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Lord Bach: My Lords, I stand corrected by the noble Lord, Lord Morris of Manchester, as I often am. However, I want the noble Lord and other Members of the House to understand that their interest in this matter is not forgotten. I thank noble Lords for their patience.
Before I sit down, I want to mention the marmoset tests to which the noble Lord, Lord Morris, referred. The immunisations given to the marmosets were administered in a way that replicated the way in which immunisation should have been given to those who served during the first Gulf War. I emphasise that this
Lord Clement-Jones: My Lords, before the Minister sits down and considers his peroration, I wish to ask a question based exactly on what he said during his speech. At the beginning, he said that the Ministry of Defence accepted that, in certain cases, service in the Gulf had caused illnesses among veterans. Later on, he said that he and the Ministry did not accept that there was such a thing as Gulf War syndrome. However, the point at issue is not whether or not there is a syndrome, but whether the veterans were affected by their service in the Gulf. Why cannot the Ministry of Defence accept that they were and pay compensation on that basis?
Lord Clement-Jones: My Lords, the Minister himself pointed out that, in negligence cases in court, loss of future earnings of the type described by the noble Earl, Lord Attlee, could be paid out, but they could not be paid out under the war pensions scheme.
Lord Bach: My Lords, is the noble Lord, Lord Clement-Jones, suggesting that it is Liberal Democrat policy that, instead of the war pensions scheme, there should be a policy that states that every unfortunate member of the Armed Forces who is injured in the course of war should be paid a loss of earnings element in compensation? Perhaps he should reflect with some of his colleagues before he goes that far.
As I pointed out, we have paid 2,405 veterans of the 199091 Gulf conflict. We have paid a war disablement pension to them that is tax-free and index-linked. We have done our duty under the existing legislation. The criticism that we have not is unfairly based. We will continue to do our duty by the very brave men and women who put themselves in danger's way in the first Gulf conflict. Of course, we will do the same for those involved in Operation Telic this year.
The criticism that is made that the Ministry of Defence somehow does not care about these people and is not paying the compensation to which they are entitled is false. It is something about which those in this House who talk about such matters should be more careful.
I end by thanking the noble Lord, Lord Morris of Manchester, for his interest and for bringing this matter before the House. I know that all the comments made by noble Lords have been heard by the Minister responsible for these matters. I have no doubt that he and I will react to them in due course in this House.
Amendments Nos. 132B and 132C concern the criteria that must be fulfilled before a direction can be given to hear a witness's evidence via a live link. Under the Bill, the court must be satisfied that,
We agree that efficiency and effectiveness are vital components of the criminal justice system, but we should remember that they should be secondary to the primary purpose of the criminal justice systemjustice. Effectiveness must remain a means to an end, not an end in itself.
Amendment No. 132E would amend subsection (8). The current drafting creates an obligation on the court to state in open court its reasons for refusing an application to allow a witness to give evidence via a live link. However, the clause does not mention similar provisions for occasions on which such an application is to be granted. Such an omission could be interpreted as meaning that only a refused application might require justifying and must be subject to appeal. There might be good reasons for opposing an application and reasons would be required in order to appeal against it being granted. In such cases as this, the appeal process would be made easier if the court stated its reason for granting an application. Is it the Government's intention not to allow a right of appeal at all against a decision to grant an order? Would such a stance, if this is indeed the case, be compliant with the Human Rights Act? I look forward to the Minister's response. I beg to move.
Baroness Scotland of Asthal: Perhaps I may say straight away that I understand the concerns which underlie the amendment, but I can give an assurance that we intend that the court should take into account all the circumstances of a case when determining whether a live link direction should be given. That is made clear in Clause 50(6). Subsection (7) lists a number of the most important circumstances which would necessarily form part of any "interests of justice" consideration.
Clause 50(7) provides a list of many of the relevant issues, including the need for the witness to attend in person, the importance of their evidence, the suitability of the facilities at the remote location, about which I know the noble Lord is concerned, and, crucially in this context, whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness's evidence.
The list of circumstances is not intended as an exhaustive list, but merely as a guide to the kind of considerations that the judge may wish to take into account. It is therefore the intention that the court should have regard to any wider "interests of justice" considerations as part of this assessment. We believe that it might be helpful to the court to be more specific about the particular factors likely to be most relevant to the primary "efficient or effective administration of justice" test to be applied in this context.
