Clause 1
Fraud (Trials without a Jury) Bill
10:45 am

Douglas Hogg (Sleaford and North Hykeham, Conservative)

I want to propose that clause 1 does not stand part of the Bill. As I said, my familiarity with Committees is rusty in the extreme but I think that it is in order for me to advance the arguments why the clause should not stand part of the Bill.

The effect of clause 1 not standing part of the Bill is that we would go back to the affirmative resolution procedure, which is provided for in the Criminal Justice Act 2003. Mr. Bercow, you and I, and my hon. Friend the Member for Beaconsfield were very interested in the passage of that Bill, as, no doubt, was the Solicitor-General, who will remember the considerable disagreement that arose between the Houses on what was then clause 42, which became clause 43; namely, whether complicated fraud cases should be held without a jury.

The House reached deadlock. At that stage, there was a bargaining process, to which I was not party, but it was reflected in the speeches made by the then Home Secretary and the Government spokesman in the other place, Lady Scotland, when they laid the affirmative resolution procedure. That procedure was part ofa bargain, which comprised something like the Government not trying to force their proposals forward; they would have very serious discussions with all the interested parties to see whether it was possible to formulate a lay assessor or special jury. It was plain that undertakings were being given to both Houses that very serious attempts would be made to agree a special procedure that did not involve judge-alone trials. That was the basis on which the other place accepted the Bill, and the basis on which it was enacted.

Stephen Hesford (PPS (Rt Hon Baroness Amos, President of the Council), Privy Council Office; Wirral West, Labour)

The right hon. and learned Gentleman will recall that on Second Reading I asked him if he would be in favour if the Government had come forward with a different procedure of judge and tribunal. He gave me an honest and straightforward answer: no, he would not. In those circumstances, even if the discussions had taken place, the right hon. and learned Gentleman’s position would have been the same. What, therefore, is his point?

Douglas Hogg (Sleaford and North Hykeham, Conservative)

The point is that Governments should keep their word. It is as simple as that. Integrity is an important thing in government. This Government have not got a reputation for integrity and this is yet another example of why they have not. They entered into a bargain; they told the House of Commons and the House of Lords what that bargain was, and they are departing from it. It is unseemly and dishonest and we should not be a party to that kind of conduct.

The question is whether anybody has made a serious attempt to become involved with the other parties—

John Bercow (Buckingham, Conservative)

Order. I must ask the right hon. and learned Gentleman to withdraw the term “dishonest”.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

I certainly will.

It does nothing for the reputation of politics that a government should give their pledged word to the House of Commons and to the House of Lords and then not deliver on their pledge. I will not say that it is dishonest, simply that it is unseemly and disgraceful, and I hope that that will satisfy the decorum of this place.

There is no doubt what the House of Lords was told, and no doubt what the House of Commons was told. It is in Hansard; I have it here—I have the reports in front of me.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton and Frome, Liberal Democrat)

Actually, three parties to that agreement, who are sitting in the Committee at the moment, can confirm the details.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

I will sit down soon, Mr. Bercow, so that the hon. Gentleman and my hon. Friend the Member for Beaconsfield can confirm what I am saying. There has been no serious attempt to involve anybody in finding alternative ways forward, which breaches the commitment to this House. For that reason alone, we should go back to the affirmative resolution procedure.

I have one other point, Mr. Bercow—I know that we need to press on. We are seeing this primary legislation simply in order to enable the Government to use the Parliament Act. The right hon. and noble Lord Hunt of Wirral made it absolutely plain that he and our friends would not support this on an affirmative resolution. The Government know full well that they will have difficulties with that resolution in another place and are introducing primary legislation so that the Parliament Act can be applied—and this change in the law, fundamental in its character, can thus be forced through. I happen to think that that is a disgrace.

Therefore there are two reasons for opposing the motion, Mr Bercow. First, although the Government have not been dishonest, they have departed from their pledged commitment to both Houses. Secondly, I deeply disapprove of the Parliament Act procedure.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)

Of course, there will be agreement between the three of us on these Benches, but the negotiations that led to the insertion of the clause with the affirmative resolution in both Houses was expressly done in order to require both Houses to be able to take part in that agreement—and expressly to avoid a type of Parliament Act procedure which in the end allows one House to prevail over the other.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

I am grateful to the hon. Gentleman for making that point plain. Indeed, it was correct for him to make that point on the Floor of the House. I have a copy of that speech before me. This is a serious matter. It goes to the integrity of government, and I very much hope that we do not give clause 1 a fair passage.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)

I, too, have some short but similarly strongly felt views to express. This important matter is controversial because it is a move away from the principle that, in England and Wales, there should be a jury trial for all serious offences. That is why, when the relevant legislation was going through the House in 2003, it was important for the Government to get their Bill, but it was also important for the Opposition parties—and some Government Back Benchers—to ensure that the Bill was passed without a proposal to get rid of jury trial in England and Wales for this category of offences.

