'(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.

(2) In subsection (2) leave out "prosecution" and insert "defendant, or any of the defendants in cases where there is more than one defendant".

(3) In subsection (7) leave out "prosecution" and insert "defendant, or any of the defendants in cases where there is more than one defendant".'.— [Simon Hughes.]

Brought up, and read the First time.

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

With this it will be convenient to discuss the following:

New Clause 10— Duty to hear oral representations—

'(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.

(2) After subsection (3) insert—

"(3A) In determining an application under subsection (2) the judge will grant—

(a) the prosecution,

(b) the defendant, or

(c) any of the defendants in cases where there is more than one defendant, the opportunity to make oral representations, and will take such representations into account in deciding whether to make an order that the trial is to be conducted without a jury.".

(3) In subsection (4), at end insert "and no approval may be given in circumstances where the defendant, or any of the defendants in cases where there is more than one defendant, have not been granted an opportunity to make oral representations under subsection (3A) and for those representations to have been taken into account.".'.

New clause 11— Safeguards—

'(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.

(2) In subsection (3) after second "satisfied", insert ", or otherwise believes that such an order would, if made, significantly disadvantage or otherwise prejudice a defendant, or any of the defendants in cases where there is more than one defendant,".

(3) In subsection (7) of the Criminal Justice Act 2003, leave out "prosecution" and insert ", the defendant, or any of the defendants in cases where there is more than one defendant.".'.

New clause 13— Application by defendants for certain fraud cases to be conducted without a jury (No.2)—

'In section 43(2) of the Criminal Justice Act 2003 (c. 44), after "prosecution", insert ", the defendant, or any of the defendants in cases where there is more than one defendant,"'.

New clause 14— Rights of the defendant—

'(1) Section 43 of the Criminal Justice Act 2003 is amended as follows.

(2) In subsection (3)—

(a) for "that the condition" substitute "any of the conditions", and

(b) after second "satisfied" insert "or otherwise believes that an order if made would significantly disadvantage or otherwise prejudice the defendant (or any of the defendants in cases where there is more than one defendant).".

(3) In subsection (4) after "him" insert "who, before he gives such an approval, shall consider whether the prosecution (or the defendant, or any of the defendants in cases where there is more than one defendant) should be given the opportunity to make oral or written representations to him, and if he so determines an opportunity to make such representations shall have been given.".

(4) In subsection (5) at the beginning insert "in the case of an application by either the prosecution or a defendant".

(5) At the end of that subsection insert—

"(5A) In the case of an application by the defendant the condition is that the complexity of the trial or length of the trial or the nature of the evidence that is likely to be called is such that the interests of natural justice require that serious consideration should be given to the question of whether a trial should be conducted without a jury."

(6) In subsection (7), at the end insert "the defendant (or any of the defendants in cases where there is more than one defendant).".'.

This group contains a range of proposals. Again, I preface my remarks by saying that they do not qualify our views about the Bill, which we do not want. After the preceding debate we are even more clear that the case for the Bill—that fraud trials need judges without juries—appears weaker, because the argument seems to be that long trials are a problem. That problem should be dealt with by procedural means, and many remedial steps are in train.

However, if we are to improve the Bill, there are three proposals that my colleagues and I put before the House, and further proposals in the group from other colleagues. Our first proposal is that if an application for a trial without a jury is allowed to be made to a judge and approved by the Lord Chief Justice, it should be possible for it to be made by the prosecution or by the defence, and by any one of the defendants, if there are more than one.

During the previous debate, the Solicitor-General commented that in Committee the Opposition had proposed that the exemption from jury trial for serious cases should be extended. We were arguing, as he knows, not that we want that to happen, but that if some serious fraud cases in a ring-fenced group of cases are to be heard by a judge alone, there is no logic in justice why both parties to the case—the prosecution and the defence—should not be able to apply for that. It cannot be a fair system if only one side can apply.

It could be argued that it would usually be to the advantage of the prosecution to go before a judge alone, because judges are—I do not mean this pejoratively—hardened in dealing with such cases, whereas juries are not. Members of a jury are unlikely ever to have done a long or difficult case before, and unlikely ever to have to do a jury case again, because they are usually exempt from jury service after serving on a long or difficult case. Jurors therefore come fresh to the case and give it their particular attention, never having served on a jury before.

