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Earl Russell: Some 30 years ago, I sat in the Public Gallery of the House of Commons listening to Lord Jenkins of Hillhead deploying arguments in favour of accepting majority verdicts on juries. Those arguments had something in common with these. I was persuaded of them slowly and reluctantly because they went contrary to the bulk of Lord Jenkins' record. Can the Home Secretary say the same thing?

Baroness Scotland of Asthal: I would say yes. It is always a delight, as the noble Earl, Lord Russell, knows, to look back at history and see what was said by those who went before us. All these arguments, as has been so graphically said from the Liberal Democrat Benches, were made before. We were told it would be the end of the world as we knew it to have majority verdicts. Everything would grind to a halt—the ceiling would fall in, juries would be undermined. That is what people said.

They then came to peremptory challenges. I stand in the dock on peremptory challenges. I remember thinking at the time, "Doing away with peremptory challenges—whatever next". But the roof did not fall in, jurors' will was not suborned and justice has been done.

The noble and learned Lord, Lord Cooke, took us through the history of juries. Juries have changed many times; the core has remained the same. Nothing in these provisions seeks to damage the sanctity of the jury. Noble Lords who say that if you suppress discretion one way it will bubble up elsewhere should bear that in mind when we look at these issues, because they will come back. If we do not face them now, we will have to find a way of facing them later.

We have balance in these provisions. We need to talk, perhaps, about the provisions themselves, but as to whether they should stand part, I say that they should. Let us debate, if we must, the detail. Let us debate balance; let us debate proportionality. But I ask noble Lords to open their ears and their minds. If it was not in relation to these issues, I certainly know all these concerns from looking in the documents from New Zealand and Australia. They come from the same root as do we—from the common law. All these concerns were played out in those jurisdictions.

I understand the concern of the noble Lord, Lord Alexander of Weedon. I do not hide the fact that I wince at his suggestion that the independence of our judiciary will ever be impugned. For so long as I remain anything to do with this Government, that will not happen. But I rely not on myself but on thousands of years of good tradition which has never been suppressed. I believe that the judiciary we have today, who sit in judgment, will be with us, by the grace of

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God, for a very long time. If the longevity of this House is anything to go by, they will be with us for a very significant time indeed.

This country has produced some of the greatest jurists. Many of them I have been privileged to listen to today. I do not feel that they will go away; I do not see them weakened, either in their passion or in their content. I listened with great care to everything that was said by all Members of the Committee. I almost wish that I could read out the roll call, which sounds a little like Henry V, of all the great names who have participated in this debate. Noble Lords have given justice.

The noble Lord, Lord Dholakia, rightly raised the question of the proper sensitivity about what we should do about black and minority ethnic defendants. How do we look at those issues? That is something of which the Government are very aware, and we have had discussions with the CRE. We are looking at what we need to do to monitor the provisions. The Home Office race equality scheme is, as noble Lords know, a living document, which recognises that it is often necessary to take a pragmatic approach to arrangements for assessing and consulting on new policies. The Home Office has committed to a regular review of its functions and to assessing them to determine their impact on the public, including minority ethnic communities.

I myself wrote to Trevor Phillips, the chair of the Commission for Racial Equality, to confirm that we will assess the proposals in the Bill that the commission has suggested would benefit from assessment. That was in his letter of 11th June. Those provisions include: on Clause 5, limits on periods of detention without charge; on Part 7, trials on indictment without a jury; on Part 10, retrial for serious offences; on Part 11, Chapter 1 evidence about character; on Clause 146, as noble Lords know, an increase in general limits on magistrates' courts' powers; on Clause 271, the minimum sentences for certain firearm clauses; and on Clause 274, powers to limit periods of detention without charge of suspected terrorists.

We have agreed that all those should be included in the assessment that we shall make in relation to the proposals. We will have a watching brief on those issues, and I hope that I can assure noble Lords that the Government are very committed and concerned about them. We want to ensure that the provisions of the Bill apply with equality to all our citizens in a way that is not disproportionate and really does inure to the interests of justice.

I ask noble Lords to consider long and hard, first, whether this is an issue on which the Committee feels that it is proper to divide and, secondly, whether they are content with the results that will flow therefrom.

Baroness Kennedy of The Shaws: I raise the issue of public interest immunity. How does a judge, sitting alone, deal with that difficult issue when matters are put before him without the defence being present? How can a judge deal with that, sitting alone?

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Baroness Scotland of Asthal: The judge deals with that by considering those factors and taking them into account when a decision is made as to whether that case is suitable for trial by judge alone. It may be those very factors that will weigh heavily on the judge's mind to make that judge exercise the discretion. He may say, "This is a case that I believe, should, in the public interest—as provided for under the legislation—properly be heard by a judge and a jury together".

I remind noble Lords that before such decisions are made both the defence and the prosecution will be able to make submissions about the mode of trial. That will not happen, as many noble Lords have suggested, at the door of the court when people will see what judge they fancy, and say, "Well, I really do think that the noble Lord, Lord Hunt is a very nice cove. I think he will be very good for me, so I will go for that judge; but I am very concerned about the noble Lord, Lord Alexander, who looks quite different".

