---

Lord Simon of Glaisdale: My Lords, I hesitate to intervene as a brother-Bencher pleads, but do we know any more about what goes on between magistrates when they decide? If not, the last five minutes of the noble Lord's speech have been entirely beside the point.

Lord Borrie: My Lords, the noble and learned Lord makes an extremely good point. I was following the point made by the noble Lord, Lord Thomas of Gresford, that a spotlight should be placed on magistrates. Jury trials deal with the most serious criminal cases in this country. We do not know how well juries follow the arguments of counsel, let alone the summings-up of judges. Surely, that is of some relevance if we are discussing a restriction on jury trial as in this Bill or any other proposals that the Government may bring forward.

I am glad to tell noble Lords that in 1993 the Royal Commission proposed that properly authorised research into how juries reached their verdicts should be allowed. As the Royal Commission then put it, informed debate is better than argument based on "surmise or anecdote". The present Lord Chief Justice, the noble and learned Lord, Lord Bingham, said in an interview last year in The Times that he favoured strictly controlled research into jury deliberations which did not identify individual jurors. He said that nowadays many convictions were overturned by the Court of Appeal because of a judge's failure to give a direction to the jury or to express it in a certain way. It seemed to the noble and learned Lord that it was reasonable and natural to inquire into how juries received and understood those directions, and how much notice they took of them.

No doubt our thoughts about these matters vary. Noble Lords who have addressed juries will have thought about that on many occasions. With respect to all and every one of them, none of them knows. One's opinion of how well a jury understands, and how well the judge does his job in relation to the other partner in the administration of justice, can be based only on one's beliefs. I hope that noble Lords will forgive me for going on longer than I wanted; I was interrupted once or twice.

5.41 p.m.

Lord Alexander of Weedon: My Lords, the previous government flirted with this proposal, but Mr Michael Howard as Home Secretary wisely balked at it. There were times during that administration when I and some others on these Benches felt a little lonely and concerned that the Conservative Party had forgotten its traditional role as guardian of our civil liberties. I am glad that it opposes this deeply flawed Bill. I hope that this is the welcome renaissance of a firm, wide-ranging commitment to constitutional rights and

2 Dec 1999 : Column 944

freedoms. The bouleversement of the former opposition, now the Government, may reflect no more than an aspect of what one sometimes regards as a truth: that all governments become authoritarian and the best oppositions become libertarian.

In opposing the Bill I speak as chairman of Justice, the all-party law reform group. Consistently and from the outset under all administrations, that group has criticised the proposal to deny a defendant the right to elect trial by jury where Parliament has determined that the cases are serious enough to warrant such mode of trial. It is important that opposition comes from all parties, as will be further shown in this debate. In the recent debate on the gracious Speech, the vice of the Bill was ruthlessly exposed by a formidable triumvirate from across the spectrum of opinion: my noble and learned friend Lord Mayhew of Twysden and the noble Baronesses, Lady Williams of Crosby and Lady Kennedy of The Shaws. All are splendid and doughty fighters for our liberties.

I unreservedly accept the Attorney-General's observation that the category of offences triable by jury is not immutable. I do not understand that anyone in this debate seeks to draw a line in the sand. The reason why I regard this as a constitutional issue is that it should be for Parliament clearly and unequivocally to make any change and not leave it to the discretion of magistrates. There is a proposal in the Bill to amend Section 22 of the Magistrates' Courts Act 1980 to deny jury trial for offences of comparatively small value. That may or may not be accepted, but it has been brought before Parliament in exemplary form for consideration. If that proposal is accepted, magistrates will determine whether the case is of comparatively small value--less than £5,000--but will have no discretion. With great respect to the noble Lord, Lord Borrie, this is not about whether defendants have a veto on the decision of magistrates but whether defendants should have taken away from them an election which was originally introduced in their favour in 1855.

