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Subsections (4) and (5) of Clause 30 provide that witnesses have to understand what constitutes contempt of court and a statement on oath. Part 1 of Schedule 2 provides, as the noble Lord, Lord Goodhart, set out, that they will understand the meaning of privilege. All those matters will have to be explained to them. It would be unfair and very unsuitable if the arrangements that we made in this country did not provide them with legal advice. I therefore hope that the Government will at least accept Amendment No. 37.
Lord Clinton-Davis: My Lords, I suppose that I have to declare an interest in relation to Amendment No. 37. I am a source of excellent legal advice. However, I do not think that legal advice is necessarily required in this case. I think that the amendment goes much too far, and I would oppose it. I think that government Amendment No. 40 goes a long way. In it, the Government have heeded the idea that any element of discretion should be swept away. I think that they should be applauded for that. I am not always in favour of applauding my Government, but I am on this occasion.
Lord Goodhart: My Lords, how does the noble Lord expect a judge to be able to come to the assistance of a witness who is being asked an improper question if he does not know what the question is that is being asked?
Lord Bassam of Brighton: My Lords, as the noble Baroness, Lady Anelay, made clear, Amendment No. 37 would require all witnesses participating in overseas proceedings via television link from the United Kingdom to have been provided with independent legal advice. We cannot accept this amendment. A witness taking part in such a hearing is participating in the proceedings of a court that is not a United Kingdom court. The role of the United Kingdom court is to facilitate the hearing and to conduct certain functions: it must ensure the identification of the person to be heard and ensure that the fundamental principles of law of the United Kingdom are respected.
A requirement that a witness has received independent legal advice before giving evidence in criminal proceedings is not a fundamental principle of our law. There is no such requirement in relation to domestic proceedings. The amendment would introduce a wholly new process into our courts. It is worth reflecting that a witness may not wish to have legal advice. A witness may be summoned purely as an expert witness to provide technical information.
The Government have listened to the concerns that the responsibility of the court to intervene to safeguard the rights of the witness should be absolutely clear. As has been said, paragraph 5 of Schedule 2 places this responsibility on the domestic court, and we are sure that a court would exercise its discretion wisely in this respect. But, after further consideration, we propose amending the wording, by tabling Amendment No. 40, to make it absolutely clear that the court is to intervene when it considers it necessary.
I do not wish to start a lengthy debate about the merits of the words "may", "is to", "must" and "shall". I believe that we have made our intentions clear. The phrases "is to" and "shall" are mandatoryI do not believe that there is any doubt about thatwhereas "may" is
If there is any risk of self-incriminationI believe that that concern underlines the amendmentsthe court must intervene to inform the witness that under domestic law he or she is not obliged to testify. That is an important point. We consider that to be an adequate safeguard and that it addresses the key concern behind this group of amendments. Article 10(5)(a) provides that the domestic judicial authority must, if necessary, be assisted by an interpreter, in order to understand the proceedings and be able to intervene if the rights of the witness risk being infringed. As the noble Lord, Lord Clinton-Davis, said, that answers the point that has been raised.
I cannot accept the other amendment tabled to Schedule 2 (Amendment No. 41). This seeks to impose a requirement that rules of court must provide for the witness to be given written advice as to his rights when participating in a television link hearing. In line with the government amendment, the court will already be required to intervene to protect the witness's rights. We believe that to provide written advice is to go too far. The witness's rights under this paragraph relate to his privilege not to be compelled to give evidence in certain situations. We should acknowledge that important privilege. If a witness comes to the hearing with legal representation, that person will be responsible for advising the witness of his or her rights in this respect. If the witness does not have representation, then, as happens when evidence is taken under Section 4 of the 1990 Act for example, the court (usually the court clerk) will advise the witness verbally if there is a risk of self-incrimination. I do not accept that such advice needs to be given in writing. Television hearings will have translation if required so the translator can interpret the court's advice if the witness does not understand English.
We believe that we have the balance right and that we have moved towards meeting some of the concerns that were understandably raised in Committee. I hope that noble Lords opposite will see the sense of our approach and feel able to withdraw their amendments.
Baroness Anelay of St Johns: My Lords, I am not at all disturbed by the Government dismissing my amendment as unnecessary. I made it clear from the very beginning that it was merely a tool to clear up any remaining uncertainties. It has achieved that purpose. I am grateful to the noble Lord, Lord Bassam, for his explanation.
My noble friend Lady Carnegy saidshe was absolutely right to do sothat it was important that we considered the matter of safeguards for witnesses carefully. The noble Lord, Lord Bassam, said that he sensed there was approval for the Government's amendment. I hope that I made it clear that I welcomed
I gave notice that we intended to return to this matter at Report stage. In Grand Committee we were told that although the Minister understood that we were concerned about fishing expeditions, he did not feel that the legislative changes that we proposed were necessary. However, we are still concerned that the Bill as currently drafted leaves customer information orders open to frivolous applications.
The reasons given by the Minister in order to assure us that the changes are not necessary are that under Article 1 of the 2001 protocol to the MLAC, the authority making the request shall explain why the information is likely to be of substantial value to its investigation, and that the Secretary of State has a discretion not to allow the order. He also stated that Clauses 32 and 33 achieve the right balance, as they state that a judge must be satisfied that the conditions are to be met.
We are still concerned that the criteria are too wide. Will the Minister clarify to what criteria the Secretary of State and the judge will be working? I beg to move.
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