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Earl Russell: 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.

The Minister of State, Home Office (Baroness Scotland of Asthal): 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

20 Nov 2003 : Column 2056

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.

Baroness Anelay of St Johns: 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.

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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.

Lord Hunt of Wirral: My Lords, I wish to test the opinion of the House.

1.31 p.m.

On Question, Whether the said amendment (No. 32D) shall be agreed to?

Their Lordships divided: Contents, 163; Not-Contents, 115.

Division No. 1


Ackner, L.
Addington, L.
Alderdice, L.
Ampthill, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Barker, B.
Blaker, L.
Blatch, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brigstocke, B.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Buscombe, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Chalfont, L.
Chalker of Wallasey, B.
Chester, Bp.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Crathorne, L.
Crickhowell, L.
Cumberlege, B.
Dholakia, L. [Teller]
Dixon-Smith, L.
Donaldson of Lymington, L.
Dundee, E.
Eden of Winton, L.
Elliott of Morpeth, L.
Ezra, L.
Falkland, V.
Feldman, L.
Ferrers, E.
Forsyth of Drumlean, L.
Freeman, L.
Gardner of Parkes, B.
Geraint, L.
Glentoran, L.
Goodhart, L.
Goschen, V.
Griffiths of Fforestfach, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Hayhoe, L.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Holme of Cheltenham, L.
Home, E.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Jacobs, L.
Jenkin of Roding, L.
Jopling, L.
Kennedy of The Shaws, B.
Kimball, L.
Kingsland, L.
Laing of Dunphail, L.
Laird, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lucas, L.
Luke, L.
Lyell, L.
McAlpine of West Green, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Montagu of Beaulieu, L.
Montrose, D.
Moore of Lower Marsh, L.
Moynihan, L.
Newby, L.
Noakes, B.
Northbourne, L.
Northesk, E.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Park of Monmouth, B.
Parkinson, L.
Peel, E.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Plumb, L.
Plummer of St. Marylebone, L.
Rawlings, B.
Rawlinson of Ewell, L.
Razzall, L.
Reay, L.
Redesdale, L.
Rees, L.
Rees-Mogg, L.
Rennard, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Russell, E.
Russell-Johnston, L.
Saatchi, L.
Sandberg, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Stevens of Ludgate, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Thatcher, B.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Tordoff, L.
Ullswater, V.
Vivian, L.
Waddington, L.
Walker of Worcester, L.
Wallace of Saltaire, L.
Walmsley, B.
Watson of Richmond, L.
Wilcox, B.
Williams of Crosby, B.
Worcester, Bp.
Wright of Richmond, L.


Acton, L.
Allenby of Megiddo, V.
Alli, L.
Alton of Liverpool, L.
Amos, B. (Lord President)
Andrews, B.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Bhatia, L.
Billingham, B.
Birt, L.
Blackstone, B.
Borrie, L.
Bragg, L.
Brett, L.
Bridges, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chandos, V.
Christopher, L.
Clarke of Hampstead, L.
Condon, L.
Corbett of Castle Vale, L.
Craig of Radley, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Dubs, L.
Eatwell, L.
Elder, L.
Erroll, E.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L. [Teller]
Hannay of Chiswick, L.
Harris of Haringey, L.
Haskel, L.
Hayman, B.
Hogg of Cumbernauld, L.
Hollick, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
King of West Bromwich, L.
Laming, L.
Layard, L.
Lea of Crondall, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Masham of Ilton, B.
Massey of Darwen, B.
Mitchell, L.
Ouseley, L.
Oxburgh, L.
Parekh, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Powell of Bayswater, L.
Radice, L.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Rooker, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Stone of Blackheath, L.
Strange, B.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Warner, L.
Warwick of Undercliffe, B.
Weatherill, L.
Whitaker, B.
Whitty, L.

Resolved in the affirmative, and amendment agreed to accordingly.

20 Nov 2003 : Column 2059

Motion, as amended, agreed to.

1.42 p.m.


33Leave out Clause 42 The Commons insist on their disagreement to this amendment but propose the following amendments to the words so restored to the Bill—

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