Orders of the Day — Contempt of Court Bill [Lords] – in the House of Commons at 9:37 pm on 22nd July 1981.
I beg to move, That this House doth agree with the Lords in the said amendment.
It is unfortunate that the whole of the debate on clause 8 has proceeded on what I believe to be the wholly false basis that it permits things to be done to or by jurors which were not permitted before. That was never the case. All that the clause as printed does, and has ever been intended to do, is to close the door opened by the decision in the New Statesman case by preventing publication of details of juries' deliberations in identified cases. The rest of the law regarding the secrecy of the jury room was wholly unaffected, but there appeared to be some doubts on this score and suggestions that somehow, by implication, the clause permitted everything which it did not prohibit. Therefore, the Government moved amendments in this House on Report to make it clear beyond argument that the clause carried no such implications.
However, those amendments were rejected in another place. Instead, we have in Lords amendments Nos. 1, 2 and 3 a new and complete prohibition on the publishing of any details of a jury's deliberations. Thus, not only would it be prohibited to publish anonymous reminiscences but all forms of publication of the results of research would also be prohibited. Also, by Lords amendment No. 2 we would have imposed a complete ban on private disclosures, which would not only stop the first stages of any research but would extend to cover every possible kind of disclosure or request for information, even on purely social or domestic occasions. Therefore, the amendments, taken as a whole, would turn the clause into a catch-all provision.
I do not like the creation of criminal offences which will never be enforced. If we legislate to create a criminal offence, it should not be on the basis that I, for example, as Attorney-General, will interfere so as to prevent it from going to court.
I wish to put the record straight on one point, about which a great deal has been said. From time to time it has been asserted that all legal opinion on the question is one way, namely, in favour of the amendment. However, the Law Society has always taken the view that clause 8 as originally drafted was right on the ground, among others, that it would permit studies of and research into the behaviour of juries. I said on Third Reading that that was a useful thing to do. However, because of the strength of feeling that has been expressed in both Houses, the Government do not wish to oppose the amendments any further. I cannot continue swimming against the tide of opinion which has now so clearly been expressed.
It is an important Bill. Clause 8 was never a central part of it. It was included only because I wished to deal with the decision of the Divisional Court in the New Statesman case. Clause 8 is never so important that we can risk endangering the passage of the Bill as a whole. Further disagreement between our House and another place could do that.
I do not recall ever hearing that argument advanced to the House before. Is the Attorney-General really saying that, although he fundamentally disapproves of the form in which the Lords have produced their amendment, simply because of shortage of time—with the overspill period there is plenty of time—he, on behalf of the Government, will advise the House to vote for the amendment?
It is important to remember that the Bill basically deals with contempt of court. In a sense, clause 8 is a bastard because it was introduced as a result of the Divisional Court decision. I must tell the House, as I said on Report, that I respect the enormous and overwhelming view of those who must deal with juries. I respect the view of the Opposition Front Bench spokesmen. I listened with care to some of their splendid speeches. Feelings were expressed from behind me. There were speeches by distinguished Law Lords and others, including ex-Lord Chancellors. All the Law Lords, save one, took the same view. I cannot disregard the opinions of those who have experience far greater than mine.
They may not have been jurors, but they have sat as judges in cases dealing with juries. The hon. Gentleman has never done that. It is not a case of a journalist's approach or a barrister's approach. We must look realistically at the matter and accept, as far as we think it right, the opinions of those who have to deal with such cases.
Bearing in mind the provision that enables proceedings to be brought only with the consent of the Attorney-General on the motion of the courts, although it may not be an ideal talisman—as it is seen in some quarters—it apparently and obviously provides some safeguard.
What has confused some hon. Members is that my right hon. and learned Friend argued persuasively in earlier debates that he has been informed that jury deliberations should be looked at, provided that individual proceedings could not be identified. There is a consensus ad idem on both sides of the House that that should be the case. That was enshrined in the original Bill. At that time he argued that there should be an ability to review the jury process. Now he is saying that that is not so important. Apart from the weight of opinion in another place, what has led him to change his view?
One reason for my change of view is that on Report we did not—perhaps that was the Government's fault—table an alternative amendment that would have provided for some degree of review, investigation and research into the jury process but which prevented the sort of attack upon the jury that was presented so persuasively by the Opposition Front Bench. We had not a good half-way house. In permitting what I think were legitimate inquiries into the jury system we were going far beyond that which was described both in this House and in another place.
If we now have a good half-way house, as I hope to demonstrate to the House that we have, does the Attorney-General think that that should be supported?
I have considered the right hon. and learned Gentleman's amendment. With great respect to his skill in drafting, I do not think that it provides a half-way house. I think that it goes back almost entirely to the original Bill before another place amended it. I should have liked an amendment that did not create the stupid, silly criminal offences arising, for example, from a discussion over the dinner table or a juror returning to his home and talking to his wife or to the neighbour over the fence. I should have liked to see some measure of research into juries taking place under strict control. As I said in Committee, there were useful things to be learnt. I think that the report that we saw should be compulsory reading for every pupil at the Bar. It gives one a good idea of the pitfalls that face any young barrister conducting his first or early cases before a jury.
We were left with one alternative or the other. I cannot disregard the opposition that has been maintained both in this place and in another place by those who have great experience in these matters and who almost without exception have taken the view that the Government's original view of the clause was wrong.
In the circumstances, I must advise the House to agree to the amendments.
I welcome the gracious approach of the Attorney-General at this juncture of the Bill in that he does not seek to remove the amendment carried in another place. The key to the amendment was the removal of the offending subsection (2). The amendment was moved in another place by Lord Hutchinson of Lullington, a distinguished lawyer who played a sterling role with others in persuading their Lordships to accept the amendment. If anyone has a proud record on individual rights, it is Lord Hutchinson. He would not ignore the rights of individuals.
The line that the Government are now accepting is similar to the one that the Opposition took in Committee. Had the Opposition's amendment been selected on Report, it would have been the line that we would have supported on Report. Unhappily, our amendment was not selected. In its place was selected an amendment moved ably by the hon. and learned Member for South Fylde (Mr. Gardner). On the basis that the half loaf that he proposed—that of requiring the consent of the Attorney-General—was better than no bread at all, my right hon. and hon. Friends and I supported the hon. and learned Gentleman, as did the hon. Member for Anglesey (Mr. Best), when the House divided.
In fairness to the Attorney-General and the gracious manner in which he has conceded the weight of opinion from the Opposition and from lawyers—I believe that the only lawyer to speak against the amendment was a Law Lord—an awareness of the dangers involved in subsection (2) has evolved. That was not apparent to me when I first read the Bill. I was not aware of the extent of the danger.
There has been an evolution of awareness of the dangers of subsection (2). I confess that, although I made warning noises in my Second Reading speech, the full implication of it did not dawn on me, not even in Committee. I pay a tribute to my hon. and learned Friend the Member for Abertillery (Mr. Thomas) for the brilliant speech which he made on Report in support of the amendment of the hon. and learned Member for South Fylde, who rendered sterling service to the House in ensuring that, while at that time we did not get what we wanted, at least the issue was before us. We were dealing with a critical and crucial aspect of jury service and at least we were making some limitation on what I regarded as a real danger.
Every judge and petitioner to whom I have spoken since the matter was first canvassed has said in the strongest terms that real dangers would arise if the original position proposed by the Government were adhered to. I remind the House that my hon. and learned Friend the Member for Abertillery quoted part of a quotation of Blackstone. I shall give a slightly longer quotation. This is the warning given more than two centuries ago by Blackstone. He said of juries:
So that the liberties of England cannot but subsist so long as this palladium remains secret and inviolate … from secret machinations which may sap and undermine it … and however convenient these may appear at first … though begun in trifles, the precedent may gradually increase and spread.
That is the danger.
I am sure that we all revere Blackstone, but is the right hon. and learned Gentleman saying that standards of scrutiny which were thought right to be given to institutions at the time of Blackstone are the standards of scrutiny which we should expect today?
Of course not. That is the last thing that I should suggest. I was praying in aid the warnings given the best part of two centuries ago and reiterated today by all who took part in a debate in another place. They were distinguished lawyers with long experience of presenting cases. I was praying that in aid as a warning given a long time ago. Anyone who has read the original words, as I am sure the hon. Member did at some point in his student career, will know that the matter is spelt out at length and that the warning is given.
The right hon. and learned Gentleman will agree that all those who spoke in the other place in favour of the amendment are convinced about the validity of the jury system. They need no further recommendation. What succour can the right hon. and learned Gentleman offer to those in the general public who are less convinced about the efficacy of the jury system and who would find it beneficial to have it tested, so long as it does not identify the individual proceedings or defendants concerned, in order to ascertain its true efficacy?
