I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss Government amendment No. 5.

Owing to the structure of the Bill, what is really a minor transitional amendment must take the shape of a new clause.

Section 43 of the Criminal Justice Act 2003 applies to cases in which notice has been given under section 51B of the Crime and Disorder Act 1998. The notice procedure under section 51B will replace the existing transfer procedure under section 4 of the Criminal Justice Act 1987 when schedule 3 to the Criminal Justice Act 2003, which inserted section 51B, is brought into force. However, the assumption that by the time section 43 was implemented schedule 3 would be in force may not necessarily be right. The purpose of the new clause is to enable section 43 to operate in cases dealt with under the current law by adding a transitional reference to section 4 of the 1987 Act.

I do not intend to stand in the Minister’s way on new clause 1, but it is somewhat remarkable that a schedule to the Criminal Justice Act 2003 has still not been implemented some three years after being passed by the House. Can the Minister explain why we are having to jump around in this fashion and why the Government pass so much legislation which, sometimes, is never implemented at all?

It was announced last year that the implementation of the procedural reforms in schedule 3 to the Criminal Justice Act 2003 would be reviewed alongside other provisions in the Act. The Government are committed to ensuring that cases are dealt with as efficiently as possible in the appropriate court. Discussions are continuing about how best to achieve that, and an announcement will be made in due course.

I trust that the House will support the new clause and amendment.

I am grateful to the Minister for her explanation in response to my intervention, but I cannot let the matter pass without commenting briefly on the extraordinary situation that we now face in regard to Home Office criminal justice legislation.

I had the pleasure of serving on the Committee considering the Bill that became the 2003 Act—a flagship Bill that was supposed to define the Government’s approach to criminal justice for a long time to come. It was suggested to us that the Bill was well researched, that all the necessary consultations had taken place, that the judiciary had been consulted on how aspects of it would be implemented, and that the Government knew what they were doing.

I have to say very gently to the Minister that, to my mind, the fact that three years after the passage of that Bill the Government have apparently not succeeded in getting their consultation together highlights the absurd situation in which the House finds itself over and over again with criminal justice Bills. I believe we have had nearly 60 pieces of Home Office legislation since 1997. The judiciary complain that the law has become so opaque and incomprehensible and there are so many rules and regulations that they have difficulty in keeping pace with what is happening. We have seen many examples of the repeal of Government legislation before the relevant schedule has even been implemented, and this appears to me to be exactly such an example.

Has the hon. Gentleman had a chance to look at the evidence of Lord Justice Potter, the president of the Family Division and Master of the Rolls, to the Constitutional Affairs Committee? It is not just a question of legislation; it is a question of proposals such as the Carter proposals. The judges themselves are begging the Government, “Please, no more, because we need to see the implications of what the Government are doing.”

The right hon. Gentleman is absolutely right. I have read the evidence, and it is compelling. The judiciary and the court system have been constantly overloaded, and that has its own knock-on consequences. However, I do not want to stray too far from the new clause.

I hope that, if the Minister chooses to respond, she will explain in detail why it has proved so difficult to implement the procedure under section 51B of the Crime and Disorder Act 1998—1998!—supposedly brought into force by schedule 3 to the Criminal Justice Act 2003 to replace section 4 of the Criminal Justice Act 1987. I have to say that anyone listening to our proceedings on the first matter arising from this important Bill would be wholly mystified as to how the Government have got themselves into this particular tangle.

I want to make three points similar to the point made by the hon. Member for Beaconsfield (Mr. Grieve), relating to how we deal with legislation in this place.

As the hon. Gentleman said, we have got into the habit of legislating before we have seen the impact of earlier legislation—indeed almost before that earlier legislation has been implemented in full. Is there not a procedure that would allow the Government to tell us, when legislation goes through the House and particularly when it goes into Committee, what they expect to be the earliest and latest dates of implementation? Unless that can be done, we shall continue to experience terrible practical problems when one Bill is overtaken by another. Moreover, we shall not be doing our job in making the process clear to the public and the practitioners.

Back Benchers and Opposition spokespeople occasionally ask Ministers when they expect to implement legislation. Following a commencement date order the Government offer a commencement date, but we are often not told the latest date by which the Government expect to be able to deliver the legislation.

Should we not amend our practice to provide in primary statute that if an implementing order is not made before a given date, the proposed change should not be made?

I support that entirely. I also support the provision for a sunset mechanism enabling such proposals to lapse if the Government do not deliver.

There is a second thing that we still do not do, and ought to do. The other day I spoke at an event celebrating the 50th anniversary of the organisation Justice, along with the hon. Member for Beaconsfield and the Attorney-General. The Attorney-General said that he and the Government support the objective of codifying the criminal law. We do, too—as, I think, does the Conservative party. The best way to start to achieve that objective is to make sure that as proposed legislation comes before us in Home Office business—it will mainly come before us in Home Office business, but it will also occasionally come across Law Officers’ desks—we update wider legislation so that we end up with a consolidated Act, as it were, on the subject in question. Therefore, in the context of this Bill on jury trial, we should end up not with a Bill that is slim and appealing—as this one is—but with an updated version of either the Fraud Act 2006 or the Criminal Justice Act 2003. We would then have only one piece of legislation, and therefore when we start to put proposed legislation in 2007 together with legislation enacted in 1998 or 2003 or whenever, what has not been addressed that should have been addressed will become obvious to us, and many more issues will be dealt with.

I also want to offer an encouragement—it is not a proposal because it refers to something that has been achieved. A new parliamentary process has belatedly been adopted which did not apply to this Bill: before the merits of the wording of legislation are deliberated in Committee, there is the ability to take evidence on it. Although the Bill missed the deadline, we have now agreed to that process, so I am not criticising the Government. I hope that that process will be valuable, because I hope that the people who give evidence to us about the practical implications of Bills will be the sort who are likely to say to us, for example, “You do realise, don’t you, that the measures to which this part of the Bill refers have not yet been implemented?” Therefore we as legislators, as well as the Government and civil servants, will be alerted to problems such as that which the new clause addresses.

I do not object to the new clause. It is more than a technical amendment, but it is not the most substantive part of the Bill by any means—we will come to that shortly. However, it raises questions to do with the process of government and, to be blunt, as my party’s Front Benchers have often said—as have Conservative Front Benchers—if we had legislated less and administered better in the past 10 years, criminal justice and the Home Office would not have such an unsettled or declining reputation. That is not in anybody’s interests; it is not in the country’s interests that criminal justice and the Home Office do not have a good reputation.

Let me say to the hon. Member for Beaconsfield (Mr. Grieve) that, as I have explained, new clause 1 is merely a simple transitional provision to cater for the possibility that section 43 of the Criminal Justice Act 2003, as amended by the Bill, might come into force before new section 51B of the Crime and Disorder Act 1998, which is referred to in section 43(1)(b). Until section 51B is in force, reference will be made to section 4 of the Criminal Justice Act 1987. I do not propose to go into the details of that Act, because that legislation is not before us and I fear to stray into areas that are not the subject of today’s debate. I have assured the hon. Gentleman—and I repeat that assurance—that the Government are committed to ensuring that cases are dealt with as efficiently as possible, and discussions are continuing about how best to achieve that. We aim to make an announcement in due course. I am assured that the two sections are almost identical. The differences are only in terminology and procedure, and are not relevant to the Bill. Both sections are about the prosecution giving notice of transfer in serious and complex fraud cases.

I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss new clause 5—Conditions to be satisfied (No. 2)—

‘In section 43 of the Criminal Justice Act 2003 (c. 44), for subsection (5) substitute—

“(5) The condition is that by reason of the complexity or length of the trial, or both, and their likely impact on the safety of the verdict, the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.”.’.

As you indicated, Mr. Deputy Speaker, I will also speak to new clause 5, which, with your agreement, I shall seek leave to put to a vote at the end of the debate, rather than new clause 4.

The new clauses would amend the Criminal Justice Act 2003, which was the last substantive piece of legislation that this House passed in relation to the issues under discussion. In the principal legislation, the House debated whether there might be exceptions to the rule that serious criminal cases should have a jury trial. Parliament agreed—this has been enacted—that in certain cases that can now happen. The most obvious case that has been agreed is where there has been tampering with the jury. There is a procedure that allows an application for a non-jury trial in that exceptional circumstance. It was acknowledged that that should be allowed.

There was another Government proposition—which had been raised and debated before—that there should be a trial without a jury in serious fraud cases. As Members will recall, that was extremely controversial. Because it was controversial and was raised at the end of the parliamentary Session, it put at risk the Government’s ability to secure the agreement of both Houses of Parliament to that Criminal Justice Bill. The outcome of the ensuing negotiations between the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), and Baroness Scotland and Opposition spokespeople in both Houses was that that part of the Bill would be implemented only if an affirmative order were subsequently passed by both Houses. Effectively, it was put on hold except in cases when Parliament agrees to its implementation. Since then, the Government have sought on one occasion to implement it by using that process. They managed to get the order passed in this House, but it was made clear to them that it was unlikely that the order would be passed in the House of Lords, so they did not proceed down that route. The Bill provides a mechanism for returning to that issue, but by way of a new and substantive piece of primary legislation.

One of the elements of that Criminal Justice Act 2003 regime—were it implemented—was to impose necessary preconditions before a trial without a jury could take place in serious fraud cases. Section 43(5) of that Act states:

“The condition is that the complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.”

The key passage is from “so burdensome” onward. New clause 4, which was tabled by my hon. Friend the Member for Somerton and Frome (Mr. Heath) and I on behalf of the Liberal Democrats, and new clause 5, tabled on a cross-party basis by Conservatives and Liberal Democrats, are two changes that would toughen up those conditions.

As the Solicitor-General and the Minister well know, my party and I—and, as I understand it, the Conservative party—remain clearly of the view that we will not support the Bill. That is our clear and unchanged position, which we adopted in 1998 and maintained in 2003, 2005 and throughout 2006. We continue to defend jury trial in 2007, because it is the best form of trial for serious criminal cases.

I am very glad to hear that the hon. Gentleman will ask his right hon. and hon. Friends to vote in favour of his new clauses, but will he forgive my saying that I do hope that those of them who represent Scottish constituencies will not be voting, because the Bill refers and relates exclusively to England, Wales and Northern Ireland?

The right hon. and learned Gentleman is perfectly entitled to ask that, but he is being slightly mischievous. Let me deal with his point briefly. My right hon. and hon. Friends from Scotland who are here will indeed vote because, so far, the constitutional position is that all Members can vote on all legislation. Obviously, many matters have been devolved, and we supported that, but we still vote on legislation relevant to Scotland, Northern Ireland and Wales, Mr. Deputy Speaker, as you well know. A great deal of Northern Ireland legislation is considered in the House, and in fact much more Welsh than Scottish legislation is considered here.

We support the view that there ought to be further and better devolution to Scotland, Wales and Northern Ireland—and to England—and we want to persuade other parties in the House, particularly the Government, that we should have proper devolution. Under such a settlement, it might well be the case that the outcome that the right hon. and learned Gentleman encourages me to persuade my colleagues to bring about might happen. However, that will not happen today. All my colleagues from all three parts of Great Britain will vote, because they are as committed as I am to retaining jury trial for all serious cases in England. I should say in passing that people from Scotland and Wales often appear before the courts in England and Wales—more from Scotland, by definition—and they might well hold the same strong views in that regard. The Scots are wonderful people, but they are not less likely to be defendants before the courts in England and Wales. I will stop there, before I get into trouble.

I hear what the hon. Gentleman says about the way that his colleagues from England, Wales and Scotland intend to vote. However, given that this measure touches on the constitutional position and the liberties of English men and women, does he not feel that it would be a somewhat unhappy outcome if it were carried on the back of votes from Scottish Members?

Order. I sensed that the hon. Gentleman was about to conclude his remarks on this point. I do not think that we want a debate on devolution and its side effects. Perhaps we could deal with the new clause before the House.

I am very happy to have that debate on appropriate occasions, Mr. Deputy Speaker, and there will doubtless be many. The important point is that although this measure relates to courts in England and Wales, people from all over the world—not just all over the UK—appear before those courts, and we want jury trial for those who appear before them on serious charges, including serious fraud charges. So our position is absolutely clear. This is about the safeguards that we put in place and what conditions will be satisfied if, against our will and our votes in both Houses, such a proposal were to pass through Parliament.

New clause 4 would insert the following alternative wording:

“The condition is the complexity of the trial or the length of the trial (or both) would be likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice required that the trial should be conducted without a jury.”

The current law says that

“serious consideration should be given to the question of whether the trial should be conducted without a jury”.

We say that the test needs to be firmer than that, and as new clause 4 states, the law should state that the

“interests of justice required that the trial should be conducted without a jury.”

The burden of making the case must fall on the Government. They are seeking to persuade us that there will be circumstances in which the interests of justice require that a trial be conducted without a jury, but so far we have not heard a strong argument from them in that regard.

If I may, Mr. Deputy Speaker, I will reserve until we move on to the next group of amendments, because it will be more appropriate then, discussion of the strong evidence that makes it clear that all that we know about jurors serving on serious fraud trials supports the argument that they do understand the complexities of such cases and want to continue to do that job. There is no evidence to suggest that jurors find such trials a problem. If that is indeed so—if there is not an interests of justice case that one can argue from the point of view of the juror—only one of two counter-arguments can be advanced.

The Minister and the Solicitor-General have advanced one of them in previous debates, but they have not advanced the second, which I will explain in due course. The first argument, to repeat phrases used by the Solicitor-General and others, is that the full culpability of the case—in other words, the full range of the offence—would be better available to the courts in trials without a jury. The Solicitor-General will make his own speech in his own way, but the argument throughout the debate has been that one flaw of the present system is that one has to cut down a case, as it were, to put it to the jury, because it would otherwise become too long and complex—in other words, too risky in terms of the jury’s comprehension. As a result, not all the defendants who might be charged in a given case are charged, or not all the charges that might be put on the indictment are put.

Interestingly, the only jury who have recently spoken on this issue did not say that the prosecution had confused them, although they did point out that the defence was sometimes not as clear as it might have been. Our view is that, in the interests of justice, we should always make sure that everybody who should be charged is charged, but the interests of justice are not necessarily served by having 24 or 48 counts on an indictment if six will do. The House will be aware that because the maximum sentence for one count is the same as for another, similar count, a court’s ability to punish someone with imprisonment—actual and immediate, or suspended—or a fine, for example, is not changed simply by the addition of counts. Of course, if there were 10 counts, for example, a judge could say that they must be served consecutively, but 12 or 24 counts are not needed to achieve the justice that a smaller number of counts can achieve.

May I reinforce the point that the hon. Gentleman is making? If one puts 21 counts on the indictment, one then has to adduce evidence as to those 21 counts. That is likely to be extremely confusing for a jury, who will face an inordinate and quite unnecessary amount of evidence.

That is absolutely right, and the principle applies to the whole tribunal and courts system. The other day, a constituent came to me to discuss a parent’s allegation of discrimination in a school against their child. In the end, the case brought was based on a specimen count—that on a particular day, the child was treated in a particular way. Bluntly, if the case were won on that basis, the same argument could apply in respect of the preceding and subsequent days and months, because the same treatment occurred then. So it is absolutely in the interests of justice that we do not have extra and unnecessary counts.

Of course, if there are different types of offences, one puts them on the charge sheet and into the indictment. Or if there was a pattern of behaviour five years ago, then a break, and another pattern a year ago, that might be reflected in the charges. However, the criminal justice system has never sought to put everything before a jury. Indeed, many cases would be much slower and more confusing and the chances of successful conviction would be smaller. If someone is convicted, they have the opportunity to ask for other offences to be taken into consideration so that they are not left on the file.

I have listened with great interest to what the hon. Gentleman has said, and his speech could—with some reservations—have been made just as easily by the Solicitor-General. That is one of the reasons why I wish to ask him this question. I will not support his new clause, although it is not so bad that I will support the Government, because if he takes the view—as I do—that in serious cases with serious implications it is never in the interests of justice in our adversarial system for them to be tried without a jury, how can it be right to table a new clause that by implication, as he has been arguing, suggests that on occasion it can be in the interests of justice for such cases to be heard without a jury?

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Let me make it clear that we do not believe that the move from jury trial to non-jury trial is in the interests of justice. All we have sought to do is to improve the Bill for fear that we will lose the battle on it. We are fighting on two fronts. We will vote against Third Reading and we will seek to defeat the Bill in the House of Lords, which I suspect we will do because the combined numbers of my party, the Conservative party, Labour peers who oppose the Bill and Cross Benchers will, happily, be enough to do so. The Government will then have the option of revisiting the issue. However, if the Government eventually win the day—in theory, by using the Parliament Acts—we seek to protect people from the excesses of injustice that we see in the Bill. We have a principled position and a fall-back, compromise position—

An unprincipled position.

Well, shall we say that it is a less principled position? I would understand it if the hon. and learned Member for Medway (Mr. Marshall-Andrews) does not agree with our less principled and more compromised position.

My hon. Friend knows that I agree with him on this issue, but is not there another important distinction to be made in the context of this new clause? By introducing the phrase “in the interests of justice”, we move away from the position that the Solicitor-General approached in Committee—without quite reaching it, although he came perilously close—of saying that one of his prime objectives was conviction, not justice. If it comes to a choice between the interests of justice and of conviction, I know where my sympathies lie and, I suspect, those of the hon. and learned Member for Medway (Mr. Marshall-Andrews).

