Douglas Hogg (Sleaford & North Hykeham, Conservative)

I beg to move, That the clause be read a Second time.

We are going with splendid speed, are we not Mr. Bercow? If we crack along, we might even finish tonight. That would be jolly nice, because I would not have to get here for 9 am on Thursday; that is an unconscionably early hour for me. However, that is beside the point.

New clause 3 is also designed to improve the safeguards for the defendant. It is odd, but if one looks at section 43 of the 2003 Act, one sees no requirement on the trial judge to whom the application is being made by the prosecution to hear oral representations. Perhaps the Solicitor-General will say that practice directions will be issued.

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

If the right hon. and learned Gentleman looks at section 45 of the Criminal Justice Act 2003, he will find that subsection (2) provides that

“An application to which this section applies must be determined at a preparatory hearing”—

therefore an oral hearing—

“(within the meaning of the 1987 Act or Part 3 of the 1996 Act).”

Subsection (3) states:

“The parties to a preparatory hearing at which an application to which this section applies is to be determined must be given an opportunity to make representations with respect to the application.”

I hope that that deals with the right hon. and learned Gentleman’s points, and that he will be able to withdraw the motion.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

It deals only with the first part of my point, which I accept has been covered. It does not deal with the second part, about subsection (3), which deals with the Lord Chief Justice or the nominated judge. As I understand the procedure under the Bill, the concept is that the Lord Chief Justice should be a help and that the judge-alone trial order should be made only with the concurrence of the Lord Chief Justice or a judge nominated by him.

As far as I am aware, nothing in the 2003 Act or the Bill requires the Lord Chief Justice to listen to oral representations. In other words, it is a paper-only exercise. I certainly accept that many decisions are paper-only exercises—for example, a decision by the single judge about whether to grant leave to appeal against conviction or sentence is a paper exercise only, albeit subject to the proviso that the prospective appellant can apply to the full court.

I agree that there are situations when courts determine matters as a paper-only exercise, but with a matter of this import, I suggest that it is a good thing for the defendant who does not want to be made the subject of an order to have the opportunity to make oral representations to the Lord Chief Justice. That is the burden of new clause 3(3), and I hope that it finds favour with the Committee.

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

The Solicitor-General’s intervention was extremely helpful in shortening our proceedings. It is clear to me that section 45 of the original Act deals with the opportunity for parties to make oral representations to the judge, but only in the first instance, and that the provisions of section 43 are dependant on section 45, so a judge could not come to a view on the basis of an application under section 43 without taking account of section 45. Therefore, I think the point raised by the right hon. and learned Gentleman is entirely covered by existing legislation.

There remains the right hon. and learned Gentleman’s view that it should be possible to make oral representation to the Lord Chief Justice in the certification of the decision on the application. I am not entirely convinced that that is a satisfactory procedure in this instance. There may be exceptional circumstances when the Lord Chief Justice might be prepared to entertain direct applications—perhaps if a judge has misdirected himself or herself on the basis of the application—but in general, I would expect that to be dealt with by written evidence before the Lord Chief Justice.

The right hon. and learned Gentleman has raised an interesting point, but I am not sure whether I could support him if he proceeded to a Division on the motion. I should be grateful to the Solicitor-General if he gave his view on whether I have accurately described the situation.

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

I, too, am grateful to the Solicitor-General. I certainly understood—my memory is engraved with all the sections, even from 2003—that oral representations could be made. However, I perhaps differ from the hon. Member for Somerton and Frome: I certainly think that the possibility should be preserved for oral representations to be made to the Lord Chief Justice at the end of a certificating process.

I do not want to labour the point and I do not want too convoluted a system, but I have said in the past that I want jury trial to be preserved in so far as possible. To achieve that, at every stage when a prosecutor is making his application—if we were to move to a situation where a defendant could do it as well, I would wish it also to be preserved at every stage—the line of reasoning should be, wherever possible, that a jury trial should happen. For that reason, I had always understood that the Lord Chief Justice’s role was an important safeguard, and although I would normally agree that it would be appropriate for that to be done by written submission if necessary, the possibility of it being done by oral submission is important, and I should like that option to remain.

