House of Lords
Tuesday, 20 March 2007.
The House met at half-past two: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.
Clerk of the Parliaments: Retirement of Paul Hayter
My Lords, it is my duty to notify your Lordships that I have received the following letter from the Clerk of the Parliaments, Paul Hayter:
“Dear Lord President,
I would be grateful if you could inform the House that I have asked the Prime Minister to inform Her Majesty The Queen of my intention to retire from the office of Clerk of the Parliaments with effect from Saturday 3rd November 2007, the eve of my 65th birthday. The Prime Minister has confirmed that Her Majesty has been informed.
By November I shall have served the House of Lords for more than 43 years, including nearly 4½ years as Clerk of the Parliaments. During my career the House has been transformed, and I am glad to have been able to help that transformation. The small hereditary House which existed in 1964 has become a successful and energetic second Chamber, and it is supported by staff who have similarly grown in number and professionalism. We are proud to contribute to the effectiveness of Parliament and I hope that, in any further reforms, the undoubted strengths of the House of Lords will be reinforced.
The mutual respect and friendship of Members and staff have made the House of Lords a very happy place in which to work, and I count myself lucky to have enjoyed such a privilege. Please convey to all Members of the House my thanks for their friendship and support over the years”.
Following receipt of Mr Hayter's letter, I have consulted the party leaders in the House, the Convenor of the Cross-Bench Peers and the Lord Speaker, and it has been agreed by us all that a successor to Mr Hayter should be appointed following a trawl among the staff of this House and the staff of the House of Commons, the Scottish Parliament, the Parliamentary Service for the National Assembly for Wales and the Northern Ireland Assembly. This decision follows closely the practice adopted last time for appointment to this very senior post. The timetable for the trawl should mean that the recommendation of a successor to Mr Hayter can be made to Her Majesty during May.
I am sure that it will be the wish of the House, in due course, to pay tribute to the services of Paul Hayter. I am advised that the proper manner of doing this is for me to table a Motion recording our appreciation of his service nearer the time of his retirement.
Civil Servants: Employment in Private Sector
My Lords, I thank the noble Lord for that Answer. Does he agree that it would be naive to think that the public service and private enterprise have not come closer together? There is nothing wrong intrinsically in that, but public perceptions are such that they require safeguards to be put in place, as they have been; the code suggests two years, as he says. Is he happy that two years is enough? I am not suggesting that there is a problem, but it could arise and the Government could well be criticised if it were later found that two years was too short a time.
My Lords, it will be recognised that quite a number of the applications occur for taking up appointment over a shorter period. When criticism has been advanced, it has been over that factor. Most often, that criticism has been readily refuted. I do not think that there have been any cases where civil servants close to the end of the two-year period have sought an appointment and then received criticism for doing so.
My Lords, very senior officials, such as Treasury Permanent Secretaries or Cabinet Secretaries, have broad experience in almost every department of state, as we have learnt today if we did not already know. Given that broad experience, no one is suggesting for a minute, I hope, that there is anything wrong in their taking up appointments. Who devised the rules? Was it the Cabinet Secretary? What is the penalty if they are breached?
My Lords, my noble friend will recognise that Ministers are responsible for the application of the rules. He is right that very senior members of the Civil Service are likely to be much in demand because of the wealth of their experience. He will recognise that they have to be approved by the independent Advisory Committee on Business Appointments. Its members include the noble and learned Lord, Lord Mayhew, my noble and learned friend Lord Morris of Aberavon and the noble Lords, Lord Maclennan and Lord Wilson of Tillyorn, some of whom I can see in their places today. They give their advice to the Prime Minister or to a senior Minister on whether such appointments should go ahead. That is a sufficient safeguard for probity in this respect.
My Lords, does that apply at all levels? Will the Minister define “employment”? Does it mean paid employment, or would people be entitled to take up work with a charity or some similar organisation that might be unpaid but might use the information that they acquired in their post?
My Lords, the arrangements vary according to the level of post that the individual has held in the Civil Service. As the noble Baroness would rightly recognise, the arrangements that apply for former Cabinet Secretaries are not going to apply to a clerk in the Department for Transport, for example. However, the concept is the same. It must be clear that, as my noble friend Lord Barnett indicated, because of the obvious advantage that might accrue to a private enterprise as the result of the experience of an individual in the public service, safeguards are there under the code to which all civil servants subscribe and which is part of their conditions of service.
My Lords, the Minister has acknowledged my interest as a member of the committee. Have the Government received, and will they reply to, the report on ethical regulation from the House of Commons Select Committee on Public Administration? Secondly, will the Government give consideration to the possibility that it might assist members of the Civil Service to find highly appropriate work in the private sector if they were directly to employ across the board the services of executive recruitment companies?
My Lords, that is an interesting point from a very important source. Of course, I acknowledge that the Select Committee on Public Administration in the other place is doing very important work on these issues. The Government will respond to its recommendations in due course. That serious work has been going on for a considerable period of time. That committee is there to be concerned about the whole range of ethical standards in public life and probity. Its recommendations will require significant consideration by the Government.
My Lords, specials advisers certainly come within the framework of these rules as well. Their case is slightly different, in that they are finally vetted not by Ministers, but by the head of the Home Civil Service, for obvious reasons. However, political advisers are civil servants of a special kind, and they fit within the broad parameters of the arrangements that I have described.
Railways: Parliamentary Scrutiny
My Lords, the 2004 White Paper The Future of Rail set out the Government’s view that it should be for Ministers, accountable to Parliament and to the electorate, to set the national strategy for the railways. A structure for the industry based on that principle has since been delivered through the provisions of the Railway Act 2005, and no further changes are planned.
My Lords, in recent months a number of Written Questions tabled by noble Lords have met with the reply from the Government, “Write to Network Rail”. Does the Minister accept that, with £5 billion of public money going into Network Rail every year, robust parliamentary scrutiny of its operations is essential to provide transparency for taxpayers and railway users?
My Lords, I certainly agree with the noble Baroness’s second point. Some of the responses to which she referred relate purely to operational matters. It is quite right that those references are made, because I am sure that noble Lords will receive a far more accurate response on operational detail.
My Lords, is the Minister aware that a group of us spent a lot of time discussing this issue with the former Prime Minister Mrs Thatcher and that she was warned in many of those sessions? The Government ought not, therefore, to be terribly frightened; the proposal did not come from them in the first instance, which is unusual. Do they not now agree that the decision to privatise the entire railway system was a major mistake and that such a measure is unknown in almost every other European passenger railway system of any size, yet we continue with it and everyone hears the complaints? Is it not high time that we had a serious examination? A long time has passed; there is a lot of experience. Perhaps the Government could start the examination with a survey of what passengers think of the current system.
My Lords, the noble Lord’s important and compelling statement about rail privatisation is absolutely right. I am sure that it will not have escaped the notice of most Members of your Lordships’ House that the Opposition themselves have begun to apologise for what they did to the rail network. We have a system of parliamentary accountability; it was our Government who ensured that it was maintained. Indeed, the legislation that followed the 2004 White Paper brought more issues back under parliamentary scrutiny so that the rail network could be held properly to account through Ministers.
My Lords, in summer 2005 the Department for Transport established an internal rail group to work in partnership with industry on the department’s new responsibilities to achieve the following objectives: to secure delivery of improved operational financial performance and appropriate rail passenger services at an acceptable price; to deliver a robust, affordable and sustainable strategy for the development of the railway; and to ensure that cost-effective and timely delivery on major rail projects was achieved. Have any of those objectives been met?
Yes, my Lords, we are meeting our objectives for the rail network. There is the largest number of rail passengers since before the Beeching closures. We have rapidly rising investment and greater confidence in the rail network. We are doing extremely well given the current structure.
My Lords, has the Minister seen reports today that South West Trains is planning to take about a fifth of its seats out of commuter trains and to charge passengers 20 per cent more to use trains arriving in London between 10 am and 12.49 pm? Have the Government given their blessing to this robbery?