Many defendants, those representing them and their witnesses might think the system was unfair if it allowed only the prosecution to put the case for going before a judge alone. They might ask why they should not have the same right. There might be cases where a defendant preferred the case to be tried by a judge rather than a jury. Apart from the situation that I mentioned earlier, I can think of only two examples, which are simplistic, in which there had been a great deal of press coverage before an arrest or a charge.

If the defendant or one of the defendants was a woman and the judge was male, the woman might prefer to put her case to a mixed group of people, including women. Similarly, a black or minority ethnic defendant might prefer a jury to a white judge, male or female. However, there are some cases, usually those that have attracted publicity, where defendants might prefer to go before a judge. Such cases are fairly rare. I have not heard defendants make the case to me, or to us, by representation, for a judge trial rather than a jury trial.

May I add the other category, to which I alluded: cases which are likely to be a substantial cost to the defendant, through lack of employment or through direct cost?

Indeed. That is more true now that the rules on legal representation have changed. There has been criticism—justified, in some cases—that people who appear to be well off have been getting legal assistance from the public purse for a long case, and there may be more of those cases.

To summarise, people might normally prefer a jury to a judge, because they think a jury might represent them better, for gender, ethnic or other reasons, but in a case that has attracted great publicity or, as the right hon. and learned Gentleman says, in one involving substantial cost, they might prefer to appear before a judge alone. New Clause 9 argues for equality of opportunity to make the case.

New clause 10 makes the supplementary point that, if a judge is to consider an application from the prosecution, there should be an opportunity for oral representations—a public presentation of the reasons for not wishing the case to go to a judge-only trial—or, if one defendant made such an application, the other defendants should have the right to present orally to the court the reasons for not wishing the case to go before a non-jury trial.

New clauses 11 and 13 are similar. They are perhaps the most important in the group and would provide for a necessary further safeguard. If it was found that an order to go to a judge-only trial would not only be unnecessary in the interests of a safe verdict or in the interests of justice, but would

"significantly disadvantage or otherwise prejudice a defendant or any of the defendants", there must be an opportunity for the law to say that it should not be permissible. The balance of argument must allow that, even if the interests of only one of a large group of defendants would be prejudiced, the alternative of a judge-only trial would not be open to the court.

I want to comment on the number of cases that we are considering and the reason for my hope that hon. Members believe that every defendant's right should be taken into account. Let me give the numbers of cases in which the Serious Fraud Office reported that it had been involved in recent years: eight trials in 2001-02; 14 trials in 2002-03; 14 trials in 2003-04; 22 trials in 2004-05; and 10 trials in 2005-06. As we would expect, there are many more than one defendant per trial. Let me provide the number of defendants in that five-year span: 13 in 2001-02; 25 in 2002-03; 39 in 2003-04; 58 in 2004-05; and 23 in 2005-06. There are many defendants and it is important that the interests of each are considered. Serious fraud cases are, by definition, more likely than other types of cases to involve many defendants.

If we wish to protect the interests of defendants, we must examine the other two or three columns that the Serious Fraud Office produces each year on the success rate of the current system. We do not argue that changing from one system to another would or should increase convictions or acquittals. The Government appear periodically to make the case that, if we changed the system, there would be more convictions. However, there have been a significant number of convictions, and the Serious Fraud Office has never claimed that serious fraud cases result in an unusual number of acquittals.

Before our current debates, the Government never made such a claim. We understand the reason for that when we consider the number of convictions for the past five years: 10 in 2001-02; 17 in 2002-03; 20 in 2003-04; 37 out of 58 cases in 2004-05; and 13 out of 23 in 2005-06. The difference is obviously the number of people acquitted. The conviction rates were 77 per cent.; 68 per cent.; 51 per cent.; 61 per cent. and 57 per cent. Those percentages apply to big cases, in which many people are involved. The conviction rate is regularly over 50 per cent. On one occasion, it exceeded 75 per cent., and, on two others, it was more than 50 per cent. though less than 60 per cent. The Liberal Democrat case is that the current system has worked relatively well but is working better because of changes. It would adversely affect the interests of the defendant and of justice if further changes, such as those for which the Government argue, were made. However, if further changes occur and fraud trials are tackled differently, defendants must be treated the same as the prosecution, and the interests of every defendant—not only that of the defence as a whole—must be considered.

