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The health service has done a lot of work already, in relation to an ageing society and chronic conditions—we have the framework for older people and so on. We are now working very closely with them to address these issues, as they are doing. I cannot give a timetable, but I assure her that we have a sense of urgency about this. It is right, just and sensible that we are deliberately phasing this in, but that does not mean that in the interim nothing will happen. I believe that a great deal will happen. These are not signals that we are sending; they are an intent to act. The sort of work that we are doing already in health and social care to change practice, culture and challenge the way things are done, means that we will, I hope, see changes very soon. I look forward to working with her to make sure that the work we do with other stakeholders is well understood, well communicated and as effective as possible.
The Lord Bishop of Southwark: My Lords, I thank the noble Baroness for reading the Statement and for her later words on particular aspects of religion. Will she ensure that the widerneeds and doctrinal sensitivities of the faith communities are borne in mind, when legislation concerning equality is being considered?
Baroness Andrews: Yes, my Lords, it is extremely important that we continue to work closely with all the faith communities. Apart from duties on religion, there are many issues as we progress our work on equality which will have a direct bearing on faith communities. I make that pledge in all conscience.
Lord Low of Dalston: My Lords, I thank the noble Baroness for repeating the Statement and welcome it. As a founding disability rights commissioner, I have a
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I will confine myself to a couple of questions. As has been observed, there is a particular expertise on these issues in the House. It will, therefore, have a particular role in debating and passing the Bill. Can the noble Baroness tell me whether there will be opportunities for pre-legislative scrutiny, which many people have been anxious to see? Mr Trevor Phillips, some months ago, spoke about the Bill as being pro-fairness. I hope that the Minister can confirm that the integrity of existing anti-discrimination legislation will be maintained, without being watered down. In particular, can she confirm that the integrity of the disability equality duty, involving disabled people in assisting authorities to implement it, will be retained in the Bill?
Baroness Andrews:My Lords, I am very grateful to have been prompted by the noble Lord, Lord Low, to say how much I welcomed the statement from the noble Lord, Lord Lester, that an all-party group of critical friends will be set up to help us make sure that this legislation is the best of its kind. We propose to introduce a single duty across all protected grounds and we are very much committed to that. It will make so much sense in view of the morass of legislation that we have on equality at the moment. There are no fewer than nine pieces of legislation, more than 100 pieces of subordinate legislation and 2,500 pages of guidance on the EHRC website.
In that process we are not weakening existing protection for disadvantaged groups and, especially, not for disabled people. We recognise already that the disability duties have had a very positive effect, for example, in requiring public bodies to involve disabled people when designing and delivering services. I can give the noble Lord every assurance that, because the specific duties will be subject to further consultation, we will work very closely with stakeholders on the way that that is worked out in practice. We want them to be as robust as possible.
We have had a very long consultation process on this Bill. Within the next month, we will bring forward our full response to that, which will be the precursor to the Bill. The pre-legislative scrutiny may still be under consideration, so I cannot give a definitive answer on that point at the moment.
Baroness Howe of Idlicote: My Lords, I, too, welcome what has been announced today, but I have a query. Age and equal pay are very much a theme. However, we still have no mention of pensions. Of course, by a previous ruling of a court, pensions are part of pay. As age and pay, including pensions pay, are involved, will there be a hard look at the annuity problem? Still there is a discriminatory practice between the amounts paid for the same pot of money to women and to men on the grounds that women are assumed to live longer than men.
Baroness Andrews: My Lords, the question raised by the noble Baroness is extremely sensitive and very important. We will not deal with that degree of detail
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Baroness Finlay of Llandaff: My Lords, can the Minister provide assurance that in those fields where the workforce is mostly female, which applies to most of the health service, where feminisation of the workforce has been noted, we will be able to avoid a reverse discrimination? In teams which include many young women, it may be considered better to appoint a man as a way of getting around maternity leave and the other aspects that go along with the employment of younger women who may be in their fertile years.
