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BILL PRESENTED
UK Borders
Secretary John Reid, supported by the Prime Minister, Mr. Secretary Prescott, Mr. Chancellor of the Exchequer, Mr. Secretary Darling, Ms Harriet Harman and Mr. Liam Byrne, presented a Bill to make provision about immigration and asylum; and for connected purposes: And the same was read the First time; and ordered to be read a Second time tomorrow, and to be printed. Explanatory notes to be printed [Bill 53].
Orders of the Day
Fraud (Trials without a Jury) Bill
Not amended in the Public Bill Committee, considered.
[Relevant document: Second Report from the Joint Committee on Human Rights, Session 2006-07, Legislative Scrutiny: First Progress Report, HC 263.]
‘At the end of section 43 of the Criminal Justice Act 2003 (c. 44) insert—
“(8) Before the commencement of paragraph 18 of Schedule 3 so far as it inserts section 51B of the Crime and Disorder Act 1998, the reference to that section in subsection (1)(b) is to have effect as if it were a reference to section 4 of the Criminal Justice Act 1987.”.’.— [Joan Ryan.]
Brought up, and read the First time.
12.31 pm
The Parliamentary Under-Secretary of State for the Home Department (Joan Ryan): I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss Government amendment No. 5.
Joan Ryan: Owing to the structure of the Bill, what is really a minor transitional amendment must take the shape of a new clause.
Section 43 of the Criminal Justice Act 2003 applies to cases in which notice has been given under section 51B of the Crime and Disorder Act 1998. The notice procedure under section 51B will replace the existing transfer procedure under section 4 of the Criminal Justice Act 1987 when schedule 3 to the Criminal Justice Act 2003, which inserted section 51B, is brought into force. However, the assumption that by the time section 43 was implemented schedule 3 would be in force may not necessarily be right. The purpose of the new clause is to enable section 43 to operate in cases dealt with under the current law by adding a transitional reference to section 4 of the 1987 Act.
Mr. Dominic Grieve (Beaconsfield) (Con): I do not intend to stand in the Minister’s way on new clause 1, but it is somewhat remarkable that a schedule to the Criminal Justice Act 2003 has still not been implemented some three years after being passed by the House. Can the Minister explain why we are having to jump around in this fashion and why the Government pass so much legislation which, sometimes, is never implemented at all?
Joan Ryan:
It was announced last year that the implementation of the procedural reforms in schedule 3 to the Criminal Justice Act 2003 would be reviewed alongside other provisions in the Act. The Government are committed to ensuring that cases are dealt with as efficiently as possible in the appropriate court.
Discussions are continuing about how best to achieve that, and an announcement will be made in due course.
I trust that the House will support the new clause and amendment.
Mr. Grieve: I am grateful to the Minister for her explanation in response to my intervention, but I cannot let the matter pass without commenting briefly on the extraordinary situation that we now face in regard to Home Office criminal justice legislation.
I had the pleasure of serving on the Committee considering the Bill that became the 2003 Act—a flagship Bill that was supposed to define the Government’s approach to criminal justice for a long time to come. It was suggested to us that the Bill was well researched, that all the necessary consultations had taken place, that the judiciary had been consulted on how aspects of it would be implemented, and that the Government knew what they were doing.
I have to say very gently to the Minister that, to my mind, the fact that three years after the passage of that Bill the Government have apparently not succeeded in getting their consultation together highlights the absurd situation in which the House finds itself over and over again with criminal justice Bills. I believe we have had nearly 60 pieces of Home Office legislation since 1997. The judiciary complain that the law has become so opaque and incomprehensible and there are so many rules and regulations that they have difficulty in keeping pace with what is happening. We have seen many examples of the repeal of Government legislation before the relevant schedule has even been implemented, and this appears to me to be exactly such an example.
Keith Vaz (Leicester, East) (Lab): Has the hon. Gentleman had a chance to look at the evidence of Lord Justice Potter, the president of the Family Division and Master of the Rolls, to the Constitutional Affairs Committee? It is not just a question of legislation; it is a question of proposals such as the Carter proposals. The judges themselves are begging the Government, “Please, no more, because we need to see the implications of what the Government are doing.”
Mr. Grieve: The right hon. Gentleman is absolutely right. I have read the evidence, and it is compelling. The judiciary and the court system have been constantly overloaded, and that has its own knock-on consequences. However, I do not want to stray too far from the new clause.
I hope that, if the Minister chooses to respond, she will explain in detail why it has proved so difficult to implement the procedure under section 51B of the Crime and Disorder Act 1998—1998!—supposedly brought into force by schedule 3 to the Criminal Justice Act 2003 to replace section 4 of the Criminal Justice Act 1987. I have to say that anyone listening to our proceedings on the first matter arising from this important Bill would be wholly mystified as to how the Government have got themselves into this particular tangle.