I hope that my hon. Friend has drawn the hon. and learned Member for Medway back towards us with that intervention. It was a serious concern to my hon. Friend and me in Committee that the Solicitor-General, whom we like and respect, veered towards saying that his proposal would increase conviction rates. We could certainly quote phrases back at him. However, a conviction—a finding of guilt—does not necessarily mean a just result. There are still too many people unjustly convicted by our system.

I looked back through the annual reports of the Serious Fraud Office, which has existed since 1998 principally to deal with such cases, and one of the arguments that it has never used—I stand to be corrected—is that non-jury trials should be introduced because they would increase conviction rates. The SFO makes many arguments in its annual reports on how to improve the process, how more cases could be brought to court and how conviction rates could be improved, but they are not to do with the difference between jury trials and non-jury trials.

One instance in which the interests of justice might be better served by a non-jury trial than a jury trial might be if such publicity had been given to a case or the defendants—we have had some examples recently, although not in serious fraud cases. Before any charges have been laid, people have appeared in the press and on the radio and television as the likely defendants. One could argue that the interests of justice would dictate that the members of a jury would not be able to disregard what they had heard, read or seen to enable them to reach a correct judgment. My experience of the courts is that in every case where that is an issue—perhaps there has been widespread national or regional publicity—the judge has gone out of his or her way to make it clear that the members of the jury have to put what they have heard or read about the case out their minds. My understanding is that they appreciate the need to do that. So I dismiss the argument that non-jury trials are necessary in such cases.

May I suggest another class of case to which it might apply? It clearly exercised the mind of the coroner in the application to hear the inquest into the death of Princess Diana before a jury that the case was likely to include evidence from many people who, because they were foreign, would need interpreters. That might be difficult for a jury to handle.

Yes, that is a possible example. We need to be honest if we think that cases could fall into that category, and share what we think about them. I had not thought about that example, but it could be included. Indeed, serious fraud is one of the offences that often has international aspects, such as carousel fraud, and might therefore involve defendants who are non-British or do not have English as their first language.

New clause 5 would insert a second, separate, protection into the Bill. It is subject to the same criticism as the right hon. and learned Gentleman made a moment ago in that it is not a substitute for a jury trial. However, it would add to the Bill a further test that serious consideration should be given to conducting the trial without a jury if the interests of justice require it

“by reason of the complexity or length of the trial, or both, and their likely impact on the safety of the verdict”.

It is possible that a verdict might be thought to be less safe because of the mental or emotional state of the defendant or some of the witnesses or where the recollection was of events that happened a very long time ago. I am thinking of cases of which I or others have had experience.

Usually, the safety of the verdict consideration is adequately answered by the judge’s regular admonition to the members of the jury that they cannot convict until they are sure beyond any reasonable doubt. That is a high barrier. It is a hurdle that the English legal system has insisted on so that people are not convicted if there is a serious or reasonable doubt. I do not claim that there are many such cases, but the burden should lie on the Solicitor-General or other Ministers to explain why cases need to be taken away from juries and given to individual judges in the interests of justice. The Solicitor-General gave one example to do with the fullness of the evil of the activity, and we may hear that again in a moment, but if he wants to add further examples, the burden of explaining his reasoning lies with him.

The essence of yesterday’s debate on foreign policy and defence in respect of Iraq was about how we establish the rule of law and democracy in other countries, and about our obligation to those countries in which Britain has had an interest historically. There was no vote at the end to decide the law of the land. Although this debate does not have the same parliamentary magnitude, we believe that juries should continue to be used in as many cases that come before the higher courts as possible, for three fundamental reasons.

First, the system has worked very well historically. Secondly, it has the confidence of the public, as people trust lay magistrates and juries far more than they do professional lawyers and judges. Thirdly, there is no evidence that a two-tier justice system would not be regarded as one that did not give equal justice to everyone. Courts convict people and send them to prison, so they must be able to be relied on to reach the proper verdict for every defendant.

We spend many days in the House talking about victims and about how we can make sure that the guilty are convicted more securely and effectively, but we must also make sure that our system has the confidence of the public and is fair to defendants. Our new clauses are designed to improve the Bill, although I hope that it does not become law. If we have to have a Bill like this, it needs to be made tougher, and that is what these new clauses aim to do.

I rise to support what the hon. Member for North Southwark and Bermondsey (Simon Hughes) has said, and to speak more specifically to new clause 5. Like the hon. Gentleman, and like my hon. Friend the Member for Beaconsfield (Mr. Grieve) on the Opposition Front Bench, I am very much against this Bill. On the other hand, it will be carried through this House, and possibly through the House of Lords, although that may be unlikely. Our business, therefore, is to try and improve the Bill, even though we do not want it to make progress. It is in that spirit that I shall make my remarks.

The Criminal Justice Act 2003 stipulates that the consideration that applies when determining whether a trial should be heard without a jury is whether its complexity and length would be burdensome to a jury, but the length and complexity of fraud cases are not peculiar to them. Cases involving terrorism and conspiracies, for example, or ones with many people accused of drugs offences, are also long and complex. We are setting a dangerous precedent if we accept that it is only length or complexity that justifies a non-jury trial, because that is to create an argument—irresistible in logic—that the same conditions should be applied to non-fraud cases.

I can foresee Ministers saying, “Parliament has decided that this is appropriate in fraud cases, so why should we not apply that precedent to other cases?” The Government have a track record of doing that, and they have tried many times to dilute the classes of case in respect of which a jury is required to be empanelled. I refuse to grant Ministers that precedent, because I object fundamentally to these proposals.

I propose, however, to adopt an approach that earlier I characterised rather kindly as the less principled one. Given that the Bill is going to progress through this House, surely we are obliged to try and improve it. Is it possible that there might be occasions when the interests of justice might require a non-jury trial? I find that difficult to contemplate, for the sort of reasons that the hon. and learned Member for Medway (Mr. Marshall-Andrews) always advances so eloquently, but I do not exclude the possibility.

Certainly, I can contemplate a test that is much more satisfactory than the one proposed by the Solicitor-General. Two options are presented in the new clauses—the Liberal Democrat version in new clause 4, and the version in new clause 5 that is supported by hon. Members from both main Opposition parties.

I do not want to be tiresome, as the right hon. and learned Gentleman is making a persuasive point about the need to mitigate a thoroughly bad Bill. He said that he does not want Ministers to say that Parliament’s acceptance of the argument about length and complexity allows them to apply such conditions more widely, but how would mitigation help to prevent that? The Government have form in such matters, and will use any argument that comes to hand. Would not matters be made worse if they were able to say that the House of Commons had decided that jury trial might be abrogated for reasons of the interests of justice, and not just length and complexity?

No, I do not think so. The Government’s proposals rest exclusively on a trial’s length and complexity—difficulties that arise in many non-fraud cases. Making a concession on those grounds would be to drive a coach and horses though the principle that trials should be held before a jury. The problem that we are wrestling with is that the Bill will make progress: it will leave this House, and go before the House of Lords. Are we therefore in the business of trying to improve a bad Bill, or should we simply assert that it is bad and not try to improve it?

The choice is not an ideal one. The hon. and learned Member for Medway disagrees, but I have concluded that I am in the business of improving a bad Bill. However, I accept that it is perfectly respectable to argue that this is such a bad Bill that we should spit on it, throw it out and have no more to do with it. If we believe that, we might as well not debate the new clauses before us: we should just accept that the Bill is bad, go straight to Third Reading and find ourselves beaten in the vote at the end of that. That is not what I want to do.

I could go on at length, but I shall not do so. The condition in section 43(5) of the 2003 Act is a jolly bad one. We can improve it to make it slightly less objectionable, and I commend that approach to the House.

I am delighted to hear the comments of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). Like him, I face a dilemma. The Bill is a bad piece of legislation. I explained that on Second Reading and in Committee. On occasion I have made some attempts to see if there is any way forward to a compromise in respect of how the trial process takes place and whether it can be independent of the judge’s decision. I have not been successful. In this Bill it is particularly difficult. Any attempt, for example, to argue that we should have a special jury has been ruled out of order because on Second Reading we decided to dispense with juries. There is an “all or nothing” quality about the Bill.

I agree with my right hon. and learned Friend that it is important, notwithstanding the distaste with which we view the legislation, to consider the situation if and when the Bill reaches the statute book and seek to mitigate as far as possible its worst effects. In Committee we discussed whether there should be an interests of justice test. Notwithstanding what I heard from the hon. and learned Member for Medway (Mr. Marshall-Andrews), I think that that takes the matter a little further in providing some guidance to the judiciary on how they should approach the matter—not just the question of burdensomeness or length, but also that of the interests of justice— widening the criteria a little and, I hope, as a result restricting a little more the circumstances in which the court would grant trial by judge alone. I accept that there are difficulties and for that reason I am supportive of new clause 5. My name does not appear at the top of the list of promoters, although I rather thought that I drafted it. It may turn out that somebody else had the same idea.

I did.

My right hon. and learned Friend says that he drafted the new clause, in which case I am rather perplexed because his name does not appear at the top of the list either.

I think the Liberal Democrats nicked it. [Laughter.]

All I can say is that when I went to the Table Office to table my amendment I do not remember seeing any amendment in the name of the Liberal Democrats along the lines of new clause 5. In a conciliatory spirit I shall return to the main issue, which is the contents of the new clause.

The key issue will turn on the likely impact of the safety of the verdict. That has a particular merit. To understand it, one must return to the Government’s stated position. The Government have gone out of their way—they have no option but to—to insist that juries are capable of returning true verdicts. If they were to depart from that principle, they would announce their complete lack of confidence in the entirety of the jury trial system. Indeed, we know from the Wooler inquiry into the collapse of the Jubilee line case—one of the very few pieces of evidence that we have about how juries function—and from the supporting research documents that went with it, which I conveniently obtained the day before Second Reading, that in that trial, which meandered on for 18 months before it collapsed, the jury had a very good grasp of the issues in the case. There is every reason to suppose, when one considers the responses that the jury gave to those who investigated the matter, that had they had an opportunity of returning the verdict, no one could suggest from the evidence that the verdict would have been unsafe or unsatisfactory, because after 18 months they had preserved a complete grip on the issues that they were having to consider.

If we were to adopt new clause 5, it would have the merit that it would be rather difficult ever to have a trial without a jury, because it would have to be argued before a judge that there was something about the complexity or length of the trial which made it likely that the safety of the verdict might be impaired. In such circumstances no trial without a jury, on the existing evidence that we have, would ever take place. That is why I commend the new clause.

The hon. Gentleman makes a good point about one effect of new clause 5. Does he agree that it has a further merit over and above new clause 4, which is that by removing any mention of the burdensomeness of the trial to the jury, it removes from the prosecution an incentive to increase the complexity in order to remove the trial from a jury?

I agree entirely with the hon. Gentleman that that is an important consideration.

We must be realistic about this. In our daily lives most of us have had the opportunity to meet people, not necessarily in a professional context, but neighbours or friends, who have served on juries. Some people find doing two weeks’ jury service, which probably includes four or five days sitting and the rest of the time being sent home, to be burdensome. I would not wish to say that they were being lily-livered. It may well be that the impact on their own lives has been considerable. Equally, I have done long trials lasting many months when it seemed to me that the jurors were deriving considerable enjoyment from the work that they were being called on to do. Friendships are made. Indeed, in some cases marriages have followed. Many, particularly those who may be retired or are not in full employment, have found it an extremely fulfilling and important experience in their lives. That is a reason why we have jury trials. Simply to imply that length leads to burdensomeness seems to be mistaken.

I have retained the issue of complexity. We know that many extremely complex trials that take place will not fall into the category of being capable of being assigned to a judge alone. For example, the Crevice trial which is taking place has lasted many months. We do not know when the verdict will be returned. It is an ordinary criminal case being tried by a jury. It is a matter of great importance involving scientific evidence, and the jury is thought to be capable. My practice included health and safety work. The cases which are contested are often extremely technical in their nature. Jurors arrive in the jury box and are presented with three or four lever arch files to share between two of them, including documents, background material and the business documents of the company concerned and other contractors. During the course of the trial they have to consider expert evidence and sometimes look at models which have been made and brought into the court. All such trials are as complex, or as likely to be as complex, as any fraud trial that I can imagine, and sometimes they last many weeks and months. Yet in those circumstances the Government at the moment—I am mindful of what the hon. and learned Member for Medway says about the risks of the wedge in the door—have not considered suggesting to the House that those trials should be removed from jurors.

Although I will be giving the Government the benefit of the doubt, which I know is disappointing to the hon. Gentleman, I take seriously his point about the wedge in the door. As I have mentioned to my hon. and learned Friend the Solicitor-General, I am concerned about the possibility that if this goes through, the Government might be encouraged to go further. I have had an assurance from my hon. and learned Friend that that will not be the position, but I am concerned. Is the hon. Gentleman aware that the question of the wedge is not lost on a number of Labour Members?

I am pleased to hear the hon. Gentleman’s comments, but sorry that I may not be able to persuade him to join us in the Division Lobby on Third Reading and elsewhere during the afternoon, because I fear the wedge. Realistically, the measure is a wedge and the hon. Gentleman should remember what happened during proceedings on the Criminal Justice Act 2003, when the Government were considering much bigger wedges that had to be fiercely resisted.

I am interested in the hon. Gentleman’s arguments, with which I sympathise, like my hon. Friend the Member for Walsall, North (Mr. Winnick). Is the suspicion that the Government have looked for the aspect of law where it might be easiest to argue for the wedge, or are they primarily concerned about fraud? Is the most important thing the wedge or the fraud aspect?

As the hon. Gentleman knows, the Government whom he supports are greatly driven by opinion polls. Indeed, I have come to the conclusion that they frequently take opinion poll soundings. We know a little bit about such soundings, although things may have changed. I once saw an interesting internal document that the Government produced a couple years ago—I am not sure that I should have seen it, but it seemed to land on my desk. It explained some of the Government’s background motivation on the issue of fraud trials. It recognised that support for the principle of jury trial was extremely high. Equally, the Government’s soundings showed that the public were disquieted by occasional examples of fraud trials that cost huge sums, ran for many months and then collapsed. On the back of those findings, the Government seemed to adopt the approach that they should apply their mind to the issue of long and complex fraud trials, because the findings were a justification that juries should be dispensed with in such cases.

That point is germane to the amendment because as I was trying to explain, I find it difficult to follow the intellectual argument, since there are plenty of other examples of long and complex trials. Another important point is that the evidence suggests that long and complex fraud trials that collapse do so for reasons that have nothing whatever to do with juries. That is the evidence that came out of Mr. Wooler’s report on the Jubilee line case, although at first sight, when his findings were splashed all over the papers, a bad impression was created of a trial with a jury that had lasted 18 months and had collapsed. The trial had cost millions of pounds—I cannot even remember the sums involved, but they were colossal—so it appeared to have a somewhat scandalous quality. However, when one reads Mr. Wooler’s report, it turns out that the problems lay with the Crown Prosecution Service’s approach to the matter. There may also have been other factors on which Mr. Wooler was not in a position to comment, but one thing is certain: the collapse had nothing to do with the jury. The supporting documentation went quite the other way and showed clearly that the jury was working well in that case.

Is not my hon. Friend’s point reinforced, and our concerns about the Government’s motivation and the risk of a wedge made even greater, by the fact that in the preface to the report the Attorney-General attempted to fly wholly in the face of the evidence Mr. Wooler had collected? The Attorney-General attempted to whitewash his position by suggesting that the evidence did not justify Mr. Wooler’s view that the jury was capable of carrying on with the trial, whereas in fact the detailed evidence and the best research on the attitudes of juries demonstrates clearly that my hon. Friend’s position is right. Why did the Attorney-General feel constrained to make such a wildly inaccurate comment—on the face of it—in the preface to the report?

I agree: that point very much troubles me. Furthermore, at the time of the news of the collapse of the Jubilee line case, spin doctors somewhere in Government were hard at work saying that it was a classic illustration of why juries should be got rid of in fraud trials. I certainly do not blame Law Officers for that, but that is what appeared in the newspapers and it came from Government sources. It is apparent that the propaganda machine was well tuned up and that case was seen as a particular opportunity. I cannot help but think that one of the reasons why we have returned to the matter is the stand-off, and the problems, that took place in 2003.

I concur with my hon. Friend about the importance of maintaining the principle of jury trials. Should not Members on both sides of the House who support that principle support the new clause, too? However imperfectly it may mitigate the breaching of that fundamental principle, it would at least keep the wedge as thin as possible. Those who do not support the new clause, but support the principle, will have to explain why they cannot support a thin wedge. Why are they going along with the fundamentally flawed rationale behind the Bill?

I am grateful to my hon. Friend. I agree. I encourage Members of the House who are concerned about what the Government propose to consider carefully new clause 5, which is the proposal I am talking about. If we succeeded in incorporating it, the Government would probably still have their Bill—unless we can defeat them on Third Reading, which is inherently unlikely—but it would include a protection that would make it unlikely that a trial without a jury could ever be ordered.

