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The extent of this problem is reflected not only in our country. I had the privilege of attending the Commonwealth Law Ministers’ meeting yesterday in Edinburgh, where this very issue was debated. More than 38 countries were represented, if one was to include the overseas territories and Crown dependencies. There was agreement that witness intimidation was a real problem for those countries and that anonymous evidence was an appropriate response in certain cases.



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I also had the privilege of speaking to the New Zealand Associate Minister for Justice, Lianne Dalziel MP. She indicated that the New Zealand legislation had been operating effectively and successfully for the past 10 years and was felt to be consistent with the New Zealand Bill of Rights. Indeed, she clearly identified the key issue at stake when she said to me, “At its core, this is about getting to the truth of the matter and about how to secure a fair trial for both the defendants and victims and proper protection for witnesses”. I agree with her.

I say to the noble Lord, Lord Marlesford, that I understand his wanting to rely forcefully on the comments made in the Spectator by the noble and learned Lord, Lord Lloyd of Berwick. Since the noble and learned Lord is not here, it is only right to say that I believe that he wrote that article before he had had the advantage of reading the provisions of the Bill. Since that time, he has had an opportunity both to write to and to speak to my noble friend Lord Hunt and he has expressed his compliments in relation to the Bill. I hope that he will forgive me if, in order to reassure the noble Lord, Lord Marlesford, I quote what he says in the final paragraph of his letter to my noble friend, dated 9 July:

Knowing the noble and learned Lord as I do, I am sure that he will not hesitate to find fault, if fault is to be found, and if he were to join us later. He indicated in his letter that he did not intend to harry my noble friend Lord Hunt at Second Reading, but I do not suggest that that will be the stance that he maintains thereafter.

In relation to these difficult issues, I understand the concern of my noble friend Lady Mallalieu and her passion to ensure that a fair trial is maintained and that any procedure maintains the importance of the innocence of the accused until proven guilty. The fact that she so powerfully brings that to our attention does her honour. We share that passion and, in seeking to put these provisions together, the Government have had the intention to make sure that the fair trial is in no way jeopardised.

I believe that it is acceptable for trials in serious cases to be dealt with in such a way as to avoid their collapse or appeal on matters of law. When we seek to make these provisions, we have that very much to the forefront of our mind. As all noble Lords accept, we are trying to do a difficult thing: we have to preserve the fairness of the trial in accordance with Article 6 and, in order to do that, we have to make sure that witnesses are in a position to give their evidence fairly, without fear or intimidation.

I do not agree with the assessment of the noble Lord, Lord Marlesford, that these cases are prepared by police and presented as a fait accompli to the court. The Crown Prosecution Service has a duty to act as gatekeepers to the criminal justice system, insomuch as it is now entrusted with the duty and responsibility of charging. There is, therefore, an opportunity to ensure that an appropriately high level of scrutiny is given to any decision to apply for an order of anonymity. Both the Director of Public Prosecutions

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and I intend to look at what appropriate guidelines may be necessary to secure that appropriately high level of scrutiny.

Lord Marlesford: My Lords, how does the noble and learned Baroness square what she has just said with what we heard from the noble Lord, Lord Thomas of Gresford, about a recent example in which he was personally involved?

Baroness Scotland of Asthal: My Lords, it is quite right, given the way in which things have evolved, that we do not have, before putting this into statutory form, a common standard that is applied right the way across the board. If anything, the Law Lords’ decision in Davis has given us an opportunity to scrutinise how this process in fact works and to make sure that it is as tight, appropriate and acute as it should be and as we would wish it to be.

Viscount Bledisloe: My Lords, the noble and learned Baroness referred earlier to serious cases. She has not really dealt with the point raised by the noble Baroness, Lady Mallalieu, that the Bill is not limited to those. Would the noble and learned Baroness be prepared to bring forward amendments to remove magistrates’ courts from the Bill and to limit its provisions to offences that carry a sentence of, let us say, three or five years? It surely is wholly wrong to have a procedure of this kind for minor cases.

