Clause 71
Coroners and Justice Bill
1:45 pm
David Howarth (Cambridge, Liberal Democrat)
I beg to move amendment 451, in clause 71, page 42, line 9, leave out from ‘person’ to ‘or’ in line 10.
Frank Cook (Stockton North, Labour)
With this it will be convenient to discuss the following: amendment 452, in clause 71, page 42, line 10, leave out ‘any serious damage to property’ and insert
‘damage to property so serious that it would leave the witness or another person in a state of destitution.’.
Amendment 453, in clause 71, page 42, line 11, leave out paragraph (b) and insert—
‘(b) in order to prevent serious harm to the functioning of a properly authorised undercover operation.’.
Amendment 197, in clause 71, page 42, line 11, leave out paragraph (b).
Amendment 198, in clause 71, page 42, line 13, leave out ‘or otherwise’.
Amendment 446, in clause 71, page 42, line 19, leave out paragraph (b).
Amendment 454, in clause 71, page 42, line 21, leave out subsection (6).
Amendment 199, in clause 71, page 42, line 22, leave out ‘(in particular)’.
David Howarth (Cambridge, Liberal Democrat)
We now come to a series of difficulties with the existing legislation that the Bill does not resolve or change in any significant way. I shall talk first about amendments 451 and 452, then amendment 454 and finally amendment 453. Amendments 451 and 452 are about the extent to which threats to property could be sufficient to justify an anonymity order. Members of the Committee might remember that a number of hon. Members felt that in principle threats to property would be insufficient to justify anonymity, if they are not accompanied by a threat to a human being. A further point was raised by the Joint Committee on Human Rights, which doubted whether the property justification was consistent with the European convention on human rights. It cited an opinion given by the Attorney-General of New Zealand to the effect that the equivalent provision in New Zealand statute was highly likely to be in breach of the European convention on human rights standard. The Government at the time insisted that in their view the use of property damage to justify these orders continued to be compliant with human rights requirements.
The central question is not whether a threat of property damage that also threatens people would be sufficient for an order, as that is obvious. A threat to burn down someone’s house is a threat to the people who live in that house. We are not talking about threats to humans that are carried out through a threat to property—such a case is not difficult and is clear justification for an order.
Tim Boswell (Daventry, Conservative)
What about a situation in which the threat is to the person’s business? It might not involve their factory being burned down with them in it, but it might involve their factory being burned down in a way that will destroy their livelihood and materially damage their way of life, without necessarily threatening their physical safety? Is not that a difficult borderline?
David Howarth (Cambridge, Liberal Democrat)
It is difficult to burn down a factory without threatening someone’s life or limb. The situation that we are worrying about will arise only in very special circumstances, such as if someone threatens to burn down a lock-up shop at night when no one is there.
Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)
Suppose that the threat is to disable repeatedly or to destroy someone’s motor vehicle, which they use to get to work. Many poor people cannot afford to replace tyres, windscreens and wing mirrors repeatedly. The vehicle might be parked on the street overnight, and it might have been clear that no one was in it when it was being damaged, but any of us might find it difficult to cope with our car being damaged repeatedly one night after another. That would destroy some people’s lives.
David Howarth (Cambridge, Liberal Democrat)
I am glad that the Minister used the phrase “destroy people’s lives”, because she has talked about situations in which the threat to property would leave the family destitute, which would probably be sufficiently serious. That is why we have moved amendment 452, which would introduce the destitution test, following the Minister’s suggestion. There is also a destitution test under human rights law for another obligation of the state—that the state should not leave people in destitution.
The Minister’s example is an extreme case, and I am willing to accept that it is a justifying one, but the problem is whether the measure would apply in less serious cases in which the witness would not be left in a state of destitution, but would be left worse off. No one could deny that that might make them less willing to give evidence, but is that sufficient to anonymise the witness, which we have all agreed is an inherent threat to the fairness of a trial? The Joint Committee on Human Rights has raised that point, and it is still an issue now.
George Howarth (Knowsley North and Sefton East, Labour)
I think that it is naive to say that the examples that my hon. Friend the Minister has given are so rare. In parts of my constituency, people are regularly targeted as “grasses”, and their lives are made intolerable. I am sure that is not unique to my constituency. Would not the hon. Gentleman consider that to be a case in point that ought to be addressed?