I hope that hon. Members will be sympathetic to those arguments and that we shall have the opportunity to test the House's opinion on at least some of them.

The new clauses are important and we had an opportunity to explore some of the issues surrounding them in Committee. They raise a difficult matter, as touched on by Simon Hughes. New Clause 9—or, for that matter, new clause 13, which was tabled by my right hon. and learned Friend Mr. Hogg—has the consequence that more trials without juries are likely. The provisions give the defence an opportunity to make an application for trial without a jury.

In Committee—and even now—I have found myself slightly torn on the matter. I believe in jury trials and I do not believe in the Bill, but I also believe in fairness. It seems to me that if a system is to be introduced by which a prosecutor can go to a judge on an application and argue that the defendant should be deprived of the opportunity of a trial by jury—notwithstanding the fact that the defendant may wish to have one—it is very difficult intellectually to argue that the defendant should not have a similar right if he does not wish to be subject to jury trial.

That has had the effect of overcoming my initial reluctance, because the more I think about it—and if I have to contemplate the fact that the Bill will one day be on the statute book—the more I believe that it becomes apparent to anyone looking at the mechanisms that this has been produced entirely for the benefit of the prosecutor. In a sense, the proof of the pudding will be in the eating, because if defendants wish to rely on jury trial and the prosecutor does not ask for them to be deprived of it, they will doubtless not make the application in the first place. For those reasons, I take the view that new clause 9—or, for that matter, new clause 13—could provide a minor improvement to this very bad Bill, which I do not support in principle.

I was rather struck by the fact that this matter was discussed by the Solicitor-General and me in Committee and that the Government were subsequently informed that if they were to move an Amendment to allow this provision to happen, Conservative Members would not seek to stand in their way. Interestingly, the Government turned down the opportunity. In a letter to me and other members of the Committee, the Solicitor-General said:

"Opposition members also raised the question whether defendants, as well as the prosecution, should be able to seek non-jury trial. There are strong arguments for allowing defendants to waive their right to trial with a jury, and indeed a general power of jury waiver was originally included in the 2003 Criminal Justice Bill, although this was subsequently removed following Opposition resistance. A case could certainly be made for a limited provision enabling defendants in serious and complex fraud cases to waive jury trial. The Government is not sure, however, that it would be appropriate to include such a provision in this particular Bill."

The letter then went on to say that the Government had previously given assurances that all that they were trying to do was to allow the prosecution and no one else the opportunity to make such an application.

I have to say that, to my mind, that paragraph gives a rather clear indication of the way in which the Government have been coming at this particular matter. First, the Solicitor-General appears in his letter to conflate the general resistance, which we saw in 2003, to allowing any defendant to make an application for trial without a jury, with the specific issue that we have to consider here. I want to make it absolutely clear that the two have no similarity whatever. I would resist to the bitter end any suggestion that defendants should be given a general power to elect trial without a jury. Indeed, we rehearsed that in 2003 and we made it quite clear then that it was probably a charter for the white-collar defendant who wanted a sympathetic judge, rather than a jury that might take a robust view of his activities. For that reason, the general idea of the defendant having an option for trial without a jury does not commend itself to me at all.

In this particular case, however, I have to say that I am swayed in my view. I shall listen carefully to what the Solicitor-General and, for that matter, my right hon. and learned Friend the Member for Sleaford and North Hykeham have to say. As between new clauses 9 and 13, I have a preference for new clause 13, which should not present much difficulty to Members who want to support it.

New clause 11, tabled by the Liberal Democrats, is of a different order. It seeks to introduce the principle that any decision not to have trial by jury should not

"significantly disadvantage or otherwise prejudice a defendant".

The issue of widening the scope of trial without a jury does not arise in this instance. The new clause would provide an extra safeguard, similar to the other safeguard that we attempted to introduce in the earlier group of amendments. If the hon. Member for North Southwark and Bermondsey were minded to press this new clause to a vote, I would have no hesitation in supporting it.