Baroness Scotland of Asthal: My Lords, of course I hear what the noble Viscount says, but two species of cases would cause us difficulty if we did that. There seems to be general assent that the use of test purchases as a means of identifying levels of criminality in relation to drugs and other offences is a right and appropriate way forward, not least because such approaches tend to have a high incidence of pleas of guilty. It is possible that some of those cases will appear before a magistrates’ court. There are also cases of some seriousness that go to juvenile court and which are obviously covered by the same grounds. Breaches of a control order may be of a less serious nature and can properly be dealt with in the magistrates’ court. If there is such a breach, albeit of a lower nature, one can anticipate that in those cases anonymity may well be necessary. Therefore, it is not possible simply to eradicate the need in the lower courts. The noble Lord, Lord Lester, was right to emphasise the need, no matter how grave the case, for fairness to apply.

Obviously, there are issues that we will have to continue to consider. We will undertake to look at all of them during the period that will elapse between this legislation and the new legislation that we hope to bring forward.

Lord Thomas of Gresford: My Lords, how does one make an application for an anonymity order to the magistrates’ court that is dealing with the case and will hear why a person is in fear of death or injury as a result of what the defendant has said or done? How does one deal with the possibility of appointing special counsel when it would require specific statutory authority for the magistrates’ court to be able to do that? It has no inherent jurisdiction that would enable it to make an appointment of that sort.



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Baroness Scotland of Asthal: My Lords, as the noble Lord knows, and as has been indicated by the noble Lord, Lord Kingsland, we intend to look at how and when the procedure for special advocates will be dealt with. I intend to deal with that in a little while. Your Lordships will know, for example, that in the case of H and C the court, which included the noble and learned Lords, Lord Bingham and Lord Woolf, said quite specifically that special counsel might exceptionally be appointed in a criminal case. That House of Lords decision was in 2004.

There is no need to place special advocates on the face of the Bill but there is an opportunity for the court, if it so desires, to make such a request. It is not the place of emergency legislation to make these provisions. I accept that there are delicate balances to be drawn and we will, in slightly slower time, need to address those issues.

Lord Goodhart: My Lords, the noble and learned Baroness referred to test purchases as one of the circumstances in which it might be necessary to provide anonymity in a magistrates’ court. Is the suggestion that witnesses would be threatened with violence or that they would be identified and therefore be less useful as witnesses in future cases? If it is the latter, is that really the type of case in which it would be appropriate to provide anonymity?

Baroness Scotland of Asthal: My Lords, if noble Lords look at Condition A, they will see that that is the fourth species dealt with, because it is in the interests of justice that those who undertake undercover processes or need the cloak of anonymity for that reason should have it. I believe that there is general assent that that has been an appropriate way forward and has not caused unfairness, because the issue is not the credibility of the witness but the accuracy of what the witness said. It matters not whether the officer is called Jones, Brown, Scotland, Lester or whatever; it is the content of the information that they give and the ability to challenge it. I do not believe that that issue has caused anxiety. The area of anxiety appears to have been credibility. Attention has been focused on whether in those circumstances there could be a fair trial and whether sufficient safeguards exist to make sure that that comes forward.

A number of noble Lords, not least the noble Lord, Lord Marlesford, mentioned retrospectivity. I understand the discomfort of the noble Lord, Lord Kingsland, but he would be right to be comforted. The clauses that deal with appeals and existing cases do not retrospectively validate orders made before the commencement of the legislation; instead, they allow the receiving courts to decide whether the orders made would now be permitted. The report of the House of Lords Select Committee on the Constitution states at paragraph 18:



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We think that the matter has been adequately dealt with.