David Howarth (Cambridge, Liberal Democrat)
The question is where we should draw the line. The Bill mentions “serious damage to property”, but how will seriousness be judged? I am perfectly happy to discuss the seriousness of the examples that have been mentioned. If the hon. Gentleman is saying that seriousness is not about the value of the property, but about the degree of disruption to the relevant person’s life, he might have a point, but the existing legislation and the clause do not make that clear. The measure could mean simply that a threat to a valuable vehicle belonging to a rich person would be considered to be serious damage, whereas a threat to a vehicle with a low market value belonging to someone on a lower income, which might be more important to them than the other car to the other person, would not count as a serious threat. I am not being absolutist—I accept that threats to property can disrupt lives—but we have to decide where to draw the line, and the clause does not do that. How serious a disruption to someone’s life should justify the use of anonymous evidence? We all admit that anonymous evidence may lead to injustice or the risk of injustice.
Alun Michael (Cardiff South and Penarth, Labour)
The hon. Gentleman is making a serious point constructively, but did he not provide the answer when he talked about judgment? Is it not a matter of fact that a judgment must be made? He gave a couple of examples of a judgment having to be made according to principles of where it is appropriate. The seriousness of a low-value vehicle in a community where intimidation such as my right hon. Friend the Member for Knowsley, North and Sefton, East described a few moments ago occurs is what “seriousness” is supposed to imply, but we cannot get away from the fact that if we had such an absolute definition in the law we would unintentionally exclude some examples of places where the right judgment should be made in the public interest.
David Howarth (Cambridge, Liberal Democrat)
That is right, but we should not allow a provision to go through unchallenged, if it could be interpreted in a completely different way from the one that the right hon. Gentleman has mentioned, and in a way that would not help people in that condition, but might help much better-off people.
Jeremy Wright (Whip, Whips; Rugby and Kenilworth, Conservative)
Does the hon. Gentleman agree that the neatest way of dealing with the problem that he has identified, and taking account of the points made by Labour Members, is “to prevent any damage to property with serious consequences to the witness”?
David Howarth (Cambridge, Liberal Democrat)
I will have to think about that, because it might be a way through the problem. The present drafting is not adequate or satisfactory, even from the point of view of those who are willing to go further than I would down the line of allowing property damage to count in the first place.
Tim Boswell (Daventry, Conservative)
At some risk of turning this into a drafting committee rather than a Public Bill Committee, may I offer a separate point for the hon. Gentleman’s consideration? It is not merely the seriousness, but often the serial nature of the attacks that is relevant. If someone says that they are going to slash someone’s tyres every weekend, that is an aggravated threat.
David Howarth (Cambridge, Liberal Democrat)
Yes. I think that that is the point that the Minister and the right hon. Gentleman were making, but the clause, as drafted, does not cover it, because each individual instance may not be serious. I do not want to say more about this topic, because I think that we have demonstrated that there is a difficulty in how the law is drafted at the moment.
Turning to amendment 454, I think there is a serious problem, which goes back to the origins of the original 1988 legislation. The Government never seem to be entirely sure whether the test for granting an order is based objectively on the safety of the witness—how safe are they?—or on the fear that they may experience subjectively. We have a very untidy compromise whereby both seem to be relevant, but it is not clear which takes precedence. I tabled the amendment simply to make that point. It is a probing amendment that would take out the last part of the clause and the fear element, while leaving the safety element.
The problem is that a witness can be perfectly safe, but have subjective fear. At the same time, someone may not have fear and may not be afraid, but may objectively be very unsafe. Which of the two—safety or fear—will be the real test whether anonymous witness orders should be made.
Tim Boswell (Daventry, Conservative)
In fairness, the clause as drafted refers to “reasonable fear”, and the hon. Gentleman is better placed than me to define what that reasonableness might be.
David Howarth (Cambridge, Liberal Democrat)
Unfortunately, we had an uncomfortable five minutes in the debate last time and came to the conclusion that we did not know what a reasonable fear would be. This is a halfway house, but it is still a reasonable fear rather than safety.
Tim Boswell (Daventry, Conservative)
Is a reasonable fear different from, as, for example, with asylum legislation, a well-founded fear?