The hon. Gentleman has covered some of the points that I wanted to make. It is an extraordinarily naïve view to suggest that the measure is not the wedge to which he refers. Even if we were to accept the argument that juries have difficulties with such trials, which is not supported by the evidence, the best argument was put forcibly by his right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg): no argument with any intellectual integrity can distinguish between the circumstances of a complex fraud trial and other long and complex trials. Any argument that the Government use, therefore, to support this measure can equally be applied, and sure as eggs is eggs, will be applied, to other trials in the future, which is why it is so imperative that we defeat it either here or in another place.

I agree. That is what we must all try to do.

I want to bring my remarks to a close. I commend new clause 5. Although the Bill is a bad one, it will be slightly—very marginally—better if it includes the new clause, because it will be much harder for a prosecutor, in making his application, to succeed in persuading any judge who applies himself rationally to the issue that trial without a jury can be ordered. To succeed in showing that complexity and length will have an impact on the safety of the verdict when all available evidence is to the contrary will be a high hurdle, which is precisely what I want to create.

I shall deal first with the detail of the new clauses before considering the more general arguments made by Opposition Members.

New clauses 4 and 5 would both alter the conditions in subsection 43(5) of the Criminal Justice Act 2003. New clause 5, on which I understand that the hon. Member for North Southwark and Bermondsey (Simon Hughes) wants to divide the House, would require the legislation to be changed so that it no longer referred to the effect of the length and complexity of the trial in terms of the burden imposed on the jury and the interests of justice, but to the effect on the safety of the verdict. To some extent, we have dealt with those arguments because, as I observed in Committee, the Government do not accept that there will be any effect on the safety of the verdict. We think that judges are able to reach verdicts and that they are able to reach verdicts that are safe. Indeed, every day in this country, district judges do that in magistrates courts and nobody complains about that.

rose—

Let me deal with this issue. I will then give way.

What I have just said is not the reason why section 43 is needed. It is not part of our case to suggest that juries or judges in such cases bring in verdicts that are unsafe. The presence or absence of the jury will not have an effect on the fairness of the trial itself.

In his closing remarks, the hon. Member for Beaconsfield (Mr. Grieve) seemed to reveal what the new clause is really about. He said that if it were passed, it would be very unlikely that there would ever be a non-jury trial. In other words, it is a wrecking amendment. It seeks to wreck the intention behind the Bill. I therefore inform Opposition Members that the Government will oppose it.

rose—

I will certainly give way to the hon. Gentleman, but I have agreed to give way to the hon. Member for Cambridge (David Howarth).

I thank the Solicitor-General for giving way, but he has got the argument the wrong way round. The new clause is not about the safety of the verdict if there is a judge-only trial; it is about the safety of the verdict if there is a jury trial. The new clause attempts to put into place a rule that says that only if the safety of the verdict would be endangered in a jury trial should a jury trial be excluded. The Solicitor-General might be right to say that that would fundamentally change how the Bill works, but that is the intention behind the new clause.

The hon. Gentleman is right that that is the intention, but I was trying to deal with both sides of the argument: what if there is a jury, and what if a judge makes the decision? In our view, the safety of the verdicts will be there in any event. We are looking at what the best conditions will be for the judge to decide whether it should be a jury or non-jury trial. We therefore need to look at both sides of the argument and our view is that it will be a safe verdict either way.

If it is a safe verdict either way, why are we passing this Bill? That is the question that needs to be addressed. The new clause is not a wrecking amendment. I reassure the Solicitor-General that it is designed to go to the very heart of the Government’s concerns. In doing so, and if the Government realise that their concerns are misplaced, at this late hour I urge him to tell his colleagues to drop the Bill.

As the hon. Gentleman knows very well, he has misinterpreted what I have just said. We were talking about the safety of the verdict and the verdict would be, no doubt, safe whether it was decided by a jury or a judge. The problem or mischief that we are addressing is how, over a considerable time, the process in serious and complex fraud trials has resulted in the courts and the prosecution, in particular, having to adopt a number of stratagems that have meant that the full culpability of the crime committed by particular individuals has not been exposed in court. That has been done by reducing the number of counts on the indictment so that all the counts that could have been put are not put, by dropping some of the less serious defendants out of the indictment so they never get punished, and by severing indictments so that we get two trials rather than one.

rose—

I am dealing with an intervention; I will happily give way in due course.

What I have described means that the full culpability of a particular defendant does not get exposed in a particular trial. It may get exposed in a couple or maybe even three trials on occasions, but the case is not properly set out in a trial before the public and before a particular court. That all happens not because that is the way in which the courts want to do things, but because the requirements of oral presentation of documents and evidence to a jury mean that the process that takes place is lengthy and puts a substantial and undue pressure on certain juries.

rose—

Let me deal with the intervention and then I will give way.

The report on the Jubilee line case gives us evidence of the burden on juries. If the hon. Member for Beaconsfield looks at page 7 and the interviews with jurors in that case, he will see that the report says:

“Some jurors had serious difficulties with their employers, including attempts to dismiss them, and would have liked more concrete help.

There are several quotes from jurors. One said:

“They told me to sign or I would have no job to go back to.”

Another said:

“He sent me a P45”

The report adds:

“Unco-operative employers could also cause problems over claims for allowances.”

It quotes a juror as saying:

“As a juror it is your responsibility to get the stuff off your work, so if your work is being funny about it, if they don’t want to fill in the form…it’s a bit of a joke.”

There is a whole series of such quotes.

The report goes further on page 13. The hon. Member for Beaconsfield mentioned the report, so let me draw his attention to some of the points on the other side of the argument. The report deals with the jurors’ return to work and says:

“Return to work for seven of the 11 interviewed presented continuing problems nearly five months on. These include one who has been made redundant, one in an employment dispute, one required to undertake extensive re-training who has missed a definite and much desired promotion, and one signed off by his doctor as suffering from stress as a result of the work situation.”

It goes on.

My point is about the burden being imposed on juries as a result of very lengthy and complex fraud trials, and the House should take cognisance of that. Given those points, we need to ensure that we have legislation that allows the full culpability of a defendant in a complex and serious fraud trial to be exposed before the court without placing such undue burdens on jurors.

As the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said, problems can arise in a range of other lengthy trials. That is certainly the case, but no other area of law or type of criminal case has the history of serious and complex fraud cases. That has been made clear by Roskill and Auld; I do not need to go into the history of this. The House has debated the issues on many occasions.

I can say to my hon. Friend the Member for Walsall, North (Mr. Winnick) that we do not have plans to go further. There is no wedge. This is about a particular area of criminal law that has a long history.

rose—

rose—

I promised to give way, but I then intend to make progress. I give way first to my hon. Friend the Member for Walsall, North and then I will give way to the right hon. and learned Gentleman.

The Government are having a relatively easy time from Labour Members because we recognise many of the arguments that the Solicitor-General he has put forward. But—and there is a “but”—there is the concern that he has just mentioned that the Bill could lead to what the Opposition call a “wedge”. The argument is that some other cases go on for a long time and when jurors in them return to work, they could face some of the problems that he has just mentioned. I want to make it absolutely clear that I go as far as what is being proposed, but I would be very much opposed—I believe that quite a number of other Labour Members would be too—if further measures were brought in at some stage that would escalate the pace of change. I am very much an upholder of the jury system

I hear what my hon. Friend says. We have been careful in relation to the Bill. We brought forward, as we promised, a stand-alone Bill. In Committee, there were suggestions from the Opposition that we should go further and extend the opportunities for non-jury trials. It was proposed that there should be so-called equality of arms and that the defence should also have the opportunity to ask for a non-jury trial. We took the view that we have indicated to Members such as my hon. Friend, who have said that they want us to go so far but no further, that that is our view, and so we do not propose to go further in the Bill and extend the provisions to the defence. By its nature, that would mean that there would be more non-jury trials, or at least the opportunity for more non-jury trials. We have therefore taken the view that we will not extend the provisions to the defence.

On the narrow issue of the Jubilee line case and the inquiry, it needs to be placed on the record that the overwhelming burden of the report was that the case was an aberration, because of the way in which it was presented and run, largely by the prosecution. Of course, that put a burden on the jury. However, it also needs to be on the record that in September of the year before the March in which the case was stopped, and also in February, defence counsel wrote to the Attorney-General and told him in terms that the case was an aberration and was heading for the rocks. I am sorry to say that, in September, the Attorney-General, having looked at that correspondence, did not intervene in the case. Had he done so, many of the problems that people are now canvassing would have been avoided.

I hear what my hon. and learned Friend says. I have recently written to him to set out in some detail some of the issues in relation to the Jubilee line case, because he has raised that matter with me on previous occasions, and I thank him for doing so. The report makes it clear that it may well not have been appropriate, in any event, for the Jubilee line case to have been a non-jury trial. To some extent, in dealing with the whole issue of the Jubilee line case, there is a certain amount of academic interest, rather than practical interest, in the sense that the trial probably would not have been suitable under section 43 of the Criminal Justice Act. None the less, the case is of academic interest, and perhaps even practical interest, for this reason: it exposes to some extent some of the issues in relation to burdens on juries and—in terms of the point of view of Opposition Members—the ability of juries to understand cases. Both those issues are exposed in ways that we might not normally get the opportunity to see, because such research is not usually carried out.

rose—

rose—

I promised to give way to the right hon. and learned Member for Sleaford and North Hykeham.

The Solicitor-General really must address the central issue in the debate, which is whether or not the provisions are a wedge. He has quoted from pages 7 and 13 of the report, on the reaction of the jurors and the damage that the case caused to their employment. Those are points that could be made of and in any long case. He has to tell us where the distinction of principle lies between a fraud case and any other long case.

The distinction is quite clear. There is no other area of criminal law that has had the history that complex and serious fraud cases have had. We have had the Auld report and the Roskill report. There has been legislation. We have had many meetings and discussions about this matter. No other area of the law has been subject to such lengthy debate over decades. The issue has a level of uniqueness that enables us to proceed with it. I can say clearly to the right hon. and learned Gentleman and others who may have concerns that we see this as a unique issue. We do not see it as setting a general precedent. We believe that the Bill deals with a particular, unique problem to which attention has been drawn for a considerable time.

rose—

I will give way to the hon. Member for Beaconsfield and then I must make some progress.

My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) touched on the point that I want to raise. I do not see how the Bill cannot raise general issues of principle. If any trial overruns its estimated time or date—I am afraid that that happens; there are a number of major criminal trials that are nothing to do with fraud that have done so—that will place burdens on the jury. The argument that the Solicitor-General is putting forward could equally well be advanced for those trials. That is why it makes me anxious that that is the point on which the Government seem to have latched. If it is the Government’s position that any burden on jurors is unacceptable because it may be disruptive to their lives, the whole jury system is going to collapse.

The hon. Gentleman is not normally accused of hyperbole, but on this occasion such an accusation can fairly be made. The jury system is not in a position where it is likely to collapse. We have nearly 30,000 jury trials in this country. We estimate that the Bill will affect some half a dozen of them. The idea that the jury system is about to collapse as a result of the Bill is ridiculous. We are dealing with a particular area in which there is a unique and long history of reports of a serious nature that have affected reforms across the criminal justice system. There has been a clear indication that the issue needs to be addressed. Some have felt that we can deal with it by means of procedure, but we have tried that repeatedly and we have found that it does not adequately address the problem. The length of some of the trials has been quite great and the way in which evidence has been dealt with in those trials has raised quite serious questions.

rose—

I will give way to the hon. Member for Cambridge and then I really must make progress.

Perhaps I can ask the question slightly differently, and without hyperbole: what difference does it make that the subject matter of the trial was fraud, as opposed to anything else, when it comes to the difficulties that jurors have suffered? If the Solicitor-General cannot explain that to the House, the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) still stands.

Over a long time, we have had a series of reports in relation to the criminal justice system, by serious and eminent lawyers, that have identified serious and complex fraud cases as a particular problem in relation to the way in which evidence needs to be presented orally to a jury. That has produced a series of problems of manageability in those kinds of cases. The issue is the combination of the complex nature of fraud, quite complex areas of law, and quite lengthy documentation—thousands of pages of documents. That means that there can be substantial legal arguments, which means that the jury will be out. We all know the problems that have arisen in serious and complex fraud cases and we all know that they have not arisen in the same way in many other cases. The Government see such cases as a unique issue, which has a long history that other areas of law do not have. We can say with absolutely firmness that there is no wedge. I cannot put it more clearly than that.

I have to make some progress and deal with new clause 4. I think that the hon. Member for North Southwark and Bermondsey is going to have some problems with new clause 4. It would make another change to the condition in section 43(5) of the Criminal Justice Act. The present subsection states that the judge has to be satisfied that the trial is likely to be so burdensome to a jury that

“the interests of justice require that serious consideration”

be given to conducting it without a jury. At first sight, one might be tempted to ask whether it would not be logical to say, as the new clause does,

“so burdensome.. that the interests of justice required that the trial should be conducted without a jury.”

The purpose of the condition, however, is not to state the consequence of a finding that the trial is likely to impose a heavy burden, but merely to define the degree of burdensomeness that must be present before use of the power is considered. If the judge finds that a trial is likely to be burdensome to the required degree, it does not follow that he must make an order under section 43 of the Criminal Justice Act 2003. There may be other considerations that prompt him not to do so.

This debate has been more interesting than I anticipated it would be. We have heard about three different types of argument—my hon. Friends have counted them—for why we should move in the direction proposed by the Government.

I shall concentrate on new clause 5. The fundamental flaw now revealed in the Government’s argument—it has been cited by Liberal Democrat Members—is that they are praying in aid an argument that could apply to any long trial. I should like to discuss the evidence in the Jubilee line case. To those who read our proceedings later, I commend the full, officially commissioned report, “Report on Interviews with Jurors in the Jubilee Line Case”, by Professor Sally Lloyd-Bostock of Birmingham university. A section entitled “Effects on employment and careers”, from which the Solicitor-General took examples and read excerpts, does indeed say that a long trial could impact adversely on the individuals concerned, but it goes on to address, in greater detail, the issue of fraud trials and the type of trials that we are discussing.

The only substantive addition that I want to make to the debate is to put on record what the report said on that subject, because this debate is not about long trials, but about fraud trials, and uniquely and unusually, we have clear evidence on fraud trials. A section headed “Portrayal in the media” said:

“Jurors felt unfairly portrayed as the cause of the collapse of the trial. They particularly objected to the portrayal of them in the press as unable to understand evidence or remember evidence and reach a fair verdict. Some were not particularly concerned, but others were very upset.”

Then there is a quote from someone:

“I was just so angry—to blame us when it was not managed properly, it was a farce.”

There is a whole section dealing with jurors’ responses to cases such as the Jubilee line case. Bearing in mind that that was one of the longest trials ever and that it was later aborted, it is interesting that under the heading, “The jurors’ attitude to their jury service at the start of the trial and as it progressed”, the report says:

“All but one juror still definitely support the principle of jury service. There was considerable concern…expressed about the removal of the right to jury trial, including for long trials.”

That is the jurors, and not the politicians, speaking. The report quotes a juror:

“on any trial, [trial by jury] is a fundamental right of any British person. If you start bringing in judges, or financial wizards or whatever you are not being judged by your peers.”

The professor’s report goes on to say, in a section called “The jury’s understanding of the case—overview”, that

“There are obvious limitations to assessing the extent to which the jury in fact understood the evidence and the issues in the case on the basis of the interviews. Because a juror says he or she understands, we cannot be sure he or she really did. Moreover, the jurors were interviewed almost five months after the…trial…Within those limitations, it did appear that when the case collapsed this jury, taken as a group, had a good understanding of the case, the issues and the evidence so far, as presented to them… The interviews show the importance of considering the jury as a whole.”

The report continues:

“The jurors’ assessments of their own and others’ understanding produced a consistent, generally optimistic picture.”

In that same section, following paragraphs show that even though the jurors were interviewed five months later, without their notebooks and their notes, they were not thrown by the fact that the trial was a fraud trial. That is the fundamental point.

The Solicitor-General is wrong when he says, “We’ve tried everything else,” because we have not yet done so. In the past two years, there has been the Lord Chief Justice’s protocol of 2005, the changes brought about as a result of the Jubilee line case, the inspector’s report and the Law Officers’ recommendations, the Fraud Act 2006, and the testing of the Domestic Violence, Crime and Victims Act 2004. In addition, there is a cross-governmental review that has not yet produced its final report and recommendations. All that has meant that there have been practical changes in the way in which prosecution and defence manage their cases.

The point of new clause 5 is that if we lose the argument on the principle, we at least want some reserve positions or fall-backs. The best fall-back position would be to ensure that burdensomeness and length of trial were not sufficient of themselves; there must be an “interests of justice” case and a “safety of the verdict” case, too. That is why we would include the backstop positions set out in the new clauses.

I ask the House to support new clause 5—if you allow us to vote on it, Mr. Deputy Speaker—not because it would be good to have a Bill that included the amendment, but because if, in the end, we have to accept a Bill that takes such a nonsensical and illogical route, it is better to make that slight improvement to the conditions that must be met if there is to be a non-jury trial. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 5

Conditions to be satisfied (No. 2)

‘In section 43 of the Criminal Justice Act 2003 (c. 44), for subsection (5) substitute—

“(5) The condition is that by reason of the complexity or length of the trial, or both, and their likely impact on the safety of the verdict, the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.”.’.—[Simon Hughes.]

Brought up, and read the First time.

Motion made, and Question put, That the clause be read a Second time.

