The three speeches/headings immediately before

1. 1 earlier: Jack Straw

   My hon. and learned Friend is an infinitely more experienced criminal practitioner than ever I was—I say that seriously, without condescension. However, there is a very big difference. In a criminal case, the trial judge can say, "I am not going to proceed, because it would be unjust", or the prosecution can say, "We are about to have crucial evidence that is sensitive and compromised. We will withdraw the prosecution", and sometimes does so, because there is no option. But with great respect, there will not be a massive new power in the hands of the state; it would be used extremely sparingly.

   I feel extremely frustrated, because my scheme was to give the decision to a senior High Court judge, but that did not find favour. We tried plan A. That did not work. We tried plan B and that did not work, so now we have plan C. To those who say they do not like the idea of non-jury inquests, I say that I do not like the idea either, but I am trying to square an extraordinarily difficult circle, and I have not yet found a way of doing so except by a route similar to the proposal.

2. 2 earlier: Robert Marshall-Andrews

   Does my right hon. Friend not understand that it is a question of scale? In any jury system there are always problems with public interest immunity—there always have been—and we get round them by a mixture of evidential routes that has served us extremely well. We now have a problem in one case—just one case in five years—and to rectify that evidential problem the Government propose to hand a massive new power to the Executive. The disproportionate remedy in the circumstances is obvious to everybody. I know there is judicial oversight, but my right hon. Friend will forgive me for saying that he adulates the higher judiciary only when they are being used as a mechanism to withdraw jury trial. Otherwise, he is rather more critical of them and on occasion has described them both as unelected and unregulated and in various other ways. To say that there is a higher judicial role is not an adequate response. Does my right hon. Friend not understand that that is what concerns most of us in the House?

3. 3 earlier: Jack Straw

   I shall just finish my comments on Lords amendment 128, if I may. I shall then give way to my hon. and learned Friend and, afterwards, I shall finish my speech, as time is limited.

   The hon. and learned Member for Beaconsfield suggests that the judge should consent to the Lord Chancellor's request, and I understand exactly why. If it is about agreeing to the appointment qua appointment, I can say that, with respect, that ought to be done by the Lord Chief Justice. Perhaps we should have put that in the Bill. We have not, but I give an absolute undertaking on that understanding and anyway, in practice, the Lord Chief Justice has a veto, quite properly, over whether somebody is or is not appointed. Of course he does. He might just say, "I'm sorry, there isn't anybody available," or, "I'm sorry, I will not appoint anybody because this is not an appropriate article 2-compliant tribunal and the learned judge will be compromised."

   As the hon. and learned Gentleman would expect, I have looked carefully into whether I could accept his amendment. At first blush, it appears rather similar to the scheme that was in clause 11 of blessed memory, on page 7 of the Bill as it left the Commons, which spelled out that the judge would have to make a decision, based on certain criteria, about whether the application from the Secretary of State was to be accepted.

   To some extent, my objection is technical but I promise the hon. and learned Gentleman that it is serious. We are at a late stage in the proceedings on the Bill, and although I had a lovely scheme in mind, there were no takers for it, so if the only proviso in the Bill is that the consent of the judge is required, he or she must work out how to exercise that consent. He or she cannot just say, "Yes, I'm available. I'll do it," but will have to say, "I will have to hold a hearing."

   Another matter to consider is which criteria should be used. Clear criteria were set down in my proposals, but now there is only the hon. and learned Gentleman's amendment to consider. He could simply have pulled out the old clause 11(6) and plonked those criteria in. It is a bit late to do so, although I am not trying to make a point about that. Just so the hon. and learned Gentleman knows, the alternative I considered was whether there was any provision for the court to make rules, but we are not talking about a criminal case, so the criminal rules committee cannot make such rules. There does not appear to be any appropriate rule-making power.

   I hope the hon. and learned Gentleman will accept that the point about consent will be dealt with by the clear undertakings I have given in respect of the Lord Chief Justice, but that for practical reasons it is not really appropriate to accept the amendment.