We had many robust debates in both Houses, and the Lords rejected the Government’s proposal on several occasions. Mr Bercow, you will remember that this has been round the course before in earlier guises. Finally, with the clock against us at the very end of the Session—literally, a day or two before prorogation—there were extremely intensive discussions. In the end, it was proposed to have a double lock on a proposal to move to jury trial: the House of Commons and the House of Lords both needed to agree it. That is contained in the section that clause 1 proposes to amend by taking out the double lock.

Three things follow from that. First, when discussing whether there was a way for the Government to have their Bill in general but not this particular desired part, we looked at various options and there was negotiation through day and night to see what accommodation could be given. In the end, this was found to be the most convenient outcome, so it was not an outcome that did not ultimately command the agreement of both Houses.

Secondly, it was clear—and the references are in Hansard, in exchanges between the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett) and myself—that there were other conditions to be fulfilled, with the double lock and negotiations. There is, to put it gently, debate on whether the envisaged formal consultations ever happened; I do not want to elaborate at this stage. In our view, they never happened in the way that we expected or envisaged. There was a consultation of sorts, but it was never sold at the time as what we had agreed. Indeed, we were surprised to be then told that that had been the expected consultation. In our view, therefore, the second part of the proposal was not delivered at the time.

My third point is that there have been discussions with the Attorney-General and the Solicitor-General. I know that the hon. Member for Beaconsfield has had such discussions on more than one occasion, as have I. The discussions were not meaningless—alternatives were considered, but in the end agreement was not possible and the block therefore remains. We sought agreement irrespective of the formal consultation, but it was not possible, and we are back where we started.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

The hon. Gentleman was party to the agreement and it was anticipated that he would be party to the following discussions. He will remember that the then Home Secretary said:

“I find no difficulty tonight in offering the opportunity to the two main Opposition parties working with the Attorney-General, the Serious Fraud Office and the senior judiciary to take a further look at how that might be taken forward.”—[Official Report, 20 November 2003; Vol. 413, c. 1027.]

Will the hon. Gentleman say whether he has been involved in any detailed discussions with the Government in fulfilment of that pledge?

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)

The answer is that I can say expressly what happened: there was never any formal consultation with either of the Opposition parties, nor with the judiciary. There was a seminar in the Lords to which certain people were invited, but that was all, and it was never billed as such a consultation. There were then separate bilateral conversations at the invitation of the Attorney-General—both to the Conservative party and to me. So conversations have occurred, though not quite as we expected. The conclusion is the same, however: there was no agreement.

As the hon. Member for Wirral, West said to the right hon. and learned Gentleman, there was no presumption that alternatives did not exist—we considered alternatives. For example, we examined the possibility of smaller juries, and we considered juries with particular qualifications or characteristics. Some of us, however, were unwilling to move from the principle that there should be a jury trial, or a trial with  jurors, to decide questions of fact. The double lock is intended to ensure that both Houses must be satisfied on the question of departing from the principle of jury trials in fraud cases in England and Wales. They have not been so satisfied. The right decision was made previously, and that decision remains the right one now. The clause should therefore be rejected because it would change a very clear political, parliamentary and constitutional agreement.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I, too, was party to the discussions at the conclusion of the passage of the Criminal Justice Billin 2003—in particular during the stand-off disagreement between the House of Lords and the House of Commons on certain parts of that Bill. I have absolutely no doubt that the way in which the matter was resolved—in particular the introduction of the double-lock mechanism—was a direct consequence of the impasse that had been reached between the positions of the two Houses. There were numerous late night negotiations that covered different topics. At the end of the day, virtually every aspect had been satisfactorily resolved, except for the Government’s desire to remove juries from certain fraud trials.