I move from the wider constitutional issue to stress, as have others, the practical difficulties of discretion. The case must be serious in character. All of us who have practised at the Bar know that often the degree of seriousness can be determined only at trial. It is also suggested that a criterion for exercise of the discretion should be that livelihood would be substantially diminished. How on earth does one apply that? Does a bank manager automatically get trial by jury? Does a housewife who is not working have it denied to her? Do the long-term unemployed have that right denied to them? Their chances of future employment may be diminished by conviction.

This Bill is shot through with distinctions of status. Take the suggestion that the question whether a reputation will be seriously damaged must be taken into account. I do not recall seeing a wider recipe in a more equal society for discrimination in favour of the middle classes and against blacks. We are all aware of the delicate situation revealed by the Lawrence report. The evidence is that blacks get a raw deal in the lower courts. If that be disputed, what is undoubtedly true

2 Dec 1999 : Column 945

and I believe will not be disputed is that they have more trust in a representative jury. Both lay and stipendiary magistrates, admirable as so many of them are, are socially and ethnically unrepresentative of the general population. It is no good the noble and learned Lord the Attorney-General saying that the Lord Chancellor will take care of that. Any change will take years to work its way through the system.

By contrast, juries contain people with a range of backgrounds similar to those of defendants and can judge with a mix of experience; nor do juries sit for long periods and become jaded to the extent that they become cynical through the process. If the exegesis of the noble Lord, Lord Borrie, as to the desirability of research into jury trials is designed to suggest that across society a jury verdict is somehow less desirable because the reasons behind it are not known, I remind him of the words of Lord Devlin which have tremendous resonance even today: today many feel that the right to jury trial is the lamp by which liberty lives.

The freshness of approach of a jury is central to the fairness of the system. Yet so-called reputation is to be the touchstone of whether someone gets a fair means of trial. At the Bar, like the noble and learned Lord the Attorney-General, I did some libel work. My understanding of the principle is that every one of us is entitled to our proper reputation. That surely means equal opportunity to have the particular case--I emphasise "the particular case"--against us fairly determined. It matters not whether we are middle class, or active in the Conservative or new Labour Party. It matters not whether we are black, unemployed or living on a notorious sink housing estate. It matters not whether we have previous convictions. What matters is that this case, which will affect our reputation, should properly be decided.

I turn to the suggestion that the grant of the right of appeal cures all those difficulties. The delay and anxiety, and the exercise of the energy and resources in pursuing two mini-trials before an accused can get to a jury, I believe to be unfair. But if the principle of the Bill is flawed, if the approach is discriminatory, how can it be made less discriminatory by two hearings which have each to adopt the same unsatisfactory criteria? Flawed laws do not cease to be flawed laws by the grant of a right of appeal.

I have followed with interest the consistency with which the press across the spectrum have deplored the Bill. I think of The Times, the Observer, and the Daily Mail. On 19th May of this year the Daily Mail said:

"This initiative was not mentioned in Labour's manifesto. There is no evidence that the public wants it. And the 'minor' crimes that Mr Straw wants to take away from juries can be personally devastating to the families of victims and accused alike. No doubt juries are expensive and inconvenient. Sometimes they make mistakes. But they reflect the basic truth that the law isn't made for lawyers, judges, police officers or even Government Ministers, but for the whole British people. We have already lost so much that was once taken for granted ... Now Jack Straw seems intent on stripping away the most treasured right of all, essentially to save money. It is difficult to view his plans with anything but deep misgivings".

2 Dec 1999 : Column 946

I agree with every word of that trenchant article.

This is a Government who are not notably indifferent to the views of the media, and to how things play. I say quite simply that this one spins very badly. Perhaps this will give them cause for second thoughts even if they are deaf to the discrimination entrenched in the Bill and the erosion of an important civil liberty. I hope very much that at some stage we shall have the opportunity, since I believe with others this Bill to be incapable of sensible improvement, to assert the constitutional function of this House and vote it down in favour of the liberties of our people.

---