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Clause 86(7) is concerned with special measures in offences involving weapons. Schedule 12 to the Bill adds a schedule to the Youth Justice and Criminal

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Evidence Act 1999 and contains a list of offences with a power for the Secretary of State to amend that schedule so as to add whatever he thinks fit. I am anxious to hear from the Minister how he justifies so wide a power being granted in that way. If the Government think that these orders should be limited, they should say in the Bill how they are to be limited. To say, "Well, we shall just see how they go and then extend them as we think fit", is not a proper way in which to deal with a serious matter such as this. I beg to move.

Lord Henley: I added my name to the first of the noble Lord's amendments, to leave out subsection (4), giving power to the Secretary of State to add or omit an offence. As the noble Lord implied, we suspect that Secretary of State will not be omitting any offences-he will merely be adding, and simply adding, omitting or modifying one of the other conditions. That presumably means bringing in baseball bats, or whatever, should that be seen as necessary, or extending the age limit from 30.

I agree entirely with the noble Lord, Lord Thomas, that this seems a peculiar way in which to deal with criminal law, in that we are giving a power to the Secretary of State to amend it as he thinks appropriate by, I imagine, merely the negative resolution procedure. We suspect that the Government themselves feel that they may have gone a step too far in that, before any amendment was tabled by opposition parties suggesting that if there were to be such an order it might be more appropriate to have an affirmative resolution procedure, they came forward with that amendment, in Amendment 185A. That seems the absolute bare minimum, if we are to change criminal law; Parliament should have a good opportunity to discuss it, under the affirmative resolution. We all know that it is so easy under the negative resolution procedure for things to slip through without us noticing, try as we do to keep an eye on them.

I have one other question to put to the Minister. Will the Minister tell us, with regard to the new offences created in these clauses, when the offence for someone to disclose information in contravention of an investigation anonymity order in Clause 64(10) will come into effect? If it is not going to come into effect when the Bill gets Royal Assent, what are the Government's plans for bringing it into effect? As the Minister knows, I have a sneaking suspicion that quite a large amount of government legislation, particularly legislation that has come in the past from the Home Office and now comes from the Ministry of Justice, goes through both Houses of Parliament and is enacted and then takes some considerable time to come into effect. Sometimes it is repealed before it even comes into effect. I would be grateful if the Minister could deal with that point as well as the basic point about whether it is appropriate that the Secretary of State should make amendments in this way.

Baroness Butler-Sloss: The proposal concerns me. The Minister was speaking against Amendment 183ZA, which would have extended the use of this clause beyond murder and manslaughter. However, under subsection (4), the Secretary of State could enlarge it

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to anything at all, although the Government seem at the moment opposed to enlarging it in any way. I find this sort of clause worrying and very unsatisfactory. I am not content by the idea of it being an affirmative statutory instrument. As a member of the Merits Committee, I have noticed that quite a few affirmative statutory instruments slip quietly through the Moses Room in Grand Committee without anybody really looking at them. I do not believe that I have ever seen a subsection quite like this, and it seems to me to be very unsatisfactory.

4.45 pm

Lord Henley: The only reason I mentioned Amendment 185A is that I thought it was a bare minimum to at least make it affirmative. I agree with the noble and learned Baroness that both affirmative and negative instruments can slip through. I just mentioned it as I thought it was some indication that the Government possibly had felt a smidgen of guilt; that they had been caught out; and that is why they brought the amendment forward to try to make it look marginally more respectable.

Baroness Butler-Sloss: The noble Lord has given his view that clearly the idea of affirmative statutory instrument means that the Government are having some sort of second thoughts. I suggest that they might have third thoughts and wonder whether this is an appropriate subsection.

Lord Tunnicliffe: All through my life, I have found that when I think that something is straightforward and reasonable, the rest of the world does not. The essence of these clauses is taken up in many ways by the noble and learned Baroness, Lady Butler-Sloss. We were not against an extension of this provision, but we think that we should do that after we have seen how it works in a very narrow way to address a problem that we have now. We believe that, if it proves successful and we understand the right caveats and protections to put around it by order or particularly through guidance, it may be appropriate to extend it through an affirmative order.