The House divided: Ayes 190, Noes 278.

I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss the following:

New clause 10—Duty to hear oral representations—

‘(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.

(2) After subsection (3) insert—

“(3A) In determining an application under subsection (2) the judge will grant—

(a) the prosecution,

(b) the defendant, or

(c) any of the defendants in cases where there is more than one defendant,

the opportunity to make oral representations, and will take such representations into account in deciding whether to make an order that the trial is to be conducted without a jury.”.

(3) In subsection (4), at end insert “and no approval may be given in circumstances where the defendant, or any of the defendants in cases where there is more than one defendant, have not been granted an opportunity to make oral representations under subsection (3A) and for those representations to have been taken into account.”.’.

New clause 11—Safeguards—

‘(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.

(2) In subsection (3) after second “satisfied”, insert “, or otherwise believes that such an order would, if made, significantly disadvantage or otherwise prejudice a defendant, or any of the defendants in cases where there is more than one defendant,”.

(3) In subsection (7) of the Criminal Justice Act 2003, leave out “prosecution” and insert “, the defendant, or any of the defendants in cases where there is more than one defendant.”.’.

New clause 13—Application by defendants for certain fraud cases to be conducted without a jury (No.2)—

‘In section 43(2) of the Criminal Justice Act 2003 (c. 44), after “prosecution”, insert “, the defendant, or any of the defendants in cases where there is more than one defendant,”’.

New clause 14—Rights of the defendant—

‘(1) Section 43 of the Criminal Justice Act 2003 is amended as follows.

(2) In subsection (3)—

(a) for “that the condition” substitute “any of the conditions”, and

(b) after second “satisfied” insert “or otherwise believes that an order if made would significantly disadvantage or otherwise prejudice the defendant (or any of the defendants in cases where there is more than one defendant).”.

(3) In subsection (4) after “him” insert “who, before he gives such an approval, shall consider whether the prosecution (or the defendant, or any of the defendants in cases where there is more than one defendant) should be given the opportunity to make oral or written representations to him, and if he so determines an opportunity to make such representations shall have been given.”.

(4) In subsection (5) at the beginning insert “in the case of an application by either the prosecution or a defendant”.

(5) At the end of that subsection insert—

“(5A) In the case of an application by the defendant the condition is that the complexity of the trial or length of the trial or the nature of the evidence that is likely to be called is such that the interests of natural justice require that serious consideration should be given to the question of whether a trial should be conducted without a jury.”

(6) In subsection (7), at the end insert “the defendant (or any of the defendants in cases where there is more than one defendant).”.’.

This group contains a range of proposals. Again, I preface my remarks by saying that they do not qualify our views about the Bill, which we do not want. After the preceding debate we are even more clear that the case for the Bill—that fraud trials need judges without juries—appears weaker, because the argument seems to be that long trials are a problem. That problem should be dealt with by procedural means, and many remedial steps are in train.

However, if we are to improve the Bill, there are three proposals that my colleagues and I put before the House, and further proposals in the group from other colleagues. Our first proposal is that if an application for a trial without a jury is allowed to be made to a judge and approved by the Lord Chief Justice, it should be possible for it to be made by the prosecution or by the defence, and by any one of the defendants, if there are more than one.

During the previous debate, the Solicitor-General commented that in Committee the Opposition had proposed that the exemption from jury trial for serious cases should be extended. We were arguing, as he knows, not that we want that to happen, but that if some serious fraud cases in a ring-fenced group of cases are to be heard by a judge alone, there is no logic in justice why both parties to the case—the prosecution and the defence—should not be able to apply for that. It cannot be a fair system if only one side can apply.

It could be argued that it would usually be to the advantage of the prosecution to go before a judge alone, because judges are—I do not mean this pejoratively—hardened in dealing with such cases, whereas juries are not. Members of a jury are unlikely ever to have done a long or difficult case before, and unlikely ever to have to do a jury case again, because they are usually exempt from jury service after serving on a long or difficult case. Jurors therefore come fresh to the case and give it their particular attention, never having served on a jury before.

Many defendants, those representing them and their witnesses might think the system was unfair if it allowed only the prosecution to put the case for going before a judge alone. They might ask why they should not have the same right. There might be cases where a defendant preferred the case to be tried by a judge rather than a jury. Apart from the situation that I mentioned earlier, I can think of only two examples, which are simplistic, in which there had been a great deal of press coverage before an arrest or a charge.

If the defendant or one of the defendants was a woman and the judge was male, the woman might prefer to put her case to a mixed group of people, including women. Similarly, a black or minority ethnic defendant might prefer a jury to a white judge, male or female. However, there are some cases, usually those that have attracted publicity, where defendants might prefer to go before a judge. Such cases are fairly rare. I have not heard defendants make the case to me, or to us, by representation, for a judge trial rather than a jury trial.

May I add the other category, to which I alluded: cases which are likely to be a substantial cost to the defendant, through lack of employment or through direct cost?

Indeed. That is more true now that the rules on legal representation have changed. There has been criticism—justified, in some cases—that people who appear to be well off have been getting legal assistance from the public purse for a long case, and there may be more of those cases.

To summarise, people might normally prefer a jury to a judge, because they think a jury might represent them better, for gender, ethnic or other reasons, but in a case that has attracted great publicity or, as the right hon. and learned Gentleman says, in one involving substantial cost, they might prefer to appear before a judge alone. New clause 9 argues for equality of opportunity to make the case.

New clause 10 makes the supplementary point that, if a judge is to consider an application from the prosecution, there should be an opportunity for oral representations—a public presentation of the reasons for not wishing the case to go to a judge-only trial—or, if one defendant made such an application, the other defendants should have the right to present orally to the court the reasons for not wishing the case to go before a non-jury trial.

The new clauses are important and we had an opportunity to explore some of the issues surrounding them in Committee. They raise a difficult matter, as touched on by the hon. Member for North Southwark and Bermondsey (Simon Hughes). New clause 9—or, for that matter, new clause 13, which was tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg)—has the consequence that more trials without juries are likely. The provisions give the defence an opportunity to make an application for trial without a jury.

In Committee—and even now—I have found myself slightly torn on the matter. I believe in jury trials and I do not believe in the Bill, but I also believe in fairness. It seems to me that if a system is to be introduced by which a prosecutor can go to a judge on an application and argue that the defendant should be deprived of the opportunity of a trial by jury—notwithstanding the fact that the defendant may wish to have one—it is very difficult intellectually to argue that the defendant should not have a similar right if he does not wish to be subject to jury trial.

That has had the effect of overcoming my initial reluctance, because the more I think about it—and if I have to contemplate the fact that the Bill will one day be on the statute book—the more I believe that it becomes apparent to anyone looking at the mechanisms that this has been produced entirely for the benefit of the prosecutor. In a sense, the proof of the pudding will be in the eating, because if defendants wish to rely on jury trial and the prosecutor does not ask for them to be deprived of it, they will doubtless not make the application in the first place. For those reasons, I take the view that new clause 9—or, for that matter, new clause 13—could provide a minor improvement to this very bad Bill, which I do not support in principle.

I was rather struck by the fact that this matter was discussed by the Solicitor-General and me in Committee and that the Government were subsequently informed that if they were to move an amendment to allow this provision to happen, Conservative Members would not seek to stand in their way. Interestingly, the Government turned down the opportunity. In a letter to me and other members of the Committee, the Solicitor-General said:

“Opposition members also raised the question whether defendants, as well as the prosecution, should be able to seek non-jury trial. There are strong arguments for allowing defendants to waive their right to trial with a jury, and indeed a general power of jury waiver was originally included in the 2003 Criminal Justice Bill, although this was subsequently removed following Opposition resistance. A case could certainly be made for a limited provision enabling defendants in serious and complex fraud cases to waive jury trial. The Government is not sure, however, that it would be appropriate to include such a provision in this particular Bill.”

The letter then went on to say that the Government had previously given assurances that all that they were trying to do was to allow the prosecution and no one else the opportunity to make such an application.

I have to say that, to my mind, that paragraph gives a rather clear indication of the way in which the Government have been coming at this particular matter. First, the Solicitor-General appears in his letter to conflate the general resistance, which we saw in 2003, to allowing any defendant to make an application for trial without a jury, with the specific issue that we have to consider here. I want to make it absolutely clear that the two have no similarity whatever. I would resist to the bitter end any suggestion that defendants should be given a general power to elect trial without a jury. Indeed, we rehearsed that in 2003 and we made it quite clear then that it was probably a charter for the white-collar defendant who wanted a sympathetic judge, rather than a jury that might take a robust view of his activities. For that reason, the general idea of the defendant having an option for trial without a jury does not commend itself to me at all.

In this particular case, however, I have to say that I am swayed in my view. I shall listen carefully to what the Solicitor-General and, for that matter, my right hon. and learned Friend the Member for Sleaford and North Hykeham have to say. As between new clauses 9 and 13, I have a preference for new clause 13, which should not present much difficulty to Members who want to support it.

New clause 11, tabled by the Liberal Democrats, is of a different order. It seeks to introduce the principle that any decision not to have trial by jury should not

“significantly disadvantage or otherwise prejudice a defendant”.

The issue of widening the scope of trial without a jury does not arise in this instance. The new clause would provide an extra safeguard, similar to the other safeguard that we attempted to introduce in the earlier group of amendments. If the hon. Member for North Southwark and Bermondsey were minded to press this new clause to a vote, I would have no hesitation in supporting it.

The Solicitor-General said earlier that there would be no creep, in respect of the wedge in the door, once we had moved away from trial by jury in certain fraud cases on an application by the prosecution. However, these matters classically illustrate that that is very likely to happen. There would be a remorseless logic, once we started shifting away from jury trial in some cases, that would allow other people or groups to make similar applications. We cannot get away from that. The best thing that we could do with the Bill would be to vote it out on Third Reading. In the meantime, however, we have to live with the reality. There must be fairness, and as the Bill stands there will be a perception that it has been put together for the benefit and advantage of the prosecutor, and not of the defence.

The hon. Gentleman says that there is no possibility of stopping the creep once the wedge is in the door. When he read the paragraph from my letter, he ended by suggesting that I had said that we wished to give this right only to the prosecution. In fact, what I said in relation to not allowing creep was something different. I said that we had indicated to the House that we had

“no intention of going further than the provisions that are already in the 2003 Act regarding serious and complex fraud trials, and we are concerned that to add a waiver provision—even at the suggestion of the Opposition—could increase the number of non-jury trials and might leave us open to accusations of acting in bad faith.”

In other words, we decided that we were not going to broaden the wedge. We were, in an act of political will, taking a decision not to do so. It is possible not to do it, by political will.

I apologise to the Solicitor-General for not reading out the full paragraph. It was not that I wished to avoid that section; I simply did not wish to be too long-winded, and it is quite a lengthy paragraph. I entirely accept that that is what the Government said. Indeed, I had understood that to be the position from previous discussions with the hon. and learned Gentleman. In 2003, the matter was hard fought out between this House and the other place, and various assurances were given at the time. It is commendable that the Government should honour them.

Leaving aside the will and intention of the Solicitor-General for a moment, I would be interested to hear from him how it could be justified to give a prosecutor a right to make such an application, but not to give it to a defendant. That is the issue that new clauses 9 and 13 try to address. This is an important point and, as I have freely said to the Solicitor-General, it is one about which I feel quite uneasy. On the one hand, I wish to support the principle of jury trial. On the other hand, however, there is a logic—a slightly remorseless logic—that says that once we have given a prosecutor this right, it is unfair to a defendant not to give him the opportunity to make a similar application, should he wish to do so. That is the nub of this debate.

It is true that the Government, and we as parliamentarians, can ignore that logic. The Minister might succeed in finding a way around it without difficulty. I shall wait to hear what he has to say. He might be able to stand in the way of that logic at the moment, but it will be brought back up at some point, and the same argument will be made. It is precisely for those reasons that I would have preferred not to see this legislation being presented to the House at all.

I want to speak to new clauses 13 and 14, both of which I tabled. I also want to comment on new clause 11, tabled by the hon. Member for North Southwark and Bermondsey (Simon Hughes)— although this is one of the cases in which he has nicked one of my amendments from Committee, so I have the intellectual property.

I repeat what I have said on several occasions: I am thoroughly against the Bill. That said, we are also in the business of improving it. The fact that we are arguing for changes to the Bill to extend the range of cases that can attract a non-jury trial should not be used to argue that we favour the Bill.

New clause 11, in which I have the intellectual property, is admirable. It is designed to ensure that a judge who considers an application for a non-jury trial should be in a position to refuse that application if he or she concludes that the non-jury trial order would significantly prejudice the interests of the defendant. That seems to me to be a clear test, which is in accordance with natural justice and which I strongly commend to the House. Being as dispassionate as possible, I cannot identify a decent argument against it, save the argument of my friend the hon. and learned Member for Medway (Mr. Marshall-Andrews), who asserts repeatedly that the Bill is so bad that we should have nothing to do with it. I will certainly support the new clause if it is pressed to a vote.

On new clauses 13 and 14, the question is whether, given that the Crown can make an application for a non-jury trial, the same right should be given to the defendant. I have practised law, off and on, for 40 years or thereabouts. The assertion that one should give to the Crown the sole right to make an application of such profound consequence to the conduct of a trial, and deny it to the defendant, seems to me to be manifestly unfair. I can identify no principle on which someone who asserts that proposition could stand. The argument of parity of arms, equality of position and plain fairness points irresistibly in the direction of giving the defendant the same right as that given to the Crown.

Were the Solicitor General to accept this or a similar proposal, while we would denounce the Bill and the process, I would not accuse him of pushing the wedge into the wood, as I know that we are pushing the wedge into the wood. It would be dishonest of me to criticise him on that narrow ground, and I promise that I would not do so. I do not suppose for a moment that my hon. Friend the Member for Beaconsfield (Mr. Grieve) or the hon. Member for North Southwark and Bermondsey would do so, as we know that we are pushing the Government on this point.

Leaving aside the issue of whether the proposal is right in principle, the question also arises as to whether there are cases in which the defendant is likely to want to make such an application. We must consider that for two reasons. First, of course, we must consider whether the general right should be incorporated into the Bill. Secondly, if the answer is that it should, we must prescribe the criteria. The criteria on which the defendant will seek to make an application are not the same as those on which the Crown will seek to make an application; they are different, and probably different in kind. Therefore, I have tried to set out in new clause 14(5) the broad test that a defendant would have to satisfy to procure a non-jury trial order.

I suggest that there are at least five cases—doubtless there are others—in which a defendant might wish to make such an application. The hon. Member for North Southwark and Bermondsey identified two. The first, which I ventured to mention earlier, is cost. Increasingly, defendants will be paying their own costs. I do not particularly object to that in proper cases. Even when the legal aid fund pays the costs, the defendant can incur substantial losses through loss of employment or the fact that he or she cannot earn his or her income. In some cases a non-jury trial is likely to be shorter than a jury trial, and for that quite narrow reason a defendant might want a non-jury trial. It is a perfectly good reason, and one that should be available to defendants.

Secondly, I can contemplate a number of classes of case that a defendant might prefer to be tried by a judge alone. Defrauding of pensions is an example, in a climate in which people are very sensitive about their pension rights. If the allegation against the defendant was conspiracy to defraud a pension fund, for example, I can imagine the defendant being rather uneasy about leaving that question in the hands of a jury, given the background of which the House is now aware.

Let me give another example that is less flattering to ourselves, and cite the class of the defendant. Let us assume that politicians are among the least popular class of individuals. Would a politician—perhaps a high-profile politician—necessarily want to leave his or her case in the hands of a jury? In libel cases, the answer is sometimes no, and what is true of libel cases may well be true of criminal cases. A fairly unattractive politician—or just a politician—might reckon that he would have a fairer trial at the hands of a judge alone than at the hands of judge and jury.

I am concerned about what the right hon. and learned Gentleman is saying, particularly in view of cases in which there is, or may be, implicit prejudice. Sexual cases are another example. Are we really saying that juries should not be allowed to deal with cases involving inherent prejudice? That is an extremely wide range of cases. The example relating to pensions is rather a bad one, if I may say so. I know of no class that is more concerned about pensions than the judiciary.

That, of course, is not true now, although it was true before the Lord Chancellor met the legitimate—or illegitimate; that is a matter of opinion—aspirations of the judiciary. My understanding is that the judiciary are now happy with what the Lord Chancellor has done, so perhaps my point is better than it would have been six months ago.

What the hon. and learned Gentleman is actually saying—and it is a perfectly fair point—is that once we argue for any exception to a jury trial, we are creating a precedent. I understand that argument: it has considerable force, and it is the reason why the hon. and learned Gentleman and I will vote against the Bill on Third Reading. As my hon. Friend the Member for Beaconsfield suggested, once we open up this can of worms we are driven by logic to extend the class. That, of course, is why we are all against the Bill. However, within the narrow limits of a Bill whose provisions are confined to fraud cases, I think that we are entitled to go where the logic points, provided that what we do is fair within the framework of the Bill. That is my answer to the hon. and learned Gentleman. I know that we do not entirely agree on this point.

Let me now deal with two further categories. The hon. Member for North Southwark and Bermondsey’s point about publicity was entirely right. While applications to stay proceedings on grounds of abuse of process are available to defence counsel, there will be a range of cases in which a defendant might think that the degree of pre-trial publicity is such as to taint the process, although the force of the submission would not be so strong as to secure a stay of proceedings on those grounds. In those circumstances, the defendant might well seek a non-jury trial.