Simon Hughes (North Southwark and Bermondsey) (LD): I want to make three points similar to the point made by the hon. Member for Beaconsfield (Mr. Grieve), relating to how we deal with legislation in this place.
As the hon. Gentleman said, we have got into the habit of legislating before we have seen the impact of earlier legislation—indeed almost before that earlier legislation has been implemented in full. Is there not a procedure that would allow the Government to tell us, when legislation goes through the House and particularly when it goes into Committee, what they expect to be the earliest and latest dates of implementation? Unless that can be done, we shall continue to experience terrible practical problems when one Bill is overtaken by another. Moreover, we shall not be doing our job in making the process clear to the public and the practitioners.
Back Benchers and Opposition spokespeople occasionally ask Ministers when they expect to implement legislation. Following a commencement date order the Government offer a commencement date, but we are often not told the latest date by which the Government expect to be able to deliver the legislation.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Should we not amend our practice to provide in primary statute that if an implementing order is not made before a given date, the proposed change should not be made?
Simon Hughes: I support that entirely. I also support the provision for a sunset mechanism enabling such proposals to lapse if the Government do not deliver.
There is a second thing that we still do not do, and ought to do. The other day I spoke at an event celebrating the 50th anniversary of the organisation Justice, along with the hon. Member for Beaconsfield and the Attorney-General. The Attorney-General said that he and the Government support the objective of codifying the criminal law. We do, too—as, I think, does the Conservative party. The best way to start to achieve that objective is to make sure that as proposed legislation comes before us in Home Office business—it will mainly come before us in Home Office business, but it will also occasionally come across Law Officers’ desks—we update wider legislation so that we end up with a consolidated Act, as it were, on the subject in question. Therefore, in the context of this Bill on jury trial, we should end up not with a Bill that is slim and appealing—as this one is—but with an updated version of either the Fraud Act 2006 or the Criminal Justice Act 2003. We would then have only one piece of legislation, and therefore when we start to put proposed legislation in 2007 together with legislation enacted in 1998 or 2003 or whenever, what has not been addressed that should have been addressed will become obvious to us, and many more issues will be dealt with.
I also want to offer an encouragement—it is not a proposal because it refers to something that has been achieved. A new parliamentary process has belatedly been adopted which did not apply to this Bill: before the merits of the wording of legislation are deliberated in Committee, there is the ability to take evidence on it. Although the Bill missed the deadline, we have now agreed to that process, so I am not criticising the Government. I hope that that process will be valuable, because I hope that the people who give evidence to us about the practical implications of Bills will be the sort who are likely to say to us, for example, “You do
realise, don’t you, that the measures to which this part of the Bill refers have not yet been implemented?” Therefore we as legislators, as well as the Government and civil servants, will be alerted to problems such as that which the new clause addresses.
I do not object to the new clause. It is more than a technical amendment, but it is not the most substantive part of the Bill by any means—we will come to that shortly. However, it raises questions to do with the process of government and, to be blunt, as my party’s Front Benchers have often said—as have Conservative Front Benchers—if we had legislated less and administered better in the past 10 years, criminal justice and the Home Office would not have such an unsettled or declining reputation. That is not in anybody’s interests; it is not in the country’s interests that criminal justice and the Home Office do not have a good reputation.
Joan Ryan: Let me say to the hon. Member for Beaconsfield (Mr. Grieve) that, as I have explained, new clause 1 is merely a simple transitional provision to cater for the possibility that section 43 of the Criminal Justice Act 2003, as amended by the Bill, might come into force before new section 51B of the Crime and Disorder Act 1998, which is referred to in section 43(1)(b). Until section 51B is in force, reference will be made to section 4 of the Criminal Justice Act 1987. I do not propose to go into the details of that Act, because that legislation is not before us and I fear to stray into areas that are not the subject of today’s debate. I have assured the hon. Gentleman—and I repeat that assurance—that the Government are committed to ensuring that cases are dealt with as efficiently as possible, and discussions are continuing about how best to achieve that. We aim to make an announcement in due course. I am assured that the two sections are almost identical. The differences are only in terminology and procedure, and are not relevant to the Bill. Both sections are about the prosecution giving notice of transfer in serious and complex fraud cases.
12.45 pm
The hon. Member for North Southwark and Bermondsey (Simon Hughes) makes interesting points about a wider debate that is worth having. If Members are concerned about delay, they might be interested to learn that in Committee it was proposed that we delay implementation by two years, and I understand that an amendment was tabled for today’s debate—although it has not been selected—suggesting that we delay implementation by four years. Therefore, Opposition Members seem to have adopted a slightly contradictory position in that, although they are concerned about delay, some of them have also proposed delay.