Let me make the position clear, because I recollect the explicit words of my right hon. Friend the Member for Haltemprice and Howden (David Davis) to the Home Secretary, outside the Chamber. He said that the Opposition were prepared to collapse the Criminal Justice Bill if the Government persisted in their desire to retain section 43, because we felt extremely strongly about it. It was in response to that that, after a time of meditation, the Government proposed what I assumed at the time to be a face-saving device to allow a graceful withdrawal; indeed it was almost explicitly represented to us as that. That was the double-lock mechanism, and it was designed to ensure that section 43 would not be implemented without the consent of both Houses of Parliament.

I entirely agree with my right hon. and learned Friend the Member for Sleaford and North Hykeham that the removal of the double-lock mechanism is undesirable because we do not wish to end up with a Parliament Act position. The Government appeared to concede, as I understood it at the time of those negotiations, that only the consent of both Houses of Parliament would be satisfactory for the implementation of the proposals. These proposals are almost identical to the original ones, apart from the substitution of “High Court Judge” for “Crown Court Judge”. I can think of no good reason why the double-lock mechanism should not remain.

One of the startling aspects of this Bill is that, according to clause 4, on commencement, it appears that the Act is to come into force at the end of a period of two months beginning with the day on which it is passed. As I highlighted on Second Reading, even if this Bill were to reach the statute book, there would be some procedural aspects that needed to be resolved by way of new court regulations before it could be implemented. I am startled to note that it is blithely assumed that eight weeks after this Bill is passed by the  Houses of Parliament the first applications can be made to the Lord Chief Justice. The procedure exists for conducting such trials without further difficulty.

As we highlighted on Second Reading, there will be procedural issues about how to conduct a trial without a jury where the judge has to make rulings on law, possibly on public interest immunity material, and at the same time not be influenced in the decisions that he makes based on the facts. I assume that, if this unfortunate Bill were to be implemented, at some point the Government would tell us what they propose. There are, therefore, powerful reasons for having a commencement order. As the commencement order that we agreed back in 2003 was a resolution of both Houses of Parliament, it seems to me that it is a very good idea to keep that in.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton and Frome, Liberal Democrat)

As I did not have the opportunity to do so on my earlier interventions, may I say what a pleasure it is to serve under your chairmanship, Mr. Bercow?

The right hon. and learned Member for Sleaford and North Hykeham is absolutely right when he says that this is a matter of integrity. It is the integrity of the Government that is in question because I, too, was a party to the discussions that were held with the Home Secretary in his room behind the Speaker’s Chair very late into the night when we were discussing the Criminal Justice Bill, as it then was.

It was absolutely clear to all who were involved that the proposal was supposed to have a particular effect, the double lock. It was absolutely clear that the Government were, in good faith, to undertake discussions with the Opposition parties to see if there was a consensus view on dealing with complex fraud cases. It is equally clear that, by virtue of this clause, the Government are going back on the double-lock mechanism and, secondly, that no such meaningful consultation between all parties took place. Instead we had this absurd seminar in which the Attorney-General in another place invited a few of his chums round to talk about jury trial in an amorphous and unstructured way. I am not sure about the Conservative Front Bench, but members of this Front Bench who speak for the Liberal Democrats on home affairs, on constitutional affairs or in respect of the Law Officers in our House were at no time asked to attend, invited to attend or even told of the existence of this seminar.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I did not touch on the discussions in my own remarks but I am on the record on many occasions as saying that we did not consider the seminar to be the “discussions and negotiations” that the Government had offered, and we were totally unaware that that was in fact the only offering that was going to be made.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton and Frome, Liberal Democrat)

I am grateful to the hon. Gentleman, who confirms my view. We are left with a rather unpleasant taste in the mouth from the whole episode.

The one area in which the Government have been true to their word has been the undertaking that they gave a short time ago in another place not to use the order-making process that was outlined in the 2003 Act to proceed with the matter, but to bring it back as primary legislation. That is why the Bill is before us. For that, at least, I applaud them. However, many of us feel that it is brought before us in this form thanks not  to altruism on the part of the Government but because they know perfectly well that they would not receive the consent of the other place to secondary legislation. In using the primary legislative route—particularly through a short Bill such as the one presented to us today—they accept that they will not get the measure through in this Session, but open up the opportunity of using the Parliament Acts to force it through against the strong arguments that will, I suspect, be adduced in another place.