My Lords, can the Minister confirm that the governance structure of Network Rail is being considered and whether that will involve trying to align the interests of passengers, train operating companies and Network Rail so that the huge bonuses earned by its directors will be the result of satisfying people?
My Lords, the confidence of the travelling public in the rail network is higher than it has been for some time. As I said at the outset, we have no immediate plans to change the industry structure that has been agreed. By and large, the structure is working well, although noble Lords are right to highlight the problems.
My Lords, is there any truth in the rumours in today’s press that the Government agreed to the South West Trains increases, or certainly that they were told about them? Does that signify the Government’s abandonment of their policy to get people to leave their cars and travel by train?
Absolutely not, my Lords. We see continued growth in passenger numbers on the rail network. We anticipate a 30 per cent growth over the next few years, and there has been a 40 per cent growth since 1997. It is not true that the department secretly agreed the South West Trains increases. Stagecoach proposed increases in some fares in its franchise bid but they were related to unregulated fares, which are not for the department or the Government to approve or disapprove.
My Lords, what guidance would the Government give to the rail companies on the colossal difference between first-class and economy fares? For example, from Llandudno Junction the ordinary first-class fare is £310, whereas the economy fare is £67. There is such a disparity.
My Lords, I am not familiar with Llandudno Junction, but perhaps I ought to be. Obviously, I will need to replan my holiday schedule. First-class and economy fares are matters for the operating company. The department regulates some fares, particularly for season tickets and savers, which account for approximately 75 per cent of all rail travel. I am sure that market forces must have a bearing on all other fares.
My Lords, the Olympic board is committed to delivering on its commitment to have a sustainable athletics and community sports-for-all concept for the Olympic stadium in legacy. The “living stadium” concept, with a mixed-sport offering, combined with commercial, school and community use, is the most compelling option to delivering the legacy ambition. The Olympic board has now commissioned further detailed work on the concept.
My Lords, I thank the Minister for that Answer. Does he agree that we must ensure that as many facilities as possible have a future use and that we do not again end up subsiding very rich sports, such as football? Those facilities should have a sporting legacy.
My Lords, that is an important point. It is very much in line with the thinking of the authority. The capacity of the stadium will be reduced, from the 80,000 that is necessary for the opening and closing ceremonies of the Games and for the Olympic Games themselves, to 25,000 for athletics and other sports, so that it can be more readily used by the community, schools and others who wish to participate in sport. The stadium is only one of five sports facilities that will be permanently in place as a legacy from the Games.
No, my Lords, not yet. Negotiations are still going on with McAlpine, the main contractor. All the participants in the construction have an exceptional record of producing stadia to time and on budget. They were responsible for the Olympic Games stadium in Sydney, among other achievements. We have not yet finalised the budget.
My Lords, besides the main stadium and other sporting facilities that the Minister has mentioned, which will remain in situ, a number are being designed specifically so that at the end of the Games they can be dismantled and taken to other parts of the country so that people across Britain will be able to use and enjoy them.
My Lords, my noble friend is quite right. Part of our ambition is that the Games will involve the whole of the United Kingdom and not just London, although London is the site of the Games and the winning-bid city. The Games will be played in various forms right across the country. The most important legacy of all from the Games will be increasing the sporting participation of young people in the wide range of sports that the Olympics Games represent, wherever they might live in the United Kingdom.
My Lords, is it true that the facilities for the shooting sports will be very considerable and expensive and that, according to the plans, they will be dismantled after the Games, leaving no legacy? If so, would it be better to improve the existing facilities that can remain for the use of future generations?
My Lords, the noble Lord has identified an area that raises very challenging issues as regards the legacy. Although shooting is pursued properly and safely as a sport, we are at the same time concerned to ensure that we pursue our broader objectives of reducing the availability of guns and gun culture. That is why we have legislation on the ownership of guns; there is also the question of the facilities for the Games. We want the Games to feature shooting, but the noble Lord will realise that we are bound to be concerned about the nature of the facilities that obtain thereafter.
My Lords, it is the turn of the Cross-Benchers.
My Lords, is the Minister aware that people with a learning disability are unable to take part in the Paralympics? I believe they cannot even take part in the Beijing Games. Can the Minister do anything to ensure that they are able to take part in the 2012 Games?
My Lords, does the Minister accept that the real and lasting benefit of the Games will be not just in leaving glittering stadia but in enhancing the lives of the people of east London in particular, which contains some of the youngest, poorest and most multicultural communities in this country, if not in Europe?
My Lords, I am grateful to the right reverend Prelate. I could list a whole range of ways in which that community will benefit. Let me make the obvious point. If, in the 18th century, it had been thought likely that very close to the centre of London something as absurd as an open space as large as Hyde Park or Regent’s Park would be created, people would have been surprised at that ambition. But once it was realised, they would have recognised the huge benefits that it would bring for centuries thereafter. What is being created as the Olympic legacy is the largest urban park that London has seen and we should celebrate that fact.
asked Her Majesty’s Government:
What action is being taken by the United Nations Security Council, in light of the Government of Sudan’s decision to prevent the deployment of a new peacekeeping force in Darfur, to ensure the creation of effective peacekeeping arrangements in the region.
My Lords, the refusal of President Bashir of Sudan to agree to a UN enhancement of African Union peacekeepers in Darfur is part of a wider pattern of non-co-operation with the international community. The United Kingdom is pushing for tougher measures in the Security Council against Sudan, including a countrywide arms embargo and sanctions against individuals responsible for atrocities in Darfur. The United Nations Secretary-General has also, with our support, spoken to President Bashir to make clear his concern.
My Lords, when the British ambassador to the United Nations last week rebuked Sudan for its failure to allow the hybrid UN/AU force into Darfur, he said that there had to be a firm response to the continued provocation. I wonder what specific sanctions the Minister had in mind from the list that he has just given to the House. Do the Government now favour disinvestment, the freezing of assets, travel bans, the extension of an arms embargo and a no-fly zone over Darfur? Four years after the killing began in Darfur, with 400,000 dead, some 2 million people displaced and 90 per cent of the villages razed to the ground, surely now is the time for decisive international action to end this tidal wave of killing.
My Lords, in some respects the position is slightly worse than even the noble Lord has put it. There is no agreement on the hybrid force. There is no agreement on the second phase—the heavy UN support force—which I regard as an even more urgent problem. The intention is to secure an arms embargo across the whole of Sudan so that not just the Government of Sudan but the rebel groups are deprived of their weapons as fast as they can be. The United States, ourselves and other allies are now discussing lists of those—I am afraid that I cannot share the names today—to be subject to a wide variety of sanctions. I can also confirm that we have not ruled out the possible option of a no-fly zone.
My Lords, is it not a matter of shame that the international community has passed by on the other side while genocide is occurring in Darfur? Is it not disgraceful that the United Nations Human Rights Council—and probably the United Nations Security Council, because of China’s position—is likely to ignore the damning conclusions of its own high-level mission to Darfur? Is it not equally disgraceful that, since its inception last June, the UN Human Rights Council has passed only eight resolutions, all against Israel, none against Zimbabwe and none on Darfur?
My Lords, a couple of very important operational resolutions have been carried by the UN Security Council. Resolution 1706 was the most recent and gives the basis for many of the steps that are now being taken. For the reasons that I gave in my Answer, there is the prospect of another Security Council resolution, and I am hopeful that we will get wide international support for it. Although China has not always performed in a way that we would wish, I draw to the attention of the House the fact that, when President Hu visited Sudan, he made it clear that China, too, is coming to the end of its patience.
My Lords, this is a serious problem. The humanitarian efforts of NGOs have probably never been under such acute pressure as they are now. This is an issue that we have been raising persistently, along with those organisations. One of the other setbacks of recent days has been the unwillingness of the Government of Sudan to take any of the steps that they had agreed to take to get more humanitarian access and food relief to Darfur and, incidentally, to Chad, where many of the refugees have gone. This issue is in front of the United Nations. We are clear that the situation has to be reversed, and the United Nations has the basis in current resolutions to do that without further discussion.
