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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.
Rob Marris: 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?
David Howarth: 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.
4.7 pm
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con):
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.
4.14 pm
Mr. David Heathcoat-Amory (Wells) (Con): 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.
Mr. Hogg: 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?
Mr. Heathcoat-Amory: 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.
4.19 pm
Mark Fisher (Stoke-on-Trent, Central) (Lab):
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?
The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): 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.
Mark Fisher: 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.
4.24 pm
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): 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.
Mr. Speaker: 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.
Mr. Llwyd: 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.
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