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Lord Archer of Sandwell: My Lords, I am most grateful to my noble friend. In future I shall always employ her to do my research!

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Following the intervention of my noble friend, it appears that a great deal of this fuss addresses a problem that has already passed under the bridge. Of course, it will not be the first time in our history that that has happened under any government.

This is an argument about the merits of the proposal, and not about my noble and learned friend's right to change his mind. If that right is established and if, on reflection, he can change his mind perhaps, on further reflection, he can change it again.

6.28 p.m.

Lord Mayhew of Twysden: My Lords, the noble and learned Lord, Lord Archer of Sandwell, has subjected the Bill to an intellectually clinical examination and one that has devastating effects for its acceptability. There has also been a passionate and no less intellectually rigorous speech in opposition to the Bill from my noble friend Lord Alexander of Weedon. Your Lordships will not be surprised to hear that I propose to adopt a more earthy approach, but one which leads no less reliably to the same conclusion.

In a criminal case, it is for the Crown to shoulder the burden of proof; it is exactly the same in the case of Her Majesty's Ministers who bring forward this Bill. They must satisfy this House that this Bill will make a better provision for justice in England and Wales than exists at the moment. I agree with the Attorney-General that the wider public have an interest--this is not just a matter for experts--and that we must look to see what is most prudent and most sensible. Of course we must not set our faces against change, either because we live in an enclosed society, as he put it, or because we are getting older and simply find change harder to take.

The noble and learned Lord, Lord Williams, should be worried about the depth as well as the width of the anxieties and fears expressed across such a wide range by bodies that are both knowledgeable and informed. One specific such body which is close to the Minister's heart is the Society of Black Lawyers. It has a special foundation in opposing this Bill by reason of what was stated by Professor Lee Bridges, who directs the Legal Research Institute at Warwick University, and who is highly respected. He said:

    "Black people are more likely to be stopped by the police than whites, more likely to be over-charged, more likely to elect trial to the Crown Court, where they are more likely to be acquitted".

In the light of the deep significance that the Government rightly attach to the Lawrence report, can they accept that there is a real perception of ethnic unfairness in the probable impact of the provisions of this Bill? If so, can they accept also that in matters of confidence generally--perhaps never more so than in the case of confidence in the justice system--perception is extremely important? It may be because I have spent so much time in Ireland that I tend to believe that perception sometimes matters more than objective fact.

I felt sorry for the Attorney-General as the debate progressed because all the fire was coming from one direction. When the noble Lord, Lord Borrie, spoke, I thought that a little support was coming his way,

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which must have been welcome, but I am afraid that he was wounded by friendly fire, if I can put it that way, when the noble Lord talked about case-hardened magistrates being experienced magistrates and thereby dismissing the proposition that sometimes magistrates have heard it all a little too often to be able to discriminate in a case where there is genuine doubt.

I felt the Minister was not persuasive when in introducing this Bill he spoke as though its important function would be to prevent trivial cases being brought before the Crown Court at the election of the accused. I do not know whether I was alone--I do not believe I was--but I had the impression that the Bill was being sold on the basis that most of the cases it would catch were fairly trivial. He spoke of somebody being charged with the theft of a banana from Tesco. I hope and believe that it would be an extremely unusual prosecutor who thought the public interest lay in prosecuting the case of the theft of one banana.

It may be of interest to mention that either-way offences include grievous bodily harm; actual bodily harm; cruelty or neglect of children; indecent assault; gross indecency on a child; burglary; theft; false accounting; forgery; criminal damage; unlawfully importing, producing, supplying or possessing a controlled drug; violent disorder and so forth. Those are not sneezing matters and I strongly hold the view that it is not to improve the quality of the justice that we remove the right to elect for trial by jury when charged by matters of that kind. It does not matter that that right does not exist in Scotland; we are not comparing like with like. In Scotland, justice is dispensed by professional judges. It does not matter that it is only since 1857 and not the 14th century that there has been the right to choose. What matters is whether we believe that the present dispensation is a safeguard that we wish to preserve and which the wider public, sensibly advising themselves, ought to wish to see preserved.

I agree with the Attorney-General that we cannot draw a line in the sand and say that on the one hand this case is appropriate for jury trial, and on the other, this case is appropriate for summary trial; and expect to get general agreement. But we can say that there is an area in the middle where it is appropriate to give the accused person the right to have his or her case tried by jury. The case has not been made out to disturb that.

What is the true purpose of this Bill? I do not believe that it is to secure a better quality of justice. Is it to save money? It cannot be negligible in the eyes of the Treasury that over £100 million may be saved. I know how these matters are liable to arise. The Home Secretary wants more money to build more prisons. "Very well", says the Chief Secretary, "You can start by saving £100 million by changing the availability of jury trial for a start". I do not say that that is what happened, but I recognise all too readily that that may be the case.