My Lords, has the Minister seen that some participants have withdrawn from the international donor consortium meeting now taking place in consequence of Khartoum’s refusal to allow humanitarian access to Darfur to be placed on the agenda? What was the decision of Britain and the European Union concerning participation in that meeting? Does he now consider that the situation in Darfur is an overwhelming humanitarian catastrophe at least equivalent to what obtained in Kosovo and that therefore the international community is entitled under international law to intervene, with force if necessary, against the wishes of the Sudanese Government?
My Lords, Resolution 1706 and the Addis agreement make it plain that the international community has undertakings—not least from the Government of Sudan and some of the rebel groups—that there needs to be a firm peacekeeping operation in which the United Nations plays a key role. A fundamental part of that role is the protection of people. There is no question in my mind but that such power now exists. There is a desire to try to make sure that that happens without increasing the amount of bloodshed, and we are urging that that is precisely what happens.
My Lords, does the Minister agree that given the frustrations that have occurred in trying to get any action out of the United Nations—like other Members of the House, I deplore that lack of action—it is high time for the European Union to set an example and take certain unilateral actions? For example, it is perfectly at liberty to introduce wider sanctions on investment than the ones that the UN is now considering. We often forget that Sudan is one of the African, Caribbean and Pacific associates of the European Union, but is it not time that that relationship was put in question?
My Lords, that is certainly within the power of the EU and the United States. It is clear to me that, if there is not decisive action on the part of the UN, that is exactly what will happen: bilateral sanctions will be introduced. I noted the point about disinvestment, which has always been one of the serious options. It would be desirable if that could be done without disrupting the north-south peace process and making it impossible for the people of the south of Sudan to live a decent economic life after some generations of war and attack.
Post Office Network Subsidy Scheme Order 2007
Renewables Obligation Order 2006 (Amendment) Order 2007
My Lords, I beg to move the Motions standing in my name on the Order Paper.
Moved, That the draft orders laid before the House on 1 and 8 February be approved. Eighth and 10th Reports from the Statutory Instruments Committee and 10th Report from the Merits Committee, Considered in Grand Committee on 15 March.—(Lord Evans of Temple Guiting.)
On Question, Motions agreed to.
Pension Protection Fund (Pension Compensation Cap) Order 2007
Occupational Pension Schemes (Levies) (Amendment) Regulations 2007
Occupational Pension Schemes (Levy Ceiling) Order 2007
Jobseeker’s Allowance (Jobseeker Mandatory Activity) Pilot Regulations 2007
My Lords, I beg to move the four Motions standing in my name on the Order Paper.
Moved, That the draft orders and regulations laid before the House on 19 and 26 February be approved. 10th and 11th Reports from the Statutory Instruments Committee, Considered in Grand Committee on 15 March.—(Lord McKenzie of Luton.)
On Question, Motions agreed to.
Fraud (Trials without a Jury) Bill
My Lords, I beg to move that this Bill be now read a second time.
In this Bill we return to the implementation of Section 43 of the Criminal Justice Act 2003, as I said we would when we debated the Fraud Bill. Section 43 created the possibility of trials without juries, in the interests of justice, in a limited category of serious and complex fraud cases. The proposals are about justice. Lord Justice Auld said in his independent review of the criminal courts on this issue:
“If I had to pick two of the most compelling factors in favour of reform, I would settle on the burdensome length and increasing speciality and complexity of these cases, with which jurors largely or wholly strangers to the subject matter, are expected to cope. Both put justice at risk”.
Section 43 would allow a handful of the most serious and complex fraud cases to be tried by a judge sitting without a jury. Before the debate becomes monopolised by a discussion about jury trial, as generally seems to happen with debates on this subject, I want to spend a little time on the ends rather than the means: the problem that we are seeking to solve rather than the device by which we are hoping to solve it.
Fraud inflicts significant and increasing damage on the United Kingdom economy. It is a crime that the Government take extremely seriously. Our strategy for tackling this problem has several elements. One is law reform. The Fraud Act 2006, which came into force this January, creates a new general offence of fraud and new offences relating to deception. Another element is the cross-departmental review of fraud that has examined the prevention, detection, investigation, prosecution and punishment of fraud. Its report was published in July 2006 and was put out for consultation, and last week I issued the Government’s response to that consultation. New procedures have been introduced to improve the management of large criminal cases, notably the protocol issued in March 2005 by the noble and learned Lord, Lord Woolf, the then Lord Chief Justice, on the control and management of heavy fraud and other complex criminal cases. The other key element of the Government’s strategy is aimed at the very small group of cases that involve frauds that are so serious and complex that the criminal justice system finds it difficult to prosecute them effectually.
The present situation is far from satisfactory, for a number of reasons. The complexity and resulting length of some serious and complex fraud trials lead judges to sever indictments in order to make them manageable for and comprehensible to a jury. Despite this, it is often necessary to restrict the material presented to the jury. Evidence is pared down and the charges are reduced to the main charges only. The result of that may be that the full scale of the allegations against the defendant or, more often, defendants cannot be exposed.
I have attended meetings with the Serious Fraud Office and prosecution counsel where they have stated that the most logical way of prosecuting a case is to try defendants together but that this simply would not be possible under the current system of jury trial. Secondary defendants, who ought properly to be prosecuted, are not proceeded against for fear of complicating the trial further. Occasionally, trials collapse with the highly unsatisfactory outcome that the taxpayer has incurred substantial cost and no one has been brought to justice.
Let me make this clear: we do not found our case for this measure on the proposition that juries are incapable of understanding the evidence in fraud trials, although there are mixed views about that. Our argument is that the measures that need to be taken to enable the jury to cope with the evidence are a problem in themselves. As a very senior judge put it:
“I believe that it will normally be possible for a competent judge, with the co-operation of competent and conscientious counsel for both prosecution and defence, by a process of severing counts and ring-fencing evidence, to reduce the case to a dimension that the jury can comprehend … But this process only renders the trial manageable by removing from the jury a large (sometimes even the major) part of the evidence that is relevant to the central issue—the honesty of the defendant. Often the evidence that is ring-fenced from the jury is cogent. I believe that a trial process that requires one to remove from the tribunal a large part of the relevant evidence, because it would otherwise overwhelm the tribunal, is seriously flawed and, so far as I am concerned, this is the primary reason why I consider that complex fraud cases should not be tried by juries”.
The judge who said that is now the Lord Chief Justice of England and Wales. I need to explain that those comments were not made absolutely in the context of the present debate about this Bill but in a public lecture made some years ago on the basis of his experience of trying such cases.
Despite attempts such as the 2005 protocol of the noble and learned Lord, Lord Woolf, to keep trials within reasonable bounds, which the Government welcomed, complex fraud trials often last for months. In the four years from 2002 to 2005, 27 fraud trials lasted more than six months and six of them lasted for over a year. The burden that this places on jury members is excessive; few, surely, would disagree that it is unreasonable to expect citizens to tolerate such an intrusion into their personal lives. As only a limited number of people are able to give up other commitments to sit on a jury for so long, it also means that the juries that hear these cases cannot be properly representative of the community. How many Members of this House would be willing or able to give up many months or even a year or all their current commitments—and in many court cases, I am glad to say, substantial incomes—in order to sit on a fraud trial jury?
So we are left with enormously long trials that impose an intolerable burden on jurors and do not result in a jury which is representative of the community—one of the arguments in favour of the jury system—yet which fail to expose the full criminality of the alleged fraud. The public see an unhappy contrast between everyday frauds, such as benefit fraud, which are dealt with effectively, and those on an infinitely grander scale, where a combination of blizzards of paper and—dare I say it?—obfuscation mean that justice is difficult, if not impossible, to achieve.
Changes to the system need to be made and, indeed, have been proposed for the past 20 years. The first call for change was in 1986, when the Roskill report, under the chairmanship of the most distinguished judge Lord Roskill recommended that, instead of being tried by a jury, such cases should be tried by a special fraud trials tribunal consisting of a judge and two lay members drawn from a panel of persons with general expertise in business and experience of complex transactions.
