Criminal Justice (Mode of Trial) (No.2) Bill

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Sir Nicholas Lyell (North-East Bedfordshire): I am happy to follow the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) and my hon. Friend the Member for Surrey Heath. I join in welcoming you, Mr. Maxton and Mr. Sayeed, to what I hope will be not an overlong but a carefully thought-through and constructive Committee.

The Bill is extraordinarily important. I have every respect for the Home Secretary and the many others who support it, but they are deeply mistaken. The Bill is a serious and profound attack on the liberties of ordinary people.

I doubt that the sittings motion will take us all morning. I do not intend to detain the Committee long, but as we are considering how long we should sit, it will be helpful for those listening to the debate or reading it if we highlight some key points on which we should focus.

The first and most fundamental issue is the liberty of the subject. The Bill places under attack the ancient freedom of the people of England and Wales. It is not just me saying that; history produces loud and clear warnings on that point. I wholly agree with what the Minister said earlier, and ask him to focus constantly on his words. He rightly said that justice in this country belongs to the whole people, not just the lawyers. That theme is central to my argument, to that which Lord Devlin put so eloquently in the famous book of his Hamlyn lectures on trial by jury, and to that made in the 1760s by one of the greatest legal commentators, Sir William Blackstone. It goes back to the Magna Carta in 1215, which is the foundation of many of our liberties.

10.45 am

I have taken the trouble to read a great deal around the Bill. It has frequently been said that the idea that the right to trial by jury is ancient is mistaken and that it actually developed from a compromise in 1855. Indeed, the Home Secretary says that today in The Times. The article is on page 3 in the law section, with an attractive photograph of the Home Secretary peeping around a door. He says that the right to trial by jury dates from a compromise reached in 1855. That is not correct. In 1855, the right to trial by jury—a right that no citizen could abrogate or deny—was modified to the extent that the citizen was, in cases of either-way offences, given the right to choose trial by jury.

Modern jury trial developed slowly out of the Magna Carta, and was beginning to develop well by the 14th century. It continued to develop, perhaps crucially, through the 16th and 17th centuries and into the 18th century at the time of Sir William Blackstone. Until 1855, trial by jury was for all serious crimes. Of course, crime has changed in modern times, but that would cover the vast majority of what are currently known as either-way offences. There was an absolute right to trial by jury. Indeed, a citizen had no choice: the only method of trial was trial by jury.

If the Minister thinks that I am wrong, he will correct me in due course. I am willing to learn, but I am pretty confident that I am right, because I have taken a lot of trouble to research the subject. Until 1855, there was an absolute right. All that changed then was that the citizen had a choice and an opportunity to say: ``No, I don't want this case to go to trial by jury and require a judge and an assize''—oyer and terminer as it was called—``I am happy for the magistrates to deal with this matter.''

Mr. Hawkins: I am grateful to my right hon. and learned Friend for giving way, because what he is saying is extremely valuable and important. Like him, I have done a lot of reading around the subject. Would my right hon. and learned Friend agree that one of the further historical proofs that the Home Secretary's analysis of the history is mistaken is that Lord Erskine, who became Lord Chancellor in 1806, took trial by jury as his motto?

In addition, long before the mid-19th century compromise that the Home Secretary mentions, Lord Camden said:

    Trial by Jury is indeed the foundation of our free constitution; take that away, and the whole fabric will soon moulder into dust. These are the sentiments of my youth—inculcated by precept, improved by experience, and warranted by example.

Does not that reinforce my right hon. and learned Friend's point?

The Chairman: Before the right hon. and learned Gentleman responds, it might be useful if I make it clear now that, throughout the Committee, I expect interventions to be brief. That intervention was not brief.

Sir Nicholas Lyell: I am extremely grateful. May I make a confession? I am slightly deaf, which is why I was passing notes to my hon. Friend the Member for Surrey Heath asking him to speak up. I would very much like to hear everything that is said.

I agree with my hon. Friend. Erskine is one of the greatest lawyers in our history. He defended Thomas Paine and his words are weighted in gold.

The Minister said that justice belongs to the whole people and that we should regard the Bill in that context. The hon. Member for Southwark, North and Bermondsey kindly referred to my few brief amendments, which I tabled largely as probing amendments. I am prepared to acknowledge that now. I hope that the Minister will argue, in relation to amendment No. 3, that the same rights to aid by solicitor and counsel will remain.