We are left with what I think is a rather underhand procedure to achieve an objective that the Government undertook not to try to achieve by those means. That is a heavy charge to lay against the Government. The other matter that is pertinent, given that we are considering clause stand part, is the timeliness of the proposals in any case. I listened carefully to all the remarks made on Second Reading. At no time was any cogent argument put forward that circumstances had changed since our discussions on the Criminal Justice Bill in 2003.

In fact, if there were arguments of timeliness, they would be in the reverse direction, because we have had changes in procedure and changes to the definition of fraud, by virtue of the Fraud Act 2006, which we dealt with in the last Session. We have had the interesting experience of observing from afar very significant fraud trials under another jurisdiction—the common law jurisdiction of the United States of America, which has retained jury trial for complex fraud and appears to have no difficulty whatsoever in securing convictions on that basis. We are still, therefore, at a loss to know why the Government persist in the view that there is a difficulty that can be solved only by the abolition of an ancient right of the people of this country in respect of complex fraud.

For all those reasons, we would be absolutely right not to allow clause 1 to stand part of the Bill. In fact, if it were possible for the Committee to vote out every single clause of the Bill and to ask you, Mr. Bercow, to report that the Bill had been deleted in Committee, I would feel that it had done its work well.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

The clause is important. It removes the obligation for there to be an affirmative resolution before commencement and paves the way for the implementation of section 43 of the Criminal Justice Act 2003. That allows for the prosecution in serious and complex fraud cases of persons before a judge sitting alone without a jury.

I have listened with care to the debate. I shall deal first with the procedural point raised by the hon. Member for Beaconsfield, then look at some of the points that were raised about the consultation before saying something about the substance.

Clause 4 will commence the Bill, rather than implement section 43 of the 2003 Act. It will amend that section, but there will need to be a commencement order to bring the section into force. I hope that that deals with the hon. Gentleman’s procedural question and his concerns about regulations and so on.

It was never intended that there should be a formal consultation such as those on White Papers, Green Papers and legislation. Our view was always that the Bill would provide an opportunity for representatives of the Opposition to meet Ministers to discuss whether  there was room for agreement on the way forward on non-jury trials. To facilitate that, the Attorney-General organised a seminar, which was held in January 2005 and attended by spokespersons from the Opposition. The hon. Member for Somerton and Frome said that the Liberal Democrats were not in attendance. Well, they were invited, and Lord Thomas of Gresford attended. I understand that he is a Liberal Democrat spokesman.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton and Frome, Liberal Democrat)

Will the Solicitor-General give way?

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I may have misunderstood the hon. Gentleman and, if so, I shall allow him to correct me.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton and Frome, Liberal Democrat)

I am grateful to the Solicitor-General. He said that it was never understood that there would be formal consultation. By whom? He was not party to the agreement, but those of us who were understood clearly that there would be formal consultation.

Lord Thomas of Gresford was invited, as a senior lawyer in the House of Lords, to a seminar organised by the Attorney-General. That is very different from inviting the Liberal Democrat Front-Bench spokespeople in the Commons to a formal consultation, on which we had a clear undertaking from the Government. Does he not understand that?

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I simply do not agree with the hon. Gentleman. I understand his point perfectly, but over the years there have been repeated opportunities for broad consultation on the Auld report, the Roskill report and so on. The matter has been going on for decades, never mind years. Professionals, the public and others have had ample opportunity to express their views over many years. The Government’s intention, which was always made clear, was that there would be an opportunity for Front Benchers of the main parties to come together and find out whether there was room for agreement. A seminar was held, to which not only Front Benchers were invited—

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton and Frome, Liberal Democrat)

We were not.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

The hon. Gentleman keeps saying that his Front Benchers were not invited. My understanding is that they were.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)

It is nonsense to debate matters of fact but, just for the record, as far as I am aware no invitation came personally to my hon. Friend the Member for Somerton and Frome or myself. Lord Thomas, who was a spokesman in the Lords at the time, was invited, and he accepted and went along. As far as I am aware, the invitation to something billed as the consultation, following discussions with the Home Secretary the previous autumn, was not extended to Front Benchers in both Houses.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

My understanding was that the hon. Gentleman had been invited, but he tells me that he was not. I shall ask my officials to check whether an invitation went to him—perhaps he did not receive it. I understand that the hon. Member for Beaconsfield accepts that he was invited.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I was certainly invited, but I did not understand from the invitation that it was the formal consultation procedure that the Government had promised. I thought that I was being invited to a seminar to consider the issue. The fact that it was the one and only consultation was not spelt out.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I do not accept that a formal consultation, giving yet another opportunity for public discussion, was either necessary or promised. I am not sure what on earth the hon. Gentleman expected the seminar to be—it was billed clearly as a discussion on serious fraud trials. Its substance dealt with the options available, such as a single judge, a judge with assessors and various other alternatives in order to resolve what everyone accepts, I think, is an issue—the length and manageability of serious and complex fraud cases.