Clause read a Second time, and added to the Bill.
‘In section 43 of the Criminal Justice Act 2003 (c. 44), for subsection (5) substitute—
“(5) The condition is the complexity of the trial or the length of the trial (or both) would be likely to make the trial so
burdensome to the members of a jury hearing the trial that the interests of justice required that the trial should be conducted without a jury.”.’.— [Simon Hughes.]
Brought up, and read the First time.
Simon Hughes: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss new clause 5— Conditions to be satisfied (No. 2)—
‘In section 43 of the Criminal Justice Act 2003 (c. 44), for subsection (5) substitute—
“(5) The condition is that by reason of the complexity or length of the trial, or both, and their likely impact on the safety of the verdict, the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.”.’.
Simon Hughes: As you indicated, Mr. Deputy Speaker, I will also speak to new clause 5, which, with your agreement, I shall seek leave to put to a vote at the end of the debate, rather than new clause 4.
The new clauses would amend the Criminal Justice Act 2003, which was the last substantive piece of legislation that this House passed in relation to the issues under discussion. In the principal legislation, the House debated whether there might be exceptions to the rule that serious criminal cases should have a jury trial. Parliament agreed—this has been enacted—that in certain cases that can now happen. The most obvious case that has been agreed is where there has been tampering with the jury. There is a procedure that allows an application for a non-jury trial in that exceptional circumstance. It was acknowledged that that should be allowed.
There was another Government proposition—which had been raised and debated before—that there should be a trial without a jury in serious fraud cases. As Members will recall, that was extremely controversial. Because it was controversial and was raised at the end of the parliamentary Session, it put at risk the Government’s ability to secure the agreement of both Houses of Parliament to that Criminal Justice Bill. The outcome of the ensuing negotiations between the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), and Baroness Scotland and Opposition spokespeople in both Houses was that that part of the Bill would be implemented only if an affirmative order were subsequently passed by both Houses. Effectively, it was put on hold except in cases when Parliament agrees to its implementation. Since then, the Government have sought on one occasion to implement it by using that process. They managed to get the order passed in this House, but it was made clear to them that it was unlikely that the order would be passed in the House of Lords, so they did not proceed down that route. The Bill provides a mechanism for returning to that issue, but by way of a new and substantive piece of primary legislation.
One of the elements of that Criminal Justice Act 2003 regime—were it implemented—was to impose necessary preconditions before a trial without a jury could take place in serious fraud cases. Section 43(5) of that Act states:
“The condition is that the complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome to
the members of a jury hearing the trial that the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.”
The key passage is from “so burdensome” onward. New clause 4, which was tabled by my hon. Friend the Member for Somerton and Frome (Mr. Heath) and I on behalf of the Liberal Democrats, and new clause 5, tabled on a cross-party basis by Conservatives and Liberal Democrats, are two changes that would toughen up those conditions.
As the Solicitor-General and the Minister well know, my party and I—and, as I understand it, the Conservative party—remain clearly of the view that we will not support the Bill. That is our clear and unchanged position, which we adopted in 1998 and maintained in 2003, 2005 and throughout 2006. We continue to defend jury trial in 2007, because it is the best form of trial for serious criminal cases.
Mr. Hogg: I am very glad to hear that the hon. Gentleman will ask his right hon. and hon. Friends to vote in favour of his new clauses, but will he forgive my saying that I do hope that those of them who represent Scottish constituencies will not be voting, because the Bill refers and relates exclusively to England, Wales and Northern Ireland?
Simon Hughes: The right hon. and learned Gentleman is perfectly entitled to ask that, but he is being slightly mischievous. Let me deal with his point briefly. My right hon. and hon. Friends from Scotland who are here will indeed vote because, so far, the constitutional position is that all Members can vote on all legislation. Obviously, many matters have been devolved, and we supported that, but we still vote on legislation relevant to Scotland, Northern Ireland and Wales, Mr. Deputy Speaker, as you well know. A great deal of Northern Ireland legislation is considered in the House, and in fact much more Welsh than Scottish legislation is considered here.
We support the view that there ought to be further and better devolution to Scotland, Wales and Northern Ireland—and to England—and we want to persuade other parties in the House, particularly the Government, that we should have proper devolution. Under such a settlement, it might well be the case that the outcome that the right hon. and learned Gentleman encourages me to persuade my colleagues to bring about might happen. However, that will not happen today. All my colleagues from all three parts of Great Britain will vote, because they are as committed as I am to retaining jury trial for all serious cases in England. I should say in passing that people from Scotland and Wales often appear before the courts in England and Wales—more from Scotland, by definition—and they might well hold the same strong views in that regard. The Scots are wonderful people, but they are not less likely to be defendants before the courts in England and Wales. I will stop there, before I get into trouble.
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