no less, that if what they regard as a fundamental departure from our principles of criminal justice is to be sanctioned, Parliament is the appropriate body to grant that sanction. I very much welcome that recognition by the courts that there are limits to what they can do, and that there are important decisions which can be taken only by Parliament. I hope that we shall see a lot more of that.
I am in no doubt of the need for this measure. Anyone who has experience of the housing estates in our country where so many of our less fortunate citizens live—either directly, through living there, or vicariously, through representing such areas in this House or through visiting them and listening to local residents—knows of the deep misery that crime can cause. The least fortunate of our fellow citizens disproportionately bear the brunt of crime and suffer its consequences, and they need our help. Much of that help will come through the range of measures that the Government, the police, and the criminal justice system seek to provide.
There are many of us, on both sides of the House, who have laboured mightily to try to provide that help. But at the end of it all, that help is useless if criminals cannot be brought to justice. Far too often, that is not possible because of the stranglehold of fear that criminals can exert on their victims and those who could give evidence against them. The tentacles of that fear can reach far and wide. They can often give those who control them effective immunity from prosecution, which is not a state of affairs that we can tolerate. That is why we need to make provision to allow witnesses to give evidence anonymously. It is why we need this legislation.
Of course we need safeguards. There are always dangers in passing legislation too quickly. We are right to probe the Government by tabling amendments and to seek to ensure that proper safeguards are put in place. The arguments have already begun, and will continue over the next few hours, about the precise form those safeguards should take. I welcome the fact that the Government have accepted the need for a sunset clause. I am impressed by the arguments for a special counsel and for the desirability of including provision for a special counsel in the Bill. I am less persuaded by the argument that the powers in the Bill should not extend to the magistrates court. I agree with the points made by the Justice Secretary to the effect that there was a need for such powers in the magistrates court, and as things stand, at any rate, that is the side on which I would come down. Those arguments will continue in this House and another place. On the need in principle for this legislation, however, I have absolutely no doubt.
It is a pleasure to follow the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) and the hon. and learned Member for Medway (Mr. Marshall-Andrews). We have heard several good speeches today, which have been interesting and informative.
Since the Bill became common knowledge a few days ago, we have all rather been rushing into it. Like the right hon. and learned Member for Folkestone and Hythe, I feel a little uncomfortable with the time given to ensure that we get a proper Bill. I would also say that the Secretary of State for Justice has a difficult job in front of him, with little time to spare. I accept that point. However, the hon. Member for Cambridge (David Howarth) said that he saw this Bill as having been improved in the past few days. If we had a few more days, no doubt it would be greatly improved; it would be a wonderful Bill in about four or five weeks’ time. Let us not run away with that idea, however. Although we sometimes get legislation wrong when we rush it through, we took four years on the Hunting Bill and still got it wrong—it is now an unenforceable Act—so we do not always get it right when we take a long time, either.
I agree broadly that we need some form of statutory footing for anonymity. There is no question about that. The Davis judgment has brought matters to a head, and they had been simmering for some time. As the hon. and learned Member for Medway said, there has been widespread misuse of special measures. In any preliminary hearing, in any Crown court, on any day of the week, the judge will turn to counsel and say, “Any special measures required in this case?” Whether it is a relatively minor case in the Crown court or a serious one, that is a regular occurrence. People are asked whether they want special measures. They might think, in passing, “Yes, I’ll have some special measures,” and get up and ask for them—and more often than not, they will be granted.
I am afraid that the practice is falling into misuse. Things have reached the stage where something has to be done. Coming to the Davis judgment and where we are now with the Bill, I hope that all those issues can be brought into sharp focus and that we can look again into what special measures, are for. They are measures for special occurrences to be used just as I hope the Bill will be used—infrequently.
Mr. Bob Jones of the Association of Chief Police Officers says that such occurrences will be very rare. However, the same ACPO presides over a situation in which applications for anonymity are made in 500 to 600 cases a year. They include huge drugs cases, murder cases and so on, and I fully understand all that, but I am sure that in many cases such applications are not necessary. If the Bill is properly implemented, as I hope it will be, it should limit the number of anonymity applications to cases in which they are strictly necessary, to ensure that the interests of justice are met.
What the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said about special counsel is quite right, and his suggestion was very useful. He referred to “Archbold”, showing immense recollection of the exact provision; he has been there many times in practice, and he assisted us today. What he said is important. If we are to make the Bill work, special counsel should be a core consideration. That will undoubtedly assist the judge and the interests of justice; indeed, it will assist everybody. I hope that the right hon. and learned Gentleman’s suggestion, which he advanced very well, will be taken seriously by the Government, although I do not know whether amendments could be introduced in the other place.
Useful reference has been made to New Zealand’s Evidence Act 2006. The criteria that the court must have regard to in making an anonymity order under that legislation are as follows. First, witness anonymity orders are justified only in exceptional circumstances. Secondly, the gravity of the offence must be taken into account. The third criterion—this is interesting; I wonder why there is no reference to this in the Bill—is whether there is other evidence that corroborates the witness’s evidence. That is a consideration; it is not necessarily a veto on making the order, but it is an important factor to consider. The judge must have regard to that consideration under the New Zealand Act in making an anonymity order or not doing so.
In the few minutes left, let me say how grateful I am that the Government have accepted a sunset clause. I hope that we will have some further information about the numbers of applications at that later stage, since the CPS is now keeping a record of all applications made, those granted, those refused and the reasons why, and so on, as the hon. Member for Hendon (Mr. Dismore) helpfully told us. That information will undoubtedly inform the debate when the matter next comes before the House.
Finally, the amendments that the hon. Member for Cambridge has tabled to clause 3(2) are sensible. In effect, clause 3(2) says that if a defendant wants anonymity for a witness, they have to give full details to the prosecution. Why should the prosecution not do the same for the defence? [Interruption.] The Secretary of State for Justice shakes his head; no doubt he will address that point in due course. If we are serious about the scales of justice and so on, there is an important principle at stake: the equality of arms principle.
For example, what if the name of the person is leaked by a police source? I am not impugning the police; my brother is a serving officer, as was my father. I am not anti-police in any way, but there are bad apples in every barrel. We have seen several police leaks recently that have caused mayhem here and there. I am concerned that a defendant has to give full details, which could end up anywhere, whereas the prosecution does not. [Interruption.] The Secretary of State will no doubt address that point, so I will not dwell on it.
In broad terms, the Bill is necessary, but there are improvements that we need to make—and, given more time, I am sure that we would make even more. At the end of the day, as we are on a tight schedule, I hope that we do not create a situation of injustice. That is the last thing that anybody in the Chamber would want. I hope that those in the other place will have slightly more time to reflect on the Bill and that we will be able to introduce some necessary amendments.
As the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) said at the outset of his remarks, this has been an informative debate, and we are the better for it. However, where there is broad agreement, there is a need for additional caution. It is in debates on Bills such as this that the other place comes into its own. I hope that we will learn from and be advised by its deliberations later this week and next.
The consensus that has emerged, both from our discussions before this debate and, in particular, during this debate, has not only been consolidated, but has moved subtly on the following issues—issues that I shall come to describe, although they have already been usefully described and considered not only by the Secretary of State and my hon. Friend the shadow Secretary of State, but by the hon. Member for Hendon (Mr. Dismore), who had the advantage of listening to the Director of Public Prosecutions this morning, the hon. Member for Cambridge (David Howarth), who gave us another highly considered contribution, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), who as ever came armed with a textbook, the hon. and learned Member for Medway (Mr. Marshall-Andrews), my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and, most recently, the hon. Member for Meirionnydd Nant Conwy.
The consensus that I would draw out from all those contributions centres on the following points. First, we do not want anonymity orders to be used routinely—they should be the exception—and we do not want to encourage lazy policing, lazy prosecuting or an informal process to emerge under which such orders become the norm. My experience in the Crown court as a recorder is not quite the same as the experience of the hon. Member for Meirionnydd Nant Conwy. It may just be the luck of the draw, but I find that applications for special measures are quite rare, and those that are made I rarely grant, but there we are.
We all want sensible and proportionate rules in place for the judges to consider and apply. We want a presumption in favour of openness, because open justice leads to fair justice, and fairness is required under the European convention—and was required under common law—and, whether under common law or the convention, was recognised by the Judicial Committee in the Davis case as essential.
I suggest—the Government might want to consider my suggestion, both this evening and between now and the Bill’s arrival in the other place—that there is also a consensus on special counsel. My right hon. and learned Friend the Member for Sleaford and North Hykeham spoke about that point in interventions and at further length in his speech. I suggest—I am sure that the hon. and learned Member for Medway, who has considerable criminal justice experience as a barrister, would make the same suggestion—that we need to employ special counsel in such cases.
I would add to the list the need for an objective test of anxiety—that is, an objective assessment of the risk to the anxious witness or those associated with him. We should not allow a witness simply to assert that he is anxious for his safety, his life or his property. I suggest that the judge would be assisted by the intervention of special counsel dispassionately to lay out the facts and help him to reach a just conclusion.
A consensus has formed on the introduction of a sunset clause, too. A number of amendments and new clauses have been tabled that propose different dates and mechanisms, but the House has come to an agreement—and, through their new clause, the Government have joined that agreement—that a sunset clause is imperative.
My right hon. and learned Friend the Member for Folkestone and Hythe congratulated the Judicial Committee on not asserting some form of supremacy over this place, but inviting us to do what we should do—legislate to fill the vacuum that its decision has created. Too often nowadays the response to judicial activism is parliamentary abuse, but my right hon. and learned Friend’s speech was an exception. Indeed, in all parts of the House today there has been a proper recognition of the need to respect the wisdom and advice of the Law Lords, and to fulfil our duties in dealing with the problem that they have set us. It is now up to us, in the period that remains to us this evening—I trust that it is not controversial to say that we have not enough time in which to scrutinise the Bill properly—to produce a scheme for the provision of anonymous witness orders that meets the requirement for justice in each case, and provides fairness under the rule of law.
I shall respond briefly, given that I shall deal in more detail in Committee with some of the points that have been raised.
I welcome the constructive way in which Members in all parts of the House have dealt with the Bill so far. There has been wide agreement on much of it. My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) observed that it was small but perfectly formed. I do not think I have ever heard him say that about a Bill before. Between all of us, we must be doing something right. I am also grateful to the Front Benchers in all parties for the constructive way in which they have worked during the short period available to produce the Bill in its current form. We are all determined to produce a Bill that is fair to the defendant, protects the public from dangerous offenders, and ensures that witnesses receive the protection that they need from intimidation and violence in appropriate cases.
Many of those who have spoken in this short debate have raised issues of concern that remain. I can assure them that, as far as the Government are concerned, the granting of witness anonymity should be an exception and should not become routine. Some Members who are legal practitioners clearly feel that it has become rather too routine. However, as my hon. Friend the Member for Hendon (Mr. Dismore), who made an erudite and helpful contribution with the benefit of having heard the Director of Public Prosecutions give evidence to his Committee earlier today, pointed out, according to a snap survey conducted by the Crown Prosecution Service, witness anonymity has been attached to some 580 of 1.3 million cases in the courts over the past year. That indicates that it is exceptional rather than routine, and we certainly do not intend to turn it into a routine procedure.
I think we all agree that sensible and proportionate arrangements are needed for the granting of anonymous witness orders, and that there must be a presumption of openness. Open justice is the most important element, and the article 6 rights of the defendant must be the primary consideration in ensuring a fair trial. That requirement is at the core of the Bill.
A number of Members approved of the proposal for a special counsel. A group of amendments deals with that issue, but I will say now that it is not absolutely clear from either the amendments or the comments that have already been made what role is envisaged for the special counsel—whether, for instance, he or she might be a friend of the court or a protector of the rights of the defendant. We must be clear about that if we are to proceed, but if we are not able to consider it during the passage of this Bill, it may be possible for us to do so when we debate the replacement legislation later in the year.
I am glad that there has been general agreement on both sides of the House, although not in every detail, as the new clauses show, that the provision of a sunset clause is right in the particular circumstances of the Bill. I am glad that, having discussed the issue with Opposition Front Benchers and others with an interest, the Government have been able to reach a view that is acceptable to all.
I enjoyed the speech of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). I know how bruising it can be to be Home Secretary, and to have to hold one’s tongue when judicial reviews are flying around and decisions are being made with which one may not agree. Revenge is a dish best served cold, and the right hon. and learned Gentleman clearly enjoyed that aspect. What I particularly enjoyed was the irony that judicial activism of an extreme nature has led the judges to set out the boundaries of their capacity to influence these matters. They have certainly alerted us to the existence of an issue that needs to be resolved.
I agree with all Members who have accepted that the Government are acting in good faith. The matter needs to be dealt with swiftly, and we are grateful for the co-operation that we have received. I understand the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) about the undesirability of speed. I hope that, whatever goes on to the statue book at the end of July, we can return to the issue more fully and at rather more leisure in debating the fourth Session Bill.
Question put and agreed to.
Bill accordingly read a Second time.
Bill immediately considered in Committee, pursuant to Order [this day].
[Sylvia Heal in the Chair]
Clauses 1 and 2 ordered to stand part of the Bill.
Clause 3
Applications
I beg to move amendment No. 35, page 2, line 26, leave out subsection (2).
With this it will be convenient to discuss the following:
Government amendment No. 40.
No. 20, page 2, line 27, leave out ‘prosecutor’ and insert ‘court’.
Government amendment No. 41.
Amendment No. 2, page 2, line 27, at end add—
‘(3) The court must give every party to the proceedings the opportunity to be heard on the application.
(4) For the purpose of considering an application for a witness anonymity order the court may appoint an independent counsel to assist the court, and, without limiting the directions that the court may make, the court may direct the independent counsel—
(a) to inquire into the matters that are set out in sections 4 and 5 and any other matters that the court may think relevant, and
(b) to report his findings to the court.
(5) Where an independent counsel has been appointed, the party who applied for the witness anonymity order must make available to the independent counsel all information in relation to the proceeding that is in the party’s possession.’.
Amendment No. 18, page 2, line 27, at end add—
‘(3) For the purposes of considering an application for a witness anonymity order the judge may appoint a special advocate to represent the interests of the party not present.’.
Amendment No. 19, page 2, line 27, at end add—
‘(3) Any application for a witness anonymity order must be made to the court at the earliest opportunity.’.
Amendment No. 36, page 2, line 27, at end insert—
‘(3) The application must be heard by the court in chambers and determined on evidence admissible in a criminal trial.’.
New clause 6—Independent counsel—
‘The court may appoint independent counsel to test any evidence of, and to advise it upon, the witness’s fears under section 4(6) and the relevant considerations under section 5(2).’.
New clause 7—Independent counsel (No. 2)—
‘(1) For the purposes of considering an application for a witness anonymity order, the court may appoint an independent counsel to assist the court.
(2) The court may direct the independent counsel to investigate on the court’s behalf any matter the court thinks fit, subject to any instruction the court thinks fit, and in particular to inquire into any matter referred to in section 4(3), 4(6) or 5(2)(d).
(3) The party applying for the witness anonymity order must make available to the independent counsel all information relating to the proceeding that is in that party’s possession.
(4) The party applying for the witness anonymity order is responsible for paying the fees of the independent counsel.’.
Amendment No. 35 relates to clause 3(2), but many other amendments and new clauses tabled by Members on both sides of the House deal with the important issue of the independent counsel, and I expect the debate to concentrate more on that than on amendment No. 35. The group also includes amendments concerning procedure requirements, including Government amendment No. 41, which I very much welcome.
Clause 3(2) builds on the provision earlier in the Bill that anonymous witness orders may be sought not just by the prosecution but by the defence. It goes on to say, however, that if the defence obtain an order, the prosecutor will still get to know the identity of the witness. However, it is a fundamental aspect of the Bill that if the prosecution obtains an anonymity order for one of its witnesses, the defence team does not learn the identity of the witness. This is a bad idea for a reason that goes to the heart of the problem with anonymous witnesses. If one knows the identity of a witness, one can research their background and record, and with that information one can conduct a far more effective cross-examination than one can without it. The prosecution will, therefore, be in a far better position if the defence obtains an anonymous witness order than the defence will be in the opposite circumstances. The defence cannot know the identity of the anonymous witness, so it cannot conduct effective research into that witness. It will, therefore, be in an unequal and unfair position compared with the prosecution. The amendment therefore seeks simply to strike out subsection (2).
