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8.15 pm

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.

Mr. Dismore: 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
8 July 2008 : Column 1354
service cases. Those are the ones for which security clearance is needed, not the ordinary, bog-standard criminal trial.

Mr. Straw: 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)—

Mr. Hogg: Wants his dinner.

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

David Howarth: 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:—

The Committee divided: Ayes 162, Noes 256.
Division No. 255]
[8.20 pm


Afriyie, Adam
Ainsworth, Mr. Peter
Amess, Mr. David
Ancram, rh Mr. Michael
Atkinson, Mr. Peter
Baker, Norman
Barker, Gregory
Baron, Mr. John

Barrett, John
Beith, rh Sir Alan
Bellingham, Mr. Henry
Benyon, Mr. Richard
Binley, Mr. Brian
Blunt, Mr. Crispin
Bone, Mr. Peter
Boswell, Mr. Tim
Bottomley, Peter
Brake, Tom
Brazier, Mr. Julian
Breed, Mr. Colin
Brooke, Annette
Browne, Mr. Jeremy
Burrowes, Mr. David
Burstow, Mr. Paul
Burt, Alistair
Campbell, Mr. Gregory
Campbell, rh Sir Menzies
Carmichael, Mr. Alistair
Chope, Mr. Christopher
Clarke, rh Mr. Kenneth
Clifton-Brown, Mr. Geoffrey
Cox, Mr. Geoffrey
Crabb, Mr. Stephen
Davies, Philip
Dorrell, rh Mr. Stephen
Dorries, Mrs. Nadine
Duddridge, James
Duncan, Alan
Duncan Smith, rh Mr. Iain
Ellwood, Mr. Tobias
Evans, Mr. Nigel
Evennett, Mr. David
Fabricant, Michael
Farron, Tim
Featherstone, Lynne
Foster, Mr. Don
Garnier, Mr. Edward
Gauke, Mr. David
George, Andrew
Gidley, Sandra
Gillan, Mrs. Cheryl
Goldsworthy, Julia
Gray, Mr. James
Grayling, Chris
Green, Damian
Greenway, Mr. John
Grieve, Mr. Dominic
Gummer, rh Mr. John
Hammond, Mr. Philip
Hancock, Mr. Mike
Harper, Mr. Mark
Harris, Dr. Evan
Harvey, Nick
Hayes, Mr. John
Heath, Mr. David
Hemming, John
Herbert, Nick
Hollobone, Mr. Philip
Holmes, Paul
Horwood, Martin
Howard, rh Mr. Michael
Howarth, David
Howarth, Mr. Gerald
Howell, John
Hughes, Simon
Huhne, Chris
Hunter, Mark
Hurd, Mr. Nick
Jack, rh Mr. Michael
Jones, Mr. David
Kawczynski, Daniel
Keetch, Mr. Paul
Kirkbride, Miss Julie
Kramer, Susan
Laing, Mrs. Eleanor
Lancaster, Mr. Mark
Laws, Mr. David
Leech, Mr. John
Lewis, Dr. Julian
Liddell-Grainger, Mr. Ian
Lilley, rh Mr. Peter
Llwyd, Mr. Elfyn
Loughton, Tim
Luff, Peter
Maclean, rh David
Main, Anne
Malins, Mr. Humfrey
McCrea, Dr. William
McIntosh, Miss Anne
McLoughlin, rh Mr. Patrick
Miller, Mrs. Maria
Milton, Anne
Mitchell, Mr. Andrew
Moore, Mr. Michael
Moss, Mr. Malcolm
Mulholland, Greg
Murrison, Dr. Andrew
O'Brien, Mr. Stephen
Öpik, Lembit
Paice, Mr. James
Penrose, John
Price, Adam
Pritchard, Mark
Pugh, Dr. John
Randall, Mr. John
Redwood, rh Mr. John
Reid, Mr. Alan
Rennie, Willie
Robathan, Mr. Andrew
Robertson, Hugh
Robertson, Mr. Laurence
Robinson, rh Mr. Peter
Rosindell, Andrew
Sanders, Mr. Adrian
Scott, Mr. Lee
Simmonds, Mark
Simpson, David
Simpson, Mr. Keith
Smith, Sir Robert
Soames, Mr. Nicholas
Spink, Bob
Stanley, rh Sir John
Steen, Mr. Anthony
Streeter, Mr. Gary
Stuart, Mr. Graham
Stunell, Andrew
Swayne, Mr. Desmond
Swinson, Jo
Swire, Mr. Hugo
Taylor, Mr. Ian
Taylor, Matthew
Thurso, John
Turner, Mr. Andrew
Tyrie, Mr. Andrew
Villiers, Mrs. Theresa
Wallace, Mr. Ben
Waterson, Mr. Nigel
Watkinson, Angela
Webb, Steve
Wiggin, Bill
Williams, Hywel
Williams, Mark