We are creating a new offence. It will come into action-this covers the point brought up by the noble Lord, Lord Henley-by means of a commencement order. We aim to bring it in next spring after development of guidance for the police and the CPS. It is not our intention to use this provision, as the noble Lord, Lord Thomas, suggested, on every crime. To some extent, we have not got across-because in some ways legislation does not help us-what this new crime is about. For that reason, I should like to write to noble Lords setting out in a little more detail how it would work in effect and what the processes are. I hope that from that we will be able to illustrate that we will need not only a proper set of processes to create one of these orders but also some development. It is right to keep it narrow and it is right then to consider it for greater expansion.

Amendment 183A would remove the order-making power from Clause 62, preventing its amendment in the future so as to include further offences or other

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methods by which the qualifying offence for an investigation anonymity order must be committed. We envisage that there may be scope for widening the use of this new investigation anonymity order in the future. The purpose of the order is to encourage people to come forward to help the police who otherwise would not do so due to fear, which does not in principle preclude any offence from possible inclusion. However, let us first tackle the pressing problem of witnesses failing to come forward in cases of gang homicide and let us see how well the orders work in practice within their current scope.

Any future extension of the scope of the scheme would be considered on a case-by-case basis and any statutory instrument made under this power would be subject to affirmative resolution procedure, therefore permitting detailed parliamentary scrutiny. We do not consider it necessary or desirable for such changes to be made by primary legislation, especially if we wish to retain the flexibility to add new offences or conditions at short notice.

I remind the Committee that this order-making power was considered by the Delegated Powers and Regulatory Reform Committee. In its report on the Bill, the committee did not object to this delegated power. While it commented that the power was "significant", it concluded that,

I spent a year or two on the Merits of Statutory Instruments Committee and have since taken some affirmative orders through in the Moses Room with some of the noble Lords here present. The process does not allow things to slip through. Indeed, we will see tonight in the Dinner Break business a number of controversial affirmative orders which will be debated at some length. I have no doubt that the Government will come under appropriate scrutiny and pressure. It is worth reminding-

Lord Henley: I remind the Minister that it is a question not just of whether things slip through unnoticed. When primary legislation such as this comes before the House we have the power to amend it, whereas when a mere order goes through we do not. Although the order gets some scrutiny and debate, both by the Merits Committee and by your Lordships, there is no power to make amendments to it.

Lord Tunnicliffe: I will comment on the process of making an order. While the noble Lord is quite right that there is no opportunity to amend an order within the House of Lords, the process of consultation that leads to an order is one in which the Government take account of inputs to alter and amend. Any future extension of the scope of the scheme would be considered on a case-by-case basis. Any statutory instrument made under this power would be subject to the affirmative resolution procedure, thereby permitting detailed parliamentary scrutiny. We do not consider it necessary or desirable for such changes to be made by primary legislation, especially if we wish to retain the flexibility to add new offences or conditions at short notice. I remind the Committee that this order-making power was considered by the Delegated Powers and Regulatory Reform Committee, which approved it.

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The last time the House voted against a Motion approving an affirmative instrument was 28 March 2007, on the Gambling (Geographical Distribution of Casino Premises Licences) Order 2007, when the Government were defeated by 123 votes to 120. As a result, noble Lords will recall, that provision-the super-casinos provision-was withdrawn by the Government. That saw the end of that idea. Before that, records indicate that Governments have been defeated on three occasions on statutory instruments, one negative and two affirmative.

Government Amendment 185A relates to Clause 86, which extends automatic eligibility for special measures to witnesses to certain gun and knife offences listed in Schedule 12. The amendment responds to a recommendation by the Delegated Powers and Regulatory Reform Committee. Eligibility for special measures is determined by reference to a list of relevant offences, which may be amended by order subject to the negative resolution procedure. The committee recommended that this power should be subject to the affirmative procedure. We are happy to accept the committee's recommendation and seek to amend Clause 86 accordingly.

I hope that this also answers the concerns of the noble Lord, Lord Thomas, whose Amendment 185ZG would remove the power of the Secretary of State to add to or otherwise amend the offences in Schedule 12. This power is included as a sensible precaution to provide flexibility for the future. It will enable us, for example, to add, where appropriate, any new offences involving the use of knives and guns that may be created in the future. It also follows the form established in the parent legislation, the Youth Justice and Criminal Evidence Act 1999, where, under Section 18(5), the Secretary of State has the power to add to or amend the special measures provisions by affirmative order. In the light of this explanation and the conclusions of the Delegated Powers and Regulatory Reform Committee, I hope that the noble Lord will feel able not to press his amendment.