The seminar was held and views were expressed, not only by Front Benchers from the two main Opposition parties—they were representatives from the Lords—but by others who were present. Those were fed into the Government’s consideration of how to proceed. We took the view that it was unlikely that the other place would pass an order in relation to section 43. Following further thought, we decided that it would be better to amend the 2003 Act.

I listened to the rather agitated hyperbole—if I may call it that—from the right hon. and learned Member for Sleaford and North Hykeham about how we have proceeded. I think that for the Government to bring forward new primary legislation, which will be considered fully in this House and another place, is a perfectly honourable and proper way to proceed. Hon. Members will have the opportunity to express their views, as they have done and will continue to do, in the course of our discussions.

I shall move from process to substance.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)

For the record, I have seen a note on the seminar. The Solicitor-General said that the Government formed the view after the seminar that the House of Lords would not agree to trials without jury. In the seminar, was there a unanimous, or significant majority view about an acceptable alternative?

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

The view that we needed to bring forward primary legislation was not formulated immediately after the seminar. The hon. Gentleman might recall that we debated the matter in the Chamber in considering an order. We decided that it was unlikely that it would get through the other place and, therefore, brought forward primary legislation.

On the substance of the hon. Gentleman’s point, at the end of the seminar, it was clear that we did not have consensus. However, most people who spoke thought that if we moved to non-jury trials, a single judge would be the best approach, although there was not a vote. Other people were in favour of a judge with assessors or small juries. Different views were expressed. However, most people who spoke indicated that if we were to move to non-jury trials, a single judge would be better.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

I am listening to the Solicitor-General carefully. My impression is that the majority of those who spoke were not in favour of departing from jury trials.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I was not at the seminar, so I regret that I cannot tell the right hon. and learned Gentleman whether his view is correct. I understand that there was substantial support during the seminar for both points of view. There were those who took the view that jury trials should continue, even in serious and complex fraud cases, and those who thought that the system should change. As far as I am aware, no vote was taken, so I cannot deal with the point that he makes.

I shall deal now with the clause. It is important, because it repeals the requirement for an affirmative resolution, which means that section 43 will be amended. As a result, we will be able to bring about non-jury trials, following an appropriate commencement order. Trial without jury, under section 43, will relieve the excessive burden on jurors, who have their lives disrupted for months on end. At the same time, the provision will allow the full criminality of the most serious cases to be laid out, to ensure that defendants face charges that adequately reflect the totality of the accusations against them. Such cases will be dealt with more efficiently, because the judge sitting alone will be able to read evidence that otherwise would have to be presented orally, at length, to a jury. The need for indictments to be severed or simplified would be lessened.

Bob Neill (Bromley and Chislehurst, Conservative)

It is a pleasure to serve under your chairmanship, Mr. Bercow.

Has the Solicitor-General had discussions with the Lord Chief Justice and the presiding judges of the circuit about the extra personnel that would be required by the Queen’s bench division, to make available sufficient High Court judges to try the cases? Has he had discussions about the flexibility that will be required by HM Courts Service in listing to accommodate cases that are to be tried alone? Does he have any view on what support for these proposals exists among the judiciary?

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

The judiciary will no doubt express its own views, but I think that I can say that there is support among many senior judges. No doubt, other judges take a different view. As in any group of people, there will be differing views. We know, from Lord Justice Auld’s report and the views expressed on a number of occasions by members of the judiciary, that there are those who support the proposals. The Lord Chief Justice will have to look in due course at the availability of High Court judges. We can discuss that matter when we reach that point of the Bill. To answer the point, there are differing views on the bench; of that I am sure. There is support for the change, as well as opposition to it.