The noble Lord, Lord Thomas of Gresford, was concerned about the police offering anonymity too freely to the witness, which ties the hands of the judge. The point was made earlier, too. The Crown Prosecution Service, the National Policing Improvement Agency and the Metropolitan Police are developing guidelines on the circumstances in which it would appropriate to apply for witness anonymity orders. They are discussing the contents of the guidance and will be informed of concerns about the practice that had developed before the House of Lords judgment in Davis and what your Lordships have said in relation to it.

Lord Thomas of Gresford: My Lords, will the noble and learned Baroness assure us that, in preparing the forthcoming Bill, she will consider setting up a code of practice, as we have with other important areas where the police interrogate witnesses, as opposed to simple guidelines? It is just as important to have a statutory code of practice in this area, rather than guidelines over which Parliament has no control.

Baroness Scotland of Asthal: My Lords, I certainly hear what the noble Lord says. We have found it incredibly helpful that the whole process adopted in relation to this Bill has been consensual, helpful and collaborative. We hope that that same process continues as we seek together to try to craft something that will be fit for purpose and inure to the benefit of justice. The comments of all noble Lords today have been listened to and consideration has been given to them. I cannot say to the noble Lord that we will produce a code of practice, but we will certainly look at that suggestion.

I hope that I can reassure the noble Lord, Lord Thomas of Gresford. The court is required in Clause 4(2) to be satisfied that Conditions A, B and C are met and that the judge is not reaching a conclusion on guilt or innocence where a criminal standard of beyond reasonable doubt would be an appropriate test. The judge needs to be satisfied that the conditions are met. If the court is not so satisfied, the order cannot be made. That is an important safeguard.

I know that the noble Lord, Lord Kingsland, is unhappy about the power to extend the sunset date of 31 December 2009. I assure him that we have every intention of subsuming the provisions of this Bill into the Law Reform, Victims and Witnesses Bill. We would expect that Bill to be enacted by the end of the 2008-09 Session, but we have no crystal ball. An unexpected turn of events may arise that prevents the fourth Session Bill from being enacted by this deadline—I hesitate to say that it may be more in your Lordships’ hands than in those of the Government. We must therefore provide a backstop that enables the sunset date to be extended. I understand why noble Lords opposite insist on a precise date, but certain consequences flow with it.

Lord Lester of Herne Hill: My Lords, does not the noble and learned Baroness agree that if the backstop were precise and not capable of extension, it would strengthen departmental bidding for parliamentary time and concentrate minds extremely well?



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Baroness Scotland of Asthal: My Lords, I reassure the noble Lord, Lord Lester, that the date of 31 December has done just that, but the amendment tabled by Nick Herbert in the Commons also provided for the sunset date to be extended. It seemed therefore to be wanted by others and not just the Government.

I draw to the attention of the noble Lord, Lord Kingsland—it is terrible knowing noble Lords’ first names, because one is always tempted to use them—a further comment made by the noble and learned Lord, Lord Steyn, in the case Re A (No 2) in 2002. The noble and learned Lord very much endorsed comments made by other noble Lords when he made it clear that it was well established that the right to a fair trial in Article 6 was absolute in the sense that a conviction obtained in breach of it cannot stand but that the only balancing permitted is in respect of what the concept of a fair trial entails. Account can be taken of the familiar triangulation of interests of the accused, the victim and society. In that context, proportionality has a role to play.

I know that all noble Lords agree that we want a fair trial for all defendants, but we know that certain defendants want an unfair trial, where the witnesses who are able to give evidence fairly against them are prevented from doing so. We have to make sure that it is a fair trial not only for the defendant but also for the victim and that it is fair in taking into consideration the witnesses’ fair and proper needs. I thank all Members of the House who have helped the Government so hugely in making sure that this emergency legislation is the best that we could make it.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

Pensions Bill

2.59 pm

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord McKenzie of Luton): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Simon) in the Chair.]

