Clause 41 — Application by Defendant for Trial to be Conducted without Jury

Criminal Justice Bill – in the House of Commons at 9:30 pm on 19th November 2003.

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Lords Reason: 32B.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I beg to move, That this House
insists on its disagreement with the Lords in their amendment.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to take Government amendment (a) to the words restored, Lords Reason 33G, the Government motion to insist and Government amendments (a) to (h) to the words restored, Lords Reason 34C, the Government motion to insist and Government amendments (a) to (e) to the words restored and Lords Reason 36C, the Government motion to insist and Government amendments (a) to (d) to the words restored.

Photo of Patrick McLoughlin Patrick McLoughlin Opposition Deputy Chief Whip (Commons)

On a point of order, Mr. Deputy Speaker. I am sorry to raise this issue as a point of order, but we never know when we might get the chance to do so, given the current funny situation. I wish to draw your attention to an answer that I received today from the Under-Secretary of State for the Home Department, Fiona Mactaggart. The question, tabled on 6 March this year, was to ask the Home Secretary what the administrative costs were of active community unit grants, race equality grants and refugee integration unit grants in the last financial year. I received an answer this evening from the Under-Secretary, saying:

"I will write to the hon. Member and place a copy . . . in the Library."

Is that the way an effective Government operate? It is now November.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

I understand the point that the hon. Gentleman makes, and he has now got it firmly on the record. As we have only an hour for the current business, we should proceed without delay.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

At this stage of the parliamentary process, hon. Members, no doubt, will be looking for a degree of compromise and agreement, wherever that may be possible. In that spirit, the Government are prepared to make a number of concessions that, we hope, will meet some of the concerns that have been expressed.

Clause 41 will provide defendants with the option, subject to the court's consent, to opt for judge-alone trial. It will give defendants a choice that they do not currently have about the way in which they are tried. The Government have been somewhat bemused by the hostility with which that provision has been attacked in some quarters. However, we have listened to the arguments, and we have tabled an amendment, the effect of which will be to give the judge discretion in deciding whether to grant a defendant's application for judge-alone trial. That amendment will alter subsection (3), so that the judge may, instead of must, make an order.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Can a copy of that amendment be found in the Vote Office? I have just been given a series of papers that does not include that amendment.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I am sure that others who are better placed will be able to check whether that is true, but I understand that the relevant amendment is available, and I am sorry that the right hon. and learned Gentleman has been unable to find it. I shall press on.

Mr. Grieve criticised our earlier amendments to clause 42, to restrict the application of the clause to serious fraud trials, on the ground that they removed some of the judicial discretion contained in the original draft. That was certainly not our intention, nor, I submit, is it the effect. The further amendment that we now propose, however, would confer on the judge an absolute discretion in relation to the making of an order for non-jury trial under this clause. We are also providing further safeguards by requiring the judge to consult the Lord Chief Justice, or a judge nominated by him, before making an order that the trial be conducted in the absence of a jury.

Clauses 43 and 45 deal with the pernicious problem of jury tampering. We listened to the argument made yesterday by the Opposition. Again, in the spirit of constructive dialogue, we propose an amendment—the removal of the second condition set out in subsection (5)—which we hope will satisfy the concerns raised by the hon. Member for Beaconsfield. We consider the burden on the jury imposed by necessarily intrusive police protection to be a very real problem. As I said, however, we have listened to what has been said and, like Opposition Members, our main concern is to ensure a fair trial, which is of course ensured by the condition set out in subsection (6).

On clause 45, we do not believe that continuation of a trial following discharge of a jury because of tampering will necessarily be a "non-starter", as suggested by the hon. Member for Beaconsfield. Clearly, a judge who felt unable to continue a trial alone because he felt that he would not be able to hear it with the requisite impartiality, or who thought for some other reason that the defendant would not receive a fair trial, would not be obliged to do so. That established principle is already reflected in the Bill. I hope, however, that our proposed amendments will allay a good many of the Opposition's concerns by making it absolutely plain that the judge will not be able to continue the trial sitting alone unless he is satisfied not only that jury tampering has actually taken place but that the defendant will receive a fair trial. We have also amended the clause to increase the discretion of the judge in this matter.

Having covered the technical detail of the amendments, I want to address the wider issues of this debate. It seems to me that the Opposition are prepared to threaten this House and the electorate of this country with the possible loss of this Bill. We are not surprised that that is the case, given the comments of Mr. Letwin on 15 July:

"I don't think there is anything in this bill that is to the great benefit of mankind. If it is lost, it is a price worth paying to protect trial by jury."