It is important that the judge should be able fully to look at all the evidence. It is not our intention that the change to section 43 should be the thin end of the wedge of an attack on jury trials, as some have suggested. The provision will affect only a tiny number of exceptionally long and complex serious fraud cases. The Government  have no plan to go further than is already provided for in section 43. The other provisions, in part 7 of the 2003 Act, have, by and large, already been implemented. Section 43 seeks to deal with a specific, fundamental problem in serious and complex fraud cases, namely, the combination of an enormously long trial, which imposes an intolerable burden on jurors, and a failure to achieve justice. We therefore need to move forward with this change.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

I want to make a point in response to the Solicitor-General. I make no complaint that he referred to my comments as “agitated hyperbole”. Agitated? Perhaps they were, because we are talking about a scandalous matter. Hyperbole? I think not, because I shall demonstrate that there has been a clear departure from plighted commitments.

First, let us examine the nature of the seminar which, surprisingly, the Solicitor-General did not attend. [Interruption.] If the hon. and learned Member for North Warwickshire was not Solicitor-General at the time, I withdraw that remark.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I would have attended the seminar if I had been in a position to do so, but I was not Solicitor-General at the time.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

I stand corrected and I am prepared to acknowledge that I am at fault. However, we know the nature of the seminar as described by the Solicitor-General: it was a gathering at which a number of people were not present. I believe that the hon. Members for North Southwark and Bermondsey and for Somerton and Frome were invited but I understand that my hon. Friend the Member for Beaconsfield was not aware of it. It constituted the formal consideration promised by the then Home Secretary, who said:

“I find no difficulty tonight in offering the opportunity to the two main Opposition parties working with the Attorney-General, the Serious Fraud Office and the senior judiciary to take a further look at how that might be taken forward. We are able to look at that in relation to the SFO in a way that Roskill could not. In that light, I will not press for implementation of the clause.”—[Official Report, 20 November 2003; Vol. 413, c. 1027.]

What was promised on the Floor of the House was a comprehensive consultation involving the two main Opposition parties and the other responsible stakeholders, which is the phrase now used. What has been described to us clearly does not fall within that description.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I was unable to attend the seminar because I was unaware of its nature when I received the invitation and I had a prior commitment. My noble Friend Lord Kingsland attended, but at the end of the seminar he still did not appreciate that it was the formal consultation that the Government had offered.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

I have the greatest respect for my noble Friend Lord Kingsland and if he did not understand that it was the formal seminar promised by the Home Secretary of the day, one can be sure that no one else did either. What is certain is that the consultation promised by that Home Secretary was not delivered.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)

I want to make an obvious point. The present Solicitor-General and the Attorney-General occasionally telephone and ask me to meet them about something. Discussions take place between the offices, convenient dates are fixed and there is no doubt that the conversations are intended to be formal and on the record; officials attend, too. If there had been a telephone call to the hon. Member for Beaconsfield or to me saying, “We really need you at this seminar,” we could have rearranged the date, but it never had that status in the conversation with Opposition parties. That is my point.

There may have been invitations to a seminar and there may have been discussions but there are many such occasions, as the Solicitor-General indicated. We were not aware that something of such formality was taking place or we would have attended, or sought another date when we could have had those discussions.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

The hon. Gentleman’s intervention is extremely important. I have often criticised the hon. Gentleman, but never for being otherwise than assiduous—sometimes he is too assiduous. Had he had the slightest inkling that this was the formal seminar that he had been promised he would have been the first to be there; he would have been there throughout and he would have talked at very great length. None of those things happened, and that is powerful evidence in support of my proposition.

However, I have a much more serious matter to raise: we heard the Solicitor-General’s explanation of what the commitment was and I found it impossible to reconcile his understanding of the formal commitment with that given by the Home Secretary of the day. That being so, I will remind the Committee what that Home Secretary said in support of accepting the affirmative resolution procedure.

The hon. Member for North Southwark and Bermondsey asked the then Home Secretary the following:

“Is it the implication of his remarks that, as a result of the Bill passing into law tonight, there will not be any serious fraud trial by a single judge in England and Wales?”

The then Home Secretary replied:

“I am prepared to give that undertaking. It is part of the agreement that we will retain the clause, but move forward towards looking at the alternative solutions that I have mentioned, and that could be incorporated in one or other of the two measures that have ... been consulted on, or will come before the House in the Queen’s Speech. That safeguard is appropriate. I give a binding undertaking that we will follow that agreement”. —[Official Report, 20 November 2003; Vol. 413, c. 1028.]