There is also a fundamental human rights problem, which I do not think the Government have properly addressed so far—and I wonder whether it has been addressed by the Joint Committee on Human Rights. Article 6(3)(d) of the European convention on human rights says that defendants are entitled to examine witnesses on their
“behalf under the same conditions as witnesses against”
them. It is clear to me that subsection (2) violates that rule. What will happen in a case where both the defence and the prosecution obtain witness anonymity orders? It will not be true that the two sides are operating under the same conditions; they will be operating under fundamentally different conditions.
The Government have said that this is not a problem because the prosecution will not tell the police the identity of the witness. It is technically true that the police are not the prosecution’s client, but how will the prosecution investigate the background of an anonymous defence witness, whose name they will often know, other than through the police? In the television programmes where lawyers go gallivanting around the countryside doing their own investigations lawyers might look into the background of witnesses themselves, but in the real world the police carry out the investigations. Furthermore, simply saying that the information will not go to the police, which I do not think is true, does not meet the point about fairness and unequal treatment; in fact, it reinforces it.
The obvious way out of the clause 3(2) problem is the independent counsel—an institution that could be used not just in the ordinary case of a prosecution anonymous witness, but in the opposite case of a defence anonymous witness. That way out of the problem is much better than the Government’s.
I hear what the hon. Gentleman says, but is there none the less not a difficulty in that if the independent counsel is to investigate the witness, they will have to know who the witness is and something about them, and that information can very often only come from the police, who have access to intelligence and other material not known to anybody else?
That is a problem, but it is one that arises in the ordinary case in any event, because in most cases the police are not the primary investigatory tool of the defence. One hopes in a perfect world that they might be, but, as I understand it, that is not how things actually work.
The problem can be overcome by having one or two independent counsel, depending on whether both sides obtain witness anonymity orders, and for each side to be treated exactly the same. One cannot, however, overcome the problem that the prosecution has at its disposal the forces of the state. It is one of the fundamental problems with criminal prosecution that the state always—or nearly always—has more resources than the defence. That is one of the reasons why I agree with the right hon. and learned Gentleman’s view about the balance between convicting the innocent and acquitting the guilty.
I hope that the Government will listen to the case that will be made for having the independent counsel. One view, which I have heard Ministers allude to, is that the judge can do the investigatory work. That is implausible given the judge’s other tasks, and it is also implausible to expect a judge who was, for example, a commercial silk suddenly to turn into a criminal defence or prosecution lawyer. [Interruption.] The hon. Member for Wolverhampton, South-West (Rob Marris) mentions French television. He is right that one of the fundamental aspects of the independent counsel idea is that it introduces an investigatory element into our system, but it does so in a way that preserves some basic adversarial aspects, in so far as the questioning is by a lawyer, not a judge.
I constantly return to the point that the independent counsel system will protect not only the defendant, in being a safeguard against a miscarriage of justice, but the process itself when otherwise the court might decide not to grant an anonymity order, or an appeal would be successfully lodged. In the most difficult case of all—the “sole” or “decisive” case—where credibility is an issue, the only hope of getting through the human rights standard is the independent counsel. Therefore, if the Government turn down this method, in effect they will be saying that in future fewer cases will have a chance of succeeding than do now.
The Government asked how the system would work: what process do its proponents envisage? It is true that it is a hybrid between what happens now and what might happen in a more continental system, but fundamentally the independent counsel, as it says in the New Zealand statute, assists the court. The job is to assist the court in deciding whether to grant the order.
Independent counsel will investigate two matters and report to the judge: whether the need for an anonymity order has been established—whether there is evidence of threat to the safety of the witness, or of the other criteria laid down in statute—and whether the witness lacks credibility. Independent counsel would therefore be of great assistance to the court with both those tasks.
As I understand it, the Government object to the idea, first, on the ground that it seems complicated. That is true, I suppose, but it does not seem too complicated for the New Zealand courts to operate. Another possible objection is that it might be expensive, but it seems obvious to me that it would be less expensive than fighting appeals—and especially losing appeals.
As the hon. and learned Gentleman says, it would also be less expensive than fighting retrials. In any case, the current position whereby independent counsel can be appointed seems a parallel one, although, as we said in an earlier debate, whether the current judiciary know that they have such power seems unclear.
What does the hon. Gentleman think should be the test for the judge in listening to the report of the special counsel? That the witness is capable of belief? That he is prima facie telling the truth? What burden should the judge impose on the special counsel to convince him—if the task is to convince him—that someone is not to be called as an anonymous witness?
That is an issue for a future debate on a later clause, and I would prefer not to spend the Committee’s time on it now. The answer with regard to the independent counsel is that the task is investigating according to the standard in the statute—whatever standard that is—and is therefore governed by what the statute says.
With great respect to the hon. Gentleman, the question that the hon. and learned Member for Torridge and West Devon (Mr. Cox) has just asked him is very germane to this debate. It is incumbent on those moving that these provisions should be included in this emergency Bill to be clear about what the exact implications are. I beg to suggest that the hon. Gentleman is not all that clear.
I do not want to be accused of anticipating a future debate, but this issue is precisely that raised by the amendment of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), on whether the standard should be that the court may make an order if it is satisfied about the conditions, or only if it is sure. The independent counsel would work to whichever of those standards was in the statute, and I do not see how that issue is at all relevant to the question of whether we should have an independent counsel system in the first place.
The other point that the Government seem to be making is that this issue could be dealt with by issuing guidance on the existing power. The trouble with that is that the existing power appears, first, not to apply to the magistrates court. Secondly, it seems to be exceptional, and, as we have already discussed, it ought to be exercised rather more often than exceptionally. Thirdly, on a practical matter, it is not clear under the existing system exactly who pays and how much. That issue should be dealt with by the statute.
I doubt whether the situation is as the hon. Gentleman says. As I understand it, magistrates would be able to write to the Attorney-General to ask for a special counsel to be appointed, just as a judge would do, I think, using the more ordinary route. They would not just appoint under inherent jurisdiction, but would write to the Attorney-General asking for an appointment to be made in that fashion. I do not think, therefore, that there is a bar on magistrates courts having such assistance—if assistance it be—but it is very difficult to get a clear view of what special counsel is intended to be at all in this case. Is it to be a person who represents the defence, so that there are no secret things that the defence counsel cannot know, because he must pass them on to his own client? Alternatively, is it, as the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) suggested, really an aid to the judge; or is it, as the hon. and learned Member for Harborough (Mr. Garnier) suggested, somebody who susses out whether the witness is really frightened or not? All three conflict with each other. Is that not the problem with trying to get a provision such as this into legislation now, rather than waiting until we have sorted out what we really want?
On the hon. and learned Lady’s point about magistrates courts, this seems to add yet another problem to the existing arrangements, in that one has to apply to the Government to get a special counsel. I suggest that that is not the right thing to do; there should be a more direct route. On her second point, it seems clear to me that the independent counsel assists the court and thereby protects the defendant, but also thereby protects the process itself from challenge. That seems perfectly straightforward.
I really cannot understand the Government’s argument that there is a lack of clarity about the counsel’s role, given that it is set out explicitly in new clause 7, in my hon. Friend’s name. What could be more explicit than the phrase
“an independent counsel to assist the court”,
followed by a reference to the independent counsel’s acting on the direction of the court in such a way as the court may see fit?
That is precisely right. Our new clause is explicit, but my impression is that the amendments and new clauses proposed by other Members have the same intention—that the purpose is to assist the court in coming to the decision that it is given by the statute to make.
Does the hon. Gentleman not agree that the purpose of the amendments and new clauses drafted by him and by me is in no sense to relieve the judge of the obligation of determining whether he or she is satisfied that the conditions and the criteria are laid out, but to investigate things preparatory to their making that adjudication, and that the judge can ask questions of the relevant witnesses, informed by a prior report from the special counsel?
That appears to be what happens in the New Zealand example, and it is one way in which I would expect the system to work here. This is a way of getting better, higher-quality and more defensible decisions from the court when it is required to make the decision that the statute requires it to make.
I agree with the hon. Gentleman’s argument. When I questioned the Justice Secretary earlier, he shook his head violently at the idea that there is not equality of arms in this clause. This provision would deal with that problem, but it would presumably keep the whole matter in-house, as well, and there would be a report specifically to the judge—be it regarding anonymity of a prosecution witness, a defence witness or both. This is a good example of a practical solution.
That is precisely right. This idea solves a lot of problems, which is why I am confused and unclear about why the Government seem to be resisting it.
I hope that the hon. Gentleman will forgive my observing that if we had had more time, we would be getting in touch with the New Zealand authorities to ask them about their experience. That might have resolved all the problems raised by the Solicitor-General.
I am sure that e-mail works rather better than ordinary mail did in the old days, but in principle I agree with the right hon. and learned Gentleman.
I want to let other Members speak and there are a number of other amendments in this group, but I want to finish by referring briefly to an issue on which the Government have moved, for which I thank them. Regarding the group of amendments on the procedure for deciding whether to grant an order, there was concern that no procedural provisions were being made in the Bill. The Government have now moved amendment No. 41, which goes a long way towards removing those concerns. I still have one small worry, however, about the standard of evidence admissible in the hearing before the judge. That is why I have moved amendment No. 36—just to test the issue and to ask the Government how they see that question being answered. On the basis that amendment No. 41 shows that the Government are listening, I welcome it. I just hope that they will also listen on the central issue of the independent counsel.
I largely agree with the broad thrust of what the hon. Member for Cambridge (David Howarth) has said and I do not share the confusion that appears to have arisen in the mind of the Solicitor-General. I also accept the point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) that if we had more time, these niggles could be ironed out, but we do not, so we will have to do the best that we can.
While I accept what the hon. Gentleman said about the need for a special advocate, I approach his arguments about amendment No. 35 somewhat differently. Our suggestion is not that the whole of subsection (2) should be deleted, but that the equality of arms that we seek should be achieved through amendment No. 20, which requires the insertion of the word “court” instead of the word “prosecutor” in clause 3(2), so that the court, not the prosecutor, would have to be informed about the identity of the witness.
I shall not rehearse the arguments about the links between the police and the prosecution system, because that would be tedious and repetitious, but those arguments are important. The Bill and the system of justice would be strengthened were the information to be given to the court, not the prosecutor. If the Government accept amendments relating to the appointment of special counsel or advocates, it would be sensible for the court to include the special prosecutor, because he would be conducting himself for the benefit of the court, albeit by collateral advantage—if he did his job properly, it would be to the benefit of both the warring parties, the prosecution and the defence in any given case.
I, too, am pleased to note the Government’s amendments in relation to the process by which the applications will be made. It must be sensible that those interested should be given an opportunity to be heard and to explain their case—or their resistance to the case—on the application as appropriate. I accept that on some occasions the application will be made, at least initially, ex parte, but it may on occasion be right and just that the matter should be contested inter partes at a later stage.
However, we urge that any application—this is the thrust of amendment No. 19—for a witness anonymity order must be made to the court at the earliest opportunity. That may be an obvious request, but far too often advocates or lawyers advising either the prosecution or the defence do not apply their minds to the marshalling of the necessary administrative orders until far too late a stage, which delays the speed at which the trial can progress. I urge that any change to the Bill should include a requirement along the lines of amendment No. 19.
None of the amendments on special advocates were tabled by me or my colleagues on the Front Bench, but I do not think that that matters. What is important is that we get the Bill right. Amendment No. 2, tabled by my right hon. and learned Friend, is an attractive attempt to address the problem, although I do not suggest that he has every dot and comma in the right place or that an inclusion in the Bill of a provision on special counsel should necessarily be in this form. For my part, I dealt with it as a relevant consideration in amendment No. 24 (ai) to clause 5.
In any case, we all have the same aim—to try to produce a system that preserves fairness as much as possible. Special advocates or independent counsel are no more than a compromise solution, and are by no means ideal. They must surely offend the principle that we expect fearless independent representation for the defendant, untrammelled by interference from the Government, Parliament or other mighty influences. If we are to have anonymous evidence, the court needs assistance in finding the facts on which to make its decision whether to grant an application for an order or not. Necessarily, the respondent to an application under clause 2 cannot know the details of the witness, which, if published, would negate the purpose of the application.
The prosecution cannot protect, or be seen to be protecting, the rights and interests of the respondent, albeit that as a matter of professional duty they try to do that. The defendant, or defence witness, has no obvious interest in being open with the prosecution, albeit that those who represent them would, in line with their professional duties, endeavour to be so. We agree that the courts should have the discretion to appoint a special advocate under the Bill, to ensure some fairness in an area of procedure in which unfairness is undeniable and unavoidable. If we are to take away the defendant’s fundamental right to know and freely to cross-examine his accuser, we must build into the system mitigating measures, and the special advocate would be one such—albeit imperfect—measure.
Special advocates are used in cases involving suspected terrorists and control orders, heard by the Special Immigration Appeals Commission. There, they are creatures of statute, not the common law, albeit that in matters affecting disclosure the ordinary courts have an inherent power to appoint special counsel, as my right hon. and learned Friend reminded us. However, they are not the same as the amicus, the friend of the court, brought in to help the court on the law, or as counsel to an inquiry such as the Hutton inquiry. They need precise statutory provision to allow them to exist and they cannot be developed from some imprecise, inherent power.
The consensus that I identified in my closing remarks on Second Reading does not quite include the amendments on the need for a special advocate, if the interventions by Ministers so far are a true reflection of their position. I hope that at some point—preferably today—the Government will move towards us, just as we have moved towards them on many of the details of the Bill. I am not sure whether the hon. Member for Cambridge (David Howarth) intends to press amendment No. 35 to a Division. If he does, we will follow him, not because we support it, but because we want to use it as a means to demonstrate our support for the special advocate.
I shall not detain the Committee for long, but I wished to address the powers of independent counsel and give a harmless example of how one might be used in a hypothetical case. I have burdened the Solicitor-General with precisely this example already, so I apologise to her for the repetition.
Let us take the not unlikely hypothesis that I am representing somebody in a serious criminal case and anonymity is sought for a witness. The witness, of course, is named with a pseudonym, or simply as A, and we have a statement that is heavily redacted so that everything in it that should give us the identity of that witness has been removed. None the less, the witness is important from our point of view.
It appears from the case papers that the witness does not have an axe to grind and was a bystander or someone who was otherwise innocently involved, but the evidence is still important. I say to my client, “What do we say about this?”, and my client says, “I think that this witness is X. There are things that I see on these papers that lead me to believe that I can identify the witness and I can tell you that the witness is not the innocent bystander that she makes herself out to be.” The client might say that the witness was partisan, for example, because she was married to or related to the main prosecuting witness, and had an axe to grind in some way that was not revealed in the papers.
Without a special advocate, I can put all that in writing and articulate it in court, if necessary. I can give it to the judge and ask him to make his own inquiries about whether I am right or wrong, but I cannot take it to the next stage if the judge says, “Well, you’re right, as a matter of fact.” What can I then do about it? What representations and advocacy will be made to me about the steps that I can take once I have established, as a first fact, that my client has correctly identified the person on the statement? That is when an advocate is required. The advocate will go to the judge’s chambers, with prosecuting counsel, and the judge will say, “You are right. This witness is X, but we do not know at this stage whether the witness is partisan or whether the allegations made by you to me are true.” The special counsel will be acting after a conference with me as defence counsel in which I will have told him all the things that we believe and asked him what he thinks we ought to do. Special counsel will then say to the judge, “You ought to set in train the following inquiries.”
What does the hon. and learned Gentleman think is the difference between the situation that he is outlining and that which frequently arises in the courts when an application is made by the Crown to disguise the identity of an informant? Precisely the same considerations arise, yet no special counsel is allowed. I wonder whether the Government’s concern is that by opening the door in this Bill they will be opening the door for matters relating to disclosure in Crown courts.
With great respect, if the hon. and learned Gentleman does not mind, I do not want to go down that interesting diversionary route. Public interest immunity is different. PII judges are armed with different considerations and prosecuting counsel has clear lines of inquiry. The concept of informants is well known. What I am talking about is a witness in a case who might have completely misled the prosecuting authorities about the nature of his role as a witness. I want to concentrate on that for a moment, if the hon. and learned Gentleman does not mind. PII is imperfect, as we all know, but this provision could be very imperfect.
In such cases, what is necessary is an advocate who knows what the facts are, knows the identity of the witness and can advocate what the judge should do in those circumstances. More than hypothetically—almost certainly—they could say, “It is our submission that you should put into train the following inquiries in relation to this witness before you make a decision. If necessary, you must use the prosecution in order to do so.” That would mean that somebody could come back and say, “Yes, on inquiry, they are right. This witness is apparently not the person that he or she appears to be.”