Lord Skelmersdale moved Amendment No. 112ZD:

(a) participation in the scheme should be encouraged and facilitated;(b) the burdens imposed on employers by the scheme should be minimised;(c) any adverse effects on other qualifying pension schemes, and on members and future members of those schemes, should be minimised;

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(d) the cost of membership of the scheme should be minimised;(e) the returns to members on retirement should be maximised;(f) the preferences of members and future members should, so far as is practicable, be taken into account in making any provision about investment choice in the scheme;(g) diversity among members and future members of such a scheme should be respected.”

The noble Lord said: With this rather drawn-out Committee stage, we tend to forget that Clauses 65 and 66, which in continuous terms we have just finished debating, set up the all-important trustee corporation and give it a very broad remit of functions—so broad, indeed, that, apart from running the pension scheme that the Secretary of State is to set up under Clause 58, its only function is set out in Clause 66(l)(b), which refers to,

This, I assume, means yet more pensions Bills are in the pipeline—or is it there because of the Minister’s favourite word, “flexibility”?

We know already that the scheme itself will be prepared by the Personal Accounts Delivery Authority and handed to the trustee corporation on a plate, as it were. Shortly after that—we still do not know how shortly and I suppose that yet again the Minister will say that he does not know—PADA will leave the scene and become otiose. We on these Benches find it mysterious that, while both PADA and the trustee corporation are given functions, only PADA, under Clause 70, on which we will have a large group of questions, is given principles. I do not want to anticipate those debates now, because it is obvious that the trustee corporation needs to have rather different ones from those of PADA.

This brings me to the amendment, which is almost self-explanatory. The seven principles that we have identified most definitely apply to the organisation, the trustee body, which is to run personal accounts for as long as they exist—well into the next century, one hopes, when PADA is long dead and buried. Paragraph (a) of proposed subsection (2) says that it should be the job of the trustees to continue to encourage and facilitate jobholders in the relevant income bracket to first join and then continue with their personal account until retirement. It goes on to say that the trustee corporation should make every effort to minimise the burdens that it will inevitably place on employers, among whom will be new employers in the years to come. It will be up to the trustees, not anyone else, to keep them informed, but not—or it should not be— to harry them. If this is really necessary, it should be the role of the Pensions Regulator.

Proposed subsection (2)(c) underlines the fact that the trustees are running a default pensions scheme. In no way should they see it as their role to poach members from other schemes, especially direct contribution ones, but that thought applies equally to hybrid and final salary schemes, with which they may be seen to be competing. Again, I remind the Committee that I am thinking in particular of life after PADA and the vast amounts of money that the trustees will very quickly end up handling.



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This thought continues through into the next principle: continuing to keep down costs. Just because PADA hands on a scheme that was originally going to be paid for by charging the members 0.3 per cent of their pension investment a year, that does not mean that the figure of 0.3 per cent will continue to be possible in, say, 2020 or 2080. Nobody knows what is round the corner as far as the cost of personal accounts is concerned. The ink had hardly dried on the masses of reports and government statements that have surrounded personal accounts before I heard almost everywhere that the 0.3 per cent that the Pensions Commission regarded as ideal would much more likely be 0.5 per cent. I have even heard 0.7 per cent mentioned. Whatever this final figure is, though, care should be taken to keep it to that, and even to reduce it, when the trustees start to handle very large amounts of money.

Next, it seems to be a sine qua non that, unless the jobholders’ investments are seen to be having a reasonable return compared to other investments—ISAs maybe, even direct investment in the stock exchange, or in the currently somewhat unlikely event that lifetime savings accounts come on to the investment scene—jobholders will opt out. I am sure that the Minister will tell me that, because of the employer putting 4 per cent into personal accounts, other investments cannot possibly do better. However, you have only to look at the comparison tables in the weekend papers to see that that ain’t necessarily so. He might also tell me that ISAs are different because they are bought out of taxed income and are tax free only when they are released. That is, of course, correct. However, overall, if they are kept long enough, they can produce a perfectly reasonable return, especially if the full amount allowed is invested. This, of course, is more than twice the maximum allowed under PAs.


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