The hon. Gentleman has perhaps taken soundings from some of his constituents who have had the onerous task of serving on juries. They would be the test men in this matter. I wish to end my speech by saying how onerous service on a jury is. In some of the major criminal trials, some of the biggest thugs in the land are involved and far too many people come to the courts, sit in the galleries and roam around. I am sure that there are jury men and jury women who deliberate there not entirely without fear removed from their minds. Anyone who has been involved, as I am sure many hon. Members have been, must be fully aware of that position. I do not want to digress to the position in Northern Ireland. I shall say no more about that. The hon. Member might look over the Irish Sea at the situation there.
There is a great difficulty about finding a convenient half-way house. If there were one, I am sure that the Government would have exercised their mind and produced it. They rejected the proposal of the hon. and learned Member for South Fylde, and it would be the thin end of the wedge if this amendment were rejected.
Jury service is onerous service. Today, in particular trials, some juries must be guarded day and night. Jury men have suffered considerable illnesses because of the strain. Anyone who ignores that kind of service does so without any awareness or realisation of the kind of service that is carried out by our constituents. Our people must discharge this great service to their countrymen.
Contrary to the implication in the remarks of the hon. Member for Anglesey, I regard the jury as one of the great bastions of our liberty. I do so whatever its defects It may well not be the perfect machine, but it is a system that has stood the test of time. It has worked, warts and all. In spite of our disagreement from time to time with the decisions reached by certain juries it is a system of which we can be proud. It has been exported across the common law world, and unless one is absolutely satisfied that greater good will come from touching it, one does so at ones peril.
No one who studied our proceedings in Committee will suggest that I or my hon. Friends are anti-press. We have fought with might and main to persuade the Government, sometimes with success, to do what we could to protect and ensure a free press. Frequently it was a matter of balance. Time after time, after much consideration, we fought to ensure that a free press could exercise itself in the interests of the liberty of the subject.
But here I draw a line, and this is not anti-press in any shape or form. Anyone who has studied our record in Committee will acquit us of that. Along with my right hon. Friends I visited the Lord Chancellor to discuss this matter, and I asked "Who wants it?" I fear that there was a far from clear response from the Lord Chancellor. I have yet to be told where the pressure has come from. I have yet to be told who wants this subsection.
It may well be said—the Attorney-General suggested it by implication, if not directly—that there is a danger of trivial prosecutions. But the whole tenor of the Bill has been changed by the way in which the Attorney-General, rightly and properly, accepted our amendment that there should be no prosecution under the Bill without his consent.
I am the first to concede that that is not the perfect way of legislating. But it has been done in the past. There has been legislation whose length and breadth has been uncertain. There have been many regulations, certainly those drafted in war time, whose ambit was uncertain. Frequently, the need for the Attorney-General's consent was inserted.
I am the first to concede the possibility that these will be stupid and trivial prosecutions, but that position is now protected. It is not a perfect way of doing so, but it is the best that we can do in the circumstances.
It is important for the House to define what it would regard as a stupid and frivolous prosecution and what it would regard as a serious prosecution. My right hon. and learned Friend will know that folk as distinguished as Katharine Whitehorn, Simon Hoggart, Alan Coren and Graham Greene have written quite a lot, entirely disguising the cases at issue, about their experiences of being on juries. At first sight, the amendment would cut out all that for ever more. Would a prosecution against someone of that kind in my right hon. and learned Friend's view come into the category of stupid and frivolous prosecution?
Certainly, reminiscences in the Graham Greene vein would not at first blush seem to me to be of a kind to be in contravention of the Bill. It would be for the Attorney-General of the day to ensure that there is both fairness and consistency and that the law is not brought into ridicule. That is why in Committee—with my hon. Friend's support, if I remember correctly—we inserted the provision that the Attorney-General's consent was necessary not only in this matter but across the whole range of prosecutions for contempt.
My constituents called to serve on juries should not have additional service to carry out. Both their verdict and their service should be final. That finality should not be breached by any additional burden. I so recommend to the House.
I first express my gratitude to the right hon. and learned Member for Aberavon (Mr. Morris) for his generous remarks about my attempts to alter what I believe to be a damaging and dangerous state of the law as expressed in the Bill when we first considered it on Report. I am very sorry that the Government were not then able to accept some amendments. I agree that the amendment that I sought to persuade the Government to accept was a half-way house. Indeed, my personal choice would have been an amendment of the character later imported into the legislation by the other place.
In my view, there is no doubt that the Bill when it went to the other place was the subject of universal disquiet, for very good reason. I think that the prospect of juries being interrogated by inquisitive lawyers, sociologists, dissatisfied litigants or indeed mischievous litigants disturbed us all.
I take this opportunity to join the right hon. and learned Gentleman in congratulating my right hon. and learned Friend the Attorney-General on the way in which he has, if I may borrow the term, so graciously accepted the overwhelming view of the House and another place about the need to have some means of putting the law into a proper state. There is no doubt that the abuse of interrogation of jurors would, as I put it when I ventured to address the House on the last occasion, bring the trial by jury system into danger of collapse. I do not think that that is hyperbole, and I do not resile in any way from what I said then.
A learned Law Lord reminded the other place of the words of Baron Bramwell, whom he rightly described as one of our greatest judges:
If juries had to give reasons for their verdict, trial by a jury would not last five years".
I believe that that is just about right. If juries had to give reasons for their verdicts, juries themselves would be on trial, and juries themselves would frequently be in fear of letting their opinions be known freely in the jury room. It
does not need much imagination to envisage what might happen. There would undoubtedly be abuse where there was a retrial.
For all these reasons, I have a sense of pleasure, mixed with relief, in welcoming the new amendment, and I am delighted to know that the Government are prepared to accept it.
I wish that I were in a position to join the general chorus of acclaim for the amendments which have come to us from the other place, but I am not. I detected that the Attorney-General, who is usually extremely persuasive, was perhaps a little less persuasive than usual. It may well be that that was because he performed his task with a slightly heavy heart. If so, I do not blame him. Neither he nor I, of course, would seek to do other than echo the general sentiments expressed by the hon. and learned Member for South Fylde (Mr. Gardiner) about the general principle that jurors should not be bullied, bludgeoned or persuaded into revealing the secrets of the jury room. That is a principle that we must all safeguard. But none of the speeches to which I have listened so far has been addressed to the serious issue—something that I believe to be perhaps not as important as that general principle but none the less extremely important—of how we should allow the jury system to be fully and properly investigated without breaching the secrecy of the jury room in particular cases but in a way which enables successive generations to see whether the system is working in the way that it should and, if it is not, to put it right.
I do not believe that anyone in the House would disagree with the view that it is desirable to carry out that objective. What amazes me is the way in which we have reached the present position. This is a Bill which originated in another place and I have before me the Bill as it came here originally from another place. The title in the margin against clause 8 reads "Publication of jury's deliberations". In other words, it was concerned simply with the publication of the deliberations of the jury. In the explanatory memorandum I find it spelt out in detail that the purpose of clause 8 is simply to deal with the publication of information about the deliberations of a jury and to make that a contempt of court.
I further find in the Bill as it came from the other place originally a safeguard—this is the real issue before the House tonight—which protected proper research, because by virtue of subsection (2) it provided that the contempt of court should not be applicable to
publications which do not identify the particular proceedings in which the deliberations of the jury took place",
and so on. The Bill has come from the other place and seeks to make it a contempt to publish a jury's deliberations. However, it safeguards a provision in favour of research. I was not a member of the Committee, but I understand that the Bill was not amended in Committee. On Report the Attorney-General moved an amendment, which the House accepted without a Division. Its sole purpose was to safeguard the situation so that no one could think that by dealing with publication we were in some way legitimising any other form of "getting at" a jury.
The Bill was sent to the other place with that sole amendment. The other place used the opportunity afforded by the safeguarding amendment to alter fundamentally the character of the clause. It is no longer the same and deals not merely with publication but with any attempt—[Interruption.]—to obtain information from a jury. It removes the safeguard that the other place had been prepared to accept—[Interruption.]—at first. If my hon. and learned Friend the Member for Abertillery (Mr. Thomas) wishes to take part in the debate, he will have an opportunity to do so later.
At the moment my hon. and learned Friend should keep his seat and keep his mouth closed.
It is not at all helpful to make interventions from a recumbent position.
