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Lord Alexander of Weedon: My Lords, I am grateful to the noble and learned Lord for giving way. If he is dealing with our questions--those asked by a number of us--and he was good enough to say that they were courteously asked, will he give a specific response to the question why, given that this very issue is in the specific terms of reference of the Auld review, the Government do not want to know the views of Sir Robin Auld before proceeding to legislation?

Lord Williams of Mostyn: My Lords, I said right at the outset that when Lord Justice Auld carried out his review it was never suggested that no further proposals for interim reform would be brought forward.

Lord Ackner: My Lords, with the greatest respect, that is not an answer to the question. Now we know that Sir Robin is to produce a report by the end of the year, why must this measure be forced through by use of the Parliament Act?

Lord Williams of Mostyn: My Lords, it is an answer, but it may not be the answer that everyone wants. It is exactly the same position that obtained when noble Lords debated the issue the first time round. Sir Robin Auld was never asked to do the work on the basis that no further proposals for reform would be brought forward.

The Earl of Onslow: My Lords, if Sir Robin Auld comes to the view that this particular measure which

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is proceeding through Parliament is silly, will not the Government look awfully silly having enacted it? What will the Government do then?

Lord Williams of Mostyn: My Lords, it may well be that the Government would look slightly on the silly side. I wonder whether they would look any sillier if Sir Robin Auld found this to be a tremendous scheme. If that happened would everyone on the opposite side say, "That is marvellous, Williams, you were right all along"? I doubt it.

I must deal with the points raised by my noble friend Lord Brennan. I have given way on every conceivable, and many inconceivable, occasions. My noble friend's speech was a pleasure to listen to. He is aware that I say that with all humility. My noble friend referred to the noble and learned Lord, Lord Steyn. I agree with my noble friend that the noble and learned Lord is a jurist of extraordinary quality. It is a pleasure to read his judgments even when he finds against the Government, which is quite often. The noble and learned Lord is an enormous constitutional and jurisprudential scholar. My noble friend Lord Brennan quoted the noble and learned Lord as saying that it would require exceptional circumstances and powerful evidence to lead to the abandonment of trial by jury. I agree. Because of the terrorist activities in Northern Ireland the Diplock courts were established.

We are not speaking of, have never contemplated and no one can rationally believe that we propose the abandonment of trial by jury. We are not dealing simply with court management, as the noble Lord, Lord Hutchinson, attempted to paraphrase my remarks. I said that we must attempt to manage a scarce and precious resource--trial by jury--in the most appropriate, decent and civilised way.

My noble friend Lord Brennan said that significant criminal cases should continue to be tried by jury. I agree. This reform does nothing to attack or impeach that proposition. My noble friend preferred to rely on a reclassification by Parliament. I profoundly disagree. Some reclassifications are so blunt as to be capable of bringing about injustice.

My noble friend Lady Prashar is quite right. There is evidence of over-charging of ethnic minority citizens which is not capable of rationalisation on any basis other than unfair treatment.

I have a belief, which may be wholly misjudged, that I am unlikely to convince anyone further even if I continue. This has been an extremely good natured and civilised debate. Almost without exception, I do not believe that noble Lords have imputed wrong motive; certainly I do not. This is not a matter of lawyers' protectionism or illiberalism. (I take that sound as a gesture of approval, subject to further correction.) Those who are engaged in the criminal justice system know that there is unlikely to be a perfect answer to the problems with which they grapple. It is wholly unfair to accuse the Home Secretary, of all people, of illiberalism since he has been a major architect of the greatest constitutional change in this country for the past 100 years.

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We have a good case, but my understanding is that your Lordships will not accept it. The noble Lord, Lord Cope, has been kind enough to tell me that he intends to press this matter to a Division. If we lose we shall have to bear it with such fortitude as we can muster.

9.29 p.m.

Lord Cope of Berkeley: My Lords, I entirely agree with the noble and learned Lord the Attorney-General that we have had a long and interesting debate with some fine speeches. Sadly for the balance of the debate, few speakers supported the Bill. I should like to say, as did the noble and learned Lord, that I respect their views even if I do not agree with them. The noble and learned Lord impressed us once again with his great ability as an advocate, on whichever side of the argument he finds himself arguing at the time. But each of the arguments that he used at the beginning of the debate was refuted with authority from his own Benches, never mind from all other parts of the House.

Several speakers, including the noble Lord, Lord Borrie, who supports the Bill--he is one of the few--made the point that the Bill is worse than the previous one. The noble and learned Lord, Lord Donaldson, told us that the changes made to the Bill since our debate some months ago put him against the Bill although he supported the previous one. The changes also mean that the Government can no longer say that they are following the recommendation of the Royal Commission on Criminal Justice, as the noble Baroness, Lady Prashar, who was a member of that commission, told us in her speech.