David Howarth (Cambridge, Liberal Democrat)
That is an interesting technical question that I would have to think about further, but it still gets us no further down the line of deciding a serious policy question. Is the purpose of the anonymity order to protect people who lack safety in their lives and who are objectively under threat, or is it to help people who are subjectively in fear? The obvious starting point is fear, because that is what stops people coming forward, but the clause is drafted in terms not of fear but of safety. The Government need to be clearer on that point than they have been so far.
My final point is about the possibility of obtaining an order to prevent real harm to the public interest, which seems a very broad category. When challenged last time, the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston said that
“the purpose of the wording is to capture circumstances in which the intelligence agencies, or, for example, the police or the Serious Organised Crime Agency, are doing their job.”
Hon. Members were discussing an undercover operation, which would be compromised by allowing the identity of the witness—the agent—to be known. However, the wording of the clause goes way beyond the specific circumstances, talking about real harm at large. So, the Minister went on:
“If it helps Members...those are the only circumstances intended; I am aware of no other circumstances, beyond national security and the undercover work of the police and relevant agencies, that this part of the Bill is meant to cover. I hope that helps in any Pepper v. Hart situation that we might run across.”—[Official Report, 8 July 2008; Vol. 478, c. 1373.]
The policy of the Government is entirely clear, but in the mean time the opportunity has not been taken to change the words, so that the words in the Bill reflect the policy. I am disappointed by that, which is why I have tabled amendment 453.
More radically, one conclusion that I have come to on the problem of what one might call official anonymous witnesses, as opposed to civilian anonymous witnesses, is that such cases are rather different from what we have been discussing, namely the case of the intimidated witness. Perhaps it would be better to devise a separate scheme of anonymity for such witnesses.
Those are the points that our amendments are intended to raise.
George Howarth (Knowsley North and Sefton East, Labour)
While my hon. Friend the Member for Wrexham is out of the Room, I shall take advantage of the opportunity. I would like to kill two birds with one stone. A point about gangs and gang culture that the hon. and learned Member for Harborough raised this morning in another context has some bearing on what the hon. Member for Cambridge is saying now—it is about context.
In some communities in my constituency and others, the very presence of a minority—it is always a minority; it sometimes small but significant—can be intimidating to some members of the community. I shall quote two recent examples, one from the case of murder of Rhys Jones the summer before last, which rightfully gained notoriety nationally.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
That was in the right hon. Gentleman’s constituency.
George Howarth (Knowsley North and Sefton East, Labour)
In fact, it was in the neighbouring constituency of Liverpool, West Derby, although some of the events that took place afterwards happened in my constituency. The person who has now been convicted of the shooting of Rhys Jones drew on the support of members of the so-called Norris Green gang to help him cover up the crime. I do not intend to go into detail, because it is on the public record. The presence of those people in the gang were sufficient for the person to be able to evade arrest for many months, even though the police were well aware who he was.
The reason why the person’s connection to the gang could create a climate in which he was not arrested and the police did not have sufficient information was that people were literally terrified of the gang. They knew its members and were afraid to come forward. Moreover, they were afraid that the police would not be able to protect their anonymity if they gave information in a subsequent trial. It therefore took many months for the police to effect an arrest and make prosecutions. In the end, the police did an effective job and the young man was convicted, as were several other members of the gang who contributed to his evading arrest for so long.
I am putting the argument into context for the hon. Member for Cambridge. A person who lives in a community does not have to sit down and work out matters for themselves. It is obvious that some people—always a minority—are prepared to use any means necessary to prevent a prosecution from taking place. That is up to and including the intimidation of witnesses. If people know that that might happen, they do not want to engage in the process of law.
About three years ago in my constituency, a family were branded by one of the local gangs as “grasses”. Halloween is a peculiar new concept that we seem to have imported into our culture. It never used to be here when I was a child. It is an American import, and not one of the better ones. The cover of Halloween and the chaos that some people promoted on that evening was used to drive the family out of their home. They left their home on the advice of the police, because the pressure that was being put on them was so great. I do not know whether they were witnesses to a case, but the perception was that they were providing information to the police, and that was enough for them to be driven out of their home. They then had to be rehoused in another part of the area. Everyone understood that it was for the family’s protection.
Such issues were not in the family’s imagination. Real events were happening. Lots of people know what is going on in certain areas, and they fear that, if they co-operate with the police to the extent that they become witnesses and have their names identified, their lives would not be worth living—to use the phrase of the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston.