In 1998, the Government published a consultation paper, Juries in Serious Fraud Trials. The majority of respondents to it favoured replacing the jury in such trials, as did Sir Robin Auld—now Lord Justice Auld—from whose review of the criminal courts of England and Wales I quoted earlier. Although the Auld report, like Roskill, recommended using a panel of experts to hear such cases, it highlighted numerous difficulties, including uncertainty about the role of the expert members, the risk that they would contribute evidence that could not easily be challenged by the parties, the question of how readily suitable members could be found and the cost of paying them.
Taking account of the comments received following consultation on the Auld report, the Government decided that the option of a judge-alone trial was, on balance, the best solution, and that was adopted in what became Section 43 of the Criminal Justice Act 2003. That provides for the judge in a serious or complex fraud case to order, on application by the prosecution, that the trial should be conducted without a jury where he is satisfied that its length or complexity is likely to make it so burdensome on the jury that the interests of justice so require—I underline those words, as I did in opening, because that is the test. Not only must the judge be satisfied that those onerous conditions are met, even if he is persuaded, an order can be made only with the approval of the Lord Chief Justice or another senior judge nominated by him. As a final safeguard, there is a right of appeal to the Court of Appeal.
My Lords, I shall come back to that point but my noble friend is absolutely right that if the Motion by way of amendment, which is to be moved by the noble Lord, Lord Kingsland, were to succeed, there would be no opportunity for this House to amend the Bill. I shall come back to the consequences of that.
The key benefit of Section 43 provisions will be more efficient trials that enable the full criminality of cases to be exposed. A judge sitting alone will be able simply to read evidence that would have had to be presented orally to a jury. Arguments that would have to be set out at great length to a jury will be understood far more rapidly by a judge. A judge sitting alone would be less likely to require cases to be simplified or severed.
I want to emphasise this because it has been a matter of concern to the House: Section 43 is not a general assault on the principle of trial by jury; nor is it about choosing between a fair trial and an unfair trial. It is about choosing between modes of fair trial. I fully acknowledge that there are great advantages to trial by jury, which is why it is appropriate for the vast majority of Crown Court cases; but there are circumstances—very limited circumstances—involving a very small number of cases where the advantages are outweighed by the disadvantages. For these cases, the 2003 Act provides for non-jury trial in England and Wales and in Northern Ireland. One category is where there is a real danger of jury intimidation. That was accepted by the House, and the provision was brought into force last year.
The other category is serious and complex fraud cases. Other sorts of case can give rise to very long trials—terrorism, for example—but serious fraud cases are distinct in that even an enormously long trial may not, for the reasons I have given, ensure that justice is done. That is why we are seeking to implement this measure. I should like to make it clear—the question is bound to arise during the debate this afternoon—that the Government have no plans to extend juryless trials to any other categories of case.
Section 43 will affect only a tiny number of exceptionally long and complex serious fraud trials. It will ultimately be for the Lord Chief Justice and other judges making decisions in individual cases to determine how many non-jury trials will take place. Our expectation is that, out of around 28,000 contested cases heard by a jury each year, the number of cases qualifying for juryless trial under Section 43 may be only half a dozen and will certainly not exceed 15 to 20 cases. That means that over 99.9 per cent of current jury trials will be unaffected by these measures. In the minute number of cases that Section 43 addresses, there exists an unacceptably high burden on the public, the public purse and the jurors.
Noble Lords will recall that, when Section 43 was passed, its implementation was made subject to a requirement for an affirmative resolution of both Houses. This unusual step constituted a guarantee from the Government to undertake further consultation. In accordance with that guarantee—
My Lords, the SFO deals with something like 90 cases each year. I have indicated that the best estimate of the number of cases that will be tried without a jury is something like six. Those will probably be predominantly SFO cases, so it will be whatever percentage six out of 90 or 100 is: 6 or 7 per cent. I am always greatly assisted by the Benches behind me—in arithmetic and, I hope in other matters as well.
In accordance with the guarantee of further discussion, we made several attempts to seek a way forward in 2005-06. There was a seminar attended by members of the Opposition, including the noble Lord, Lord Kingsland, members of the senior judiciary and representatives of prosecuting authorities and the professional organisations. Although no clear agreement emerged, there was unanimous agreement on the need to change the way serious and complex fraud cases are heard. We then sought an affirmative resolution, which was passed in the other place. It became apparent, however, that it would not be passed in this House. At that point we again sought consensus, by opening further discussions with the Opposition on the basis that the Fraud Bill, which was then before Parliament, could be used to make modifications to Section 43 that might be acceptable to all sides. Again, no agreement was forthcoming.
The Government have always signalled their intention to give effect to the provisions of Section 43. The inclusion of the requirement for an affirmative resolution was never intended to constitute a permanent obstacle to the introduction of juryless trials; if so, there would have been no point in enacting the provisions. The failure to reach consensus on a way forward left the Government in the unfortunate position of having to introduce fresh legislation to give effect to the provisions of Section 43. We remain resolute in our belief that Section 43 is necessary. We hope that the House, having considered our arguments, will conclude that it would be inappropriate not to allow this to occur.
The noble Lord, Lord Kingsland, has tabled an amendment that, if passed, would result in this Bill being rejected now. I need not remind noble Lords how unusual it is for that step to be taken on Second Reading in this House. It would not, however, be inappropriate to remind the House that when the order for commencing Section 43 was passed in another place, noble Lords opposite intended to block it in this House until the matter had been considered in primary legislation. The approval Motion in this House had to be withdrawn. The clear implication was that noble Lords opposite wished to engage in debate in the context of primary legislation. When negotiations that were carried out during the parliamentary process before the Bill came to nothing, I announced that we would not bring back another order but would introduce primary legislation. This Bill is the result: it gives further opportunity for the debate that noble Lords opposite made clear they wanted to engage in. At least, that is what we understood. It is surprising, then, that having tabled amendments in another place, the opposition parties do not wish to pursue them further.
We said in our manifesto that we would overhaul laws on fraud and the way that fraud trials are conducted to update them for the 21st century and make them quicker and more effective. We have listened to the views of this House on more than one occasion. We have debated, consulted and twice taken back this issue for further discussion and to consider amendments. We have held many meetings with Opposition Members to see if there is a way forward. The Government, having listened and made those attempts, are committed to this Bill. It will be no surprise to anybody, therefore, for me to make plain that this Bill, if rejected today, will be reintroduced next Session, with a view to using the Parliament Acts.
If, therefore, the Bill is rejected today, as my noble friend Lord Clinton-Davis in his question made clear, your Lordships will be deprived of any opportunity to modify the contents of the Bill. I cannot guarantee, of course, that any particular amendments that your Lordships might want to make to the Bill would ultimately be accepted. However, I can guarantee that if this House summarily rejects the Bill the opportunity for such amendment disappears and the Bill that will be brought back in the next Session will be the Bill in its present form. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Goldsmith.)
rose to move, as an amendment to the Motion that the Bill be now read a second time, to leave out “now” and at end insert “this day six months”.
The noble Lord said: My Lords, I thank the noble and learned Lord the Attorney-General for the measured and dispassionate way in which he presented his case. This is often a highly emotional subject, and I am very grateful to him for outlining the history of the measure and treating the issues involved very carefully and thoroughly.
I would not wish the noble and learned Lord the Attorney-General to think that we in the Opposition in any way underrate the importance of the fight against fraud. We attach the utmost seriousness to this battle and we applaud many of the things that the Government have done in recent years to improve society’s position in relation to the fraudster—most particularly the recent Fraud Act, which redefines fraud in a way that I trust will be much more effective in achieving what the noble and learned Lord described as justice in the courts.
The noble and learned Lord the Attorney-General finished his observations by addressing the Opposition’s amendment. It is true that we seek to defeat this Bill at Second Reading. The commitment to change the rules about jury trial did not appear in the manifesto, so we are not bound by a constitutional convention not to so act. But that is not the main reason why we have chosen to take this course.
