Lords amendment No. 1 is designed largely with the avoidance of doubt in mind. We wish to prevent unnecessary legal argument arising about the effect of the emergency legislation that will come into force on Royal Assent. The amendment puts beyond doubt that, even following the abolition of the common law in relation to such applications, the identity of witnesses can be withheld from the defence before and during the making of an application for a witness anonymity order.
The amendment therefore makes it clear in the Bill that the party making the application is under no obligation to disclose the real identity of a witness to other parties at the application stage, with a saving for the disclosure of a defence witness's real identity to the prosecutor. In addition, where it is proposed that an order should be made, the amendment makes it clear that the identity of witnesses can be protected in the proceedings before the application is made, for example, during committal proceedings.
Lords amendment No. 1 also addresses a question raised by amendments tabled in the other place. The issue is whether the court must always know the identity of the witness. In the vast majority of cases, it will do so, but very occasionally there may be national security-related cases where even the court will not know, and will not want to know, the identity of a witness. For that reason, the amendment does not include an absolute requirement to disclose the identity of the witness to the court. Rather, it grants the court a power to waive the disclosure to the court of the real identity of a witness on a case-by-case basis. We envisage that the real identity of a witness will be disclosed to the court in the vast majority of cases.
Finally, Lords amendment No. 2 makes it clear that the power of the criminal procedure rule committee to set out further procedures relating to witness anonymity in criminal procedure rules is unaffected. It is likely that the rule committee will want to make specific rules, as soon as possible, to set out the mechanics of applications for these orders. Indeed, the committee is meeting on Friday, when it will be invited to discuss this very matter.
I shall begin by dealing with Lords amendment No. 2, in respect of which I simply ask the Minister to confirm that the rules bringing this procedure into effect will be made as quickly as possible. She mentioned that the committee will be sitting fairly soon. It is important, however, that despite the emergency nature of this legislation, the practitioners and courts see the rules as soon as possible.
Amendment No. 1 provides us with an object lesson of what happens when one legislates without proper care and with a great deal of speed but without much consideration. Lord Hunt of Kings Heath, the Minister in the other place, spent about four of the five minutes of his speech apologising when he explained why the amendment was introduced at the last moment. He was right to do so. I notice that the Minister did not find it convenient to do it here, but I am sure that in the back of her mind was the need to apologise to this House for that late amendment.
We do not want to press the matter to a Division, but we think that a degree of clarification is required at this late stage. First, what effect does the late Government amendment have on the prosecution's duty to give full disclosure in a criminal case? It is not clear from what the Minister said how or whether that duty is affected. Secondly, will she explain precisely what has been abolished in relation to the common law as it was thought to be until the House of Lords judgment on the Davis case?
Clause 1(2) states:
"The common law rules relating to the power of a court to make an order for securing that the identity of a witness in criminal proceedings is withheld from the defendant (or, on a defence application, from other defendants) are abolished."
Yet clause 5(2), which deals with relevant considerations that have to be taken into account before a court is satisfied that the conditions for making an order have been fulfilled, states in paragraph (a) that those considerations include
"the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings".
Of course, that takes us back to the common law position. The Government need to explain, even at this late hour, what they intend by clause 1(2). Having said all that, I trust that the Minister is looking forward to her happy hols.
On amendment No. 2, I have nothing to add to what Mr. Garnier just said. However, I have a point to make and a question to ask about amendment No. 1. When we debated amendment No. 35 to clause 3(2) last week it became very clear that that clause was trying to cover too many different possible cases with too few rules.
I welcome the fact that the new version of clause 3(2) provides more detailed provisions. I particularly welcome the addition of the obligation to disclose the identity of the proposed anonymous witness to the court. That is an important improvement. I also welcome the fact that the new version pays more attention to the procedure for making those orders. I am still very concerned about the lack of equal treatment between anonymous witnesses proposed by the defence and those proposed by the prosecution. Under the new version of clause 3(2), when the defence applies for a witness anonymity order, it still has to disclose the identity of that witness not only to the court but to the prosecution. That is not the case the other way around.
When we debated the matter last week, the argument was made that the prosecution needed to know the identity of the witness in order to fulfil its duties, which were also mentioned by the hon. and learned Member for Harborough, of disclosure to other defendants in multiple defendant cases. The problem with that is that it is precisely in those cases that everyone is agreed that we do not want material that identifies the witness to go to the other defendants as it is usually the criminal associates of the other defendants who cause the trouble and the fear.
In fact, the new version of clause 3(2) specifically states that there is no obligation on the defence to disclose to the other defendants material that might tend to identify. The problem is that if there is an obligation on the prosecution to disclose and the prosecution receives information that might tend to identify the witness, the prosecution might find itself obliged under the disclosure rules to disclose that information to the other defendants. The effect of that would be that what the Bill is attempting to ban directly might occur indirectly. I cannot find anything in the Criminal Procedure and Investigations Act 1996 that might prevent that, so there is a serious problem with how the Bill is worded.
I still have a more fundamental problem with the imbalance between prosecution and defence. There is still a human rights problem, because article 6.3(d) of the European convention on human rights requires witnesses for the defence to be examined on the same basis as those for the prosecution. It was argued last week that the difference between the two sides is that the prosecution would know the previous convictions of a proposed witness and would put them to the court when the court was deciding whether to make an order. It was said that the same would not apply to the defence because it would not necessarily know the true picture of the defence witness's antecedents, and the Lord Chancellor made the point that people are not often entirely honest about previous convictions.