Baroness Andrews: My Lords, I can repeat what I said in relation to the broader question about how we intend to address issues of under-representation. The overriding criterion, which does not change in this Bill, is that people applying for jobs are, and should be, appointed on merit.
Criminal Justice: Witness Anonymity
3.03 pm
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, with the leave of the House, I shall repeat a Statement made by my right honourable friend the Lord Chancellor in another place. The Statement is as follows:
“With permission, Mr Speaker, I should like to make a Statement following the judgment of the Judicial Committee of the House of Lords, issued Wednesday last, in the case of Davis. As the House will be aware, the Law Lords decided that there was not sufficient authority in common law to provide for the current arrangements for the admission of anonymous evidence, and said that this was a matter for Parliament to deal with by statute. The Government, therefore, urgently will be bringing forward a Bill to rectify the situation. I hope, very much, that the Bill will be published next week, and that, subject to the usual channels, it will be debated through all its stages in the House of Commons the following week.
“For reasons which I will explain, it is essential that the Bill receives Royal Assent, and comes into force before Parliament breaks for Summer Recess. I am very grateful to the opposition parties for their co-operation in this matter, but I fully appreciate that, like other Members of the House, they will not be able fully to judge the merits of the Government’s proposals until their detail is available in the Bill.
“The background to this is as follows. As long as there has been crime, the criminals concerned have sought to intimidate those who are witnesses in order to avoid punishment. Criminal justice systems across the world have sought to deal with this problem. Criminals do not operate by the rules, but the rule of law requires that justice should not only be done, but be seen to be done. The right of a defendant to confront his or her accusers in open
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“In recent years, witness intimidation has become an all too common feature in crimes of a serious nature, especially those involving guns, gangs or drugs. Such is the fear that can be engendered by such criminals that entire communities in an area may be reluctant to come forward to give any evidence about what they know.
“In the Court of Appeal judgment in Davis, the president of the Queen’s Bench Division, Sir Igor Judge, quoted the evidence of a detective who specialised in murder investigations. He said this, and permit me to quote at some length:
‘Most people opt not to co-operate and do not get involved. Doors are not opened, arranged meetings result in a witness not turning up, telephone messages go unanswered ... This is not a problem that exists on an occasional basis ... it is a problem that exists in practically every investigation in one way or another. Such problems exist on a daily basis. I have spoken to witnesses about a reluctance to give evidence. The common factor between all of them is fear.
‘They are in fear of their lives and that of their families and friends. There is a very real danger to such persons of death or serious injury, either to prevent them from giving evidence, or to punish them for giving evidence and to send a warning to those who may be thinking of assisting the police. This risk I know and the witnesses know is not necessarily at the hands of the defendants themselves, but at the hands of the associates of the defendant. If the defendant is in custody, it is often the associates who are the physical threat. In many but not all cases, the witness knows of the defendant and their associates.
‘They know they have easy access to firearms and the ‘ease’ with which they are prepared to use them’.
“To deal with this situation our courts had developed careful and proportionate measures by which the trial judge, where he or she believed it necessary, could order that evidence be given in such a way that the identification of certain key prosecution witnesses was disguised. In some cases, the key witnesses concerned themselves may well have been involved in crime, others will be innocent bystanders, and still others may be undercover police officers or agents. In the Davis case, key witnesses were screened from sight of the defence, given pseudonyms and had their voices electronically distorted.
“In the Davis appeal, the Court of Appeal reviewed all the circumstances, the common law authorities and the Strasbourg jurisdiction, and held that measures of this kind were both necessary and just to defendants in this case. Their appeals were therefore dismissed.
“In the House of Lords, their Lordships took the opposite view. In the lead judgment, the senior Law Lord, the noble and learned Lord, Lord Bingham, said:
‘By a series of small steps, largely unobjectionable on their own facts, the courts have arrived at a position which is irreconcilable with long standing principle”,
“The noble Lord, Lord Mance, who extensively reviewed the Strasbourg jurisprudence, said that he did not believe that the Strasbourg court in this case would,
‘accept that the use of anonymous evidence in the present case satisfied the requirements of article 6’.
