David
Howarth: The right hon. Gentleman has explained why I,
unlike many people involved in the law, accept the need for anonymous
witness orders. There is an absolutist view, which I do not accept,
whereby any anonymity will automatically cause an unfair trial. It is
unrealistic to think that the police and the authorities can protect
people in the situation that the right hon. Gentleman describes. Some
people think that they could, but, in reality, they cannot. That is why
the orders must exist, and I fully accept them. However, we must be
careful that we do not go too far, producing miscarriages of justice,
as we might do, and providing malicious people with opportunities to
use the law to take revenge on other
people.
Mr.
George Howarth: The hon. Gentleman raises a couple of
scenarios that, if we wanted to exercise our imaginations, could flow
from the proposal. However, I shall conclude merely by saying that
those may be risks that are worth taking if we are to protect people
properly from the problems that I have described. Many of my
constituents, who have to put up with such problems day in, day out,
are not as tolerant as the hon. Gentleman, and for good
reason.
Mr.
Garnier: Lest anyone listening to the right hon. Gentleman
should think that his constituency is a hell hole, I should like to
place on the record that I have been to his constituency on a number of
enjoyable occasions, namely to Aintree race course, and I recommend
regular visits to it.
The
Parliamentary Under-Secretary of State for Justice (Bridget
Prentice): Did you win?
Mr.
Garnier: No, a horse won.
There are
many sides to all our constituencies, and, although the right hon.
Gentleman’s description of the contextual material is highly
valuable to us, I should not want the world to think that his
constituency was a place of complete and utter misery, because it quite
clearly is not.
Mr.
George Howarth: I am grateful to the hon. and learned
Gentleman. I think that I said on several occasions that the situation
is not unique to my constituency, because it occurs throughout the
country. However, for the avoidance of doubt, my constituency is heaven
on earth.
Mr.
Garnier: I must have been to heaven once a year for a few
years then.
I have not
found it at all difficult to agree with the hon. Member for Cambridge
on some issues, but he made it quite difficult for me to stay with him
when he discussed his amendments on serious damage to property. He
redeemed himself in my eyes, however, when he said that he is not an
absolutist and is looking for somewhere to draw the line. He needs to,
because, in any event, but especially having heard what the right hon.
Member for Knowsley, North and Sefton, East said a moment ago, I think
that damage to property is clearly the key to this matter—in
addition to damage to individuals. It is a matter of fact and degree.
There will be cases where the damage is
trivial—
Mr.
Boswell: Will my hon. and learned Friend give
way?
Mr.
Garnier: I will just get to the end of the sentence, if my
hon. Friend does not mind.
Clause
71(3)(a) mentions “serious damage to property”, and
trivial damage would clearly not come within its
ambit.
Mr.
Boswell: I thank my hon. and learned Friend for giving
way; in no sense was I seeking to derail what he wanted to say. When
looking at the clause, should not the test at the back of our minds be
that of needing to serve the cause of justice? That will be inhibited
by a climate of fear, which could be transmitted either by threats to
physical safety or life-damaging property damage. I agree with the
remarks of the right hon. Member for Knowsley, North and Sefton, East
that it is impossible to draw a literal-minded barrier around threats
of physical violence.
Mr.
Garnier: That is a perfectly fair point.
Let me
conclude my remarks in relation to the amendments that deal with damage
to property. There is arson, and there is arson with intent to endanger
life. Both are serious offences and both warrant life imprisonment in
some circumstances. It would be a mistake to remove reference to
property in the witness anonymity orders. I accept that we need a
connection between property that is threatened with damage—or
that has been damaged—and the witness or someone close to them.
I do not need to take that point further as it is self-evident. I am
sure that the hon. Member for Cambridge will accept that.
One further
point occurs to me. The damage to property should not necessarily be
measured in financial terms in relation to the property. We are talking
about the impact, the ripple effect. I could disable a computer;
actually, I could not—[Interruption.] I am
sure that I have disabled many computers, but entirely by mistake.
However, within the financial services, for example, computers are
vital for the management of the stock exchange and the banking
system—in so far as we have one. It does not take much to
disable a computer system, but it could have a massive economic effect.
It might be a small piece of damage such as removing a fuse, but the
real damage is the loss of the business’s ability to function.
That is an example of where serious damage needs to be construed in a
reasonably wide form. Tighter or more careful drafting of
subsection (3)(a) might get those points across, but the
policy behind it is clear.
In
relation to the hon. Gentleman’s points on subsection
(6), amendment 199 seeks to deal with the same problem in a slightly
different way. We are concerned about a proportionate response to a
perceived fear. I could have a subjectively reasonable fear that if I
do something, something terrible will happen to me. However, when that
subjective fear is analysed, it is possible to reach the conclusion
that, objectively, it should not impinge on an application for an
anonymity order. I could subjectively reach the conclusion that if I
carry on speaking until 6 pm, the hon. Member for Wrexham—he is
leaving the room, so my objective fear is going with him—could
introduce me to Stalin and Hitler, which might have adverse
consequences for
me.
