Simon
Hughes: For the record, and because the event was quite an
important bit of political history, thehon. Member for
Beaconsfield is absolutely right. His right hon. and learned Friend made the
view of the Conservative party as a whole about the Bill absolutely
clear, as we did for the Liberal Democrats. It was clear that the
Government were having to concede because
they would not have got their legislation, and time was running out.
That too is consistent with them needing to make that significant
change of position, for otherwise the Bill would have
fallen.
Mr.
Hogg: Absolutely right. If anyone wants to confirm what
the hon. Gentleman has just said, it is in column 1030 for that day,
where my hon. Friend the Member for Beaconsfield made it plain that
what we were then witnessing was, in his own words, “a
climbdown”. He went on to make it absolutely plain that the
other place would not pass what was then clause 42. We are dealing with
a departure from a commitment given on the Floor of the House, which is
an extremely serious matter.
I have one other point to make.
The Solicitor-General has, from time to time, referred in Committee and
on the Floor of the House to the advantages of putting full criminality
before the court. Anybody who has practised in the criminal courts
knows that one is seldom obliged to do that, and generally speaking it
is a jolly good thing not to put full criminality, as it overloads
indictments. Actually, one should identify those charges in respect of
which there is good evidence, put the leading charges into the
indictment and confine the case and the evidence to them. That is how
to compress cases within manageable size, and it leads to a proper
result, in that the appropriate penalty is then passed. To load the
case with a multiplicity of indictments, simply to expose full
criminality, has been deprecated by the judiciary time and time again.
It is best dealt with, if at all, by offences being taking into
consideration, or by the new procedure contained in the Criminal
Justice Act 2003, which enables trial judges sitting alone to look at
what were previously those TICs.
The idea that you should, as a
matter of course, put full criminality before a court is an absurd
proposition and can only come from a Government who have little
experience of criminal law.
The
Solicitor-General: Let me briefly respond to a couple of
the points made by the right hon. and learned Member for Sleaford and
North Hykeham (Mr. Hogg). There has been no departure, in
our view, from any commitment that was given. The right hon. and
learned Gentleman quite rightly read out the list of individuals and
organisations that would be expected to contribute: the
Attorney-General, the Serious Fraud Office, the Opposition parties, and
the senior judiciary. A seminar was held to ask them for their
views.
I do not know
quite what the representatives of the Liberal Democrats and
Conservatives thought they were going to when the Attorney-General,
following the passage of the 2003 Act and in light of the fact that
there had been a commitment to consultation, invited them to a
discussion of how non-jury trials might take place. What on earth did
they think they were doing if they were not going as part of the
consultation? It beggars belief that the Opposition now claim that they
sent respected senior lawyers to the very type of meeting and
discussion promised by the Government, but that they did not know what
they were doing. Do they often go along to meetings at which they do
not know what
on earth they are doing? It is preposterous to suggest that the leading
spokesmen of the Opposition parties did not know what they were doing
in going to that kind of seminar. Did they think it was an academic
discussion, or some sort of light entertainment? What on earth did they
think it was? They
knew perfectly well that it was a serious discussion about a very
serious issue, because it had been the subject of legislation. The
Government said that there would be further consultation, and there
was. If certain spokesmen for the Opposition could not make it, that is
fine; it is their decision. If certain spokesmen turned up, expressed a
view, engaged in the discussion and let their views be known, before
walking away not knowing what on earth they had been doing at the
discussion, that is a problem for the Opposition parties. They need to
look at the nature and qualities of some of their spokesmen, because I
do not think that the position adopted by them is in the least bit
acceptable. They knew that it was a consultation on a serious issue.
They were involved in it. They may not have liked the outcome, or
decided that it was inadequate, but I do not accept that they did not
know what they were doing. That beggars belief.
Subsequently
there have been meetings between spokesmen for the Opposition, myself,
the Attorney-General and other hon. Members from the Conservative and
Liberal Democrat parties. Those discussions resulted in the clear view
that we cannot agree on the matter. Therefore, we need to go back to
seeing whether the House is prepared to pass legislation in order to
amend section 43 or the provisions dealing with its implementation, to
ensure that we can move forward. The Government always made it clear
that it was our intention to move forward.
The right hon. and learned
Member for Sleaford and North Hykeham raised a point about a commitment
made by a former Home Secretary. I have the words before me. The hon.
