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

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

I shall endeavour to be brief, seeing that this is the last new clause that we have to consider in Committee.

I must first confess to the Committee that when I went to the office to present amendments to this Bill for consideration, it was my desire that the Committee might debate having trials by special juries. The Solicitor-General knows well that we on these Benches were always prepared to consider that one area of compromise to deal with the issue of burdensomeness. I believed that it would be possible to put together jury panels consisting of individuals who were well versed in financial matters, which would allow them to sit on such panels and consider the verdict—because I regard having an independent assessment, separate from the judge, as so important for preserving confidence in our criminal justice system. We should maintain the principle that it is not the state against an individual, with the judge reaching a decision, but independent members of the community who decide on guilt or innocence.

That would have been my preferred course. Yet although I sought as ingeniously as I could to suggest variously using the terminology “panel”, or “group of experts”, or any other device, I discovered that—despite all my creative ingenuity—those better versed in drafting would tell me firmly that it could not be done, as the principle at Second Reading was that we were getting rid of juries. Even a special jury was a jury: even a “special panel” was a jury by another name. So, I regret that I have not been as successful as I would have wished in providing an opportunity for the Committee to revisit that issue.

I must put on the record that I believe there was always the possibility of compromise on such a principle, including a potential departure from having 12 to have a smaller panel. I am convinced that if this is a real area of difficulty, that would be the wise way to proceed. There are plenty of people of the right age around, being semi-retired, who could make up such a panel and be only too happy to spend months poring over a case that was forensically interesting to them. They would also have the independence to deliver a verdict that would command public acceptance and confidence.

Seeing as I could not do that, the only thing to do was to put before the Committee the proposal that the judge should sit with assessors. That apparently is permissible, as they would be with—and retire with—the judge, and the judge would still have a role in the verdict. I must accept one point: if the motion were to proceed, it would need fleshing out. On the basis of what I have tabled, I accept that it is not clear whether there would be a majority verdict or a casting vote from the judge, and that other details would need further examination. The only merit of the proposal is that the final decision is not that of the judge on his own. If a judge were to sit with a panel of six assessors, there would have to be unanimity or a majority, or a straight majority with a casting vote from the judge if there were a three-three split on guilt or innocence at the end of a trial. The proposal has, however as I say, the merit that the judge’s role is diluted, and that the role of the independent assessors, suitably selected, is enhanced.

I should be grateful for the Government’s response—it is a probing motion—about why such a course of action does not commend itself. It would be useful for the Committee to know at what point the Government decide that the introduction of lay assessors becomes impossible. The Solicitor-General knows—I do not think that I am giving away any secrets—that on occasion, there have been hints from the Government that some form of lay assessor might be acceptable. Generally speaking, however, they have been talking about two lay assessors and a judge. That is an uncomfortable concept, because it does not have the necessary critical mass; I should prefer more assessors. Again, I hope that I can tease out of the Solicitor-General the Government’s views on the gist of the proposal, its principle and its detail.

I want to make it clear that in moving the new clause, it is in no sense a preferred option. It makes absolutely no difference to my hostility to the Bill, nor I suspect to the outright hostility that will occur in another place, too. There would be a way forward—a way forward that I rather sought to put before the Committee. Unfortunately, however, the Government’s implacable desire to get rid of trial by jury makes it impossible for us to consider it, which I regret. Even at the eleventh hour and fifty-ninth minute, if the Government were wise, they might reconsider that issue.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

On the question of lay assessors, I entirely agree with my hon. Friend about critical mass. Two or three lay assessors is not a critical mass. Again, in the spirit of trying to improve the imperfect, he will keep in mind the Crown court when it acts as a court of appeal from justices. There, one sometimes has a Crown court judge sitting with two justices, and that might be a model on which one could proceed if we have to go down this road at all.

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

Yes. As I say, the Government have not come up with the proposal, although in the past they have floated it. In fairness to them, the proposal has on the whole received a frosty reception from the Opposition parties. However, before it was too late and we ended up with what I anticipate will be a great confrontation between the Lords and the Commons, I wanted to tease out how far the Government’s give might go on such an issue. If I may say to the hon. and learned Gentleman, the Solicitor-General, I do so in a conciliatory spirit and not to wrong-foot him.