My last category, which was canvassed in Committee, is where a defence reveals some dodgy behaviour or unattractive conduct, but that falls short of the offence with which the defendant has been charged. In those circumstances, a defendant might think that a judge alone would be more likely to disregard the unattractive nature of the defence and to direct his or her attention exclusively to the legal merits of the allegation.

My point is that there are a range of circumstances—I have no doubt that Members will identify others—in which a defendant might want to make such an application. In new clause 14(5), I have tried to define criteria that meet the totality of the possible circumstances, and it also reinforces the argument that a defendant should be entitled to make an application.

I strongly agree with my right hon. and learned Friend. Does he agree that his point about costs would be greatly reinforced if the Government —as appears will be the case—were to adopt the Carter recommendations in respect of legal aid and put a cap on expenditure in high-cost fraud cases that are subject to legal aid? That would put legally aided defendants in such cases in an invidious position in relation to costs. Therefore, the Government’s proposals could aggravate the problem that my right hon. and learned Friend rightly identifies.

That is right. There is a general point that we need to keep in mind: even when a defence is funded by the state through the legal aid fund, the defendant very often suffers substantial financial loss that is irrecoverable even if they are acquitted. There is no doubt that the proposed legislation will bear on people facing long trials. I hesitate to make that point in the presence of the hon. and learned Member for Medway, as he will say that I am driving in the wedge, but we are talking about fraud cases only and we should be able to give the defendant the opportunity to say, “I cannot stand financially the prospect of a very long fraud trial.”

There is an issue of fairness. I hope that the Government will respond to what has been said. If they do so on this narrow point, I will not condemn them. I would greatly appreciate it if I could have the opportunity to press new clause 13 to a Division, notwithstanding that a different new clause has been moved and voted on. However, I recognise that that is within the discretion of the Chair.

This group of new clauses is interesting. The new clauses overlap to some extent, but they deal with three broad issues, which I shall seek to address in turn: the right of a defendant in a serious fraud case to seek non-jury trial; safeguards against prejudice to defendants by reason of non-jury trial; and the right to make representations and to have them taken into account.

Opposition Members raised in Committee the question of the right of a defendant to waive jury trial and the equality of arms argument, which has a lot of power. New clauses 9, 13 and—somewhat obliquely—14 make provision for defendants to apply. Under new clause 9, the defendant’s right would replace that of the prosecution to make an application, which would clearly be unacceptable to the Government. When the hon. Member for North Southwark and Bermondsey (Simon Hughes) explained his interpretation of that new clause, I was unsure whether he understood the implications of it—but if he did, perhaps he thought that I might not, but I do.

Let me deal with the substance of the debate. There are strong arguments for allowing defendants to request a non-jury trial—to waive their right to trial by jury. The hon. Member for Beaconsfield (Mr. Grieve) asked a reasonable question: why do we give that right to the prosecution and not give it to the defence? As he knows, a general power of jury waiver was initially included in the Criminal Justice Bill 2003, although it was later removed following Opposition resistance in another place.

At the risk of being repetitive, the two things are entirely different. The power to which the Solicitor-General refers was a general power, which did not exist for the prosecution, to enable a defendant to make an application for trial without a jury, subject to certain criteria. The prosecutor might object, for example, on the ground that public excitement about the case meant that the trial should take place with a jury. The Solicitor-General will accept that a good analogy cannot be drawn between the two situations.

I might have saved the hon. Gentleman the trouble of intervening if I had made the point that I was about to make, which is that the Government have not changed their mind about the general principle. It sounds as though some Opposition Members have not changed their minds about it, either, but that they see that there might be cause for making a change in particular, narrow cases.

A case could certainly be made for a more limited provision that would enable defendants only in serious and complex fraud cases to waive jury trial, and we have given some real thought to that possibility. The provision that we were considering would, like that in the 2003 Bill, have given defendants a right to non-jury trial, subject to veto by a co-defendant who wanted to be tried by jury. We doubt whether it would be practical to require a defendant, as the prosecution must, to satisfy any condition in order to secure non-jury trial, along the lines proposed in new clause 14(5). Our view was that, if jury waiver is to be available, it probably ought to be available on request. For example, if, in order to make the application, the defence had to show in detail that the exposition of its defence—rather than the evidence being put forward by the prosecution—was likely to result in a long and complex trial, it might have to expose all the detail and complexity of its argument. If we were to go down this route, a better way to proceed would probably be to give the defence a right to make the application, rather than circumscribing it with various conditions.

Having said all that, although I am not disputing the many points that have been made during the debate, there is one issue that weighed quite heavily with me. When we introduced the Bill, we made it clear that we wanted it to deal with an area of law that had a long and particular history relating to Auld and Roskill, and that we did not regard it as a wedge that could be extended to a series of other non-jury trials. I accept that the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) would say that he would not seek to use against me an allegation of bad faith if I responded to the Opposition’s request. However, I note that he subsequently went on to argue, despite saying that he would not do so, that there is an inevitable logic in extending the provision once we have got it. He was saying, in effect, that if we accepted the Opposition’s position, we would be accepting the inevitable logic of the provision’s being extended to other areas. He used that argument honestly—I am not implying any other motive—but I point out to him that there is a way of not extending that provision, which is to take the view that one will not do so. Indeed, we have given that commitment.

In discussions with the Opposition about introducing such a Bill, we gave various commitments and we have kept to them in good faith and with integrity. We and the Opposition disagree on the basic principle, and we are having that debate. It is important that, insofar as we can, we stick with the faith that we have had with the House that we will bring forward a Bill that deals only with the issue that was in the 2003 Act, that we will listen to the concerns of others and that we will have no further extension of non-jury trials.

If we were to accept the new clause, there would probably—although not inevitably—be a certain number of further non-jury trials because a defendant had taken that option. I therefore took the view that we would not make this proposal.

Would we ever consider the point again in the future? We have no plan to do so and we do not accept the wedge argument. It is a constitutional principle that no Parliament can bind a future Parliament, so we will have to see what happens in the future, but our position is that the Bill is what we want and this is where we stand.

How do the Government respond to the fairness point? Leaving aside the past assurances—although I respect the Solicitor-General’s position on that—how will the Government answer the question of fairness and equality of arms when the measure appears to give a special power to the prosecutor to circumvent the ordinary system of trial by jury, but denies a defendant a similar right to make an application to do so? Hypothetically speaking, a defendant might feel strongly about that point or be told by his advisers that the length of the trial, the burden on the jury and other issues might prejudice a fair verdict. How will the Government answer that argument?

As I have indicated, our view was that if we were to extend this right to the defence, we would do so without preconditions because of the impact on other parts of the trial. Therefore we would not create equality of arms. In a sense, we would be giving the defence greater rights than the prosecution. The unfairness would apply in a different way. I accept the strength of the hon. Gentleman’s argument and throughout this debate I have conceded that there are strong arguments on his side. Indeed, the Government put those arguments forward some years ago and still subscribe to some of them, but in putting forward this Bill we agreed to abide by what was in the 2003 Act and that is why I have taken the view that I have on the issue.

The Solicitor-General has made it clear on every occasion during the Bill’s progress that he has no intention of using the provisions to provide any precedent for future changes to trial without juries. Will he concede that if by some false measure the efficacy of the proposal was proved—perhaps by an increase in successful prosecutions—there would be a great pressure on future Ministers to give in and make concessions elsewhere in the legal system?

There are all sorts of pressures on poor old Ministers. That might be one of them, but Ministers also have to take a view about where they stand on an issue. I have done that, and the Home Office has done that, and this is where the Government stand. Another Government and other Ministers might take other views, but this is the position of this Government on this Bill.

The premise underlying new clauses 11(2) and 14(2) is that an order for non-jury trial under section 43 might disadvantage or prejudice the defendant. The Government do not accept that non-jury trial is capable of having that effect. Subsection (3) of new clauses 9 and 11, and subsection (6) of new clause 14, amend section 43(7) of the 2003 Act. That requires the judge, in considering whether there are steps that he could take that would reduce the length or complexity of the trial, to disregard any step that might significantly disadvantage the prosecution. The amendments refer instead—or, in the case of new clause 14, in addition—to steps that would disadvantage the defendant. However, the judge is under no obligation to make an order under section 43, and he certainly need not take steps prejudicial to the defendant in order to justify refusing to order trial without a jury.

New clause 10, which is the same as the new clause moved in Committee, and subsection (3) of new clause 14 would allow representations to be made in relation to an application under section 43. As hon. Members accepted in Committee, section 45 of the 2003 Act already does what we believe to be necessary. Section 45(2) provides that an application under section 43 must be determined at a preparatory hearing, which takes place orally. Section 45(3) provides that parties must be given an opportunity to make representations. If there is any ambiguity of interpretation, Pepper v. Hart means that judges will be able to look at what I as a Minister have said in this House.

Subsection (3) of new clauses 10 and 14 both relate to representations made when the Lord Chief Justice—or the head of criminal justice, Sir Igor Judge—is called on to consider whether to approve a section 43 order. The Government do not consider it necessary to prompt the Lord Chief Justice or Sir Igor Judge to consider whether the parties have been given an opportunity to make representations, as proposed in new clause 10, or to consider whether they should be given the opportunity to do so before him, as proposed in new clause 14. We believe that such matters are best left for the senior judiciary to determine, as that is what they are there for.

I anticipate that the process is likely to be that, after a full oral hearing for the initial application, the head of criminal justice will determine whether a further oral hearing is required. That would be entirely a matter for him, in all circumstances. Sometimes, that further hearing would not be needed, but sometimes it might. I make no commitment on that: we believe that the matter is best left for the senior judiciary to determine. The oral hearing will take place before the initial judge, and that is the best place for it.

I am grateful for the contributions on these new clauses. With your permission, Mr. Deputy Speaker, we intend to test the mood of the House in respect of new clauses 11 and 13.

New clause 9 is different from new clause 13, as it would allow an application on the instigation of the defendant alone, whereas new clause 13 would allow equality of arms. Those of my colleagues at the other end of the corridor who oppose the Bill believe that, if we are obliged to go ahead with it, trials should be held without a jury only at the instigation of the defence, and not at the instigation of defence and prosecution. None of us wants to go down that road, but the equality argument—one of the central planks of this short debate—remains valid, despite what the Solicitor-General said to the hon. Member for Beaconsfield (Mr. Grieve). If there is a case for the prosecutor to go to the judge and say that the case should be heard by a judge alone rather than by a jury, I cannot see how justice is done if the defendant cannot also do so.

To put it bluntly, there are two proposed alternatives. The first is that the defendant alone could make the application. I understand that the Government will resist that. The second is that there be equality of arms. I have not heard such a strong argument against that. The Government have said honestly that that was not where they were coming from, so that was not where they were. If, despite our opposition, the Bill receives a Third Reading and goes to the House of Lords for consideration, I hope that the Solicitor-General will reflect on whether at least that might be a step in a direction that made it more attractive—not that we would change our view on the substance of the Bill this year, but if the Bill were to become law in future.

There is a difference in importance between new clause 10 and new clause 11. I understand what the Solicitor-General said about the other sections in the 2003 Act which deal with the procedure of putting to the judge in a preparatory hearing the case for both sides before the judge makes that decision. New clause 10 barely increases the strength of the right to do that. It would make a small adjustment. New clause 11, however, would make a significant adjustment to the proposition. It adds another safeguard. We absolutely do not want the Bill, but if we are to have it, there need to be safeguards: the interests of justice safeguard, the security of the verdict safeguard and the interests of the defendant or the prejudice to the defence safeguard. The new clause seeks to ensure that we retain the prejudice to the defendant safeguard.

Finally, I turn to the matter that was referred to in the Government’s consideration of the position. I do not believe that the Government argument that if one gave equality of arms it would suddenly open up the debate, stands more than minimal investigation or consideration. Of course there would be the potential for more applications because both prosecution and defence would apply. Therefore there might be more trials of this type. The Government case is that this would be limited to serious fraud in any event, subject to the check of the judge and all the arguments, and then the check of the Lord Chief Justice or others, so there will be many checks down that road. In a way the Government have put their case on the basis of its being an experiment. For there to be an experiment, both sides need to have an equal opportunity to participate. That is not the case. It is a reason why the Bill should not proceed. If it does proceed, I hope that that is a reason why the House should support the new clauses.

If I may, I beg to ask leave to withdraw the motion.

Motion, by leave, withdrawn.

New Clause 11

Safeguards

‘(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.

(2) In subsection (3) after second “satisfied”, insert “, or otherwise believes that such an order would, if made, significantly disadvantage or otherwise prejudice a defendant, or any of the defendants in cases where there is more than one defendant,”.

(3) In subsection (7) of the Criminal Justice Act 2003, leave out “prosecution” and insert “, the defendant, or any of the defendants in cases where there is more than one defendant.”.’.—[Simon Hughes.]

Brought up, and read the First time.

Motion made, and Question put, That the clause be read a Second time:

I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss the following: Government amendments Nos. 1 and 2.

Amendment No. 15, in clause 2, page 1, line 16, at end insert

‘or a judge of the Crown Court who shall have been designated by the Lord Chief Justice or by a judge nominated by him to try the case.’.

Government amendments Nos. 3 to 6.

This is my last attempt in what has been a long process to tempt the Government to take an alternative course of action in the Bill. New clause 15 is drafted simply, and it provides a mechanism so that the prosecution can apply for trials to take place without a jury. The Solicitor-General will know that since the matter first arose in 2003 I have suggested that the Government consider the alternative of special juries if they are worried that the burden would be too great for people summoned off the street to serve on a jury panel, and if they fear that those jurors would not be able to cope with a lengthy trial.

The hon. Gentleman spoke of selling his idea to the Attorney-General and the Solicitor-General. Has he had any meetings with the Government to discuss the proposals in the spirit of compromise?

Let me briefly recap what has happened since 2003. I shall try not to take too long. An assurance was given in 2003, as the right hon. Gentleman will recollect, that the provisions of section 43 of the Criminal Justice Act 2003, which could not be implemented without a resolution of both Houses of Parliament, would not be brought in, and that the Government would look to bring in further primary legislation and would carry out consultations before they did so.

The right hon. Gentleman may also be aware that there is considerable disagreement between the Opposition and the Government as to whether consultation ever took place. The Government’s understanding of the consultation was a one morning-long seminar to which people were invited without appreciating that that was the only formal consultation that would take place. I was unable to attend. My noble Friend Lord Kingsland attended and was not aware when he was there that that was the consultation. Other people also attended, I think.

That was not a productive process. The Government then announced that they would proceed by trying to get the affirmative resolutions on section 43. When they tried to do that, the Lords indicated that it was in breach of the undertakings given in 2003 and that they would not go along with it. Following that, negotiations took place. I put it on record that the Attorney-General held meetings on two occasions with myself and other hon. Members, and that we had the opportunity to discuss in his chambers in Buckingham Gate the issues surrounding the options, but without the wider consultation that I expected as a result of the assurances given in 2003 by the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett).

I suggested at that stage that one possible way forward was the special jury system. Although there are drawbacks, I would find that an acceptable solution if it met the Government’s anxieties. I regret the fact that the Government have never been able to be tempted, so all I can do at this stage of the Bill is to see whether there are any other solutions that might tempt them.

That is what new clause 15 seeks to do. It would provide for a panel of experts drawn from the Institute of Chartered Accountants, the Society of Actuaries or

“other persons prescribed by regulations made by the Lord Chancellor”.

The measure’s title would be changed to “Fraud (Trials without a Jury but with a Panel of Experts) Bill.”

There is a difference between a panel of experts and a jury. The panel of experts would have exclusive right to determine the facts. To get round the problem that if it retires without the judge it becomes a jury, I included the concession that the judge should retire with it. I am not sure what the judge will do when he retires with the experts, but he could advise them on the law, which would be practical, and remind them of any salient facts. However, he could not determine any factual matter in the case of a disagreement.

That gives me an opportunity to resurrect, even at the eleventh hour, the principle of not following the route that the Government have chosen. If the Government gave even the smallest positive sign that the alternative that I have suggested would commend itself, we might make some progress rather than reaching the position whereby the Bill does not get through the upper House and may have to be pushed through under the Parliament Act. That is undesirable on a matter about which we should attempt to achieve some consensus.

The new clause might help to solve what appears to be the insoluble problem of public interest immunity applications. Will the hon. Gentleman tell me whether that was considered in Committee? If another tribunal will not deal with PII, how is it to be tackled?

We considered the matter in Committee. Indeed, we discussed the problem that would arise with trial by judge alone if various applications were made to the judge on matters of law, which might mean his being told facts that would not otherwise be placed before him. The Government’s attitude was fairly dismissive. They claimed that trained judges can put out of their mind what is irrelevant to their determination of matters of fact. The Government are satisfied that that will happen. I do not have that confidence. I profoundly believe that the system whereby judge and jury have separate roles in criminal justice in the Crown court is important. New clause 15 would go some way towards solving the problem, because the judge could still deal with points of law but have no role in determining questions of fact.