The Solicitor-General said earlier that there would be no creep, in respect of the wedge in the door, once we had moved away from trial by jury in certain fraud cases on an application by the prosecution. However, these matters classically illustrate that that is very likely to happen. There would be a remorseless logic, once we started shifting away from jury trial in some cases, that would allow other people or groups to make similar applications. We cannot get away from that. The best thing that we could do with the Bill would be to vote it out on Third Reading. In the meantime, however, we have to live with the reality. There must be fairness, and as the Bill stands there will be a perception that it has been put together for the benefit and advantage of the prosecutor, and not of the defence.

The hon. Gentleman says that there is no possibility of stopping the creep once the wedge is in the door. When he read the paragraph from my letter, he ended by suggesting that I had said that we wished to give this right only to the prosecution. In fact, what I said in relation to not allowing creep was something different. I said that we had indicated to the House that we had

"no intention of going further than the provisions that are already in the 2003 Act regarding serious and complex fraud trials, and we are concerned that to add a waiver provision—even at the suggestion of the Opposition—could increase the number of non-jury trials and might leave us open to accusations of acting in bad faith."

In other words, we decided that we were not going to broaden the wedge. We were, in an act of political will, taking a decision not to do so. It is possible not to do it, by political will.

I apologise to the Solicitor-General for not reading out the full paragraph. It was not that I wished to avoid that section; I simply did not wish to be too long-winded, and it is quite a lengthy paragraph. I entirely accept that that is what the Government said. Indeed, I had understood that to be the position from previous discussions with the hon. and learned Gentleman. In 2003, the matter was hard fought out between this House and the other place, and various assurances were given at the time. It is commendable that the Government should honour them.

Leaving aside the will and intention of the Solicitor-General for a moment, I would be interested to hear from him how it could be justified to give a prosecutor a right to make such an application, but not to give it to a defendant. That is the issue that new clauses 9 and 13 try to address. This is an important point and, as I have freely said to the Solicitor-General, it is one about which I feel quite uneasy. On the one hand, I wish to support the principle of jury trial. On the other hand, however, there is a logic—a slightly remorseless logic—that says that once we have given a prosecutor this right, it is unfair to a defendant not to give him the opportunity to make a similar application, should he wish to do so. That is the nub of this debate.

It is true that the Government, and we as parliamentarians, can ignore that logic. The Minister might succeed in finding a way around it without difficulty. I shall wait to hear what he has to say. He might be able to stand in the way of that logic at the moment, but it will be brought back up at some point, and the same argument will be made. It is precisely for those reasons that I would have preferred not to see this legislation being presented to the House at all.

I want to speak to new clauses 13 and 14, both of which I tabled. I also want to comment on new Clause 11, tabled by Simon Hughes— although this is one of the cases in which he has nicked one of my amendments from Committee, so I have the intellectual property.

I repeat what I have said on several occasions: I am thoroughly against the Bill. That said, we are also in the business of improving it. The fact that we are arguing for changes to the Bill to extend the range of cases that can attract a non-jury trial should not be used to argue that we favour the Bill.

New clause 11, in which I have the intellectual property, is admirable. It is designed to ensure that a judge who considers an application for a non-jury trial should be in a position to refuse that application if he or she concludes that the non-jury trial order would significantly prejudice the interests of the defendant. That seems to me to be a clear test, which is in accordance with natural justice and which I strongly commend to the House. Being as dispassionate as possible, I cannot identify a decent argument against it, save the argument of my friend Mr. Marshall-Andrews, who asserts repeatedly that the Bill is so bad that we should have nothing to do with it. I will certainly support the new clause if it is pressed to a vote.

On new clauses 13 and 14, the question is whether, given that the Crown can make an application for a non-jury trial, the same right should be given to the defendant. I have practised law, off and on, for 40 years or thereabouts. The assertion that one should give to the Crown the sole right to make an application of such profound consequence to the conduct of a trial, and deny it to the defendant, seems to me to be manifestly unfair. I can identify no principle on which someone who asserts that proposition could stand. The argument of parity of arms, equality of position and plain fairness points irresistibly in the direction of giving the defendant the same right as that given to the Crown.