He therefore made his position clear. I was somewhat surprised to read in this morning's Financial Times the comment by the hon. Member for Beaconsfield that "If he"—the Home Secretary

"fails to compromise he may not get his bill."

Both the former shadow Home Secretary and the shadow Attorney-General therefore threaten the House with the loss of this Bill.

Let me remind hon. Members precisely of what that threat entails. Loss of this Bill would mean the loss of tougher sentences for those who commit murder, and the loss of tougher sentences for those who carry out dangerous sexual and violent offices, with no release if they still pose a risk to the public. It would mean the loss of a new five-year minimum sentence for firearms offences to help tackle gun crime, and the loss of longer sentences for dangerous drivers who kill—

Photo of Edward Garnier Edward Garnier Conservative, Harborough

On a point of order, Mr. Deputy Speaker. It seems to me—you may agree or disagree—that the Minister is engaging in a wider debate than is permitted under this amendment. It is of quite a narrow structure—

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I am very grateful for the hon. and learned Gentleman's kind offer of help, but I think that we can now proceed.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I am sure that the hon. and learned Gentleman's comments are always helpful, Mr. Deputy Speaker.

The loss of the Bill would mean losing measures to crack down on bail bandits and to tackle reoffending on bail. It would mean losing the extension of drug testing and treatment provision. It would mean that the possibility of the police, prisons, probation service and victims having a voice in sentencing for the first time ever would be lost. It would mean losing the enhancement of jury trial by ensuring that juries better reflect all sections of society and the abolition of the automatic right of exemption.

Hon. Members:

Give way.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. The Minister has made it clear that he is not giving way at this point.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I am not giving way because we have a short time for debate. Earlier this afternoon, there was criticism that there was insufficient time for people to make their contributions. I intend to make available every minute possible for other hon. Members to contribute.

In the light of the comments that I have just made, I submit to the House that if the Opposition continue to resist—

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. When a Member seeks to intervene, he must not remain on his feet indefinitely if the Minister is not giving way.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

I have explained why I am not giving way.

If the Opposition continue to resist, they will bring the Bill down and the people of Britain will know it.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

As I am conscious that we have reached a stage in the proceedings on the Bill when, perhaps inevitably, tempers may get frayed, I wish first to put on record my thanks to the Minister and to Baroness Scotland for the opportunity they have provided us with for dialogue on this very difficult piece of legislation. I am genuinely grateful for that opportunity, in exactly the same way as I have been genuinely grateful to the Minister for the way in which he has conducted the Bill, which covers a wide range of topics. Undoubtedly, some of them are important, and I also believe that this legislation has the potential to do good. I am absolutely clear about that, and I want to make clear to the Minister my thanks to him in particular for this evening's opportunity to talk.

It is really with some regret that I have to say to the Minister that, notwithstanding that, the amendments that the Government have tabled—I shall come to them in a moment, because I shall have no difficulty in welcoming them as steps in the right direction—unfortunately do not go far enough in my view and that of my colleagues to meet the issues that the House has to consider.

The Minister quoted a statement that my right hon. Friend Mr. Letwin made on 15 July. The quote was correct, but the Government cannot be surprised about the state into which they have got themselves on the Bill. We have been saying for a very long time that there are issues surrounding jury trial and bad character that are of fundamental importance to the way in which justice is discharged in this country. We are coming to the point when this touches on matters of conscience. When that happens, it is perhaps no surprise that we get into a situation in which agreement becomes very difficult.

I went to the other place this afternoon to listen to some of the comments that were made. The one that struck me most was from the ex-Attorney-General, Lord Morris. Although out of loyalty he suggested that he felt that the Government should have their way—a view I cannot share—he nevertheless went to the heart of the issue when he said that the Government were setting out to undermine jury trial and that that would be the result of what they were doing. Although I believed that we might be quite close to coming to a sensible outcome on the issue of jury trial, I very much regret that that outcome unfortunately still appears to elude us.