In such circumstances, an advocate is needed. It cannot be done in the abstract. There are two reasons for that. First, advocacy is not a bad idea anyway. Secondly, and more importantly, if the judge says, “I will not do that. I will not put those inquiries in train”, there is cause for appeal based on what the judge has said. If one does not have a special advocate, one does not know the basis on which the judge has arrived at that decision, and one never will. That is a hypothetical example.
Might I suggest to the hon. and learned Gentleman a further advantage? If one is right to think that the protective measures in cases where credibility is the primary issue will, generally speaking, always fall foul of the unfairness rule, the special counsel approach, which he is advocating, will go a long way to meeting the European jurisprudence and satisfying the test of fairness.
I agree entirely. That is a strong tangential point to the one that I hope I am making.
I would have thought that if one did not have an advocate in such circumstances, the chances that a number of cases would transgress article 6 and other parts of the convention would be very high indeed. An inquiry would take place extra-territorially, which is extremely undesirable when we ought to be able to do it ourselves.
I have wearied the Committee with this example. I hope that it is thought to be one that is reasonable in the circumstances and likely to occur in a number of serious cases. I have thought about a way around that and I can find none. It prompts one particular question, which has something to do with angels and pins: who precisely does the special counsel represent and what is his role? That is not difficult. The special counsel is manifestly a minister of justice in the same way as everybody else. He is there to see that justice is done. One of his roles is precisely the same as that of a Special Immigration Appeals Commission counsel, who talks to the representative of the terrorist or suspected terrorist who is subject to a control order, finds out what his instructions are, and conveys those instructions back to the tribunal, to which he has unique and independent access. I can see nothing wrong with that, but I can see enormous advantages, particularly as it is a power that will be rarely used. It will be used only in the most serious cases and when judges, in accordance with that, perceive the need for that additional power.
I shall listen with interest to see what the Government say is wrong with that. So far, I have heard nothing on it. I dare say that something will come, but this is an attempt to be as helpful as one possibly can be.
I rise briefly to endorse what the hon. and learned Member for Medway (Mr. Marshall-Andrews) has said. His explanation of the circumstances in which the special counsel is likely to be required is entirely accurate and seems to meet the real difficulty that Davis has thrown up. To go back to Davis, the problem that we rarely confront when we discuss the detail of the Bill is not the question of whether the common-law power ever existed, but the question of whether protective measures, when credibility is at issue, can ever be fair or, to go a little further, whether they can ever be compatible with the European jurisprudence. It is important to keep in mind the fact that the Law Lords all held that the protective measures in that case were such as to render the trial unfair and incompatible with the European jurisprudence. We must ask ourselves how, using protective measures as prescribed by the Bill, we can still ensure fairness.
What the hon. and learned Gentleman has suggested seems to me to be the clear way forward. If we do not follow his advice, or accept amendment No. 2, which I have taken the liberty of tabling, I suspect that the measures set out in the Bill will very seldom be invoked when credibility is an issue. The outcome will almost certainly be deemed unfair, either on appeal or when the order is applied for. To endorse the point made by the hon. Member for Cambridge (David Howarth), the presence of a special counsel is a way of ensuring that applications can be made, but also a way of ensuring that they are not made inappropriately. I hope that Ministers will seriously consider putting that provision in the Bill, either today or in the other place.
Very few practitioners are aware of the latent, inherent power of the court to appoint such counsel. In any event, it is right that we should make statutory provision for it. We have done so in other cases, such as in the Counter-Terrorism Bill, which makes specific reference to special independent counsel. We should not shrink from that simply because there is an inherent power. If it is inherently desirable, statute should say so.
Would not the confusion about the precise role of the special counsel, which has been identified in the debate, be likely to be in the mind of any tribunal seeking to exercise an inherent power that was not set out in statute, as my right hon. and learned Friend suggests it should be?
That is entirely right, although of course confusion does currently arise when an independent or special counsel is appointed in the context of disclosure, for instance. The query that the Solicitor-General raised can arise in that situation. Amendment No. 2, which is based almost word for word on the New Zealand Act, clarifies the point precisely. Under it, the independent counsel would answer to the judge, address the considerations and conditions set out in clauses 4 and 5 and respond to specific queries from the judge. In other words, he would be acting as a minister of justice, as the hon. and learned Member for Medway said. In one sense he would represent the defendant’s interests, but he would also represent those of a court that needed to be better informed. Putting that role in statute would both respond to the point that my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) identified, and satisfy the anxieties that the Solicitor-General expressed.
May I remind my right hon. and learned Friend about the specific provisions in the Special Immigration Appeals Commission legislation? It states not that the special advocate is to represent the respondent but that he may represent their best interests.
Yes, indeed. My hon. and learned Friend is quite right. In all the legislation in which special counsel has been provided for, it has been stated explicitly that that he does not answer to the defendant or respondent. He has a special free-standing role, and is a minister of justice, but he is subject to the authority and directions of the judge. That is a way forward, and would ensure that the cases in question had a much better chance of satisfying EU requirements.
I rise to speak to new clause 6, which is my proposal on independent counsel. But before doing so, I shall respond to the hon. Member for Cambridge (David Howarth), who asked whether the Joint Committee on Human Rights had considered the point that he raised about article 6(3)(d) of the European convention. We have not considered it specifically, but we did raise it with the Director of Public Prosecutions this afternoon and discuss with him the equality of arms, or otherwise.
We are comparing apples and oranges, because why would a defence witness require anonymity? Their position is rather different from that of a prosecution witness, who might well be afeared of victimisation by the defendant or his associates. What could a defence witness be afeared of? Victimisation by the police, perhaps, but it is rather unlikely.
Will the hon. Gentleman give way?
I shall finish the point and then give way.
It is probably more likely that defence witnesses would fear victimisation by other criminal associates. In those circumstances, the prosecution must have the opportunity of looking into the antecedents of a defence witness. That is a different kettle of fish entirely from a prosecution witness, who will have different fears. The hon. and learned Gentleman’s point about the need to give the information to the court gets us no further, because the judge knows the anonymous witness’s identity anyway, as would an appeal court. That is the position now, and will continue to be the position.
Might not a witness who has been called by one defendant apply for an order because he is worried about another defendant, represented by a different counsel? The defendant who has called him might say, “It wasn’t me who caused the affray, it was so-and-so, and here’s a witness.”
My hon. Friend is entirely right, and it would be appropriate for the prosecution to be able to investigate that. A defence witness is a completely different kettle of fish from a prosecution witness. As I have said, the JCHR has not discussed the matter in detail and come to a view on it, but I am giving mine, which pretty much relays what the DPP said to us today.
Is not that explanation a further argument for rethinking clause 3(2)? It seems that it is intended to deal with a number of different problems. On one side there is the witness who is afraid of what the police might do, and on the other there is the witness who is afraid of what other defendants might do. It seems entirely wrong for one clause to deal with both those problems. With the latter type of witness in particular, consent will be an issue. They might want the police to investigate, in which case they could say so.
If that is the case, there is no problem. I do not see any significant difficulty with clause 3(2), for the reasons that I have given. I certainly agree with the hon. Gentleman’s more important point that the way to resolve the difficulties is by having an independent counsel, who could get to the bottom of the story.
There has been some loose language in the debate. Hon. Members have talked about independent counsel, special counsel and special advocates. We need to be more precise and tight in our language. I have not used the term “special advocate” in the new clause, because it has certain connotations in our legal system. Special advocates have given evidence to the JCHR on several occasions, both formally and informally, and one of their main concerns is what they call “mission creep” in terms of how the system of special advocates has spread from counter-terrorism. That is why I have used the term “independent counsel”, which I believe is drawn from the New Zealand system.
The new clause is intended to codify the inherent jurisdiction that already exists. It would not create anything new, as I am effectively proposing a type of amicus whose job is to advise the court without specifically representing either party involved in the case.
We need to be careful because, as the Government have said, the provisions could easily get out of hand. I am concentrating on the “civilian cases”, as the DPP puts it—the 50 or so cases that do not involve the police or security services, in which credibility will be the key issue. I have phrased the new clause to exclude public interest cases, such as those involving undercover police, and to focus on the key issues: the basis of the witness’s fears and whether the relevant credibility considerations in clause 5(2) are met. The independent counsel would test the evidence for that and advise the court accordingly. It seems to me that that would create a regime limited enough to meet the Government’s concerns and objections and also provide the necessary independence that we all want, yet at the same time one that would not get completely out of hand when it came to the other issues.
My hon. Friend may well be coming to this point, but will he deal with what appears to be an immediate and obvious problem? How will the evidence be tested? Will there be a trial-within-a-trial—a voir dire—and, if so, how will that take place? Who will preside over it? Will it be in chambers or open court? I do not want to go on, but is that the sort of trial that he envisages?
The starting point would be a hearing before the judge, as happens now. Government amendment No. 41 proposes an initial ex parte application followed by an inter partes hearing, and the independent counsel would play a role in both aspects.
I do not think that we can achieve perfection, but that is probably the way forward. It may be possible to test some of the evidence on paper initially, but it may ultimately be necessary to have the witness at least on an ex parte basis. That would depend on what the system throws up: we are talking about a relatively small number of cases, and I do not think that what I propose would be unmanageable.
Might I suggest that one answer to the question from the hon. and learned Member for Medway (Mr. Marshall-Andrews) is that there might have to be a voir dire, in which the witness is questioned in front of the judge? The judge would also be able to ask questions. The preliminary research by independent counsel would be made available to the judge, so that there could be informed questioning at the voir dire.
The right hon. and learned Gentleman is right, and what he suggests would have to be on an ex parte basis. That is where the independent counsel comes in, as he would perform any cross-examination of the witness that proved to be necessary.
That approach would be something of a last resort, to be used only when a preliminary inquiry had thrown up real questions of credibility. There may be no credibility problem in many of the 50 cases that we know about. The DPP said that such problems would arise in some of the 30 Operation Trident cases, but that implies that they would not in many others. The approach that I have outlined might be necessary in cases such as the Davis case, but that eventuality would probably turn out to be the exception to the exception to the exception, as it were. The inherent jurisdiction, together with the Government’s proposal for ex parte applications and inter partes representations, starts to achieve the outcome that I have set out.
We are told that there are concerns about costs, but a maximum of 50 or so cases a year will not lead to costs that are unmanageable, given the importance of the cases that we are talking about and the overall interests of justice. I think that the costs should be borne by public funds.
As for magistrates courts, it is presumably within the Attorney-General’s discretion to grant any application made to him. The process is extremely complicated, whereas it would be simpler to allow the magistrates to have a similar jurisdiction. I put that to the DPP earlier today: he agreed that if magistrates did not have that inherent power, the suggestion to give it to them had merit.
There seems to be consensus around the House, if not in the Government, about the importance of independent counsel. I hope that Ministers have listened to the debate and that, if they cannot resolve the matter this evening, they might introduce amendments to this Bill in the other place. If that is not possible, I hope that they will bring forward suitable proposals to resolve the problem in the long term in the more substantive Bill that we will see in the next Session.
I thank the Government for Government amendment No. 41, which makes it clear that there has to be a hearing, and that no trial will be held entirely on paper, unless that is what all the parties involved agree to.
I want to make some remarks about the independent counsel. I am quite attracted to amendment No. 2 and new clause 7. I hope that the Government can make some movement on those proposals or persuade me that there is no need for an independent counsel. As a lay person—I am a solicitor, but I have not done much criminal law, and even then not for many years—it seems to me that fairness demands that there should be an independent counsel. I understand from the helpful remarks made by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) that similar systems are in place elsewhere. I remember the discussions that we had with the Special Immigration Appeals Commission about what should be done in respect of terrorist and other cases, and it seems to me that an independent counsel could be of great assistance both for fairness and the for appearance of fairness.
The appearance of fairness is of particular importance in our criminal system. We in this House must always be careful when we are dealing with matters such as these. Many of our constituents see terrible behaviour in their communities. They would like to be witnesses, but think it only right that they should have anonymity. Quite understandably, they overlook the existence of the balance that we have been talking about—that is, that a defendant should have some idea of the case being made against him and of who is assisting that case, most likely as a prosecution witness.
As we have noted, it is very important that the system should not be stacked in such a way that innocent people end up being convicted because they cannot test the evidence against them properly. When that happens, we have a double problem: an innocent goes to prison—that is not desirable at all—while the person who committed the crime and created the mayhem is allowed to run around outside.
We need a fair and properly balanced system, one in which evidence is tested in favour of anonymity, and to that end, an independent counsel who would “assist the court”, as both amendment No. 2 and new clause 7 propose, would be desirable. I hope that, if the Lord Chancellor is replying to this debate—
I am grateful to my right hon. Friend for that sedentary clarification. If the Government do not think that the amendments are appropriate, I hope that he will elucidate why. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) has said that amendment No. 2 is very similar to the provisions in the New Zealand legislation on which the Bill is broadly based. I think that it is a good idea, and I hope that the Lord Chancellor will show some movement on the proposals. Failing that, I hope that he will present some cogent arguments as to why the amendment would not be appropriate. He needs to explain why it would merely be a fig leaf when it comes to giving an appearance of fairness, and why it would have other negative effects. As I have said, it sounds rather attractive to several of us on the Government Benches.
This has been a measured debate, and I thank hon. Members of all parties for their contributions. I shall deal with the various amendments that we are considering before I come to the special advocate proposal which, given the weight of opinion in the House, is the most important proposal before us.
Government amendments Nos. 40 and 41, and part of amendment No. 2, relate to a party’s right to be heard and the need to put it on to a statutory footing. I am glad that the Government amendments have been generally welcomed on both sides of the House. That is one of the benefits of our detailed consultation with the Opposition parties, even though that inevitably took place in a very short space of time.
Amendment No. 19, moved by the hon. and learned Member for Harborough (Mr. Garnier), would require that an application for an order be made at the earliest opportunity. I accept that in principle, but I ask the hon. and learned Gentleman to accept that the criminal procedure rules are the right place for such a provision. Indeed, the phrase “earliest opportunity” begs a question: it is improbable that the prosecution would delay applying for such an order, as any such application would disrupt the trial process. Exactly at what point they are able to do that, however, will depend on the merits of the individual case.
Amendment No. 36 would place in the Bill a requirement that the application for a witness anonymity order must be heard in chambers and determined on evidence admissible in a criminal trial. I ask the House to consider for a moment what the implications of that proposal would be. The applications will take place before a judge in chambers, away from the jury. We have exclusionary rules of evidence in England and Wales precisely because of the nature of the jury system. Applications are made without the jury on all sorts of matters that, by definition, may be held by the judge to be outwith our exclusionary rules of evidence and therefore are not to be brought out in evidence to the jury, but have to be before the judge when he is hearing the application. Otherwise, the whole process would end up being risible. As I read the amendment, which refers to the rules of criminal evidence, it would greatly restrict the power of the court in chambers, without the jury present, to consider all kinds of evidence.
Some of the evidence that a court will need to consider in determining whether to make the order will be evidence that the prosecution might wish to adduce, but the judge has held that it cannot, and some will be evidence that the prosecution most certainly does not wish to bring out in open court, such as police and security services intelligence reports, which are the subject of a public interest immunity application but are germane to consideration of the order. Given that explanation, I hope that those who tabled the amendment will not press it too far.
I should say to the Lord Chancellor that I do not intend to press that amendment. One of its main purposes was to probe the Government on what sort of evidence they thought should be used in the hearings. It seems to me from what he has just said that it looks like evidence that is usually inadmissible put in ex parte. Is that not yet another reason why there should be an independent counsel to make sure that both sides are heard?
I will come to that in a moment. Current practitioners in the House at the moment have far more experience than my zero experience of handling cases of this kind. My understanding is that, where applications are being made, the judge has to be satisfied that there is a reason for withholding what would otherwise be fundamental evidence from the defence—for example, the witness’s identity and aspects of the witness’s background that could lead to his identity. The court has to be satisfied as to the reasons. That may well be police intelligence reports, and indeed Government amendments Nos. 40 and 41 allow for that possibility. I will come to the issue of the special counsel in a moment.
Next, and penultimately, I shall deal with amendment No. 20, which would allow, where there is a defence application, for an order to be made for the witness’s real identity to be given to the court but not to the prosecutor. The argument is that there has to be equality of arms between prosecution and defence. It is a straightforward truth in any system of justice worthy of its name that there has to be such equality, but a moment’s thought will explain to us that equality of arms does not mean complete symmetry between the role and predicament of the defendant and the role and predicament, if any, of the prosecutor. The vested interests are completely different. It is the defendant who is in the dock. The prosecutor is not in the dock. There is not an either-way verdict which will lead to either the defendant or the prosecutor going to jail. As soon as one points that out—if I may say so, it is a statement of the blindingly obvious, but—
It has never stopped the right hon. Gentleman in the past.