Alun Michael (Cardiff South and Penarth, Labour)
My right hon. Friend’s argument is extremely telling. He is right, but will he accept that some cases are dramatic and in which the police are involved, as in his first example, but that there are also situations when intimidation may be going on over a long period at a low level, of which perhaps the police and other authorities are not aware? That is difficult to deal with adequately, but it is important that people have the confidence to come forward as witnesses.
George Howarth (Knowsley North and Sefton East, Labour)
My right hon. Friend makes a strong point. He is right. In an intervention this morning, I mentioned a case involving a constituent with whom I had a conversation on Monday morning. I was urging her to go to the police about the intimidation that her family is experiencing. I will not go into a lot of detail, but the woman concerned has a daughter of 16 who, because of intimidation by gangs of young men, comes home from school and does not go out of the door until she is taken to school by car the following morning. Her daughter is a studious young woman who does not drink or hang around on the street. Those who do those things have decided to target her.
Her mother’s solution is to move. I can fully understand that. She thinks that there is no way out of it for her other than by getting out of that house to somewhere where the gangs will not target her daughter. I was trying to persuade her that she ought to go to the police and tell them what is going on—I said that I would go with her—and try to get the police to take more seriously the problem that she was experiencing. “No”, she said, “if I do that they’ll find out I’ve done it and my life will be even worse than it is now. More particularly, my daughter’s life will be even worse than it is now.” That is the reality of the lives that some people are living. That case fits into the category that my right hon. Friend mentioned.
More often than not, those problems are resolved not through the criminal justice system but through the housing transfer system. That ought not to be so. We ought not to find it acceptable that people’s fear of co-operation in a prosecution or with the police is so great that rather than even engage with it they will move house. That is the reality of what we are up against.
I have one point to make to the hon. and learned Member for Harborough, which has some bearing on this matter. In most of the cases involved, we are essentially talking about street gangs: groups of youngsters—perhaps up to 50 or 100 of them—who hang around on the street and are intimidating, although they do not necessarily do anything illegal. Within that gang will be some hard-core criminals. The police will know who they are, and teachers, social workers and anyone who has regular dealings with young people will be able to say who they are from when they are as young as seven, eight or nine. They will know about that because it is pretty predictable that a certain kid will go through a process and will end up probably as a criminal. That is the case with street gangs.
I have some anecdotal evidence, because I have seen things with my own eyes. The leaders of the criminal gangs—the ones who deliver drugs in the area and control that, for example—are almost grooming the street gangs. For example, I was asked by a residents’ group to chair a public meeting in a school hall in an area experiencing antisocial behaviour. I had invited someone from the Crown Prosecution Service, the area commander, who is a chief superintendent, and other police officers. That was an opportunity for that group of residents to express their concerns to the people who could perhaps do something about them. I also invited people from the magistrates courts. I wish that I shared the great confidence in the magistrates system of the hon. Member for Daventry. Quite often, frankly, the community that I represent considers the local magistrate with contempt.
At the meeting, a minibus rolled up driven by one of the local drug barons, who, I am glad to say, is currently detained at Her Majesty’s pleasure, and out poured a gang of the youngsters who were causing all the problems. One is a criminal gang, the other is a street gang, but where was the drug baron’s interest in that? Why was he ferrying them to a meeting to discuss antisocial behaviour? This was five or six weeks ago, and, interestingly, one of the most outspoken youngsters there went on to a criminal career. Most recently, he was arrested for offences involving firearms, so we can see the process that takes place.
I am straying from the amendments and the clause, but it is important to tell the hon. Member for Cambridge that that is the context in which such protections for potential witnesses are necessary. There are many places—not just in my constituency—where such activities take place.
David Howarth (Cambridge, Liberal Democrat)
The right hon. Gentleman has explained why I, unlike many people involved in the law, accept the need for anonymous witness orders. There is an absolutist view, which I do not accept, whereby any anonymity will automatically cause an unfair trial. It is unrealistic to think that the police and the authorities can protect people in the situation that the right hon. Gentleman describes. Some people think that they could, but, in reality, they cannot. That is why the orders must exist, and I fully accept them. However, we must be careful that we do not go too far, producing miscarriages of justice, as we might do, and providing malicious people with opportunities to use the law to take revenge on other people.
