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Mr. David Taylor: Is the right hon. and learned Gentleman perhaps guilty of smearing magistrates by associating them with the professional lawyers? He has suggested that, because some of judiciary might be somewhat detached from the realities of everyday life, so are magistrates because they fall within his umbrella definition of professional people in the legal system.

Mr. Hogg: I have smeared no one. I have made no distinction for these purposes between the lay magistracy and the professional judiciary.

Mr. Taylor: The hon. and learned Gentleman should.

Mr. Hogg: No, I should not. I am drawing on years of personal and vicarious experience and I venture to say that there is not much dispute on these matters among those who really know about them. If one spends a long time in a criminal court, one is likely--if not certain--to develop a predisposition in favour of the prosecution. The hon. Gentleman should talk to the hon. Member for Hemel Hempstead (Mr. McWalter), because he agrees with me.

I have a lot of sympathy for the Home Secretary. I understand that he is an honourable man who is dealing with a problem that causes anxiety. However, he would be well advised to reflect on the fact that he has derived very little support from those who have spoken in the debate. He will derive very little support in the other place and his Bill has already been defeated there. That is not coincidence. The plain truth is that the sense of the House is that the Bill is unfair and will diminish the justice administered in this country. I hope that the Home Secretary will reflect on what has been said tonight.

9.25 pm

Mr. David Kidney (Stafford): I am relieved to have the opportunity to explain why I oppose the Bill. My objection is based on principle, and not the details to which many hon. Members have referred during the debate. I summarise that point of principle as follows: this is a Bill from a mighty Government to weaken one of the bulwarks of our liberties that protect us from the acts of some future over-mighty Government.

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I realise that I am open to the same accusation of self-interest that is faced by many other hon. Members--for 20 years before election to the House I was a solicitor, and I practised regularly in the magistrates court and even presented cases in the Crown court before a judge. I declare an interest in that I am a non-practising solicitor, because I have left that behind me.

My 20 years' experience leaves me with great respect and admiration for the magistrates court and the Crown court as means of delivering criminal justice. However, I had to write letters of advice to any of my clients who had the opportunity to decide whether to consent to a trial in the magistrates court or to insist on a trial before a jury in the Crown court.

I hope that my hon. Friends who are magistrates can bear to hear me say that the points that I made against a magistrates court trial sometimes included the lack of representation of the local community on the magistrates bench. I am heartened by the fact that the Attorney-General accepted a similar point in the other place during the Second Reading debate on the first Bill.

Of course, I also mentioned in my advice the systems failings of magistrates courts, such as magistrates' inability to determine points of law and put them out of their mind when dealing with a case. How, for example, do magistrates decide that they are ruling a confession inadmissible and then go on to determine the case without taking account of the fact that the person confessed? It is difficult for magistrates to do that. Equally, the level of disclosure of evidence in magistrates courts is inferior.

There are reasons why some people should not elect to have a trial in a Crown court, and I would warn them against the dangers of receiving a custodial sentence from a judge which they might not have received in the magistrates court. I would warn them also that they might receive a longer sentence in the Crown court than in the magistrates court. When people heard all that advice and chose to go to the Crown court for their trial, even though they risked serving a longer time in prison if they were convicted, they were choosing the right of a trial by jury ahead of that risk.

I come to the Government's difficulty on reputation. Clearly, in the original Bill they accepted that people with an unsullied reputation who were faced with an offence of dishonesty ought to have a trial by jury. They tried to accommodate that in the first Bill by allowing people to be excepted, on the ground of reputation, from the magistrates' decision that they should have a summary trial. That proposal has rightly been thrown out because it would provide a two-tier system of justice, in that some could go to the Crown court for a jury trial and others could not.

The Government are now trying to justify a Bill that does not protect people with reputation. That shows that the Government cannot win on this issue because the removal of access to a jury trial is wrong however it is dressed up. On this occasion, the third way really is the right way; the third way is to retain trial by jury.

Even the previous Government balked at making such a change--but they wanted to stamp out the perceived abuses of the system, so they made other changes. In 1994, they introduced a more overt system of discounted sentencing for an early guilty plea. They introduced plea before venue only from October 1997, but those changes are making a difference. In the 1990s, the number of accused electing to go to the Crown court for trial fell.

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The Government understand that there are many ways to continue trying to stamp out abuses of the system without withdrawing wholesale the right of people in either-way cases to have a trial by jury. That is why Lord Justice Auld was asked to report this year on changes that could be made. Interestingly enough, he will investigate, among other things, the composition of courts, including the use of juries and of lay and stipendiary magistrates. As these matters will be dealt with by the end of the year, why rush into making one judgment ahead of those?

