The
Solicitor-General: The clause is important. It removes the
obligation for there to be an affirmative resolution before
commencement and paves the way for the implementation of section 43 of
the Criminal Justice Act 2003. That allows for the prosecution in
serious and complex fraud cases of persons before a judge sitting alone
without a jury. I
have listened with care to the debate. I shall deal first with the
procedural point raised by the hon. Member for Beaconsfield, then look
at some of the points that were raised about the consultation before
saying something about the substance.
Clause 4 will commence the
Bill, rather than implement section 43 of the 2003 Act. It will amend
that section, but there will need to be a commencement order to bring
the section into force. I hope that that deals with the hon.
Gentleman’s procedural question and his concerns about
regulations and so
on. It was never
intended that there should be a formal consultation such as those on
White Papers, Green Papers and legislation. Our view was always that
the Bill would provide an opportunity for representatives of the
Opposition to meet Ministers to discuss whether
there was room for agreement on the way forward on non-jury trials. To
facilitate that, the Attorney-General organised a seminar, which was
held in January 2005 and attended by spokespersons from the Opposition.
The hon. Member for Somerton and Frome said that the Liberal Democrats
were not in attendance. Well, they were invited, and Lord Thomas of
Gresford attended. I understand that he is a Liberal Democrat
spokesman. Mr.
Heath: Will the Solicitor-General give
way?
The
Solicitor-General: I may have misunderstood the hon.
Gentleman and, if so, I shall allow him to correct
me.
Mr.
Heath: I am grateful to the Solicitor-General. He said
that it was never understood that there would be formal consultation.
By whom? He was not party to the agreement, but those of us who were
understood clearly that there would be formal
consultation. Lord
Thomas of Gresford was invited, as a senior lawyer in the House of
Lords, to a seminar organised by the Attorney-General. That is very
different from inviting the Liberal Democrat Front-Bench spokespeople
in the Commons to a formal consultation, on which we had a clear
undertaking from the Government. Does he not understand
that?
The
Solicitor-General: I simply do not agree with the hon.
Gentleman. I understand his point perfectly, but over the years there
have been repeated opportunities for broad consultation on the Auld
report, the Roskill report and so on. The matter has been going on for
decades, never mind years. Professionals, the public and others have
had ample opportunity to express their views over many years. The
Government’s intention, which was always made clear, was that
there would be an opportunity for Front Benchers of the main parties to
come together and find out whether there was room for agreement. A
seminar was held, to which not only Front Benchers were
invited—
The
Solicitor-General: The hon. Gentleman keeps saying that
his Front Benchers were not invited. My understanding is that they
were.
Simon
Hughes: It is nonsense to debate matters of fact but, just
for the record, as far as I am aware no invitation came personally to
my hon. Friend the Member for Somerton and Frome or myself. Lord
Thomas, who was a spokesman in the Lords at the time, was invited, and
he accepted and went along. As far as I am aware, the invitation to
something billed as the consultation, following discussions with the
Home Secretary the previous autumn, was not extended to Front Benchers
in both
Houses.
The
Solicitor-General: My understanding was that the hon.
Gentleman had been invited, but he tells me that he was not. I shall
ask my officials to check whether an invitation went to
him—perhaps he did not receive it. I understand that the hon.
Member for Beaconsfield accepts that he was
invited.
Mr.
Grieve: I was certainly invited, but I did not understand
from the invitation that it was the formal consultation procedure that
the Government had promised. I thought that I was being invited to a
seminar to consider the issue. The fact that it was the one and only
consultation was not spelt
out. 11.30
am
The
Solicitor-General: I do not accept that a formal
consultation, giving yet another opportunity for public discussion, was
either necessary or promised. I am not sure what on earth the hon.
Gentleman expected the seminar to be—it was billed clearly as a
discussion on serious fraud trials. Its substance dealt with the
options available, such as a single judge, a judge with assessors and
various other alternatives in order to resolve what everyone accepts, I
think, is an issue—the length and manageability of serious and
complex fraud
cases. The seminar was
held and views were expressed, not only by Front Benchers from the two
main Opposition parties—they were representatives from the
Lords—but by others who were present. Those were fed into the
Government’s consideration of how to proceed. We took the view
that it was unlikely that the other place would pass an order in
relation to section 43. Following further thought, we decided that it
would be better to amend the 2003 Act.