Without being offensive, may I suggest that, if my right hon. and learned Friend had had more experience of addressing juries in the last 20 years, his advice to the House would carry more weight? At present, a case is being heard at the Central Criminal Court. The members of the jury are being guarded night and day. Because of the strain of the trial, one member of the jury has had a heart attack and has been discharged from the jury. Does my right hon. and learned Friend really think it right that in such cases members of juries should be given the additional burden of having to reveal the secrets of the jury room afterwards?
When my hon. and learned Friend rose to intervene I had thought that he wished to deal with something that I had been talking about. I am not prepared to interrupt the thread of my remarks to deal with something that I have not discussed. I was discussing the way in which the provision has come to us in a completely different form from its original one. The clause is completely different. As a result of that change the clause heading "Publication of jury's deliberations" is no longer appropriate. However, that is the very least of my criticisms. More importantly, it nullifies the very provision that was included when the Bill was first sent to this House from the other place, namely, the power to enable those who legitimately wish to carry out research and to publish it without disclosing the cases involved, to do so. As a result of the Attorney-General's harmless amendment, that power has been washed out.
I wish to ask a simple question out of natural curiosity. What is the point of research?
The point of the research is presumably that which the Government had in mind when they made provision for it in the Bill in the first place and it passed through the other place and through this House without amendment. Only at the second bite of the cherry, arising totally fortuitously in the other place, are doubts cast about the value of the research. The value of the research is exactly as I have stated it.
Will not the right hon. and learned Gentleman agree that one of the products of the research to which he refers is the perception that majority verdicts were required?
That may have been one of the advantages in the past. It needs hardly to be stated that as a result of finding out what a jury may think in a collection of cases one may discover the ways in which their minds work, the responses that they may give to particular types of summing-up, the responses that they may give in relation to particular types of offence and the responses that they may give in relation to particular methods in which they are addressed by members of the Bar. There are many ways in which this kind of research can be of value.
I am not saying that such research will necessarily transform the whole system. The sanctity of the jury system is the most important matter. None the less, the ability of people to carry out research is also important. That has been accepted throughout the entire proceedings on the Bill until the fortuitous stage of a second bite at the cherry in another place is reached.
If the right hon. and learned Gentleman intends to convey the point that this is the first time any opposition has been heard on this point, he is gravely wrong. The opposition expressed was very forcible. It may not have been successful so far as voting is concerned. Good sense was no doubt used in Committee. However, the strength of feeling expressed by hon. Members in Committee—the right hon. and learned Gentleman did not take part—was considerable. No doubt the decision reached by their Lordships reflected in good degree their consideration of the strength of the arguments in Committee in this House.
I do not dissent from what the hon. and learned Gentleman says. I do not wish to keep repeating myself. However, here we have a Bill that goes through a number of stages without amendment. Then, by pure chance, on an amendment moved by the Attorney-General, a particular clause is fundamentally altered. This is a matter that the House should have regard to. In his opening remarks, the Attorney-General appeared to suggest, in reply to my hon. Friend the Member for Lewisham, West (Mr. Price), that there must be some finality. Of course there must be some finality, but finality that arises in such a fortuitous way is not the best of precedents in dealing with legislation in the future.
The reality of the issue is not solely the passionate defence of the jury system that fell from the lips of my right hon. and learned Friend the Member for Aberavon (Mr. Morris). It is solely the issue of whether we should make some provision or retain the original provision, amended if necessary, to ensure that those who wish to carry out legitimate research are enabled to do so without fear that they will be in contempt of court as a result. Does any hon. Member believe that those who genuinely want to do so should be branded as being in contempt of court? I do not think so.
How can such people be safeguarded? The only safeguard in the clause is that if the Attorney-General decides that he should not give his consent to proceedings for contempt of court there will be no proceedings. That provision is valid when one is dealing with individual cases, but the right hon. and learned Gentleman will agree that it is a bad rule to stick into a Bill to deal with a general class of cases which are not dealt with by the Bill.
The clause substitutes for something which ought to be the subject of a general expressed exception, such as was contained in the Bill when it originally came from another place, the discretion of the Attorney-General which ought to be exercised not generally but in relation only to particular cases, as it always has been.
It may be said that those who want to indulge in research can go to the Attorney-General in advance and ask him to undertake that he will not enable proceedings to be taken against them if they are guilty of contempt of court. But no Attorney-General could give such an undertaking on his own account or on his successor's account. That will not do.
Therefore, we are either introducing a liability on the Attorney-General which he ought not to bear or we are saying that the sanctity of the jury is so great that not even legitimate research ought to be allowed in any circumstances. I should be interested to hear any hon. Member say that that is his view. If it is, he can legitimately support the Lords amendment. If it is not his view, he cannot legitimately support the amendment, because that is precisely what the amendment does.
My amendments would preserve the possibility of legitimate research. They largely go back to the clause as it first came from another place, but they add the safeguard that it should be a good defence that there is intended to be no publication of names or anything that could disclose particular cases only when that intention is expressed between the juror and the person who solicits a disclosure or it is clearly understood by them otherwise than by being expressed.
That is as valid a safeguard as one can achieve. It means that if a researcher wishes to take advantage of the safeguard he has to make it clear to the juror whom he questions that, in any publication that follows the event, the case and the juror will not be identified; and that must be clearly understood by the juror.
If that is not made clear and understood, the defence will not apply and it will be a contempt of court. One could not have a better safeguard than that for the jury system or for the processes of research that my amendments are intended to accomplish. I hope that the House will not say that, because we are near the recess and want the Bill to go through, we shall let the Lords have their way and say nothing more about it. We may think that what the Lords have done is not sensible but that it is better to let it go through and say nothing more about it in the bare, almost unconstitutional form in which it has reached us, that it is better to let it go through, do nothing about it and forget about it. I hope that the House will not take that view but will throw out the amendments.
I have considerable sympathy with what has been said by the right hon. and learned Member for Dulwich (Mr. Silkin).
I shall ignore that comment. I have carefully listened to the reasons advanced by the Attorney-General for accepting the amendments and I understand the pragmatic considerations that lie behind those reasons. Because I understand those considerations, I do not intend to frustrate my right hon. and learned Friend.
I take this opportunity to express my views on the Lords amendments, because they are illiberal and unnecessary and will cause many problems in the criminal law. They are to be criticised because they display, on the part of those who advocate the need for the amendments, a failure to understand the law. If those who recommended the amendments to the House had fully understood the nature of the law, they might have appreciated that there was no compelling need for the amendments.
First, we must understand what the amendments do. Effectively, they do two things. They render contemptuous, unlawful and potentially criminal any disclosure of any transactions of any jury man. They go further than that—this is what the former Attorney-General, the right hon. and learned Member for Dulwich (Mr. Silkin) mentioned—and render contemptuous, unlawful and potentially criminal any approach to any member of a jury.
We have created a new class of absolute fairness. We must be clear in our minds what that means. I appreciate that prosecutions cannot be commenced without the consent of the Attorney-General for the time being. Nevertheless, the effect of the Lords amendments, if they are preserved, will be to render criminal the casual observation of a juror to his wife or to his neighbour. The hon. and learned Member for Abertillery (Mr. Thomas) shakes his head. He is wrong. It is true that a prosecution can be commenced only with the consent of the Attorney-General, but that deals only with prosecutions. Disclosure of the kind to which I have referred is contemptuous, and thus criminal. I do not like to see someone's liberty or his vulnerability to prosecution dependent upon the executive action of any Minister, however respectable, and I class the Attorney-General in that category.
The hon. Gentleman is aware of the old legal maxim, de minimis non curat lex—the law does not take account of small matters. He is equally aware that when jurors talk to their children or families there is no possibility of a prosecution being brought against them.
Of course I am aware of the maxim. I remind the hon. and learned Member that it refers to civil law, not criminal law. The House is being asked to create a new class of criminal offence. I am not comforted by listening to the hon. and learned Member, because he is saying "We are creating a criminal offence, but because it is a trifling criminal offence there will be no prosecution". That is not a good reason for creating a criminal offence, and I am against it.
I start from the first proposition. The classes of amendment are undesirable, illiberal and draconian. That brings me to the second proposition. I realise that I am repeating what was said in another place. I see that the Attorney-General has a sardonic grin on his face. However, we must ask what is the justification for the amendments. If there is no compelling justification for them, we would do well to reject them.
I suggest that there is no compelling justification for what is proposed. We should try to determine the genesis of the change in the law. What caused the Government to bring about a change in the law? What caused the amendments? The former Attorney-General, the right hon. and learned Member for Dulwich, touched on an important point. He drew attention to the fact that when the Bill originated in the other place it dealt only with the publication of material. It contemplated the publication of material in printed matter, or on the radio or television.