That may be so, but the point was absent from the argument of those who said that the importance of the principle of equality of arms closed the argument as to whether, where an application for an order was made by the defence, the real identity of the witness for the defence should be disclosed to the court but not to the prosecution.
There may well be cases, but I have never heard of one, in which the character of the prosecutor is called into account. It would be extraordinary were that to be the case. Moreover, those acting down the years on behalf of defendants quite properly and rightly have argued that there should be no equality of treatment when it comes to the provision of evidence to the other side. So we have rules under our system whereby not only does the prosecution obviously have to lay the full details of the case that it is going to make in open court before the defence, but it has to disclose sometimes mountains of unused prosecution evidence to the defence. No such equivalent duty is on the defendant, and notwithstanding efforts that have been made by the previous Administration and this one to deal with the situation in which the defence ambushes the prosecution, and the increasing concerns of the courts to see those rules properly applied, there is not, and can never be, equality there.
I will deal with what is at the heart of amendment No. 20. There will be rare cases in which the defence properly feels that it should make an application for a witness anonymity order for a defence witness. I guess that the most likely example that could arise is where there is an argument between co-accused. The defence will come forward with its application to the court. It is of great importance that the court knows who the person is. That will be disclosed to the courts even under amendment No. 20, but the court also has to know a good deal about the witness before it can come to a view. The court has no information about the witness. How could it? The only way in which the court could obtain that information is from the prosecutors, who in turn would have to obtain it from the police. On what other basis could the court learn about the antecedents of the witness, who may well have kept them from the defendant? The antecedents may be incomplete.
Those of us who have to deal routinely, as we all do in the House, with constituents who have criminal records never cease to be amazed at the way in which they forget about the most egregious convictions on their record.
They remember only convictions of the most trivial nature. Indeed, recently I met a man who was applying for a job in the public service. He had a conviction years ago for being drunk and disorderly and he told me in front of a witness, who does not need to remain anonymous, that it was his sole conviction, so I wrote a gentle, but non-committal, letter. Upon further inquiry by me, it turned out that he did indeed have a conviction for being drunk and disorderly a long time ago, but he also had a recent conviction for quite a serious robbery. When he came back to see me, aggrieved that I had not been able to get him the post in the public service, he said that he had forgotten about that conviction and that in any event it was rather trivial. That sort of thing goes on frequently, so the police would have to make inquiries in such cases.
I am fascinated by the Secretary of State’s story.
In the absence of a special counsel, I would accept the thrust of what the Secretary of State is saying, but as that would be the purpose of a special counsel he cannot dismiss my arguments—or rather those I borrowed—in relation to amendment No. 20 without bringing into the picture the need for a special counsel. Once a special counsel was doing the job that the Secretary of State did in his surgery, or that somebody else might do for the court, much of his objection would fall away.
The answer to the hon. and learned Gentleman’s point was given earlier in the debate. For sure, the special counsel has a role that is different from that of the judge or the prosecutor, but no information is directly available to special counsel; they, too, would have to go to the police. One of the arguments raised about that is that the police could leak the name of the witness. That is an inherent problem in any such case, but I know of no example where the clear order of a court requiring that the identity of a witness be prohibited has been broken. If it was, it would be contempt of court and the police officer would find himself in prison rather quickly.
I take a position that is slightly different from that of my hon. and learned Friend the Member for Harborough (Mr. Garnier) and that of the Liberal Democrats. It seems to me that where a defendant who has a co-defendant wishes to have a witness anonymity order made in respect of a witness, the Crown ultimately has a duty to the co-defendant to inform them of any criminal antecedents or other considerations that may make the evidence of the to-be-anonymised witness prejudicial to the co-defendant. The Crown can discharge that obligation only if they know the identity of the anonymised witness.
I am extremely grateful to the right hon. and learned Gentleman for making my point in a rather more elegant way. That is exactly the point. I understand why the amendment was tabled. It is not that there will not be equality of arms—there will—but there cannot be symmetry in a criminal trial, and thankfully no one has suggested that there would be. The amendment reflects concern to ensure that the protected identity of a defence witness is not somehow leaked. However, another area of no symmetry is that it is inherently improbable that if the prosecutor, or even the police, knew the identity of the defence witness whose identity was being protected they would go round and put the witness’s windows in, set fire to their motor car or intimidate their children at school, yet all those things could occur in the opposite situation, where the identity of the prosecution witness is being kept quiet.
I turn to the major issue in respect of this group of amendments—the argument contained in amendments Nos. 2 and 18 and new clauses 6 and 7 that the Bill should include a provision that a special counsel be appointed. I shall set out why I ask the House to accept not that there is a profound case against having special counsel—that is not my argument—but that there is insufficient time, not only today but in the limited time of a week that we have to bring the Bill’s proceedings to a conclusion, to pin down exactly how a statutory scheme could work. As we have already heard, there is at least one statutory scheme for the appointment of a special advocate. My hon. Friend the Member for Hendon (Mr. Dismore) was right to make the important distinction about the appointment of a special advocate in respect of the proceedings of the Special Immigration Appeals Commission, which some of us have come to know and love only too well. It was established by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). I got it going and it has been enhanced since.
In addition, as we have heard, there is an inherent power for the court to appoint a special counsel. It is not used often and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), who drew our attention to an entry in “Archbold”, was correct in saying that it is used only exceptionally. As it happens, the Court of Appeal, in the Davis appeal, sought and was granted the appointment of a special counsel. Those who believe that the appointment of a special counsel is a stay in jail card as far as the prosecution is concerned, and a guarantee against any breach of article 6, might bear in mind the fact that, notwithstanding the appointment of special counsel and the extensive use of special counsel by the Court of Appeal in the Davis case, although the Court of Appeal found in favour of the prosecution in Davis, that was not a particularly persuasive point when the case went to the House of Lords Appellate Committee. The fact that there had been special counsel was of no consequence when the Committee reached its 5:0 judgment on whether there was common-law authority and, to a degree, article 6 authority.
I do not dismiss any of the arguments made this evening by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews)—I was about to say “Maidstone” but that was a Freudian slip. Both constituencies begin with “M” and both are in Kent; both are close to the very first constituency I fought, which was Tunbridge and Malling—[Interruption.] I lost. Indeed, I came third and took a pound off the Liberal candidate who was convinced it would be him, so at least I came away from the count with something.
I listened with great care to what my hon. and learned Friend the Member for Medway said, as I did to the other right hon. and hon. Members on both sides of the House. We have to pin down some serious issues—[Interruption.] I gently point out to those who say we should do it now that the matter is really quite complicated and the proposal is not absolutely necessary because, as everybody has accepted, the court already has an inherent power. Those who say we should do it now are also talking about the dangers of legislating too fast and without proper thought.
My right hon. Friend said that there was not enough time to introduce a statutory scheme under the Bill. The Bill will be subsumed into the law reform, victims and witnesses Bill in the next Session of Parliament. Will he give an indication—or, I hope, an undertaking—that he will seriously consider including a statutory scheme for an independent counsel on the witness anonymity programme, as it were, in that Bill, if not in the Bill that we are discussing tonight?
Yes, of course. My undertaking is that before we publish that Bill, I will indeed give active and urgent consideration to whether a scheme is feasible and necessary, together with my right hon. and learned Friend the Attorney-General and my hon. and learned Friend the Solicitor-General, others within the court system, the Crown Prosecution Service, defence lawyers and right hon. and hon. Members of the House. I do not for a second rule out such a scheme, but I want to get it right.
Will the Lord Chancellor go one stage further than that? The Bill is an uncovenanted bonus, in that it gives us months in which to see whether or not the system works, although I am not suggesting that that is a good way to make criminal justice legislation. Will the Lord Chancellor consider indicating to the judiciary that in that interim period they should consider, in light of the cases that come before them, whether the existence of independent counsel would be of use to them? We could then be given some indication of the answer, possibly through the Lord Chief Justice, when the Bill comes back before the House.
Yes, that is a very sensible suggestion; I will do that. I do not know whether the possibility of courts appointing independent counsel in such cases is less well known than it should be. I am quite clear that it will become better known, not least as a result of these debates, and also through efforts that I will make. That certainly will be factored into the work of the Crown Prosecution Service.
There are issues that we need to consider very carefully to get the measures right. First, there is the question of the kind of witness anonymity order to which a power in respect of special counsel would apply. My hon. Friend the Member for Hendon believes that, in practice, use of the power would be confined to so-called civilian cases, in which civilians—not police officers or intelligence officers—were witnesses to really awful crimes. Some would be innocent bystanders, and some would be far from being innocent bystanders. We need to consider whether to exclude altogether, or provide a presumption against, such special counsel ever being applied for where undercover police officers are used—there are 40 such cases indicated in the CPS’s current analysis—or in the case of undercover test purchases; there are currently 290 such cases. We have to pin the matter down before we come through with a legislative scheme. The facility should certainly not be available in the case of test purchases, and probably not in the case of undercover police officers, but we have to look very carefully at the circumstances.
There was debate—and, frankly, uncertainty—about the exact role of special counsel. The hon. and learned Member for Torridge and West Devon (Mr. Cox) asked the hon. Member for Cambridge (David Howarth) some really pertinent questions on the subject, and they remain unanswered. They are not really questions that can be answered in the Chamber. We have to think very carefully about them.
The hon. Member for Cambridge said that the cost of special counsel, which would be considerable if such counsel were used extensively, would be lower than the cost of convictions being aborted, the implication being that the guilty would walk free. He would be right, if those circumstances came about, but as the Crown Prosecution Service, which pays for special counsel, has a limited budget, voted by the House, we need to have an idea of the potential cost, not least given that special counsel are not used on that many occasions. There is also a practical matter: the number of counsel considered qualified to act as special counsel is fewer than 20. That is really important, too.
I think that my right hon. Friend is in danger of mixing up the special advocate process with the independent counsel process that we are discussing. Special advocates are limited in number because they have to be security-cleared. They perform a different function. Perhaps independent counsel do not have to have the same level of clearance, particularly if we are talking about civilian cases, not undercover or secret service cases. Those are the ones for which security clearance is needed, not the ordinary, bog-standard criminal trial.
I was doing my best not to confuse myself, and I hope that I did not do so on that occasion. We can continue this discussion outside the House, because the hon. Member for Mid-Sussex (Mr. Soames)—
Wants his dinner.
Yes, and it is always dangerous to keep him away from his dinner, so I commend the amendments in my name.
On amendment No. 35, we have heard that clause 3(2) is not fit for purpose. It tries to deal with too many different sorts of cases. It tries to deal with cases in which the witness does not want information to be passed to the police; cases where the same person is effectively witness for the prosecution and witness for the defence; and cases where the witness is afraid of the other defendants. That confirms my view that the obligation in the clause goes too far. The Government could well think about the clause again and redraft it, but at the moment it seems to be entirely badly drafted.
I accept the offer from the official Opposition to vote for our amendment on the grounds that, if it were carried, the only plausible way out of the situation—and I think that it is the only plausible way anyway—would be to adopt the independent counsel system. It is on that issue that most of the debate has concentrated. Having heard the hon. and learned Member for Medway (Mr. Marshall-Andrews), the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the hon. Member for Wolverhampton, South-West (Rob Marris) and other contributors, I believe that there is an overwhelming case for using that institution. The Lord Chancellor said that it was no guarantee that cases would be able to proceed that would otherwise not be able to proceed, because in the Davis case, at a late stage, there was an attempt to use special counsel. However, that was not the perfect use of an institution that did not have any statutory basis, and there was a lack of clarity about how it would be used. That makes it all the more important that it should be given a statutory basis.
Nevertheless, the argument is not that independent counsel would guarantee better results, but that it would simply make it less likely that cases that would not otherwise go ahead would disappear from the list. All the arguments effectively come down to time. There is not enough time to get this right, but if we do not do anything, it is quite possible that we will make the situation worse. The Lord Chancellor’s argument came down to saying that doing nothing can have no consequences, whereas doing something always has bad consequences. With that in mind, we should vote on amendment No. 35.
Question put, That the amendment be made:—
Amendments made: No. 40, page 2, line 26, leave out ‘the application’ and insert
‘an application under this section’.
No. 41, line 27, at end insert—
‘(3) The court must give every party to the proceedings the opportunity to be heard on an application under this section.
(4) But subsection (3) does not prevent the court from hearing one or more parties in the absence of a defendant and his or her legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case.’.—[Mr. Watts.]
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4
Conditions for making order
I beg to move amendment No. 3, in page 2, line 31, leave out ‘satisfied’ and insert ‘sure’.
With this it will be convenient to discuss the following amendments:
No. 4, page 2, line 31, leave out ‘C’ and insert ‘D’.
No. 21, page 2, line 34, leave out ‘safety of the witness or another person’ and insert
‘witness or another person from death or serious injury.’.
No. 5, page 2, line 35, leave out from ‘property’ to end of line 38.
No. 6, page 2, line 39, leave out subsection (4) and insert—
‘(4) Condition B is that the making of the witness anonymity order would not deprive the defendant of a fair trial.’.
No. 7, page 3, line 1, after ‘not’, insert
‘, and could not reasonably be expected to,’.
No. 8, page 3, line 1, at end insert—
‘(5A) Condition D is that there is no reason to believe that the witness has a motive or a tendency to be dishonest, having regard to the circumstances of the case and (where applicable) to the witness’s previous convictions or the witness’s relationship with the accused or any associates of the accused, and to any other consideration that may be relevant to that issue that the court may think appropriate.’.
No. 22, page 3, line 3, leave out from ‘must’ to end of line 4 and insert
‘assess the reasonableness of any fear alleged on the part of the witness or another person.’.
No. 23, page 3, line 5, after second ‘or’, insert ‘serious’.
No. 17, page 3, line 5, leave out from ‘injury’ to the end of line 6.
No. 32, page 3, line 6, leave out ‘property’ and insert
‘his property, or the property of a close relative of his’.
No. 31, page 3, line 6, at end insert ‘or serious financial loss’.
No. 9, in clause 5, page 3, line 9, leave out ‘C’ and insert ‘D’.
No. 11, page 3, line 22, leave out paragraph (d).
I rise to speak—I hope fairly briefly—to amendments Nos. 3 to 8, which stand in my name. I shall take the Committee of the whole House through them swiftly. Amendment No. 3 would substitute “sure” for “satisfied”. May I explain why? It seems right that the standard of proof required to satisfy the conditions should be the criminal standard—beyond reasonable doubt. I know that the phrase “is satisfied” is often used in legislation, but standing by itself it does not have a clear meaning. The word “sure” does have a clear meaning. I tried to make precisely the same substitution in the Counter-Terrorism Bill, but that was met by the argument that the word “sure” is not readily recognised in statutory language and that the courts gave a fairly clear interpretation to the word “satisfied”. However, that argument is not correct.
The Committee will remember a Court of Appeal decision in the case of Davies—that name is indeed a coincidence—this year. It was reported in The Times of 19 May. The Court of Appeal was required to adjudicate on whether a court, when setting a sentence in a homicide case, had to be satisfied beyond reasonable doubt or on the balance of probabilities about the existence of aggravating factors. In other words, notwithstanding the fact that the word “satisfied” is well known to the courts, the Court of Appeal was asked to define what it meant in that context. Given that, we should use language that makes our meaning clear, and our meaning should be that the court is satisfied beyond reasonable doubt—hence the word “sure” in this context.
To bolster his argument as he sums up to the jury, the judge tells them that they should come to a conclusion about which they are sure; the judge does not say that they should be satisfied beyond reasonable doubt any more. That reinforces the right hon. and learned Gentleman’s argument.
I believe in using language that says exactly what is meant. The danger is that the word “satisfied” will result in further litigation down the track when the Court of Appeal is asked to determine by what standard the court must be satisfied—hence the suggestion that we should use “sure”, which at least makes the point absolutely plain.
Amendment No. 5 would delete clause 4(3)(b). It goes a little further than I should have done; I am perfectly willing to accept that in respect of undercover officers and so on there is a case for protecting the identity of the witnesses. However, the language used in paragraph (b) goes far beyond that and erects the concept of the public interest, damage to the state and this and that to such a point that I can see the Crown seeking to shelter a whole lot of nefarious activities behind the rubric of the paragraph.
I shall finish my point, then of course I shall give way.
I would like to confine anonymity protection to a narrow class; I certainly accept that undercover officers come into that class. Perhaps another class of individuals should be included, but the burden rests on the Solicitor-General to make the case.