As the noble and learned Lord said, under Section 43 of the Criminal Justice Act 2003, before the substance of the change to jury trial can be implemented, an affirmative resolution must be passed in this House. That affirmative resolution could not be amended by your Lordships; it would either be yes or no. The noble and learned Lord took the view that, at the end of the day, your Lordships would say no; he therefore chose not to introduce a resolution under Section 43 but to introduce primary legislation. The reason why we are seeking to divide on Second Reading is that we feel that we are in exactly the same position as we would have been had an affirmative resolution been tabled.
My Lords, will the noble Lord confirm that on at least two occasions at the time when that order was presented to the House, and during the passage of the Fraud Bill, he, on behalf of the Opposition, made it clear that they wanted to engage in debate on the details in the context of primary legislation? If that was the position that they took then, why is he now suggesting that actually all that they ever wanted to do was simply to vote yes or no to this provision?
My Lords, that is not the point that I am seeking to make. An affirmative resolution would give us only the opportunity to say yes or no; it would not give us the opportunity to amend. The position under this Bill is thus no different from that which would have been the case under an affirmative resolution.
Our case is quite simple: we oppose the principle of resiling from jury trial in all serious criminal cases. The noble and learned Lord suggests that we might have amended it; the Opposition actually sought to amend it in another place, where every single amendment that we tabled was rejected.
My Lords, is it not very usual for this House to take a different view from another place in Committee, on Report or even at Third Reading? Why, then, can the Opposition not agree to allow the Bill to proceed at this time and amend it in the appropriate way?
For two reasons, my Lords: first, because the Opposition are, ultimately, opposed to the principle of changing the rules about jury trials in criminal cases; and, secondly, because the reaction of the Government during the Commons stages resulted in us having no prospect of any amendments that we might have tabled being accepted in any event. For both those reasons, we have chosen to table today’s amendment in your Lordships’ House.
On the substance of the matter, as your Lordships are well aware, jury trial has been a central component in the conduct of all serious criminal trials for about the past 700 years. Its contribution to the preservation of the liberty of the individual, and to the legitimacy of Government, is quite incalculable. In particular, it is not the state but the community and individuals within it that determine who is responsible for depriving individuals of their liberty. This process has been endorsed by each generation for all of those centuries; so it will require some very cogent evidence and powerful arguments to convince us that the system needs changing. We submit that the Government have simply not produced them.
There are a number of reasons for getting rid of jury trial, or modifying it, that might reasonably be argued. One is the question of the length of fraud trials, which are expensive and take a long time. Would the measure proposed by the Government make them any shorter? Well, the answer is no. When the noble and learned Lord and I attended a seminar in January 2005, arranged by his department, the now Lord Chief Justice—then Master of the Rolls—was a participant. The noble and learned Lord, Lord Goldsmith, will recall the noble and learned Lord, Lord Phillips of Worth Matravers, saying in terms, as Master of the Rolls, that switching from jury trial to trial by judge alone in long and complicated fraud trials would not shorten them.
Indeed, if the noble and learned Lord, Lord Goldsmith, were to read the Second Reading speech of the Solicitor-General on this Bill in another place, he would have seen that the Solicitor-General adduced, as an important component of the Government’s thinking, the fact that they want the opportunity to present what the honourable gentleman described as “the full criminality” of the accused to the court. He suggested that this would be much easier to do in front of a judge sitting alone than in front of a judge with a jury.
I shall later question whether that is true. However, more immediately, my understanding of the problem that the Serious Fraud Office faces is not whether it can represent the full criminality but whether it can secure a conviction at all. That issue in no way calls into question the jury principle—unless of course the Government are going to suggest that it is easier to secure a conviction in front of a single judge than it is in front of judge and a jury. Nothing in the Solicitor-General’s proposal will shorten fraud trials. If anything, it will lengthen them because much more evidence will be put in front of a single judge than in front of a judge and jury, and no money whatever will be saved.
The second suggestion is that juries are not capable of understanding the complexities of fraud trials. This has been firmly disproved by the outcome of the Jubilee Line case. Your Lordships will remember the debate in this House of the report by Mr Stephen Wooler, Her Majesty’s Chief Inspector of the Crown Prosecution Service, after the breakdown of the Jubilee Line case. All the jurors were interviewed many months after the trial broke down. A special study was conducted by Professor Sally Lloyd-Bostock of the University of Birmingham. The conclusion drawn by Mr Wooler and Professor Lloyd-Bostock was that the jury had a very firm grasp of a large number of extremely complicated issues, even after seven or eight months and without referring to any documents whatever to refresh their memories. Indeed, the Solicitor-General went out of his way in another place to say that the Government were not contending that the jury was not capable of understanding complex cases. I am at a loss to know why the Government have continued to use the word “complex” in the standard laid down in Section 43 if what the Solicitor-General said in another place not so long ago continues to be government policy.
If the trials are not going to be any shorter, and if a jury is perfectly capable of understanding all the complexities of the evidence presented, what argument is left to the Government? The Government have said that the real problem is that these trials are too burdensome for the jury, and use a number of criteria to explain this, including the disruption of family life. However, many other sorts of trials are also long and complex. There are health and safety trials, narcotics trials, many trials relating to child abuse and terrorism trials. Many of these trials are equally lengthy and equally complicated, and often involve vast amounts of documentary evidence. What is the difference between a long and complicated fraud trial and a long and complicated trial of many other issues? I suggest that there is no difference whatever; so how long will it be before the Government come up with another Bill dealing with another section of criminal law in which it is alleged that a jury is simply incapable of understanding the matters, or that the matters are far too burdensome for a jury to get to grips with?
One of the things that most concern the Opposition is that we are being presented with the thin end of the wedge. If we allow the Bill to go to Committee and to make its way through the House, and if it ultimately gets on to the statute book, this will then set a precedent for removing juries from other cases; and that would be quite unacceptable. It was also suggested in another place that juries are in some way unrepresentative. It is true that on long trials quite often the composition of the jury is made up of perhaps a disproportionately large number of ladies and retired or temporarily unemployed people. But that is true for all long trials, not just for trials for fraud. Moreover, whatever the composition of a jury, it is likely to be far more representative than the judge alone.
Perhaps I may draw your Lordships’ attention to what it would be like for a single judge to try a case like this. In any jury trial, the jury sees only admissible evidence. A great deal of evidence is brought before the judge by the prosecution asking for it to be admitted into the trial. The judge reads that evidence and considers whether it is admissible. If it is inadmissible the jury does not see it. I am thinking particularly of hearsay, confessions or propensity evidence. But if the judge is not only the judge of law but also the judge of fact, in a single-judge case, he will have to read all the evidence. He will see all the evidence which he, for one reason or another, goes on to declare inadmissible. I am not suggesting that the judge is not capable of divorcing inadmissible evidence from admissible evidence, but in some cases it may be very difficult. However, the perception of the public will be that he cannot.
In another passage in the debate in another place, the honourable gentleman the Solicitor-General suggested that one way to shorten a trial would be for the judge to read himself into the case so that it would not be necessary for what he read to appear before the court. That is a quite unacceptable proposition. A cardinal feature of trials in front of a jury is that the defence has an opportunity to cross-examine all the evidence put against his client. But if the honourable gentleman—
My Lords, the noble Lord, Lord Thomas, has taken my argument one step further by raising the very difficult issue of public interest. As he rightly says, much or all of the evidence put before the prosecution is never revealed to the defence. There is no sign of the Government having grappled with this issue.
My Lords, given the fraternal exchange between the Liberal Democrat Benches and the noble Lord, is the noble Lord aware of how this problem is dealt with in Northern Ireland where there are many trials without juries and where a different judge deals with disclosure and PII applications? Is he aware of that experience and the general high regard in which judges in Northern Ireland are held, and that trials tried in Diplock courts are universally regarded as fair?
My Lords, I am indeed aware of what happens in Diplock courts. It is usual to bring in a second judge to deal with that problem, but, as the noble and learned Lord knows full well, it is the duty of a judge throughout a trial to keep this matter under review. It is extremely difficult to have a second High Court judge on hand all the way through a fraud trial, which might last for many months or even years, to constantly check these issues.
