I do not see any part of this Bill as marginal. It is not only the noble Baroness, Lady Kennedy of The Shaws, who has described it as "illiberal." No less than an editorial in the Financial Times, in measured terms, said last week:
I indicated at Second Reading that I would have been prepared to reject it then had there been a Division. The Bill is flawed in principle. I do not see that it is capable of being sensibly amended. In saying that I speak also as chairman of Justice, the all-party law reform group, which has been consistently against this measure whether floated by the previous government or actively introduced by this Government.
At Second Reading, government spokesmen were keen to point out the expense and anomaly involved if someone, say, with 10 previous convictions, was charged with stealing a Mars bar or a banana from a supermarket and elected trial by jury. But my noble and learned friend Lord Mayhew of Twysden, reminded us of a different position by drawing attention to the range of quite serious charges where the right of election exists. They include serious assaults such as grievous bodily harm, indecent assault, burglary, theft, false accounting, forgery, serious drugs offences and so forth. This Bill would represent a marked and clear interference with the right of the defendant--I emphasise the word "right"--to elect trial by jury in cases of that kind.
Nor am I impressed by the suggestion that there is widespread abuse that needs to be cured when we bear in mind that the defendant elects trial by jury in rather less than 5 per cent of cases triable either way. I have looked carefully at the arguments since Second Reading. The noble and learned Lord the Attorney-General, with his typical courtesy, wrote to my noble friend Lord Cope and put forward arguments in rebuttal, he suggests, of those advanced at Second Reading. He said that there would be no change to the way in which serious cases were handled. They would be directed to the Crown Court. How do we know? There is no such mandatory requirement in the Bill. Who is to judge what is serious, and what is not, to the defendant? I would prefer the present position where it is the defendant, on advice, and not magistrates, who decides whether an issue is serious enough for him or her to undergo what is the traumatic and anxious experience of a jury trial.
Since Second Reading the Government have sought to bolster their argument in a somewhat astonishing way to which my noble friend Lord Cope drew attention in moving the amendment. They point out that those who elect Crown Court trial are three times more likely to receive a custodial sentence if convicted than those tried by magistrates.
They also point out that custodial sentences imposed by the Crown Courts are two-and-a-half times as long.
In a letter from the noble Lord, Lord Bassam of Brighton, to my noble friend Lord Windlesham on 14th January, it was stated that of the resource saving of £105 million--which, it seems, is estimated with some precision--to flow from the Bill, no less than £66 million will apparently be savings in prison costs. That is because it is said that magistrates will pass less severe sentences than the Crown Courts.
If that disparity in sentencing between the magistrates' courts and the Crown Courts exists, the matter should be addressed, but in quite another way than by taking away the fundamental right of a defendant to elect trial by jury. The Government, in consultation with the judiciary, should analyse whether this, at first sight, concerning disparity is in any way justifiable and, if not, reduce apparent over-sentencing in the Crown Courts. Alternatively, perhaps with the help of their spin doctors, they could advertise the extent of the disparity as a deterrent to defendants exercising their right to trial by jury.
I return to the fundamental point. The Home Secretary is widely respected by many of us for his part, together with the noble and learned Lord the Lord Chancellor, in introducing to this country the Human Rights Act. He does himself no service by the way he argues the Bill. He argues that the opposition comes from lawyers hunting for their fees and from those apparently living in north London and pejoratively labelled "liberal."
My noble friend Lord Cope cited Cicero's axiom as to how one conducted one's case when one had no defence. The Home Secretary is a barrister. When he and I were young and at the Bar, it was not uncommon to be told, "If you have no case, have a dip at your opponent." I suggest that that is what the Home Secretary is doing in this case and that the arguments in support of the Bill are unconvincing. I agree entirely with the noble Baroness, Lady Mallalieu, that it is socially and racially divisive. I agree entirely that the right place for it to be considered is along with criminal justice issues in a wide-ranging study being conducted by Lord Justice Auld. In the meantime, as the Financial Times says and as has been said across this House, this is a thoroughly illiberal measure which should be put out of its misery today.