In 1980 the New Statesman case changed the law in one small regard. Prior to that case it was thought that any disclosure whatsoever of anything that passed in the jury room amounted to contempt. There was a disclosure in the New Statesman of what passed in the jury room in connection with the Thorpe trial. My right hon. and learned Friend the Attorney-General brought proceedings for contempt.
The Divisional Court held that the fact that there is disclosure of what passes in the jury room is not necessarily a contempt. It might be a contempt, because the Divisional Court has taken care to preserve the existing common law. The court said, in terms, that any disclosure that intimidated jurors or might prejudice a case, constituted a contempt punishable at common law. The only change brought about by the New Statesman case was to take away the belief that all publication constitutes a contempt, whether or not it tends to prejudice proceedings. It was to plug that loophole that the Government introduced the change in the law. It was a very small change. The old common law situation exists, as it always has.
It is inappropriate for the other place to introduce an amendment which is profoundly illiberal and wholly draconian in order to meet a tiny and minuscule change in the law. I believe that this is an illiberal measure. I believe that it is a largely unenforceable measure. I am sure that it is a draconian measure. It is wholly unjustified by any consideration which should commend itself to the House. I regret the introduction of the amendments.
I start by declaring an interest and a lack of one. I am not a lawyer, and I suspect that, apart from my hon. Friend the Member for Keighley (Mr. Cryer) and one or two other hon. Members, including the hon. Member for Epping Forest (Sir J. Biggs-Davison), I am almost alone in that category in the Chamber at the moment. Perhaps I should declare a further interest, in that I am an occasional contributor to the New Statesman, since the amendment revolves around the New Statesman case. However, perhaps that should be categorised as a deminimis interest, in that the New Statesman does not exactly pay princely sums for anything that one contributes to it.
My right hon. and learned Friend the Member for Dulwich (Mr. Silkin) was absolutely right when he said that the fact that we are considering these Lords amendments at all amounts to an abuse of the proceedings of the other place. I agree that what happened was quite in order, but it is absurd, if the parliamentary system between the two Houses is to proceed in a coherent way, that the Lords should introduce a Bill on Second Reading, go through long Committee and Report stages and say nothing at all on this issue, send the Bill to the Commons where we debate the matter in Committee, when my own Front Bench—with which I did not agree on that occasion—had things to say, as did the hon. and learned Member for Burton (Mr. Lawrence), and then we had our Report stage. In response to the debate in Committee, the Attorney-General put down a tiny amendment which many people thought added nothing to the meaning of the clause. The Lords then seized on that amendment in an attempt completely to alter the nature of the clause.
We therefore find ourselves at this late hour, because the Government have not brought forward an amendment, making absolute fools of ourselves by leaving on the statute book a law which the Attorney-General himself admits that he has no wish to see on the statute book. When this sort of thing happens, it is a complete abuse of our procedures. In my opinion, the Attorney-General had a duty to try a little harder to table an amendment.
It is a scandal for the Attorney-General to announce that, although he does not like the amendment, he will accept it simply because that is what he has been told to do by the Whips. That is what it amounts to: there is not enough time, and the Government are worried about their timetable. So he is happy, as Attorney-General, as pater patriae—as father of his country, as guardian of the laws of his country—to allow a law to go on the statute book which he thinks is nonsense, which he told the Committee was nonsense, and which he told us on Report was nonsense, simply because the Government are running into time problems at the end of July because of Royal weddings and other matters. It is intolerable that the House of Commons should be treated in this way.
First, that is not the main or the only reason why I have advised the House to accept the amendment. Secondly, adopting the most neutral stance that I can, although the hon. Gentleman says that nothing was said in the other place about the clause, I must tell him that amendments were moved by Lord Hutchinson on 20 January, on the second day of the Committee stage, exactly on this point.
I stand corrected on that point. I shall come to Lord Hutchinson, whom I think we all respect, in a moment. It is true that, from that Dispatch Box, the Attorney-General gave as one reason—I do not know what weight he attached to it, compared with his other reasons—that time was short, so we might as well accept the amendment.
That is a disgraceful argument to use. We legislate here to try to get the law right. To say that we should accept an amendment because time is short is not the right way to proceed.
I have great sympathy with the Attorney-General. I have reason to be grateful to him, because he accepted some of my amendments. It is tough to be an Attorney-General in the House. One is constantly introducing legislation over which one has no control; because the Lord Chancellor controls legislation. I well remember that in 1968 Lord Elwyn-Jones argued passionately from the Dispatch Box that the Lord Mayor and Aldermen of the City of London should not be disqualified from being magistrates simply because of their office. Following a little campaign in the correspondence column of The Times, when the Bill returned to the House for Lords amendments he argued passionately in reverse. He had been sold out by his Lord Chancellor.
The Attorney-General hats a duty to the House, notwithstanding anything that happens in another place, to stick by his arguments.
Is the hon. Gentleman saying that, because I advanced certain arguments before the debate in another place, I must stick to them willy nilly and be inflexible, whatever is said by the Law Lords and others?
I do not want the right hon. and learned Gentleman to be inflexible. I would have preferred him to have introduced what has been described in the debate as a half-way house amendment. It is true that the Law Lords and Lord Hutchinson of Lullington—for whom I have much more respect than I have for the Law Lords—argued strongly in one direction. But it was a tiny constituency arguing in another place. The House must not pass legislation simply on the basis of what the lawyers say. Other opinions must be heard.
My objection to the Bill, and especially to this clause, is that decisions are arrived at simply on the basis of what the professionals—the judges, barristers and one or two solicitors—say, without the other constituencies involved, one of which is publishing, being properly heard. That has happened time and time again over the years when there has been legislation on such matters. It is about time that it stopped.
The position that we have reached on the clause shows the difficulties. It must be admitted that the debate has gone clean across party lines. The lawyers are arguing with each other. The Opposition Front Bench is suggesting that our former Attorney-General, my right hon. and learned Friend the Member for Dulwich, has less experience before juries than others. If we had a totting-up procedure between my hon. and learned Friend the Member for Abertillery (Mr. Thomas) and my right hon. and learned Friend, I have no idea who would have appeared longer before juries.
Some of us learn from a little experience while others do not learn from a lot.
I do not wish to intervene in the squabble between my Front and Back Benches. Although I respect the view of my Front Bench, I profoundly disagree with it. In deciding to support so draconian an amendment it is making a great mistake.
He was an Athenian lawyer, and not a good one. A sedentary intervention I made earlier in the debate had some force. I wish to make it again standing on my feet. It is that lawyers and barristers have tremendous experience of jurors by appearing before them and talking at them, as it were, and no experience of being jurors and sitting on juries, unless they happen to have qualified rather late for their profession. They have little experience of talking to jurors. It is a great mistake if we legislate on the advice that is given to us by lawyers on what is proper to be the law in this area.
Many speeches have been made throughout the debate on the sanctity of the jury system. The fact that some hon. Members happen to believe in juries more than others, which leads them to vote for or against the amendment, is an absurd basis on which to conduct the debate. I happen to believe that the jury system is an excellent one. It has defended civil liberties in times of trouble in Britain, especially in the nineteenth century, better than any other part of our constitution and it should be preserved. It does not follow from that that one must necessarily put an absolute prohibition on jurors.
In believing and trusting in the jury system I am showing far greater faith in saying that the common law should continue to apply than those who in this place and another place are introducing amendments and seeking to place a massive element of statute law into the system to replace a somewhat confused judgment of Lord Widgery in the Divisional Court in the New Statesman case. The hon. Member for Grantham (Mr. Hogg) was right in his description of what Lord Widgery did in that case. It was a narrow issue.
I suspect that after all this fuss the Attorney-General must be rueing the day that he brought the prosecution against the New Statesman. If he had not brought it, we would not be in this position. The only effect of the New Statesman article was to strengthen people's belief in juries. The article made it clear that a particular jury would have nothing to do with the evidence of a former Member of this place, Peter Bessell, because it knew of the arrangements that he had made with the Sunday Telegraph about the possible publication of his memoirs.
The Attorney-General brought a test case and Lord Widgery gave his judgment. The Attorney-General and the Lord Chancellor placed the provision that we are debating in the Bill, and the result is a frightful muddle. We are creating a new criminal law and relying on the Attorney-General not to bring prosecutions when it would seem awkward to do so. I agree with my right hon. and learned Friend the Member for Dulwich (Mr. Silkin) that that is not the sort of area in which we should give discretion to the Attorney-General.
Shortly before the sad fall of the previous Labour Government my right hon. and learned Friend was trying to introduce a consent to prosecution Bill which was never enacted. It would have reduced substantially the area of the Attorney-General's discretion. I opposed it for certain reasons. I did so successfully because the general election intervened. I recognise that he introduced the Bill because of bitter experience over the years that Attorneys-General were being asked to use their discretion far too much in the law. What we are doing here is introducing a whole new area and asking the Attorney-General not to bring prosecutions in particular cases.