Will my right hon. and learned Friend give way?
I shall give way first to the hon. Member for Oxford, West and Abingdon (Dr. Harris).
The right hon. and learned Gentleman will be supported in his argument that the paragraph should be narrower, rather than deleted, by what happened in the Joint Committee on Human Rights this afternoon. I asked Sir Ken Macdonald, the Director of Public Prosecutions, whether he thought that the provision that the right hon. and learned Gentleman seeks to delete in the public interest covered more than, as the organisation Justice has put it, undercover agents—police and other agents—and their ability to go about their work. He did not think that it covered more than that; at least, he did not offer any other factor. In fairness to him, I should say that he did not argue that the provision was too broad. However, I put it to the Committee that it is too broad if it can be narrowed and if, according to the DPP, nothing else needs to be captured.
I am grateful to the hon. Gentleman. If there is a requirement other than to protect undercover agents and officers, it is for the Crown to establish the case. At the moment, the provision is widely drawn and the Crown has not made the case.
I propose to my right hon. and learned Friend an example from my own experience. In a case involving the alleged export of a nuclear firing system to Iraq in the early 1990s, the identity of a very senior nuclear weapons designer was deemed by the Old Bailey judge to be an issue to be withheld from the defence. In some circumstances, it may be in the public interest for the identity of somebody of great seniority and significance to the state, such as the designer of a nuclear weapon for this country, to be concealed, although that person’s expertise is required in a criminal case.
My hon. and learned Friend makes a perfectly sound point and a good case. However, the language of subsection (3) goes further:
“in order to prevent real harm to the public interest”.
Then we come to the identity of particular people or otherwise. I am merely saying that the language of the subsection goes very wide. We should be slow to give immunities of that kind. It is for the Crown to prove its case, so let it do so. The burden rests on the Solicitor-General to satisfy the criterion that there is a good cause.
Amendment No. 6 would amend condition B to reinforce the principle that the trial must be fair. The Government’s drafting is slightly flaccid in that it merely requires the court to be satisfied that the order is
“consistent with…a fair trial”.
I want to elevate the bar so that the court must be satisfied that the defendant is not deprived of a fair trial. This is modelled on the New Zealand legislation and goes higher than the Government’s drafting in protecting the defendant, which is what I want to do.
Amendment No. 7 asserts that the witness’s refusal to testify could be reasonable. I can imagine a lot of circumstances where a witness does not want to testify: because, as the hon. Member for Hendon (Mr. Dismore) suggested, things have been put into their mind by police officers; because they do not want to be cross-examined by difficult counsel such as my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox); or because the situation is altogether difficult. We should legislate so that, first, the refusal to testify must be evidence-based; and, secondly, it must be reasonable when tested by the judge or by the special advocate. That is what I want to be done and what the amendment is designed to achieve.
Amendment No. 8 would insert a new condition, namely condition D. It would create another overarching condition—in effect, that there is no reason to doubt the credibility of the witness. The Bill as drafted provides that issues of credibility are relevant considerations in the making of the order, but that such an issue is not an overarching condition, as are conditions A, B and C. The issue of credibility should be an overarching condition, and that is the intention of condition D as contained in the amendment. I commend the amendments to the Committee.
I support, to some extent, the arguments of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), but I will concentrate mainly on the amendments tabled by Conservative Front Benchers.
Amendment No. 21 essentially seeks to redesign subsection (3), which deals with condition A. It would delete the words,
“safety of the witness or another person”,
and replace them with,
“witness or another person from death or serious injury.”
Our argument is that witness anonymity orders should be made only in cases where there is a genuine and substantial risk of very serious injury, and even death. The expression in the Bill—
“to protect the safety of the witness or another person”—
is too vague to allow the court to hold to that as a condition. No doubt the safety of the witness is encompassed within the risk of death or serious injury, but we suggest that the condition needs to be much higher.
On amendment No. 5, is not subsection (3)(b) simply another way of saying what is set out in condition C? I take the point of my right hon. and learned Friend the Member for Sleaford and North Hykeham about undercover police witnesses and so forth, but I would add that the provisions are pretty vaguely drawn. When we get to the point where the criminal law has to relay on expressions such as “or otherwise”, we have a degree of difficulty. Even in emergency legislation that is briefly considered, we should not put the criminal law in that position. Whichever way one looks at it, while it is necessary to prevent real harm to the public interest, whether the carrying on of activities in the public interest or the safety of someone carrying out such activities is affected, it seems entirely proper that the provisions should be much more specific and much clearer. As my right hon. and learned Friend said, the matter is covered by clause 5, “Relevant considerations”, in subsection (1)(a) and (b)—I am getting ahead of myself The matter is largely covered by condition C. The public interest should engage only in the most serious cases where risk of injury to the witness is concerned. I am not sure that that is clear in the drafting of the Bill.
Amendment No. 5 deals with clause 4(6). The provisions in question deal with property, and subsection (6) states:
“In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness
…(b) that there would be serious damage to property”.
I am getting ahead of myself again, because I am actually dealing with amendment No. 31 and the phrase “or serious financial loss”. That is probably an uncontroversial aspect. It may be that the court would hold that property includes financial assets, money and so on, but it may not. In order to be clear about that, the expression “or serious financial loss” should be added.
To return to amendment No. 5, I seek to leave out from—
From “property”.
Thank you very much. I am most grateful to the Solicitor-General. [Interruption.] I have argued that already. I am sorry; I am not being very sensible this evening.
I shall get right back on stream. I would now like to talk about amendment No. 22. This amendment does apply to clause 4(6), and it deals with the difference between an objective and a subjective test. We believe that the point at issue is whether the person who alleges anxiety should have a trump card that destroys the ability of others to resist the application.
Our courts are for all and are, and must be seen to be, impartial. The criminal law must do justice and ensure fairness. Of course opinions vary and the facts will be different in each case, but one of the bedrocks of our justice system is that our courts and judges must be dispassionate, disinterested and consistent in the application of the law to the facts of a given case. Objectivity is perhaps the one word that describes those imperatives. Any change to the law, judge made or by statute, must ensure that the application of the change is based objectively, rather than subjectively to suit one party or another.
When we discuss a statute that proposes parliamentary licence for the giving of anonymous evidence in criminal trials, we must be rigorous in ensuring that it is the judge—the arbitrator and guarantor of fairness under the law—who decides and assesses where the balance should lie between, on the one hand, the public and private interest that the defendant should be tried in open court on evidence that is properly and lawfully introduced into the trial and, on the other hand, both the competing private interest of a vital witness that he should be protected from death or serious injury when he performs his public duty to give evidence of a crime, and the public interest that serious criminals should be brought to justice.
That is not an easy task, but it is an essential one. Article 6 of the convention reminds us of our solemn duty to ensure fairness in our trials. Convenience for the police, the prosecuting authorities and the administration of the courts are not the passwords to justice. Therefore, we say that where a witness says that he believes that he will suffer harm if he gives evidence in open court without the protection of a witness anonymity order, his word alone is not enough. The court must decide. The witness cannot produce the ace of personal apprehension to trump the right of the citizen to a fair trial. The Bill as drafted tips the balance too much in favour of anonymity. That needs to be redressed.
The hon. and learned Gentleman’s amendment No. 22 proposes inserting the words
“assess the reasonableness of any fear alleged on the part of the witness or another person”
in clause 4(6). Is that because he does not believe that the “reasonable fear” that the clause as drafted refers to is an objective test—it seems to me that it is indeed an objective test for the court to decide—or because of the lack of a requirement for the court to assess it? I would have thought that in order to have regard to such a fear, one would have to assess it. I am therefore not convinced that his amendment adds anything, particularly if the Minister clarifies my understanding when she responds to the debate. Have I missed something in his argument?
I cannot tell what the hon. Gentleman may or may not have missed, but, as far as I am concerned, when the Bill says that the court
“must have regard (in particular) to any reasonable fear on the part of the witness”,
it is simply providing a non-exclusive list of things that the court must have regard to. The reasonable fear on the part of the witness might be a reasonable fear in the mind of that witness, but it is not necessarily a reasonable fear in the mind of an objective assessor. Someone can have a fear that is subjectively reasonable to the person with that apprehension, whereas a third party, coming from the outside and assessing it, may find that it is an honest fear, but not a reasonable one.
The hon. and learned Gentleman has hit the question. My reading of the provision in other statute is that the test is objective. The fear is not deemed reasonable because a witness is nervous; rather, there is an objective test of whether the fear of that witness under the circumstances is, in the view of the court, reasonable. However, if the hon. and learned Gentleman, who is more learned than me by definition, feels that that is not clear enough—I think that he is saying that in his amendment—perhaps the Minister can provide some clarity in her response and make it clear that the test is an objective test, exactly as he wishes it to be.
It may be—we will find out. If the hon. and medical Gentleman—sometimes curative, but not always—understands what I am saying, which he might not, he may accept from me that clause 4(6) as drafted at least leaves an ambiguity over the test to which the court must have regard.
I tend to agree with the hon. Member for Oxford, West and Abingdon (Dr. Harris) that the test is objective. I do not think the word “reasonable” can be interpreted in any other way. However, that is combined with the requirement for the court to ensure that the anonymity measures are necessary. It is a pretty absolute requirement for the court to be sure that what it is doing is necessary in the light of the objective “reasonable” underlying fear. That can be contrasted with the completely different language in some of the provisions on the self-defence beliefs, which is extremely subjective.
I disagree with the hon. Gentleman’s final point. I think he is confused.
Surely the problem is that condition C requires the judge to be satisfied that the witness would not testify if the order were not made. The question for the judge to decide is what standards he should apply if a witness will not testify, and whether it is reasonable for him not to testify. Under subsection (6), regard must be had to any fear on his part that he will suffer death or injury.
I commend amendment No. 7, tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). If the wording of clause 4(5)(b) were replaced by the words “the witness could not reasonably be expected to testify if the order were not made,” we could import the objective element without needing to amend subsection (6). Others may have more sophisticated thoughts on the subject.
All those suggestions are helpful. Whereas I have sown confusion, it may well be that my hon. and learned Friend has shone some light. But in so far as I have shone confusion—
Shone confusion?
Shone confusion sounds like an Irish female pop singer, does it not? I must confess that my knowledge of Irish pop singers is very limited.
The confusion in my mind, which other Members may not share, concerns what the Government intend, at least by the words that they have used. Their intention may well be that the court should examine condition C objectively, but the impression I gain from subsection (6) is that although the witness may present what to him is a reasonable fear that he will suffer death or injury, that fear will turn out to be unreasonable when it is objectively considered.
It may well be that I have confused myself, and it may well be that I am leading myself up a blind alley, but it is significant that I may have done so. I confess that I am no longer a full-time practitioner at the Bar, still less at the criminal Bar, but it seems to me that the language used by the Government in subsection (6) is confusing enough to warrant clarification, which may be provided either by the Minister who responds to the debate or by the use of alternative wording in the Bill. In any event, I think it essential that we reinforce the need for objectivity. If the hon. Member for Oxford, West and Abingdon (Dr. Harris), the hon. Member for Hendon (Mr. Dismore) and my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) believe either that the subsection does not need to be adjusted or that it can be adjusted by means of amendment No. 7, we shall all go away happy, but the main point is that we need to be assured that it is the objective test with which we are concerned.
I hope that that deals with amendment No. 22. I want the court to have a positive duty to assess the reasonableness of any fear alleged on the part of the witness or another person, and I submit that that is not currently clear in the Bill.
Amendment No. 23 proposes the addition of the word “serious” before the word “injury”. That is self-explanatory, and it ties in with my other concerns in relation to clause 4(3). I have already dealt with—albeit accidentally—my amendment No. 31, which addresses the issue of serious financial loss. The amendments of my right hon. and learned Friend the Member for Sleaford and North Hykeham are more than worthy of the Government’s consideration, and I hope that the Minister will deal with them and with my amendments, and perhaps take up the issues that might, or might not, be raised by the hon. Member for Oxford, West and Abingdon.
I must say that I found the remarks by the hon. and learned Member for Harborough (Mr. Garnier) at the end of his contribution rather confusing, and I think he probably did, too, when he was reading them out.
I rise to speak primarily to my amendment No. 32, but before doing so I would like to address a couple of points that have been made. The hon. and learned Gentleman has got himself into a bit of a mess by trying to see the three conditions of A, B and C as disjunctive rather than conjunctive. If we put them together—I am thinking in particular of condition A, which cross-refers to clause 4(6)—things become a lot clearer. The provisions in subsection (6) are pretty objective in looking at the level of “reasonable fear”, and the word “necessary” makes it clear that the court will apply a high standard in relation to condition A both of itself and in terms of the cross-reference to subsection (6).
I disagree with the hon. and learned Gentleman about adding the word “serious” in front of “injury”, because how do we define “serious”? Are we talking about a grievous bodily harm level, because I suspect most people would be put off from giving evidence as a result of a rather lesser degree of violence? Common assault might, perhaps, create sufficient fear. We have to be realistic about the level of fear involved, and I certainly think it would be rather less than that of the grievous bodily harm level of injury. By putting all the elements of clause 4 together, the way it is phrased leaves it ultimately to the judge to use his good sense to make the decision on the evidence put before him.
My main concern is the question of property. I take issue with the hon. and learned Gentleman on trying to extend the risk to property to include financial loss, because that could be compensated by giving money back. I do not think people can realistically be seen to be fearful of financial loss in these circumstances.
I do see the force of the argument in relation to property, however, but I raise the issue primarily because of what was said about the New Zealand provisions, which the Bill mirrors in relation to the phrasing of the issue as it relates to property. I believe the New Zealand system to be preferable to ours and, unlike here, in New Zealand the advice on compatibility given by the Attorney-General is published. He raised the question of whether the risk of harm to property would be acceptable in international jurisprudence. He particularly drew attention to the fact that physical harm to the person was clearly included, but he went on to say:
“Having regard to the approach of the European Court to these matters generally, if faced with an anonymity order made on the basis of risk of damage to property only, it is highly likely that the court would find that the accused’s convention rights were breached.”
He said in conclusion that whereas it would be an exceptional case for the risk of property damage without any accompanying risk to persons to be the basis of a witness anonymity order,
“in most cases there will need to be some kind of risk to persons for the damage to property to be serious.”
If that analysis is right, it calls into question the way in which the Bill is currently phrased. We put this to the Director of Public Prosecutions earlier today, and he disagreed with that analysis. He gave an example, saying, “Well, what happens if I’m told by an associate of the suspect that my house will be fire-bombed?” That may or may not raise the risk of injury to person as well, but it certainly would be a very real threat in relation to property, and I think we ought to be able to take that into account.
I do not think that that is the best argument. As the hon. Gentleman knows, in a case such as the Attorney-General of New Zealand had in mind, there would be some risk to persons for the damage to property to be serious, and fire-bombing a residence clearly contains that risk. So the question—this also relates to my amendment—is whether damage to property alone, without risk to person, is sufficient. I do not know what that might be, but perhaps the hon. Gentleman can come up with an example.
I was about to make that point. I think that I just said that if a house is fire-bombed, there would clearly be a risk to person anyway. However, let us suppose that there was a threat to torch a car. My car is not worth a great deal, but some people’s are. Suppose that the car in question is worth £5,000 or £10,000. It is not just a question of buying a new car—there is all the inconvenience that goes with it, and the fear that that threat creates. There is an argument for saying that threat to property ought to be included in the Bill. My amendment, however, attempts to limit that a little by specifying that it should be the property of the witness or a close relative. That might help to square the circle to a degree by reducing the very broad nature of the test currently before us.
I hope that my hon. Friend the Minister will address this issue when she responds and bear in mind the points that the New Zealand Attorney-General made in his published advice. It is a pity that advice on compatibility is not published here, because that would make our job an awful lot easier.
I am pleased to have the opportunity to address the Committee. I had an amendment in the previous group, but given that it was subsumed entirely in amendments pre-tabled through a feat of nimbleness, by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), of which I am not capable in reaching the Public Bill Office—
It is called a fax machine.
As a result of that, I was able to fulfil another engagement and leave it to him to put the case, as I know he did.
On this group of amendments, the hon. Member for Hendon (Mr. Dismore) made the preamble that I wished to make about the comparison with New Zealand and serious damage to property. There is a published opinion on the Strasbourg jurisprudence, which we did not get on this issue from the otherwise pretty comprehensive opinion of Lord Mance in the Davis case. However, the key question, which is probably best dealt with by my amendment No. 17—it would delete subsection (6)(b), rather than only addressing clause 4(3)(a)—is whether the phrase “serious damage to property” is appropriate. Serious damage to property might not necessarily lead to serious financial loss.