This is the Government's Bill and at some point they will have to make some decisions. They will have to decide whether a compromise can be reached so that a good piece of legislation can be placed on the statute book, about which I would be happy to say that although I regret some details, it is of benefit. However, if the Bill comes up against the conscience of many Members of this House and the other place, it will founder. I tell the Minister that if a satisfactory outcome is not reached, it will not be for lack of trying on my part. Although we have not reached an agreement, I rejoice that his willingness to table amendments this evening indicates that the Government are willing to engage in the process.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 9:45 pm, 19th November 2003

Does my hon. Friend agree that it is quite scandalous for the Under-Secretary to suggest that if the House of Lords persists in its view, the Bill is necessarily lost? That is not true. The Government could concede on these two small matters and the Bill would be saved.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The matter is entirely in the hands of the Government. Of course, it is right to say that the constitution of this country as it stands at present, and especially that of the other place, is the Government's creation. It does not behove them to criticise the other place for exercising its constitutional rights because they have no grounds to do so.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Surely my hon. Friend is being too kind to the Government. They always want it both ways. They want us to accept the other place that they have created when that is convenient, but when it is inconvenient, they suggest that because it is an unelected body we cannot listen to it. Surely they have to make up their mind on the constitution as well as the Bill.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. Friend is right. I do not wish to widen the scope of the debate because I want to concentrate on the amendments, but it is true that the Minister made some intemperate comments toward the end of his speech. Given the lateness of the hour and the process through which we have been, however, that is fairly forgivable. Nevertheless, there is no point in criticising Members of the other place, including many Government Back Benchers, for doing their job in accordance with their consciences and views.

I shall put on the record the problems that remain. We indicated previously that we remain of the view that clause 41—"Application by defendant for trial to be conducted without jury"—is entirely ill conceived and will lead to the trial process being brought into disrepute by forum shopping. Unfortunately, the tendency of judges to acquire a reputation on specific cases to which forum shopping will befall would be exploited. On top of that, the clause will deprive members of the public who form juries of the opportunity to decide on the guilt or innocence of their peers, which is as important as the right of the protection of a defendant through a jury trial. That situation would be quite wrong, and the Government will find that judges who sit alone will acquit, which will lead to public outrage that would not occur if a jury tried the case. We remain absolutely clear in our minds that clause 41 must go in its totality and must not be seen again.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

My hon. Friend suggests that some judges might acquit—well, they might. However, equally there will be case-hardened judges who could take a prejudiced view on specific defences and lines of evidence, which would be antipathetic to the interests of justice and defendants. Would my hon. Friend care not only to nail his colours to the mast on acquitting judges, but concern himself with the fact that justice requires a fair trial for both the prosecution and the defendant?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. and learned Friend is right. It could be said that as the trial process in front of a judge alone is the defendant's choice, on his head be it. It is a bit difficult for him to complain about the judge being hard on him. I prefer to see the other side of the coin, however, which is the extent to which the public may express grave disquiet at decisions that are taken by judges sitting alone in criminal cases which the public do not understand and where justice is not seen to be done. That is the merit of juries. We should have nothing to do with the issue of individuals having choices.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

Will the hon. Gentleman clarify one simple thing for me? Is it now Tory party policy to campaign to abolish the non-jury Diplock courts, which have worked successfully in Northern Ireland without the sun and the moon falling in?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I reassure the hon. Lady that it is nothing of the kind. If she bears with me, I will provide her with complete reassurance on that when I deal with jury tampering, which is the relevant issue with regard to Diplock courts. We are not talking about a situation in which it is necessary to have a trial in front of a judge alone because no fair trial could otherwise take place. Mercifully, England and Wales have not had the same problem as Northern Ireland.

The other concern relates to applications by prosecution for certain complex or lengthy trials to be conducted without a jury. The Minister made some concessions on that and I acknowledge that they are important. The possibility of a review by the Lord Chief Justice and the possibility of a discretion to the judge not to allow a trial to take place without a jury are helpful. However, the Serious Fraud Office has a conviction rate in excess of 90 per cent. The number of trials that will fall within that category are minute, especially in the light of the Government's amendments.

Trials have not collapsed because of the difficulties of finding juries. Juries can be found. There is, therefore, no justification for keeping clause 42. If that clause were to go, I have no doubt that our tasks in relation to the Bill would be immeasurably simplified. The proposals to curtail the right to trial by jury in fraud trials are fundamentally flawed. Although I accept that the Government's amendments are a minor improvement, they do not go to the heart of the issue.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

My hon. Friend welcomed the inclusion of a review by the Lord Chief Justice. Perhaps he might care to reconsider that because what is being proposed is a private word with the Lord Chief Justice. No one will know what he has said and no one will have the opportunity to address him. That is private justice of a most unsatisfactory kind.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have no doubt that anyone who reads what the Lord Chief Justice said on Second Reading

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I will get to that. No one could doubt that the Lord Chief Justice has the interests of justice and judicial discretion at heart. The concession is not good enough, but it is better than a poke in the eye.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It is still marginally better than what was on offer before. I do not give the concession greater praise than that. If I did, I might be minded to reconsider clause 42, but I am not and nor are my colleagues.

