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Mr. Grieve: If my hon. Friend reads amendment No. 68, which is linked to amendment No. 67, he will note that it says:

"This subsection does not apply to the amendment in paragraph 60 of Schedule 10 (which accordingly extends to England and Wales only)".

I hope that that answers his question.

We want the Government to give us a proper explanation of why the procedure should be changed. I am wholly unconvinced and do not think that we are discussing an exercise in semantics. Important decisions, such as a person's fitness to plead, should be determined in our legal system by a jury, especially if that is a matter of dispute. Unless the Minister can persuade me to the contrary, I shall press the amendment to a Division.

Mr. Hogg: I support the observations made by my hon. Friend the Member for Beaconsfield (Mr. Grieve). It is important to bear it in mind that a disability applicable to clause 22 has a fairly wide meaning. Insanity is covered, of course, but so are deafness and the fact that someone is dumb. The provision extends to circumstances in which it is thought that a defendant is incapable of giving instructions to his or her legal team. One also needs to keep it in mind that juries have to address similar issues in many circumstances that are not unlike what we are contemplating. For example, if the question of diminished responsibility is raised in cases of alleged murder, juries have to address technical questions not unlike those that arise in cases of an unfitness plea. That is also true when the defence of insanity is raised because that, too, has to be addressed by a jury.

6 pm

I refer my hon. Friend to a further range of cases in which a defendant refuses or declines to give evidence. It can then be asserted that there are good reasons for that, and that person's failure to give evidence should not be held against him by reason of those good reasons. In that class of case, the jury often has to determine whether the reasons were good, which often relates to the mental state of the defendant. So the jury already has to consider technical questions in many cases.

Indeed, the Government cannot say that a jury is incapable of addressing those questions because subsection (5) of clause 22 preserves the role of the jury in those cases when the question of fitness to plead arises after arraignment. In those cases, the Government have said in terms that the question is to be determined by the trial jury. So just pause for a moment: it cannot be asserted that a jury is incapable of dealing with the question because the Government say that it is to be dealt with by the jury in post-arraignment cases, and in the other cases those questions have to be determined by a jury, so why the change, given that it cannot be the incompetence of a jury to determine the issue?

The hon. and learned Member for Redcar (Vera Baird) may have identified both the cause and the solution. I am prepared to accept that there is agreement
 
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in the great majority of cases between the Crown and the defence teams on unfitness to plead. Incidentally, that does not conclude the issue because a judge, for example, might decide that the Crown and the defence teams are wrong. I have encountered—although I do not think that I ever personally appeared in—circumstances in which that has arisen.

The hon. and learned Lady's solution is attractive, but there probably should be a discretion for the judge to order a jury trial if he thinks that the consensus between the Crown and defence is unsound or needs to be tested. Although the Redcar solution has huge attractions, it should be underpinned by a discretion on the part of the judge to order a jury trial on that issue of fitness to plead if for other reasons he thinks that that is appropriate.

My hon. Friend the Member for Beaconsfield asked why we are going down this road. In part, it may be because it will save money. That is not an unworthy motive and is addressed by the hon. and learned Member for Redcar, but I am concerned that we should not diminish jury trials arbitrarily. My hon. Friend the Member for Beaconsfield said that the jury trial is under attack by the Government. Indeed, it is even under attack within the Bill, at clause 17, which we debated. I do not want to attack it.

It is also important to keep in mind the point that I made to my hon. Friend. Under clause 24, if a person is found to be under a disability—according to the Government's position that will be decided by the trial judge—it falls to the court in appropriate circumstances to impose various orders in respect of the defendant, including hospital orders, supervision orders and treatment orders. If the Government's position remains unchanged, the question of fitness to plead will be determined by the judge alone. That may lead to the introduction of a number of orders, which can be used to deprive a defendant of his or her liberty, and I simply do not like that.

Mr. Llwyd: To reinforce the powerful and valuable point that the right hon. and learned Gentleman is making, some of those orders can be made for an indeterminate period.

Mr. Hogg: Indeed. If you will forgive me, Madam Deputy Speaker, I shall pursue that. I was Under-Secretary at the Home Office very many years ago, and was involved in decisions about when individuals detained in special hospitals should be released. I therefore know that it is extremely difficult to determine whether someone held in a special hospital is sufficiently safe to be allowed back into the community. I therefore echo the point made by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd)—the power of a judge sitting alone to impose a sentence or order following his adjudication about fitness to stand trial could result in a patient being held for a long time in a special hospital, because people are sensitive about the risk of discharging them.

Vera Baird: I am flattered that the right hon. and learned Gentleman finds the Redcar solution attractive, but he is going slightly over the top. Two psychiatrists on opposite sides in a case may agree that someone is not fit to plead. Indeed, in cases that I have handled, four or
 
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even more psychiatrists have reached such an agreement. In those circumstances, why would we need a jury? I urge the right hon. and learned Gentleman to consider that somebody in the community can be sectioned by two doctors—we do not have a jury to rubber-stamp that decision.

Mr. Hogg: That is a perfectly fair point, but may I mention the name "Saunders" to the hon. and learned Lady? She will remember that there was extensive agreement that Mr. Saunders was suffering from advancing dementia. As I recall, the Court of Appeal decided that his illness was so advanced that he should not be held in custody. I believe that that gentleman has now made a remarkable recovery. Sometimes, the experts can get it wrong, and in cases where the trial judge smells a rat he may think that the issue should be determined by a jury.

Mr. Boswell: My right hon. and learned Friend will know that I am a lay person, so I defer to his legal expertise in this matter. I do not wish make any claims of my own, but the issue of detention and process is important. He will have studied the recent law report on the Bournewood judgment in the European Court of Human Rights. The court, in its wisdom, found both the Government and British legal procedures defective, as people were held without their consent, which they were not capable of giving, and were effectively detained without due process. Is it not incumbent on us, therefore, to get the process absolutely right?

Mr. Hogg: I am sure that we need to do so but, to address the point made by the hon. and learned Member for Redcar, in many cases, perhaps even the great majority, there is not any dispute about the extent of the disability. In such cases, I accept that a jury should not be empanelled. I do not, however, accept that that conclusion is appropriate when there is a serious dispute. In any event, there should be discretion, even when the experts on both sides are in agreement, to hold a jury trial and have a proper adjudication if the judge thinks fit. If I continue speaking, Madam Deputy Speaker, I shall repeat my argument, so I shall conclude.

Mr. Greg Knight: On a point of order, Madam Deputy Speaker. The House faces a dilemma. The more we listen to the debate, the clearer it becomes that the mood of the House is in sympathy with the amendment suggested by the hon. and learned Member for Redcar (Vera Baird), which is not before us. Would you be prepared to accept a manuscript amendment on the basis of the amendment suggested by the hon. and learned Lady?

Madam Deputy Speaker: I note what the right hon. Gentleman says. However, the debate is timed and there are just 20 minutes to go before the debate reaches its conclusion.

Mr. Heath: What a shame it is that we have such a restrictive timetable that we are not able properly to debate matters before us in this important Bill. It illustrates the difficulties that we face. When the point of
 
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order was raised, I had high hopes that there might be a way of considering the sensible suggestion from the hon. and learned Member for Redcar (Vera Baird). I noted carefully the Minister's response to it, which seemed positive, judging from his body language. He was writing away. It is not unknown for Ministers to make important announcements very late in the proceedings on a Bill. Some of us might have considered this a perfect opportunity for him to announce that he was proposing to make an amendment to the Bill—one which, for once, many of us would find entirely suitable and proper.

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