All the evidence is that those people who have said something in general about their experience on juries have enormously strengthened the general belief in juries. In an intervention I mentioned Graham Greene, Simon Hoggart, Alan Coren and Katherine Whitehorn, to name but four, but it is worth mentioning the experience of the editor of the New Statesman. In a leading article on 10 July he said:
The editor of this paper served last year on a jury panel. It did not provide him with any hot exclusives, though it re-inforced his belief in the jury system. There is one disclosure he would like to make before Lord Hutchinson sends him to the Tower.
M Most of the jurors thought the Bar's performance was mediocre to appalling, and that of the judges not always superior. Any substantial inquiry into the views and attitudes of the British juror would leave the legal profession with plenty of house-cleaning to do—and therefore, with less time to meddle in affairs of which it is wholly ignorant.
I am not accusing the lawyers in the House of wanting to gag jurors because that would expose their incompetence, but others are, and, if jurors have something to say about judges, they should say it.
All hon. Members will remember the recent case in which the retired Judge King-Hamilton made some disgraceful remarks about the jury in front of it after it had given its verdict. The foreman of the jury thought it right and proper after the case to write to The Guardian simply to defend the jury against that attack by the judge. That is the sort of thing that my own Front Bench and the Attorney-General want to make illegal and impossible.
The hon. Member has done his best to increase the circulation of the New Statesman by quoting Mr. Bruce Page. He must know that that is totally false. Of course, any comment by a juror about an attack on the jury by the judge has nothing to do with its deliberations in the jury room. The jurors can safely write to The Guardian, Mr. Bruce Page or anyone else and neither I nor Lord Hutchinson will prosecute them. They will have committed no offence.
For that relief I thank the Attorney-General. However, I hope that he is right. It may be that the foreman of the jury in such a case, when attacked by the judge, must, if he is going to defend himself, adduce in evidence the way in which the jury deliberated. The letter to The Guardian would have been a criminal offence if the Bill were passed. It might not have been subject to prosecution by the Attorney-General, because I am sure that he would use his discretion sensibly. However, it is absolutely without doubt that, if the clause goes on the statute book, a future foreman of the jury will be enormously inhibited from defending himself and his jury after such an attack, as compared with the situation if the clause were not on the statute book. Once again, I suspect that the clause could be prejudicial to jurors who want to say good things about juries and want to defend themselves when under attack.
The other class of people whom the Attorney-General mentioned in Committee and on Report is what I call the journalist or author juror. To a large number of people, service on a jury is the most exciting thing that ever happens in their lives. Some of them happen to be professional writers and journalists. Through the ages, they have written about their experience on juries and the jury system has received nothing but benefit from those accounts.
Again, the Labour Front Bench, Conservative Members and the Attorney-General want to stop that flow of accounts by individuals of what happens on juries. That is why I tabled the first of my amendments. I am with the rest of the House about research. I do not want a lot of research into juries. Therefore, I am happy to ban the soliciting of juries' views. However, we are talking about taking away the civil rights of an individual to speak about what he regards the most significant event in his life. That is an outrageous new criminal offence for the House to create.
What will happen if, as seems likely, this Lords amendment goes through in its present form? It will affect newspapers such as the New Statesman that like to test the law, just as they did over juries. They were quite right about the law, because Lord Widgery found them not guilty—
As one layman to another, is the hon. Gentleman saying that because someone finds something terribly exciting, he should be absolved from the principles of confidentiality?
I am not saying that the mere excitement should absolve someone from confidentiality or a criminal offence. I am saying that it is stupid of the House to create a criminal offence out of disclosing a particular experience when an enormous amount of good can flow from such a disclosure. In fact, such disclosure in the past has done nothing but benefit the jury system.
I thank the hon. Gentleman for yet again giving way. Lords amendment No. 2 makes it an offence
to obtain, disclose, or solicit any particulars of statements made, opinions expressed, arguments advanced, or votes cast by menbers of a jury in the course of their deliberations
That does not seem to exclude a journalist from saying afterwards that he did not think very much of counsel for the Crown or counsel for the defence; or that the judge was a bit dozy and did not seem to know the law; or that the usher was incompetent; or that the lunch was filthy; or that he had to wait for days before he was allowed to try a case. None of those intersting things, which I think the bar, pupils, solicitors and everyone else could gain by, would be prevented by that amendment, but perhaps I am wrong.
Of course the Attorney-General is riot wrong and could not possibly be wrong on that. His intervention was extremely useful. Jurors who wish to know where they stand will now be able to get a little help by reading his remarks in Hansard.
The truth is that if a juror wants to say something about a case, he will not want to talk only about the judge being asleep and all the other things that the Attorney-General mentioned. He will want to say something about the general tone of the deliberations, about how a fat woman said one thing and a thin man said something else and they all came to a conclusion in some other way. According to the letter of the amendment, that will now become a criminal offence when it never was in the past. To that extent, those who wish to strengthen the jury system will be inhibited from doing so again.
As I have said, the danger of passing a tough, draconian law like this, providing for the Attorney-General's consent to try to prevent it from being used frivolously, is that journals such as the New Statesman which wish to sail close to the wind and to test the law will test it over and over again and push the Attorney-General's consent as far as it will go.
We have talked about the finality of the jury's verdict. I am very keen on that. But if the amendment is accepted there will be no finality of the statute law on this matter. Because of the shadow of the Attorney-General's consent, people will not know how far they can go, what the law is or what the situation is until Parliament gets down to drafting the kind of provision that the Attorney-General should have brought forward in an amendment laying down clearly what we mean in this whole area. Otherwise, I am convinced that it would have been far better to withdraw the clause entirely and go right back to the common law position with Lord Widgery's judgment, for better or worse, alongside it. That would have been a far better position than the absurd situation into which the House has now got itself.
I therefore hope that when we come to decide these matters the House will not simply allow the amendments to go through but that we shall test the feeling of the House on this issue.
I wish to associate myself with the observations of the right hon. and learned Member for Dulwich (Mr. Silkin) and also those of my hon. Friend the Member for Grantham (Mr. Hogg). The House is indebted to the right hon. and learned Gentleman for what he said about the passage of this legislation and the unhappy chance that has led us into the present position. The House should also be grateful to my hon. Friend for the vigorous way in which he analysed the legal position prior to the passage of the Bill.
I associate myself also with what my right hon. and learned Friend the Attorney-General has said in the past about the matters contained in the Lords amendments, and also the rightly robust way in which the arguments in favour of the amendments were dealt with in the other place by the Lord Chancellor. Perhaps I should say at once, for the avoidance of doubt, that I understand the pressure under which the Attorney-General finds himself, and I take the same view of today's proceedings as does my hon. Friend the Member for Grantham. Nevertheless, I still believe that it would be wrong to allow this measure to be passed without making some protest about the quality of the thinking behind it.
Apparently, the first thing that those of us who dare to question what the Lords propose must do is to say that we believe in the jury system. It should be unnecessary to have to make that point, but in so far as it is necessary I make it with vigour. I think that much of the same audience as is here tonight heard me, I hope with proper robustness, denounce a proposal then contained in, but now happily removed from, the Supreme Court Bill to restrict the entitlement of juries to hear civil cases if those cases might be of some length. Had I been here a few years before that, I should have wanted to denounce in the most robust terms the proposal in one commission's report that the right to jury trial for certain theft offences should be removed. I hope that my credentials as a defender of the jury system are established and that I can now come to the central point in this matter.
The jury system in this country has survived unscathed despite attempts by various criminals to nobble jurors—that is because there are adequate ways of dealing with nobblers of jurors—by writers or people who want to make a wider public aware of their experiences on juries and by academics who want to undertake research into what goes on in the jury room. I shall come to the question whether there should be such research.
We find ourselves in this position tonight because of the Attorney-General's reasonable desire to correct what my hon. Friend the Member for Grantham properly called a small change in the law effected by the Divisional Court last year. That opened the floodgates, and a wave of what I can only call near hysteria gripped the other place, because their lordships allowed themselves to be swayed by a speech by Lord Hutchinson of Lullington, which appeared to offer the prospect of jurors, on emerging from their box in the court to the hall outside, being pestered by a crowd of academics, social scientists, friends and enemies of parties, lawyers and journalists to know what went on.
I appear before juries, and I know a few of the Crown courts. Therefore, I know enough to know that that does not go on. It never has gone on, and it would not go on if the Bill as originally drafted had gone forward without the intervention by Lord Hutchinson.