2.30
pm I
may genuinely think that, or fear it, but an objective analyst would
say, “That is impossible. It may be something you fear, but it
is unreasonable and not something that should affect condition A, your
safety.” Even though I think that, in fact, my safety will not
be affected by giving evidence in those circumstances. I am not going
to be threatened; I am not going to meet Hitler or Stalin. That is a
rather laboured way to explain the difference between a subjective fear
and its objective assessment by someone else. We have to do that in all
sorts of cases. A state of mind is a fact, it has to be
established—to the satisfaction of the court, I would
suggest—and the court has to ensure the overall interests of
justice, as my hon. Friend the Member for Daventry said a moment ago.
Courts do that, more or less day in, day out.
I do not
think that quite so much needs to be made of subsection (6), albeit
that expressions such as “in particular” need to be used
clearly. Does it mean in particular but exclusively, or in particular
but not limited to? The Minister understands the various options that
could occur to an inventive construer of subsection (6). I shall leave
amendment 199 there for illustrative purposes, so that the Minister can
tell us what the Government mean by subsection
(6). There
is a deeper and more serious question to be answered in relation to
subsection (3)(b), which deals with the public interest point, which
has already been discussed. Our amendments 197 and 198 deal with
deleting paragraph (b) and the “or otherwise” at the end.
Personally—I do not know what my hon. Friends think—I do
not find the Liberal Democrats’ proposals particularly
attractive, albeit that I entirely understand what they are about. The
Government may have written more into paragraph (b) than is necessary:
it is vague, wide and open to mischievous interpretation, and they need
to edit it somewhat to be tighter. On that basis I am content to listen
to what the Minister has to
say.
Maria
Eagle: We have had an interesting discussion about the
purpose and context in which the provisions of clause 71, which deals
with conditions for making witness anonymity orders, operate in the
real world. I thank my right hon. Friend the Member for Knowsley, North
and Sefton, East for that and others for the remarks that they made in
his support. It is important that the Committee remembers that that is
what the provisions are largely
about. It
is also important to remember that the hand of Government was moved.
The provision was not something that we sought to put into statute, as
opposed to it being
in the common law. However, when it became clear that the common law was
not as it had been thought to be and would not remain fit for the
purposes for which it had developed, as we all thought it had before
the Davis case, neither we nor the rest of the parties in Parliament
then felt able to restrain ourselves. There was general agreement that
the emergency legislation passed last year was necessary. It was
enacted swiftly and had support in all parts of the
House. We
did not seek to set out precisely in statute the circumstances in which
such things ought to be allowed, but now we are in that position. I
venture to say, as the hon. and learned Member for Harborough said
earlier, that things seem to be working quite well, owing in large part
to the common-sense interpretation applied by the judiciary. My right
hon. Friend the Member for Knowsley, North and Sefton, East understands
and many of us know from our constituency experience what the
provisions are all about and why they are necessary. Although we can
have an academic debate, we must always bear in mind the fact that
these provisions have a utility that we do not want to move away
from.
Turning to
the amendments, I begin with amendment 451 and 452, to which
the hon. Member for Cambridge spoke. We debated briefly the purpose and
usefulness of including the property limb of the test in
subsection (3)(a). It has been useful to bat around those
questions about what serious damage to property means. We think that
the wording works, although some interesting points have been made
about serial, more minor, damage. We must always remember the context,
however: to a person who has very little, whose car is the only way
they can get to work and who will lose their house if they do not have
a job, minor damage to their property would be serious. Any
common-sense interpretation of the wording would agree with
that.
Although I do
not believe that we need to change the wording, I am happy to reflect
on what has been said, to make sure that by the time we come back on
Report, we are clear that we have the best formulation. I think that we
probably have and there is a disadvantage to over-complicating the
tests. If common sense can apply and if things seem to be working,
there is an argument for not interfering too much. I do not want to
accept any of the hon. Gentleman’s amendments at
present—they are probably probing amendments, in any
event.
Amendments
197 and 198 would alter another of the three conditions for making the
order. The second limb of condition A specifies that the order must be
necessary
“to prevent real
harm to the public
interest”. We
have debated the meaning of that phrase before and it has not changed
between last year and this. I made some overt remarks on the record in
case anyone ever wished under the Pepper v. Hart procedure to be
clear about what Ministers intended. There is no change in the
intention, but there is clearly some purpose in enabling those who are
undercover to continue to work in that way and not to lose the capacity
to do so because they cannot have an anonymity order because their
circumstances do not come under any of the limbs of the
test.
