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Furthermore, the amendment would give independent counsel power to direct a police investigation independent of the one which led to the prosecution. In our view, investigation should always be a matter for the prosecution team because it should have access to all relevant information whether because of the need to discharge its statutory disclosure duties properly or ultimately to decide the main question whether to continue to pursue the prosecution. We are also concerned that this aspect of the amendment could be taken to imply that those who investigate offences are somehow lacking in objectivity or even worse. It would be fundamentally wrong in principle to legislate on that basis. That is the basis on which this amendment is drafted.
Leaving aside the undesirability in principle of using a Bill about witness anonymity as a vehicle for legislating on special counsel, which covers the whole range of criminal proceedings, the amendment raises serious concerns as to unjustified divergences from the common law in an area where the system is working well. For those reasons, I invite the noble Lord to withdraw his amendment. If he cannot do that and puts the matter to the opinion of the House, I shall certainly be advising the House to vote against it.
Lord Thomas of Gresford: My Lords, I am most grateful to the Minister for his reply. He says that this is an entirely new procedure, which is true, but he is putting into statutory form an imbalance between prosecution and defence which has not existed so far. I should consider his criticisms, however, on the drafting of this amendment, and I note that he has given an undertaking-at least an indication-that the Government will look more widely at the role of the special advocate. At the moment it is rather unfortunate that the special advocate system is entirely within the purview of the Attorney-General and that it is not a matter for the trial judge to consider whether he or she will be assisted by the provision of special counsel to cover certain matters-not simply on behalf of the defence but on the part of the court itself.
I reject the suggestion that my amendment criticises the investigating police force. It was not my intention to do so in putting the amendment forward. Having listened to the Minister, having considered all the issues raised by him, and in light of his reference to a wider investigation into the role of special counsel, I will not pursue the matter at this stage. I beg leave to withdraw the amendment.
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Clause 78 : Conditions for making order
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Lord Thomas of Gresford: My Lords, Amendments 76P and 76Q are matters of wording more than anything else, and I do not propose to pursue them. However, I shall move Amendment 76P in order for the Government to address your Lordships on the amendments that are linked with them. I beg to move.
Lord Tunnicliffe: My Lords, Amendments 76P and 76Q pick up an issue previously discussed in Committee. I have to tell the noble Lord, Lord Thomas, that the amendments would have no material effect when compared with the current drafting. Under Clause 78(6), the court will necessarily have to consider any fear of the witness, taking into account the witness's circumstances, in order to judge whether that fear is reasonable. If it is a reasonable fear, the court must have regard to it. Thus, the test already has an objective element. Where the court inquires into the fear of a witness under this provision, it is obliged to have regard to the fear only where it is reasonable. I trust this further explanation will reassure the noble Lord.
I can deal briefly with government Amendments 77 and 124 as they are essentially technical. Clauses 81 and 82 make provision for witness anonymity orders to be varied or discharged by the court that made the order. There is an issue with the current drafting in that we could expect the courts to construe it as requiring exactly the same magistrates' court to discharge or vary the order as made it. Clearly, this could cause problems if a member of that court became unavailable for any reason in the period between the original making of the order and its proposed discharge or variation. Amendment 77 will ensure that where the court that made the order was a magistrates' court, it will be open to any magistrates' court in the same local justice area to discharge or vary the order. Amendment 124 ensures that, where a witness anonymity order is made by an old-style service court under the Criminal Evidence (Witness Anonymity) Act 2008, the new service courts provided for by the Armed Forces Act 2006 will be able to discharge or vary it under the provisions of this Bill when they are in force. I hope that the noble Lord, Lord Thomas, will agree to withdraw his amendment.
Lord Thomas of Gresford: My Lords, I beg leave to withdraw my amendment.
Clause 87 : Interpretation of this Chapter
77: Clause 87, page 50, line 7, at end insert-
"(2) In the case of a witness anonymity order made by a magistrates' court in England and Wales or Northern Ireland, a thing authorised or required by section 81 or 82 to be done by the court by which the order was made may be done by any magistrates' court acting in the same local justice area, or for the same petty sessions district, as that court."
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Clause 96 : Directions to attend through live link
Lord Thomas of Gresford: My Lords, we move swiftly to live links, another topic that we have addressed in this House quite recently. I think I have made known to your Lordships the position of principle that we take on it, which is that live links have a useful function, but that a defendant should be able to consent to the use of a live link, not have it thrust upon him. It is interesting to see how this issue has a creeping connotation. We start by having live links that are perhaps helpful to a defendant in particular circumstances, and he will consent to it, but now we come to having live links used as a compulsory mode of communication in court proceedings. It is that principle that I oppose, and for that reason, I beg to move.
Lord Bach: My Lords, the current use of live links-these are being piloted as we speak-is inconsistent. Defendants who are already in prison cannot veto the use of live links when they appear at a preliminary hearing, but if they plead guilty during the hearing they can be sentenced over the live link only with their consent. Separate consent is required if such defendants are to give oral evidence at the sentencing hearing. The defendant's consent is also necessary where he has been convicted and is to be sentenced at a live-link hearing from prison. He must also give separate consent if he is to give oral evidence at this hearing.