The question has been posed whether the fact that someone has addressed juries is a good basis for deciding whether he has a contribution to make to the debate. I do not know whether a persuasive argument against the Archbishop of Canterbury and the quality of his arguments on Heaven would be that he had not been there. But if that is a valid point to make, perhaps Lord Hutchinson has addressed a few too many juries and treated the House of Lords to a speech more suited to the Old Bailey and to the kind of analysis of the situation that the Court of Appeal might require than to the issues of individual liberty with which we are dealing today.
We are concerned with the liberty not of someone to sit freely on a jury, but of some other subject, equally worthy of our respect and consideration, who may wish to carry out valid research into the way that juries work or of someone who may wish to publish his reflections on the jury system.
I come to the point made by my hon. and learned Friend the Member for South Fylde (Mr. Gardner) about whether such research is necessary. I preface this by saying that no one in the House holds my hon. and learned Friend in more respect and affection than I do. But I would say that the answer to that question is that there is a need for such research. I should like to give some examples why that should be so.
Anyone who is interested in the administration of justice cannot fail to be concerned at the fact that 49 per cent. of those who plead not guilty to trial on indictment in Crown courts are acquitted. Thousands of our fellow citizens are either being wrongly acquitted of crimes for which they should be convicted or are being subjected to the humiliation of a jury trial for offences which, manifestly, they did not commit. Plainly, that is a source for some concern. Is it the quality of the evidence put before the jury or the quality of the deliberations in the jury room? One does not know. I do not think that any hon. Member, whatever views he may have on this issue, can say other than that there is a problem here.
Many people believe that the jury system should be based on trial by 12 randomly selected fellow citizens. But there is concern, in key trials with many defendants, about the distortion of the jury panel by objections without cause, which can exhaust a jury panel and transform a jury from being a typical to an untypical selection of the public. What effect does that have on the administration of justice? Is that not a fit matter for academics or anyone else concerned about the quality of our justice to look into?
Then there is the question of the ability of a jury selected on the present basis to come to grips with a sophisticated fraud. The present situation is most unhappy, with clever frauds—which have often failed to attract the attention of financial experts for many months, if not years, in a company—being brought before people whose connection with financial matters is, to say the least, limited, if not negligible. The question can legitimately be posed by those of us who admire the jury system: is there not a case, in instances such as that, for special juries?
There are legitimate and proper areas for research when the quality of a jury's ability to come to grips with these cases can properly be laid before the public, provided that individual cases cannot be identified. Plainly, it would be wrong to say that old X, the crooked financier, should have been convicted, but he was not, and that if only the jury had had a bit more intelligence it would have convicted him. But it is perfectly proper for an investigation to go forward into the manner in which a jury reaches its conclusions in cases of this kind, in order to decide whether certain categories of cases should be subject to a different basis for trial.
The hon. Member is making such a persuasive case that I hesitate to add to what he says. Will he also accept that there is a good case for looking, for example, at the success or failure of the reduction of the age limit for jurors, made only recently, from 21 to 18, and matters of that kind?
Of course. I do not want to labour the point, but I do not think there are many people here who could have read the observations of Lord Hutchinson at the start of all this without feeling that it was little better than a taproom assault upon academics in general. He talked dismissively about professors. It was not persuasive. It was the kind of argument that was resenting the fact that any academic or anyone else should see fit to challenge something that we lawyers apparently accept as being without fault. His suggestion, in a particular snide passage in his speech, that professors would not want to take the trouble to investigate the jury unless they wanted to pick holes in it, is not worth a moment's serious consideration.
Does my hon. Friend agree that the other criticism to be made of Lord Hutchinson is that he failed to understand the existing common law position, and failed to appreciate that the New Statesman case had changed the common law position in only one tiny respect?
I have already endorsed what my hon. Friend said on that point, and I saw no evidence that Lord Hutchinson appreciated the point. Indeed, he seemed to be suggesting that what the Government proposed was actually the law and had had the effects to which I have referred. Those who circulate around the Crown courts will know that to be absolute nonsense.
Would the hon. Gentleman care to deal not simply with the views and the speech of Lord Hutchinson, but with the speech of Lord Edmund-Davies, which could hardly be described as hysterical or of a taproom variety, and with that of the Lord Chief Justice? Is not the point about research, which was touched on when we last met in the House on this matter, the one made by the learned Attorney-General, that when one looks at the views expressed by two of the jurors interviewed, they often seem to be: talking about two different cases? If one went through the whole of the jury one by one, there would be the danger of having a completely inconsistent and garbled account, and, indeed, perhaps 12 different versions.
I have already said that I accept that the Attorney-General is entitled to take the view that he has, and that one of the things that persuaded him was that there were a number of people of distinction who agreed with it. Since he has already been referred to, I am entitled to say that the noble Lord who started this matter was not at his most persuasive on that occasion. The fact that someone else was more persuasive on another occasion does not necessarily devalue my point. I agree with the remarks made by the right hon. and learned Member for Dulwich and my Friend the Member for Grantham, Unless the hon. and learned Member for Abertillery (Mr. Thomas) wishes me to go over those points, which have been adequately dealt with, I shall move on.
Too much reliance is being placed on the Attorney-General's intervention. It is worrying that the Attorney-General is expected, in effect, to issue a blanket permission to certain categories of people and to say "Although the Bill says that nothing should be said about what goes on in a jury room, that does not apply to you, old chap. Do not worry, it doesn't apply to you or anyone like you. We are only out to catch old 'X'." That is not the way in which to deal with the law. Indeed, I am not sure that the Attorney-General is the only person who will determine whether certain matters—which most of us would be shocked to think could come before a court in the form of contempt—will come before a court.
I turn to clause 8(4). The clause has been subjected to many changes and I wish to ensure that I am reading the version that is before us. No doubt I shall be corrected if I am wrong. It states:
Proceedings for a contempt of court under this section (other than Scottish proceedings) shall not be instituted except by or with the consent of the Attorney-General or on the motion of a court having jurisdiction to deal with it.
Am I right to say that there is an "or", which suggests that it is not only the Attorney-General who can decide, but any court that has jurisdiction to deal with the matter? One assumes that that includes any Crown court that has heard the jury trial in which it is suggested that a breach has occurred. It will have the right to summon the miscreant before it on the basis of contempt. If that is so, we are opening the way for every circuit judge, deputy circuit judge and recorder in England and Wales to institute proceedings under, as my hon. Friend the Member for Grantham said, this draconian and illiberal measure.
I admire and respect those with whom I have worked in my professional life. However, I shall not further reduce the credibility of lawyers in the House by suggesting that there is not one in that wide category of those who sit, day after day, administering justice, who is incapable—in a moment's rush of blood to the head—of making a foolish decision. Anyone who frequents the Court of Appeal (Criminal Division) will know only too well that mistakes—sometimes gross and glaring ones—are made day after day and week after week. That is why the Court of Appeal exists and is so busy.
It needs only one minor judicial functionary to have a rush of blood to the head about one article for unworthy proceedings for contempt to be instituted. We are all anxious lest the law should be brought into disrepute. Something done from the best: of motives may suddenly be seen to be an awful albatross around the neck of justice and to be something that unduly inhibits the liberty of the subject in a way that we cannot be proud of.
With good grace, the Attorney-General has capitulated. I do not wish to under-value the adept way in which he slid out from his previously announced position. He has done so either as a result of pressure from the other place—and particularly from the Law Lords—or as a result of pressure from the legislative committee of the Cabinet. That body may have said that time and pressure would prevent the Government from enacting other measures if any difficulties arose in what is, to that body, a minor piece of legislation, compared with the Government's other political measures. The Attorney-General, with all these pressures, has capitulated, albeit with good grace.
This also demonstrates the powerful influence of lawyers in the two Chambers. It is not a very edifying sight. If one-sixth of the membership of this House consisted of part-time trade union officials and if the Lords also happened to be populated by a large number of trade union officials, I wonder whether the Attorney-General would have felt that their opinion should be accepted or whether he would have held out for his own. I suspect that it would have been the latter.
It is not a good thing that Parliament should be over-representative of any section of the population, let alone a tiny proportion of the population such as lawyers. It does the House no good to demonstrate and to admit that the influence of the legal profession has brought about this regrettable change in the legislation. I should like to give the comments of one of the people involved. He is not a lawyer. He is a journalist—one of the people who put into print the comments of a juror, which gave rise to this whole episode. I refer to the editor of the New Statesman. Hon. Members may disagree with his view, an outside view, of this place. I believe, however, that it will command a fair share of consent outside. The position of lawyers is not regarded with esteem by the public at large. When lawyers are seen to exert excessive influence in this place, it moves down a peg.
