Mr.
Hogg: I want to propose that clause 1 does not stand part
of the Bill. As I said, my familiarity with Committees is rusty in the
extreme but I think that it is in order for me to advance the arguments
why the clause should not stand part of the Bill.
The effect of clause 1 not
standing part of the Bill is that we would go back to the affirmative
resolution procedure, which is provided for in the Criminal Justice Act
2003. Mr. Bercow, you and I, and my hon. Friend the Member
for Beaconsfield were very interested in the passage of that Bill, as,
no doubt, was the Solicitor-General, who will remember the considerable
disagreement that arose between the Houses on what was then clause 42,
which became clause 43; namely, whether complicated fraud cases should
be held without a jury.
The House reached deadlock. At
that stage, there was a bargaining process, to which I was not party,
but it was reflected in the speeches made by the then Home Secretary
and the Government spokesman in the other place, Lady Scotland, when
they laid the affirmative resolution procedure. That procedure was part
ofa bargain, which comprised something like the Government not
trying to force their proposals forward; they would have very serious
discussions with all the interested parties to see whether it was
possible to formulate a lay assessor or special jury. It was plain that
undertakings were being given to both Houses that very serious attempts
would be made to agree a special procedure that did not involve
judge-alone trials. That was the basis on which the other place
accepted the Bill, and the basis on which it was
enacted.
Stephen
Hesford (Wirral, West) (Lab): The right hon. and learned
Gentleman will recall that on Second Reading I asked him if he would be
in favour if the Government had come forward with a different procedure
of judge and tribunal. He gave me an honest and straightforward answer:
no, he would not. In those circumstances, even if the discussions had
taken place, the right hon. and learned Gentleman’s position
would have been the same. What, therefore, is his
point?
Mr.
Hogg: The point is that Governments should keep their
word. It is as simple as that. Integrity is an important thing in
government. This Government have not got a reputation for integrity and
this is yet another example of why they have not. They entered into a
bargain; they told the House of Commons and the House of Lords what
that bargain was, and they are departing from it. It is unseemly and
dishonest and we should not be a party to that kind of
conduct. The question
is whether anybody has made a serious attempt to become involved with
the other
parties—
The
Chairman: Order. I must ask the right hon. and learned
Gentleman to withdraw the term
“dishonest”.
Mr.
Hogg: I certainly will.
It does nothing for the
reputation of politics that a government should give their pledged word
to the House of Commons and to the House of Lords and then not deliver
on their pledge. I will not say that it is dishonest, simply that it is
unseemly and disgraceful, and I hope that that will satisfy the decorum
of this place. There
is no doubt what the House of Lords was told, and no doubt what the
House of Commons was told. It is in Hansard; I have it
here—I have the reports in front of
me.
Mr.
Heath: Actually, three parties to that agreement, who are
sitting in the Committee at the moment, can confirm the
details.
Mr.
Hogg: I will sit down soon, Mr. Bercow, so that
the hon. Gentleman and my hon. Friend the Member for Beaconsfield can
confirm what I am saying. There has been no serious attempt to involve
anybody in finding alternative ways forward, which breaches the
commitment to this House. For that reason alone, we should go back to
the affirmative resolution procedure.
I have one other
point, Mr. Bercow—I know that we need to press on. We
are seeing this primary legislation simply in order to enable the
Government to use the Parliament Act. The right hon. and noble Lord
Hunt of Wirral made it absolutely plain that he and our friends would
not support this on an affirmative resolution. The Government know full
well that they will have difficulties with that resolution in another
place and are introducing primary legislation so that the Parliament
Act can be applied—and this change in the law, fundamental in
its character, can thus be forced through. I happen to think that that
is a disgrace.
Therefore there are two reasons
for opposing the motion, Mr Bercow. First, although the Government have
not been dishonest, they have departed from their pledged commitment to
both Houses. Secondly, I deeply disapprove of the Parliament Act
procedure.
Simon
Hughes: Of course, there will be agreement between the
three of us on these Benches, but the negotiations that led to the
insertion of the clause with the affirmative resolution in both Houses
was expressly done in order to require both Houses to be able to take
part in that agreement—and expressly to avoid a type of
Parliament Act procedure which in the end allows one House to prevail
over the other.
Mr.
Hogg: I am grateful to the hon. Gentleman for making that
point plain. Indeed, it was correct for him to make that point on the
Floor of the House. I have a copy of that speech before me. This is a
serious matter. It goes to the integrity of government, and I very much
hope that we do not give clause 1 a fair
passage.
Simon
Hughes: I, too, have some short but
similarly strongly felt views to express. This important matter is
controversial because it is a move away from the principle that, in
England and Wales, there should be a jury trial for all serious
offences. That is why, when the relevant legislation was going through
the House in 2003, it was important for the Government to get their
Bill, but it was also important for the Opposition parties—and
some Government Back Benchers—to ensure that the Bill was passed
without a proposal to get rid of jury trial in England and Wales for
this category of offences.