I appreciate that this question would be better directed to the Solicitor-General and I shall attempt to do that in due course. However, given that I did not serve on the Committee, I should be grateful for some guidance. How can the measure deal with articles 6 and 12 of the European convention on human rights? When a case goes to Europe, how could the measure deal with the defence argument of, “I was addressing a judge when he, with the prosecution, was privy to factual matters and allegations of which I had no knowledge”? The Bill would not have a prayer in a European court. How did the Committee consider that?

The matter was discussed in Committee, but the hon. and learned Gentleman would do better to direct his questions to the Solicitor-General. Anxiety was expressed about mixing the role of the judge as guardian of the process with his having to make findings of fact. We went into the process whereby judgments would be given in detail. However, much remained obscure to me. If the Solicitor-General can respond to the matters that the hon. and learned Gentleman has raised, I should be grateful. We did not consider the minutiae of some of the issues that were likely to arise, although my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), among others, referred to them.

I do not want to take up more of the House’s time on new clause 15. It is an alternative that, I am sure, contains many flaws, but I have to say that if I were offered the choice between the new clause and the Government’s preferred option—and they were the only two options available—I would opt for the new clause. It would preserve public confidence in the idea that the decision of innocence or guilt should be made by an independent group of people and not by a judge. I have always believed that that is one of the most profoundly important aspects of the criminal justice system that we possess today. I do not wish to see it eroded.

Briefly, Government amendment No. 1 is designed to provide that a trial by judge alone can be conducted by

“a judge of the Crown Court nominated for the purposes of that section by the Head of Criminal Justice”.

Because I have had an opportunity to talk to the Solicitor-General about it previously, I understand the reasons why the Government amendment was tabled. The straightforward argument is that there are not enough High Court judges to do this work, which will be long and onerous, and that some Crown court judges might be capable of sitting alone as judges in long trials.

I have two objections to that. First, my experience suggests that few Crown court judges are capable of sitting as judges alone—certainly not without extensive training. The vast majority of Crown court judges, particularly those with the heaviest work load, tend to come from a background of criminal advocacy—and very good at it they have become, too—and will not have had the experience of collating, marshalling and assembling factual material so as to be able to deliver judgments and manage the trial process. There may be exceptions—I am always prepared to accept that—but I do not think that there will be very many. Oddly enough, the exceptions are most likely to come—certainly in my experience of long fraud trials—from judges who also do civil work. Increasingly in my experience, however, that particular mix has become rarer rather than more common on the circuit benches. For those reasons, I have serious reservations about the proposal.

Secondly, my reservations extend to a matter of principle. I found it slightly curious that in the course of our previous debate, the Solicitor-General said that any suggestion that the defence should be allowed to make an application for trial without a jury

“could increase the number of non-jury trials and might leave us open to accusations of acting in bad faith.”

That is what he said in his letter to me. In actual fact, my recollection is that the assurance that a High Court judge would conduct the trial was one of the assurances given by the Government when they were trying to persuade both Houses of Parliament to accept their previous proposals—I see the Solicitor-General nodding—and for that reason alone, I would not be disposed to accept the Government amendment. I am conscious that it will be seen—particularly in the other place, I fear—as a breach of a previous undertaking. I am not quite sure how the Solicitor-General can reconcile this issue with what he said in respect of defendants applying for the right to trial without a jury.

Let me be very clear that it was Opposition Members who raised the issue with us in Committee and we agreed to go away and consider it. It was not an extension of non-jury trials—we had said that we would not do that. I consulted the senior judiciary on the matter and they were very strongly in favour of making the change. In those circumstances, we felt that it was right and proper to bring the change before the House. I do not think that there is any breach of faith. Indeed, during the course of the Committee stage, we listened to Opposition Members, took up a proposition, consulted the judiciary and came back with an amendment. I think that that is acting in good faith.

That is not the most persuasive argument that the Solicitor-General has ever put forward. He is absolutely right to say that the possibility was raised by the Opposition in Committee. It was debated and we tried to look objectively at its pros and cons. I also said in Committee that, while I appreciated that there was an argument in favour, it was a matter on which I wished to go away and reflect. The Solicitor-General will remember that he and I subsequently had a conversation, during which I explained that, having discussed the matter with my colleagues, particularly those in another place, I had come to the conclusion that I could not support the Government’s course of action. As a result of that conversation, I was left with the distinct impression—I do not mean to suggest any kind of breach of good faith here—that the Solicitor-General would proceed with this measure only if there were agreement on all sides that it was the course of action to take.

I was therefore slightly surprised, when I saw the Government amendments, that the matter on which I had suggested that we would support the Government—the right of a defendant to apply for a trial without a jury—had not been proceeded with, and that the Solicitor-General had decided to go ahead with the matter on which I had said that we could not support them—that of allowing Crown court judges to be nominated to hear the cases. I do not take issue with him on this; it is a decision for him, for the Law Officers and for the Government. It is clear, however, that the amendments represent a change from the previous assurance to try to bring people round to the Government’s way of thinking. In that sense, what I said earlier was absolutely correct, as I am sure the Solicitor-General will agree.

I do not dispute the history as the hon. Gentleman outlines it. However, as the matter was raised in Committee, the Government took further soundings from the senior judiciary. Having done that, and having received an enthusiastic reaction to the proposal, I believe it was right and proper to respond by bringing the measure back before the House. During our conversations, the hon. Gentleman said that the Opposition—the Conservative Opposition, at least—in another place would not support this change. It was our initial wish that Crown court judges be allowed to carry out the trials. We listened to early representations from the Opposition on the matter back in July, and agreed to change the proposal. However, when the issue was again raised by the Opposition, we took the opportunity to take further soundings from the judiciary, and now we are back here where we are. This has been a fairly straightforward approach. I do not think that my integrity or that of hon. Gentleman is at stake over this, but the Government do wish to proceed with the amendment.

I have no doubt that this exchange will be read with interest in another place. My personal view remains that High Court judges would be better placed to hear such cases, if we are to move to a system of trial by judge alone. The Solicitor-General has said that we are talking about only a handful of cases a year. In those circumstances, while it might prove burdensome for the High Court judges—I am sure that that is why they would like gently to get someone else to do the work—I am afraid that that is a burden that we shall have to impose on them. The Government have in the past recognised people’s anxiety that, if such trials were to take place before a judge alone, they should be heard by judges of the highest calibre. In those circumstances, it remains my view that it would be much better for High Court judges to remain the only judges who can try those cases.

I wish to say a few words about amendment No. 15, which stands in my name. It is similar in terms to Government amendment No. 1. I find myself very much in agreement with my hon. Friend the Member for Beaconsfield (Mr. Grieve) on new clause 15, which makes me yet more regretful that I do not agree with him on the status of the judge.

I entirely understand the arguments for confining these trials to a judge of the High Court; there is merit in that. It is true, however, that many Crown court judges have extensive experience in fraud cases. I do not have the experience of fraud cases that the hon. and learned Member for Medway (Mr. Marshall-Andrews) has, but I have been involved in two long fraud cases in recent years, both of which were conducted before a Crown court judge. One has only to keep in mind the nature of the cases going through the Old Bailey to recognise that many of its judges have substantial experience in long fraud cases. Some, of course, do not, and that is why a procedure for designation by the Lord Chief Justice or a High Court judge nominated by him as the designating judge should be allowed. I therefore conclude that we should not confine such trials to a High Court judge but should extend the right to Crown court judges who are designated by the Lord Chief Justice.

May I say how much I agree with the right hon. and learned Gentleman’s comments and, in this case, with what the Government are trying to do? Does not he share my sadness, however, that amendment No. 13, which he and I tabled jointly, has failed to make the cut? It would have ensured that the case would be tried by the same judge who decided whether it would be judge-alone. First, that is sensible, as the same judge would be reading the papers. Secondly, it would prevent the danger, which I am afraid exists, that one judge will dump on another judge the responsibility of trying a case on his own. If judges are going to make such an onerous order, they should make it for themselves, not for somebody else.

That is a very sound observation, and I was pleased to add my name to that amendment drafted by the hon. and learned Gentleman.

I shall not oppose Government amendment No. 1, but I shall certainly not go into the Lobby in support of it. I am against the Bill, and I do not wish to be associated with it in a positive way in any Division connected with enacting it.

All Opposition Members, and many Labour Members, are totally against the Bill. That is our great problem in debating the amendments, because even if every amendment that we supported were passed, we would still be against the Bill on Third Reading. All we are trying to do is make an awful Bill slightly less awful.

Is not it virtually without precedent that not a single Labour Back Bencher has stood up in support of the measure today?

I am not sure that it is without precedent, as I seem to have stood here on many occasions and heard not a single argument in favour of the Government, other than from their Front Bench. That is more a reflection of the quality of the legislation put before us than of the assiduity or otherwise of Labour Back Benchers. It is often difficult for them to support what Ministers would ask us to accept.

We must make a judgment as to whether the amendments would marginally improve an otherwise appalling Bill and should therefore be supported, or whether they cross a narrow line whereby, were they passed, the provisions would still be so abhorrent as to be unacceptable. I have difficulties with the amendments in this group.

I listened carefully to the comments of the hon. Member for Beaconsfield (Mr. Grieve), as I always do, and I know that he is trying to find some escape clause for the Government—some way that they can retreat while retaining some degree of face. He knows that we have all tried to find ways in which some of the arguments used can be accommodated. One of the difficulties is that the argument for the Bill changes almost every time that it is put—sometimes within the space of 10 minutes. The Solicitor-General can veer from one argument in support of the Bill to a totally different one when stymied by an intervention from the Opposition. It is therefore difficult to work out what the Government are trying to achieve. In good faith, however, we have asked whether there are better ways of managing such complex and lengthy trials and of protecting jurors from the difficulties that they might face.

We have always maintained the absolute position that the jury element—not necessarily the 12 good men and true of the present structure, for there are other ways of empanelling a jury, but lay finders of fact—is the essential element. We have to consider whether the panel of experts proposed by the hon. Member for Beaconsfield constitutes a jury. Is he suggesting a form of judging panel, not consisting of lay members of the public who are the peers of the accused? Is he suggesting a different way of setting up a panel of judges? Our view is that the hon. Gentleman’s proposal falls on the wrong side of the line.

New clause 15 deals with one of the Solicitor-General’s arguments, which is that cases of this kind are terribly difficult and that it is sometimes extremely onerous for juries to comprehend them and assimilate large volumes of material. The professionals suggested by the hon. Gentleman would presumably be better placed to do that than a person drawn at random from the population. The new clause does not, however, pass the other tests that the Government occasionally adduce as reasons for the Bill, and, as I have said, it loses an important ingredient in not retaining the nature of a lay jury. That is why my hon. Friends and I will not be able to support the panel idea, although we applaud the hon. Gentleman for trying to find ways of dissuading the Government from their ultimate course of action, even at this late hour.

The hon. and learned Member for Medway (Mr. Marshall-Andrews) has been very clever in smuggling his amendments, which were not selected, into the debate. I agree with some of the important points that he made, but I cannot agree with him, or with the right hon. and learned Member for—

Sleaford and North Hykeham.

I ought to know that by now.

I cannot agree with the right hon. and learned Gentleman on the issue of the Crown court judge, for a number of reasons. First, these are by definition the most difficult cases, the most complex cases, the cases that may have important implications for other cases or involve careful legal judgments. It seems perverse, therefore, to use a different tier of judges from High Court judges to hear cases ascertained to be the most difficult.

Does the hon. Gentleman not accept that many cases that are tried before Crown court judges are immensely difficult? I am thinking of long terrorist trials, difficult murder cases and rape cases that depend on complicated DNA evidence. It is wrong, is it not, to suggest that fraud cases are particularly and peculiarly difficult?

We are returning, in a circular fashion, to the earlier argument. No, there is nothing particularly different about the length or complexity of fraud cases in comparison with some other classes of case, which is why we are so concerned about the Government’s proposals. Given, however, that the Government have decided that these are the most difficult, complex and lengthy fraud cases—so much so that they must remove a key safeguard in our judicial system, and make a judge become a finder of fact as well as assessing the law—it strikes me as perverse that they should be heard by not a High Court but a Crown court judge.

Of course, not every Crown court judge will be involved; the judges will be specially selected. The implication of that is that a couple of Crown court judges will become the specialists in this field. Great dossiers will be plonked on their desks and they will be told, “Here you are; here is a complex fraud case for you to conduct. Goodbye, and see you again in six months.” Therefore, there will be a specialist cadre of judges who will look at such cases week in, week out, month in, month out and year in, year out. That raises another important issue in relation to serving the interests of justice—case-hardening for judges, particularly if they are finders of fact as well.

May I profoundly disagree? High Court judges are a brainy lot, but one of the problems in our system is that they often come from a background in which they deal with no crime at all. Our system is unique: we elevate people who are experts in trusts, codicils and wills to the rank of High Court judge and then expect them to deal with murder, mayhem and crime. We have very good Crown court judges, and they understand the problems that the Bill will cause. They will have a far better understanding of the matters we are discussing than High Court judges, and in truth they will be far less likely to grant applications.

It seems that the hon. and learned Gentleman might be arguing for the recruitment of new High Court judges who are better able to hear such cases, and saying that the current mix in the High Court is inappropriate. I cannot accept that it is right to take Crown court judges away from their duties in order to sequester them for a long time in examining such complex cases without giving them the status or tenure of a High Court judge—especially as by so doing the circuit will be impoverished.

That leads me to my last point. We make huge demands on Crown court judges. There are enormous amounts of work for them to do. They not only have to hear cases involving the huge panoply of new offences that the Government daily create, but now even have to consider carefully whether there are any prisons with free places to which to send the accused person at the end of the case if they are convicted. Our Crown court judges need to be on the circuit where they can do their valuable work. It is worrying that the Government’s proposal might have a diluting effect on the judiciary at Crown court level.

Is not the answer to the point made by the hon. and learned Member for Medway (Mr. Marshall-Andrews) provided by a point that was made by the hon. Member for Beaconsfield (Mr. Grieve)? Crown court judges are experienced in fraud trials, but only in fraud trials with juries, and they are not experienced in bench trials. In our system, such trials happen on the civil side but not on the criminal side. Also, High Court judges have experience as fact finders in complex civil trials.

That is a valid point—and as my hon. Friend said, it was made by the hon. Member for Beaconsfield. The number of judges who are used to trying both criminal and civil cases in Crown court is now extremely limited, so the argument that there is familiarity falls on that basis.

We will oppose the Government’s proposals on the extension of the use of Crown court judges. We also cannot accept the new clause tabled by the hon. Member for Beaconsfield, with its panel and, particularly, its curious arrangement that the judge will go into the jury room.

Will the hon. Gentleman give way?

The hon. Gentleman wishes to tell me that that is perfectly familiar in Napoleonic law.

It is indeed perfectly familiar in Napoleonic law, so there is a precedent. Whether it is a commendable precedent is an open question.

I am not sure that it is an open question; some of us will defend English legal process. The only advantage that I can see of the judge’s going into the retiring chamber and acting as some sort of back-seat driver is that it gives new grounds for appeal, which might be a very good thing in this instance. On that basis, we will oppose new clause 15, if it is pressed to a Division, and we will certainly oppose Government amendment No. 1.

The hon. Member for Beaconsfield (Mr. Grieve) was not convincing in his efforts to tempt me down the road of accepting new clause 15. He pointed out that he did not really think that it was the right thing to do, that he did not really agree with it fully, and that he was not sure what on earth the panel would do with the judge if they got together. He has therefore made my job of dealing with it rather easy.

New clause 15 would give rise to a number of difficulties. The role of the expert members is uncertain, and there is a risk that their private views about the expert evidence that had appeared before the court would find their way into private discussions with the judge and influence matters in a way that the defence or prosecution might not have had an opportunity to comment on. It is also unclear whether suitable members could be found, how they would be paid, and so on. However, the hon. Gentleman was good enough to say that although he has tabled the new clause, it is not really the way that he wants to approach matters. He wants a special panel that sits separately from the judge.

Our view throughout has been that a key issue is the need to manage such trials in a way that enables a judge to prevent procrastination by defence lawyers. That issue emerged from the report on discussions with the jurors in the Jubilee line case, who were concerned about defence procrastination. Moreover, there is the question of the ability to let lawyers know during the course of proceedings that the judge did understand the nature of the documentation before him, and of the ability to ensure that the case proceeds with much more care and skill and reaches an appropriate and just verdict. In our view, that means that in certain cases, particularly very lengthy and complex ones, there need not always be a jury, and that there would be many cases—at least half a dozen a year—that would benefit from a judge-only trial.

May I take up my hon. and learned Friend on that point? He has said again that there will be about six such cases a year. On what basis has he come up with that figure? I understand that it comes from the Serious Fraud Office, and that the presupposition is that all such cases will be mounted by it. In fact, the vast majority of cases in which such applications are likely to be made are those mounted by Customs and Excise, particularly missing trader intra-Community fraud cases. It seems to many of us who practise in that area that the likelihood is that those applications will be made in far more than six cases.

Let me be clear about this. When we introduced the Bill, it was our view that the figure could be up to 20. However, on looking at the number of cases that, in practice, lasted more than six months in the past four or five years—some lasted more than a year—the figure worked out at about half a dozen. I do not envisage that there will be any great wish to have non-jury trials unless necessary, so it is my view that the likely number is about half a dozen. My hon. and learned Friend is right to say that Her Majesty’s Revenue and Customs is one prosecutor that would be likely to make such an application. We have engaged with HMRC and the SFO and talked to them about the sorts of cases in which they might seek a non-jury trial. Our judgment remains that it would be about half a dozen a year. It could be up to 20, but it is very unlikely to be in that range. We are looking at a much lower figure, and certainly in the next two or three years it may be even fewer than six. I cannot give my hon. and learned Friend a cast-iron figure. We do not have anything in statute and we are to some extent relying on the way in which the prosecutors and courts proceed. In due course, we will be able to consider the situation and evaluate how many cases end in non-jury trials in practice.