Were the Solicitor General to accept this or a similar proposal, while we would denounce the Bill and the process, I would not accuse him of pushing the wedge into the wood, as I know that we are pushing the wedge into the wood. It would be dishonest of me to criticise him on that narrow ground, and I promise that I would not do so. I do not suppose for a moment that my hon. Friend Mr. Grieve or the hon. Member for North Southwark and Bermondsey would do so, as we know that we are pushing the Government on this point.

Leaving aside the issue of whether the proposal is right in principle, the question also arises as to whether there are cases in which the defendant is likely to want to make such an application. We must consider that for two reasons. First, of course, we must consider whether the general right should be incorporated into the Bill. Secondly, if the answer is that it should, we must prescribe the criteria. The criteria on which the defendant will seek to make an application are not the same as those on which the Crown will seek to make an application; they are different, and probably different in kind. Therefore, I have tried to set out in new clause 14(5) the broad test that a defendant would have to satisfy to procure a non-jury trial order.

I suggest that there are at least five cases—doubtless there are others—in which a defendant might wish to make such an application. The hon. Member for North Southwark and Bermondsey identified two. The first, which I ventured to mention earlier, is cost. Increasingly, defendants will be paying their own costs. I do not particularly object to that in proper cases. Even when the legal aid fund pays the costs, the defendant can incur substantial losses through loss of employment or the fact that he or she cannot earn his or her income. In some cases a non-jury trial is likely to be shorter than a jury trial, and for that quite narrow reason a defendant might want a non-jury trial. It is a perfectly good reason, and one that should be available to defendants.

Secondly, I can contemplate a number of classes of case that a defendant might prefer to be tried by a judge alone. Defrauding of pensions is an example, in a climate in which people are very sensitive about their pension rights. If the allegation against the defendant was conspiracy to defraud a pension fund, for example, I can imagine the defendant being rather uneasy about leaving that question in the hands of a jury, given the background of which the House is now aware.

Let me give another example that is less flattering to ourselves, and cite the class of the defendant. Let us assume that politicians are among the least popular class of individuals. Would a politician—perhaps a high-profile politician—necessarily want to leave his or her case in the hands of a jury? In libel cases, the answer is sometimes no, and what is true of libel cases may well be true of criminal cases. A fairly unattractive politician—or just a politician—might reckon that he would have a fairer trial at the hands of a judge alone than at the hands of judge and jury.

I am concerned about what the right hon. and learned Gentleman is saying, particularly in view of cases in which there is, or may be, implicit prejudice. Sexual cases are another example. Are we really saying that juries should not be allowed to deal with cases involving inherent prejudice? That is an extremely wide range of cases. The example relating to pensions is rather a bad one, if I may say so. I know of no class that is more concerned about pensions than the judiciary.

That, of course, is not true now, although it was true before the Lord Chancellor met the legitimate—or illegitimate; that is a matter of opinion—aspirations of the judiciary. My understanding is that the judiciary are now happy with what the Lord Chancellor has done, so perhaps my point is better than it would have been six months ago.

What the hon. and learned Gentleman is actually saying—and it is a perfectly fair point—is that once we argue for any exception to a jury trial, we are creating a precedent. I understand that argument: it has considerable force, and it is the reason why the hon. and learned Gentleman and I will vote against the Bill on Third Reading. As my hon. Friend the Member for Beaconsfield suggested, once we open up this can of worms we are driven by logic to extend the class. That, of course, is why we are all against the Bill. However, within the narrow limits of a Bill whose provisions are confined to fraud cases, I think that we are entitled to go where the logic points, provided that what we do is fair within the framework of the Bill. That is my answer to the hon. and learned Gentleman. I know that we do not entirely agree on this point.

Let me now deal with two further categories. The hon. Member for North Southwark and Bermondsey's point about publicity was entirely right. While applications to stay proceedings on grounds of abuse of process are available to defence counsel, there will be a range of cases in which a defendant might think that the degree of pre-trial publicity is such as to taint the process, although the force of the submission would not be so strong as to secure a stay of proceedings on those grounds. In those circumstances, the defendant might well seek a non-jury trial.