The problem with that is that I am not entirely sure that the prosecution always puts a witness's previous convictions to the court—at least not under the previous, rather informal procedure. Secondly, when the court is faced with a decision about whether to grant an order, it knows that it will not have the same information about a defence witness as it does about a prosecution witness. Even if it does not know that, the court can be reminded by the prosecution that it does not have the same information that is available for a prosecution witness. The court can take that into account when deciding whether to grant an order.
In any case, if the defence thinks that it might not get an order because it is not in the same position with regard to a witness's previous convictions, it can supply those previous convictions itself. It is an oddity of the Criminal Records Bureau legislation that people cannot undertake a CRB check on themselves, but that they can get around that by submitting a data protection request to the police national computer. It seems to me that it should be up to the defence to decide whether it wants that to happen.
I am still not convinced of the underlying argument, especially as I believe that the proposal for an independent counsel offered a better route. I still think that that would solve more effectively the problems that I have set out. I have to say that I was rather disappointed by the House of Lords decision in respect of the independent counsel issue. The Conservative spokesperson said that he supported the idea—
Order. I think that the hon. Gentleman is dealing with amendments that have been defeated in the other place. They are not really things that we should be discussing this evening.
I accept that, Mr. Deputy Speaker, but my point was that a different aspect of the independent counsel proposal was raised twice—first in connection with this amendment and specifically because it offered an alternative way of dealing with this problem, and then later by itself. I still think that it is relevant to say that I was disappointed by what happened in the other place, where the Conservative party was slightly feeble.
Nevertheless, and even though we still disagree on the fundamental point about equality of treatment, I hope that the Minister will be able to answer the more specific question. Is it intended that it should be possible for sensitive information about identity to be released to other defendants in multiple defendant cases in the indirect way that I have described? The obvious intention of Lords amendment No. 1 is to stop that happening directly.
With the leave of the House, Mr. Deputy Speaker, I should like to answer the questions that have been raised.
Mr. Garnier asked about the rules. I think that the fact that the rules committee is meeting on Friday indicates that it intends to move swiftly. We hope that the rules will be produced as soon as is practicable, commensurate with the consideration that the committee must give to what they should say. On his question about what precisely is being abolished, I draw his attention to Hansard, where my noble Friend the Attorney-General made it clear that
"We are dealing only with the common law ability to grant anonymity orders, which the Judicial Committee said we cannot use, and we are substituting a statutory framework by way of the provision."—[ Hansard, House of Lords, 15 July 2008; Vol. 703, c. 1107.]
What is being abolished is not the ancient common-law right to confront one's accuser, but the system that had grown up in the court for creating anonymity orders. That is being replaced by the statute before us.
As the hon. Lady has been good enough to refer me to what the Attorney-General said in the other place, may I ask her to bear in mind the point made by the noble and learned Lord Lloyd of Berwick? He asked the Attorney-General:
"Does the noble and learned Baroness agree that, once the principle is established, the worst solution would be to have common-law rules and statutory rules running side by side? That always leads to confusion."—[ Hansard, House of Lords, 15 July 2008; Vol. 703, c. 1108.]
For the record, we need to be clear whether the Government accept the thrust of Lord Lloyd's suggestion.
Indeed, but I hope to be able to assure the hon. and learned Gentleman that what he suggests is not what is happening. The legislation before us, and any refinement of it in the forthcoming Bill, is about dealing with the rules for anonymity orders, for which a Judicial Committee of the House of Lords said that there was no common-law power. There will not be two sets of rules running in parallel. The legislation sets out the statutory rules for granting an anonymity order. I hope that that clarifies the matter.
David Howarth made some esoteric points, if he does not mind me saying so. I enjoyed hearing a Liberal Democrat say that the Tories were being feeble.
They always are, apparently.
Let me try to reassure the hon. Member for Cambridge, because he made an important point to which the hon. and learned Member for Harborough also alluded. Where the defendant has told the prosecutor of the witness's real identity for the purpose of making an application for a witness anonymity order under the Bill, the prosecutor will have to consider whether that material is potentially disclosable under the Criminal Procedure and Investigations Act 1996, which the hon. Member for Cambridge has clearly read this afternoon. Under section 3(6) of that Act, the prosecutor already has the power to make an application to the court to withhold such material if it is not in the public interest to disclose it. In practice, we expect that the courts will deal with any prosecutor's duty when it makes the determination in respect of the defendant's application for the witness anonymity order. In practice, over the next few months, we will be in a position to see how that works, and no doubt we will be able to take any action that needs to be taken in the light of that experience when we reconsider the legislation in proceedings on the Law Reform, Victims and Witnesses Bill. I think that I have dealt with the points raised, and I reiterate the fact that we support the Lords amendments.
I think that these proceedings are about to conclude, so if I may detain the House for a second, I should like to put on record my thanks to the official Opposition and the Liberal Democrats, in both Houses, for the co-operation that we received, both in the Chambers and, as it were, behind the Chair. It was important to complete proceedings on the Bill as quickly as possible. It is the duty of the Opposition to oppose, but they have done so in a very constructive way, recognising the imperative to get the legislation through its stages. I also thank the officials in my Department and parliamentary counsel for all the work that they have undertaken in double-quick time.
Lords amendment agreed to.
Lords amendment No. 2 agreed to.