32 Clause 41, Leave out Clause 41 The Commons disagree to this amendment for the following reason—
32A Because it should be possible for a defendant to apply for a trial to be conducted without a jury. The Lords insist on their amendment to which the Commons have disagreed, for the following reason—
32B Because it is inappropriate to make provision for applications by the defendant for trials to be conducted without jury. The Commons insist on their disagreement to this amendment but propose the following amendment to the words so restored to the Bill—
32C Page 27, line 40, leave out "must" and insert "may"
rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 32, and do agree with the Commons in their Amendment No. 32C, leave out from "House" to end and insert "do insist on its Amendment No. 32, and do propose Amendments Nos. 32E to 32L as consequential amendments to the Bill"—
32EClause 41, page 29, line 40, leave out paragraph (a)
32FPage 30, line 19, leave out "41"
32GPage 30, line 40, leave out "41"
32HPage 31, line 25, leave out "41"
32IPage 32, line 9, leave out "41"
32JPage 33, line 6, leave out paragraph (a)
32KPage 33, line 33, leave out "41"
32LPage 33, line 41, leave out "41"
My Lords, before I speak further, I want to inform the House of recent events. Since the very sensible decision to adjourn last night to enable discussions to take place, we have, with the Government and our colleagues in opposition, used every moment late into the night and earlier this morning to reach agreement on the outstanding issues in a constructive atmosphere.
An agreement was reached with the noble Baroness and her Home Office colleagues and I would like to pay tribute to them for working hard and at such a late hour. I am grateful to them. In the light of that agreement, the Government tabled a series of amendments to Clauses 41, 43 and 45 in your Lordships' House.
By way of explanation, to our surprise we then learnt from the Public Bill Office that the amendments were suddenly withdrawn. I do not believe it would be beneficial or helpful to your Lordships' House if I were to pursue the matter any further or to speculate why. Nor would it assist an amicable settlement of the outstanding issues if I were to reveal any further details of the agreement that was reached, which we still hope even at this moment can be revised.
In the light of the Government's withdrawal, we immediately tabled the Government's amendments in the name of my noble friend Lady Anelay. The Government had agreed that they would not insist on Clause 41 going into the Bill in this House. As a consequence of that agreement, we agreed on the amendments necessary to Clauses 43 and 45 on jury tampering. I believe that we have already explained in this House why we feel strongly that jury trials should not be optional and that jury tampering must be dealt with effectively. That is our position.
On Clause 42, the Government are aware how strongly we feel that the principle of jury trials should not be eroded in serious fraud cases. I beg to move.
Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 32, and do agree with the Commons in their Amendment No. 32C, leave out from "House" to end and insert "do insist on its Amendment No. 32, and do propose Amendments Nos. 32E to 32L as consequential amendments to the Bill".—(Lord Hunt of Wirral.)
My Lords, I confirm that I was a party to the agreement to which the noble Lord has just referred. So far as I was concerned, there was no qualification at that time, as evidenced by the amendments set down by the Government; nor did we on these Benches receive any notice of the withdrawal of those amendments.
We hope that this action on the part of the Government has not derailed the negotiations which were going on and which, we believed, with the co-operation of the Government Front Bench, were very close to an agreement being reached. However, we must say that the authority of the Government Front Bench has been undermined to a degree by what has happened.
So far as concerns the amendments, the merits of the issues have been fully canvassed and I do not propose to go into them again. However, I believe it is important that your Lordships deliver a message that this House is not to be treated with contempt. Although we concede authority to the elected Chamber, we nevertheless have a constitutional duty not simply to act as a revising Chamber but to protect the ancient rights and modern civil liberties of the people of this country, which attacks on the jury system constantly seek to undermine.
My Lords, perhaps I may add a brief word on the defendant who wants to elect not to have a jury trial. There is a very relevant passage to this matter in Mill's On Liberty, where he discusses whether liberty should include the right to renounce liberty. He concludes that it should not because, while one may have the right to take that decision for oneself, one does not have the right to take it on behalf of one's posterity. John Stuart Mill could recognise the thin end of a wedge when he saw one. I hope that we can too.