The hon. Gentleman made an interesting point about serious financial loss being recompensed. I would have thought that insurance applies in most cases of damage to property, such as torching his car or, indeed, a warehouse, which is clearly not a residence and therefore would not be caught by the provision on risk of injury or death to person. I urge the Minister and the House of Lords to consider modifying the property provision. It could say, “Where there would be serious damage to property, leading to serious financial loss”, which implies, I think, financial loss not otherwise compensated for through insurance. If the phrase is left as “serious financial loss”, it could apply to uncompensated time spent in court by witnesses who are no longer able to work because they have been summoned to give evidence.
Will the hon. Gentleman give me an example—I am looking at clause 4(6)(b)—of “serious damage to property” that does not involve a serious financial loss? Is he thinking of the destruction of a derelict building, or does he have something else in mind?
I am not an expert in this area, and I am warned by my hon. Friend the Member for Cambridge (David Howarth) that tort law has a lot to say on it. However, I would have thought that if something is insured and one knows that it is, that is not going to lead to serious financial loss, although it might lead to other losses and inconvenience. I do not know if the question of whether the financial loss is serious is dealt with after an insurance claim, or otherwise.
But surely public policy cannot allow a person who wishes to intimidate a witness out of giving evidence to get away with it on the basis that an insurance company would take the hit? We must accept loss wherever it is, and the fact that the owner of the property is covered by insurance is not a relevant consideration.
I think that it is, because we have to draw the line on threats somewhere. Public policy perhaps should not distinguish between something that is listed in the Bill and something that is not. For example, financial loss, intimidation and serious damage to property are not listed, but unless there is an exhaustive list, public policy will have to draw a line somewhere. The overall impact on the person—the coercive nature of what is happening—is the critical factor, and that should be borne in mind. I have made my point about my view and I started from the position of the hon. and learned Member for Harborough on subsection (6) being objective. We await the Minister’s view on that.
The issue of real harm to the public interest was introduced by the right hon. and learned Member for Sleaford and North Hykeham, and the question was whether subsection (3)(b) is too broad. My understanding is that it is intended to cover the ability of undercover agents to be safe and to continue their work. It may also have something to do with national security issues. I have been unable to identify other matters that the provision is designed to cover. The understanding of the issue of real harm to the public interest might be broader—as the other words are in parentheses—in the sense that it is used with respect to public interest immunity. It is much broader than national security and the ability of undercover agents to do their work.
I am supported in that view by representations from Justice, which reminded us of the citing by Lord Mance in his opinion of the recommendations of the Committee of Ministers of the Council of Europe. It stated:
“Anonymity should only be granted when the competent judicial authority, after hearing the parties, finds that…the life or freedom of the person involved is seriously threatened or, in the case of an undercover agent, his/her potential to work in the future is seriously threatened.”
That is an alternative wording.
Liberty is also concerned that the provision is rather wide. The Bar Council, in its representations on this point, felt that the public interest category should be narrow and limited to serious concerns such as threats to national security or prejudice to a serious criminal investigation. It suggests that the wording should reflect a real risk of serious harm to the public interest, such as a threat to national security or prejudice to an ongoing investigation into serious crime.
I put it to the Minister that a combination of those wordings might be reassuring to policy makers who fear that the provision might be read rather too widely. The more I examined clause 4—I started from a sceptical position—the more I was pleased with how strict it is, with the exceptions that I have mentioned, especially backed by the Government’s amendment to clause 5.
I shall be interested to hear from the Minister about the points that I have raised.
I have not tabled any of the amendments in this group, but I want to make a couple of comments on some of them. I commend the lead amendment, amendment No. 3. The word “satisfied” is simply half a test—one can be satisfied on the balance of probability, on the preponderance of evidence or on some other basis. The question for the Government is whether they intend to leave the second half of the phrase in the hands of the courts, which is one possible approach, or whether they intend something else. That phrase needs to be cleaned up.
Secondly, amendment No. 5, which concerns the public interest test, seems to leave the clause too broadly drafted. Undercover operations are specifically dealt with in New Zealand statute as undercover operations. In any case, the exposure of most undercover operations would endanger the safety of those operatives. We are looking at the exceptional cases where revelations would endanger undercover agents when what they were trying to do was to prevent serious crime that was not physically dangerous to anyone else, or to them if it was revealed who they were. There is probably therefore some need for a clause, but not that one. It needs to be more narrowly drawn.
On amendment No. 6, I see the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). His draft could be construed as more narrow. It is certainly what the New Zealand statute says, and for that reason it has an advantage. The distinction seems to be very fine. I could see a circumstance in which one might even do it the other way around. However, I will be interested to hear what the Minister says on that.
I am not certain about amendments Nos. 8 and 4, which are about making credibility a condition rather than a factor. Credibility appears to me to be a matter of degree rather than an on/off matter. What would happen in a case where there was some doubt about credibility but also corroboration? For that reason, it is probably better as a factor than as a condition, but again I would be interested to hear what the Minister has to say about it.
On the Conservative amendment No. 21, which would put in “death or serious injury” rather than “safety”, I am unsure whether I agree with the point made by the hon. Member for Hendon (Mr. Dismore) about “serious” being a cause of confusion. Indeed, that word might offer some advantage. However, there is a question about somebody who is threatened with abduction. Is that a matter of their safety, whether or not they are threatened with an injury or an assault? There is some argument for the Government’s draft as it is —[Interruption.] The hon. and learned Member for Harborough (Mr. Garnier) says that there are grounds for both, and that implies some sort of redraft to ensure that both are included.
On amendment No. 22, which is about reasonableness, I am convinced by the argument made by the hon. Member for Hendon. Clause 4(6) plainly refers back to condition A and to nothing else. In so far as it is an objective or subjective test, it is about any reasonable fear. To decide whether a fear is reasonable, one has to assess the reasonableness of the fears. I do not see what would be added by the amendment.
The first two lines of clause 4(6) state:
“In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard…to any reasonable fear”,
whereas subsection (3)(a) states that the measures to be specified in the order are to be necessary
“in order to protect the safety of the witness or another person or to prevent any serious damage to property”.
That is manifestly an objective test. How, in applying an objective test, is it necessary to protect that person’s safety? Does one apply what may be the subjective test of fear, even if it is reasonable? The measure is either necessary for safety or it is not. The reasonable fear seems irrelevant.
That is a better point, because courts are being asked to judge fear as a way of helping to judge safety. I do not want to take on the role of the Minister, but one answer would be that fear is not the only factor. There are both objective and subjective elements to safety, and fear is a more subjective part than the clause as a whole covers. I remember spending 20 years of teaching law telling my students not to use the words “objective” and “subjective” until they were at least third-years, because they are inherently confusing.
May I line myself up for an undergraduate bashing from the hon. Gentleman? I do not want to destroy his argument, but to follow on from what my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) said about the words “any reasonable fear”, is there not a difficulty in the use of the word “reasonable”? It imports subjectivity. Would it not be safer for us to use a term such as “honestly held fear” or “honestly apprehended fear”, which would be plainly and honestly subjective? The court could then subjectively assess the honesty or reasonableness of that fear.
I think that it will work by the court taking the witness’s set of fears and eliminating the unreasonable ones. It will then take the reasonable fears that are left and assess them against what clause 4(3) says about safety. I think that that is what it means, but the Government might have to examine this debate and decide whether it needs some adjustment.
I only did two years of academic law study—I did not get to the third year. Does the hon. Gentleman see the test in clause 4(6) about
“reasonable fear on the part of the witness”
as a subjective or an objective test, or an unholy mixture of the two? If, as I suspect, it is the last of those, how does that mixture play out? I confess that I did not quite understand what he was saying about taking some reasonableness, looking at what we have left over, doubling the number we first thought of and all that.
Fear is inherently an internal state. Some fears can be judged by others to be reasonable and some to be unreasonable, and the use of the word “subjective” is part of the problem, which is why it is probably better avoided. Once a court has decided what a witness’s internal state is and how reasonable it is, the question is how it uses that information to judge safety. However, safety itself can plausibly have objective and subjective elements, because it is both an internal feeling and an external state. Some further drafting work on the clause might well be needed.
I do not want to comment on amendment No. 31, except to say that those of us who have spent many years trying to work out the difference between property damage, financial loss and pure economic loss would not want the term “financial loss” to be used in statute without further definition.
I turn finally to amendment No. 17, tabled by my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris), which would remove the reference to property damage. Usually, the threat of serious property damage such as arson, or even the threat to the hon. Member for Hendon’s car, would carry some threat of personal injury, but not necessarily. As my hon. Friend said, the question is what cases are envisaged in which it would not carry that threat, which would mean that something is added by the reference in the clause to “serious damage to property”. It would have to be something like a threat to burn down a lock-up shop at night when the witness would not be there.
What are we trying to get at here? Is that enough of a reasonable fear to justify making an anonymity order? The clause lacks a test to decide whether the threat is serious enough. Whether injury is threatened to property or the person is not the most important matter.
Ultimately, condition C is the test to determine the seriousness of a threat. It asks whether
“it is necessary to make the order”
to ensure that “the witness should testify”. The importance of the evidence is then material, and the next question—whether the witness will turn up—is addressed by my amendment No. 7.
That is a good point. The question is whether the degree of coercion is great enough to justify the order, and that is what condition C in particular is trying to capture. The right hon. and learned Gentleman is right that his amendment on that point would change the nature of that clause in an interesting and perhaps useful way.
Finally, amendment No. 32, in the name of the hon. Member for Hendon, deals with the property of the witness or a close relative. I do not think that the property condition in its unamended form can be retained but, if it were retained, the amendment would be an improvement.
We have had an extensive debate on this group of amendments. At times it has been confusing, at others illuminating, but all the amendments would change, in one way or another, the conditions for making the witness anonymity order set out in clause 4.
As the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) explained in his commendably succinct remarks, amendment No. 3 would require the court to be “sure”, rather than “satisfied”, that the conditions for making a witness anonymity order were met. In many areas of criminal legislation, a court is required to be satisfied that the applicable conditions are met before an order is made. The right hon. and learned Gentleman said that the word “satisfied” did not have a clear meaning, and he tried to anticipate the arguments that I might use, on the basis that he had heard them before in other contexts. He thought that I might say that the word did have a clear meaning, and so he produced the case that he had spotted in a bid to trump that argument.
Fortunately, I was not going to focus on that approach, so in a sense the right hon. and learned Gentleman did his research for nothing. However, people have mulled over the various conditions in clause 4 during the debate, and it is important to remember the statutory framework that we are setting out. In the past, judges have granted orders on the basis of what they thought was their power in common law. They used their common sense to assess the facts of the case in front of them, but it is inherently difficult to legislate for the common sense of judges. That is one reason why there has been no statutory provision in respect of order making in the past, but an examination of the overarching framework might help us to deal with some of the points made in the amendments.
All three conditions for a witness anonymity order must be satisfied: they are conjunctive rather than disjunctive, as my hon. Friend the Member for Hendon (Mr. Dismore) noted. An order must be necessary. It must—this is tremendously important—have regard to all the circumstances consistent with the defendant getting a fair trial. Finally, it must be in the interests of justice. The right hon. and learned Member for Sleaford and North Hykeham was right to say, in response to the hon. Member for Cambridge (David Howarth), that in the interests of justice it is important that a witness with something to say about a case must be able to testify. The whole edifice of the Government’s proposals is designed to deal with the fear that might prevent him from doing so.
We had some exchanges about which fears are subjective and which objective. A witness who tells the prosecutor or the police that he is worried about having his house burned down is obviously expressing a subjective fear. He goes along and says, “I’m worried. I’m fearful because of where I live, and because of the person who I know is behind all this.” That is obviously subjective. The points made by the hon. Member for Oxford, West and Abingdon (Dr. Harris), by my hon. Friend the Member for Hendon (Mr. Dismore) and, in the early part of his remarks, by the hon. Member for Cambridge are correct.
We do not need to get too het up about which bit is subjective and which objective. The point here is that the judge will be empowered to make a common-sense judgment in any particular set of circumstances about whether the fear of a witness is reasonable. No sensible judge would make an anonymity order if a witness had a completely irrational fear and there was absolutely no chance of any danger to safety or risk of damage to property. He would have to be convinced that there was at least something to it. This is what we are trying to capture generally.
In respect of the point that the right hon. and learned Member for Sleaford and North Hykeham made about using the word “sure” rather than the word “satisfied”, the court is being asked to make a judgment about whether conditions A to C are satisfied. It is not finding on the facts, when a test according to the criminal standard of “beyond reasonable doubt” would be appropriate. In that sense, it is a concept that is relatively well known in the criminal law.
The judge has to say, “To what standard am I satisfied?”
He is making a common-sense assessment on the basis of the statutory framework that we are offering to him in lieu of the now no longer existing common-law good sense that he was applying before Davis. He is having a general look at the facts of the case and asking, “Does this seem reasonable? Am I satisfied?” I do not think that judges would find that unusual or alien to the way in which they do their job.
We need a clearer answer from the Minister in response to my right hon. and learned Friend’s question. Judges frequently say out loud, “I am satisfied to the criminal standard of proof,” about this, that or the other during an interlocutory application. I know that the Solicitor-General is nodding her head—
She is shaking it.
Moving her head. I am reasonably sure—I am satisfied—that the Solicitor-General was moving her head. Often the question will be asked during the course of argument before a judge, “What is the burden and what is the standard of proof?” I appreciate that many cases are not necessarily decided on the standard or burden of proof, but we are making criminal justice legislation here and it is incumbent on us not to rush this through simply because it is getting late. It is important that we lay out clearly to the courts how we expect them to apply the legislation.
The judge is not making a finding of fact that is germane to the outcome of the trial. He is deciding whether he ought to grant a witness anonymity order in the circumstances and the case before him. We are not seeking to turn this into some kind of mini-trial of everything before the judge gets on with the trial. He will use his common sense.
I have heard what hon. Members have said about some of this. I want to make some points on some of the amendments, but I am obviously not going to be able to satisfy the hon. and learned Member for Harborough (Mr. Garnier) about the tightness with which the provision is drawn. I understand if the hon. and learned Gentleman is not satisfied, but I hope that he will allow me to go on and deal with some of the other amendments.
Amendment No. 21, which is one of those tabled by the hon. and learned Member for Harborough, would change the first condition for granting a witness anonymity order from one based on the
“safety of the witness or another person”
to one based on the risk of “death or serious injury”. The main impact of the change of the wording that he has proposed would be to require the court to decide if the risk of injury was serious enough to justify granting an order. Safety is a relatively broad concept—enough to cover any risk of harm to the witness—but the test with which the hon. and learned Gentleman proposes to replace the current wording appears to be inappropriate. It is undesirable for witnesses to be exposed to any risk of harm. However, whether the harm to which a witness is exposed in any particular set of circumstances in a particular case is sufficient to justify the making of an order has to be a matter for the court when it addresses the three conditions set out in the Bill and the framework that we seek to create for that purpose.
Amendment No. 5 would remove the second limb of the necessity test provided for under condition A—the prevention of real harm to the public interest, which was raised by a number of Members in their contributions to this part of the debate. I need to make it absolutely clear that the purpose of the wording is to capture circumstances in which the intelligence agencies, or, for example, the police or the Serious Organised Crime Agency, are doing their job. Many Members accepted that that was what the wording was getting at, but suggested that it was too wide. If it helps Members, I can say that those are the only circumstances intended; I am aware of no other circumstances, beyond national security and the undercover work of the police and relevant agencies, that this part of the Bill is meant to cover. I hope that helps in any Pepper v. Hart situation that we might run across. There is no other intention in that part of the Bill. The Strasbourg jurisprudence specifically mentioned the reuse of undercover agents as one of the purposes that might justify the grant of anonymity, so we are not outwith wider arrangements in other jurisdictions in that respect.
Amendment No. 6 would amend the fair trial test with the intention of ensuring—I think—that the defendant is not deprived of a fair trial. I think everybody would accept that that is overwhelmingly the most important purpose of the work we are doing in respect of the Bill, but we believe that the current wording already guarantees it. I know that the right hon. and learned Member for Sleaford and North Hykeham was not too keen on the wording of condition B, which he thought a bit bland. However, condition B has the merit, along with conditions A and C—all of which have to be met—of making it absolutely clear that for the anonymity order to be granted it has to be necessary in the interests of justice and consistent with the defendant receiving a fair trial. In addition, there are article 6 considerations. Although I realise that the right hon. and learned Gentleman is not too keen on the current wording, we believe that it does the job it is meant to do.
