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Lord Borrie: My Lords, if the noble Viscount will allow me to intervene, I certainly never suggested any such thing. I suggested that trials by jury had always been only for the most serious cases and, in terms of numbers, were a small proportion of the total number of criminal cases. That was reduced somewhat further in 1855. The 1855 Act removed a number of previously indictable offences from the list of indictable offences and introduced the election which has existed ever since.

Viscount Astor: My Lords, I take the noble Lord's point. It helps me to make my next point; namely, that it seems to me that a provision which has existed for 150 years has become a fairly fundamental right. Noble Lords opposite have argued about much more recent constitutional arrangements than the one we are discussing. It is important to stress that the concept of plea before venue has not had time to work properly in many instances. We know that the number of either-way cases coming to Crown Court has gone down. It would be helpful if the noble and learned Lord could give us the up-to-date figures.

It is interesting to note the comments of the noble Lord, Lord McIntosh of Haringey, when he was opposition home affairs spokesman in your Lordships' House. He said:

I agree with the noble Lord, Lord McIntosh of Haringey. The current Secretary of State, Mr Jack Straw, said exactly the same thing on 27th February 1997. What evidence do the Government have that plea before venue is not working?

I shall say a few words about Scotland. The noble Baroness, Lady Kennedy of The Shaws, demolished an argument that the Government have used; namely, that all they were doing was to bring a provision into line with a provision in Scotland. However, it is quite clear that the position in Scotland is entirely different. The sheriffs there have different powers. There is good reason why the law in England can, and should, be different from that in Scotland. I do not believe that this Bill will ever reach another place. However, if it did, it would be interesting to note whether, under the devolved Parliament, the Scottish MPs would feel that

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they should speak and vote on the measure in another place. Or would they have some self-denying ordinance and not get involved?

I turn to magistrates and the powers that the Bill proposes in that regard. My noble and learned friend Lord Mayhew described the powers as repugnant. The proposed new Section 19(3)(d) states,

    "whether the accused's livelihood would be substantially diminished as a result of conviction".

I am not a lawyer but it is my understanding that not many people who are convicted of an offence find that their livelihoods are not considerably diminished.

Equally, it refers to the accused's reputation. What does that mean? What kind of reputation? A public reputation? A private reputation? As far as I am aware, most people who are convicted suffer some damage to their reputation. That is the nature of convictions.

Contrary to what was said by noble Lords opposite, no one has attacked magistrates in the debate. The Bill proposes an unfair burden on magistrates. It will put them in an impossible position and give them an impossible task. The noble Lord, Lord Thomas of Gresford, spoke about admissible evidence and the different rules there would be for magistrates in comparison with the Crown Court. When magistrates have to rule whether or not evidence is admissible, they will know that evidence. In a Crown Court a judge may rule on admissibility and the jury will not get to see the evidence if it is ruled inadmissible. Electing for Crown Court trial gives the defendant access to material which would otherwise be available only upon entering a plea of not guilty.

In the light of the Macpherson recommendations, I find it extraordinary that the Government should bring in the Bill. It seems totally contrary to the spirit of those recommendations. The noble Lord, Lord Dholakia, successfully demonstrated how that was the case.

The Government would have a case if they could argue that quicker justice was better justice, but there is nothing in the Bill that does that. There will be additional appeals to the Crown Court on venue and on conviction which will clog up the system. It will not be quicker. As noble Lords have said, there do not seem to be any great financial savings. It is extraordinary that the Government are looking for savings of £100 million. I do not see how they will ever get them.

On the question of delay, the noble and learned Lord, Lord Ackner, in discussing the James Report, drew attention to the fact that the existence of a right of appeal would mean that a case retained in the magistrates' court would have to wait until the time for appeal had expired. Perhaps the noble and learned Lord the Attorney-General can tell us how long the time for appeal will be.

My noble friend Lord Alexander of Weedon described the Conservative Party in this House going back to its traditional role as guardian and protector of civil liberties. I believe that the Conservative Party has always been the guardian and protector of civil

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liberties. I believe that the noble Lord on the Front Bench also believes that. But it seems that that is wrong.

This is an extraordinary Bill to introduce at this time. One can only come to the conclusion that the Home Secretary had his arm twisted by the Treasury; that he thought, "What do I do? I do not want to start the Bill in another place; I will start it in your Lordships' House. Then it will be mauled and kicked out and I can go and say, 'I am very sorry. I tried my best but it went down so badly that I have had to withdraw it'". That is the only logical explanation one can put on why the noble and learned Lord and the Government Chief Whip ever decided to start the Bill in this House. They do not have their hearts in the success of the Bill.

