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Division No. 3


Addington, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Arran, E.
Astor of Hever, L.
Avebury, L.
Barker, B.
Blatch, B.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Campbell of Alloway, L.
Carnegy of Lour, B.
Chan, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Cox, B.
Craig of Radley, L.
Dahrendorf, L.
Dean of Harptree, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Elton, L.
Fearn, L.
Freeman, L.
Geddes, L.
Goodhart, L.
Goschen, V.
Greaves, L.
Hanham, B.
Higgins, L.
Hogg, B.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
Kimball, L.
Knight of Collingtree, B.
Ludford, B.
Lyell, L.
Mackie of Benshie, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Newby, L.
Newton of Braintree, L.
Northesk, E.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
Rawlings, B.
Razzall, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Roper, L.
Russell, E.
Saltoun of Abernethy, Ly.
Seccombe, B. [Teller]
Selborne, E.
Shutt of Greetland, L.
Slynn of Hadley, L.
Smith of Clifton, L.
Stodart of Leaston, L.
Stoddart of Swindon, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Tordoff, L.
Vinson, L.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.
Windlesham, L.
Worcester, Bp.


Acton, L.
Ahmed, L.
Alli, L.
Ampthill, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Blease, L.
Borrie, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dixon, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Mitchell, L.
Morris of Aberavon, L.
Nicol, B.
Orme, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prys-Davies, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Renwick of Clifton, L.
Rooker, L.
Simon, V.
Slim, V.
Smith of Leigh, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Turnberg, L.
Varley, L.
Walker of Doncaster, L.
Whitaker, B.
Whitty, L.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

25 Feb 2003 : Column 182

6.46 p.m.

[Amendments Nos. 35 and 36 not moved.]

Baroness Anelay of St Johns moved Amendment No. 37:

    Page 17, line 42, at end insert—

"( ) Nothing in this section shall apply unless it is confirmed that the witness has received independent legal advice."

The noble Baroness said: My Lords, in moving the amendment, I also speak to Amendments Nos. 40 and 41. After our little local excitement, I should make it clear that Amendment No. 37 is a purely probing amendment to clear up uncertainties from Committee.

In Committee, I made it clear that I would use Report stage to examine the protection that might be necessary for witnesses giving evidence by television links. Part 1 of Schedule 2 sets out the rules by which television links will work, but Clause 30(6) gives life to that schedule. My amendment goes to the heart of the Bill by amending the clause to state that nothing covered by it can happen unless there is confirmation that the witness has received independent legal advice. Have the Government given consideration to that proposal since Grand Committee? If so, will they accept it, or what are their reasons for rejecting it?

I tabled a similar amendment in Committee that referred to Clause 31 and telephone links, but we have not debated the proposals in relation to Clause 30.

In Committee, I tabled an amendment to Part 1 of Schedule 2 to increase the protection given to witnesses by changing "may" to "shall"—a change that I occasionally adopt. I have not tabled another such amendment because the point is covered amply by government Amendment No. 40 published last Thursday. I thank them for tabling that amendment as it meant that I did not have to bring back my own amendment.

Paragraph 5 states:

    "The nominated court may intervene where it considers it necessary to do so to safeguard the rights of the witness".

In Committee, I asked the Government how far they believed the court should have a role in safeguarding those rights. My amendment removed the court's discretion to act in such circumstances and required it to intervene if it considered it necessary to do so. That was achieved by changing "may" to "shall". At that stage, the noble Lord, Lord Bassam, cruelly rejected my proposal on the basis that the Government considered it unnecessary, as they had confidence that the courts would use the discretion bestowed on them by the word "may". However, government Amendment No. 40 changes "may" to "is to".

25 Feb 2003 : Column 183

I look forward to hearing from the Minister why the Government changed their minds about the drafting of the paragraph. Why do they now accept that an amendment is necessary? Will the Minister explain the difference between "may", "is to" and "shall"? I give notice that, as a result of this debate, the Government may, or shall, see a lot more of the words "is to" in future.

Finally, I look forward to the explanation of the noble Lord, Lord Goodhart, for his amendment, which appears to have much merit. Will he explain in what circumstances he believes that written advice would be appropriate? I beg to move.

Lord Goodhart: My Lords, I speak to Amendment No. 41, which is in my name and that of my noble friend Lord Dholakia. It is the return of an amendment debated in Grand Committee. It is an amendment to Schedule 2, which deals with the giving of evidence on a television link. The schedule provides, among other things, that,

    "The witness is to give evidence in the presence of the nominated court . . . The nominated court is to establish the identity of the witness . . . The nominated court may intervene where it considers it necessary to do so to safeguard the rights of the witness".

It continues:

    "The evidence is to be given under the supervision of the court of the country concerned . . . Rules of court under section 49 must make provision for the use of interpreters".

Paragraph 9 of the schedule goes on to deal with privilege. Sub-paragraph (1) states:

    "The witness cannot be compelled to give any evidence which he could not be compelled to give in criminal proceedings in the part of the United Kingdom in which the nominated court exercises jurisdiction".

It is necessary, therefore, either for the witness himself to realise that he is being asked to give evidence in relation to which privilege applies and he cannot be required to answer in a United Kingdom court or for the judge to be able to intervene. This is, of course, a case where the judge is not controlling the hearing. Once the judge has established the identity of the witness, his only responsibility is to ensure that the witness's rights are respected. I believe that it would be appropriate in these circumstances for a witness to be given written information, in a language which he understands, in respect of his rights.

I entirely recognise that that practice is not adopted in the ordinary courts of this country. However, in the ordinary courts, the judge is sitting on the bench conducting the hearing and is listening to the case himself. The witness will be someone who understands English or whose evidence is interpreted. In this case, it is not clear that the evidence necessarily will be interpreted. The Bill certainly does not state that it will be. When I raised the point in Grand Committee, the noble Lord, Lord Bassam, said:

    "The domestic court could intervene if a matter was not understood as it could view that as a necessary step to take to safeguard the rights of a witness. Translation will have to be audible to the judge . . . In those circumstances the judge should be fully aware of all the questions".—[Official Report, 21/1/03; col. GC 111.]

25 Feb 2003 : Column 184

I am not satisfied that that will be the case. If the witness is being examined in a language that he does not understand, there will have to be interpretation. However, when a Greek witness, for example, is being examined by a Greek court—and this type of situation will arise very frequently—the witness will be examined in Greek and will reply in Greek. Is it really the case that the questions that the witness is asked and the answers will have to be translated from Greek into English so that the judge can be satisfied that there is no breach of privilege? If that is so, I think that there will be an awful waste of time and money. The proceedings will take twice as long and involve the presence of an interpreter, who otherwise would not necessarily be needed.

It therefore seems desirable to recognise that the judge may not always be in the same position to intervene as he would be if he was actually sitting hearing a trial in an English court. In those circumstances, it seems that there is an entirely justifiable reason for saying that the witness must be given advice in writing, in a language which he understands, before the hearing of the case begins.

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