I listened to the rather
agitated hyperbole—if I may call it that—from the right
hon. and learned Member for Sleaford and North Hykeham about how we
have proceeded. I think that for the Government to bring forward new
primary legislation, which will be considered fully in this House and
another place, is a perfectly honourable and proper way to proceed.
Hon. Members will have the opportunity to express their views, as they
have done and will continue to do, in the course of our
discussions. I shall
move from process to substance.
Simon
Hughes: For the record, I have seen a note on the seminar.
The Solicitor-General said that the Government formed the view after
the seminar that the House of Lords would not agree to trials without
jury. In the seminar, was there a unanimous, or significant majority
view about an acceptable
alternative?
The
Solicitor-General: The view that we needed to bring
forward primary legislation was not formulated immediately after the
seminar. The hon. Gentleman might recall that we debated the matter in
the Chamber in considering an order. We decided that it was unlikely
that it would get through the other place and, therefore, brought
forward primary
legislation. On
the substance of the hon. Gentleman’s point, at the end of the
seminar, it was clear that we did not have consensus. However, most
people who spoke thought that if we moved to non-jury trials, a single
judge would be the best approach, although there was not a vote. Other
people were in favour of a judge with assessors or small juries.
Different views were expressed. However, most people who spoke
indicated that if we were to move to non-jury trials, a single judge
would be better.
Mr.
Hogg: I am listening to the Solicitor-General carefully.
My impression is that the majority of those who spoke were not in
favour of departing from jury trials.
The
Solicitor-General: I was not at the seminar, so I regret
that I cannot tell the right hon. and learned Gentleman whether his
view is correct. I understand that there was substantial support during
the seminar for both points of view. There were those who took the view
that jury trials should continue, even in serious and complex fraud
cases, and those who thought that the system should change. As far as I
am aware, no vote was taken, so I cannot deal with the point that he
makes. I
shall deal now with the clause. It is important, because it repeals the
requirement for an affirmative resolution, which means that section 43
will be amended. As a result, we will be able to bring about non-jury
trials, following an appropriate commencement order. Trial without
jury, under section 43, will relieve the excessive burden on jurors,
who have their lives disrupted for months on end. At the same time, the
provision will allow the full criminality of the most serious cases to
be laid out, to ensure that defendants face charges that adequately
reflect the totality of the accusations against them. Such cases will
be dealt with more efficiently, because the judge sitting alone will be
able to read evidence that otherwise would have to be presented orally,
at length, to a jury. The need for indictments to be severed or
simplified would be lessened.
Robert
Neill (Bromley and Chislehurst) (Con): It is a
pleasure to serve under your chairmanship, Mr.
Bercow.
Has the
Solicitor-General had discussions with the Lord Chief Justice and the
presiding judges of the circuit about the extra personnel that would be
required by the Queen’s bench division, to make available
sufficient High Court judges to try the cases? Has he had discussions
about the flexibility that will be required by HM Courts Service in
listing to accommodate cases that are to be tried alone? Does he have
any view on what support for these proposals exists among the
judiciary?
The
Solicitor-General: The judiciary will no doubt express its
own views, but I think that I can say that there is support among many
senior judges. No doubt, other judges take a different view. As in any
group of people, there will be differing views. We know, from Lord
Justice Auld’s report and the views expressed on a number of
occasions by members of the judiciary, that there are those who support
the proposals. The Lord Chief Justice will have to look in due course
at the availability of High Court judges. We can discuss that matter
when we reach that point of the Bill. To answer the point, there are
differing views on the bench; of that I am sure. There is support for
the change, as well as opposition to it.
It is
important that the judge should be able fully to look at all the
evidence. It is not our intention that the change to section 43 should
be the thin end of the wedge of an attack on jury trials, as some have
suggested. The provision will affect only a tiny number of
exceptionally long and complex serious fraud cases. The Government
have no plan to go further than is already provided for in section 43.
The other provisions, in part 7 of the 2003 Act, have, by and large,
already been implemented. Section 43 seeks to deal with a specific,
fundamental problem in serious and complex fraud cases, namely, the
combination of an enormously long trial, which imposes an intolerable
burden on jurors, and a failure to achieve justice. We therefore need
to move forward with this
change. Mr.