The final issues relate to the application by prosecution for trial to be conducted without a jury if there is a danger of jury tampering. Although I continue to have concerns about that, the Minister has gone a considerable way to provide reassurance. In the case of an application to discontinue jury trial even before the first trial has started, the amendments tabled are improved by removing the second condition in clause 42(5), and I accept that. However, I still believe that the test for deciding whether such a trial should go ahead is not high enough. The Minister knows the amendments that we tabled earlier and they remain, to my mind, the acceptable model. However, the Minister and the Government have gone a long way to provide reassurance. I am sorry that in the totality of the matter it is not sufficient.

In the case of discharge of the jury because of jury tampering, I am again pleased that the Minister has made certain concessions and I accept that they may have been reached with great difficulty. Nevertheless, they are worthy concessions. It remains the case that the test of whether it is necessary in the interests of justice for the trial to be terminated is not sufficiently high. That is perhaps a minor issue and the Government have come even closer to satisfying us on that—although still not close enough.

The Government have tabled amendments, and that is productive in the process of trying to come to an agreement. I am willing to continue that process. I would like to see the Bill on the statute book, but nothing will induce me to take a step that would allow that as long as the fundamental flaws in it—especially in relation to clauses 41 and 42—remain. Those clauses should not be in the legislation. It is such a fundamental issue that it makes it impossible—I say this with regret—to reach agreement with the Government this evening.

Photo of Simon Hughes Simon Hughes Liberal Democrat, North Southwark and Bermondsey

The Bill started its passage through Parliament on 21 November last year, when it had its First Reading in the House of Commons. We took six months to deal with it, finishing on 20 May. The following day it went to the Lords, and they finished their work on it on Monday 17 November. They did their job well, as we tried to do ours. Only yesterday did we have the chance to consider for the first time the changes that the Lords had made. We did so carefully, although within a guillotined time limit. We sent back to the Lords a variety of matters, after eight votes.

Only four substantive matters remain, out of a Bill of 307 clauses and 30 schedules. Of 14 parts, only two are still controversial—four clauses in part 7 to do with jury trial and 16 clauses in part 11 to do with bad character, reputation and evidence. I say to the Minister in the same spirit that has followed the Bill throughout its passage that it cannot be impossible for people of good will to negotiate an agreement that allows the Government, who have already secured agreement on 12 of the 14 parts of the Bill, 287 of the 307 clauses and all the schedules, to reach an agreement on those that are outstanding in the hours that remain of this Parliament.

We did not determine that the matter should be finished by tomorrow: the Government chose that. Like the Conservative party, the Liberal Democrats have appreciated the discussions with Ministers at all stages. Like Conservative, Labour and Independent peers, Liberal Democrats have participated in those discussions and made our position clear. The Government must understand that in this Parliament there are two Chambers, both of which are entitled to have their say. It is a Parliament of the Government's making. Indeed, the second Chamber is explicitly of this Government's making and they therefore have to accept that it has the right to have its say, as we do.

Let me make our position clear on the matters that remain. The amendments tabled represent progress—they are an improvement. However, on the two substantive matters to which they relate—jury trial and bad character—the Government have not yet addressed fundamental concerns that have caused opposition on both sides of this House and of the House of Lords. Let me make it clear how the Government will have to proceed. I hope they will do so, and if they do, we shall respond in the hours that remain.

The Government must accept that making only the minimal alteration to clause 41, "Application by defendant for trial to be conducted without jury", and giving the judge discretion means, by definition, that there will, at least on a regular basis, be the possibility of non-jury trial for the most serious offences in cases that clearly produce two types of serious trial in this country. Instead of the respected institution of the jury—12 people—making a decision, a judge will make the decision alone in some cases. That judge would come with a reputation and would be in a far more invidious position than any judge is now. The change is not necessary. The reason it should be resisted, which I hope the Government will accept, is that it eats into the principle that we in this country have jury trial for serious cases, and the defendant—not the Government or the judge—chooses.

We debated yesterday at great length clause 42 and whether serious fraud cases were better dealt with by judge or by jury. The logic of the Government again coming up with a proposal that gives a discretion to the court seems to my hon. Friend Mr. Heath and me—we have examined the matter carefully—to be that if the tests that remain in the Bill are passed, the judge will be driven to decide that the case can be a judge-only case. That outcome is the presumed outcome. Yes, the provision for an application to the Lord Chief Justice provides a threshold, but as Mr. Hogg said, that application is made without criteria or public debate, and as a result there is no necessity for decisions or reasons for those decisions to be stated publicly.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 10:00 pm, 19th November 2003

It is more offensive than that, because the relevant parties to the litigation do not have an opportunity to address the Lord Chief Justice.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Have the Government applied their mind to the time available to the Lord Chief Justice? He is already a busy man; is he expected to throw away his existing list in order to deal with the applications of a private nature that the hon. Gentleman is describing?