My last category, which was canvassed in Committee, is where a defence reveals some dodgy behaviour or unattractive conduct, but that falls short of the offence with which the defendant has been charged. In those circumstances, a defendant might think that a judge alone would be more likely to disregard the unattractive nature of the defence and to direct his or her attention exclusively to the legal merits of the allegation.

My point is that there are a range of circumstances—I have no doubt that Members will identify others—in which a defendant might want to make such an application. In new Clause 14(5), I have tried to define criteria that meet the totality of the possible circumstances, and it also reinforces the argument that a defendant should be entitled to make an application.

I strongly agree with my right hon. and learned Friend. Does he agree that his point about costs would be greatly reinforced if the Government —as appears will be the case—were to adopt the Carter recommendations in respect of legal aid and put a cap on expenditure in high-cost fraud cases that are subject to legal aid? That would put legally aided defendants in such cases in an invidious position in relation to costs. Therefore, the Government's proposals could aggravate the problem that my right hon. and learned Friend rightly identifies.

That is right. There is a general point that we need to keep in mind: even when a defence is funded by the state through the legal aid fund, the defendant very often suffers substantial financial loss that is irrecoverable even if they are acquitted. There is no doubt that the proposed legislation will bear on people facing long trials. I hesitate to make that point in the presence of the hon. and learned Member for Medway, as he will say that I am driving in the wedge, but we are talking about fraud cases only and we should be able to give the defendant the opportunity to say, "I cannot stand financially the prospect of a very long fraud trial."

There is an issue of fairness. I hope that the Government will respond to what has been said. If they do so on this narrow point, I will not condemn them. I would greatly appreciate it if I could have the opportunity to press new Clause 13 to a Division, notwithstanding that a different new clause has been moved and voted on. However, I recognise that that is within the discretion of the Chair.

This group of new clauses is interesting. The new clauses overlap to some extent, but they deal with three broad issues, which I shall seek to address in turn: the right of a defendant in a serious fraud case to seek non-jury trial; safeguards against prejudice to defendants by reason of non-jury trial; and the right to make representations and to have them taken into account.

Opposition Members raised in Committee the question of the right of a defendant to waive jury trial and the equality of arms argument, which has a lot of power. New clauses 9, 13 and—somewhat obliquely—14 make provision for defendants to apply. Under new Clause 9, the defendant's right would replace that of the prosecution to make an application, which would clearly be unacceptable to the Government. When Simon Hughes explained his interpretation of that new clause, I was unsure whether he understood the implications of it—but if he did, perhaps he thought that I might not, but I do.

Let me deal with the substance of the debate. There are strong arguments for allowing defendants to request a non-jury trial—to waive their right to trial by jury. Mr. Grieve asked a reasonable question: why do we give that right to the prosecution and not give it to the defence? As he knows, a general power of jury waiver was initially included in the Criminal Justice Bill 2003, although it was later removed following Opposition resistance in Another place.

At the risk of being repetitive, the two things are entirely different. The power to which the Solicitor-General refers was a general power, which did not exist for the prosecution, to enable a defendant to make an application for trial without a jury, subject to certain criteria. The prosecutor might object, for example, on the ground that public excitement about the case meant that the trial should take place with a jury. The Solicitor-General will accept that a good analogy cannot be drawn between the two situations.

I might have saved the hon. Gentleman the trouble of intervening if I had made the point that I was about to make, which is that the Government have not changed their mind about the general principle. It sounds as though some Opposition Members have not changed their minds about it, either, but that they see that there might be cause for making a change in particular, narrow cases.

A case could certainly be made for a more limited provision that would enable defendants only in serious and complex fraud cases to waive jury trial, and we have given some real thought to that possibility. The provision that we were considering would, like that in the 2003 Bill, have given defendants a right to non-jury trial, subject to veto by a co-defendant who wanted to be tried by jury. We doubt whether it would be practical to require a defendant, as the prosecution must, to satisfy any condition in order to secure non-jury trial, along the lines proposed in new Clause 14(5). Our view was that, if jury waiver is to be available, it probably ought to be available on request. For example, if, in order to make the application, the defence had to show in detail that the exposition of its defence—rather than the evidence being put forward by the prosecution—was likely to result in a long and complex trial, it might have to expose all the detail and complexity of its argument. If we were to go down this route, a better way to proceed would probably be to give the defence a right to make the application, rather than circumscribing it with various conditions.