In response to an intervention by the hon. Member for Beaconsfield (Mr. Grieve), my hon. and learned Friend the Solicitor-General mentioned that he had had conversations with senior judiciary about the amendment. Is he telling the House that they now support the Bill?

I do not think that the senior judiciary should be involved in a controversial political debate about a Bill. It is not their role to take sides on a controversial political issue like this. I can say that we have discussed the issues. My right hon. Friend knows, because it is a matter of public record, that Lord Justice Auld—and before him, the Roskill report—set out a view, having considered in detail the concerns expressed about serious and complex fraud cases over several years by many sources, including judges and lawyers. Therefore, I shall openly avoid my right hon. Friend’s question by saying that I do not want to put the senior judiciary into the position of taking a side on a controversial political issue like this. That is our job.

However, it is appropriate for the senior judiciary to say that they would like to be able to manage in a particular way an issue on which this House has decided. I sought express consent from the president of the Queen’s bench division and head of criminal justice, Lord Justice Sir Igor Judge, to indicate his view on the subject and he agreed that I could say that it was his wish that Government amendment No. 1 should form part of the Bill to enable the courts better to manage the process of dealing with non-jury trials.

New clause 15, tabled by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), would have a similar effect to Government amendment No. 2, the main difference being that our amendment gives to the head of criminal justice a power to nominate or designate a Crown court judge. The new clause would confer the power on the Lord Chief Justice with a specific power of nomination. We consider, and the senior judiciary are confident, that the power is one that it is appropriate to give to the head of criminal justice. Therefore, our view is that the president of the Queen’s bench division, the head of the criminal justice system—at present, Lord Justice Sir Igor Judge, and I take this opportunity to congratulate him on confirmation of his position as head of criminal justice yesterday—is the appropriate person to make this decision. It does not have to be the Lord Chief Justice, and indeed his view is that he would prefer it to be the head of criminal justice, who is the president of the Queen’s bench division.

The Government amendments were prompted by concern that clause 2 of the Bill might, in its present form, be too inflexible. Opposition Members spoke in Committee of the potential difficulty of finding High Court judges to deal with what, by definition, would be extremely long trials. They argued passionately that I should look at the matter, and I agreed to do so. Government amendment No. 1 is the result. I have spoken to the senior judiciary, who said that they were in favour of it.

4.30 pm

As I said, the number of possible candidates for non-jury trial under section 43 is small, at about half a dozen a year—an estimate based on the number of fraud trials in recent years that have lasted six months or more. Some of the cases in which a section 43 order is made would no doubt be assigned to a High Court judge in any event, but we believe that it makes sense, where possible, to assign very long and complex trials to judges of exceptional ability and appropriate experience. That is why we took up the proposal for a requirement that section 43 applications, and any ensuing trials, should be assigned to High Court judges. However, while some circuit judges are more than capable of dealing with such matters, others are not, and we believe that it is appropriate for the Lord Chief Justice and the head of criminal justice, the head of the Queen’s bench division, to take a view as to which judges are suitable.

My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) asked whether the same judge who decided that a case should be dealt with under section 43 should be allowed to try that case. We envisage that the head of criminal justice would identify a judge to hear an application, and that if he decided that section 43 applied, that same judge would normally take the case through. However, circumstances might intervene—for example, the judge involved might die, fall ill, or be tied up in another case for a long time.

Although I take the reasonable point put forward by my hon. and learned Friend that it would be better if the judge who makes the initial decision were to take the trial through, I do not want to include in the Bill restrictions on the discretion of the president of the Queen’s bench division, who is the head of criminal justice. He ought to be the person to make the judgments involved.

I do not want to embark on an amendment that did not make the cut, but it is obviously desirable that the judge who decides that a trial should be judge-only should be the one to hear it. I can tell my hon. and learned Friend that a great deal of trouble would be caused if judges, and especially High Court judges, were to decide that a trial should be judge-only and then left it to be heard by a Crown court judge who was not involved in the decision. Moreover, if the case changes and a defendant decides to plead guilty after previously pleading not guilty—and if that plea had been part of the original judge’s contemplation when making the judge-only ruling—another judge will have a great deal of difficulty in unravelling the original judge’s thinking.

If the House of Lords can find a form of words that accommodates my hon. and learned Friend’s natural wish not to trammel the discretion of the Lord Chief Justice, but which none the less provides for the exceptional circumstances that he has described, will he look on it with a certain amount of kindness, if not approbation?

I would prefer not to put in the Bill a restriction on the discretion of the president of the Queen’s bench division, the head of criminal justice. However, he will be able to look at Hansard and read the arguments advanced by my hon. and learned Friend and me, and we should leave it to him to determine which judge should handle any given case. In some circumstances, he may decide that the judge who heard the initial section 43 application is not the right one to deal with the trial as a whole. It is, however, the case that the way in which the whole process will evolve is one in which hon. Members would prefer the same judge to deal with the case, where that is possible and practicable. That is as far as I want to go. I would rather leave the discretion in the hands of the head of criminal justice. I cannot give an undertaking in relation to any amendment from the Lords.

A number of circuit judges are amply qualified to handle these cases. People like Sir Geoffrey Rivlin and others spring to mind. They could deal with the serious cases if they were disposed to do so. It is not intended that any old circuit judge, to put it carefully, should deal with them. The head of criminal justice will take a view on who would be the appropriate judge to deal with these issues and will ensure that the appropriate judge can handle the array of evidence put before him. Many judges in their careers as barristers will have handled masses of complex material and had to form an opinion on it. I do not see the difficulty with that.

The point made by the hon. Member for Somerton and Frome (Mr. Heath) completely defeated me. He seemed to suggest that circuit judges ought to be on their circuit and that we could not spare them to deal with complex, serious, fraud cases which took too long, so we had to use High Court judges, who are more senior judges and often deal with more serious cases. That argument does not stack up. We need to ensure that we have the right judge for the right case. We can do that with the Government amendments, and I hope that the House will support them.

I have not dealt with a point raised by my hon. and learned Friend the Member for Medway. Does he wish me to deal with public interest immunity, or is he satisfied at this point?

It would be helpful if my hon. and learned Friend would deal with PII. It causes great concern. How can it possibly be brought within the European convention that a judge sitting as judge of fact and law hears matter from the prosecution to which the defence is not privy and thereafter becomes a judge of fact? I am trying to be helpful, but I would have thought that a case in those circumstances would not have a prayer within the European Court.

I know that this concerns my hon. and learned Friend, so I shall deal with it at some length. The issue requires careful analysis. In much of Europe, single judges or a tribunal will deal with cases. Indeed, in Northern Ireland we have Diplock courts.

The Government are confident that existing public interest immunity procedures are fair and effective and do not in any way endanger the rights of defendants. Currently, both lay magistrates and district judges hear public interest immunity applications and go on to find on the facts. The same is true of Crown court judges, dealing with confiscation proceedings. We are confident that these procedures will work equally well when used in the course of an application under section 43.

Doubts have been expressed about the impartiality of a judge who, having heard information prejudicial to the defendant, goes on to hear the facts. However, having detailed knowledge of this sort of information does not necessarily mean that the judge will automatically be considered prejudiced, as some of those raising objections seem to imply. Rather, the key question must be whether there are any ascertainable facts which would raise legitimate and objectively justified doubts about a judge’s impartiality. I am not convinced in general that there are.

The first point to note is that information prejudicial to the defendant is not likely to be the subject of a PII application in any event, but it is possible. Secondly, the judge is perfectly able to disregard any irrelevant information and may indeed be well used to doing so. In the case of R v. H and C, the House of Lords made the following relevant observations:

“If PII applications are confined, as they should be, to material which undermines the prosecution case or strengthens that of the defence, the bench will not be alerted to material damaging to the defendant. If it is, the principles which should govern the court’s decision whether to recuse itself are the same as in the case of any other tribunal of fact, but the court’s duty of continuing review ordinarily militates in favour of continuing the proceedings before the court which determines the PII application.”

In the recent—2005—case of R. v. May and others, which involved carousel fraud, the Court of Appeal considered the fairness of proceedings where the same judge had dealt with PII applications in proceedings for conspiracy to cheat the Revenue and in later confiscation proceedings. The judge stated that in reaching his decisions in the confiscation proceedings, he had ignored any material that he had earlier decided attracted public interest immunity and should not be disclosed. The appellants argued that that was unfair and that the judge should have “recused” himself.

The Court of Appeal rejected that argument and emphasised that it was perfectly possible for a judge in such a position to put prejudicial material out of his mind. As the Court of Appeal said:

“That is a familiar process in judicial decision-making in this country. It is, to take only one example, a process which has to be gone through whenever this court has to consider an appeal both against conviction and against sentence: the court in preparing for the hearing may have seen material relevant to the sentence appeal which it must ignore for the purpose of the conviction appeal. It does so conscientiously.”

The Government do not accept that anything in the Bill will prevent defendants from getting a fair trial or lead to any breach of defendants’ rights under the European convention. Indeed, I am pleased to note that when the Joint Committee on Human Rights considered those issues, it came down firmly on the Government’s side.

Despite the comments that the Solicitor-General has just made, I do not entirely share his confidence about dealing with either the difficulties that will be faced in respect of public interest immunity applications, or those that will be perceived in respect of judges trying issues of law and fact together in serious criminal cases.

I want to return to new clause 15. The Solicitor-General will not be surprised to learn that I shall seek leave to withdraw it. I fully accept that the new clause and the concept of an expert panel have many shortcomings, but I regret that the Government are so implacably opposed to special juries, because although they, too, have drawbacks, they would be infinitely better than the course on which the Government are embarking, which is to get rid of juries altogether in select cases. For that reason I thought it right to find any creative means of bringing the argument back to the House at a time when the procedures of the House made it extremely difficult to do so.

On the Government’s position on trial by Crown court judges, some Crown court judges may be found suitable for such work—I shall forbear to list those who would be wholly unsuitable.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 1

Commencement of section 43 of the criminal justice act 2003

I beg to move amendment No. 14, page 1, line 1, leave out clause 1.

As we are coming to the conclusion of the time for debate on this stage of the Bill, I shall be brief. The purpose of the amendment is to delete clause 1 and, in effect, to retain the affirmative resolution procedure as the basis for implementation of the Bill’s provisions. I justify that position on two grounds: principle and compliance with assurances given to the House. I begin with the latter point.

I have looked once again at the assurances given by the then Home Secretary on 20 November 2003, which are recorded in Hansard, columns 1027 to 1031. I shall not read them out because they are available to Members. My clear interpretation of the assurances then given to the House was that the measure in the Bill would be subject to affirmative resolution and that it would not be introduced at any stage without the approval of both Houses. That is my understanding of what was said, and it reflected a deal. Anything that departs from that is a departure from assurances given.

I shall be brief, as I am conscious that others wish to speak and that the Bill’s Report stage is coming to an end.

I entirely support the amendment tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). It is wholly desirable that there should be a further opportunity for the House to use the affirmative procedure before this dreadful Bill is brought into effect. Losing the protection of the affirmative procedure is wholly undesirable. As a matter of principle and in view of my attitude towards the Bill generally, it would be a very good thing if the House were to support the amendment.

We entirely support the amendment on two grounds: one pragmatic, and one principled. The pragmatic reason is that I will do absolutely anything that might frustrate the Government’s intentions. This is yet another opportunity to do so. The reason for the pragmatic approach of wishing to frustrate the Government by any means possible is the principle of the retention of jury trial. That principle is not only right but is accepted widely in the country at large.

Another principled reason for supporting the amendment relates to precisely what the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said: there would be no Criminal Justice Act 2003 were it not for the existence of section 330(5)(b), on commencement. It was solely on the basis of that agreement—reached in the room just behind the Speaker’s Chair, by me and my hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes), the hon. Member for Beaconsfield (Mr. Grieve) and his colleagues, and the then Home Secretary—that there was any possibility of the Criminal Justice Bill, as it then was, reaching the statute book. To rip up, in effect, that agreement in order to facilitate the passage of this appalling little Bill seems not only wrong in principle but an abnegation of that agreement. That is why the section should be retained. We should retain the opportunity to vote against this squalid process on every possible future occasion.

The Government have always signalled that they intended to move forward with the implementation of provisions for juryless trials in serious and complex fraud cases. It was never intended that the inclusion of a requirement for an affirmative resolution would act as a permanent obstacle to the implementation of section 43; rather, that was intended as a guarantee of good faith. I want to come to the issue of good faith.

rose—

May I just make this point? The Government have kept faith with all the commitments that they made. Throughout the debate, we have heard mention of consultation and seminars. There has been a large amount of consultation over many years. Over decades, there have been repeated opportunities for broad consultation on the Auld report, the Roskill report and so on. As I said, this has been going on for decades. Professionals and the public have had ample opportunity to express their views over many years. Hon. Members were invited to a seminar by the Attorney-General, as they were promised they would be. We discussed the matter at great length in Committee. As my hon. and learned Friend the Solicitor-General said in Committee, it beggars belief that hon. Members who attended that seminar had no idea of what was going on. We have had legislation and, as I said, we have had long and detailed debates on these issues. Members are invited to a seminar by the Attorney-General on the very issue that they have been involved in legislating on—and they do not know what they are doing there? I do not think that that is the case.

rose—

I will give way to the hon. Member for North Southwark and Bermondsey (Simon Hughes), because he was the first to indicate that he wanted to intervene.

The Minister must not misrepresent the situation, and I am sure that she is not doing so intentionally. The Library research paper, which tells the story of the events in which some of us participated in November 2003, states that the right hon. Member for Sheffield, Brightside (Mr. Blunkett)

“added that the Government was prepared to agree that it would not implement what is now section 43 while it sought alternative solutions that did not rely on a single judge sitting alone.”

The provision was to be conditional until there was agreement about another, non-single-judge alternative. We have never reached that agreement. The undertaking was that that arrangement would continue. That is why the amendment should be supported.

Let me just correct the hon. Gentleman. Exactly the same points were made in Committee, as he knows. In defence of my right hon. Friend the Member for Sheffield, Brightside (Mr. Blunkett), what he actually said is:

“I am prepared to give that undertaking. It is part of the agreement that we will retain the clause, but move forward towards looking”—

as was said in Committee, the important word is “looking”—

“at the alternative solutions that I have mentioned”.—[Official Report, 20 November 2003; Vol. 413, c. 1028.]

We did indeed look long and hard at those solutions, as the hon. Member for North Southwark and Bermondsey knows, but it was clear that no consensus was forthcoming. An order came before the House, which was supported by a significant majority. It was quite clear that members of the Opposition in the other place would not support it, so my noble Friend the Attorney-General made it absolutely clear that we would move on to introduce fresh legislation.

rose—

I will give way to the hon. Member for Beaconsfield (Mr. Grieve), and then I will move on.

The Minister is kind to give way. She really cannot escape the fact that, in the stand-alone Bill before us, she is asking the House to implement section 43 of the Criminal Justice Act 2003, having made the most minor tweak to it. The Government are implementing it without the promised consultation ever having taken place, and, moreover, without having made any real attempt to explore the alternatives. Every time I have offered the Government an alternative, as I did a mere 15 or 20 minutes ago, however poor an alternative it may have been, we have not even moved towards having a sensible discussion, particularly not on special juries.

I have to disagree with the hon. Gentleman; I think that we have had a great deal of discussion, and as I said, it has taken place over many decades. In particular, we have had much discussion in recent months, and I think that it has been sensible discussion. Although there is disagreement, there have been some valid and thoughtful contributions. However, clearly there is no agreement between the parties, and we hold to a position with which the Opposition do not agree.

Given that there have been so many discussions over such a long time, why has the Minister not convinced a single person from any party other than her own that she is right? Surely that shows that the Government’s argument does not have much force, and that the Bill is merely being pushed through by her party’s majority—and not one of those people who will push it through happens to be sitting in the Chamber today.

The point has just been made to me that the right hon. Gentleman has only just come into the Chamber himself, so he cannot speak much about his commitment to the subject, one way or another. There have been a number of Divisions this afternoon, and there were Divisions on Second Reading and throughout Committee. In addition, the order came before the House some time ago, so the measure has come before the House on numerous occasions, and it has been absolutely clear at every single point and turn that Labour Members fully support it.

I heard hon. Members mention the Parliament Acts. We fully expect to win the argument in the other place, and to see our Bill become an Act. It is not for hon. Members, or anyone else, to anticipate the use of the Parliament Acts. Despite the Opposition’s protestations to the contrary, the Government undertook a process of consultation, in an attempt to find a way forward. We greatly regretted that no consensus was forthcoming. As I said, in March last year, my right hon. and learned Friend the Attorney-General announced in the other place that the Government would seek to bring forward primary legislation.

The purpose of the Bill is not to introduce new measures but to implement existing statutory provisions. Clause 1 is important, as hon. Members, including the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), who tabled the amendment, are aware. The clause removes the obligation for affirmative resolution before commencement and paves the way for the implementation of section 43 of the Criminal Justice Act 2003, so I urge hon. Members to resist the amendment.