I appreciate that the Solicitor-General may disagree with the principle of the proposal or with the number of lay assessors, and that he may come up with arguments, which I prefer to have on record, about why the course of action is considered impractical, unwise or unnecessary. However, I should not wish this Committee to be completed without our having an opportunity to consider the motion.

I shall now sit down. My one regret is that we have not had the opportunity of considering a proposal for special juries, which would commend itself to me so very much more.

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

We are in a different league of debate, and I welcome it. Like the hon. Member for Beaconsfield, my hon. Friend the Member for Somerton and Frome and I were aware, and it was clear from the drafting of the advice, that there was a line beyond which we could not go formally. The hon. Gentleman tried to get as near to that line as he could, and again, I want to respond.

I, my hon. Friend and our colleagues do not support the proposal, because we have always argued that there should be a clear division between the person who is in charge of judging the law and the people who arein charge of judging the fact. Thus, the principle that in serious cases facts and guilt are determined by lay people—representatives of the public, not professionals paid to be judges—is kept. That is Lord Devlin’s small Parliament, little democracy principle. It is about having a criminal justice system that, whether in a magistrates court with lay justices or in the higher courts with juries, ensures that decisions about guilt and innocence involve the public and are not handed over to professionals.

I want to make it clear that the new clause goes a step or two too far. It is, however, a welcome probing measure that opens up discussion as to where there might be common ground. In that context, let me outline some of the options that I explored in conversations with the Solicitor-General and the Attorney-General. It is in everybody’s interests that we should do that openly and straightforwardly.

The first option that we explored was to have smaller juries—juries of fewer than 12 people, possibly eight or even half a dozen. Why? Because if there were a burden it would be a burden on a smaller number of people. The second was to draw juries from a pool of people who would hold themselves available for trials such as those that we are discussing, because that would not be as burdensome for them as it is for others.

Certain categories of people would be willing totake up that offer. Perhaps they could answer a supplementary question about empanelling juries when they filled in their forms to register on the electoral roll; then enquiries could be made. We need to ensure that we do not end up with representatives of only one section of the community, but one can imagine that the offer might be taken up by people who are retired, those who are unable to do paid work for a significant period following injury and so on, and those who are willing to do it because they are self-employed and can manage their lives accordingly. I do not say that the principle is perfect, but it would be entirely possible to construct an alternative pool of people for whom it was not a burdensome task in the way that it might be for somebody who was taken off the street, brought to the court and, out of the blue, told that the case might last for nine months rather than the usual two weeks. Both of those options are possible.

The third option that we considered was one that used lay magistrates—not trained lawyers or judges—as jurors. There would be a professional judge, with the jurors separately as judges of fact. That is a difficult argument to sustain, but it is worth considering. It would, however, be a separation. Finally, we had conversations that crossed the line in the direction of this new clause. That involved having a judge plus other people sitting with the judge. There was a discussion—I do not want to betray any confidences—that involved including magistrates or assessors, that is to say experts or lay people, in combination, so that one or the other or both could sit with the judge. As the hon. Member for Beaconsfield indicated, they would retire with the judge. I think that that goes too far, as I have said. Therefore, my hon. Friend and I cannot support the new clause.

For us, it is not an absolute principle that there have to be 12 people for a jury, or that there has to be any particular number. The number has to have sufficient weight or centre of gravity to be a group; I think that the phrase is critical mass. It is also important that there should be a distinction, so that the public can see that the defendant can know that two functions are being addressed in the court: the assessment of the law and the judgment of the facts. That, for us, is the principle. Within those parameters, there is a conversation that we are still willing to have and, I am happy to say, my hon. Friend and I are willing to return to the matter.

