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Baroness Scotland of Asthal: I rise to respond to what I think has been a very in-depth debate on these provisions. However, it has smacked more of a Second Reading debate than it has of consideration in Committee. I shall bear in mind what was said by the noble and learned Lord, Lord Ackner, as to why that may have been so.

Somewhat out of sequence, perhaps I may take up some of the points that have just been made by the noble Lord, Lord Condon, who of course has enormous experience of these issues. I do so because he has raised some very telling points. I think it was the noble and learned Lord, Lord Mayhew, who said that juries are what people want. What I would say in answer to that remark is: not universally. It is our experience, gained from many long and difficult cases, that sometimes hundreds of potential jurors have to be empanelled before a jury can be chosen because individuals do not want their lives to be totally disrupted and their day-to-day activities completely suborned for what can be several months or even, on occasion, over a year. That is a very serious point for us to grapple with.

I turn to the second point made by the noble Lord, Lord Condon, regarding what can be done about jury intimidation. I do so because the noble Lord said that he is outwith the views expressed by his colleagues. Many noble Lords will know that some 47 chief constables have written in the most trenchant terms to express their concern and anxiety about the task with which they have to grapple on our behalf on a daily basis. They have done so because these are changing times.

Noble Lords say that we can grapple with these complexities, but none of us should fool ourselves. We live in a very different world from that which we faced when I came to the Bar in 1977 and when many other noble Lords did so. I believe that the noble Lord, Lord Renton, was called to the Bar before I was born. Things have changed. Today we have to deal with complex, difficult, vicious criminals who will stop at nothing. There is no boundary which they will not cross to get what they want, and what they want is the disintegration of our system. They want to be outside of it and they will use every tool and every machination

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in their attempts to undermine the security of our system. We must acknowledge that reality when we consider the task with which Clauses 41, 42, 43 and 45 seek to grapple.

Of course we are all influenced by our passion for the importance of the jury, but I should say to noble Lords that some balm to our spirit in this debate was provided by the sagacity of the noble and learned Lord, Lord Cooke of Thorndon. I say that because many noble Lords fear change. To repeat the word used by my noble friend Lord Clinton-Davis, we are in the main "conservative" when we deal with change. Therefore it is not surprising that noble Lords from all sides of the Committee have expressed their fear of change, their worries about what will happen if we trespass into a different area. The only Member of the Committee who has had that advantage for some considerable time is the noble and learned Lord, Lord Cooke, and so I listened with great care to what he had to say. His words stem not from fear, but from objective experience. He told the Committee that this is a bourn from which travellers do return. He was also able to reassure the Committee that jurors and the validity of juries cannot be undermined thereby.

I wanted to start my response with those comments because we need to look at this issue with a certain degree of calm reflection. I say that because Members of this House carry out a very important duty on behalf of members of the public. We are not the elected House, but we bring to bear the experience and, one hopes, the wisdom and not the prejudice which will enable us to look afresh at things we have to consider. We must face issues that we have not faced before.

So it is with a little sadness that I say to the noble Lord, Lord Alexander of Weedon, that I have to part company with him entirely when he says that this Government do not honour the rule of law. I believe that it was he who made the remark rather than the noble and learned Lord, Lord Mayhew. I can say to the noble Lord, without fear of contradiction, that this Government and this party hold at their very core—their very essence—the rule of law as it applies not to one but to us all. If you look at this party's history, you will see that thumbprint all the way through it. I can reassure the noble Lord that nothing has changed.

But we now live in a different world and we need to look at the context in which these provisions are being sought. This is one of the most comprehensive reform programmes that the House has ever seen in relation to the criminal justice system. All noble Lords have said that they value many of the changes that the Government are about to make. Through this Bill we are seeking to give the judiciary the tools it will need to make the punishment fit the crime, to enhance opportunities for rehabilitation, for mercy, as has been prayed, for change, and also for safety.

That is why we seek to introduce the new tools and to make them available to judges in order that they may decide whether someone should be set free, with conditions, on licence. It is an important change and Part 7 of the Bill is part and parcel of the whole picture.

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I know that there is a temptation to lift it out and pretend that it stands alone. But it does not; it is an integrated part of the whole.

I shall speak personally. I have faith in the judges of our country that they will exercise their discretion without fear or favour; that they will hold in the balance the rights of the defendant against the rights of the public to justice. When making the decision as to whether it is in the interests of justice to have a jury trial or whether, exceptionally, it is in the interests of justice for a judge to sit alone, our judges will bear in mind all the issues raised by the noble Lords, Lord Thomas of Gresford and Lord Dholakia, in terms of what we need to craft in order to make this change.

I almost want to throw the question back to the noble Lord and ask whether he really believes that in the kind of cases he described any judge worth his salt would say, "We do not need a jury trial in this case. It suffices for the judge to sit alone". No, these provisions are there for the very rare, exceptional cases when the full panoply of the protection that the noble Lord, Lord Condon, knows we give simply may not be enough. We are talking about jurors who have their whole lives overtaken by protection, 24 hours a day, seven days a week, not for a week but for month after month after month.

There have been cases where juries have been discharged not only because of a threat of violence, not only because of bribery, but because witnesses on occasion have been shot, hurt, injured, maimed. When that happens, do we say "Enough"? Do we say, "Now we should follow a different course because it has been proven that these particular elements know no bounds"? Or do we say, "It suffices"? I have to say to noble Lords that these questions are being asked outside the House and we, each of us, will have to justify to the members of the public why we have done this.