Member for North Southwark and Bermondsey said:
“Is it the implication
of his remarks that, as a result of the Bill passing into law tonight,
there will not be any serious fraud trial by a single judge in England
and Wales?” It was clear
then that the Bill had been amended so that an order would need to be
passed by both Houses. That provision was there for a purpose, and
everyone knew what it was. The implication of the hon.
Gentleman’s question was whether there would need to be further
legislative discussion and voting on the matter before section 43 could
be implemented. As was clear then, it has always been the
Government’s view that further legislation would be needed and
we have no problem with that. The then Home Secretary, my right hon.
Friend the Member for Sheffield, Brightside, said that he was prepared
to give an undertaking to that effect, and we have kept to it. Given
that the order that we sought to introduce was unlikely to be passed,
we have now introduced further
legislation. The then
Home Secretary’s response to the comment
was: “I am
prepared to give that
undertaking.” As I have
explained, the undertaking has been kept. He
continued: “It
is part of the agreement that we will retain the clause, but move
forward towards looking”—
“looking” is the important
word there— “at
the alternative solutions that I have
mentioned”.—[Official Report, 20 November 2003;
Vol. 413, c. 1028.] That
undertaking was kept—we looked at the alternative solutions.
There was a seminar, and there were subsequent further meetings to
discuss the various options. We have complied with the undertaking and
I do not accept that there has been any breach of the sort that the
right hon. and learned Member for Sleaford and North Hykeham has
suggested.
Simon
Hughes: This is one of the most
pored-over exchanges in which I have ever been involved. The
Solicitor-General was, no doubt inadvertently, slightly misleading
about the timing. The exchange was in November 2003, at the end of the
Session. The then Home Secretary mentioned examining progress to
consider where we should go next, and he made the statement that we
have all been quoting. There was then a whole year, during which we had
a Queen’s Speech, and there were measures, but there was no
formal consultation. The seminar was in January 2005, and it had
nothing to do with the proposals that he had referred to in his
response, because the parliamentary year had been and gone before the
seminar came around.
The
Solicitor-General: I do not accept that I have misled
anyone. I indicated that the seminar was in January 2005—on the
24th, in fact. I gather that the invitation to the Liberal Democrats
was not made to the hon. Gentleman, but to John Burnett, who I think
may now be Lord Burnett. He was then the legal spokesman for the
Liberal Democrats and the invitation went to him.
[Interruption.] The hon. Gentleman did not get the invitation
but the Liberal Democrats did—there is no doubt about
that. When the seminar
took place we had not sought to introduce the order, but clearly it was
always our intention that at some point we would do so, or in any event
seek to implement non-jury trials. Therefore, when we held the seminar
it was the Attorney-General’s intention that that should
constitute the consultation opportunity for the Opposition. Some
Opposition spokesmen from another place decided to attend, but
spokespersons from the Commons decided not to attend or were unable to
for various reasons. I make no criticism of that, but it does not
invalidate the consultation process and it should not cause problems
for the Government. We believe that the process was perfectly proper
and
sensible.
Mr.
Hogg: The Solicitor-General is seeking
to reconcile what he is doing today with the commitments given by the
then Home Secretary. Will he help the Committee in the following way?
He would accept, I believe, that the Conservative spokesmen in the
Commons and in the Lords—my hon. Friend the Member for
Beaconsfield and Lord Hunt of Wirral—made it plain that they
would never vote for the affirmative resolution in the form of clause
42. Did the Home Secretary indicate at any stage that, if he could not
obtain agreement or find a way forward using special assessors or a
special jury, he would seek to ram through the provisions of clause 42
by subsequent primary legislation? Did he ever say that at any stage? I
of course have his statement in front of
me.
The
Solicitor-General: I was not privy to his personal
thoughts on the matter, but the intention of the Government was that we
take the matter forward by way of order, and I assume that that was the
Home Secretary’s intention at that
stage. 12
noon During the
year, we brought an order before the House, which again, by a
significant majority, expressed forcefully the view that it wanted to
see progress in dealing with the problem of complex and serious fraud
trials. It therefore passed the order. It became clear, however, that
the combined votes of the Opposition in the other place were likely to
frustrate the passage of that order. In those circumstances, the
Government took the view that the better way of proceeding was by way
of primary legislation, and that is why we have brought the Bill before
the House.
