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Mr. Garnier: I am happy to do that. In my view, the Bill is fundamentally flawed from top to bottom and I do not believe that the House should give it passage. I am not as charitable as my right hon. and learned Friend in thinking that even an amendment tabled by my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) would cure the fundamental objections that the official Opposition have to the Bill. I made my views on what the future of the Bill should be clear on Second Reading. I have heard and learned nothing from the Government to persuade me that the view that I took then was wrong. The principle that I supported on Second Reading in opposition to the Bill is one that should honourably be maintained. I am not persuaded that any tinkering--even if it might mitigate some of the worst effects of this bad Bill--would overcome my overall principled objections.

Mr. Charles Clarke: This point is similar to that made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). Am I correct in my understanding that the Opposition Front-Bench position will not change, whatever amendments we may pass this evening?

Mr. Garnier: The position is entirely clear--this is a bad Bill in principle. We spoke and voted against it on Second Reading. Although I understand the practicalities of the voting arithmetic and I know that the Bill will move to another place, I am happy to say that this is a bicameral Parliament and it is up to the other House to add their views to those of this House before the Bill becomes an Act.

Mr. Leigh: The point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) is very important. Towards the end

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of the Committee proceedings, it was clear to me that the Government were considering making a concession on this point. I see the Minister nodding. I hope that further discussions can take place on amendment No. 15, which is vital because it would greatly improve the Bill if magistrates could take into account someone's good character.

Mr. Garnier: Further discussions may well take place, but I will not negotiate with the Government across the Dispatch Box. I repeat that this is a bad Bill in principle, and, as the Opposition spokesman, it is my job to argue--cogently, I hope, and with some persuasion--against the principle. I think that I have the support of the Opposition and of the Liberal Democrats.

If the Government want to table amendments, we will consider them. As I said a moment ago, I cannot control the destiny of the Bill. The Government have the majority, and we are merely interested bystanders.

Mr. Hogg: Participating bystanders.

Mr. Garnier: We are interested and participating bystanders, but, to the extent that this is a joint enterprise in the sense of the criminal law, I can acquit myself of having been guilty of supporting the Bill.

Mr. Dominic Grieve (Beaconsfield): Does my hon. and learned Friend agree that the Minister's questions are rather strange? Either the Bill will be improved by such an amendment, and the Minister thinks so, or it will not be. If it will be improved, the Minister should be ready to accept that without giving the impression that it is a concession in return for something else.

Mr. Garnier: That is a fair point and it was well made. If the Government want to make the Bill less bad, let them do so--they have the power to do so--but it is not my job, on behalf of the official Opposition, to tear up my principles and my principled objection to the Bill simply because the Minister and the Home Secretary have been embarrassed this afternoon. I am sure that Liberal Democrat Members agree.

Mr. Simon Hughes: I certainly associate myself with that view. Does the hon. and learned Gentleman agree that if we were to introduce a means to decide the venue by requiring the defendant to provide information on his antecedents, there would be greater prejudice against someone with a criminal history, even though that history might be irrelevant to the offence that they had been charged with?

Mr. Garnier: The Government have introduced into this debate and earlier debates many points that do not address the serious problems that we are having to face as a consequence of the Bill's introduction. If the Government want to make suggestions about how they can mitigate the Bill's worst consequences, that is a matter for them. I am not prepared to allow them to amend the Bill on the hoof this evening.

I shall conclude because I know that other Members want to contribute to our limited discussions. I have made the point about the ethnic minority communities, and there is a valid point that the public interest would be served if

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the interests of the community at large could be considered by the court in deciding venue. I hope that the House will agree.

The criminal justice system is largely consensual. We do not have--I know from experience as a recorder--armed guards and prisoners in shackles, restrained in the dock. Indeed, a number of defendants in court before me have sat not in the dock, but in the lawyers' seats just a little way from the judge's bench. The reason why defendants are left in court by themselves almost, on trust, is that, guilty men are sentenced--perhaps unfortunately, from their point of view, to a long term of imprisonment--knowing that they have been justly convicted by their fellow citizens who have heard the evidence during a trial.

The Government are putting in danger the consensual nature of our criminal justice system. It is all the more important that the consensual issue is reflected through the addition of amendment No. 19. I appreciate that my overriding objection to the Bill is one of principle, of which I spoke on Second Reading. Nothing that the Government have said or done since has tempted me to move from that position. If we are to have an appalling Bill, let us do our best to mitigate its appalling consequences.

10.15 pm

Mr. Gareth Thomas (Clwyd, West): I speak as someone who has grave reservations about the wisdom of proceeding with the Bill, especially in the light of the fact that the Auld commission has been charged with the task of comprehensively reviewing the criminal justice system. Incidentally, I also speak as a member of the Bar.

I tend to support the Government on the amendments. Although many hon. Members have raised valid points concerning the reputation clause, I take the view that, logically, it is right, in order to avoid the possible charge that a reputation clause is socially divisive, for the Government to have moved--they take the view that the venue should be determined judicially and not left to the defendant--to a neutral position on the antecedents of the defendant, having clearly been stung by criticism levelled against the Bill in the other place.

I see the force in the argument that allowing weight to be given to reputation and antecedents would create the danger of a socially divisive system--a Rolls-Royce system for those with an unblemished character and a summary trial system for those, perhaps including very many members of ethnic communities, who have records.

Mr. Hogg: It is difficult for the court to form a view of whether punishment would be adequate, as it is directed to do under proposed new section 19(2)(c), without knowing the antecedents of the accused. In the absence of knowledge, it is difficult to determine an appropriate penalty.

Mr. Thomas: I take on board what has been said. Although I have made broadly positive comments about the clause, the Government should address the following point. Does not common sense suggest that a bench of magistrates will, one way or another, want to take into account the character of a defendant? Even if magistrates do not want to do so, is it not true, given what some uncharitably call the intellectual dishonesty of this

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country's higher judiciary and others call their simple ingenuity, that a body of precedent will develop on appeal--the principle of interlocutory appeal is embedded in the legislation--which will in some way or another bring into play the question of character?

My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) has told us that the previous Lord Chief Justice pointed out that it is unrealistic to expect decision makers not to take into account a defendant's character in some way, so how confident can the Government be that antecedents will not come into play at the end of the day?

Mr. Leigh: I have a lot of respect for the hon. Gentleman, but I do not think that he is being fair to the Government, because the Bill is absolutely clear. New section 19(2)(b) states that the court can consider

Therefore, no case law can develop because the magistrates court will not be able to consider the circumstances of the accused. Considering antecedents is not socially divisive: men and women of good character can come from any social background.

Mr. Thomas: Given that the hon. Gentleman is a member of the Bar, I am surprised that he underestimates the courts' ingenuity in getting around such provisions. I draw his attention to new section 19(2)(a), which states that the court can take into account circumstances including

I have a bald question for my hon. Friend the Minister to answer, if he can. Is it his understanding that a case that lawyers might describe as "a typical shoplifting case", in which the only issue is dishonesty and the defendant is of previous good character, would have to remain in the magistrates court? To what extent is that a realistic assessment, given that, as we know, the previous Lord Chief Justice is not alone in taking the view that common sense suggests that character must be taken into account?

I sense that the Government are ambivalent about the issue. It is clear that they were stung by the arguments advanced in the other place that the first Bill would have been socially divisive. However, in view of the throwaway remark that my right hon. Friend the Home Secretary made earlier tonight, that the Government were prepared to "do business" on the question of the reputation clause, I wonder whether they know what they want to do in that respect. Given that others want to participate in this debate, I conclude my remarks on that note.

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