We had many robust debates in
both Houses, and the Lords rejected the Government’s proposal on
several occasions. Mr Bercow, you will remember that this has been
round the course before in earlier guises. Finally, with the clock
against us at the very end of the Session—literally, a day or
two before prorogation—there were extremely intensive
discussions. In the end, it was proposed to have a double lock on a
proposal to move to jury trial: the House of Commons and the House of
Lords both needed to agree it. That is contained in the section that
clause 1 proposes to amend by taking out the double lock.
Three things follow from that.
First, when discussing whether there was a way for the Government to
have their Bill in general but not this particular desired part, we
looked at various options and there was negotiation through day and
night to see what accommodation could be given. In the end, this was
found to be the most convenient outcome, so it was not an outcome that
did not ultimately command the agreement of both Houses.
Secondly, it was
clear—and the references are in Hansard, in exchanges between
the then Home Secretary, the right hon. Member for Sheffield,
Brightside (Mr. Blunkett) and myself—that there were
other conditions to be fulfilled, with the double lock and
negotiations. There is, to put it gently, debate on whether the
envisaged formal consultations ever happened; I do not want to
elaborate at this stage. In our view, they never happened in the way
that we expected or envisaged. There was a consultation of sorts, but
it was never sold at the time as what we had agreed. Indeed, we were
surprised to be then told that that had been the expected consultation.
In our view, therefore, the second part of the proposal was not
delivered at the time.
My third point is that there
have been discussions with the Attorney-General and the
Solicitor-General. I know that the hon. Member for Beaconsfield has had
such discussions on more than one occasion, as have I. The discussions
were not meaningless—alternatives were considered, but in the
end agreement was not possible and the block therefore remains. We
sought agreement irrespective of the formal consultation, but it was
not possible, and we are back where we
started.
Mr.
Hogg: The hon. Gentleman was party to the agreement and it
was anticipated that he would be party to the following discussions. He
will remember that the then Home Secretary
said: “I find
no difficulty tonight in offering the opportunity to the two main
Opposition parties working with the Attorney-General, the Serious Fraud
Office and the senior judiciary to take a further look at how that
might be taken forward.”—[Official Report, 20
November 2003; Vol. 413, c. 1027.]
Will the hon. Gentleman say whether he
has been involved in any detailed discussions with the Government in
fulfilment of that
pledge?
Simon
Hughes: The answer is that I can say expressly what
happened: there was never any formal consultation with either of the
Opposition parties, nor with the judiciary. There was a seminar in the
Lords to which certain people were invited, but that was all, and it
was never billed as such a consultation. There were then separate
bilateral conversations at the invitation of the
Attorney-General—both to the Conservative party and to me. So
conversations have occurred, though not quite as we expected. The
conclusion is the same, however: there was no
agreement. As the hon.
Member for Wirral, West said to the right hon. and learned Gentleman,
there was no presumption that alternatives did not exist—we
considered alternatives. For example, we examined the possibility of
smaller juries, and we considered juries with particular qualifications
or characteristics. Some of us, however, were unwilling to move from
the principle that there should be a jury trial, or a trial with
jurors, to decide questions of fact. The double lock is intended to
ensure that both Houses must be satisfied on the question of departing
from the principle of jury trials in fraud cases in England and Wales.
They have not been so satisfied. The right decision was made
previously, and that decision remains the right one now. The clause
should therefore be rejected because it would change a very clear
political, parliamentary and constitutional
agreement. Mr.
Grieve: I, too, was party to the
discussions at the conclusion of the passage of the Criminal Justice
Billin 2003—in particular during the stand-off
disagreement between the House of Lords and the House of Commons on
certain parts of that Bill. I have absolutely no doubt that the way in
which the matter was resolved—in particular the
introduction of the double-lock mechanism—was a direct
consequence of the impasse that had been reached between the positions
of the two Houses. There were numerous late night negotiations that
covered different topics. At the end of the day, virtually every aspect
had been satisfactorily resolved, except for the Government’s
desire to remove juries from certain fraud trials.
Let me make the position clear,
because I recollect the explicit words of my right hon. Friend the
Member for Haltemprice and Howden (David Davis) to the Home Secretary,
outside the Chamber. He said that the Opposition were prepared to
collapse the Criminal Justice Bill if the Government persisted in their
desire to retain section 43, because we felt extremely strongly about
it. It was in response to that that, after a time of meditation, the
Government proposed what I assumed at the time to be a face-saving
device to allow a graceful withdrawal; indeed it was almost explicitly
represented to us as that. That was the double-lock mechanism, and it
was designed to ensure that section 43 would not be implemented without
the consent of both Houses of
Parliament. 11.15
am I
entirely agree with my right hon. and learned Friend the Member for
Sleaford and North Hykeham that the removal of the double-lock
mechanism is undesirable because we do not wish to end up with a
Parliament Act position. The Government appeared to concede, as I
understood it at the time of those negotiations, that only the consent
of both Houses of Parliament would be satisfactory for the
implementation of the proposals. These proposals are almost identical
to the original ones, apart from the substitution of “High Court
Judge” for “Crown Court Judge”. I can think of no
good reason why the double-lock mechanism should not remain.
