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Criminal Evidence (Witness Anonymity) Bill

We believe that at the moment, as a result of H and C and the current framework, it is possible—the court has the power—to invite the Attorney-General to appoint a special counsel if it is deemed that that is necessary and appropriate. We can already do that. Now we have the opportunity to look at special counsel, it is important to consider the nature of when they should be appointed, what the nature of the appointment should be and how it should be contained. There will be some not inconsiderable cost implications; I am not suggesting that that will be in any way determinative, but we will have to consider the best way of using these facilities and hone down, if we can, when and the type of case that might be necessary. Let me say as gently as I can that this is emergency legislation. We are incredibly grateful for the speed with which the committee has considered it. We will take carefully into consideration what is said; we notice the nuanced differences between what the committee, the noble Lord, Lord Thomas of Gresford, and, indeed, the noble Lord, Lord Kingsland, have said. Quite frankly, we want to get this right. If we did not have H and C as well as a power for the court to invite the appointment of special counsel, we would consider whether the sort of amendment proposed by the noble Lord, Lord Lester, would be the way forward, because it would be appropriate for us to meet that gap. However, we do not have such a gap at the moment; we have a little more time to look at this and when we do, we will be able to discover whether the current scheme, which is non-statutory, suffices and can be expanded. Alternatively, we may come to the conclusion—bearing in mind that in part we have a statutory scheme and in part a common law scheme—whether a different arrangement and configuration might be necessary. That is all we are saying at this stage. Because this is emergency legislation, we should pause and get it right in case it is misconstrued that what we have done under the cloak of the legislation is create a statutory scheme which would then put in question whether in other circumstances—other criminal proceedings—the common law opportunity for the court to appoint a special counsel was no longer there. I know that that is not what the committee or the noble Lord, Lord Lester, would wish. The noble Lord, Lord Elystan-Morgan, is right that it is not necessarily a question of this course and no other. There may be other things we can do better to inform the court. In later amendments we will look at the guidelines that the DPP may wish to put forward and the guidance that I, as Attorney-General, may wish to give. There may be a number of things we should do to make sure that these cases are properly dealt with.