Moreover, as the noble and learned Lord is also well aware, we hope that very soon it will be possible to restore trial by jury in Northern Ireland. I do not think that an example taken from terrorist cases in a situation which is extremely special, if not unique, ought to be an argument against the propositions that I am putting forward about the difficulty of trial by a single judge.
I am aware that I have taken up a great deal of your Lordships’ time in putting the Opposition's case. In our view, the way forward is to let the various measures that the Government have quite sensibly put in place take their course. We do not know yet what the effect of the Fraud Act will be. As the noble and learned Lord knows, I regret the fact that the Government have retained the common law offence of conspiracy to defraud because there is certainly evidence from the Jubilee Line case that that vastly over-complicates all the issues without, in the words of Mr Wooler, adding anything at all to the type of sentence that would have been imposed had the trial turned out differently.
The noble and learned Lord has also drawn our attention to the protocol of the Lord Chief Justice, as he then was—the noble and learned Lord, Lord Woolf. This is an extremely helpful and constructive document. Essentially, it would require all the admissibility issues to be dealt with before the jury was impanelled. If properly implemented, that would make an enormous difference to the expedition of trial by jury. Then the noble and learned Lord referred us to the inter-departmental analysis that has been conducted and reminded us it has been out to consultation. We look forward to seeing the results of that.
A number of measures are on foot at the moment that may well achieve the result that the noble and learned Lord is looking for; but the issue of jury trial goes beyond the issue of fraud. It is a crucial component of our constitution. It is one of the most important guarantees, together with habeas corpus, of the liberty of the individual. We should be extremely slow and wary of calling it into question let alone abandoning it in one particular form of criminal trial. Of course fraud is difficult to prosecute; but that is no reason why the citizen should be deprived of this fundamental constitutional guarantee which has been with him the centuries. I beg to move.
Moved, as an amendment to the Motion that the Bill be now read a second time, to leave out “now” and at end insert “this day six months”.—(Lord Kingsland.)
My Lords, the noble and learned Lord the Attorney-General began by indicating that the procedures followed in this debate are somewhat unusual. He is entirely right; but I am bound to say that we entirely agree with the reasons advanced by the noble Lord, Lord Kingsland, for treating this measure in the way that he has done. It is not a new matter of substance; I recall participating in another place in a debate on the Roskill committee report in which many of the arguments advanced by the noble and learned Lord the Attorney-General were deployed. The remarkable difference, however, has been the unwillingness of our present Government to respond to the objections to their proposals.
The previous debate was led by Douglas Hurd, now the noble Lord, Lord Hurd of Westwell, who listened to the views of another place. Of those who spoke in the debate, 11 out of 12 Members spoke against the proposal that the Attorney-General seeks to advocate today. Unsurprisingly, the measure was withdrawn in the form currently being advanced.
It is remarkable how little the arguments have changed in 21 years, but in one respect the general legal ethos has changed. There have been disturbing indications from the Government that they do not cleave to the foundations of our freedoms, our rule of law and justice without cavil to the extent of their predecessors. We have seen measures that have called into question habeas corpus and the rules about the burden of proof in criminal trials. The Attorney-General may not like it, and he may shake his head, but the reality is that this country needs to beware of measures that undermine one of the fundamental rights of the citizens in this country—the jury trial, which they perceive to be a guarantee of their freedoms.
No doubt the Attorney-General is aware of the recent inquiries by the legal professions in England on the attitude of the public to jury trial. Eighty per cent of those who gave evidence thought that juries would be much more likely to adhere to their views than judges would. There was far greater confidence in juries than in judges. That does not reflect an understanding of the very great distinction of our judicial profession, but it sounds a warning against the limitations on the jury system that this measure seeks to introduce.
One point made in the minority report on Roskill, which I thought telling at the time, was when Mr Merrick said that legislators ought to bear in mind,
“the public incomprehension which would follow in denying the right to a trial by jury to a man who has stolen £1 million by the use of a computer and allowing it to a man who has stolen £1 million from a bank by the use of a gun”.—[Official Report, Commons, 13/2/98; col. 1167.]
It is hard to understand precisely what motivates the Government to persist with this legislation in the face of the grave anxieties expressed in another place, by the legal profession, bodies such as Liberty, JUSTICE and the Law Society, and many who have had direct experience of the conduct of fraud cases. What lies behind it? It is hard to tell from the views expressed in another place by the Solicitor-General. When pressed, he said that,
“shorter trials, however desirable, are not our primary objective. We want to enable justice to be done by exposing the whole criminality of the case in a single trial. If trials are short, that will be a bonus”.—[Official Report, Commons, 29/11/06; col. 1101.]
It is not the length of the case that leads to this radical measure; length is apparently incidental to the Government’s motives.
In any event, on the length issue—it was ably dealt with by the noble Lord, Lord Kingsland—the procedures provided for in the measure would enable the defendant to take matters on appeal from the judge, including the reference to provide for a trial without a jury. On the face of it, it seems highly likely that the appeal process would extend trials beyond the time acknowledged, in relatively few cases, to be very burdensome.
The complexity of trials from the point of view of the juries has been dealt with by the noble Lord, Lord Kingsland, who properly pointed to the findings in respect of the Jubilee Line trial and the comprehension of the jurors of the issues at stake. It is proper to remind ourselves that the concerns expressed in that review by the independent inspector were about the management of the case, which appears to be what underlies the complexity. Here again, there is ambivalence on the part of the Government and the noble and learned Lord the Attorney-General. When he talks, as he did, about bringing all the issues together in one trial, I wonder exactly what he has in mind. Is that in the interests of justice? Is it necessary to make the case more complex to cover all the issues that might be raised? It certainly was not necessary, when Dr Shipman was being tried for murder, to bring into the case all the possible cases in which he might have committed murder. It was possible to convict him on the evidence of a number of cases, but to obtain a conviction and an exemplary sentence appropriate for the seriousness of the crime it was not necessary for the case to be comprehensive in the way in which the noble and learned Lord the Attorney-General seemed to suggest that fraud cases should be.
The noble and learned Lord the Attorney-General has brandished the threat of the Parliament Act. I am bound to say that that does not make it more attractive to me to see this Bill continued beyond today. It suggests deep commitment, for whatever reason—I find it difficult to divine the reason, other than a degree of stubbornness—that would render the noble and learned Lord the Attorney-General opposed to any amendment that might be advanced. It was clear from the way in which amendments were dismissed in another place that the Government are not open on these issues. They have set their face firmly in one direction and they intend to travel down that route until they arrive.
The question that might properly be asked is: why have the Government shown so little confidence in the measures that they themselves introduced to deal with some of these problems? Why are they not prepared to wait to see the effect of the Fraud Act, which only came into effect in January? Why are they not prepared to consider whether the amendment by the noble and learned Lord, Lord Justice Woolf, to the criminal procedure rules and the protocol for the control and management of serious fraud and other complex cases deliver the objectives that, on the face of it, they seem concerned about? Why are these measures being written off as not as important as tampering with the jury system? The noble and learned Lord the Attorney-General stated that they are not enough, but he has no evidence of that; he has no evidence at all, because they have not been in effect for long enough to draw conclusions.
There is another matter, again relating to the Government’s own legislation. The Attorney-General spoke about the all-embracing nature of the charge and the inclusiveness of the trial, making sure that every point is considered. That was not the motivation behind the introduction of the Domestic Violence, Crime and Victims Act 2004, which provides for trial by jury of sample counts only, if certain conditions are fulfilled, with the remaining counts to be tried by a judge alone. Whether that Act leads to differences is worthy of consideration. It might tell us something about the possible effect of the measure before us.
Despite the fact that these matters have been considered and debated for 21 years, the Attorney-General’s action appears, in the light of what has been done in the past two or three years, precipitate and careless of our fundamental rights and freedoms. I therefore hope that a stop will be brought to this legislation today and that the public will have an opportunity to consider the issues and why this House is proposing to take this action.