Mr.
Hogg: It follows from what the Solicitor-General is saying
that at no time was it suggested by the former Home Secretary, when he
outlined the agreement to the House of the Commons, that there was a
possibility that primary legislation would be used to force through
clause 43. Had he done so, it might well have been the case that the
Opposition parties would have defeated the Criminal Justice Bill, as it
then was.
The
Solicitor-General: I am not sure what point the right hon.
and learned Gentleman feels that he has made by saying that. However,
if he feels happier by reason of having said it, I am pleased. I
welcome anything that makes him happier about this Bill. Sofar
as we are concerned, however, the clause has been brought forward
honourably and properly. We have done it by way of primary legislation,
we have subjected it to full and proper debate and we believe that the
changes that it will enable us to undertake need to be made if we are
to have a system of justice that better delivers effective justice.
That is what the people of this country want. I hope that we can now
vote on the clause.
Question put,
That the clause stand part of the
Bill:— The
Committee divided: Ayes 9, Noes
7.
Division
No.
1] Question
accordingly agreed to.
Clause 1 ordered to stand
part of the Bill.
Clause
2Jurisdiction
under section 43 of the Criminal Justice Act
2003 Question
proposed, That the clause stand part ofthe
Bill.
Mr.
Hogg: On a point of order, Mr. Bercow, I would
appreciate some guidance. Clause 2 amends section 43 of the Criminal
Justice Act 2003. The new clauses, for the most part, seek to do
precisely the same thing but in different ways. I understand that they
will be debated in due course, as you have set them out on the
marshalled list. I want to be sure that if we do not debate the new
clause stand part motion we will not prejudice our ability to debate
subsequently the new clauses. I am not clear about that, and should
like to be before we debate the new
clauses. The
Chairman: There is no such problem. It is perfectly
legitimate for us to debate Clause 2 now and, indeed, subsequently to
debate and in due course to vote upon each of the new clauses. The
order as set out is the order that we can and should
follow
Mr.
Grieve: Clause 2 seeks to amend Section 43 of the Criminal
Justice Act 2003 to substitute for “Crown Court Judge” a
“High Court Judge” conducting the trial.
I would not like the Bill to go
through this Committee without the Solicitor-General explaining the
Government’s reasoning in deciding to entrust these trials to
High Court judges. My reason for saying this is that I noticed the
Solicitor-General picking his words with some care in the course of the
earlier debate about the extent to which the judiciary might support
these proposals. I am
not in a position to conduct a survey of all Her Majesty’s
judges, but I have yet to come across a single Crown court judge who
did not consider, first, that jury trial was a perfectly satisfactory
vehicle for dealing with long and complex fraud cases and, second, a
Crown court Judge who did not think that the worst possible thing that
could happen to him was to be asked to sit and try a fraud trial on his
own. As I hinted in my earlier interventions in Committee, this is
because there are all sorts of procedural problems surrounding such a
trial process which judges—they have communicated with me
informally about this in large numbers—consider to be massively
unsatisfactory. If a
judge should express the view that they are sure a person is guilty in
a complex criminal case that leads to a substantial period of
imprisonment and should it subsequently transpire, whether through the
appeal process or by the Criminal Cases Review Commission, that some
further evidence comes to light which shows that the wretched defendant
was in fact telling the total truth when he denied his criminality,
this will have a serious adverse impact on the judge’s
credibility and standing. This is almost inevitable, however good a
judge is at carrying out his work. This highlights why involving the
judiciary in factual decision making to a criminal standard of proof in
serious cases is a very dangerous road to take.
The
Government has taken the view that, in the circumstances, it should be
High Court judges who should be carrying out this procedure and not
Crown court judges. In fairness to the Government, that was a proposal
that came from the Opposition Back Benches at the time of the 2003
Criminal Justice Act because it was suggested that High Court judges
would be more familiar with the procedure of dealing with trials on
their own than the average Crown court judge.
That in itself, however, does
not fully explain the Government’s reasoning and therefore I
would like to take the opportunity of probing so that we can have fully
on the record why the Government have decided that this is the
appropriate course of action to take. I think that would be very useful
and I hope the Minister can enlighten the Committee on the
matter.
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