One of the startling aspects of
this Bill is that, according to clause 4, on commencement, it appears
that the Act is to come into force at the end of a period of two months
beginning with the day on which it is passed. As I highlighted on
Second Reading, even if this Bill were to reach the statute book, there
would be some procedural aspects that needed to be resolved by way of
new court regulations before it could be implemented. I am startled to
note that it is blithely assumed that eight weeks after this Bill is
passed by the
Houses of Parliament the first applications can be made to the Lord
Chief Justice. The procedure exists for conducting such trials without
further difficulty. As we
highlighted on Second Reading, there will be procedural issues about
how to conduct a trial without a jury where the judge has to make
rulings on law, possibly on public interest immunity material, and at
the same time not be influenced in the decisions that he makes based on
the facts. I assume that, if this unfortunate Bill were to be
implemented, at some point the Government would tell us what they
propose. There are, therefore, powerful reasons for having a
commencement order. As the commencement order that we agreed back in
2003 was a resolution of both Houses of Parliament, it seems to me that
it is a very good idea to keep that in.
Mr.
Heath: As I did not have the opportunity to do so on my
earlier interventions, may I say what a pleasure it is to serve under
your chairmanship, Mr.
Bercow? The right hon.
and learned Member for Sleaford and North Hykeham is absolutely right
when he says that this is a matter of integrity. It is the integrity of
the Government that is in question because I, too, was a party to the
discussions that were held with the Home Secretary in his room behind
the Speaker’s Chair very late into the night when we were
discussing the Criminal Justice Bill, as it then was.
It was
absolutely clear to all who were involved that the proposal was
supposed to have a particular effect, the double lock. It was
absolutely clear that the Government were, in good faith, to undertake
discussions with the Opposition parties to see if there was a consensus
view on dealing with complex fraud cases. It is equally clear that, by
virtue of this clause, the Government are going back on the double-lock
mechanism and, secondly, that no such meaningful consultation between
all parties took place. Instead we had this absurd seminar in which the
Attorney-General in another place invited a few of his chums round to
talk about jury trial in an amorphous and unstructured way. I am not
sure about the Conservative Front Bench, but members of this Front
Bench who speak for the Liberal Democrats on home affairs, on
constitutional affairs or in respect of the Law Officers in our House
were at no time asked to attend, invited to attend or even told of the
existence of this
seminar.
Mr.
Grieve: I did not touch on the discussions in my own
remarks but I am on the record on many occasions as saying that we did
not consider the seminar to be the “discussions and
negotiations” that the Government had offered, and we were
totally unaware that that was in fact the only offering that was going
to be made.
Mr.
Heath: I am grateful to the hon. Gentleman, who confirms
my view. We are left with a rather unpleasant taste in the mouth from
the whole episode. The
one area in which the Government have been true to their word has been
the undertaking that they gave a short time ago in another place not to
use the order-making process that was outlined in the 2003 Act to
proceed with the matter, but to bring it back as primary legislation.
That is why the Bill is before us. For that, at least, I applaud them.
However, many of us feel that it is brought before us in this form
thanks not
to altruism on the part of the Government but because they know
perfectly well that they would not receive the consent of the other
place to secondary legislation. In using the primary legislative
route—particularly through a short Bill such as the one
presented to us today—they accept that they will not get the
measure through in this Session, but open up the opportunity of using
the Parliament Acts to force it through against the strong arguments
that will, I suspect, be adduced in another
place. We
are left with what I think is a rather underhand procedure to achieve
an objective that the Government undertook not to try to achieve by
those means. That is a heavy charge to lay against the Government. The
other matter that is pertinent, given that we are considering clause
stand part, is the timeliness of the proposals in any case. I listened
carefully to all the remarks made on Second Reading. At no time was any
cogent argument put forward that circumstances had changed since our
discussions on the Criminal Justice Bill in 2003.
In fact, if there were
arguments of timeliness, they would be in the reverse direction,
because we have had changes in procedure and changes to the definition
of fraud, by virtue of the Fraud Act 2006, which we dealt with in the
last Session. We have had the interesting experience of observing from
afar very significant fraud trials under another
jurisdiction—the common law jurisdiction of the United States of
America, which has retained jury trial for complex fraud and appears to
have no difficulty whatsoever in securing convictions on that basis. We
are still, therefore, at a loss to know why the Government persist in
the view that there is a difficulty that can be solved only by the
abolition of an ancient right of the people of this country in respect
of complex fraud. For
all those reasons, we would be absolutely right not to allow clause 1
to stand part of the Bill. In fact, if it were possible for the
Committee to vote out every single clause of the Bill and to ask you,
Mr. Bercow, to report that the Bill had been deleted in
Committee, I would feel that it had done its work
well.
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