The Bill is about who decides when there should be a full trial by judge and jury in the intermediate, middle ranking cases; and if it is always to be by magistrates and a judge, how they should decide the matter. Should it be decided by those judicial authorities or, in the limited circumstances allowed by the current law, by the person most involved; that is to say, the accused who insists on his or her innocence? But the Bill is also about public confidence in the criminal justice system, particularly among those of our fellow citizens who come from the ethnic minorities, as has been fully documented in the debate.

We do not believe that we should weaken public confidence in the criminal justice system by removing this long-standing right in exchange for small and doubtful benefits of delay and government expenditure, particularly not just before Lord Justice Auld is due to report on the whole matter. I urge your Lordships to defeat the Bill by supporting the amendment.

9.33 p.m.

On Question, Whether the said amendment shall be agreed to?

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Their Lordships divided: Contents, 184; Not-Contents, 88.

Division No. 1

CONTENTS

Ackner, L.
Addington, L.
Alexander of Weedon, L.
Alton of Liverpool, L.
Ampthill, L.
Anelay of St Johns, B.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barber, L.
Barker, B.
Beaumont of Whitley, L.
Bell, L.
Belstead, L.
Biffen, L.
Blackwell, L.
Blaker, L.
Blatch, B.
Boardman, L.
Bowness, L.
Brabazon of Tara, L.
Bradshaw, L.
Brennan, L.
Bridgeman, V.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Croy, L.
Carlile of Berriew, L.
Carlisle of Bucklow, L.
Carnarvon, E.
Carrington, L.
Chadlington, L.
Chalker of Wallasey, B.
Clark of Kempston, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Craig of Radley, L.
Craigavon, V.
Cumberlege, B.
Dacre of Glanton, L.
Dahrendorf, L.
Darcy de Knayth, B.
Dean of Harptree, L.
Deedes, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
Eden of Winton, L.
Elis-Thomas, L.
Ezra, L.
Falkland, V.
Flather, B.
Fookes, B.
Freeman, L.
Geddes, L.
Gilmour of Craigmillar, L.
Goodhart, L.
Goschen, V.
Gray of Contin, L.
Greaves, L.
Greenway, L.
Hamwee, B.
Harris of Greenwich, L. [Teller]
Harris of Peckham, L.
Harris of Richmond, B.
Hayhoe, L.
Henley, L. [Teller]
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Howe, E.
Hunt of Wirral, L.
Hutchinson of Lullington, L.
Inglewood, L.
Jacobs, L.
Joffe, L.
Jopling, L.
Kelvedon, L.
Kennedy of The Shaws, B.
Kingsland, L.
Kirkham, L.
Laing of Dunphail, L.
Laird, L.
Lamont of Lerwick, L.
Lane, L.
Lane of Horsell, L.
Lang of Monkton, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
McConnell, L.
Mackay of Ardbrecknish, L.
Mackie of Benshie, L.
McNally, L.
Mallalieu, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Mowbray and Stourton, L.
Moynihan, L.
Murton of Lindisfarne, L.
Naseby, L.
Newby, L.
Nicholson of Winterbourne, B.
Northbrook, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
Onslow, E.
Onslow of Woking, L.
Park of Monmouth, B.
Peel, E.
Phillips of Sudbury, L.
Plumb, L.
Prashar, B.
Prior, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell, E.
Ryder of Wensum, L.
Saatchi, L.
Sandberg, L.
Sanderson of Bowden, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Simon of Glaisdale, L.
Skelmersdale, L.
Skidelsky, L.
Smith of Clifton, L.
Sterling of Plaistow, L.
Swinfen, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tordoff, L.
Trefgarne, L.
Tugendhat, L.
Waddington, L.
Walker of Worcester, L.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Weatherill, L.
Wigoder, L.
Williams of Crosby, B.
Williamson of Horton, L.
Windlesham, L.
Wolfson, L.
Younger of Leckie, V.

NOT-CONTENTS

Ahmed, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Butler of Brockwell, L.
Carter, L. [Teller]
Christopher, L.
Cocks of Hartcliffe, L.
Colville of Culross, V.
Crawley, B.
David, B.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Gladwin of Clee, L.
Gordon of Strathblane, L.
Goudie, B.
Graham of Edmonton, L.
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B. (Lord Privy Seal)
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Massey of Darwen, B.
Milner of Leeds, L.
Monson, L.
Morris of Manchester, L.
Nicol, B.
Palmer, L.
Parekh, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Sainsbury of Turville, L.
Sawyer, L.
Serota, B.
Sewel, L.
Shepherd, L.
Simon, V.
Strabolgi, L.
Symons of Vernham Dean, B.
Tenby, V.
Thornton, B.
Tomlinson, L.
Turner of Camden, B.
Warwick of Undercliffe, B.
Whitty, L.
Wilkins, B.
Williams of Mostyn, L.
Woolmer of Leeds, L.
Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

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