George Howarth (Knowsley North and Sefton East, Labour)
The hon. Gentleman raises a couple of scenarios that, if we wanted to exercise our imaginations, could flow from the proposal. However, I shall conclude merely by saying that those may be risks that are worth taking if we are to protect people properly from the problems that I have described. Many of my constituents, who have to put up with such problems day in, day out, are not as tolerant as the hon. Gentleman, and for good reason.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
Lest anyone listening to the right hon. Gentleman should think that his constituency is a hell hole, I should like to place on the record that I have been to his constituency on a number of enjoyable occasions, namely to Aintree race course, and I recommend regular visits to it.
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
Did you win?
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
No, a horse won.
There are many sides to all our constituencies, and, although the right hon. Gentleman’s description of the contextual material is highly valuable to us, I should not want the world to think that his constituency was a place of complete and utter misery, because it quite clearly is not.
George Howarth (Knowsley North and Sefton East, Labour)
I am grateful to the hon. and learned Gentleman. I think that I said on several occasions that the situation is not unique to my constituency, because it occurs throughout the country. However, for the avoidance of doubt, my constituency is heaven on earth.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I must have been to heaven once a year for a few years then.
I have not found it at all difficult to agree with the hon. Member for Cambridge on some issues, but he made it quite difficult for me to stay with him when he discussed his amendments on serious damage to property. He redeemed himself in my eyes, however, when he said that he is not an absolutist and is looking for somewhere to draw the line. He needs to, because, in any event, but especially having heard what the right hon. Member for Knowsley, North and Sefton, East said a moment ago, I think that damage to property is clearly the key to this matter—in addition to damage to individuals. It is a matter of fact and degree. There will be cases where the damage is trivial—
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I will just get to the end of the sentence, if my hon. Friend does not mind.
Clause 71(3)(a) mentions “serious damage to property”, and trivial damage would clearly not come within its ambit.
Tim Boswell (Daventry, Conservative)
I thank my hon. and learned Friend for giving way; in no sense was I seeking to derail what he wanted to say. When looking at the clause, should not the test at the back of our minds be that of needing to serve the cause of justice? That will be inhibited by a climate of fear, which could be transmitted either by threats to physical safety or life-damaging property damage. I agree with the remarks of the right hon. Member for Knowsley, North and Sefton, East that it is impossible to draw a literal-minded barrier around threats of physical violence.
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
That is a perfectly fair point.
Let me conclude my remarks in relation to the amendments that deal with damage to property. There is arson, and there is arson with intent to endanger life. Both are serious offences and both warrant life imprisonment in some circumstances. It would be a mistake to remove reference to property in the witness anonymity orders. I accept that we need a connection between property that is threatened with damage—or that has been damaged—and the witness or someone close to them. I do not need to take that point further as it is self-evident. I am sure that the hon. Member for Cambridge will accept that.
One further point occurs to me. The damage to property should not necessarily be measured in financial terms in relation to the property. We are talking about the impact, the ripple effect. I could disable a computer; actually, I could not—[Interruption.] I am sure that I have disabled many computers, but entirely by mistake. However, within the financial services, for example, computers are vital for the management of the stock exchange and the banking system—in so far as we have one. It does not take much to disable a computer system, but it could have a massive economic effect. It might be a small piece of damage such as removing a fuse, but the real damage is the loss of the business’s ability to function. That is an example of where serious damage needs to be construed in a reasonably wide form. Tighter or more careful drafting of subsection (3)(a) might get those points across, but the policy behind it is clear.
In relation to the hon. Gentleman’s points on subsection (6), amendment 199 seeks to deal with the same problem in a slightly different way. We are concerned about a proportionate response to a perceived fear. I could have a subjectively reasonable fear that if I do something, something terrible will happen to me. However, when that subjective fear is analysed, it is possible to reach the conclusion that, objectively, it should not impinge on an application for an anonymity order. I could subjectively reach the conclusion that if I carry on speaking until 6 pm, the hon. Member for Wrexham—he is leaving the room, so my objective fear is going with him—could introduce me to Stalin and Hitler, which might have adverse consequences for me.