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“However, the noble Lord, Lord Mance, went on to say that,
and that the Strasbourg Court has repeatedly stated that the use of anonymous evidence is,“Importantly, the noble Lord, Lord Mance, said, it is not certain that,
‘there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence’.
“All of their Lordships accepted fully what the noble and learned Lord, Lord Bingham, said was the ‘reality of the problem’ of witness intimidation, ‘vividly described’ in the Court of Appeal judgment. The noble and learned Lord, Lord Bingham, went on to say that,
‘this is not a new problem, but it is a serious one. It may very well call for urgent attention by Parliament’.
“The noble and learned Lord, Lord Rodger, said:
‘Parliament is the proper body both to decide whether such a change is now required, and, if so, to devise an appropriate system which still ensures a fair trial’.
“The noble Lord, Lord Mance, echoed these views. He referred to the experience of New Zealand and the Netherlands, which have introduced statutory frameworks for the use of anonymous evidence, and said that,
‘it may well be appropriate that there should be a careful statutory modification of basic common law principles. It is clear from the Strasbourg jurisprudence ... that there is scope within the Human Rights Convention for such modification’.
“Since the judgment was handed down last week, we have been looking urgently at how a statutory framework could operate, taking account of overseas experiences, not least that of New Zealand. Because of the urgency of the matter, the Bill is literally being drafted as I speak. The House will therefore excuse me if now I simply outline our thinking, although I may say that this situation has the advantage that the draft can take account of comments made in the House today.
“The essence of the scheme, which will be published in the Bill, will be this. The trial judge will have to be satisfied that the need for anonymity is established; that a fair trial will be possible; and that it is in the interests of justice to make such an order. There will be other factors that the judge will have to consider in reaching this decision.
“Parliament should never legislate at the speed with which I am proposing unless it is convinced that there are overwhelming reasons for doing so. I suggest to the House, however, that this requirement is satisfied in this case.
“Anonymous evidence is these days fundamental to the successful prosecution of a significant number of cases, some of which involve murder, blackmail,
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“The CPS is conducting an urgent assessment of the total number of cases in the prosecution pipeline which may be affected. Neither my noble and learned friend the Attorney-General nor I can yet give definitive numbers of cases involved. As soon as we have accurate numbers, we will make them available.
“In addition to those cases in the prosecution pipeline, there is great concern among the CPS and the wider public that a number of serious criminals convicted by a jury, whose trials satisfied Article 6 and common law requirements, and whose appeals have failed, would seek to make use of the technicality of their Lordships’ judgment to have their convictions quashed.
“The Bill will therefore contain measures to ensure that the Appeal Court should not quash convictions solely on the basis that the trial court lacked jurisdiction under the common law to provide for anonymity measures. The aim will be to ensure that defendants cannot take unfair advantage of the technical defect in the law which has until now been unidentified and unsuspected. I will publish this Bill just as it is drafted, and I will arrange to hold an open meeting for Members of both Houses in advance of formal consideration in this House.
“Let me also provide this additional but important reassurance. My right honourable friend the Prime Minister has already announced in the draft legislative programme for the next Session the Law Reform, Victims and Witnesses Bill. We had for months planned in that Bill to provide a statutory basis for anonymous evidence. I can therefore give this undertaking of what amounts to a sunset clause for this urgent measure: that the provisions of this Bill, if passed, will be included in next Session’s Bill. So there will be a full opportunity for both Houses to give further consideration to this important area of criminal process. I commend the Statement to the House”.
My Lords, that concludes the Statement.
3.13 pm
Lord Kingsland: My Lords, first, I thank the Government for involving the Opposition in discussions on the intended legislation. We recognise that Ministers are confronting a particularly testing problem, and we wish to be as constructive and helpful as possible.