Amendment No. 7 would require the court to take into account before deciding whether it was necessary in the interests of justice to make an anonymity order not only the fact that a witness would not be prepared to testify without an order, but that they could not reasonably be expected to testify without an order. The additional reasonableness test is unnecessary because clause 5(2)(e) already requires the court to consider whether it is reasonably practicable to protect the witness’s identity by means other than a witness anonymity order.
On amendment No. 8, there was some debate about the witness’s credibility, which is currently a consideration that the judge should have in mind when deciding whether the three conditions are met before granting the order. The right hon. and learned Gentleman made it clear that the amendment would elevate that consideration to another condition, and move it up a tier in the framework. The amendment is unnecessary because it goes into the question of whether the defendant will have a fair trial, which is already secured by condition B for the making of an order as set out in clause 4(4). The high-level principles of the conditions—necessity, fairness of trial and the interests of justice—are for the court to apply, whereas the credibility of a witness is an aspect in assessing to what extent the trial is fair in the circumstances of the case before the judge who is making the decision. We think that it sits correctly among considerations, rather than being important enough to be a condition, although I understand from the right hon. and learned Gentleman’s remarks that he was trying to emphasise the importance of a fair trial. We do not disagree about the importance of a fair trial, but we think that the current framework achieves it.
Amendments Nos. 17, 22, 23, 31 and 32 would all amend clause 4(6), about which there has been a bit of debate. It sets out the matters to which the court is required to have regard in deciding whether the measures in the order are necessary for the purposes mentioned in subsection (3)(a)—in other words, to protect the safety of the witness or another person, or to prevent serious damage to property.
I wonder whether the Minister could answer a question for me. How does the “reasonable fear” of injury relate to the decision that the judge must make under clause 4(3) about the necessity of protecting the witness’s safety? Either the measures are necessary to protect their safety or they are not. Whether I have a “reasonable fear” is not relevant to whether the measures are necessary to protect my safety, is it?
Before a judge can make an order under the scheme, he will have to be of the opinion that whatever measures are specified in the order—they may vary—are necessary, that the order is commensurate with the defendant having a fair trial, and that the order is in the interests of justice.
I am talking about safety.
Yes. The order may be in the interests of justice if the witness opines that he will not testify because he fears either for—
The hon. and learned Gentleman is not letting me finish.
Perhaps I can propose a helpful solution. It may be that what is meant in subsection (6) is whether the measures are necessary. Perhaps the “reasonable fear” relates to subsection (5) and whether
“the witness would not testify if the order were not made.”
Perhaps that is what “reasonable fear” relates to, and not whether the measures are necessary
“to protect the safety of the witness”.
I am certainly willing to go away, put a wet towel around my head and have another think about the issue.
I am not trying to be difficult.
I am sure that the hon. and learned Gentleman is not trying to be difficult; I have never met a lawyer who tried to be difficult.
Speak for yourself!
I always speak for myself. I am perfectly happy to go away and have a think about what the hon. and learned Member for Torridge and West Devon (Mr. Cox) says. I am not convinced that he is correct, but I am willing to take another look at what he has had to say.
Let me swiftly move through the other amendments. Amendment No. 22 would import into subsection (6) a requirement for the court to assess the reasonableness of the witness’s fear. I put it to the Committee that the objective is achieved just as effectively by the present wording. It is not clear why fear on the part of another person needs to be added, although my hon. Friend the Member for Hendon made some remarks about his amendment. The risk of harm to another is already caught if it causes fear to the witness. Obviously, the witness may feel that family members would be threatened if they gave evidence. Realistically, if a witness’s spouse is in fear, the witness himself or herself might share some of that fear for another family member.
The significance of fear in this context is the extent to which it inhibits the giving of evidence; it does not relate to whether there is cause for fear, objectively or subjectively. Fear that is experienced only by a third party, and not by the witness, is completely immaterial to whether an anonymity order ought to be granted in a particular case.
One or two people have queried whether the reference to serious property damage in subsection (6) ought to be there. The protection of property is not the reason for the provision. It is there because a risk of serious damage would in most cases be likely to have an effect on the witness’s safety, and certainly on his perception of his safety. That may in turn affect the witness’s willingness to give evidence. For that reason, the subsection as drafted covers a reasonable fear on the part of the witness that there would be serious damage to property, as well as fear that he or another would suffer death or injury.
Amendment No. 17 would remove the reference to the requirement for the court to have regard to the witness’s fear that there would be serious property damage. To the extent that such a fear is likely to have a bearing on the witness’s willingness to give evidence, we believe that it is appropriate for the court to take that into account when deciding whether an order is necessary.
There has been some discussion of the opinion of the Attorney-General of New Zealand, who considered the compatibility of New Zealand’s “fair trial” provision in that country’s Evidence Act 2006 with the corresponding provision in clause 4(3)(a) of the Bill. He concluded that
“it would be an exceptional case where the risk of property damage, without any accompanying risk to persons, could be the basis for a witness anonymity order”.
We agree that the number of cases in which that would be appropriate might be limited, and that the appropriateness would be assessed by the courts on a case-by-case basis, but the vital point is that the Attorney- General of New Zealand did not suggest that the provision itself was incompatible with a fair trial. We are satisfied that the provision is compatible with convention requirements.
Some cases involve the safety of the witness or another person, and others will involve serious damage to property and engage the safety of the witness or another person. There may be others in which the risk is to property only—for example, threats to blow up the family home—and the risk is destitution for the witness’s family, rather than physical injury, but that is not a reason to remove those threats completely from the coverage of anonymity orders. It is down to the judge’s discretion, on the facts at the end of the day, and that is how it ought to be.
Amendment No. 32 provides that the property mentioned in clause 4(6)(b) has to be the witness’s own property or that of a close relative, and my hon. Friend the Member for Hendon gave clear reasons for that. I understand his objective in requiring a close link between the property and the witness, but we are not persuaded that it is necessary, as it might prevent the clause from working properly. The condition is that the court is satisfied that the order is necessary to prevent serious damage to property, and the court must have regard to the witness’s fear that such serious damage would occur if he were identified.
I have just about managed to scoot through the amendments, and I hope that on that basis, the wording in the clause will be accepted.
Does Mr. Hogg wish to respond?
indicated dissent.
On a point of order, Sir Michael. We have less than a minute to deal with the rest of the business with which the Committee was tasked to deal. You will be invited to report that the House has considered the Bill in Committee, but clearly we will not have done so.
Order. I understand the point of order that the hon. and learned Gentleman is seeking to make, but first we must deal with the amendment.
It being six hours after the commencement of proceedings, The Chairman put forthwith the Question already proposed from the Chair, pursuant to Order [this day].
Amendment negatived.
The Chairman then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
Clause 4 ordered to stand part of the Bill.
Clause 5
Relevant Considerations
Amendment made: No. 42, page 3, line 18, at end insert—
‘(ba) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;’. —[Mr. Michael Foster.]
Clause 5, as amended, ordered to stand part of the Bill.
Clause 6
Discharge or variation of order
Amendment made: No. 43, page 3, line 35, leave out ‘section 4’ and insert ‘sections 4 and 5’.—[Mr. Michael Foster.]
Clause 6, as amended, ordered to stand part of the Bill.
Clause 7
Warning to jury
Amendment made: No. 44, page 4, line 2, after ‘indictment’, insert ‘with a jury’.—[Mr. Michael Foster.]
Clause 7, as amended, ordered to stand part of the Bill.
Clauses 8 to 14 ordered to stand part of the Bill.
New Clause 9
Expiry of power to make witness anonymity orders
‘(1) No witness anonymity order may be made under this Act after the relevant date.
(2) Subject to subsection (3) the relevant date is 31 December 2009.
(3) The Secretary of State may by order provide for the relevant date to be a date specified in the order that falls not more than 12 months after—
(a) 31 December 2009, or
(b) (if an order has already been made under this subsection) the date specified in the last order.
(4) Nothing in this section affects—
(a) the continuation in effect of a witness anonymity order made before the relevant date, or
(b) the power to discharge or vary such an order under section 6.
(5) An order under subsection (3)—
(a) is to be made by statutory instrument; and
(b) may not be made unless a draft of the instrument containing the order has been laid before and approved by a resolution of each House of Parliament.’. —[Mr. Straw.]
Brought up, read the First time, and added to the Bill.
Bill reported, with amendments; read the Third time, and passed.
On a point of order, Mr. Deputy Speaker. I apologise for getting ahead of myself and interrupting you earlier, but as you will know, paragraph 3 of the timetable motion states:
“On the conclusion of proceedings in Committee, the Chairman shall report the Bill to the House without putting any Question.”
That implies that we have considered the Bill in Committee as the Government intended. Perhaps we have done as the Government intended, but the meat of the Bill was clauses 4 and 5. We discussed clause 4 and its amendments, but clause 5 remains wholly undiscussed, as do the remaining clauses, new clauses and amendments.
I do not wish to repeat the arguments that were made at the beginning of the afternoon’s deliberations, and we all appreciate the need for some urgency. I also do not think that any of us can be accused of having filibustered or made lengthy arguments. Some, including myself, can justifiably be accused of not being entirely clear all the time, but it is fair to say that we in this House have not done ourselves any favours tonight, and it is ridiculous that we constantly have to ask the other place to correct the omissions that we make.
Through you, Mr. Deputy Speaker, I really do implore the Government to provide realistic timetable motions, if they are to have them at all. Nobody was going to stop the Bill or prevent the Government from getting their way; we all understood the need for the legislation. But to cramp us with a six-hour debate on a Bill of such importance, when so many issues needed to be discussed and the legislation was crying out for proper scrutiny, is not just a shame but a criminal waste of the powers of this House. Through you, Mr. Deputy Speaker, I urge the Government to behave themselves.
That is not, strictly speaking, a matter for the Chair to rule on, and many of the points that the hon. and learned Gentleman has made were made earlier in the day on the allocation of time motion. However, the points that he has made are firmly on the record.
Further to that point of order, Mr. Deputy Speaker.
No, no. I think that I can deal with it now. The points that the hon. and learned Member for Harborough (Mr. Garnier) has made are firmly on the record, and it will be for the House—all parts of the House—to digest them.
DELEGATED LEGISLATION
With permission, I shall put motions 5 to 9 together.
Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Delegated Legislation Committees),
Income tax
That the draft Alternative Finance Arrangements (Community Investment Tax Relief) Order 2008, which was laid before this House on 20th May, be approved.
Criminal law
That the draft Criminal Justice Act 1988 (Offensive Weapons) (Amendment No. 2) Order 2008, which was laid before this House on 4th June, be approved.
Limited liability partnerships
That the draft Small Limited Liability Partnerships (Accounts) Regulations 2008, which were laid before this House on 9th June, be approved.
That the draft Large and Medium-sized Limited Liability Partnerships (Accounts) Regulations 2008, which were laid before this House on 9th June, be approved.
That the draft Limited Liability Partnerships (Accounts and Audit) (Application of Companies Act 2006) Regulations 2008, which were laid before this House on 9th June, be approved.—[Mr. Michael Foster.]
Question agreed to.
Sittings of the house
Ordered,
That, on Tuesday 22nd July—
(1) the House shall meet at 11.30 a.m. and references to specific times in the Standing Orders of this House shall apply as if that day were a Wednesday;
(2) proceedings on the Motion for the adjournment of the House in the name of Ms Harriet Harman shall lapse at Six o’clock;
(3) the Speaker shall put the Questions necessary to dispose of proceedings on any Lords Amendments to the Crossrail Bill not later than one hour after their commencement; such proceedings may continue though opposed after the moment of interruption; and
(4) the Speaker shall not adjourn the House until—
(i) any Message from the Lords has been received; and
(ii) he has reported the Royal Assent to any Act agreed upon by both Houses.—[Mr. Michael Foster.]
petition
Smoking Ban
I have been asked to present this petition to the House on behalf of my constituent Mr. Ron Cattrall of Shrewsbury. He has secured 500 signatures, calling for a readjustment of the current laws on smoking in public places. These people believe that the current ban on smoking in pubs is unfair.
The petition states:
“The Petitioners therefore request that the House of Commons urges the Secretary of State for Health to allow for up to a twenty percent provision for smoking in pubs and bars that does not leave smokers exposed to the elements of the British winter.”
I voted for a ban on smoking in public places, but I felt a duty to present this petition on behalf of my constituents, who want the Government to look again at the total ban on smoking in public places.
Following is the full text of the petition:
[The Petition of those against the current laws on smoking tobacco,
Declares that the current ban on smoking in public places leaves smokers exposed to the elements of the British winter. Current laws force people to go outside when they smoke, potentially enduring harsh conditions such as rain, snow and extreme cold. The laws should be assessed so that certain venues, such as bars and pubs, are not subject to the same bans as other types of public places such as shops and restaurants. It is unfair to treat bars and pubs the same as other public places when it comes to smoking, as smoking tobacco is something people traditionally do in bars and pubs.
The Petitioners therefore request that the House of Commons urges the Secretary of State for Health to allow for up to a twenty percent provision for smoking in pubs and bars that does not leave smokers exposed to the elements of the British winter.
And the Petitioners remain, etc.]
[P000230]
Building Schools for the Future
Motion made, and Question proposed, That this House do now adjourn.—[Mr. Michael Foster.]
I feel a residual sense of guilt for keeping the Minister from his home at this time of night. However, I hope to provide a narrative that is sufficiently engaging for bedtime. Indeed, its subject is important—it is about a £45 billion investment of immense national and local importance. Before I go any further, I should like to thank the Minister and his officials for their helpful and quick responses to questions that I have asked on this subject; they have been most forthcoming and open in their approach. That is commendable, and it has certainly helped my understanding of the topic.
It is impossible to object to the Building Schools for the Future programme; after all, no one builds schools for the past. As a former teacher, I have experienced all manner of school buildings—sometimes with pleasure, at other times with distress. I have reached one conclusion: that new and refurbished buildings are neither a necessary nor a sufficient condition for educational progress. Great education can take place in ancient buildings; in fact, it does. Poor education can take place in the most modern buildings imaginable.
New build certainly helps education in most cases. It can be transformative. It makes pupils and staff feel more confident and valued and encourages educational progress and opportunity. That is why, traditionally, good local authorities have cared for their building stock and the learning environment that it provides. They often worry about whether they will have the resources to keep the stock that they feel pupils, staff and parents merit. That is what local authorities have always done.
However, what is unique about Building Schools for the Future—I mean in world terms; there is nothing else like it anywhere in the world—is that it is nationally driven, very centralised, time-limited and massively financed. It is an initiative that involves the attempt to replace, remodel or refurbish every secondary school in the country; I think that I am right that that is the ambition. The Children, Schools and Families Committee, the teachers’ unions, external commentators and I recognise and in some ways applaud that ambition. However, we also express legitimate concerns about some of the outcomes. I want to group my concerns under two headings: the local and the national.
First, I turn to the national concerns. The Children, Schools and Families Committee has expressed concern about whether the programme represents the best value for £45 billion of what will ultimately be taxpayers’ money. That question is fairly raised in the Committee’s report on the programme; I understand that it will revisit the topic in a forthcoming report. The question can be asked, because not all secondary schools are time-expired and semi-derelict. Many primary schools are older; obviously, the case could be made for them to be further up the queue. Furthermore, educational methodology and practice continue to change unpredictably over time. One thinks of the 1970s, when open-plan design was quite the thing, and of how many open-plan schools built in the 1970s acquired walls in the 1990s when educational trends and fashions in the post-Plowden age changed.
There are inherent dangers in building stock being all of an age. One thinks of the current problems of new towns: what is wrong with one house is normally wrong with the next house, and so on, for street after street. One thinks also of the 1970s and the splurge of buildings, commendable in their way, with flat roofs and wooden structures. They are now sadly dilapidated and look in far worse shape than buildings constructed in the immediate post-war age.
Nowadays, that is all underscored by the need to have buildings that are sustainable or carbon-neutral, in a world where building technology and material costs are changing rapidly and developing. There are inherent risks to doing it all in one fell swoop; that is not unproblematic. Anticipating the future never has been easy, but having just one go at it is risky compared with the more evolutionary and gradualist path.
I have other general concerns, about the nature of the long-term financial commitments, their transparency at the point of initiation and, under the private finance initiative, the scope for costly renegotiation at a later date. Recent Public Accounts Committee reports have evidenced fairly well how poor the public sector is at renegotiating effectively. That issue also crossed the mind of the Children, Schools and Families Committee, which raised it in its report. I have concerns about the lack of school autonomy; long-term commitments to manage services provided on a cross-authority basis may not, in the end, be the ideal scenario.