Williams, Mr. Roger
Williams, Stephen
Willis, Mr. Phil
Willott, Jenny
Wilshire, Mr. David
Wilson, Mr. Rob
Winterton, Ann
Winterton, Sir Nicholas
Wright, Jeremy
Young, rh Sir George
Tellers for the Ayes:

Bob Russell and
Dan Rogerson

Ainsworth, rh Mr. Bob
Alexander, rh Mr. Douglas
Allen, Mr. Graham
Anderson, Mr. David
Anderson, Janet
Atkins, Charlotte
Austin, John
Baird, Vera
Banks, Gordon
Barlow, Ms Celia
Barron, rh Mr. Kevin
Battle, rh John
Bayley, Hugh
Beckett, rh Margaret
Begg, Miss Anne
Benn, rh Hilary
Benton, Mr. Joe
Berry, Roger
Blackman, Liz
Blackman-Woods, Dr. Roberta
Blizzard, Mr. Bob
Bradshaw, Mr. Ben
Brennan, Kevin
Brown, rh Mr. Nicholas
Brown, Mr. Russell
Browne, rh Des
Bryant, Chris
Buck, Ms Karen
Burden, Richard
Burgon, Colin
Butler, Ms Dawn
Byers, rh Mr. Stephen
Byrne, Mr. Liam
Caborn, rh Mr. Richard
Cairns, David
Campbell, Mr. Alan
Campbell, Mr. Ronnie
Caton, Mr. Martin
Cawsey, Mr. Ian
Chapman, Ben
Chaytor, Mr. David
Clapham, Mr. Michael
Clark, Paul
Clarke, rh Mr. Charles
Clelland, Mr. David
Clwyd, rh Ann
Coffey, Ann
Connarty, Michael
Cousins, Jim
Creagh, Mary
Cryer, Mrs. Ann
Cummings, John
Cunningham, Mr. Jim
Cunningham, Tony
Curtis-Thomas, Mrs. Claire
Darling, rh Mr. Alistair
David, Mr. Wayne
Davies, Mr. Dai
Dean, Mrs. Janet
Denham, rh Mr. John
Devine, Mr. Jim
Dhanda, Mr. Parmjit
Dismore, Mr. Andrew
Dobson, rh Frank
Donohoe, Mr. Brian H.
Doran, Mr. Frank
Dowd, Jim
Drew, Mr. David
Eagle, Angela
Eagle, Maria
Efford, Clive
Ellman, Mrs. Louise
Ennis, Jeff
Etherington, Bill
Farrelly, Paul
Fisher, Mark
Fitzpatrick, Jim
Flello, Mr. Robert
Flynn, Paul
Follett, Barbara
Foster, Mr. Michael (Worcester)
Foster, Michael Jabez (Hastings and Rye)
Francis, Dr. Hywel
Gapes, Mike
George, rh Mr. Bruce
Gerrard, Mr. Neil
Gibson, Dr. Ian
Gilroy, Linda
Godsiff, Mr. Roger
Goggins, Paul
Goodman, Helen
Griffith, Nia
Griffiths, Nigel
Grogan, Mr. John
Gwynne, Andrew
Hain, rh Mr. Peter
Hall, Mr. Mike
Hall, Patrick
Hamilton, Mr. David
Hamilton, Mr. Fabian
Hanson, rh Mr. David
Harman, rh Ms Harriet
Harris, Mr. Tom
Healey, John
Henderson, Mr. Doug
Hendrick, Mr. Mark
Hepburn, Mr. Stephen
Heppell, Mr. John
Hesford, Stephen
Hewitt, rh Ms Patricia
Heyes, David
Hoon, rh Mr. Geoffrey
Hope, Phil
Hopkins, Kelvin
Howarth, rh Mr. George
Hoyle, Mr. Lindsay
Humble, Mrs. Joan
Iddon, Dr. Brian
Illsley, Mr. Eric
Irranca-Davies, Huw
James, Mrs. Siân C.
Jenkins, Mr. Brian