My Lords, the noble Lord, Lord Maclennan, has properly reminded us that the matter with which we are concerned today has occupied the attention of both Houses of Parliament for more than two decades. It is not so much a battle as a campaign. One is tempted to compare it with medieval sieges: the troops are deployed subtly; the advance trenches are dug; the trebuchet catapults are bedded in place, all directed towards what is perceived to be a weakness in the defensive wall. I shall not extend the metaphor further and suggest what might happen to the Attorney-General when he leads us with forlorn hope into the breach, but one may be tempted to say that, if that attack on the breach fails, he is considering almost a nuclear option. That is the situation.
A problem has very properly been identified by the Government. They have very honourably considered a solution as an alternative, by way of the Fraud Act of last year, the Domestic Violence, Crime and Victims Act 2004 and the protocol that was introduced almost exactly two years ago this week by the noble and learned Lord the Lord Chief Justice.
The Government rely heavily on two postulates; first, that the failure in the operation of trials for serious fraud must be somehow be laid at the door of the jury. There has been a great deal of examination of anecdotal and empirical evidence, but that case has never been proven. Such evidence as exists is very much to the contrary. Reference has already been made to R v Rayment and others; that is, the Jubilee Line case. The remarks of Mr Wooler, Her Majesty’s Chief Inspector of the Crown Prosecution Service Inspectorate, went far beyond merely saying that there was no evidence that the jury failed in this matter. Indeed, he specifically exculpated the jury with these words:
“No responsibility for the inconclusive outcome of the case can properly be attributed to the capabilities or conduct of the jury. Overall, they discharged their duties in a thorough and conscientious manner, and the fact that the trial became unmanageable was not their responsibility”.
Seven or eight months after the end of the trial, members of the jury were able to state conclusively exactly what the issues were in that trial. We should always remember that for the last seven months of that trial, the jury sat to hear evidence on only 13 days. The trial collapsed for a number of reasons. It seemed to be jinxed. Illness and various other factors probably contributed as much as anything else, as much as the prosecution’s tactical mistakes in the way that it deployed its case.
There is no evidence to show that there is a causal connection between what the Government regard as failure in high profile fraud cases and the actions of a jury. That begs the question how one defines failure. If one takes an Orwellian view, one may well say that conviction is good, acquittal is bad. Surely that argument is not going to be relied on by the Government.
The Government’s second postulate is that there are inherent weaknesses in the situation of a jury in such a trial. The arguments have already been very properly deployed by the noble Lords, Lord Kingsland and Lord Maclennan. The Government no longer seem to rely on a jury’s lack of cognitive capacity, although there were doubts about the way in which the matter was put by the noble and learned Lord the Attorney-General. This is what his partner, the Solicitor-General, said in the House of Commons at Second Reading on 29 November last year:
“It is not our case that jurors are not clever enough to understand complex fraud cases. That is a straw man that the Opposition seem to put up each time we debate this issue. That is not our claim”.—[Official Report, Commons, 29/11/06; col. 1089.]
He went on to say in the same speech:
“I am not advancing what the hon. and learned Gentleman describes as the stupid jury argument—not at all. I want to make it very clear that it is not our claim that juries are incapable of understanding complex fraud cases”.—[Official Report, Commons, 29/11/06; col. 1098.]
I mention the matter because the twin qualifications for an application under Section 43(5) are, on the one hand, that there should be a lengthy trial or, on the other, that there should be complexity. Complexities will inevitably lead to the length of trial. However, since the length of trial is dealt with separately from the question of complexity, it seems that complexity must apply in some way or another to the capacity of a jury to understand. In other words, that the issues are so complex that a jury is not able properly to comprehend what the issues are at each stage, evaluate relevant evidence or collate evidence and reach a rational conclusion. If the Government say that they are not relying on the stupid jury argument, so be it, although there seemed to be some overtones of that in the noble and learned Lord the Attorney-General’s address.
The second matter is the length of trials. The Government are very properly applying their minds to a genuine problem. It must be burdensome, sheer purgatory, for a person to have to sit on such a jury for, say, 12 months or more, but I am not sure that that forms a relevant part of the Government’s case. If the length of the trial is the problem, that does not confine itself to trials for serious fraud. The definition of a lengthy trial given by the Lord Chief Justice was a trial of three months or more, six months as a ceiling and 12 months in unique situations. I am sure we would all accept that definition. However, I ask the noble and learned Lord the Attorney-General this question—and I am sure that he will assist the House in this matter. Of the 30,000 or so trials in the Crown Courts last year, how many lasted more than three months? I suspect that the number must be many hundreds. Some of them would be drugs cases, some would be non-fraud conspiracy cases and some would be terrorism cases. If the Attorney-General has such data, I am sure that he will release them to the House. If those are not available to the Attorney-General, how could he and his colleagues have come to any conclusion about evaluating the whole problem in relation to serious fraud?
Time is forestalling me. If I am right in my submission, as I believe I am—although I have an overwhelming sense of my own fallibility at all times—the Government should succeed in this matter if the only possible way by which they can bring the matter to a solution is through this legislation. However, in view of the three-pronged attack that they have already, very properly, announced in relation to the Fraud Act 2006, which has been in operation for only two months, the protocol which has been in operation for exactly two years and the Domestic Violence, Crime and Victims Act 2004 which has not been brought into force, it seems to me that there is a very strong case for tarrying a while.
I agree with what the noble Lord, Lord Kingsland, said. When dealing with a jury, we are dealing with something that is much wider than a legal context—I say that not out of any soggy sentimentality for juries. Juries are utterly central and fundamental to our concept of liberty and justice.
I end with a quotation from Sir Patrick Devlin, as he then was, in a book that was published exactly 50 years ago, Trial by Jury. The verities that are dealt with I think are immortal. Here it is couched in the undying prose of Lord Devlin:
“Each jury is a little parliament. The jury sense is the parliamentary sense. I cannot see the one dying and the other surviving. The first object of any tyrant in Whitehall would be to make parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of 12 of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives”.
My Lords, I hesitate to intervene in what appears to be a predominantly legal exchange. I support the Second Reading of the Bill and will vote against the wrecking amendment. I note the pledge to use the Parliament Act if necessary.
The Bill deals with an issue that seems to generate considerable feeling and sometimes has been described as the thin end of the wedge as regards trial by jury. There is no trial by jury in a magistrates’ court and for summary cases the defendant does not have a right to opt to have the case heard instead in a higher court so that it can be before a jury. If a district judge is sitting in a magistrates’ court, the case is heard not by three people, but by one person who determines the verdict and, where applicable, the sentence, which could be a period of imprisonment.
Trial by jury is not the norm throughout the criminal justice system. In the civil courts, where cases of potentially enormous significance can be heard, it is not a key part of the process at all. Even in the criminal justice system, cases can be heard, in exceptional circumstances, without a jury if a jury could be subject to intimidation.
However, the Bill does not propose to hack away at the current rights of trial by jury. There are just under 30,000 contested jury trials a year and the Bill will reduce that number by a handful. The figure is unlikely to be more than 20 and probably just half a dozen. It would apply only to lengthy, complex and serious fraud cases, of which there were half a dozen lasting six months or longer in 2005, and only in cases where the prosecution, the trial judge and the Lord Chief Justice were satisfied it was necessary, in the interests of justice, judged against the strict criteria laid down. For the four years from 2002 to 2005, 26 fraud trials lasted for more than six months, six of which lasted for more than a year.
The need for new ways of trying complex fraud cases, often involving many defendants in inter-linking transactions and other acts, was highlighted in the reports by Lord Roskill in 1986 and Lord Justice Auld in 2001. Their argument did not extend to either other types of case or into a general proposition for a move away from jury trial. This Bill, in line with those reports, is also about a limited number of very specific, lengthy or complex fraud cases, which are likely to go on for many months, indeed up to a year or more. For the members of the jury that is an enormous period of time, and way beyond what can justifiably be expected of a citizen required to do his or her civic duty. It certainly raises questions about why cases need to go on for so long, and why we have a judicial system that allows, allegedly in the name of justice, for cases to extend over such a period of time.