If we went down that road, there might be progress. It would not be technically a “fraud (trials without a jury)” Act because there would be a jury. It would be a “fraud (less burdensome ways of trying these big cases)” Act and that is, according to the Government, one of the objectives. It would also achieve the second Government objective: there would not be the difficulty, if one accepts the Government’s case, about exposing the potential breadth of criminality. If one had selected, smaller numbers and more expert jurors, it would be possible to sustain an argument that they were able to look at anything that the prosecution was minded to give them.

We will not support the new clause. It is worth probing the matter, if only to encourage the Solicitor-General and the Attorney-General to think that there may even yet be some ground that we could find  between us that might save quite a long process in this Session and another quite long process in the next Session. It may be better to get something done this year, rather than nothing being done this year and a great battle with an uncertain outcome next year.

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

We have had substantial discussions on this matter both privately and publicly, and I do not think it is likely that we are going to get a compromise. I wish that I could be convinced that Opposition Front Benchers would be likely to agree to a compromise. The Government have made clear what our view is and Opposition Members have done likewise. I do not think that there is likely to be any room for the compromise that we have sought, which has not been forthcoming.

The hon. Member for Beaconsfield described, quite fairly, the new clause as a probing measure. It was not favoured by Roskill or Sir Robin Auld in the way he describes, but they both looked at it. Roskill recommended a judge sitting with two lay members drawn from a panel of persons with general expertise in business and experience of complex transactions. Auld came to a similar conclusion but only, as he put it, after considerable thought. As he acknowledged, the arrangement would not be without its difficulties. What would be the role of the expert members? Would there be a risk that members would contribute evidence that could not easily be challenged by the parties? How readily could suitable members be found? What would be the cost of remunerating them? For all those and other reasons, the Government have decided that, on balance, following the seminar and various representations made to us, the option of trial by judge alone was preferable.

Sir Robin Auld had this to say about special juries; it was referred to during the debate:

“The proposal would revive for a special category of criminal case an institution that was abolished in criminal and most civil cases in 1949 and had been little used in crime for several decades before that. If the institution were to be revived for fraud and possibly other complex cases the first question would be the nature of the qualifications required for selection as a potential special juror. Presumably in the context of fraud they would need to be those with wide experience of business and finance. But, as the Roskill committee pointed out in rejecting this option, it would be difficult to empanel a jury even from such a restricted category who would collegiately have the degree of specialist knowledge or expertise which by definition they would be required to have for the particular subject in each case. And even if suitably qualified jurors, maybe smaller than twelve, could be found, it would be unreasonable to expect them to serve the length of time that many such fraud trials now take.”

That deals with the points raised in relation to special juries. It is from Sir Robin Auld rather than me. In the Government’s view, it is a serious objection to a special jury that evidence would have to be presented to it orally without the interaction with counsel. It would not be possible, as it would be for a tribunal or for a judge, for the jury of the sort described to let the lawyers know that they had understood a point and that the lawyers should move on—in other words, to be able to manage the case themselves. The Opposition’s idea that the decider and the arbitrator of a case must be separated would make it far more difficult to manage. If a single judge were sitting, or a judge with perhaps two lay assessors, he would be able to manage the case much more effectively and its complexity could be properly evaluated. That would not be the position  in the case of a special jury or in the system proposed in the new clause. I appreciate that it is a probing new clause, and I hope that I have given views on the points raised and that the motion will be withdrawn.

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

I am grateful to the Solicitor-General for participating in the debate in the spirit in which the new clause was tabled and for dealing with the wider issues that I raised on special juries. I wish to pick up on two or three points, because there are matters on which I disagree with the Solicitor-General and with Sir Robin Auld and Lord Roskill.

It is suggested that one of the objections to specialist lay assessors is that the extent to which they would bring their own knowledge to bear on a case would be unclear. But that happens all the time with jurors, who are entitled to bring to the jury box their own knowledge and experience of the world. Some of them have specialist knowledge, and that is explicit in barristers now being allowed to serve on juries. If they get on to the jury, which sometimes does not happen because they know the judge, defendant or a counsel, they certainly have a knowledge of court procedure. That includes occasions when a jury has been sent out for some reason, so they have a pretty good idea of issues that require a jury’s non-attendance. That does not seem to trouble the Government, and it does not really trouble me much. I do not consider the fact that lay assessors might have background knowledge of the areas covered a viable objection.