Photo of Simon Hughes Simon Hughes Liberal Democrat, North Southwark and Bermondsey

If there were a real issue—if we as a country had great difficulty securing convictions in serious fraud cases—that might be a matter that should daily command the attention of the Lord Chief Justice. However, serious fraud cases are not ones in which convictions are not regularly successfully achieved: 90 per cent. result in convictions—a higher proportion than in any other category of case heard before judge and jury. The Government are inventing a mischief in order to propose a solution, and their solution is the loss of jury trial. A defendant who happens to be charged with fraud may suddenly lose the right to a jury trial, with no say at all.

I hope that we have made it clear to Ministers that we have arrived at our position for all sorts of reasons, not only history, success and reputation, but because of the danger that once the principle that serious cases should go before juries is broken into for some serious cases today, it is possible to argue that it should be done for other serious cases tomorrow. Lesser cases do not go to juries; the change that we are debating would be the beginning of serious cases not going to juries, and defendants would have no say in that. If the Minister believes that that will enhance criminal justice and the reputation of the good parts of the criminal justice system, he is sadly mistaken. I am sure that, in their heart of hearts, he and his colleagues do not believe that.

On jury tampering, I also welcome the concessions that have been made. I think that there is scope for agreement on the wording. I accept that there are cases where it may be necessary, when attempt after attempt has been made to have a jury trial and people have interfered, to pull the plug. That may be necessary when everything else has been tried. I think that the Government now accept that and that they are moving in the right direction. We are prepared to work on some wording in relation to clauses 43 and 45.

I hope that the House is making it clear that clauses 41 and 42 are not a necessary precondition of the Bill passing through this place. I hope that the Minister understands that if the Government choose to pull the Bill because they cannot get their way on these two clauses, that will be the Government's choice, not our choice. It will be a choice that is not consistent with the reputation and the view of the British people, who trust jury trial more than they trust a single administration in the government of this country. I hope that the Government will realise that the reputation of the criminal justice system deserves better treatment, and that they will think again. We are willing to do so, and I hope that they will do so too.

Photo of Mr Brian Sedgemore Mr Brian Sedgemore Labour, Hackney South and Shoreditch

I can be exceedingly brief.

Although I do not want to embarrass him, my hon. Friend Mr. Purchase, who sits beside me, said just now that a jury trial is the criminal classes trying the criminals. I do not agree with that. However, having heard my hon. Friend the Minister speak, I was reminded that Gladstone once said of Disraeli that his only principle was lack of principle. We are not discussing a Bill that is bobbing between two Houses with people trying to come to some convenient solution. We are discussing a fundamental principle. If we lose sight of that, it seems to me that we lose sight of what justice and liberty are about.

I was not involved in consideration of the Bill in Committee, but I have read the reports of all the proceedings. It seems that most of the statements that have come from the Home Secretary have been both banal and didactic. An argument must be constructed before cursing people who disagree with a proposal. Perhaps one of the problems in this debate is that most of us can agree that we have the worst Home Secretary for the past 100 years, but some of us are suspicious that we may have the worst Home Secretary for the next 100 years. That is not good enough, and I do not say that in jest.

Photo of Mr Brian Sedgemore Mr Brian Sedgemore Labour, Hackney South and Shoreditch

There are many Labour Back Benchers whose views I respect who are saying that making this intervention into jury trials is not an important issue. That is not the history of the Labour party since the Representation Committee was formed more than 100 years ago.

People have different sticking points in politics. I can only say that this is one of my big sticking points, and I would hope that it is a big sticking point for all my colleagues. My researchers have gone through all their election addresses individually since 1997, and none of them has advocated the abolition of jury trials in his or her election manifestos. What is this all about? Why are we striving might and main, according to the Home Secretary, to deal with about 20, 25, 30, 40 or 50 cases a year? I say for myself that I am debating whether it is worth while taking the Whip of a political party that will make a fundamental interference in liberty and justice.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