The defendant's consent is also required for the use of a live link for virtual court hearings where the defendant is at the police station, either having been detained there or having returned to answer what is described as live-link bail. These police-station-to-court live links are a new initiative and are being piloted at present. After lengthy consideration, we have come to the conclusion that there is no justification for requiring consent for the use of a live link for certain sorts of hearing while not requiring it for others. A live link hearing ought to be treated much like any other hearing.
This House is well aware of the need for increased efficiency in the criminal justice system. The increased use of live links, for which this clause provides, will enable cases to be progressed more quickly and ensure the best use of available resources and technology. Crucially, the quality of justice will not be affected by these changes; live-link hearings will come under the same rules and guidelines that apply to all preliminary and sentencing hearings, and the defendant will have access to all existing legal safeguards.
In addition, the clause adds a safeguard whereby, when any consent requirement is removed, the court cannot give a live-link direction unless it is satisfied that it is not contrary to the interests of justice to give the direction. Of course, a court can rescind a live-link direction at any time. In practice, this will mean that a court will be able to consider a defendant's views on the use of a live link, or any particular needs that he may have that render the use of a live link unsuitable.
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These changes have the potential to increase the speed, efficiency and effectiveness of the criminal justice system without affecting the quality of justice. This will deliver: first, a better deal for victims and witnesses, as cases will be resolved more quickly; secondly, a better deal for the taxpayer, as police and court resources, which are very precious, will be used more efficiently; and, thirdly, a better deal for the defendant, as their case will be progressed more quickly. In turn, this will, we hope, support public confidence in the effectiveness of our criminal justice system. On that basis, I invite the noble Lord to withdraw his amendment.
Lord Thomas of Gresford: My Lords, the Minister says that the use of live links is inconsistent. Some need consent, while others do not; so what does he do? He says that no one shall need consent in any hearing and that that will make it all consistent, but it would be fairer to require consent every time a live link is proposed. For a person who is locked up in a prison cell or who is in a police station, having to have his case heard at a distance where he is not supported directly by his legal team and his legal team cannot take instructions from him easily-it can be done but with considerable difficulty-is a disadvantage. In many instances, one would advise a defendant not to consent, but now the Government, in the interests of rationality, have decided to make it the same for everyone: no consent required. That is just an indication of the way in which this Government have gone from the beginning in the field of the criminal law. For the moment, however, I do not propose to divide the House, and I beg leave to withdraw the amendment.
Clause 103 : Powers in respect of offenders who assist investigations and prosecutions
78: Clause 103, page 61, line 13, leave out "Enterprise and Regulatory Reform" and insert "Innovation and Skills"
Lord Tunnicliffe: My Lords, the noble Lord, Lord Henley, will recall that these technical amendments mirror ones we tabled in Committee, but which I withdrew at the conclusion of the debate on 13 July. As I previously explained, Clause 103 extends to the Financial Services Authority and the Secretary of State for Business, Enterprise and Regulatory Reform the statutory powers in the Serious Organised Crime and Police Act 2005 for prosecutors to confer immunity from prosecution in respect of defendants who co-operate in the investigation and prosecution of others. The 2005 Act also makes provision for defendants who turn Queen's evidence to receive a reduction in their sentence in return for their co-operation.
These amendments are necessary to reflect the machinery of government changes announced by the Prime Minister in June when the Department for Business, Enterprise and Regulatory Reform was replaced by the Department for Business, Innovation and Skills. In Committee, the noble Lord, Lord Henley, asked why the clause did not adopt the usual approach of
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The noble Lord, Lord Henley, raised the fact that the power is given to the Secretary of State "acting personally". Perhaps I may stress that there is no intention that the Secretary of State will use these powers himself. Where a Secretary of State is ordinarily granted a power in legislation, unless otherwise specified, that power may be automatically exercised on his behalf by a large number of officials in his department. We want to ensure that these powers can be delegated only by the Secretary of State to no more than two appropriately senior prosecutors within the department. That is why we use the phrase "acting personally" in the clause. Clause 103(4) goes on to provide:
"In exercising the power to designate a prosecutor ... the Secretary of State",
may designate only two people; namely, a chief prosecutor and a deputy prosecutor. There are, of course, other Secretaries of State whose departments prosecute criminal cases, but it is in respect only of those especially serious cases prosecuted by the Secretary of State for Business, Innovation and Skills, and by the Financial Services Authority, that we consider an extension of the statutory Queen's evidence powers can presently be justified. To make that limitation clear we consider it necessary to put it in the Bill. I hope that this further explanation will satisfy the noble Lord, Lord Henley. I beg to move.
Lord Henley: I hope that the noble Lord was a bit embarrassed about reading out that nonsense. We hear yet again him trying to say that the Secretary of State for Business, Enterprise and Regulatory Reform "acting personally" does not have to act personally, but that it means that a very limited number of people can do the job for him. This is a nonsense of which the noble Lord should be ashamed, as should the draftsmen who have tried to put this into the Bill. It is not clear at all.