My Lords, I share with your Lordships that today is a very sad day for me because I have relied on your Lordships' integrity, honesty and reliability. Therefore, on each and every occasion that I have been charged on behalf of the Government to negotiate or deal with your Lordships, I hope that it has always been clear that I have been open, frank and honest.
Therefore, I have found this an extraordinary morning because, as noble Lords will know, we had a confidential meeting in the hope that we would be able to obtain full and final settlement on all these issues. A full and final settlement was not possible but, in accordance with my usual custom, I shared fully and frankly with my colleagues opposite the route which I thought we might be able to take out of the difficulties in which we found ourselves. I made it plain that the Government would not give way on principle but that we were willing to look with care and precision at the way in which that principle would be expressed.
So far as we were aware, the discussions did not conclude with total agreement, although it is right to say that we put forward proposals which we believed should have had that effect. I heard what the noble Lord said we tabled; I tell the House that we did not believe that the amendments were tabled because they were never distributed, although I accept that, in confidence, I shared possible proposals with noble Lords opposite.
Subsequently, noble Lords opposite tabled the content of the outline agreement but added something which was not part of the agreement, and I found myself taken utterly by surprise. That is why I say that, for me, this is a very sad day indeed.
I make it plain that this Government rejoiced that noble Lords opposite seemed to agree with us because we hoped that they had finally found the right way. I shall not repeat what we said in relation to Clause 41 because the noble Earl, Lord Russell, will know that Mill believed also in democracy, honesty and honour.
As I have said on a number of occasions, Clause 41 gives the defendant a choice. Noble Lords opposite say that there should be a choice and that one should be able to choose whether to have a jury. Indeed, our system currently provides for just that in either-way cases, where a defendant chooses whether to be heard in front of magistrates or in front of a judge and jury. We thought that that was fair and proper and we were willing to respond to the recommendation of Lord Justice Auld. We still believe that that would be the better course.
This House is supposed to be a revising Chamber. We have not shown that that is our function in relation to these provisions because this House has said only "No" without bringing forward change. That may be seen by some as usurping the functions of the other place.
My Lords, it has been a difficult morning for everyone in this House. As my noble friend Lord Hunt said, we had been hoping not to refer to any detail of discussions, in which the noble Baroness has been assiduous in her honesty and openness throughout. However, in outlining the Government's position, the noble Baroness has explained what the Government understood to take place this morning in such a way that she has made it impossible for me not to respond.
Following discussions late last night, when we all tried to come to an agreement, at gone one o'clock, or thereabouts, we agreed to adjourn until this morning in order to consider the matters further. We did so. At that meeting, it was understood, and confirmed by the Government, that the Government would not press in this House the reinsertion of Clause 41 and that, on the other hand, we would embrace the Government's amendments on jury tampering. We had always sought a resolution on jury tampering under the leadership of my colleagues in another place. We welcomed that resolution to the problem.
As the noble Baroness was absolutely right to point out, there were other matters on which agreement had not yet been reached—that of judge-alone trial for fraud and that of bad character. We noted that the discussions on those issues alone would continue for the rest of the day, and we said that we would all be available to do whatever it took to reach agreement. However, it was repeated by my honourable friend Mr Grieve that we would, to use a colloquial phrase, bank the agreements on Clauses 41, 43 and 45.
In recognition of that agreement, I wrote instructions to the Public Bill Office stating that I would, in my name, object only to the reinsertion of Clauses 42 and 96. I did so on the understanding that the Government would not press ahead on Clause 41. A piece of paper with which we had so kindly and carefully been furnished by the Home Office, for which we thank that department, referred to the Motion being moved in another place by Mr Blunkett. I pointed out the name of Mr Blunkett but was assured that the Motion would, indeed, be dealt with in this House and not in another place.
As a result of that confirmation I did not take the course open to me to lay a Motion to insist that Clause 41 should not form part of the Bill. No member of the Government informed me that any decision had changed on this matter. We telephoned the Home Office as soon as we were aware that something had gone wrong somewhere along the line. We have been given no explanation by Ministers. We had one brief conversation with an official that had nothing whatever to do with any of the events surrounding this matter. We continued to seek clarification. Explanation came there none. Today we hope to keep to the agreement that we reached this morning.