Having said all that, although I am not disputing the many points that have been made during the debate, there is one issue that weighed quite heavily with me. When we introduced the Bill, we made it clear that we wanted it to deal with an area of law that had a long and particular history relating to Auld and Roskill, and that we did not regard it as a wedge that could be extended to a series of other non-jury trials. I accept that Mr. Hogg would say that he would not seek to use against me an allegation of bad faith if I responded to the Opposition's request. However, I note that he subsequently went on to argue, despite saying that he would not do so, that there is an inevitable logic in extending the provision once we have got it. He was saying, in effect, that if we accepted the Opposition's position, we would be accepting the inevitable logic of the provision's being extended to other areas. He used that argument honestly—I am not implying any other motive—but I point out to him that there is a way of not extending that provision, which is to take the view that one will not do so. Indeed, we have given that commitment.

In discussions with the Opposition about introducing such a Bill, we gave various commitments and we have kept to them in good faith and with integrity. We and the Opposition disagree on the basic principle, and we are having that debate. It is important that, insofar as we can, we stick with the faith that we have had with the House that we will bring forward a Bill that deals only with the issue that was in the 2003 Act, that we will listen to the concerns of others and that we will have no further extension of non-jury trials.

If we were to accept the new clause, there would probably—although not inevitably—be a certain number of further non-jury trials because a defendant had taken that option. I therefore took the view that we would not make this proposal.

Would we ever consider the point again in the future? We have no plan to do so and we do not accept the wedge argument. It is a constitutional principle that no Parliament can bind a future Parliament, so we will have to see what happens in the future, but our position is that the Bill is what we want and this is where we stand.

How do the Government respond to the fairness point? Leaving aside the past assurances—although I respect the Solicitor-General's position on that—how will the Government answer the question of fairness and equality of arms when the measure appears to give a special power to the prosecutor to circumvent the ordinary system of trial by jury, but denies a defendant a similar right to make an application to do so? Hypothetically speaking, a defendant might feel strongly about that point or be told by his advisers that the length of the trial, the burden on the jury and other issues might prejudice a fair verdict. How will the Government answer that argument?

As I have indicated, our view was that if we were to extend this right to the defence, we would do so without preconditions because of the impact on other parts of the trial. Therefore we would not create equality of arms. In a sense, we would be giving the defence greater rights than the prosecution. The unfairness would apply in a different way. I accept the strength of the hon. Gentleman's argument and throughout this debate I have conceded that there are strong arguments on his side. Indeed, the Government put those arguments forward some years ago and still subscribe to some of them, but in putting forward this Bill we agreed to abide by what was in the 2003 Act and that is why I have taken the view that I have on the issue.

The Solicitor-General has made it clear on every occasion during the Bill's progress that he has no intention of using the provisions to provide any precedent for future changes to trial without juries. Will he concede that if by some false measure the efficacy of the proposal was proved—perhaps by an increase in successful prosecutions—there would be a great pressure on future Ministers to give in and make concessions elsewhere in the legal system?

There are all sorts of pressures on poor old Ministers. That might be one of them, but Ministers also have to take a view about where they stand on an issue. I have done that, and the Home Office has done that, and this is where the Government stand. Another Government and other Ministers might take other views, but this is the position of this Government on this Bill.

The premise underlying new clauses 11(2) and 14(2) is that an order for non-jury trial under section 43 might disadvantage or prejudice the defendant. The Government do not accept that non-jury trial is capable of having that effect. Subsection (3) of new clauses 9 and 11, and subsection (6) of new Clause 14, amend section 43(7) of the 2003 Act. That requires the judge, in considering whether there are steps that he could take that would reduce the length or complexity of the trial, to disregard any step that might significantly disadvantage the prosecution. The amendments refer instead—or, in the case of new clause 14, in addition—to steps that would disadvantage the defendant. However, the judge is under no obligation to make an order under section 43, and he certainly need not take steps prejudicial to the defendant in order to justify refusing to order trial without a jury.