We have been told by Mr. Sedgemore, for whom I have the greatest respect and against whom I have frequently appeared in court in the past, that we have the worst Home Secretary, probably for 200 years. I am bound to say that I think that he is probably right. The Home Secretary is one of the most illiberal individuals whom I have had the misfortune to listen to since I entered the House of Commons. I hope very much that the House of Lords will stick to its position. My hon. Friend Mr. Grieve set out the detailed arguments, strongly reinforced by the hon. Member for Hackney, South and Shoreditch, so I do not have to repeat them. I agree with them. I shall just make three points.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I am most grateful to the right hon. and learned Gentleman for taking an intervention, as Mr. Sedgemore did not do so, which I regret. May I say on behalf of the people of Northern Ireland that the present Home Secretary is regarded as a very brave and courageous Home Secretary, precisely because when the Bill was first drafted, it did not extend to Northern Ireland. It was the Home Secretary, at the request of my right hon. Friend Mr. Trimble and myself, who agreed to extend key provisions to Northern Ireland. Will the right hon. and learned Gentleman please explain to me and to the people of Northern Ireland why he and his party do not object to non-jury Diplock courts, but continue to object to non-jury trials in respect of a small issue?

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The last thing I want to do is to be critical of the hon. Lady, for whom I have the greatest respect, but last night my hon. Friend the Member for Beaconsfield set out in considerable detail why we thought it right to retain the Diplock trials in the Province. I share that view. The special circumstances in the Province justify them. As for thinking that the Home Secretary is a brave and liberal chap, he may have his virtues, but liberality is not among them. He is one of the most illiberal Home Secretaries I have had the misfortune to see or read about in all my study of politics and history.

I shall make three points, the first of which relates to clause 41. Let us be clear about it. The effect of the Government's provision is to create a presumption against jury trials. I do not believe that a liberal Government should be doing that. We are given a concession: the word "may" is to be introduced into the Bill instead of the word "must", but there are no criteria of any kind. It has not advanced the cause one little bit. The presumption is still against jury trials, and for the reasons advanced by my hon. Friend the Member for Beaconsfield tonight and yesterday, that is deeply offensive.

Clause 42 is a spectacular own goal on the part of the Government. What is being offered by way of a compromise is a private conversation between the trial judge and the Lord Chief Justice. I entirely agree with the kind remarks made by my hon. and learned Friend Mr. Garnier about the Lord Chief Justice, but the idea that a trial can be regulated through a private word is bizarre. The people who are being tried have a right to say something about their position. What is proposed is a private word between two judicial figures, with the people actively involved being utterly deprived of any opportunity to make representations, and the ultimate decision being no doubt motivated by the decision of the Lord Chief Justice, which will never be announced to anybody. If that does not offend the principles of fair trial, I cannot think what does.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

My right hon. and learned Friend and I recall that in the last Parliament the Government were keen that we should pass the Human Rights Act 1998, which brought into domestic law the European convention. He and I also remember that article 6 brings with it into domestic law a right that the common law already recognises—the right to a fair trial. If a trial is to be continued through the means of a private conversation between the trial judge and the Lord Chief Justice we know not where and when, surely that conflicts with article 6 and the Human Rights Act.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Manifestly so, and my hon. and learned Friend and I will have great fun with that, should the matter come before courts in which we are engaged. The prospect of the forum being determined as a result of a private conversation is deeply offensive.

I want to make two further points. First, in what I suppose passed for his peroration, the Under-Secretary told the House that, if the House of Lords stuck to its views, the entire Bill would be lost. That is complete rubbish; it does not even begin to approximate to the truth. The reality is that, if the Government want to make a concession on the several clauses involved, they can do so, and the Bill will then be saved. The Bill will be lost only if they refuse to make a concession, so I have the very nasty feeling that the House has been a trifle misled—would that be an appropriate word, Mr. Deputy Speaker?—as to the impact of the position that we are adopting tonight.

Finally, I would commend to the Under-Secretary, his officials and his Front Bench colleagues a little modesty. The plain truth is that, in the other place, by a very substantial majority, the noble Lords have expressed their view. It was largely a free view, unconstrained by the Whip and expressed by those who know something about the matter and are not seeking jobs. I am bound to say that that view has a greater legitimacy in my eyes than that of Labour Members, bound by the Whips, most of whom are looking for jobs. I prefer the views of those in the other place in this matter. They know what they are talking about and they have not been bought by ambition.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway 10:15 pm, 19th November 2003

There is not a great deal that I can add to this highly polemical and very instructive debate, except this: I have prosecuted the worst of them—

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

Many of them, funnily enough, are Tories.