Question put, That the amendment be made:—

I beg to move, That the Bill be now read the Third time.

The Government are committed to rebalancing the criminal justice system in favour of the law-abiding majority. The Bill enables the most serious and complex fraud trials to be heard by a judge alone to ensure that justice is done in those sorts of cases. A trial by a judge sitting alone will be appropriate for only a small number of cases—our estimate is about half a dozen cases each year. The maximum would be about 20, but we do not anticipate that we are likely to get close to that figure. To give us plenty of margin, and so as not to mislead anyone, that is the figure that we have considered. If we are able to have such trials, it will be possible to expose the full criminality of complex and serious fraud cases in court, and our criminal justice system will have the tools that it needs to deal properly with such major crime.

The Bill is not a general attack on jurors. There is no wedge—this is not the thin end of any size of wedge. We are discussing a particular policy to deal with a particular issue. About 30,000 contested trials take place each year. The Bill is likely to affect half a dozen of them. In the magistrates court each day in our country, a district judge often decides verdicts, so no fundamental principle is being breached in the Bill.

What is unique in this case is that there is a long history of reports by Lord Roskill, Lord Justice Auld and others calling for a new way of dealing with complex and serious fraud cases. No such reports have been produced about other areas of criminal law. The Bill is not a general attack on jurors; it deals with a specific issue in a way that is manageable for the courts and that ensures that justice is delivered.

As fraud trials often pivot on whether the defendant has acted dishonestly, and the legal test of dishonesty is what an ordinary citizen perceives to be dishonest, how will excluding the ordinary citizen improve the process?

The hon. Gentleman should have listened to what I said. He need only walk down the road and around the corner to what was Horseferry Road magistrates court to see district judges sitting alone and deciding on issues of guilt or innocence in trials. No one has suggested that justice is not done in those cases. No one has suggested that we must have a jury in those cases. No one has suggested that a judge deciding a civil case involving millions of pounds somehow does an injustice. That is complete nonsense.

Juries are important because they involve the citizen in the legal process. They are a safeguard, but they are not infallible, and they are not always, in every single circumstance, the only way in which to decide matters. Indeed, 90 per cent. of cases are not decided before a jury.

I want to ensure that justice is properly done, and particular problems have arisen in complex and serious fraud cases. Roskill outlined them, as did Auld. There has been discussion about this issue for decades. No other area of criminal law prompts the same level of concern. That is why I can say that the issue is unique, and that there is no wedge for the hon. Gentleman to worry about.

rose—

rose—

I will give way to the hon. Member for Bromley and Chislehurst (Robert Neill), but then I must make some progress, as other Members may well wish to speak.

Will the Solicitor-General confirm that in the circumstances to which he has referred—summary trial by a district judge or magistrate—there is a limit on sentencing? Sentences of five, six, seven, eight, nine or 10 years cannot be passed as a result of trial by one person alone acting as a tribunal.

If there is a problem with jury trials, why was it possible to deal with Enron, which was an unusually long and complex fraud trial, before a jury in the United States? Is the Solicitor-General saying that British juries cannot get it right but American juries can?

The hon. Gentleman has made two points. Neither of them was particularly good, but I will deal with them.

The issue that we were considering was whether justice would be done without a jury. Whatever the sentence that can be imposed by a particular court, the question put to me was whether justice would be done in the deciding of guilt or innocence, and that was the question with which I dealt.

Judges must often deal with issues of sentencing when someone has pleaded guilty, and there is then no issue relating to their sentencing restriction. If someone pleads guilty to fraud, the judge will have to decide the sentence. I am not sure whether the hon. Gentleman was implying that justice would not be done. I was not sure what his argument was; in any event, it was not a good one. As for the American criminal justice system, it is very different from ours. We have our own traditions and processes. One of the key ways in which the Americans deal with cases involves an element of plea bargaining. We are considering all those issues in connection with the fraud review, and in due course we will be able to say how we expect to proceed.

These are interesting issues. As I said, the American system is very different from ours, and in many respects I do not think we want to emulate it, but there are elements of other systems that make it possible for cases of complexity and seriousness to be dealt with in ways that ensure both that justice is done and that we can improve and modernise our own procedures. I am glad to note that we will have the support of the hon. Gentleman in doing so.

rose—

I will not give way, because many Members will probably wish to speak. Perhaps the hon. Gentleman will catch your eye later, Madam Deputy Speaker.

Our argument has not been that the jury does not understand the process of a complex and serious fraud trial. I have emphasised that it is no part of our argument that jurors do not understand the evidence before them, but that has not prevented some Members from making exactly that claim. That has never been our argument, but it is extraordinary how many times it is necessary to deny having relied on a line of argument that we have made clear we do not advance. Our argument has always been about the burden on the jury, not about lack of understanding.

Our trial system requires oral explanation of documents, and in many complex fraud cases there can be thousands of pages of documents and trials can last for many months, or even for a year or more. Although jurors usually understand the cases before them, the huge burden that the system places on them is, in many ways, intolerable; the Jubilee line case illustrates some of those burdens—it illustrates other issues, too, but I will not rehearse the arguments in respect of them. Despite attempts to use procedural changes to keep trials within reasonable bounds, complex and serious cases can drag on for a year or more. Few people can afford to give up their normal lives for so long, so those who remain on juries are sometimes not entirely representative.

Prosecutors attempt to deal with that problem by reducing the burden on the jury. They adopt stratagems, such as reducing the number of charges on the indictment before the court, dropping the less serious defendants from the entire case so that they might never be brought to justice, and severing the indictments thereby splitting the trial so that there is more than one of them. Each of those stratagems prevents the full culpability of the criminal from being exposed in court. Judges sitting alone will be able to avoid those problems and can hear a large number of charges, look at all the evidence and restrict long-winded speeches by lawyers—which I hope to avoid today.

The Government have carefully considered how to introduce the Bill and we have tried to keep faith with the principles behind it. I have considered Opposition arguments that we should extend some of the provisions for non-jury trials, so that the defence can elect to have such a trial—I explain for the benefit of Members who were not in the Chamber earlier when those arguments were made. We have decided not to do that, although there are arguments for doing it, because we said as a matter of faith that we will stick with what we have proposed, which is that the prosecution will be able to ask the court for non-jury trials and that we will restrict the numbers of such trials.

We have decided to allow, by way of amendment, certain circuit judges as well as High Court judges to hear such cases. That is the right approach. It has the support of the senior judiciary, and I am pleased that Members agreed to our amendment.

We wish to create a mechanism whereby the full culpability of defendants facing some of the most serious charges that can be brought before our courts can be properly dealt with. We want to ensure that the case as a whole is put before the court, that the public know what that case is, and that justice is done.

I served on a jury before Christmas, and I was extraordinarily impressed by how dedicated ordinary people were in listening to the evidence and by how much more intelligent they are than we in the establishment think they are. Leaving that point aside, I want to ask the Solicitor-General a question: would he like to be a judge sitting in trial over someone with the individual responsibility both for determining whether that person is guilty and for sending them to prison for many years?

Judges in our country often have enormous responsibilities and have over centuries taken on the burden of delivering justice, so I think that they are well capable of doing what we would ask them to do. They already do it in some of the most difficult civil cases. They often have to make decisions in respect of confiscation orders and a range of cases where they sit alone. Our judges are capable of making those judgments, and of making them well. They have a track record in terms of other sorts of cases that they have dealt with that shows that they can do that.

There are about 30,000 jury trials in this country, and our proposals will affect a tiny number—about half a dozen. Also, if we are able to make a move in relation to Diplock courts, in due course the number of jury trials might well increase. Therefore, there is no justification in Opposition Members’ claims that this is a general attack on juries. It is my personal view that juries provide one of the best ways of deciding justice, particularly in serious cases, but they are not the only way of delivering justice. I believe that justice is also delivered well in our magistrates courts. When the Bill is enacted—I hope that it will be—we will ensure that we deal with justice in our Crown courts in a very effective way.

Every time that I hear the Solicitor-General or another Minister talking about rebalancing the criminal justice system, my heart sinks. It is always the prelude to announcing legislation or a policy that will undermine the principles and practices that are of value to our freedoms and the way that our civil society operates, and which will do absolutely nothing whatsoever in the interests of justice or of reducing crime. This Bill, presented to the House virtually unchanged now that it has gone through on Report, has all the hallmarks of doing the same thing.

It was quite clear during today’s debate that when the Solicitor-General said that the Bill was not a wedge, that was a pious aspiration. In logic, it is impossible to differentiate between the complexity and burdensomeness of trials in fraud cases, and of trials that take place regularly in major criminal cases, such as the terrorist trial going on in London at the moment. Once the Government establish the principle in the Bill, they will inexorably move toward arguing that other long and complicated trials are also burdensome and that, as a result, they, too, should be tried by a judge alone.

Does my hon. Friend agree that the Bill is typical of what we get from this Government, who take the view that the public are too thick to take their own decisions on anything, and that the state must therefore step in and take the decisions for them? Does he further agree that the Bill should be called the “Government think the public are too thick” Bill?

My hon. Friend makes a very good point. There are strong indications that this Government do not like juries and lay magistrates and believe that the expert in the Government ultimately knows best. It is precisely because I disagree profoundly with that idea in matters of the administration of justice that I do not want the Bill to get on the statute book.

The Government’s arguments concerning the burdens on juries just do not hold up. The Jubilee line report and the interviews with jurors show clearly that, whatever those burdens may be—they are burdens that jurors have to carry in any major criminal trial—jurors are capable of doing the work. In so far as there may be a problem in that area, one of my regrets is that during the Bill’s passage, we have been unable to look at any alternatives because its terms have been so tightly drawn. From Second Reading on, we had to consider only trials without juries. The jury system can be made to work, yet the Government constantly blinker themselves and ignore the improvements that can be made. They themselves have provided in future for the possibility of trial on specimen counts, with the judge determining the other counts thereafter, yet they totally failed to take that into account in bringing the Bill before the House.

Does my hon. Friend agree that this is a bad Bill not only for the reasons that he is giving, but because it is aimed at entirely the wrong target? Many of the cases that the Government have relied on in support of their argument collapsed not because the jury was to blame, but because the prosecuting authorities were to blame. The cases were withdrawn from the jury by the judge before the jury had a chance to consider them. Nothing that the Government have put forward deals with that scenario.

My hon. Friend is quite right. All the evidence points that way; indeed, the interviews with the jurors after the Jubilee line case highlighted that issue. Often, these inefficiencies lie with the Crown Prosecution Service, not with the juries. The Government particularly demeaned themselves at the end of the Jubilee line trial, when they put it about in the press that the jury was at fault—a point that emerged clearly during the interviews with the jurors.

There is no need for this legislation. We can continue with the present system, and if courts run themselves efficiently and there is proper trial management, jury trials can be made to work, as has already been shown by the Lord Chief Justice’s protocols and guidelines on how such cases can be conducted. It simply is not good enough the Solicitor-General’s saying that there are all sorts of cases that are never brought to court—cases that are never tried at all—because of the various difficulties and the burdens on the juries.

History shows that juries will rise to the occasion. Through this Bill, the Government are sending out a dreadful message about the way in which they view participatory democracy in this country. For that reason, if that reason alone, I ask the House to reject the Bill on Third Reading.

rose—

Order. I remind all hon. Members that the debate on Third Reading concludes at 6 pm. Several hon. Members are seeking to catch my eye, so I ask for short contributions.

May I first declare my interest as an employed barrister, although I have never practised in the area under discussion?

I am sorry to say that the reason why we do not have sufficient time is that my hon. and learned Friend the Solicitor-General spent 14 minutes of a 33-minute debate trying to justify a flawed Bill. I have sat through all the proceedings, but I have not heard a persuasive argument from him to justify what will happen if this Bill goes through. In reply to the hon. Member for Beaconsfield (Mr. Grieve), my hon. and learned Friend mentioned the senior judiciary, but then he backtracked and said that he could not quote them. Other than Ministers and their Parliamentary Private Secretaries, I cannot find a single person who is in favour of the Bill. Certainly I am not surprised that so many of my colleagues on the Back Benches have not come in to support the Government on this occasion.

I shall not vote against the Government—[Hon. Members: “Go on.”] No, but I will abstain. When removing the fundamental principle of trial by jury, which goes back to Magna Carta, one needs to be very careful. The Government need to reconsider the Bill. When it is defeated in the other place and comes back, they will have to think again.

My hon. and learned Friend the Solicitor-General has not persuaded me on the issue of purpose or of cost, although the Government keep denying that the aim is to save money. He has not persuaded me with the argument that the proposal will affect only a few cases. If only a few cases will be affected, why on earth are we proceeding with a measure that will have fundamental consequences for the way in which we deliver justice in this country? I have been proud of what the Government have done over the past 10 years in modernising the justice system, and we have had some reforming Lord Chancellors, but this is a bad Bill.

The Bill will make progress tonight, but I hope that in the time that it takes to go to the other place and come back my hon. and learned Friend will take the opportunity to reconsider it. I know that he is not driving it, because I did not see from him the passion that I have seen in his 15 years in the House on other issues, even other flawed Home Office Bills. He has pushed such Bills through the House with real passion, but he had no such passion for this Bill tonight.

My hon. and learned Friend tells us that the Bill will affect only six fraud cases, but it would be the start of a process that could see the jury removed from other cases.

Is my right hon. Friend aware that those of us who will support the Bill are giving the Government the benefit of the doubt, but we have many reservations? As I said a moment ago, there is a danger that use of non-jury trials could escalate, and if it did so I would not support it. I hope that the Government take the clear warning: this far and no further.

I agree with my hon. Friend. He will vote with the Government although he disagrees with the Bill, I will abstain and some will vote against. If that is a warning for my hon. and learned Friend, I hope that he will go back to the Attorney-General and tell him of the real concern in the House. The Bill will go through with the Government’s big majority here, but he will have to take into consideration the concerns of hon. Members.

This is a four-clause Bill with one proposition. I hope that when the Division comes, colleagues will realise that one cannot object to it by voting for it or abstaining. One can object to it only by opposing it.

On 20 November 2003, the then Home Secretary said that, if this proposal did not achieve the agreement of both Houses, the process of finding an acceptable alternative that did not involve a single judge sitting alone would begin. However, this is not the Bill that the Government were looking for, because it does not contain that alternative mechanism.

Liberal Democrat Members, like our colleagues in the Conservative party and some Labour Back Benchers, oppose the Bill. We have tried to improve it, although our purpose was not to amend it but to bury it. The right hon. Member for Leicester, East (Keith Vaz) gave some of the reasons why this is a bad Bill.

First, given the argument about the burdensome nature of certain cases for juries, it cannot be claimed that the Bill will not be the thin of the wedge. Other long cases have just the same effect on jurors’ lives. Secondly, although lawyers, judges, the police and the prosecuting authorities are entitled to support the Bill, this House has to balance other considerations. We are entitled to say that their case is not overwhelming. For example, the director of the Serious Fraud Office has said that prosecutions are sometimes not possible under the present jury system, but could be held before a single judge. That suggests that jurors are not able to reach the right answer, and that more convictions could be obtained in judge-only trials. That is an unacceptable proposition, as it undermines the entire case for jury trials.

Thirdly, the Solicitor-General keeps saying that the Government should not be misunderstood and that the Bill has been brought forward only because they want the full culpability and criminality of a case to be put before the court. If that is what we want, we must continue to improve the rules so that it can happen, and indeed many of the relevant rules have been changed in the past few months.

Fourthly, we believe that it is important for the criminal justice process that the roles of judge and jury be separated. In serious cases that come before the senior criminal courts, the jury decides the facts and the judge decides the sentence. The SFO, the Crown Prosecution Service and Her Majesty’s Revenue and Customs have not said that they cannot do their work. In fact, they do it increasingly well, and we do not get huge numbers of failed prosecutions.

Fifthly, the Solicitor-General says that the Bill will apply to about six cases a year only but, if that is true, it is not worth making this nonsensical change, as so few cases cannot be a huge burden on the criminal justice system. Sixthly, our present jury arrangements involve lay people at the highest level of the criminal justice system, and that is the most important guarantee that it will retain public confidence. A move to having professionals alone deciding innocence and guilt will undermine that confidence. Moreover, successful appeals against judges’ decisions will undermine the respectability of the judges’ role.

Seventhly, the evidence from the Jubilee line case is not that the jurors complained about the procedure. They understood exactly what was going on, and what they complained about was the prosecution and the management of the case.

Finally, the Solicitor-General has said on previous occasions that lots of things have changed, with new orders introduced by the Lord Chief Justice, but they have been going for less than two years and are barely tried. In addition, the Fraud Act 2006 is still very new, as are some of the relevant recommendations that have been made. The system that is now in place is very new and untried; we should allow it to bed down properly.

The Government’s case for getting rid of jury trials does not improve with serial repetition. Lay juries are a fundamental guarantee that the public play a crucial part in the criminal justice process. More than ever, we need lay people to have confidence in our institutions. They may not trust us, or even the judges, but they do trust the juries.

This Bill has no support among Labour Back Benchers and has secured no agreement across the House. It seeks to take away the right to jury trial, and it is being pushed through by a Labour Government who have been told no, no and no again.