The Government propose to introduce new measures in the form of emergency legislation to be scrutinised for no more than a day or two in each House of Parliament. We are therefore pleased to learn that it will be certain to include a sunset clause, with an opportunity thereafter for more thorough examination in the context of the Law Reform, Victims and Witnesses Bill. Will the clause take the form of an express time limit? I say that because, as your Lordships' House has learnt to its cost in the context of the control orders legislation, the Bill may well be delayed. An additional factor is the racing certainty that the Bill will contain provisions granting delegated legislative powers and
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In the Statement, the Minister makes reference to cases that have already concluded in a conviction. The Statement reads:
“The Bill will therefore contain measures to ensure that the appeal courts should not quash convictions solely on the basis that the trial court lacked jurisdiction under the common law to provide for anonymity measures. The aim will be to ensure that defendants cannot take unfair advantage of the technical defect in the law which has been until now unidentified and unsuspected”.
That is a retrospective provision. Retrospective legislation is in principle inimical to our constitutional arrangements. It is justified only in the most exceptional circumstances. However, I have some sympathy with the Government. Without such a provision, a considerable number of already convicted defendants found guilty of the most serious crimes will be certain to have their convictions quashed. Nevertheless, I should like the Minister to assure the House that the Appeal Court will be free to quash such convictions if the special measures ensuring anonymity used in the trial of convicted defendants fall outside those permitted by the terms of the proposed emergency legislation.
Since the mid-1990s, it has increasingly become the practice to grant witness anonymity in certain categories of cases, such as murder, grievous bodily harm, gang warfare, drug-peddling and terrorism. Indeed, in some areas, in particular classes of case, it has become almost routine to grant anonymity. Can the Minister tell us the scale of the problem of witness intimidation and assure us that each application will in future be treated strictly on its individual merits, not granted as a matter of course?
The conclusion of the noble and learned Lord, Lord Bingham, that the special measures employed in the trial of Davis were not compatible with the common law, led him to observe, as the Statement relates, that the reality of the problem of witness intimidation was serious and may very well call for Parliament’s urgent attention. This view was echoed by other noble and learned Lords. It is therefore clear that, contrary to some newspaper reports, their Lordships were only too well aware of the seriousness of the problem and sought a constructive way forward by suggesting legislation—advice that the Government are rightly taking. Does the Minister accept that this is the true picture?
The Government face the dilemma of crafting legislation that deals effectively with the problem of witness intimidation, yet at the same time complies with Article 6(3)(d) of the European convention. It is clear from the thorough analysis of the relevant Strasbourg cases by the noble Lord, Lord Mance, that the use of anonymous evidence is not incompatible with the convention in all circumstances. It is, however, equally clear that anonymous evidence that is the sole or decisive evidence in a trial will have a steep uphill climb to attain convention compatibility.
This is especially true in circumstances in which the defendant wishes to cross-examine an anonymous witness about his credibility. It is simply not possible for the defence counsel to test the credibility of a witness whose identity is unknown to his client. In the absence
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One way of resolving this problem is to guarantee the witness not anonymity but special protection. This has been the approach in the United States of America through the Organized Crime Control Act, which provides for the relocation of witnesses and their families to places of safety, sometimes providing them with new identities. Are the Government considering such alternatives?
3.20 pm
Lord Thomas of Gresford: My Lords, I thank the Minister for reading the Statement. I had direct and practical experience of this problem this year in a trial at the Old Bailey, and I declare an interest accordingly. We are in this situation because special measures that were introduced to protect the victims of rape or child abuse have been extended more and more. As the noble Lord, Lord Kingsland, has said, it has become routine for police officers to say to witnesses, “Don’t worry about coming forward or about what you say. You will be granted anonymity”. That means that when the case comes to court and the judge has to consider it, he is almost bound to accept the anonymity proposed by the prosecution or declare the trial at an end.
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