The Solicitor-General may say that the option exists without further amendment, in which case I shall be reassured, but it is an issue of some importance and we must face up to two facts. First, in the Government’s view, the number of cases in which such things will happen in any year is likely to be pretty minimal. Therefore, I do not think that the burden that we will place on the judiciary in the process of deciding whether it should happen will be too great. Secondly, the decisions, when taken, will be of some public interest. For that reason, it is important that there should be a full understanding by the public of what has happened, and oral hearings often provide an opportunity for that to happen.

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

I am studying again the words of the new clause. I do not see that it provides for any further opportunity to make oral representations to the Lord Chief Justice; it simply requires the Lord Chief Justice not to give approval in circumstances in which any party has not had the opportunity to make oral representations before the judge under subsection (3A). Therefore, the matter remains entirely permissive on the part of the Lord Chief Justice, rather than by prescription of the new clause.

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

That it is a matter of drafting. Those of us who draft for Committees are always happy to be told that we are wrong. It was the intention of subsection (3) to do precisely that. If it has not achieved it, that is another matter. I wait to hear from the Solicitor-General whether the new clause has not achieved its purpose. In any event, the intention is that there should be an option for oral representations to be made to the Lord Chief Justice. I leave it at that.

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

It is not intended that the Bill should oblige the Lord Chief Justice—or the president of the Queen’s bench division who, in practice, might consider these matters in person—to hear oral representations. It is, however, the view of the president of the Queen’s bench division that the manner in which he—it is likely that he, rather than the Lord Chief  Justice, will deal with such applications—hears the applications should be a matter of judicial discretion. If appropriate, provision for representations to be made in writing or orally could be set out in criminal practice rules or other guidance. Therefore, I suggest that we leave the matter to judicial discretion.

The arguments might well be able to be put by the various lawyers in a case—both for the prosecution and for the defence—before the judge who initially hears the application. He will be able to make a note of the arguments, and if they are straightforward, the president of the Queen’s bench division or the Lord Chief Justice might well take the view that those representations are adequate. The president might, however, take the view that he wants to hear oral representations. The request is that that be left as a matter of judicial discretion. That might not be appropriate in all cases; I do not say that it would be inappropriate in any case.

I hope that the right hon. and learned Member for Sleaford and North Hykeham will be able to accept my position in dealing with the substance of the argument that he puts forward. I think that I have dealt with the first part of the new clause, and I am grateful to him for having accepted that. So far as the last part goes, I think that he will agree that it does not achieve what he intends it to achieve.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

I take responsibility for the new clause, because it is in my name. However, a small error has been made during the reduction into the blue paper of my original drafting. It was my intention, as formulated in my draft, that the Lord Chief Justice should give an opportunity for oral representations before he gave his approval. I certainly accept that, in the form to which it has been reduced on the amendment paper, it refers to an application to a trial judge. I take responsibility for that, because anything that appears under one’s name is one’s responsibility.

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

I am grateful to the right hon. and learned Gentleman. I cannot accept the new clause, but I hope that he accepts that I have sought to deal with the substance of his arguments. I hope that he will withdraw the motion.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

I accept that the new clause is imperfect, and I apologise to the hon. Member for Somerton and Frome, who was right. I was looking at my original draft of the new clause and had not spotted that the final version does not faithfully reflect what I had in mind, but the fault is mine. It is important for the Lord Chief Justice, or the judge nominated by him, to have judicial discretion to entertain oral representations if he thinks it appropriate. I believe that the Solicitor-General has said that that will be the case. I should be happier if the Bill contained something to that effect. That would concentrate the minds of the judiciary when they came to issue their practice direction. Although I welcome what the Solicitor-General has said, I ask him to reflect before Report on whether the language could be modified to make it plain that the Lord Chief Justice will have discretion to hear oral representations.

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

Having been slightly critical of the drafting of the new clause, perhaps I am necessarily critical of the intention behind it. However, I agree entirely with the point that the right hon. and learned Gentleman has just made. Considering that the Solicitor-General clearly intends such discretion to exist, it would be helpful if that were stated in the Bill. I hope that he will introduce that on Report.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

I can only echo what the hon. Gentleman says, and I hope that the Solicitor-General will reflect carefully on the desirability of reaching a compromise without the need for unnecessary votes on Report. I beg to ask leave to withdraw the motion.