The only thing that would be consistent with this Bill passing into law is if it applied to Northern Ireland. Everything else would be a breach of that undertaking.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)

For the record, and because the event was quite an important bit of political history, thehon. Member for Beaconsfield is absolutely right. He and his right hon. Friend made the view of the Conservative party as a whole about the Bill absolutely clear, as we did for the Liberal Democrats. It was clear that the Government were having to concede because  they would not have got their legislation, and time was running out. That too is consistent with them needing to make that significant change of position, for otherwise the Bill would have fallen.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

Absolutely right. If anyone wants to confirm what the hon. Gentleman has just said, it is in column 1030 for that day, where my hon. Friend the Member for Beaconsfield made it plain that what we were then witnessing was, in his own words, “a climbdown”. He went on to make it absolutely plain that the other place would not pass what was then clause 42. We are dealing with a departure from a commitment given on the Floor of the House, which is an extremely serious matter.

I have one other point to make. The Solicitor-General has, from time to time, referred in Committee and on the Floor of the House to the advantages of putting full criminality before the court. Anybody who has practiced in the criminal courts knows that one is seldom obliged to do that, and generally speaking it is a jolly good thing not to put full criminality, as it overloads indictments. Actually, one should identify those charges in respect of which there is good evidence, put the leading charges into the indictment and confine the case and the evidence to them. That is how to compress cases within manageable size, and it leads to a proper result, in that the appropriate penalty is then passed. To load the case with a multiplicity of indictments, simply to expose full criminality, has been deprecated by the judiciary time and time again. It is best dealt with, if at all, by offences being taking into consideration, or by the new procedure contained in the Criminal Justice Act 2003, which enables trial judges sitting alone to look at what were previously those TICs.

The idea that you should, as a matter of course, put full criminality before a court is an absurd proposition and can only come from a Government who have little experience of criminal law.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

Let me briefly respond to a couple of the points made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). There has been no departure, in our view, from any commitment that was given. The right hon. and learned Gentleman quite rightly read out the list of individuals and organisations that would be expected to contribute: the Attorney-General, the Serious Fraud Office, the Opposition parties, and the senior judiciary. A seminar was held to ask them for their views.

I do not know quite what the representatives of the Liberal Democrats and Conservatives thought they were going to when the Attorney-General, following the passage of the 2003 Act and in light of the fact that there had been a commitment to consultation, invited them to a discussion of how non-jury trials might take place. What on earth did they think they were doing if they were not going as part of the consultation? It beggars belief that the Opposition now claim that they sent respected senior lawyers to the very type of meeting and discussion promised by the Government, but that they did not know what they were doing. Do they often go along to meetings at which they do not know what  on earth they are doing? It is preposterous to suggest that the leading spokesmen of the Opposition parties did not know what they were doing in going to that kind of seminar. Did they think it was an academic discussion, or some sort of light entertainment? What on earth did they think it was?

They knew perfectly well that it was a serious discussion about a very serious issue, because it had been the subject of legislation. The Government said that there would be further consultation, and there was. If certain spokesmen for the Opposition could not make it, that is fine; it is their decision. If certain spokesmen turned up, expressed a view, engaged in the discussion and let their views be known, before walking away not knowing what on earth they had been doing at the discussion, that is a problem for the Opposition parties. They need to look at the nature and qualities of some of their spokesmen, because I do not think that the position adopted by them is in the least bit acceptable. They knew that it was a consultation on a serious issue. They were involved in it. They may not have liked the outcome, or decided that it was inadequate, but I do not accept that they did not know what they were doing. That beggars belief.

Subsequently there have been meetings between spokesmen for the Opposition, myself, the Attorney-General and other hon. Members from the Conservative and Liberal Democrat parties. Those discussions resulted in the clear view that we cannot agree on the matter. Therefore, we need to go back to seeing whether the House is prepared to pass legislation in order to amend section 43 or the provisions dealing with its implementation, to ensure that we can move forward. The Government always made it clear that it was our intention to move forward.

The right hon. and learned Member for Sleaford and North Hykeham raised a point about a commitment made by a former Home Secretary. I have the words before me. The hon. Member for North Southwark and Bermondsey said:

“Is it the implication of his remarks that, as a result of the Bill passing into law tonight, there will not be any serious fraud trial by a single judge in England and Wales?”

It was clear then that the Bill had been amended so that an order would need to be passed by both Houses. That provision was there for a purpose, and everyone knew what it was. The implication of the hon. Gentleman’s question was whether there would need to be further legislative discussion and voting on the matter before section 43 could be implemented. As was clear then, it has always been the Government’s view that further legislation would be needed and we have no problem with that. The then Home Secretary, my right hon. Friend the Member for Sheffield, Brightside, said that he was prepared to give an undertaking to that effect, and we have kept to it. Given that the order that we sought to introduce was unlikely to be passed, we have now introduced further legislation.