On special juries, if the Solicitor-General would like to come my constituency, he will find a plethora of retired—

John Bercow (Buckingham, Conservative)

Order. I hope that the hon. Gentleman will be very brief and sparing in his remarks about special juries. I know that some comments on them have already been made, but, strictly speaking, if he were to dilate upon the point, he would be in danger of addressing a new clause that some might wish we had to consider but which we do not, rather than the one that we do have.

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

I can promise you, Mr. Bercow, that I shall be very brief and only respond to the Solicitor-General’s helpful comments.

If the Solicitor-General comes to my constituency, he will find a plethora of retired chartered accountants and professionals, many of whom would be only too happy to give some of their time, particularly as many of them took early retirement when pensions policies were rather different. They would be happy to devote time to considering the matters in question, and would do so well. I simply do not accept that it would be impossible to find panels of individuals capable of doing the job.

I have said clearly that this is a probing new clause, and I am grateful to the Solicitor-General for responding in its spirit. There may well be no meeting of minds on the matter, for the reasons given by the hon. Member for North Southwark and Bermondsey. I agree with him—the approach in the Bill does not commend itself to me. I have said, out of conscience if nothing else, that if the Government’s anxiety is about the difficulty and burden on ordinary jurors, we can do  something about that. I hope that the Government will continue to consider the issue. I beg to ask leave to withdraw the motion.

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

On a point of order, Mr. Bercow, I extend the Committee’s thanks to you as Chairman. Due to the firmness of your chairmanship, not only was good order maintained but we were able to have a full debate and finish the Committee early. We are grateful to you for that.

I also extend my thanks to the Under-Secretary of State for the Home Department, my hon. Friend the Member for Enfield, North, for her efforts duringthe passage of the Bill. I also thank my hon. Friend the Member for Tynemouth, who is the Government Whip and other members of the Committee from all parties, especially my hon. Friend the Member for Coventry, South, my Parliamentary Private Secretary.

I also thank the police, the attendants and, most importantly, as they ensured that I was able to deal with the issues, those officials who were kind enough to give me such excellent briefing. I also extend my thanks for the very considered way in which the Opposition spokespersons, the hon. Members for Beaconsfield and for North Southwark and Bermondsey, and their colleagues made their points.

I give particular thanks to the right hon. and learned Member for Sleaford and North Hykeham, who after many years as a Back Bencher might have got a Minister to look at something again. Whether he gets the result he wants remains to be seen.

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

Further to that point of order, Mr. Bercow, may I echo the thanks expressed to you and to the officers of the House who have made this  Committee so pleasant and enabled us to get through the business so expeditiously? I extend my thanks to the Solicitor-General and to the Minister for the spirit in which they entered into the debate. I give a special thanks to my right hon. and learned Friend the Member for Sleaford and North Hykeham, who played a very important part in the debate, to other hon. Friends and to the other Opposition parties.

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

Further to that point of order, Mr. Bercow, I associate myself and my hon. Friend with those remarks. I add my thanks to our friends from Hansard whom the Minister may accidentally, but not intentionally I am sure, have omitted to mention. Rarely can such serious business on such important issues have been conducted so quickly. It was due to our having a short Bill that did not allow many amendments.

John Bercow (Buckingham, Conservative)

I am very grateful to the Minister and the Opposition spokesmen for their generous remarks about my role and, more importantly, about the wider contributions to the efficacy of this Committee. I want briefly to place on the record my personal thanks to the principal Clerk of the Committee, Dr. John Benger, ably assisted by Dr. Hannah Weston and Emily Commander.

I reiterate the thanks properly expressed by the hon. Member for North Southwark and Bermondsey to the Reporters, without whom we would not have a full and accurate record of our proceedings and whose contribution in that sense is literally indispensable. Tony Minichiello, Ken Gall and Adèle Dodd have done a magnificent job and I am very grateful to them.

As I was obliged to do, I allowed points of order to interrupt the process. I will now put the question.