New clause 10, which is the same as the new clause moved in Committee, and subsection (3) of new clause 14 would allow representations to be made in relation to an application under section 43. As hon. Members accepted in Committee, section 45 of the 2003 Act already does what we believe to be necessary. Section 45(2) provides that an application under section 43 must be determined at a preparatory hearing, which takes place orally. Section 45(3) provides that parties must be given an opportunity to make representations. If there is any ambiguity of interpretation, Pepper v. Hart means that judges will be able to look at what I as a Minister have said in this House.

Subsection (3) of new clauses 10 and 14 both relate to representations made when the Lord Chief Justice—or the head of criminal justice, Sir Igor Judge—is called on to consider whether to approve a section 43 order. The Government do not consider it necessary to prompt the Lord Chief Justice or Sir Igor Judge to consider whether the parties have been given an opportunity to make representations, as proposed in new clause 10, or to consider whether they should be given the opportunity to do so before him, as proposed in new clause 14. We believe that such matters are best left for the senior judiciary to determine, as that is what they are there for.

I anticipate that the process is likely to be that, after a full oral hearing for the initial application, the head of criminal justice will determine whether a further oral hearing is required. That would be entirely a matter for him, in all circumstances. Sometimes, that further hearing would not be needed, but sometimes it might. I make no commitment on that: we believe that the matter is best left for the senior judiciary to determine. The oral hearing will take place before the initial judge, and that is the best place for it.

I am grateful for the contributions on these new clauses. With your permission, Mr. Deputy Speaker, we intend to test the mood of the House in respect of new clauses 11 and 13.

New Clause 9 is different from new clause 13, as it would allow an application on the instigation of the defendant alone, whereas new clause 13 would allow equality of arms. Those of my colleagues at the other end of the corridor who oppose the Bill believe that, if we are obliged to go ahead with it, trials should be held without a jury only at the instigation of the defence, and not at the instigation of defence and prosecution. None of us wants to go down that road, but the equality argument—one of the central planks of this short debate—remains valid, despite what the Solicitor-General said to Mr. Grieve. If there is a case for the prosecutor to go to the judge and say that the case should be heard by a judge alone rather than by a jury, I cannot see how justice is done if the defendant cannot also do so.

To put it bluntly, there are two proposed alternatives. The first is that the defendant alone could make the application. I understand that the Government will resist that. The second is that there be equality of arms. I have not heard such a strong argument against that. The Government have said honestly that that was not where they were coming from, so that was not where they were. If, despite our Opposition, the Bill receives a Third Reading and goes to the House of Lords for consideration, I hope that the Solicitor-General will reflect on whether at least that might be a step in a direction that made it more attractive—not that we would change our view on the substance of the Bill this year, but if the Bill were to become law in future.

There is a difference in importance between new clause 10 and new clause 11. I understand what the Solicitor-General said about the other sections in the 2003 Act which deal with the procedure of putting to the judge in a preparatory hearing the case for both sides before the judge makes that decision. New clause 10 barely increases the strength of the right to do that. It would make a small adjustment. New clause 11, however, would make a significant adjustment to the proposition. It adds another safeguard. We absolutely do not want the Bill, but if we are to have it, there need to be safeguards: the interests of justice safeguard, the security of the verdict safeguard and the interests of the defendant or the prejudice to the defence safeguard. The new clause seeks to ensure that we retain the prejudice to the defendant safeguard.

Finally, I turn to the matter that was referred to in the Government's consideration of the position. I do not believe that the Government argument that if one gave equality of arms it would suddenly open up the debate, stands more than minimal investigation or consideration. Of course there would be the potential for more applications because both prosecution and defence would apply. Therefore there might be more trials of this type. The Government case is that this would be limited to serious fraud in any event, subject to the check of the judge and all the arguments, and then the check of the Lord Chief Justice or others, so there will be many checks down that road. In a way the Government have put their case on the basis of its being an experiment. For there to be an experiment, both sides need to have an equal opportunity to participate. That is not the case. It is a reason why the Bill should not proceed. If it does proceed, I hope that that is a reason why the House should support the new clauses.

If I may, I beg to ask leave to withdraw the motion.

Motion, by leave, withdrawn.