Baroness Butler-Sloss: I will make two points. First, I vividly recall the super-casino debate on the affirmative resolution. It was a quite exceptional situation. My recollection is that the House did not like super-casinos and voted, quite unusually, against the resolution. Secondly, on the subject of Clause 62(4), I am not opposed to having the opportunity to reconsider, although perhaps it would be preferable to reconsider limiting the provision to murder and manslaughter and add to it now, as has been suggested in other amendments. What concerns me is subsection (4)(a). Subsection (4)(b) is perfectly sensible, but subsection (4)(a) could add any offence at all-although I appreciate that, with an affirmative resolution, it may well be that one would not. However, to move in a Bill from murder and manslaughter to any offence is a considerable leap.

Lord Tunnicliffe: I thank the noble Baroness for those reflections. When we write to noble Lords and set out how the new, relatively narrow law will apply, and the procedures, conditions and guidance, it will be clear that we will look to this capability only for serious offences and will extend it only very carefully. I

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know that others see things differently but, from the Government's point of view, getting affirmative orders through that are controversial is tough, and there are opportunities for the House-

Lord Henley: The noble Lord cannot get away with that. He knows that it is more or less a nuclear option to vote down an order in this House. The convention is that we very rarely do. As the noble and learned Baroness said, the casinos order was exceptional. It is exceedingly rare for us to vote down an order. I can remember scarcely more than two or three occasions in the 30 years that I have been in the House.

Lord Tunnicliffe: The noble Lord is quite right-I was able to illustrate only one case from the recent past, and three from the records. However, that is in the minds of the Government when they create affirmative orders, especially controversial ones. That is why we go through a process of considerable consultation before they are pressed. However, I recognise that noble Lords may well come back to this on Report. I hope that, for the moment, the amendments will not be pressed and that, in the light of the further information that I intend to send, the concept of a narrow provision that will be extended very carefully by order will eventually appeal to the House.

Lord Thomas of Gresford: We will come back to this on Report. The Minister should appreciate that the identity of an informer has been kept secret for centuries, and still is. This provision has been introduced to deal with a very narrow area: murder or manslaughter caused with a firearm or knife by someone between the ages of 11 and 30 who appears to be a member of a gang. As I said, I do not know why that should be singled out, but that is what the Government want to do. In so doing, they have simply put a foot in the door. Throwing the door wide open is exactly what Clause 62(4) is about. I am very grateful to the noble and learned Baroness, Lady Butler-Sloss, for her support on that. I think that both subsections (4)(a) and (4)(b) are offensive. The Government should consider how they might properly narrow the discretion of the Secretary of State if he wishes to extend beyond the particular terms and conditions set out in the Bill. I look forward to receiving the letter to which the noble Lord referred, to see what further thinking the Government can give along those lines. For the moment, I beg leave to withdraw the amendment.

Amendment 183A withdrawn.

Clause 62 agreed.

Clauses 63 and 64 agreed.

5 pm

Amendment 183AA

Moved by Lord Henley

183AA: After Clause 64, insert the following new Clause-

"Review of investigation anonymity orders

The Secretary of State must, no later than two years after the commencement of this Part, review the operation of investigation anonymity orders made under section 64, and lay a report of that review before Parliament."

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Lord Henley: In moving this amendment, I wish to speak also to Amendments 183B and 183C in the name of the noble Lord, Lord Thomas of Gresford, and Amendment 184 in the name of the noble Lord, Lord Dubs.

The new clause that I propose should be inserted after Clause 64 is a simple review clause. The reasoning for it is simple and follows on from the debates that we have had on the previous two groups of amendments. The Government are introducing an innovation in the form of investigation anonymity orders. As we discussed on the previous amendment, the Secretary of State is giving himself various powers to amend those, as he so wishes, after their introduction next spring, as I think the noble Lord put it. Much will need to be tried out and no doubt mistakes will be made and lessons will be learnt. Therefore, we propose a review so that after two years Parliament will be guaranteed the chance to look at the scheme again and assess whether it is a success and is helping to protect those involved in potentially dangerous investigations. I beg to move.