Hogg: I want to make a point in response to the
Solicitor-General. I make no complaint that he referred to my comments
as “agitated hyperbole”. Agitated? Perhaps they were,
because we are talking about a scandalous matter. Hyperbole? I think
not, because I shall demonstrate that there has been a clear departure
from plighted
commitments. First,
let us examine the nature of the seminar which, surprisingly, the
Solicitor-General did not attend. [Interruption.] If the hon.
and learned Member for North Warwickshire was not Solicitor-General at
the time, I withdraw that
remark.
The
Solicitor-General: I would have attended the seminar if I
had been in a position to do so, but I was not Solicitor-General at the
time.
Mr.
Hogg: I stand corrected and I am prepared to acknowledge
that I am at fault. However, we know the nature of the seminar as
described by the Solicitor-General: it was a gathering at which a
number of people were not present. I believe that the hon. Members for
North Southwark and Bermondsey and for Somerton and Frome were invited
but I understand that my hon. Friend the Member for Beaconsfield was
not aware of it. It constituted the formal consideration promised by
the then Home Secretary, who
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. We are able to look at that in relation to the
SFO in a way that Roskill could not. In that light, I will not press
for implementation of the clause.”—[Official
Report, 20 November 2003; Vol. 413, c. 1027.]
What was promised on
the Floor of the House was a comprehensive consultation involving the
two main Opposition parties and the other responsible stakeholders,
which is the phrase now used. What has been described to us clearly
does not fall within that
description.
Mr.
Grieve: I was unable to attend the seminar because I was
unaware of its nature when I received the invitation and I had a prior
commitment. My noble Friend Lord Kingsland attended, but at the end of
the seminar he still did not appreciate that it was the formal
consultation that the Government had
offered.
Mr.
Hogg: I have the greatest respect for my noble Friend Lord
Kingsland and if he did not understand that it was the formal seminar
promised by the Home Secretary of the day, one can be sure that no one
else did either. What is certain is that the consultation promised by
that Home Secretary was not delivered.
Simon
Hughes: I want to make an obvious point. The present
Solicitor-General and the Attorney-General occasionally telephone and
ask me to meet them about something. Discussions take place between the
offices, convenient dates are fixed and there is no doubt that the
conversations are intended to be formal and on the record; officials
attend, too. If there had been a telephone call to the hon. Member for
Beaconsfield or to me saying, “We really need you at this
seminar,” we could have rearranged the date, but it never had
that status in the conversation with Opposition parties. That is my
point. There may have
been invitations to a seminar and there may have been discussions but
there are many such occasions, as the Solicitor-General indicated. We
were not aware that something of such formality was taking place or we
would have attended, or sought another date when we could have had
those
discussions.
Mr.
Hogg: The hon. Gentleman’s intervention is
extremely important. I have often criticised the hon. Gentleman, but
never for being otherwise than assiduous—sometimes he is too
assiduous. Had he had the slightest inkling that this was the formal
seminar that he had been promised he would have been the first to be
there; he would have been there throughout and he would have talked at
very great length. None of those things happened, and that is powerful
evidence in support of my proposition.
However, I have a much more
serious matter to raise: we heard the Solicitor-General’s
explanation of what the commitment was and I found it impossible to
reconcile his understanding of the formal commitment with that given by
the Home Secretary of the day. That being so, I will remind the
Committee what that Home Secretary said in support of accepting the
affirmative resolution
procedure.
11.45
am The hon. Member
for North Southwark and Bermondsey asked the then Home Secretary the
following: “Is
it the implication of his remarks that, as a result of the Bill passing
into law tonight, there will not be any serious fraud trial by a single
judge in England and Wales?”
The then Home Secretary
replied: “I am
prepared to give that undertaking. It is part of the agreement that we
will retain the clause, but move forward towards looking at the
alternative solutions that I have mentioned, and that could be
incorporated in one or other of the two measures that have ...
been consulted on, or will come before the House in the Queen’s
Speech. That safeguard is appropriate. I give a binding undertaking
that we will follow that agreement”. —[Official
Report, 20 November 2003; Vol. 413, c. 1028.]
The only thing that would be
consistent with this Bill passing into law is if it applied to Northern
Ireland. Everything else would be a breach of that
undertaking.
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