The editor of the New Statesman said on 10 July that judges and lawyers
are capable of spouting as much foam-flecked rubbish as anyone else when transported to another environment; for instance, the Palace of Westminster, within which they are merely a large, raucous and numerically dominant occupational pressure group. Putting it bluntly the lawyers, having been trounced on their own ground by the result in the New Statesman case, decided to get together in Parliament and rejig the law, by statute, in a manner more to their taste—and damn any nonsense about logic or coherence. Such a task is eased by the fact that Britain has no constitution to discipline its legislature. Unable to find the slightest evidence of harm done by widespread discussion of jury deliberations in the past they fell back on mysticism or what might also be called baloney.
He also refers to the comment of my hon. and learned Friend the Member for Abertillery (Mr. Thomas) on the jury as
a strange potion, an admixture that cannot be found in any other meeting of any other group in the world".
That widespread and sweeping condemnation is unfair to the degree that all widespread condemnations are unfair. This debate has shown that there are lawyers who are concerned and who have expressed that concern and whose remarks I, as a non-lawyer, have appreciated. Nevertheless, that passage is worth quoting as a view on what has happened in the re-shaping of this Bill by the Lords amendment.
I spoke in the last debate in support of the Attorney-General. If all the views expressed about them on that occasion are true, then juries and jurors are sturdy enough and robust enough to withstand any of the modest and highly restrictive approaches that the original legislation laid down. There was to be no identification of jurors and no identification of trial, it should be remembered. Surely, in those circumstances and with the robust record of juries going back over hundreds of years, some unidentified comment should have been permissible under the Bill, unamended, without wrecking the whole jury system.
Juries are an important part of our legal system. I defend the jury system, as I defended it when it became clear that the Crown was taking selective views of juries, unknown to the defence in some cases. I held that juries must be retained and developed, but there have been changes, such as majority decisions in jury trials. The question of lowering the age limit for jurors has also been mentioned. Unless we have the views of jurors about what is happening, we shall not be able to take as informed a decision as we might.
One or two speeches by lawyer Members have brought out the comatose, contented view that, because they are lawyers, they know everything about how the law works and that any suggestion to the contrary is a slur on their competence and prestige. That is the impression given by some comments about research.
Research can be important and relevant, and we need it if lay people as well as lawyers are to keep abreast of the development, nature and process of juries to make sure that they remain the bulwark of liberty that we believe them to be.
No doubt the forces of the Government will be marshalled and, having gone up the hill on behalf of the Government when the Bill was last before us, they will be turned round and sent down the hill to vote in exactly the opposite way. That is how the Government machine sometimes works—without too much care for the details of the print. It will be interesting to see whether the views expressed in the debate are backed by votes in the Lobbies. The amendment is illiberal and I shall certainly oppose it.
Unlike my hon. Friend the Member for Grantham (Mr. Hogg), I shall not presume to lecture hon. Members on what the law is. We are not discussing the validity of the jury system, and it would be wrong to do so. In any case, the validity of the system is not in doubt. No hon. Member has cast any doubt on it.
It is important to recall that the Bill as originally drafted was supported by another place, by my right hon. and learned Friend the Attorney-General and by the Government. It cannot have been mere whim that clause 8 was inserted. One likes to think that it was done with due consideration, and one has to consider the arguments carefully before accepting the reversal of the original position.
My right hon. and learned Friend suggested that clause 8 is almost an immaterial part of the Bill. He referred to it as a bastard in the Bill, but some illegitimate children can be important people and we should not dismiss clause 8 because it is regarded as a bastard. It was enshrined in the Bill as drafted and we must consider carefully whether it should be castrated.
What has emerged from the debate is a fanatical belief in the jury system which does not admit any questioning of it. I see the hon. and learned Member for Abertillery (Mr. Thomas) nodding in affirmation. If hon. Members place their hands on their hearts, that is the stance that they take. It is a stance with which I cannot agree.
The right hon. and learned Member for Aberavon (Mr. Morris) quoted Northern Ireland to me. We all accept the abuse there. The abuse that has led to the establishment of the Diplock courts in Northern Ireland is the intimidation of jurors, for which neither the House nor anyone has yet found the answer so that we can bring back the jury system in Northern Ireland. That abuse is a far greater threat to the jury system than clause 8 would ever be.
My hon. and learned Friend the Member for South Fylde (Mr. Gardner), who is listened to with the greatest respect, said that if juries had to give reasons for their verdicts that would mean the collapse of the jury system. I am happy to agree with him, and I am sure that all hon. and learned Gentlemen agree with him. But that is not what clause 8 provides. It admits that juries may be questioned afterwards, if they so wish—they do not have to answer the questions—about the nature of the deliberations. It does not mean that the foreman has to stand in court and formally give reasons for a verdict. That would be wrong. Under Clause 8, as originally drafted, jurors would not be obliged to answer questions of those seeking to elicit information, for whatever reason, about the nature of the deliberations in the jury room.
If the questioning of jurors is so intolerable to right hon. and learned Gentlemen opposite—it would appear that it is—surely we are entitled to ask whether it is intolerable to say to a defendant after he has been cautioned that he can be further questioned by a police officer because, mutatis mutandis, the situation is the same. If it is not intolerable for an arrested man, once he has been cautioned, to be further questioned by a police officer, knowing that he has the right not to reply to those questions if he so wishes, surely that can also be admitted to the question of considering the jury system.
I believe wholeheartedly in the sacrosanctity of the jury system, but that does not mean that it should not be questioned. We live in questioning times, and I welcome them Perhaps they will be referred to in days to come as the new age of reason. I hope so.
We should ask ourselves whether, in a time of questioning, it is right that silence should be the answer. I do not think that silence is the best answer. What is wrong with trying to find our whether our jury system deserves the great respect that all of us have for it? Surely it will enhance that respect if what hon. and learned Gentlemen say about it is true and that it is based on the facts.
Is the hon. Gentleman surprised to know what I learnt only today that on the day of the New Statesman case decision a number of courts not more than 60 miles from here, which are not far from a large complex of ITV studios, had cameramen at the door of the court at the end of that day's proceedings, ready and anxious to interview the jurors on that day. Fortunately, the authorities of the court took a robust view about the rights of cameramen and jurors.
The right hon. and learned Gentleman makes that point about one case. Is he really saying that the law, as it existed then, obliged any juror to divulge to television cameras what had been going on during deliberations?
On a number of occasions the hon. Member has said that a jury man would not be "obliged" to answer questions. Does he not appreciate that our concern is not what a jury man will be obliged to divulge, but what other jury men might think of what the jury man who is asked might divulge about what they say?
The right hon. and learned Gentleman knows that in clause 8, as originally drafted, there is the protection that the individual proceedings, defendant and case will not be identified. That is the safeguard. The fundamental question is whether we should have the right to question the jury system to ascertain whether it is as efficacious as we believe it to be. I think that it is right that we should have the ability to question.
If that is so—and I accept that I do not carry all hon. Members with me—we must then ask whether that questioning should be from a position of ignorance or knowledge. Clause 8, as originally drafted, enables that questioning to be on the basis of knowledge rather than ignorance. If the clause does not remain part of the Bill, I suspect that the public will not have the ability to comprehend why we should take a stand so that one aspect of our judicial system should have particular protection, when we question all other aspects in the House and the courts, since it is from members of the general public that the jurors are selected.
I have already made one excellent speech today and I did not intend to push my luck a second time. However, it is invidious for my right hon. and learned Friend the Attorney-General to be placed on the defensive at this late hour. We have heard speeches against him from both sides of the House. I rise because I was one of those who took exception to the stand that my right hon. and learned Friend was taking at one stage. It is only right that I should support him at this stage.
Not just myself but Lord Hutchinson, and the Lord Chief Justice and other distinguished Law Lords, supported by 76 Members of the Lords, support the amendment. Unless they are all blithering idiots there must have been some conviction in the arguments by the Law Lords. Lord Hutchinson was speaking for a large body of banisters in the criminal courts.
I have the feeling that some of us seem to know something that others do not. I hesitate to make the point, because the hon. Member for Keighley (Mr. Cryer) is not in his place. He usually uses such occasions to be unfriendly to lawyers, although he was restrained this evening. It is commonly and widely thought that the House of Commons is full of lawyers, but it is not overpopulated with lawyers. There are about 20 practising lawyers in the House, out of a total body of 635. It is of no importance. that 20 or 30 years ago somebody who had never practised the law, who never pontificates on the law and who never takes part in anything particularly legal, once qualified as a lawyer and now says that the place is full of lawyers. If anything, it is full of lecturers and journalists. Lawyers are quite a small minority.