Lord Thomas of Gresford: I wish to speak to Amendments 183B and 183C. I do not pursue Amendment 183B but Amendment 183C would add something to the Bill. In order that the Committee can understand what it is about, let me explain that the application for an investigation anonymity order will be made to a justice of the peace by a chief police officer or a director of one of the prosecuting services. The justice of the peace may make an order if he is satisfied that there are reasonable grounds for believing that the conditions set out in subsections (3) to (8) of Clause 66 are satisfied. Subsection (8) sets out the condition,

(a) is able to provide information that would assist the criminal investigation ... and

(b) is more likely than not ... to provide such information".

But that is not enough. These orders should be exceptional and should not be applied for or made unless, in addition to those two conditions set out in subsection (8), a further condition is met, which is that the person concerned,

That indicates that it is an exceptional circumstance.

Clause 75(5) sets out as a condition for making a witness anonymity order that,

That condition is applied when it comes to giving evidence in court-that the witness anonymity order can be made if it is the only way of getting the person into the box. To emphasise that the investigation orders should be exceptional, a similar condition should be imposed on the making of those orders.

I understand where the Government are coming from in seeking to give anonymity to witnesses, but they should always remember that people may come forward to the police with malign intent and with the intention of making false accusations against people. To grant wholesale anonymity in those circumstances, unless the conditions are pretty clearly established, is

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to leave open the opportunity that a person may be arrested and held and be subjected to all the problems of a criminal investigation as a result of a malign person inventing things against him. It is important that giving anonymity to witnesses should be not a regular thing but only used in exceptional circumstances. My suggestion in Amendment 183C-that it should be given only if the court or the justices of the peace are satisfied that the witness would be unwilling or unable to provide such information if the order was not made-is essential. If not, you open the door to the neighbour or tittle-tattler who wishes to do down a particular person.

Lord Dubs: Amendment 184 stands in my name. It stems from a recent report of the Joint Committee on Human Rights, of which I am a member. I am concerned again with investigation anonymity orders. The Bill provides that investigation anonymity orders should be available in cases of murder or manslaughter where death was caused by a gun or a knife. The argument for making such an extension of the provision is to encourage witnesses to come forward in the most serious gang-related crimes, where witnesses might otherwise be reluctant to do so because they fear reprisals. That is understandable. However, there is a difficulty.

Witness anonymity orders can be applied for by the police or other investigative body as well as by the DPP. However, there is a practical problem about the effectiveness of such orders. Unless the witness is also confident that his or her anonymity will be protected at the trial, they are unlikely to come forward at the investigation stage. Yet the investigating authorities are not in a position to know at that point whether such a trial anonymity order is likely to be applied for by the DPP, let alone given by the court. The requirement that an application for such an investigation anonymity order should first obtain the consent of the DPP would address that practical problem. It would give the witness confidence that their anonymity would be protected right through all the stages, not just at the investigation stage.

When the Joint Committee on Human Rights wrote to the Minister pointing that out and asking whether there was any reason why the consent of the DPP should not be required before an application for an investigation anonymity order was made, the Government's answer was that an investigation anonymity order is essentially an investigative tool to assist the police in their investigations of a particular kind of crime. They were talking about an early stage of the investigation before the CPS is involved. According to their response to us, the Government do not consider it appropriate to require the DPP to consent before the police apply for these orders.

I have already explained the difficulty. Surely, in the interests of witnesses coming forward, it makes sense to do this in the way that the amendment suggests rather than simply saying, "Okay, during an investigation a witness will have anonymity, but we cannot guarantee anything beyond that". It will make them shut up and not want to come forward.

There is a further point which is close to that made by the noble Lord, Lord Thomas of Gresford. The Joint Committee is also concerned that evidence suggests

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that the police have in practice not regarded applications for witness anonymity orders as exceptional. Without requiring the CPS's involvement in such orders, there must be a risk that the number of such applications by the police would be disproportionately large.

Lord Thomas of Gresford: My name is attached to the amendment of the noble Lord, Lord Dubs, and he has set out the reasons for it. I add only this. Of course the Director of Public Prosecutions is able to delegate his responsibility, and in each large police station these days a CPS representative is customarily stationed to advise the police on their investigation and how it should be carried out, and to advise on the charge. Therefore, it is not as though an application has to be approved by the Director of Public Prosecutions in person. It would be perfectly possible for the representative of the CPS who is assigned to a particular police station to give the consent that the noble Lord, Lord Dubs, is seeking. That would be an appropriate safeguard, bearing in mind the narrow scope of the application, as outlined by the Government so far, without the criticisms that I have made on its potential expansion.

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