I have raised elsewhere—I will not do so here—the problem of some of the information and communications technology contracts that seem to cut out our small businesses. As the Minister is probably aware, I have had issues with Becta over that problem. Sometimes companies can lock schools into supply chains under licensed bondage that hinders innovation in school-based ICT. Paradoxically, some of these concerns are met by proceeding in a more measured, thought-through way. Perhaps that is what we will do in more financially stretched times.
It being Ten o’clock, the motion for the Adjournment of the House lapsed, without Question put.
Motion made, and Question proposed, That this House do now adjourn.—[Liz Blackman.]
The Department recently held a number of visioning events as part of a consultation on the next phase; I think that those concluded at around the start of July. I am not against visioning—it is good in its place—but visioning and caution together create a degree of uncertainty.
Let me illustrate that point by looking at my local Sefton schools, which no doubt the Minister has been briefed on prior to this occasion. They were asked to envision—to dream dreams—and that magically transformed itself into dramatic press publicity. The Liverpool Echo said:
“Five £25m superschools are set to be built in Sefton.
Education officials today released plans for the multi-million pound 2012 makeover of the borough’s high schools, which will almost certainly mean two closing down.
Speaking exclusively to the ECHO, officials said cash from the government’s Building Schools for the Future pot would be used to fund the transformation plan.
Liverpool and Knowsley councils are already using the money to create 21st century schools.
The state-of-the-art schools will have the latest computer facilities and retractable classrooms.
They will be open from morning to night so they can be used by the whole community…Today Sefton council’s cabinet member for children’s services…confirmed the plans would include a minimum £125m makeover of five schools.”
Tellingly, the paper also said:
“Sefton council is expected to get the government green light to enter a bid within the next few months and then begin the hunt for a contractor partner.”
Similarly, another newspaper, the Southport Visiter, said, under the headline, “Super-school to be built in Southport”:
“A £25m state-of-the-art superschool is set to be built in Southport, education officials have announced.
Plans have been drawn up to introduce five ‘21st century’ high schools across Sefton with one likely to open in Southport as soon as 2012…The new schools will educate upwards of 1,100 students, have the latest multimedia and computer facilities and will open from morning to night so they can be used by local residents.”
That interested me a lot, as it would obviously affect my constituency dramatically. However, when I scoured the council minutes for any reference to those plans, they shed little light on them. Councillors to whom I spoke knew little, if anything. People did not seem to know who had been consulted, how they had been consulted or what exactly they had been consulted on. What was to close and what was to stay open, and what was to change and what was not to change, was left unsaid. Long-term financial costs appeared to be missing. The only tangible thing that I could identify was that there had been an expression of interest from an earlier phase of Building Schools for the Future that could now be reiterated in October. The plan for new schools was all the more puzzling because falling rolls in Sefton had led to school closures, not to demands for increased capacity—although I accept, as most people would, that new building is often a way of making closure more palatable where it has to take place.
That tends to reinforce the concerns that were vividly expressed by the Select Committee on Education and Skills. I read its report with greater attention after I had seen the press publicity. It said:
“A regular theme in our evidence was that people involved in BSF, particularly at the school level, did not have sufficient time to think about what they wanted for their new school. The participation of teachers, other school staff and pupils in the planning process is vital to the success of school redevelopment projects, and this needs to be acknowledged by all those involved…Involving them in the earlier stages may require time, but will help to develop robust plans which will contribute to the success of the process.
There is a very strong argument that the initial ‘visioning’ phase should be lengthened.”
I accept that there is a kind of paradox, and as politicians, we are aware of it. On the one hand, it is desirable to involve all and sundry in visioning and in thinking bright, bold thoughts for the future. On the other hand, it is possible to set hares running, and fears of closure justifiably upset schools, parents and staff. If, at the end of the day, the capital is not forthcoming, or if the plans turn out to be widely opposed or hard to progress, public visioning just leads to pain.
On the other hand, private scheming—I use the phrase in its proper sense of thinking up schemes privately—can lead to the worse evil of general paranoia. In Sefton at the moment, we seem to have private scheming and public kite-flying. The Minister can help relieve that problem by telling us what is promised to Sefton. Is it capital credits or a private finance initiative? Is Sefton expected to get the green light, as the media are saying? What does the Department know of Sefton’s plans? Has it seen them? How much has it promised in response to those plans? What is likely to be the effect of the squeeze on public spending, which we can all see coming, on boroughs such as Sefton that have come late to this scheme, in the last few phases of its operation?
No one can be against Building Schools for the Future as an investment or an idea, but we can be against rushed-through plans, secrecy, a lack of financial clarity, uncertainty, financial dependence and unquantified costs. Those are things that it is probably worth being against, if we are in favour of investment in school building and refurbishment. Governments and local government historically find it easier to deliver infrastructure than educational improvement. That is the general conclusion that I have reached after many years of thinking about how we develop the education system. One thing that definitely hampers educational improvement is uncertainty and upheaval. Getting schools to run well is by no means easy; it is no mean trick. Disruption in school life, on the other hand, is relatively easy; it can be dealt with by something as simple and straightforward as the change of a headmaster. School systems, when they run well, need to be well looked after. What I would like the Minister to do in his response is lay out on a national and local basis—perhaps even to the level of what is happening in Sefton—where we are now, and what we can expect next.
I begin by congratulating the hon. Member for Southport (Dr. Pugh) on securing this important debate. Building Schools for the Future is the most significant and most exciting programme of public investment in schools for more than 50 years. I very much welcome the opportunity to discuss it before the House.
The hon. Gentleman mentioned that he had been a member of the teaching profession, and as a former teacher myself I can confirm that before 1997—and certainly before 1994 when I left the teaching profession—our school buildings were in an extremely poor state, after decades of neglect under previous Governments. I taught in some fairly dodgy buildings during my teaching career, spending a lot of it in temporary portakabins that regularly leaked in the winter. As someone who was born and brought up in a new town, I also understand his point about buildings that are all of the same vintage. I hope that I will be able to put his mind at rest a little during the debate.
The hon. Gentleman said that the provision of new and refurbished schools was neither a necessary nor sufficient condition for good education—I hope that I recall what he said correctly. Of course, that is the case. It is not enough just to have good buildings. As I hope to show, however, it can make a direct contribution to the education of young people when we improve buildings, and Building Schools for the Future is doing that already.
Since 1997, including before the current programme, we have taken decisive action about that lack of investment over many decades. We have increased capital investment sixfold in real terms, to £6.4 billion this year, and I do not think that we should apologise for that. Every community has benefited, with more than 1,000 newly built schools and 27,000 new or improved classrooms built—I checked my notes twice before accepting those figures. We have made a remarkable achievement over the past 10 years.
As the hon. Gentleman said, his constituency is in the local authority area of Sefton and currently falls within waves 10 to 12 of the Building Schools for the Future programme. Based on current plans, the transformation in his area is not due to begin until later in the programme. Given his remarks, perhaps he will feel reassured by that. He will also know that we are currently consulting on changes to the way we prioritise our investment. Later this year, we will invite all the authorities in waves 7 to 15 to revise their expressions of interest. Those revised expressions of interest will then be prioritised into a new national programme. The hon. Gentleman may therefore wish to encourage his local authority to start considering how to revise its expression of interest.
Sefton has not formally started in Building Schools for the Future, as the hon. Gentleman knows, but is constructively discussing its BSF plans with my Department. I confirm that the private finance initiative will be defined when school plans are firmed up, which will obviously take place in the near future. In the meantime, he will be aware that Sefton local authority and its schools will be receiving capital support of £55.5 million over the next three years. In addition, every typical unmodernised secondary school of 1,000 pupils will receive £113,000 to spend as it wishes on buildings and information and communications technology, with a typical unmodernised primary school receiving £34,000.
We recognise that local areas such as Sefton will want to begin investing the Building Schools for the Future money, so we have introduced a separate one-school pathfinder scheme, which means that all local authorities can get started on at least one major project in their area. The project in Sefton is Litherland high school, which I understand is not in the hon. Gentleman’s constituency, which will receive about £23.68 million. That project is making good progress. The outline business case has been accepted and the local authority envisages construction starting in April 2009.
We have begun to lay the foundations, but the scale of the challenge is enormous. Eight out of 10 of our schools are more than 30 years old; most were never meant to last as long as they have done. Building Schools for the Future is the Government’s response to that situation and to those decades of under-investment. It will refurbish or rebuild every secondary school in England, creating world-class facilities for generations of school children to come.
The programme is gaining momentum. A total of 13 new or rebuilt Building Schools for the Future schools are now open nationwide, from Newcastle in the north to Bristol in the south. In September, after the summer holidays, a further 22 are expected to open across the country. According to local authority plans, a total of 30 such schools will open this calendar year, rising to around 150 in 2010 and 200 or more per year thereafter. Over the next 15 years, BSF will help to improve the school experiences of 3.3 million young people.
I understand the points that the hon. Gentleman made in his thoughtful way, but what I have described is a practical expression of what the ambition of the programme—he rightly said that it was an ambitious, massive investment—really is. Sometimes people seem to be saying, “That may be all very well in practice, but how will it work in theory?” I do not think that that is what the hon. Gentleman was saying, but it is a practical way of describing the ambition of which he spoke.
Given the scale and lifespan of the programme, it is crucial that we continue to analyse progress and improve performance so that we deliver the best possible results for the large sum that—as the hon. Gentleman pointed out—the Government are investing.
Does the Minister intend to institute a proper, thorough audit of the people who run Building Schools for the Future? They are, after all, profit-driven. That is fine: it is not a problem. However, it becomes a problem when the scale of the operation offers them what is virtually an open cheque. I hope the Minister will want to institute a proper and rigorous audit of their performance.
A capital programme of this scale does have to be audited properly and rigorously, although—and I do not think my hon. Friend was suggesting this—I do not think that profit is a dirty word. Even in a traditionally funded—a publicly funded—capital programme, the contractors would be making a profit from building the schools. There is nothing new about using the private sector to build schools. I do not think we know of any schools in whose building, or indeed maintenance, the private sector has not been involved. However, my hon. Friend is right to suggest that expenditure on this scale needs to be properly audited.
We have learnt from early delays in some of the projects, which arose largely because the projects focused, rightly, on the areas of greatest social deprivation and educational underperformance: in other words, the most urgent cases. Since the end of 2006, however, we have introduced measures specifically designed to ensure that local authorities are ready to hit the ground running as soon as they enter Building Schools for the Future. Those changes have resulted in significant improvements in delivery time scales, and our recently announced streamlining of the procurement processes will reduce them still further.
Building Schools for the Future is not just about bricks and mortar; investment on this scale brings huge opportunities for change. We are working with local authorities to make sure that BSF works as a catalyst for the broader educational transformation that we want to see, so that all young people can make the most of their talents and achieve their very best, regardless of their background. As the hon. Gentleman said, the legacy of BSF will be measured not by the numbers of new buildings or the size of classrooms—important though that is—but by the success of the investment in improving the young people’s aspirations and the prospects of children and communities across the country.
Research shows that we are achieving well according to that measure. The National Foundation for Educational Research recently examined the impact of a new environment on students and teachers at one of the first BSF schools, with impressive results. Once the school had moved into its new buildings, 87 per cent. of students felt safe most or all the time, up from 57 per cent. in the previous school buildings; 77 per cent. felt proud of their school, up from 43 per cent.; 61 per cent. said they enjoyed going to school, up from 50 per cent.; and 77 per cent. expected to stay on in the sixth form or go to college, up from 64 per cent. BSF is not just a facelift for schools.
I note the successes in pupil experience. The Select Committee said that pupils should be involved. Clearly the more that pupils are involved in the planning process and asked about their preferences, the more likely such successes will be. Does that not argue for less haste in the process, and a more careful consultative progressing of schemes?
I agree, and I do not think any Government have done as much to promote the pupil voice as this Government, in all sorts of ways. That includes making pupils part of the plans for new schools, and allowing them to own those new schools. That has significantly improved as a result of some of the changes that we have made. As I have said, however, we have seen significant improvements in pupils’ experience in a school that has already been built. That does not come directly from us. The National Foundation for Educational Research worked with those pupils and received those findings as a result. This is not, therefore, just a facelift, but it is a thorough renewal that will help pupils enjoy and achieve, position schools right at the core of their communities and help to revitalise local areas.
We must ensure that it is a renewal that will last. This is a once-in-a-generation programme. We have not seen anything like it for the past 50 years. As a recent Select Committee report on BSF said, we must make sure that its impact is sustainable, and that it continues to inspire long after the smell of fresh paint has faded away.
Three critical factors will help to ensure that we produce schools fit for the 21st century. First, wide-ranging consultation and careful planning is part of the process. Early engagement and consultation with the whole school community is an important part of the development phase of a BSF project. When a local authority joins BSF, it must produce a strategy for change, which sets out how its investment will support the changing demographics and educational needs of the area. The authority needs to demonstrate that in preparing the strategy it has carried out proper consultation with its stakeholders, and that the resulting strategy has been accepted and is supported by all these groups. Corresponding work is also done at school level, and the local authority must provide the appropriate support for schools to carry it out. In particular, we have engaged with the Sorrell Foundation, notably through the “joinedupdesignforschools” project, to develop best practice in reflecting pupils’ views in the design of their schools. However, we recognise that more work needs to be done to explore how schools can more fully involve students and parents in the planning process. We are currently producing guidance material on preparations for BSF, which will include advice on such matters.
The second key for success is that the buildings themselves must be sustainable. We have already set high standards for sustainability, but we want to go further. We are making an immediate requirement that new school buildings achieve a 60 per cent. carbon emissions reduction, and we are backing that up with £113 million for energy efficiency and renewable energy measures in about 235 new school buildings. For the longer term, we announced in the children’s plan, published in December last year, our ambition for zero-carbon new buildings by 2016, and we have now appointed a task force to advise on how this goal can be met. We know this will not be easy, but we have a moral responsibility to future generations to try to achieve it.
The third issue is information and communications technology managed services. Advances in information technology have already revolutionised teaching and learning. I am sure that when the hon. Member for Southport, as a former teacher, visits schools, he is as taken aback as I am by the extent to which technology is now integrated right across the curriculum. From interactive whiteboards to online learning resources, just as in the world of work, computers are now at the core of a school’s work and are an important means by which young people communicate, express themselves and develop their creativity and learning. Provision for excellent ICT facilities that can adapt to technological developments as they happen is, therefore, essential for any school for the future.
In addition, the new diploma programme will lead to increasing numbers of students attending courses in more than one location. They will, therefore, need to be able to access their files and resources from a number of locations and from home.
Will the Minister make it his policy that it need not be the central contractor who gets in on the private finance initiative for ICT, but that a local authority with a good record in provision of equipment through its buying policies and in providing good support, which is the most important factor in ensuring ICT gives value for money, can do so too?
Obviously, we want BSF projects to include an area-wide, commercially managed service for ICT that can respond to the changing requirements of schools and of technology. By procuring ICT on an area-wide basis, schools can make substantial savings, ensure the highest standards and enjoy ICT services and resources tailored to their individual needs and specialisms. A managed service frees schools from the burden of procuring and managing their ICT systems individually, so that they can focus on their core business, which is teaching and learning.
All Members of the House will agree that a school building should be a great source of pride for pupils, teachers and communities alike, and only modern and well-equipped classrooms can support the world-class education that we want for all our children.
I hate to use the expression “one size fits all”, which is such a cliché in this place, but clearly there are different ways in which ICT can be provided, and nobody can be sure that the way the Minister advocates is the perfect way. The only thing that can establish that is some kind of empirical evidence or fact-finding after the measure has been implemented. Will the Minister guarantee that there will be an examination of the need for diverse ways of providing ICT, rather than a one-size-fits-all plan, which may or may not be the ideal?
BSF ICT is not a one-size-fits-all system. Individual schools will have the opportunity, through the local choice fund, to specify key ICT resources—hardware and software—while still ensuring full compatibility and integration with a county-wide ICT infrastructure that allows students full access to their personal learning space from locations other than their home schools. I therefore do not accept that this will be a one-size-fits-all approach. It will certainly give individual schools that opportunity, while still ensuring the compatibility and integration that we want to see across the area.
Building Schools for the Future is the most ambitious programme of investing in our schools for more than a generation, and despite the reservations and concerns expressed by the hon. Gentleman, it will be well received and will be seen as one of the great achievements of this Government.
Question put and agreed to.
Adjourned accordingly at twenty-seven minutes past Ten o’clock.