We do not think that it is necessary to have an explicit "interests of justice" test on the face of the legislation. We want the court to be focused on how a live link direction could be in the interests of the efficient or effective administration of justice, as it is on these factors that the provision will have most impact. However, I reiterate that the court can consider all the circumstances in the case before deciding whether to grant a live links direction.
Amendment No. 132C, again in the name of the noble Viscount, Lord Bridgeman, would also alter the test that must be satisfied before a live links direction could be granted. This amendment would require that a live links direction be in the interests of both the efficient and effective administration of justice.
We consider that this is an unnecessarily high threshold. For instance, it may be that the live links direction satisfies one strand of this test, although not the other, but that it is nevertheless appropriate for an application to give evidence over live link to be granted. Perhaps I may cite an example to illustrate the difficulty that we foresee. It may be in the interests of the efficient administration of justice for an expert to give evidence from his place of work over the live link. However, the live links direction may have no impact on the effectiveness of the administration of justice as
Of course it may be the case that it would be in the interests of one strand of the testfor example, the interests of the efficient administration of justicebut that nevertheless in all the circumstances of the case it was not appropriate to grant a live links direction. In such cases the court would not have to grant the live links direction. The scheme is structured in such a way that a direction cannot be given unless it is in the interests of the efficient or effective administration of justice. However, where this condition is met, the court must still consider all the circumstances of the case before deciding whether to grant a live links direction. We think that the right approach is to set a relatively low threshold, and where that is met, to allow the court to consider all the relevant circumstances in deciding whether live links should be used.
However, we do anticipate that where the test is met the court will routinely grant a direction for live links. We have therefore included a specific requirement that a judge or magistrate should give his reasons when refusing an application. Amendment No. 132E would also require the court to give reasons for granting a live link direction. Generally, a court will give reasons for any ruling that it makes. However, we believe that including on the face of the Bill the requirement to explain the reasons for refusing a live links direction will help to ensure that the scheme is applied in a positive manner. This requirement will focus the court's mind on whether any reasons put forward for refusing to use live links are sufficient for the direction not to be granted and therefore should encourage courts to make use of live link directions where they are appropriate. A requirement on the face of the legislation to give reasons where a direction is granted would detract from this positive signal. On that basis we would resist the amendment, not because we do not understand the thinking here, but because we do not consider that it is absolutely necessary.
I turn now to Amendment No. 132D tabled in the names of the noble Lords, Lord Dholakia and Lord Thomas of Gresford. The amendment adds to the list of factors under Clause 50(7). As I have already pointed out, the list set out in subsection (7) is a non-exhaustive list of considerations for the court in deciding whether to grant the live links application. This amendment would add to the list the consideration of whether a live link direction would act to inhibit any party from effectively understanding the witness's evidence.
The list of considerations in Clause 50 is intended to raise the issues that will most commonly arise where an application for live links is made. As a live links direction would not usually have any effect on the ability to understand a witness's evidence, we do not consider that the amendment is appropriate. However, there may be circumstances where a witness needs to be present for his evidence to have the same value as it
If there are any relevant issues raised by an application that are not covered under the factors advanced by Clause 50(7), these will be able to be considered by the judge. It is not therefore deemed necessary to draw the attention of judges to every conceivable factor that might be of relevance on the facts of individual cases. The noble Lord, Lord Thomas, will know that if the list is so comprehensive and not used in generic terms there is a risk that it may be argued that a factor is outwith the list and therefore cannot be taken into consideration. I know that is not what the noble Lord intends and it is not what we intend. The broad generic term gives a capacity to look at all the circumstances.
Clearly, if a live link direction would for any reason make it more difficult for the evidence to be understood, we would want the court to be able to consider this as a relevant factor. We consider that this is adequately catered for in the existing scheme in the way that I have outlined. We do not therefore consider the amendment necessary.
Furthermore, if the witness needs an interpreter or any other person appointed by the court to assist the witness, then, under Clause 55(2) and (3)(d), it is a necessary requirement that this person be able to see and hear the witness.
I hope that noble Lords are content with the explanation and reasoning I have given and that it can be agreed that Amendment No. 132D is unnecessary. I understand why noble Lords have tabled both species of amendments. It is important that there should be clarity about the way the clause will be interpreted hereafter.