Is it to save delay? The right of appeal will take up quite a lot of time. Have the Government made any estimate of the number of appeals that will be made and what they will cost? As we have been told already,

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legal aid will be available. What will it cost? How long will it take? Then there are the problems of magistrates being disqualified who dealt with the matter in the first instance.

Is it to stop manipulation of the justice system? It is said that people opt to go to a jury trial and plead guilty at the last moment. That has been dealt with by more than one noble Lord. My noble friend Lord Cope said that that has now changed; it is now a matter for an increased sentence if a person changes his plea at the last minute. Or, putting it another way, there is an incentive to plead at an early stage in terms of a reduction of sentence. None of those objectives, if they are the Government's objectives, has been fulfilled.

I am not resisting change for the sake of it. The Attorney-General was kind enough to remind me that he objected to my measure which led to a right of appeal against an unduly lenient sentence. That was in the days when he was not decked out, as the noble Lord, Lord Thomas of Gresford, observed, in the spangled pants of the tightrope walker; he came stomping in like a good'un dressed in battle dress; and very impressive he was, except that I thought he was wrong then and he is kind enough to realise that now.

The downside of this dubious coin, the other side of which I have ventured to examine, is that the Bill enshrines in statute the notion that one person's reputation is more worthy to be safeguarded by the state than another's. I find that deeply objectionable. I also find it astonishing from the point view of a Labour Government dedicated to equality of treatment for our citizens.

The next provision to which I object is one to which the Government are driven by the first because they have to continue by saying that, in dealing with the reputation point, magistrates may take into account previous convictions. Such defendants are most at risk of being wrongfully arrested, convicted and imprisoned. One, at least, of those previous convictions may have been incurred wrongly at the hands of magistrates doing their best but getting it wrong. I do not believe that that provision is justified. It is repugnant.

We are all considering whether this Bill will effect improvement. It will not. It is objectively and generally sustainable to choose trial by jury, but in every case where it is chosen, by definition it is subjectively sustainable and reasonable to do so. I have only admiration for magistrates, but where such a choice is made it will be done for reasons which appear to be good to the accused. I am not prepared to believe that, even in the majority of cases, those reasons are unworthy.

I uphold the continued right of the harassed and innocent housewife, for example, about whom I spoke a few days ago on the final day of speeches on the gracious Speech. She should continue to have the right to choose to be tried by jury when she is innocent in the belief that she has a better chance of not being wrongly convicted than if she were tried by the case-hardened magistrate referred to by the noble Lord, Lord Borrie.

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I uphold that right. Incidentally, the example I gave related to my wife. When reading Hansard, I was horrified to see that I had not made it clear that she had not even been arrested. I hope that she has not read it. She gave me permission to use that illustration from 25 years ago. She was deeply harassed; and somehow she left the supermarket wheeling a trolley on to the pavement, over one intersection and then the next, before realising to her horror that she had not paid. She rushed back. Can anyone seriously suppose that there would be as good a chance of having her innocence upheld by a magistrates' court with its great width of experience of "having heard it all before" as before a jury? It would be unjustified to remove that right. I find it alarming and the thin end of the wedge against trial by jury. Doubtless that is the reason why it was not in the manifesto when so much else was. That is certainly reason enough to justify the withdrawal of this Bill.

6.42 p.m.

Lord Hutchinson of Lullington: My Lords, it is nice to see that the Union of Attorney-Generals is not as strong as it used to be. I say to my noble friend Lord Thomas that he is now going to hear a certain degree of fulmination.

This short Bill, with its anodyne and misleading title, is as dangerous a piece of legislation as has entered this House certainly in the 20 years I have had the privilege of being here. It is clear from the debate so far that many other speakers feel the same. If presented honestly, the title would have been the "Abolition of the Right to Trial by Jury" Bill which would have inconveniently alerted the public to what the Government were about.

When the idea of giving these unheard-of powers to the magistrates was floated by the previous Home Secretary in 1997, we know, as we have already heard, that they were roundly condemned by the Attorney-General and Mr. Straw. Indeed, on 27th February, Mr Straw said:

    "If ... a Member of Parliament or even a Secretary of State were charged with ... dishonesty, would they not insist on being tried by a jury? ... why should others be denied that right?".--[Official Report, Commons, 27/2/97; col. 434.]

Now he calls such a claim "eccentric".

Before his preferment the Attorney-General called the idea, as we know, "madness". I do not agree with the noble and learned Lord, Lord Archer, that this 180-degree turn is not of importance. He now says, somewhat ingenuously, that the provision of an appeal is what made him change his mind. One should remind the House that in the same debate in the other place, Mr Howard said, at col. 432:

    "There may also need to be a right of appeal against the magistrates' decision not to allow a case to go to the Crown court".

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