The hon. and learned Gentleman tells us that there are 20 practising lawyers in the House, but I suspect that there is a good sprinkling of retired lawyers on top of that. There is a very small number, probably less than 10, of practising members of the National Union of Journalists. The journalists are greatly outnumbered by lawyers.
Those who are members of the union are obviously a much smaller part of the whole. Many Members of Parliament are journalists in one form or another. In any case, there is a very large number of lecturers. However, I do not wish to be sidetracked on that matter.
I want to deal briefly with the matter that was raised by the hon. Member for Keighley, that lawyers in these matters tend to hog the debate and pretend that they know more about them than ordinary laymen. In talking about juries, it is particularly relevant to know the experience of jury practitioners. It was a little too facile for the hon. Member for Lewisham (Mr. Price) to say that lawyers do not sit on juries and probably do not question juries. The fact is that over a lengthy period at the Bar, and particularly of daily practice in front of juries, one gets to know quite a lot of what happens in the jury room. Jury men approach one from time to time and say that they are terrified. That is not an experience that ordinary laymen ever have. Unless they are in the court when the judge comes back and clears the court and conducts an inquiry into why a jury man is terrified and where he has been threatened or approached, ordinary laymen do not necessarily know about it, but the practising criminal lawyer does.
The sum total of the experience and the wisdom of the Criminal Bar Association, particularly as it is represented in the Central Criminal Court—which, when I started, had six courts, and now has about 26 courts—is that it is very dangerous to allow a clearly stated development in our law which appears to make it possible for people to approach jury men. That is not just because jury men may be apprehensive, frightened and worried about what another jury man may tell a journalist, if asked. It is also that some of us feel that research, even genuine research, will do nothing to strengthen the jury system.
I do not agree with my hon. and learned or unlearned Friends who have said that if we are so confident, trusting and admiring of the jury system we should be allowed to permit it a close scrutiny. I do not accept that. The jury system is a delicate flower. The sum total of inquiring into why members of a jury came to any particular decision is likely to lead to public dissatisfaction with the jury system. I have said that at every stage of our proceedings. I have been prepared to concede that it is to protect the jury from public analysis, as much as anything else, that I was in favour of the change that we have now introduced.
I believe that the jury system is not to be questioned, because such a process would undermine the system and put nothing better in its place. If we could devise a better system of trying ordinary people, one which would attract the support of ordinary people, the acceptance of the criminal who now accepts the jury's decision, however many spots and warts it may have, I should then be prepared to allow an analysis of what happens in jury rooms. But until such time as we can think of a better alternative than trial by judges or lay assessors who are qualified in some way or other, the jury system, with all its faults—there are many faults which would, as sure as eggs are eggs, be discovered and stripped bare by constant research—is the best system that we have. It should endure. There should not be the slightest interference with it. I would not let a researcher go within 1,000 miles of any jury man, however bona fide and well-intentioned such a researcher might be.
I do not agree with my hon. Friends who say that there is great value in analysing and investigating the jury system. Hordes of investigators considering why juries acquit 49 or 50 per cent. of cases would not help the system. My hon. Friend the Member for Putney (Mr. Mellor) made a point that I have often made in the House about the failings of our criminal procedure to protect the innocent and convict the guilty. It would not help to research the minds and attitudes of the jury to see why it acquits. Any practitioner will say that it acquits because the police have not been believed. In our London criminal courts that has all too frequently been the position. If a police officer is cross-examined in a way that shows that he is not truthful about something, defence counsel will say that, if he is not being truthful about that matter, he may not be truthful about other things, and juries acquit. We did not need to research the jury system to discover that, any more than we needed to research it to discover that in many juries one dissenting voice was enough to bring an acquittal, which made it necessary to introduce majority verdicts. The researching of juries may sound attractive, but it would not lead to anything constructive. It might lead to something destructive and I have dealt with that argument.
I take the point that my hon. and learned Friend is making with great candour. I know that many listening to him find it attractive. Dr. Baldwin and Dr. McConville published a book two years ago on perfectly legitimate research into juries, even if it was somewhat tendentious. The legal system survived that onslaught. If they brought out a second volume, and the proposed Act was enforced they could be prosecuted. Is that an acceptable position in a free society?
It is. As has been pointed out, until the New Statesman case everybody assumed that jury men were not to be approached and that questions were not to be asked. There is no great change there. I do not think that the book to which my hon. Friend alludes has made any great contribution to the understanding of the working of the jury system. If that habit caught on there would be a substantial undermining of the jury system as we know it.
Even though the hour is late, I thought it necessary to speak in support of my right hon. and learned Friend the Attorney-General. I know that he has been placed in a difficult position. Those of us on the Conservative Benches who respect him should give him considerable credit for the way in which he has dealt with the matter. We should recognise that, whatever hon. Members—whether they practise at the Bar or otherwise—may say, there is overwhelming experience in support of the final stand being taken by my right hon. and learned Friend. It does not matter two jots how it comes about. If we have gone through the proper procedures of the two Houses of Parliament and improved the Bill in a way that is acceptable to those who understand and have experience of the workings of the jury system, we have done a great service to the country.
If by accepting that I might be wrong I am guilty of capitulation, so be it. That is what I have been accused of tonight. I prefer to believe that I am right to have regard to the views expressed in this House on Report and to the strong views expressed by experienced judges and others in another place.
It is interesting that we have heard speeches against the amendment that have included arguments that were never even whispered when a similar amendment was moved on Report. Those who spoke tonight were not here to give me support when I was almost the lone speaker seeking to oppose the amendments. However, those who expressed those arguments came out for this debate—I will not say that they came out of the woodwork—having never come out before.
I believe that I am right not to be inflexible. I do not find it so curious that the Government are capable of changing their mind. Usually the criticism is that the Government refuse to change their mind. I do not think that this is the time of night to deal with all the arguments that have been advanced. We must not fail to pay regard to what has been said both in this House and in another place. This is not a matter of the lawyers getting together. We cannot disregard the views expressed by so many, particularly the Law Lords, who try cases and who have had great practices at the Bar. The House should accept the amendments.
|Division No. 287]||[12.20 am|
|Ancram, Michael||Beith, A. J.|
|Archer, Rt Hon Peter||Berry, Hon Anthony|
|Baker, Nicholas (N Dorset)||Biggs-Davison, John|
|Blackburn, John||Mudd, David|
|Bonsor, Sir Nicholas||Murphy, Christopher|
|Bright, Graham||Myles, David|
|Brooke, Hon Peter||Neale, Gerrard|
|Cadbury, Jocelyn||Newton, Tony|
|Carlisle, Kenneth (Lincoln)||Normanton, Tom|
|Colvin, Michael||Onslow, Cranley|
|Cope, John||Page, Rt Hon Sir G. (Crosby)|
|Dunn, Robert (Dartford)||Penhaligon, David|
|Elliott, Sir William||Prior, Rt Hon James|
|Faith, Mrs Sheila||Proctor, K. Harvey|
|Fenner, Mrs Peggy||Rhodes James, Robert|
|Fletcher, A. (Ed'nb'gh N)||Shaw, Giles (Pudsey)|
|Gardner, Edward (S Fylde)||Shepherd, Colin (Hereford)|
|Garel-Jones, Tristan||Speller, Tony|
|Goodlad, Alastair||Stanbrook, Ivor|
|Gower, Sir Raymond||Stevens, Martin|
|Graham, Ted||Stradling Thomas, J.|
|Grimond, Rt Hon J.||Tebbit, Norman|
|Gummer, John Selwyn||Thomas, Jeffrey (Abertillery)|
|Haselhurst, Alan||Thomas, Rt Hon Peter|
|Havers, Rt Hon Sir Michael||Thompson, Donald|
|Hawkins, Paul||Thorne, Neil (Ilford South)|
|Hawksley, Warren||Trippier, David|
|Jopling, Rt Hon Michael||Waddington, David|
|Lawrence, Ivan||Wakeham, John|
|Le Marchant, Spencer||Wells, Bowen|
|Lennox-Boyd, Hon Mark||Wheeler, John|
|Lester, Jim (Beeston)||Wickenden, Keith|
|MacGregor, John||Wolfson, Mark|
|Maxwell-Hyslop, Robin||Tellers for the Ayes:|
|Mellor, David||Lord James Douglas-Hamilton|
|Mills, lain (Meriden)||and Mr. Robin Boscawen.|
|Morris, Rt Hon J. (Aberavon)|
|Silkin, Rt Hon S. C. (Dulwich)||Tellers for the Noes:|
|Welsh, Michael||Mr. Bob Cryer and|
|Mr. Christopher Price.|