I may genuinely think that, or fear it, but an objective analyst would say, “That is impossible. It may be something you fear, but it is unreasonable and not something that should affect condition A, your safety.” Even though I think that, in fact, my safety will not be affected by giving evidence in those circumstances. I am not going to be threatened; I am not going to meet Hitler or Stalin. That is a rather laboured way to explain the difference between a subjective fear and its objective assessment by someone else. We have to do that in all sorts of cases. A state of mind is a fact, it has to be established—to the satisfaction of the court, I would suggest—and the court has to ensure the overall interests of justice, as my hon. Friend the Member for Daventry said a moment ago. Courts do that, more or less day in, day out.
I do not think that quite so much needs to be made of subsection (6), albeit that expressions such as “in particular” need to be used clearly. Does it mean in particular but exclusively, or in particular but not limited to? The Minister understands the various options that could occur to an inventive construer of subsection (6). I shall leave amendment 199 there for illustrative purposes, so that the Minister can tell us what the Government mean by subsection (6).
There is a deeper and more serious question to be answered in relation to subsection (3)(b), which deals with the public interest point, which has already been discussed. Our amendments 197 and 198 deal with deleting paragraph (b) and the “or otherwise” at the end. Personally—I do not know what my hon. Friends think—I do not find the Liberal Democrats’ proposals particularly attractive, albeit that I entirely understand what they are about. The Government may have written more into paragraph (b) than is necessary: it is vague, wide and open to mischievous interpretation, and they need to edit it somewhat to be tighter. On that basis I am content to listen to what the Minister has to say.
Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)
We have had an interesting discussion about the purpose and context in which the provisions of clause 71, which deals with conditions for making witness anonymity orders, operate in the real world. I thank my right hon. Friend the Member for Knowsley, North and Sefton, East for that and others for the remarks that they made in his support. It is important that the Committee remembers that that is what the provisions are largely about.
It is also important to remember that the hand of Government was moved. The provision was not something that we sought to put into statute, as opposed to it being in the common law. However, when it became clear that the common law was not as it had been thought to be and would not remain fit for the purposes for which it had developed, as we all thought it had before the Davis case, neither we nor the rest of the parties in Parliament then felt able to restrain ourselves. There was general agreement that the emergency legislation passed last year was necessary. It was enacted swiftly and had support in all parts of the House.
We did not seek to set out precisely in statute the circumstances in which such things ought to be allowed, but now we are in that position. I venture to say, as the hon. and learned Member for Harborough said earlier, that things seem to be working quite well, owing in large part to the common-sense interpretation applied by the judiciary. My right hon. Friend the Member for Knowsley, North and Sefton, East understands and many of us know from our constituency experience what the provisions are all about and why they are necessary. Although we can have an academic debate, we must always bear in mind the fact that these provisions have a utility that we do not want to move away from.
Turning to the amendments, I begin with amendment 451 and 452, to which the hon. Member for Cambridge spoke. We debated briefly the purpose and usefulness of including the property limb of the test in subsection (3)(a). It has been useful to bat around those questions about what serious damage to property means. We think that the wording works, although some interesting points have been made about serial, more minor, damage. We must always remember the context, however: to a person who has very little, whose car is the only way they can get to work and who will lose their house if they do not have a job, minor damage to their property would be serious. Any common-sense interpretation of the wording would agree with that.
Although I do not believe that we need to change the wording, I am happy to reflect on what has been said, to make sure that by the time we come back on Report, we are clear that we have the best formulation. I think that we probably have and there is a disadvantage to over-complicating the tests. If common sense can apply and if things seem to be working, there is an argument for not interfering too much. I do not want to accept any of the hon. Gentleman’s amendments at present—they are probably probing amendments, in any event.
Amendments 197 and 198 would alter another of the three conditions for making the order. The second limb of condition A specifies that the order must be necessary
“to prevent real harm to the public interest”.
We have debated the meaning of that phrase before and it has not changed between last year and this. I made some overt remarks on the record in case anyone ever wished under the Pepper v. Hart procedure to be clear about what Ministers intended. There is no change in the intention, but there is clearly some purpose in enabling those who are undercover to continue to work in that way and not to lose the capacity to do so because they cannot have an anonymity order because their circumstances do not come under any of the limbs of the test.
Alun Michael (Cardiff South and Penarth, Labour)
Does the Minister agree that the requirements should not be used lightly and that there is always a judgment that has to be made—it cannot be escaped by going to the letter of actual requirements? The intention reflected in the drafting is to make sure that that judgment can be exercised in appropriate cases, without unintended constraints being placed, which would leave people vulnerable in the way that both my right hon. Friend the Member for Knowsley, North and Sefton, East and I have outlined in some of our examples.
Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)
I certainly agree with my right hon. Friend that anonymity orders should not become routine instead of exceptional. That was quite clearly said during the passage of the emergency legislation and I will not repeat it now. Common sense should be applied, and the fact that all sides appear to accept that the provisions are working indicates that it is being applied.
I have probably said what I need to about harm to the public interest in relation to amendments 197 and 198. Amendment 453 would change the wording of the second limb of condition A so that it explicitly and exclusively referred to preventing
“serious harm to the functioning of a properly authorised undercover operation.”
We do not think that the amendment is necessary, simply on the ground that we have made explicit what the current wording means and changing it might present us with more of a problem in statutory interpretation than leaving it as it is and reiterating why it was put there in the first place.
Amendment 454 would remove the court’s duty to take the witness’s fear into account when considering whether the order was necessary to safeguard the safety of the witness or another person. I realise that the amendment is a way into a discussion about whether we are looking at some kind of reasonable fear for one’s safety, but fear is a subjective thing, and if we are talking about trying to protect somebody and enable them to give evidence, it is the subjective fear that one ought to consider. My right hon. Friend the Member for Knowsley, North and Sefton, East will confirm from his experience that, quite often, it is stress and lack of sleep rather than fear that leads a person to a much more fragile mental state than one might expect, after a series of intimidatory activities that provide the final straw. It is not necessarily fear as much as stress—and just being completely fed up of being treated badly and threatened the whole time—that finally leads people to flee or refuse to come forward with their evidence.
In any event, as I have said, the current wording appears to work. The court will still be able to have regard to the question of fear as a matter of discretion. It is unclear what benefit there would be in removing it—I know that it is a probing amendment to get us into the discussion that the hon. Members for Cambridge and for Daventry were having.
I hope that the hon. Member for Cambridge will withdraw his amendment on the grounds that we have had a good debate and that the present provisions appear to work. It is not sensible to interfere with them.
David Howarth (Cambridge, Liberal Democrat)
The right hon. Member for Knowsley, North and Sefton, East said that I was tolerant of the sort of conditions that he talked about, but I certainly am not. If he knew where I was brought up and where my parents still live, he would understand why that is the case. All I am asking is that we are at least reasonably clear about what we are not tolerant of.
The way that the clause is written at the moment does not get at what we are talking about, which is the impact of the intimidating and threatening practices—almost ways of life on some estates—on the people whom we are trying to protect. It is not about discrete incidents; the idea that has come out of the debate quite clearly is that we are talking about discrete or one-off threats or one-off incidents to do with some bit of property, but that is not what it is about at all. It is the about cumulative impact on the potential witnesses of those threats and acts of intimidation happening day after day—that is what we want to stop. We are certainly are not tolerant of that.
Although it is not a good way to write a statute, there is a phrase that many Members have used to express what we are trying to get at, which is: if it is the kind of thing that makes people want to move, it is intolerable. The right hon. Gentleman and the Minister described it as the state when someone says, “I think I should leave and take my family with me because I do not feel protected by the police, and those people are just getting at me.” That is almost exactly what we should try to stop—the test should be that no reasonable person should be put in that position. I am far from clear that what we have now expresses that problem.
However, I am grateful for the Minister’s offer to think again. I suppose that chances are that she will come back and say that what we already have is the best that we can do and what I have just said is what the Government mean, but it has been useful to discuss what the word “serious” means in such circumstances. It does not refer only to how expensive the property was; it encompasses the sort of things that we have been talking about.
On the question of fear for one’s safety, we are all trying to move in the same direction. But it strikes me that the clause is the wrong way round: safety is the main thing, and then it takes fear into account in judging safety—whatever that means—rather than fear being the main thing, and an objective safety element being a backstop to ensure that we are not going too far along the lines of simply accepting what a timid person might say about their state of fear. I ask the Minister to look at that again.
Finally, on the issue of real harm to the public interest, perhaps the Minister is right that the best thing that she could have done today is what she has done, which is to reiterate that what the provision meant last time is what it means this time. I think that we are all now absolutely clear what it means and we are at least in the position that we were before. With that, Mr. Cook, I beg to ask leave to withdraw the amendment.