I have prosecuted the worst of them and I have defended the worst of them, and I have gloried in the successes and suffered the defeats in that respect. I come here to defend the jury system only because it is part of us, not because it is anything else. It is part of us inasmuch as this Chamber is part of us. It brings together an enormously eclectic number of people in order to judge their fellow citizens. The idea that they are not capable of doing it is an insult to them and an insult to us. We are an extraordinarily eclectic group of people. The days when the squirearchy came here to sit on the Tory Benches and to patronise the representatives of organised labour on this side of the House are all gone. [Interruption.] Of course, they have toffs on those Benches, and let me say straight away that we have toffs on our side as well.

We have become a glorious and eclectic mix of people and we trust ourselves to wrestle with the most profound, difficult and sometimes incomprehensible legislation. One message that I have is: for God's sake trust the jury system, which has served us for 800 years. The idea that juries do not understand the complexities of fraud trials is an insult to juries and an insult to those who have lived with them for 800 years. Nobody in the business or game would support that view. It is borne out by juries' high conviction rate; they know dishonesty and fraud when they see them.

Let us support the system that has served us so well, and stop, at this stage, any erosion of this great liberty that we have. There were those who said that we should do away with jury trial for the least serious offences, and we beat them back twice in the last Parliament. Now, they have come back and said that we should do that with the most serious offences. Had we lost last time, we would now be squeezing into 800 years of liberty a tiny section of criminal activity, which would be wholly unacceptable.

I want to finish on the question of jury nobbling. The jury is the strength of the system, not its weakness. It is almost impossible to corrupt 12 people, whether with money, bribery, threat or violence—that simply does not exist—but it is possible to corrupt, bribe or threaten one man. The great strength of our system is that it involves 12 people. In a very long life of crime—I used that phrase the other day as a joke, but the point is true—I have never known a jury to be corrupted or distorted to the extent that an unjust verdict was delivered. But if I were asked whether, if the Bill goes through, I could say that the prospect is that I will never see a single judge corrupted or bribed, I would describe that as myopia.

This country's glorious and wonderful system has been copied and adulated throughout the world. The House—on both sides—should resist with every sinew and vein of its body any attempt to erode what we have.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

As so often, Mr. Marshall-Andrews has put his finger on the pulse of the nation. I have great respect for him, which is why I want to address him very directly. Throughout all these debates, he has heard that only those whose commitment is to the Government Whip have supported him. All those who have taken, and can take, an independent view have opposed him. That means that he is about to do something extremely dangerous, which is to decide—or to attempt to decide—the future of English justice not by listening to all the voices and coming to a common position that the whole nation can support, but by agreeing with a pre-judgment of the Home Secretary.

My concern is that although I have listened to such debates recently and when we previously discussed these matters, I have never heard a proper argument that stands up, and the people outside have never heard such an argument. That matters more than anything else, as British justice works because the British people believe it to be just. The jury is a crucial part of that. [Interruption.] If the hon. Lady would not speak but perhaps listen, she might hear something. I know that she listens to what the Whips say and votes as they tell her, but will she listen to the fact that no independent in the other House has considered that the case is proved? In a court, a case has to be proved, and in this court the case has to be proved.

The court of Parliament ought to take seriously the fact that we need jury trials to give people confidence in the justice of British justice. I hope that the Under-Secretary will reflect on the fact that he has it in his hands to make British justice continue to be respected. He should not put in peril the whole of the Bill because he wants to do the work of the Secretary of State. The Secretary of State has shown himself unable to understand what 800 years of history mean. He is out of touch with the view of the general public. Will the Under-Secretary change the world by standing up for the general view instead of his boss's view?

Photo of Edward Garnier Edward Garnier Conservative, Harborough

There are two ways to look at the problem that the Government face when considering whether the jury system should be maintained. First, does it accord with principle, and, secondly, is it of practical utility? The experience of those of us who have practised in the courts before criminal juries and civil juries suggests that it works. There is a collective common sense that exists in a jury made up of 12 of our citizens randomly chosen.

Of course, it is inconvenient for the Government. Of course, it is expensive and, of course, the Treasury will apply pressure on the Lord Chancellor's Department, or whatever it is called nowadays, to increase the rate at which trials are conducted so that they are more economically efficient, but it seems that that conflicts with the principle of whether, by removing trial by jury—[Interruption.] I know that the Under-Secretary of State for the Home Department finds this immensely amusing. She is laughing at the Minister for Crime Reduction, Policing, and Community Safety. Perhaps she has good reason to laugh at her, but let me return to the issue. If we are to remove the trial by jury system, we have to be convinced that the principle that lies behind it should be thrown away.