Those decisions will not be capable of being made in such a way, because they will be made at the preparatory stage; that is, before there is any knowledge of who the judge will be. Therefore, people will not be able to pick and mix—it will be more like Russian roulette. They will not know who they will get, and they will not be able to determine it. However, they will get a judge who will try the case fairly.

The defence and the prosecution will not only be able to argue about whether a jury is merited and give good reason as regards which should be chosen but also, if either side is displeased with the result, they can appeal to the Court of Appeal where all those questions—all those wonderful debates—about what is in the public interest, and whether it is going to be possible or appropriate for the judge to hear the case alone, can be rehearsed all over again. The court can then decide how to deal with it.

I can say to my noble friend that there are safeguards in the Bill that will allow her to quiet her beating heart.

Lord Hunt of Wirral: This has been a very important debate, with some outstanding speeches from all sides of the House. However, if noble Lords will forgive me, I do not think that I should delay matters by seeking to respond. Suffice it to say that this House has an honourable and proud tradition of standing firm against the executive to protect our fundamental rights and liberties. I, and many other noble Lords, have stressed why we believe that the right to jury trial is one of those fundamental freedoms. Therefore, I hope that this Chamber will fight to keep this very touchstone of our liberties. I wish to test the opinion of the Committee.

6.36 p.m.

On Question, Whether Clause 41 shall stand part of the Bill?

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Their Lordships divided: Contents, 136; Not-Contents, 210.

Division No. 1


Acton, L.
Ahmed, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B.
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Brett, L.
Brightman, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Burns, L.
Butler of Brockwell, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Clark of Windermere, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Cooke of Thorndon, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dixon, L.
Donaldson of Lymington, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elder, L.
Erroll, E.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Kilclooney, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Listowel, E.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackie of Benshie, L.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Morgan of Huyton, B.
Morris of Manchester, L.
Nicol, B.
O'Cathain, B.
Orme, L.
Ouseley, L.
Oxburgh, L.
Palmer, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Rooker, L.
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Smith of Leigh, L.
Stallard, L.
Stone of Blackheath, L.
Strabolgi, L.
Taverne, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Vinson, L.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Weatherill, L.
Whitty, L.
Williams of Elvel, L.
Williams of Mostyn, L. (Lord President of the Council)
Woolmer of Leeds, L.


Aberdare, L.
Ackner, L.
Addington, L.
Alderdice, 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.
Barker, B.
Beaumont of Whitley, L.
Bell, L.
Biffen, L.
Blackwell, L.
Blaker, L.
Blatch, B.
Boothroyd, B.
Bowness, L.
Brennan, L.
Bridgeman, V.
Brougham and Vaux, L.
Bruce of Donington, L.
Burnham, L.
Byford, B.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Carrington, L.
Chalfont, L.
Chalker of Wallasey, B.
Clement-Jones, L.
Clinton-Davis, L.
Colville of Culross, V.
Colwyn, L.
Condon, L.
Cope of Berkeley, L. [Teller]
Courtown, E.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
Cumberlege, B.
Dahrendorf, L.
Darcy de Knayth, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Fearn, L.
Ferrers, E.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Gray of Contin, L.
Greaves, L.
Greenway, L.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of High Cross, L.
Harris of Peckham, L.
Harris of Richmond, B. [Teller]
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hutchinson of Lullington, L.
Hylton, L.
James of Holland Park, B.
Jeger, B.
Jellicoe, E.
Jopling, L.
Judd, L.
Kennedy of The Shaws, B.
King of Bridgwater, L.
Knight of Collingtree, B.
Laird, L.
Lamont of Lerwick, L.
Lane, L.
Lane of Horsell, L.
Lester of Herne Hill, L.
Lindsay, E.
Liverpool, E.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lucas, L.
Ludford, B.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Mancroft, L.
Mar, C.
Mar and Kellie, E.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Mishcon, L.
Molyneaux of Killead, L.
Montagu of Beaulieu, L.
Montrose, D.
Morgan, L.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Naseby, L.
Neill of Bladen, L.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
Oppenheim-Barnes, B.
Patten, L.
Perry of Southwark, B.
Peyton of Yeovil, L.
Phillips of Sudbury, L.
Plummer of St. Marylebone, L.
Prys-Davies, L.
Pym, L.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rees, L.
Rees-Mogg, L.
Rennard, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Roper, L.
Russell, E.
Russell-Johnston, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Sanderson of Bowden, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheldon, L.
Shutt of Greetland, L.
Skelmersdale, L.
Slim, V.
Slynn of Hadley, L.
Stewartby, L.
Stoddart of Swindon, L.
Strange, B.
Strathclyde, L.
Swinfen, L.
Taylor of Warwick, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trumpington, B.
Ullswater, V.
Vivian, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Walker of Worcester, L.
Wallace of Saltaire, L.
Walmsley, B.
Warnock, B.
Watson of Richmond, L.
Wedderburn of Charlton, L.
Wigoder, L.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Wilson of Tillyorn, L.
Windlesham, L.
Wolfson, L.

Resolved in the negative, and Clause 41 disagreed to accordingly.

15 Jul 2003 : Column 816

6.49 p.m.

Clause 42 [Applications by prosecution for certain complex or lengthy trials to be conducted without jury]:

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