I invite the noble and learned Lord to put up the best defence he can this evening and then to go away and read Hansard. I then invite him to take a deep breath, go and see the Home Secretary and say, "I have done my best. I am sorry, there is nothing we can do about it"--and then to come back in the new year having quietly forgotten the Bill.

9.24 p.m.

Lord Williams of Mostyn: My Lords, what I shall say to the Home Secretary, since I am not bound by the constraints that the noble Lord, Lord Warner, rightly is--it is quite wrong to suggest that he is ducking the issue when he has his constitutional proprieties to observe--is, and I shall say it privately, "Jack, all the arguments that you and I anticipated were duly rolled out. Nothing new was said, although it was said in a variety of different ways and most attractively."

By and large, I believe that the debate has been conducted very courteously: I think I had only two insults hurled at me. One, I thought, must be the worst; that was from the noble Lord, Lord Thomas of Gresford, who suggested that in the privacy of my own home I might be wearing spangled tights. I found that deeply offensive as the Solicitor-General and I were the only two who went to the Lord Chancellor's Breakfast refusing to wear even black tights. I hasten to say that we did wear trousers! Then, the worst, most considered and most wounding of all insults came from the noble Earl, Lord Onslow, who said that I appeared to be an "insincere Michael Howard". If he reflects on it, I believe that a worse insult might have been that I appeared to be a "sincere Michael Howard".

I believe it is fair to say that this ground has been pretty well traversed. Any inconvenient fact, any phrase in the Bill which did not fit preconceived notions, was rapidly placed on one side. A number of your Lordships referred to what was said in the Runciman Commission report. I am happy to go back to that because I believe that the full citation is worth reading:

    "Loss of reputation is a different matter, since jury trial has long been regarded as appropriate for cases involving that issue".

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That was the citation. However, I continue:

    "But it should only be one of the factors to be taken into account and will often be relevant only to first offenders. In our view, in either way offences the decision as to the mode of trial should rest on a variety of relevant factors including the gravity of the offence, the past record if any of the defendant, the complexity of the case, and its likely effect on the defendant (including the likely sentence) if there is a conviction. Under our proposed scheme the defendant would have the right to urge any considerations supporting jury trial that he or she wished".

That is what Runciman actually said. I disagreed with that recommendation then and, if it were in the Bill now, I should disagree with it still. I repeat what I wrote in response to the Runciman report in 1993:

    "The magistrates would have the power to decide. That would be madness".

I do not believe that it would be right for the magistrates alone to have that determinative power. The reason I gave was:

    "How would a defendant feel about his case if he has failed to obtain a jury trial and has his case heard in the very magistrates' court that refused him his present rights?"

The noble Lord, Lord Dholakia, is quite right. Normally on these matters, apart from a shade of emphasis, there is virtually nothing between us. He says he has remained adamant to his position; he has. I have remained adamant to mine. That is not determinative of whether I am right or wrong. I simply point out that I have done no turn of any kind: 180, 90 or 45 degrees. I did not believe that Runciman was right then; I do not believe that he is right now.

In fact, what Runciman did not propose was the right of appeal which is included in this Bill. I hesitate to invite your Lordships' attention to the text but I shall. Incidentally, it was suggested that the defendant was to be there almost as a person making a petition to the Sultan of the Ottoman Empire as some sort of submissive creature. But quite the opposite is true. It is stated:

    "For the purpose of subsection (1) above the court ... shall permit"--

not the accused--

    "the prosecutor and the accused to make representations".

They are both put in an equivalent position. Initially, the magistrates and then the court has to take into account,

    "the nature of the case ... whether the circumstances make the offence one of serious character ... whether the punishment which a magistrates' court would have power to impose for it would be adequate ... whether the accused's livelihood would be substantially diminished as a result of conviction or as a result of punishment of a kind or magnitude likely to be imposed ... on conviction ... whether the accused's reputation would be seriously damaged as a result of conviction or ... punishment of a kind or magnitude likely to be imposed ... and"--

not a word has been said about this all night--

    "any other circumstances which appear to the court to be relevant".

I do not think that a wider judicial discretion than that could be offered to the magistrates.

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