The clause amends several statutory provisions under which applications are made to a judge to allow criminal procedure rules to prescribe the procedure to be followed for those applications. It caused the media some concern, and I shall refer to the discussions and results of that shortly.
At the moment, such applications are excluded from the ambit of the criminal procedure rules. That is inadvertent—it could be said that it was a mistake—but it came about in the following way. The Courts Act 2003 provides for rules to govern the practice and procedure to be followed in the criminal courts, but the criminal courts are defined as the Crown court and the magistrates courts. A judge sitting alone to hear an application does not technically constitute the Crown court and is therefore not covered by the definition. Allowing rules to prescribe the procedure for such applications will bring them into line with other, similar applications, helping to keep criminal procedure consistent and easy to find. It also makes it possible for the Criminal Procedure Rule Committee to keep the procedure up to date and efficient in the light of experience.
A separate issue arises from the Police and Criminal Evidence Act 1984 and the provision in schedule 1 for making applications for production orders. Those orders require specified persons to produce potential evidence for an investigator that an ordinary search warrant would not cover. PACE contains procedural requirements that are not found in other statutes under which production orders may be sought, such as the Terrorism Act 2000 and the Proceeds of Crime Act 2002.
It is sensible to bring the procedures generally into line for two reasons. First, the existence of different court procedures for applying for different sorts of court orders at the same time causes confusion and leads to avoidable litigation and expense. Secondly, the PACE procedures are inflexible and unhelpfully constrain what the rules can provide in relation to applications for a production order. As the law stands, everyone against whom an application for a PACE production order is made is obliged to become involved and attend a court hearing because of the PACE requirement for having all the parties at the hearing.
Banks and businesses against which PACE production orders are normally sought often do not have any objection to the order that the police want, as long as it is made by a court. All they want is a court order; they do not want the trouble and expense of being dragged into legal proceedings about information they happen to hold that might be useful to an investigation. On the other hand, the criminal procedure rules could differentiate cases where a party wished to appear from those where the application could be determined without a hearing. Setting out the procedure in the rules also has the advantage that it could be in much greater detail than in a statute and include modern features such as electronic communication.
It is rare for applications for production orders to be made against journalists. However, in response to concerns that media representatives who were consulted expressed, the Government have worked with them on an amendment that could preserve the status quo on journalistic material. That means that, when an application is made for the production of journalistic material, the amendment would allow the existing legislation to apply, and a court hearing would be mandatory.
The Government are also conducting an informal sounding exercise to ascertain whether there are any concerns about the effect of the clause other than in respect of journalistic material. If, as I expect, there are none, the Government could table on Report an amendment that has been agreed with the media to take account of journalists’ concerns.
Clause 47 is a modest change in the law that would relieve other respondents such as businesses and banks of unnecessary burdens. It will mean that courts are no longer forced to arrange unwanted and unnecessary hearings for people who might well not turn up and are quite happy for an order to be made. I commend the clause to the Committee.
The Solicitor-General may have answered one or two of my concerns, but I want to make some points. As he said, the clause would remove the statutory formality and protection for the requirement to make applications before a circuit judge for various orders, such as warrants and production orders. Currently, where a warrant is issued by a judge under legislation, if the criteria are not met and the respondent feels that the order has been made incorrectly, it may be challenged in a higher court. The proposal is that the criteria will be set within the criminal procedure rules.
It is unclear how any warrant or production order can be challenged if it is felt that the order or warrant has been incorrectly granted. It is not clear why the amendment is being proposed. What is to be gained by removing the statutory protection? The Opposition could be forgiven for having some scepticism that the purpose of the amendment is to remove the procedural and legal protection from the improper and inappropriate use of such powers, with little power on the part of the respondent to challenge the grant of such orders.
We acknowledge that part of the proposed amendment would allow for such applications to be made by e-mail or other electronic means, which would reduce the necessity for the police to attend court to make the application in person. However, we have some reservations about whether applications would be given sufficient time and consideration by the judge when made in that manner. It is one thing for an application to be made before a judge in person; it is quite different for a judge simply to consider a written application in his chambers. In addition, such a method of application would preclude any questioning or scrutiny of the applicant by the judge. We need some assurances from the Secretary of State that, if the amendment is agreed to, there will be some form of protection in the criminal procedure rules for challenge.
Concern has also been expressed about clause 47(3), which would repeal paragraphs 7 to 10 of schedule 1 to the Police and Criminal Evidence Act 1984. That schedule deals with excluded or special procedure material. Excluded material includes documents and records used by journalists and held in confidence. To be fair, the Minister mentioned that in his opening remarks, and I hear what he has said about it. Paragraphs 7 to 11 of schedule 1 to the 1984 Act mandate the police to make any such application for materials inter partes, so that all parties to the proceedings are informed of the application and the journalist may make representations about why the excluded material should not be disclosed.
The concern expressed by some is that as the rules for safeguarding the press’s right to keep sources confidential are so important, the powers relating to excluded material should be retained directly in legislation and not delegated rules, under which the courts could be given more powers to force journalists to disclose material. There are worries that clause 47(3) will threaten journalistic protections and remove the statutory procedural safeguards set out in schedule 1 to PACE. I have some sympathy with the notion that removal from parliamentary scrutiny of such a fundamental free speech protection is worrying. Although nothing in the Bill suggests that that is an intentional consequence of clause 47, we seek assurances from the Minister that journalistic freedoms will be protected.
I am aware that my hon. Friend the Member for Hayes and Harlington (John McDonnell) has met the Minister with responsibility for Government policy on this issue and that the Government seek to come to a mutually acceptable position. However, for the sake of completeness if nothing else, I want to put a couple of questions to the Minister. First, what protections will be afforded to ensure journalistic freedoms as they currently exist? Secondly, what form of challenge will be available in the event that that an order of the court is said to have been granted ultra vires?
I have considerable sympathy with the points raised by the hon. Gentleman. It is important that there are proper protections in the criminal procedure rules. I believe that the profession, the judiciary and those who speak for victims do have confidence in the Criminal Procedure Rule Committee, given its make-up and track record. Having said that, I am happy to assure hon. Members that there will still be the right of challenge. If an order is made ex parte, the respondent or person who is the subject of the order could apply to discharge it. The rules will also provide that if an inter partes hearing is required or desired, that will occur. As far as journalistic material is concerned, as I indicated, an agreement has been reached with the media representatives on an amendment, but we want to finish the sounding exercise to ensure that nobody else has a similar concern.
The protections that the hon. Gentleman hoped for are there. We intend those to continue, with inter partes hearings where needed. The real point, which I hope I made in my opening remarks, is that many banks, building societies and other organisations want to help investigators and they need a court order to disclose. In such circumstances, it should not be necessary for them to be solemnly dragged to court and made to attend a hearing, with all the costs and inconvenience that that involves, unless they want that or if there is a reason for that. The clause aims to address that.