A number of noble Lords have said that the Government have given up on complexity. I say, "Not entirely". Some cases are now extraordinarily complex, and it is that very complexity that cloaks sometimes the inequity that lies beneath. To have a successful prosecution we need to rip away that cloak and to lay bare the inequity that lies beneath it. That cannot be done quickly and it cannot always be done easily and simplistically. We advocates believe that all is possible. We are the communicators. We can make that which is cloudy seem clear. We can hone an issue so that those who do not understand will understand. Sometimes that is true, but the tragedy is that sometimes it is not.

We are now faced with not only our own offenders but international criminals who will use every device available to them to cloud and cloak what they do. This is a testing moment for the House. We are in Committee and this is where we discuss the issues that need to be debated so that we can hone that which should go into the Bill. This is the moment when we say our minds are open to debate. Some noble Lords have clearly indicated that there will be a Division and that the Committee will speak. I hope that the Committee

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will also listen because, when we leave the House, each of us will bear a responsibility for what happens thereafter.

So let me do what we do in Committee and look at the Bill. A number of questions have been asked and a number of issues have been raised. I heard what my noble friend Lady Kennedy of The Shaws said. She, too, seemed to suggest that the Bill is a great undermining. She said, "Here we are. We are in the dock. We have been in the dock before. We have been found guilty on a number of occasions and all noble Lords should hold those convictions against us. When you come to look at what we say we should be burdened by that history. We should not stand or fall on what we say now".

The noble Lord, Lord Mishcon, gave an example which will be indelibly printed on my mind. He referred to the tramp who was misunderstood. Why? Because of the clothing; because of what he had done before. The noble Baroness said, "Judge not on history. Judge on the facts of this case". I take her at her word. I say to the Committee, judge not on the history but on what we are doing now. It is what we are doing now that counts.

The Committee should understand that the Government have listened. The noble Lord referred to the fact that there has been a mode of trial Bill before; that it was wrong; that the Government should not have introduced it; that the Government should think again. The Government did. We did not bring back the Bill as we could have done under the Parliament Act; we thought again.

I remember that two or three years ago it was being urged upon us with great passion that the mischief we had to cure was intimidation and fraud. That was the mischief we needed to address; not the rest. Fraud and intimidation. We have listened and we have come back to your Lordships' House to ask for discretion in relation to fraud and intimidation. Not because that is what we want but because it is what the public want, what we are told the public need.

But what are we told now? We are told, "Oh, it is too late now. You should have done that before". That is not how we govern. This is not a game where we say, "I hit you so you hit me". We believe in mercy, we believe in redemption, we believe in rehabilitation and we believe in change. The Bill seeks to achieve that.

Let us look at the issues that noble Lords have raised. They have asked about the discretion, how it will work and what the limitations are. I invite the Committee to look at Clause 41(7), which states:

    "This subsection applies if the judge is satisfied—

    (a) that, because of the conduct which is alleged to constitute the offence or any of the offences concerned, the issues which will arise at the trial for determination include issues relating to whether the administration of civil or criminal justice has been prejudiced or brought into disrepute, and

    (b) that the matters mentioned in paragraph (a) give rise to exceptional circumstances which make it desirable in the interests of justice for the trial to be conducted with a jury".

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I invite all those who ask where is my safety net, where is my security for preservation of the jury in the right case, to look first at Clause 41(7).

Noble Lords have asked, what of Clause 42? I invite them to look at Clause 42(6), which states:

    "In deciding whether or not he is satisfied that both of those two conditions are fulfilled, the judge must have regard to any steps which might reasonably be taken to reduce the complexity or length of trial".

That answers those who say that people will get sloppy and go on and on. No, the judge is obliged to look under Clause 42(6).

Clause 43, as noble Lords know, deals with the application by the prosecution for the trial to be conducted without a jury where a danger of jury tampering arises. What do we find there in relation to the second condition therein referred? Subsection (5) states:

    "The second condition is that—

    (a) the danger is such that it would be necessary to provide police protection for the members of a jury hearing the trial, and

    (b) the level and duration of that protection would be likely to place an excessive burden upon the life of a typical juror".

Of course I hear what the noble and learned Lord, Lord Lloyd, says. In many of these cases, the jurors are able to withstand the burden, and they discharge their duty with integrity and real courage. I, from this Dispatch Box, commend them for that. But there are those for whom it is simply too heavy a burden.

We should ask ourselves whether we would be willing to give up a whole year of our life, with no days off—because the trial will stop if we have a day off—and to live under 24-hour supervision. Would we be willing to give up a whole year of our life? We all consider ourselves to be decent citizens, public-spirited and good-hearted people who wish to serve our country and our citizens. I regret to say that if we carried out a straw poll, most of us would say, "Actually, thank you, but no thanks".

So who are we imposing this burden upon? It is not only us. We have to ask ourselves whether it is so unsafe and unsatisfactory that a judge, entrusted with the exercise of that discretion, should make that judgment. There will be cases, no matter how great the burden, in which public interest will demand a jury trial because there is no other way through. But there are other cases in which that may not be so.

This Bill seeks not to expunge the right of jury trial in relation to the most serious and heavy cases but to give the judge, whom we have entrusted with the conduct of this trial, the right, the privilege and the burden, on behalf of the public, to make that decision by exercising that judgment.

I hear what the noble and learned Lord, Lord Mayhew, says about the experience in Northern Ireland. However, that experience, as he rightly says, demonstrates that the public can have confidence in the sanctity of the judgments made. There has been no suggestion in all those years that the interest demonstrated by the judge has been

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anything other than a true interest in the rule of law and the administration of justice. People have confidence in that. Whatever else they say, no one in 30 years has suggested that it is a politically motivated or improper process. I see the noble and learned Lord nodding his head. So we have good examples.

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