Yes, jury trials are expensive, but they have a value beyond money. They contribute to the stability of our constitution and to the trust that we have in our institutions. The existing right to withhold our consent to summary trial by magistrates in either-way cases is a safety valve. Perhaps some eccentrics and some incorrigible rogues will withhold their consent when magistrates could easily try their cases, but they must be a small minority of the 18,000 who each year exercise their right to withhold their consent to summary trial.

I believe that, overwhelmingly, that right is exercised responsibly. Those who are to be denied a jury trial by the Bill may hold a grievance for a long time afterwards. Other citizens who thought that the right would have been available to them if they ever needed it will feel discontent. Confidence and trust in our legal system will be diminished.

9.31 pm

Mr. Nick Hawkins (Surrey Heath): This has been a thoughtful debate, during which we have heard many good speeches.

I start by declaring an interest as a former member for a number of years of the practising Bar, who appeared on many occasions in both Crown courts and magistrates courts. Although I am not currently in practice, I believe that I speak from some experience, but not as much experience as many right hon. and hon. Members on both sides of the House who have contributed to the debate.

Reading the debate on the first version of the Bill in another place, I was struck by the words of a distinguished member of the Bar, not of my party, which rang particularly true. On 20 January this year, the noble Baroness Mallalieu said:

She went on:

    If I were accused of an offence which I had not committed I would want to be tried by a jury if at all possible, and I would know that I would have a substantially higher chance of being found not guilty. I would want 12 minds to look at the evidence and 12 fresh minds, not one, two or three people who had already heard many similar cases. As a lawyer, that is the advice I would give in almost every case where I considered my client had a good defence.--[Official Report, House of Lords, 20 January 2000; Vol. 608, c. 1260.]

Those are wise words, which hon. Members in all parts of the House should take to heart, from a distinguished and senior member of the Bar who has also sat for many years as a recorder.

I am surprised to see the Home Secretary being so disingenuous when he comes to the House with his No. 2 version of the Bill, having been defeated on the

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No. 1 Bill, with so many of his noble Friends having spoken against him. He says that he has changed his mind, as though that made everything all right.

The Home Secretary has a charming way of coming disingenuously to the House, as he has done on many previous occasions, and saying, "In the past we were wrong, but now we are right." In the time that he has been Home Secretary, he has done that on so many issues connected with law and order.

The Opposition think that both the Home Secretary and the Lord Chancellor have had their minds changed for them. We believe that they have been strong-armed by the Treasury. It is the Chancellor of the Exchequer and the Chief Secretary to the Treasury who are really behind the Bill, as has been said repeatedly by so many hon. Members attacking the Home Secretary with so-called friendly fire from behind him.

The score in tonight's debate is that only three of the Home Secretary's hon. Friends on the Back Benches have been prepared to support him, whereas no less than five have attacked him. It is much the same picture as in the other place on the No. 1 Bill. The hon. and learned Member for Medway (Mr. Marshall-Andrews) in a superb speech, and the hon. Members for Hackney, South and Shoreditch (Mr. Sedgemore), for Leeds, North-West (Mr. Best), for Stoke-on-Trent, Central (Mr. Fisher) and for Stafford (Mr. Kidney) have all attacked the Home Secretary.

The only three hon. Members who have been prepared to support the Home Secretary are the hon. Members for Bristol, East (Jean Corston), for Lewisham, East (Ms Prentice) and for Salford (Ms Blears). I believe that they would find it uncomfortable to return to their constituencies and tell their activists that they had attacked the arguments of organisations such as Justice, Liberty, the National Association for the Care and Resettlement of Offenders, the Society of Asian Lawyers and the Society of Black Lawyers. Even the Home Secretary's few supporters will find it difficult to explain why all those organisations, which have a proud record of supporting civil liberties, are wrong.

The hon. Member for Bristol, East rightly paid homage to those who had taught her in the past, such as Lord Runciman and Professor Michael Zander. However, in an interesting passage in a good and thoughtful speech, she said that she would vote against the Bill and support the hon. and learned Member for Medway if she believed that it would increase the scope for wrongful convictions among ethnic minority communities. She referred to research by Dr. Bonny Mhlanga. However, she may not have read the debates in another place because Lord Dholakia--again, not a member of my party--used the research to support the opposite case and attack the Home Secretary. In a powerful passage of his speech on 20 January in column 1278 of Hansard, he said that Dr. Mhlanga's research led to the conclusion that the hon. and learned Member for Medway presented. I hope that the hon. Member for Bristol, East will reflect on that, examine the debates in another place and decide that we and the hon. and learned Member for Medway are right.

In a powerful speech, my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) reflected on the time when the original proposals were put forward by him and considered for consultation without commitment. He made it clear that if he had continued to

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be Home Secretary after the last election, he would have tried to persuade other Conservative Members to go ahead with some sort of proposal, but not the Government's measure, for reasons that he wisely set out.