Alun
Michael: Does the Minister agree that the requirements
should not be used lightly and that there is always a judgment that has
to be made—it cannot be
escaped by going to the letter of actual requirements? The intention
reflected in the drafting is to make sure that that judgment can be
exercised in appropriate cases, without unintended constraints being
placed, which would leave people vulnerable in the way that both my
right hon. Friend the Member for Knowsley, North and Sefton, East and I
have outlined in some of our examples.
Maria
Eagle: I certainly agree with my right hon. Friend that
anonymity orders should not become routine instead of exceptional. That
was quite clearly said during the passage of the emergency legislation
and I will not repeat it now. Common sense should be applied, and the
fact that all sides appear to accept that the provisions are working
indicates that it is being applied.
I have
probably said what I need to about harm to the public interest in
relation to amendments 197 and 198. Amendment 453 would change the
wording of the second limb of condition A so that it explicitly and
exclusively referred to preventing
“serious harm to
the functioning of a properly authorised undercover
operation.” We
do not think that the amendment is necessary, simply on the ground that
we have made explicit what the current wording means and changing it
might present us with more of a problem in statutory interpretation
than leaving it as it is and reiterating why it was put there in the
first place.
Amendment 454
would remove the court’s duty to take the witness’s fear
into account when considering whether the order was necessary to
safeguard the safety of the witness or another person. I realise that
the amendment is a way into a discussion about whether we are looking
at some kind of reasonable fear for one’s safety, but fear is a
subjective thing, and if we are talking about trying to protect
somebody and enable them to give evidence, it is the subjective fear
that one ought to consider. My right hon. Friend the Member for
Knowsley, North and Sefton, East will confirm from his experience that,
quite often, it is stress and lack of sleep rather than fear that leads
a person to a much more fragile mental state than one might expect,
after a series of intimidatory activities that provide the final straw.
It is not necessarily fear as much as stress—and just being
completely fed up of being treated badly and threatened the whole
time—that finally leads people to flee or refuse to come forward
with their
evidence. In
any event, as I have said, the current wording appears to work. The
court will still be able to have regard to the question of fear as a
matter of discretion. It is unclear what benefit there would be in
removing it—I know that it is a probing amendment to get us into
the discussion that the hon. Members for Cambridge and for Daventry
were having.
I hope that
the hon. Member for Cambridge will withdraw his amendment on the
grounds that we have had a good debate and that the present provisions
appear to work. It is not sensible to interfere with
them.
David
Howarth: The right hon. Member for Knowsley, North and
Sefton, East said that I was tolerant of the sort of conditions that he
talked about, but I certainly
am not. If he knew where I was brought up and where my parents still
live, he would understand why that is the case. All I am asking is that
we are at least reasonably clear about what we are not tolerant
of.
The way that
the clause is written at the moment does not get at what we are talking
about, which is the impact of the intimidating and threatening
practices—almost ways of life on some estates—on the
people whom we are trying to protect. It is not about discrete
incidents; the idea that has come out of the debate quite clearly is
that we are talking about discrete or one-off threats or one-off
incidents to do with some bit of property, but that is not what it is
about at all. It is the about cumulative impact on the potential
witnesses of those threats and acts of intimidation happening day after
day—that is what we want to stop. We are certainly are not
tolerant of
that. Although
it is not a good way to write a statute, there is a phrase that many
Members have used to express what we are trying to get at, which is: if
it is the kind of thing that makes people want to move, it is
intolerable. The right hon. Gentleman and the Minister described it as
the state when someone says, “I think I should leave and take my
family with me because I do not feel protected by the police, and those
people are just getting at me.” That is almost exactly what we
should try to stop—the test should be that no reasonable person
should be put in that position. I am far from clear that what we have
now expresses that problem.
However, I am
grateful for the Minister’s offer to think again. I suppose that
chances are that she will come back and say that what we already have
is the best that we can do and what I have just said is what the
Government mean, but it has been useful to discuss what the word
“serious” means in such circumstances. It does not refer
only to how expensive the property was; it encompasses the sort of
things that we have been talking about.
On the
question of fear for one’s safety, we are all trying to move in
the same direction. But it strikes me that the clause is the wrong way
round: safety is the main thing, and then it takes fear into account in
judging safety—whatever that means—rather than fear being
the main thing, and an objective safety element being a backstop to
ensure that we are not going too far along the lines of simply
accepting what a timid person might say about their state of fear. I
ask the Minister to look at that
again. Finally,
on the issue of real harm to the public interest, perhaps the Minister
is right that the best thing that she could have done today is what she
has done, which is to reiterate that what the provision meant last time
is what it means this time. I think that we are all now absolutely
clear what it means and we are at least in the position that we were
before. With that, Mr. Cook, I beg to ask leave to withdraw
the
amendment. Amendment,
by leave, withdrawn.
Clause 71
ordered to stand part of the Bill.
Clauses
72 to 75 ordered to stand part of the
Bill.
2.45
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