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Mr. Deputy Speaker: Order. May I invite the hon. Member to home in on the new clause? He is buzzing around it rather too much.
Mr. Hughes: I am trying not to do that, Mr. Deputy Speaker. I am trying to make the point that the question whether a limit should be placed on the sentencing power of the lower court is one of a set of interrelated questions that ought to be considered together. We could say, "Yes, this is logical in itself", but many earlier questions should be answered before we answer the question posed by the hon. Member for Stafford.
I shall be interested to hear the Government's reply, but I would be far more interested to hear that an up-to-date objective assessment will be available to us by December this year. Lord Justice Auld has said that he expects to report in December, that he is on time, and that he expects to have the evidence. It would be good for the parties to have an opportunity, in the run-up to the general election, to decide how to respond. We could each submit our views in our manifestos; we could have considered internal party debates, and could go to the electorate with our views.
We could have a real debate about the best criminal justice system. That debate might include a view about whether the sentencing power of the lower court--assuming that the two-tier court structure is retained--should accord with the Scottish system. In Scotland,
once someone knows that he will be dealt with in the lower court--whether he has chosen that, or has been told that it will happen--he knows that the tariff cannot be changed, that the possible sentence cannot be upped, and that there is no risk of a complete change in the balance of prejudice or disadvantage.Finally, let me make a practical point. Like others, I speak from experience. As anyone who has been in court will know, an important consideration for defendants is what the potential sentence will be. That consideration is bound to influence a plea. People sometimes plead guilty although they are not guilty, for all sorts of reasons. If they think the sentence will be limited, they may feel that the risk is worth taking.
It should be borne in mind that taking away a right will also take away a power, and may disadvantage a person further. My colleagues and I are unhappy about taking away that right: we have already argued our case. We will not support the Bill on Third Reading, however it may have been amended, because we think that the process has been dealt with in the wrong way. However, both the hon. Member for Stafford and the hon. and learned Member for Harborough (Mr. Garnier) ask perfectly proper questions. This should be one of a series of interconnected considerations, on which we should reach a comprehensive and serious view.
The Minister of State, Home Office (Mr. Charles Clarke): My hon. Friend the Member for Stafford (Mr. Kidney), with whom I have served on the Select Committee on the Treasury, has a strong and genuine view, which he has held throughout. I pay tribute to the integrity with which he consistently makes his case. I think I am right in saying--he will correct me if I am wrong--that his fundamental objection is to the approach taken throughout the Bill as a whole and that, even if the new clause were accepted, that would not change his view about the matter as a whole.
Mr. Clarke: My hon. Friend confirms that that is his view. [Interruption.] The Whips suggest that I was trying to bargain, but there was no doing business there. However, joking aside, I appreciate his confirming that. I am glad that he has made the position clear.
I will deal with my hon. Friend's points in reverse order. On the illusory savings point, I addressed that at great length in Committee. The Government rest their case on the Bill being a modernisation of the criminal justice system, which is justified in its own terms. We are required under the law of the land to set out our estimate of the savings. We must set out in a memorandum our estimate of the savings, which we have done honestly and directly, but the Bill does not rest on the accuracy of those assumptions or, indeed, on the fact of there being savings at all.
It is possible that the assumptions that we have made will not, in practice, turn out to be exactly as we predict. That is entirely understandable, but that does not, in our view, change the case for or against the Bill in any respect, because it is about modernisation of the criminal justice system.
My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) raised points about the reputation issue, which, if he permits me, I shall deal with in the discussion on the next group of amendments--which addresses that point directly--rather than reiterate my points now.
The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) advances the argument for delaying all this--again, we discussed the matter in Committee at some length--to wait for Auld, as it were. I accept that there is a perfectly coherent argument for that, although I do not accept--I have not accepted it with any process of commission change, inquiry or review of any part of the Government's work--that that inquiry or review, whatever form it takes, should prevent reform as we go forward; in this case, it takes the form of the Auld inquiry. There is a case for looking at it in the way he suggests, but I do not accept that case. I do not think that it is right.
Mr. Simon Hughes: Can the Minister explain why the Government commissioned a senior Lord Justice to conduct an inquiry, specifically asking him to address that question, if, in the meantime and since he was asked to do it, they have been determined to legislate when they have not had any answer? I do not understand the logic. They did not do it on fox hunting--they set up a commission, got the inquiry and then announced how they were going to proceed.
Mr. Clarke: The terms of reference of the Auld inquiry go far wider than simply the mode of trial issue. By the way, the first mode of trial Bill was presented before Mr. Justice Auld was appointed. We embarked on that course of action because we thought that the reform was justified in its own terms. As I say, there is a perfectly respectable argument that says that we should not do anything about any of these things until Auld reports, but I do not accept that argument and nor do the Government.
Mr. Garnier: The point I wish to make follows on from what from the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) said. Let us assume that the Bill becomes law, but that, none the less, Sir Robin Auld in his inquiry reaches a completely different conclusion about the value of the jury. What will the Government do then?
Mr. Clarke: We will look at all Sir Robin Auld's recommendations. I do not think the issue is about a verdict on the value of the jury. There is no issue about the value of the jury. I was going to address a point made by my hon. Friend the Member for Stafford on the matter. I do not share the view that jury trial is wasteful, in the wording of the briefing from which my hon. Friend read. I do not think that is a correct way to look at it. I do think that aspects of the way the criminal justice system works are inefficient and ineffective, and it is reasonable to look at that from a wide range of points of view. That is what the Bill is about, but the word "wasteful"--I agree with my hon. Friend--is wrong.
In the same way, I do not think that anything we do in the Bill prevents us from looking carefully at precisely what Sir Robin Auld recommends when he comes to do so, but the core point was raised by my hon. Friend when
he described the measure as the Scottish amendment. He talks of the trade-off between the sentencing powers and the prosecutor taking the decision.Much was made by the hon. and learned Member for Harborough (Mr. Garnier) about what my right hon. Friend the Home Secretary said about the Scottish example. The point of that example is that in the Scottish system--a completely different system, as is acknowledged by all parties in the debate--the prosecutor takes the decision as to the mode of trial. We are not proposing that. That is simply not the proposal in the Bill and before the House. We propose that a magistrates court--a magistrate--takes that decision, not that the prosecutor takes it, so the trade in the proposal is simply not appropriate to this situation.
The example that my hon. and learned Friend the Member for Medway gave, and to which the hon. and learned Member for Harborough referred, was just that--an example. The defence's ability to choose in these circumstances is not absolute.
9.45 pm
The fact is that this group of amendments would remove the ability of the magistrates court to commit a case to the Crown court for sentence if there has been a mode of trial hearing. It has long been a feature of our criminal justice system in England and Wales that the magistrates have a power to commit a case for sentence if the circumstances of the offence suggest that the punishment that the court would have to impose following a conviction would be inadequate. We believe that there is nothing inherently unfair with that procedure, as a defendant will generally be committed to the higher court for sentence only because his previous criminal record has aggravated the offence. Our estimate is that, as a result of the Bill, about 8 per cent. of formally electing cases will be committed to the Crown court for sentence.
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