Ms Hazel Blears (Salford): If the right hon. and learned Gentleman believes, with respect to his amendment, that justice belongs to the whole—

The Chairman: Order. I shall stop this immediately. We are starting a debate that it is appropriate to conduct later. Members of the Committee have started debating an amendment, but we are presently debating the sittings motion.

Sir Nicholas Lyell: I wish to remain in order, Mr. Maxton. However, the sittings motion deals with the amount of time that we need for proper debate. I have no wish to detain the Committee unduly, but it is important for the fundamental principles of the Bill, which are not well understood in the country, to be rehearsed in Committee.

The Minister rightly said that justice should belong to the whole people. As Lord Devlin says, every jury is a little parliament, and my second amendment focuses on the issue of—

The Chairman: Order. The right hon. and learned Gentleman is straying into debate on his amendments once again. I repeat that we will debate amendments only when the sittings motion has been dealt with. I should be grateful if he would concentrate on the sittings motion, not his amendments. He may talk in general terms about the Bill, but not about his amendments.

Sir Nicholas Lyell: I follow your guidance, Mr. Maxton. I sought to refer to the amendments rather than debate them. I was trying to be helpful and focus the Committee on what is to come.

When the Minister affirmed that justice belongs to the whole people, he touched on the essence of trial by jury. Yet much of the debate so far has lost sight of that crucial point. The Home Secretary and the Government have seriously lost sight of it and few Government Members have spoken in support. When the right to choose trial by jury is removed, it removes not only the rights of citizens who stand accused—some of whom may be frequent offenders, but that should not deny them their rights—but the rights of the public at large, represented by a jury drawn at random, to set standards of justice in this country in all serious cases.

The Minister will know—he has seen the questions that I have raised since this Bill was first mooted last year—that it is difficult for people engaging in the debate to know how widespread either-way offences are. On the basis of reading the article the Home Secretary's article in The Times today, one would think that either-way offences were comparatively minor, but that is simply not true. Either-way offences—though they do not include murder and rape, which are indictable only—include extremely serious offences that are liable to long terms of imprisonment and are well suited to trial by jury only. Yet the right of citizens to judge those offences is being removed.

There is a real danger in incremental change in this area. The fact that criminal damage up to £2,000 can now be tried only in the magistrates courts is used as a foot-in-the-door argument. Under the Bill, that figure will rise to £5,000. Insidiously, magistrates will take back more and more cases under their control. They will be pressurised into doing so by the Government who will tell them that there is not enough money. The Government will organise the methods of defence so that that will happen. I do not want to quote at length, as I do not want to be called to order, but equally I want to get on the record perhaps the most important passage on the liberties of the subject that has been drawn together in the 20th century.

Mr. Edward Leigh (Gainsborough): Before my right hon. and learned Friend reads out that passage, would he reflect on the fact that a right that has existed for seven centuries, perhaps going back to Anglo Saxon times, will be dispatched by a Committee in the House of Commons sitting in a couple of weeks? Is that not a sign of our times?

Sir Nicholas Lyell: I fear that my hon. Friend may be right. It may be a sign of the times, but it is one that has been warned against many times over the last century. It was warned against by Lord Devlin himself. Lord Devlin described the jury as the lamp of freedom. I will not read it all but I am quoting from page 164 of his book on trial by jury. He opens as follows:

    Each jury is a little parliament. The jury sense is the parliamentary sense. I cannot see the one dying and the other surviving. The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen.

I pause there to emphasise those points. It is the right of 12 of our countrymen to set the standards of justice in this country that protect our liberty.

The hon. Member for Salford (Ms Blears) looks at me in uncomprehending amazement, her lips pursed as if I were some kind of crank. [Interruption.] She has just given a little look to confirm that. I have been reading from Lord Devlin. I do not know whether she has ever heard of him, but he was one of the most famous jurists of the 20th century. He was well known for standing up for freedom. One of my greatest pieces of pride is that he was the head of my chambers: his name was at the top of the list when mine was bottom as the most junior member. That is a piece of personal conceit by association on my part. His celebration as a jurist may be equalled, but it is not frequently surpassed.

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