I am not going to go into a history lesson at this late hour. Many of those who support the jury system trace it back into the mists of mediaeval history. I do not need to do that. I need rely only on the principle that exists today—that in order for the criminal justice system to receive the consent of the public and, more important, the agreement of those who are tried, it is important that those who are tried are tried by their peers, wherever that is possible.

As someone who tries criminals or those who are accused of crimes, and who has to deal with cases in partnership with a jury, I do not see prisoners, shackled and handcuffed, who are reluctant to be tried by their peers. I see people who would rather not be in a criminal court, but when they are convicted and sentenced they accept that the process is legitimate and that the people who have found them guilty are not distant, separated officials of the state but their equals.

Mr. Marshall-Andrews jokingly referred—I am afraid that jokes do not go down terribly well with his colleagues at the moment—to there being toffs on both sides of the House and to other sorts of people on both sides of the House. He will find reflected in the ordinary jury people of all walks of life and of different political and other opinions, who come together as a group of 12 to decide the guilt or innocence of the individual whose liberty they are required to consider. That does not seem to have occurred to the Government or to the ministerial team, who seem to celebrate in denigrating the one aspect of the criminal justice system that meets most closely with democracy and with what we are supposed to stand for in the Chamber—namely, a representative democracy, whether it be in the making of laws or in the application of laws. It is a poorer House of Commons—a poorer Parliament—that refuses to accept that the jury system works and is something that can be sustained and celebrated by reason of principle. It is a revolting Government—a Government who ought to be abhorred and despised—who cannot see the wisdom of experience and common sense that is to be found in the ordinary English jury.

I trust that the House will sustain the Lords in their objections to the Government's refusal to accept common sense and popular wisdom.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office 10:30 pm, 19th November 2003

Mr. Grieve said that only small changes needed to be made to clause 42. I do not agree that they are small changes, but, if they are, why is he not prepared to go that extra distance to make the kind of agreement—

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

If I may correct the Minister, I think that he must have misunderstood. We have said consistently that clause 42 is fundamentally flawed and should not be in the Bill.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Home Office

The hon. Gentleman has made his views clear.

Mr. Gummer described my colleagues who have supported this aspect of the Bill—indeed, the whole Bill—as people who were shackled to the Whips. Frankly, I know that they vote—

It being one hour after the commencement of consideration, Mr. Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [18 November].

Question put, That this House insists on its disagreement with the Lords in the said amendment:—

The House divided: Ayes 332, Noes 220.

Division number 385 Criminal Justice Bill — Clause 41 — Application by Defendant for Trial to be Conducted without Jury

Aye: 331 MPs

No: 220 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly agreed to.

Government amendment (a) to the words restored agreed to.

Motion made, and Question put, That this House insists on its disagreement with the Lords in their amendments Nos. 33, 34 and 36.—[Mr. Heppell.]

The House divided: Ayes 331, Noes 215.

Division number 386 Criminal Justice Bill — Clause 41 — Application by Defendant for Trial to be Conducted without Jury

Aye: 331 MPs

No: 215 MPs

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Tellers

Nos: A-Z by last name

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Question accordingly agreed to.

Lords amendment No. 33 disagreed to.

Government amendments (a) to (h) to the words restored agreed to.

Lords amendment No. 34 disagreed to.

Government amendments (a) to (e) to the words restored agreed to.

Lords amendment No. 36 disagreed to.

Government amendments (a) to (d) to the words restored agreed to.

Motion made, and Question put, That this House insists on its disagreement with the Lords in their amendments Nos. 114 to 119 and 121 to 131.—[Mr. Heppell.]

The House divided: Ayes 339, Noes 216.

Division number 387 Criminal Justice Bill — Clause 41 — Application by Defendant for Trial to be Conducted without Jury

Aye: 339 MPs

No: 216 MPs

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Nos: A-Z by last name

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Question accordingly agreed to.

Lords Amendment No. 114 disagreed to.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

On a point of order, Mr. Deputy Speaker. You will know that because of the timetable imposed by the Government the second group of amendments—which has now been rejected and which comprised the Law Commission's proposals—has not been discussed at all. Would it be possible to ask those who are drafting the message to the other place to make it plain that we have rejected its views without even having had the courtesy of discussing them?

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

The practice and tradition is that the message reflects simply the decisions of this House. That is not a matter for debate.

Government amendments (a) to (n) to the words restored, and consequential Government amendments (o) to (q) agreed to.

Question, That this House does not insist on its disagreement to Lords amendment No. 120, put and agreed to.

Sitting suspended, pursuant to Order [10 November].

On resuming—