Johnson, rh Alan
Johnson, Ms Diana R.
Jones, Helen
Jones, Mr. Martyn
Joyce, Mr. Eric
Kaufman, rh Sir Gerald
Keeley, Barbara
Keen, Alan
Keen, Ann
Kelly, rh Ruth
Kemp, Mr. Fraser
Kennedy, rh Jane
Kidney, Mr. David
Kilfoyle, Mr. Peter
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Laxton, Mr. Bob
Lepper, David
Levitt, Tom
Lewis, Mr. Ivan
Linton, Martin
Lloyd, Tony
Lucas, Ian
Mackinlay, Andrew
MacShane, rh Mr. Denis
Mactaggart, Fiona
Mahmood, Mr. Khalid
Malik, Mr. Shahid
Mallaber, Judy
Mann, John
Marris, Rob
Marsden, Mr. Gordon
Marshall-Andrews, Mr. Robert
Martlew, Mr. Eric
McAvoy, rh Mr. Thomas
McCabe, Steve
McCafferty, Chris
McCarthy, Kerry
McCarthy-Fry, Sarah
McFadden, Mr. Pat
McIsaac, Shona
McKechin, Ann
McKenna, Rosemary
McNulty, rh Mr. Tony
Meale, Mr. Alan
Michael, rh Alun
Milburn, rh Mr. Alan
Miliband, rh Edward
Miller, Andrew
Moffat, Anne
Mole, Chris
Moon, Mrs. Madeleine
Moran, Margaret
Morden, Jessica
Morgan, Julie
Morley, rh Mr. Elliot
Mountford, Kali
Mudie, Mr. George
Murphy, Mr. Denis
Murphy, rh Mr. Paul
Naysmith, Dr. Doug
Norris, Dan
O'Brien, Mr. Mike
Olner, Mr. Bill
Owen, Albert
Palmer, Dr. Nick
Pearson, Ian
Plaskitt, Mr. James
Pope, Mr. Greg
Prentice, Mr. Gordon
Prosser, Gwyn
Purchase, Mr. Ken
Purnell, rh James
Raynsford, rh Mr. Nick
Reed, Mr. Andy
Reed, Mr. Jamie
Riordan, Mrs. Linda
Robinson, Mr. Geoffrey
Rooney, Mr. Terry
Ruddock, Joan
Russell, Christine
Ryan, rh Joan
Sarwar, Mr. Mohammad
Sharma, Mr. Virendra
Shaw, Jonathan
Sheerman, Mr. Barry
Sheridan, Jim
Singh, Mr. Marsha
Skinner, Mr. Dennis
Slaughter, Mr. Andy
Smith, rh Mr. Andrew
Smith, Ms Angela C. (Sheffield, Hillsborough)
Smith, Angela E. (Basildon)
Smith, Geraldine
Snelgrove, Anne
Soulsby, Sir Peter
Southworth, Helen
Spellar, rh Mr. John
Starkey, Dr. Phyllis
Stewart, Ian
Stoate, Dr. Howard
Strang, rh Dr. Gavin
Straw, rh Mr. Jack
Stringer, Graham
Stuart, Ms Gisela
Tami, Mark
Taylor, Ms Dari
Taylor, David
Taylor, Dr. Richard
Timms, rh Mr. Stephen
Tipping, Paddy
Touhig, rh Mr. Don
Trickett, Jon
Truswell, Mr. Paul
Turner, Mr. Neil
Twigg, Derek
Vaz, rh Keith
Vis, Dr. Rudi
Walley, Joan
Waltho, Lynda
Watts, Mr. Dave
Williams, rh Mr. Alan
Williams, Mrs. Betty
Wills, Mr. Michael
Wilson, Phil
Winnick, Mr. David
Winterton, rh Ms Rosie
Wood, Mike
Woolas, Mr. Phil
Wright, Mr. Anthony
Wright, David
Wright, Mr. Iain
Wright, Dr. Tony
Wyatt, Derek
Tellers for the Noes:

Alison Seabeck and
Mr. Sadiq Khan
Question accordingly negatived.
8 July 2008 : Column 1355

8 July 2008 : Column 1356

8 July 2008 : Column 1357

8 July 2008 : Column 1358

Amendments made: No. 40, page 2, line 26, leave out ‘the application’ and insert

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

8.30 pm

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

The Second Deputy Chairman of Ways and Means (Sir Michael Lord): 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

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

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

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

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).

Mr. Hogg: 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”
8 July 2008 : Column 1359
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.

Mr. Llwyd: 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.

Mr. Hogg: 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.

Dr. Evan Harris (Oxford, West and Abingdon) (LD) rose—

Mr. Hogg: 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.

Mr. Cox: Will my right hon. and learned Friend give way?

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

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