Despite my enormous respect for my right hon. and learned Friend the Member for Folkestone and Hythe, he would not have succeeded in persuading me to accept such a proposal. Throughout my legal career, I have strongly supported the right to trial by jury. My right hon. and learned Friend's attacks on this Bill are especially accurate.

The hon. and learned Member for Medway, who has been a practising barrister for 33 years and a recorder for 18 years, pointed out that even St. Paul on the road to Damascus to conduct public prosecutions without a jury, did not undergo the same sort of conversion as the Home Secretary. He pointed out that the proposal had been brought from the Home Secretary's hutch in the Home Office, and was not a manifesto commitment. When the Minister winds up for the Government, I hope that he will make it clear that, if the Bill is defeated tonight or in another place on a subsequent occasion, the Government will decide that, because the measure was not mentioned in their manifesto, it would be wrong in principle to try to railroad it through another place. It would be right for the Government to accept defeat, crawl away and lick their wounds.

The hon. and learned Member for Medway rightly pointed out that the costs of the appeals could amount to £6,700,000. He said that the Bill will not achieve the savings about which the Treasury has persuaded the Home Secretary and the Lord Chancellor. It will cost more money.

The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) spoke of the importance of not proceeding with piecemeal change to the law. He correctly said that we should wait for Lord Justice Auld's committee to report. In a powerful speech, the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore) rightly pointed out that, when considering the civil liberties aspect of trial by jury, we should take account of the cry of freedom.

My hon. Friend the Member for Woking (Mr. Malins), who is a practising lawyer, a recorder and an acting stipendiary rightly said that the Bill was shameful and shoddy. He comprehensively demolished the Government's arguments on cost saving and the time of appeals. He also pointed out that Crown court delays are not as great precisely because of the reforms that my right hon. and learned Friend the Member for Folkestone and Hythe introduced when he was Home Secretary. I was a member of Committees that scrutinised the Bills that introduced many of those reforms and a lot of the Home Secretary's arguments undoubtedly fall away when we consider the recent speeding up of Crown court trials. The plea-before-venue system has saved a lot of time.

The hon. Member for Lewisham, East (Ms Prentice) half said that she had come to the House specifically to bury lawyers, not to praise them. She indulged in the conventional rhetorical trick of erecting an argument that nobody was making--an alleged attack on the lay magistracy, which the hon. Member for Leeds, North-West moderately said that he had heard nobody make--

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and then said that we must defend the lay magistracy. We on the opposition Benches are proud of the lay magistracy and its work, but one does not have to be an attacker of the lay magistracy to be against the Bill, which is flawed in its own right for reasons unconnected with the lay magistracy.

My hon. Friend the Member for Hertsmere (Mr. Clappison) correctly dismissed the Scottish experience--as the Home Secretary has pointed out that he had considered it--and said that the Home Secretary had made the provisions worse since the failure of the first Bill. The hon. Member for Leeds, North-West referred to the common-sense justice that is founded on trial by jury, which he was taught at Meanwood county school, and rightly said that he had not heard any attack on magistrates.

My right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell)--a former Attorney-General--rightly complimented the lay magistracy on all its work and said that the Bill would achieve no cost savings. The hon. Member for Stoke-on-Trent, Central (Mr. Fisher) made two good points: he said that no one ever writes to him or to any other Member of the House to complain about the right to trial by jury and the Home Secretary is required to prove beyond reasonable doubt--the usual standard of proof in criminal courts--that the Bill does not attack civil liberties. He concluded that the Home Secretary has failed to reach that standard.

My right hon. Friend the Member for Haltemprice and Howden (Mr. Davis) spoke as a libertarian, against the Treasury. He said that it is important to try every other mechanism to improve our criminal justice system first and that we must not throw away fundamental civil liberties. In a speech that can be described only as somewhat egregious in its loyalism to the Millbank spin doctors, the hon. Member for Salford (Ms Blears) said that the organisations on which I challenged her, such as Justice and Liberty, are motivated by self-interest and dominated by lawyers. I suspect that she will have cause to regret that, and her speech could be described as selling her civil libertarian soul for a mess of pottage in the Bill.

My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) gave the House the benefit of his sharp-end experience and pointed out everything that could go wrong if the Bill become law. The hon. Member for Stafford, who has extensive practical experience of the magistrates courts, made a brief but well-observed contribution and foresaw many difficulties with the Bill.

The hon. and learned Member for Medway quoted the leading work on the history of trial by jury, which was written by Sir Patrick Devlin, who became a most distinguished Law Lord. Like most lawyers of my generation, I was brought up the words and judgments of the late Lords Denning and Devlin. The hon. Gentleman missed out some of what Sir Patrick Devlin wrote. He concluded his book on trial by jury with these words, quoted from Sir William Blackstone:

he meant trial by jury--

    remains sacred and inviolate; not only from all open attacks . . . but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial; by justices of the

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    peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.

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