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Criminal Evidence (Witness Anonymity) Bill

As the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) said at the outset of his remarks, this has been an informative debate, and we are the better for it. However, where there is broad agreement, there is a need for additional caution. It is in debates on Bills such as this that the other place comes into its own. I hope that we will learn from and be advised by its deliberations later this week and next. The consensus that has emerged, both from our discussions before this debate and, in particular, during this debate, has not only been consolidated, but has moved subtly on the following issues—issues that I shall come to describe, although they have already been usefully described and considered not only by the Secretary of State and my hon. Friend the shadow Secretary of State, but by the hon. Member for Hendon (Mr. Dismore), who had the advantage of listening to the Director of Public Prosecutions this morning, the hon. Member for Cambridge (David Howarth), who gave us another highly considered contribution, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), who as ever came armed with a textbook, the hon. and learned Member for Medway (Mr. Marshall-Andrews), my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and, most recently, the hon. Member for Meirionnydd Nant Conwy. The consensus that I would draw out from all those contributions centres on the following points. First, we do not want anonymity orders to be used routinely—they should be the exception—and we do want to encourage lazy policing, lazy prosecuting or an informal process to emerge under which such orders become the norm. My experience in the Crown court as a recorder is not quite the same as the experience of the hon. Member for Meirionnydd Nant Conwy. It may just be the luck of the draw, but I find that applications for special measures are quite rare, and those that are made I rarely grant, but there we are. We all want sensible and proportionate rules in place for the judges to consider and apply. We want a presumption in favour of openness, because open justice leads to fair justice, and fairness is required under the European convention—and was required under common law—and, whether under common law or the convention, was recognised by the Judicial Committee in the Davis case as essential. I suggest—the Government might want to consider my suggestion, both this evening and between now and the Bill's arrival in the other place—that there is also a consensus on special counsel. My right hon. and learned Friend the Member for Sleaford and North Hykeham spoke about that point in interventions and at further length in his speech. I suggest—I am sure that the hon. and learned Member for Medway, who has considerable criminal justice experience as a barrister, would make the same suggestion—that we need to employ special counsel in such cases. I would add to the list the need for an objective test of anxiety—that is, an objective assessment of the risk to the anxious witness or those associated with him. We should not allow a witness simply to assert that he is anxious for his safety, his life or his property. I suggest that the judge would be assisted by the intervention of special counsel dispassionately to lay out the facts and help him to reach a just conclusion. A consensus has formed on the introduction of a sunset clause, too. A number of amendments and new clauses have been tabled that propose different dates and mechanisms, but the House has come to an agreement—and, through their new clause, the Government have joined that agreement—that a sunset clause is imperative. My right hon. and learned Friend the Member for Folkestone and Hythe congratulated the Judicial Committee on not asserting some form of supremacy over this place, but inviting us to do what we should do—legislate to fill the vacuum that its decision has created. Too often nowadays the response to judicial activism is parliamentary abuse, but my right hon. and learned Friend's speech was an exception. Indeed, in all parts of the House today there has been a proper recognition of the need to respect the wisdom and advice of the Law Lords, and to fulfil our duties in dealing with the problem that they have set us. It is now up to us, in the period that remains to us this evening—I trust that it is not controversial to say that we have not enough time in which to scrutinise the Bill properly—to produce a scheme for the provision of anonymous witness orders that meets requirement for the justice in each case, and provides fairness under the rule of law.