I originally raised this when I saw the words,
I thought that that was a bit of a nonsense. We are all used to the expression that we see in most Bills, which refers just to "the Secretary of State". My understanding was that the Secretary of State in law was just one person, and that it was much easier when drafting a Bill just to say "the Secretary of State" because it would not need to be amended as the Prime Minister changed the names of the departments-at whim, with great regularity. We have not had a Department for Business, Enterprise and Regulatory Reform for that long. Before that we had another department with another name and before that another name. At great expense, Prime Ministers change the names of departments for reasons that are beyond me. No doubt there are worthy reasons for it, but there are major costs in it.
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Perhaps the Prime Minister will not have time to change the name because of the amount of time that the Government have got left to cause further mischief. But, presumably, when the Prime Minister next changes the name there will be further costs and an amendment Bill will come before this House, which will no doubt be called the coroners and justice amendment Bill 2009 or 2010. It will have one clause, to change the name of the Secretary of State for Business, Enterprise and Regulatory Reform to something else. At that point something might be added about "acting personally" so that we know precisely what the phrase means. I find it odd that "acting personally" means that you are not acting personally, in that other people are doing something for you.
6 pm
I despair of this. I remember that when we debated it, possibly late at night, the noble and learned Baroness, Lady Butler-Sloss, supported me and I was grateful for that support. I do not think I can take it further, unless she wants to come back on it, or unless the noble Lord himself wants to do so. Indeed, I now have before me the words she used in Committee; my noble friend Lord Hunt has provided me with a copy of the relevant Hansard:
"What does the Minister think a court might do with this? If the phrase is 'acting personally', I do not see how you can delegate".-[Official Report, 13/7/09; col. 992.]
May we have an answer to that point from the noble Lord, Lord Tunnicliffe? I hope that he has one, and I am happy to keep on talking for a while so that a response might appear from another quarter. This is comical. The Government have tried their best but they have not tried very hard. I find it odd, particularly when, going back to Clause 103(3) the Secretary of State is acting personally, and a bit later he is not acting personally. When he is not acting personally, does he delegate to even more officials than the two officials he delegates to when he is acting personally? This is a very strange way of doing things.
I do not know whether other noble Lords want to question the Minister on this, and I do not know whether he would like to try to make some sort of response. I leave it to him.
Lord Tunnicliffe: My Lords, once again I am sorry that the drafting may not be elegant, but I believe it is clear. The clause effectively defines "acting personally", and subsection (4) makes it quite clear what the phrase means in this clause. I am sure that noble Lords will agree that such a power should not fall under the automatic capability of normal legislation for any official to be able to exercise it. It is a serious power and this is the government draftsman's way of limiting it to two specified individuals. The limitation is entirely appropriate for such a serious matter. I wish the wording was more elegant, but I believe that it says what I say it means.
79: Clause 103, page 61, line 19, leave out "Enterprise and Regulatory Reform" and insert "Innovation and Skills"
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80: Clause 103, page 61, line 32, leave out "Enterprise and Regulatory Reform" and insert "Innovation and Skills"
Schedule 14 : The Sentencing Council for England and Wales
Baroness Linklater of Butterstone: My Lords, I shall speak also to Amendments 80B, 89ZA and 89BA, all of which are grouped with Amendment 80A. We have reached Part 4 which covers sentencing. When we discussed the composition of the Sentencing Council in Committee, I was delighted that the Minister agreed with the proposal of my noble friend Lord Dholakia that the lay membership of the council should include someone with experience of the rehabilitation of offenders. It is that sort of expertise that is central to the issues that the council will have to consider, and that was a good decision. However, I was not so successful in persuading the Minister that someone with experience of the media and someone with experience of youth offending should also be included, despite support at the time from other, distinguished noble Lords.
I draw some comfort from the fact that someone with expertise in the rehabilitation of offenders is very likely also to have experience of youth offending, and I hope that this will be seen as a requirement to be included in the skills of this particular member. The Government must be in no doubt of the extreme importance of expertise in the field of youth offending, where our record of reducing reoffending is so poor and the needs of this group so great.
I am not going to pursue that argument any further, but I want to return to my other suggestion since I continue to believe that knowledge and experience of the media is extremely important, in an understanding both of communication skills and of how the media work. It is vital that the Sentencing Council is able to deploy such skills as it carries out its new duties, enabling it to ensure that some balance is restored to the way in which the press, particularly what are called the red tops, report on events in our criminal justice system. How to redress ignorance and misunderstandings on the part of the public is an issue that has to be taken very seriously, since the media represent the single biggest factor influencing public understanding of, and confidence in, our sentencers. This is not a trivial proposal, but a very serious one that also informs my next amendment.
How things are reported is, quite understandably, a cause of real pressure and anxiety for many sentencers. There is considerable anecdotal evidence which shows that how they perceive the possible response of the local or national press can have a significant bearing on the final decision in a case. This influence is unacceptable when it occurs: how tough you are prepared
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