The then Home Secretary’s response to the comment was:

“I am prepared to give that undertaking.”

As I have explained, the undertaking has been kept. He continued:

“It is part of the agreement that we will retain the clause, but move forward towards looking”—

“looking” is the important word there—

“at the alternative solutions that I have mentioned”.—[Official Report, 20 November 2003; Vol. 413, c. 1028.]

That undertaking was kept—we looked at the alternative solutions. There was a seminar, and there were subsequent further meetings to discuss the various options. We have complied with the undertaking and I do not accept that there has been any breach of the sort that the right hon. and learned Member for Sleaford and North Hykeham has suggested.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)

This is one of the most pored-over exchanges in which I have ever been involved. The Solicitor-General was, no doubt inadvertently, slightly misleading about the timing. The exchange was in November 2003, at the end of the Session. The then Home Secretary mentioned examining progress to consider where we should go next, and he made the statement that we have all been quoting. There was then a whole year, during which we had a Queen’s Speech, and there were measures, but there was no formal consultation. The seminar was in January 2005, and it had nothing to do with the proposals that he had referred to in his response, because the parliamentary year had been and gone before the seminar came around.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I do not accept that I have misled anyone. I indicated that the seminar was in January 2005—on the 24th, in fact. I gather that the invitation to the Liberal Democrats was not made to the hon. Gentleman, but to John Burnett, who I think may now be Lord Burnett. He was then the legal spokesman for the Liberal Democrats and the invitation went to him. [Interruption.] The hon. Gentleman did not get the invitation but the Liberal Democrats did—there is no doubt about that.

When the seminar took place we had not sought to introduce the order, but clearly it was always our intention that at some point we would do so, or in any event seek to implement non-jury trials. Therefore, when we held the seminar it was the Attorney-General’s intention that that should constitute the consultation opportunity for the Opposition. Some Opposition spokesmen from another place decided to attend, but spokespersons from the Commons decided not to attend or were unable to for various reasons. I make no criticism of that, but it does not invalidate the consultation process and it should not cause problems for the Government. We believe that the process was perfectly proper and sensible.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

The Solicitor-General is seeking to reconcile what he is doing today with the commitments given by the then Home Secretary. Will he help the Committee in the following way? He would accept, I believe, that the Conservative spokesmen in the Commons and in the Lords—my hon. Friend the Member for Beaconsfield and Lord Hunt of Wirral—made it plain that they would never vote for the affirmative resolution in the form of clause 42. Did the Home Secretary indicate at any stage that, if he could not obtain agreement or find a way forward using special assessors or a special jury, he would seek to ram through the provisions of clause 42 by subsequent primary legislation? Did he ever say that at any stage? I of course have his statement in front of me.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I was not privy to his personal thoughts on the matter, but the intention of the Government was that we take the matter forward by way of order, and I assume that that was the Home Secretary’s intention at that stage.

During the year, we brought an order before the House, which again, by a significant majority, expressed forcefully the view that it wanted to see progress in dealing with the problem of complex and serious fraud trials. It therefore passed the order. It became clear, however, that the combined votes of the Opposition in the other place were likely to frustrate the passage of that order. In those circumstances, the Government took the view that the better way of proceeding was by way of primary legislation, and that is why we have brought the Bill before the House.

Douglas Hogg (Sleaford and North Hykeham, Conservative)

It follows from what the Solicitor-General is saying that at no time was it suggested by the former Home Secretary, when he outlined the agreement to the House of the Commons, that there was a possibility that primary legislation would be used to force through clause 43. Had he done so, it might well have been the case that the Opposition parties would have defeated the Criminal Justice Bill, as it then was.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I am not sure what point the right hon. and learned Gentleman feels that he has made by saying that. However, if he feels happier by reason of having said it, I am pleased. I welcome anything that makes him happier about this Bill. Sofar as we are concerned, however, the clause has been brought forward honourably and properly. We have done it by way of primary legislation, we have subjected it to full and proper debate and we believe that the changes that it will enable us to undertake need to be made if we are to have a system of justice that better delivers effective justice. That is what the people of this country want. I hope that we can now vote on the clause.