For a juror, it can mean a lengthy disruption of his or her personal life. For those in employment it can put at risk promotion prospects or even their job, levels of income, pay rises and bonuses, and the ability to keep up to date with developments in their field of work. In some jobs, if skills are not regularly used, it can make a return to work many months later even more difficult. Needless to say, not being around for many months does not exactly endear an employee to his or her employer.
All these factors can also make it harder to end up with a jury that is as representative as the selection system is intended to produce. Those with careers to think about, those who have a less than sympathetic employer, and those with significant personal commitments are likely to use whatever channels they can to avoid sitting on cases lasting up to a year. Thus the principle of the randomness of selection of the jury is compromised in such cases.
My noble and learned friend quoted Lord Justice Auld’s report in which, referring to fraud cases, he said that their burdensome length and increasing speciality and the complexity with which jurors had to cope put justice at risk and was a most compelling factor in favour of reform. Whether Lord Auld is right in inferring that jurors may have difficulty in coping I do not know, but I am sure he is right in referring to the burdensome length and its impact. That was an issue brought out in the report undertaken by the inspector following the Jubilee Line case even though it may not have met the intended criteria for trial without a jury since it was not expected to be as lengthy or as complex as it was.
The requirement for oral explanation of documents which can run into thousands of pages in complex fraud trials is a factor in such trials lasting many months or even up to a year or more. This places a real burden on juries, since few people are in a position to give up their normal lives for so long. There is evidence that to get round this problem prosecutors split complex fraud trials into separate trials, drop the less serious charges against secondary defendants and reduce the number of charges before the court. None of these actions is in the interests of justice, since it means that the full alleged culpability of the defendants is not presented to the court.
In the Blue Arrow case the trial judge had to sever the case into two trials to make it,
“manageable for the jury”.
He said that,
“no jury should be asked to cope with what this jury has had to endure”.
The Court of Appeal said that,
“there is a significant risk of a miscarriage of justice resulting from the volume and complexity of the evidence”.
A judge sitting alone should be able to overcome these difficulties, hear a large number of charges, look at all the evidence and make sure that speeches and questions are not repetitive and are directed at the relevant issues and differences over facts. It may not result in the case being shorter but it should result in all the charges being put, all the defendants appearing before the court and the evidence in full being heard.
Complex fraud cases almost by definition include issues of whether what was being alleged was, or was not, being done knowingly and with intent. If it was, it is more than likely that fairly elaborate steps were being made to cover tracks and to present it in another light. Defendants in complex fraud trials are not usually relatively unsophisticated folk, unlike many who appear in benefit fraud cases tried in the lower courts.
Lengthy fraud trials, where juries have sat for many months before being asked to make decisions reflecting complex evidence, speeches and questioning relating to multiple defendants who they heard weeks and months earlier in the trial, would not be many people’s idea of how an effective criminal justice system should function. They certainly would not regard it as so if a better way was available, in certain clearly defined circumstances, to deal with such cases.
I do not believe that the public would regard the hearing of a small number of very lengthy and complex fraud cases before a single judge as an injustice or as an attack on jury trials; nor do all members of the legal profession share a lack of confidence in the appropriateness of a single judge and a non-jury trial in such cases. I believe that the public would support such a move, particularly if it ensured that the whole case was heard in one court and that all appropriate charges were laid, all appropriate defendants charged and all the evidence heard. That is justice, and that is what the public support and want. They do not want a system which, in respect of a limited number of lengthy and complex fraud cases, at times appears to be the sophisticated fraudster’s friend.
My Lords, I rise to speak in this debate in sorrow and in anger. I speak in sorrow because for more than 700 years the historic institution of trial by jury has been seen as the embodiment of justice of the people, by the people, for the people. I speak in anger because I had to hear the speech of the noble and learned Lord, which rewrote history. It was as though the events of 19 and 20 November 2003 never took place.
I was involved in the discussions on the Criminal Justice Bill. I sat down in good faith with other noble Lords and representatives of the Government and, after some to-ing and fro-ing between the Houses, we reached a solemn agreement. I have no need to refer to the private words, which were much stronger than those used on the Floor of this House and in another place, because David Blunkett explained it all to the House of Commons. There was not one word of that in the noble and learned Lord’s speech. Mr Blunkett said that if this House dropped its objection to Clause 43—it was then Clause 42, but it became Clause 43—he would ensure that there would be full and proper consultation involving not only the main parties but also the Attorney-General, the Serious Fraud Office and the senior judiciary to look at the various alternatives to restricting trial by jury. He said:
“I will not press for implementation of the clause. I am prepared to offer an affirmative resolution, should that be required”.
He was pressed by Mr Simon Hughes about whether that consultation would consider an alternative to the conventional jury that keeps the principle of jury trial. Mr Hughes asked:
“Is the implication of his remarks that, as a result of the Bill passing into law tonight, there will not be any serious fraud trial by a single judge in England and Wales?”.
Mr Blunkett replied:
“I am prepared to give that undertaking. It is part of the agreement that we will retain the clause, but move forward towards looking at the alternative solutions … I give a binding undertaking that we will follow that agreement”.—[Official Report, Commons, 20/11/03; cols. 1027-28.]
What has happened? How dare the noble and learned Lord the Attorney-General tell us that the consultation was a seminar?
My Lords, before the noble Lord continues in this way, which is a little uncharacteristic in this House and a little uncharacteristic of the noble Lord, perhaps he would reflect on what Mr Blunkett said:
“On Second Reading and again on Report, I said that I was not against looking at such measures,”—
that is a reference to the previous sentence about measures drawing on a specialist range of expertise for a jury—
“so I find no difficulty tonight in offering the opportunity to the two main Opposition parties working with the Attorney-General, the Serious Fraud Office and the senior judiciary to take a further look at how that might be taken forward”.—[Official Report, Commons, 20/11/03; col. 1027.]
Is the noble Lord aware that, despite our attempts to take that forward, no single suggestion has been put forward from the opposition parties other than that we should simply do away with Section 43?
My Lords, I was told at the time that he was not happy with the agreement that had been reached. I am angry because the noble and learned Lord has not responded to the later comments of David Blunkett when he said that the purpose of the consultation would be to look at the alternative solutions. A number of alternative solutions were put forward, but all we have heard in this debate is that the consultation that took place was one seminar.
My Lord, I mentioned one that Mr Simon Hughes put to Mr Blunkett: that instead of a conventional jury there would still be a jury but it would have an expert element. There are a whole series of possibilities. What I object to is that the only consultation has been a seminar organised by the noble and learned Lord on 30 January 2005. There has been nothing since. I know that we in this country have only an unwritten constitution, but a change of this magnitude ought to be built on stronger foundations than that.
The Government do not come with clean hands. For 10 years—
My Lords, before the noble Lord leaves the question of alternatives, does he not agree that the measures announced by the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, amounted to a very material change in the conduct of such trials? That in itself has altered the situation.
My Lords, yes, I agree with the noble Lord. My anger is compounded by the fact that the noble and learned Lord the Attorney-General sought to attack my noble friend, who is putting forward a very reasonable case with which I agree. The Government do not come with clean hands. We have been down this road several times before. The noble and learned Lord did not mention the mode of trial Bills.
My Lords, my most difficult task is to follow that. For 10 years this Labour Government have been actively undermining jury trial. Since 1997 we have had two modes of trial Bills presented. I remind the House that they were to take away the right of the accused to elect trial by jury in certain cases and pass the decision to magistrates. I recall that during the proceedings on that Bill, we were given a clear understanding by the Ministers that there would certainly be no attempt to remove jury trial for more serious cases. We saw through that attempt and defeated the Government. Following these abortive attempts to scrap juries in certain instances, we had the Criminal Justice Act 2003.
Jury trial is an historic institution that endures with widespread public support. It allows citizens to be directly involved in the criminal justice system. It is a vital part of participatory democracy and it maintains confidence in the impartiality of our system of justice. There are a number of measures—the noble Lord mentioned some, and I am sure that my noble friends will mention others—but, against that background, how dare the noble and learned Lord the Attorney-General threaten us this afternoon with the Parliament Act. Those are words that I am sure he will come to regret.
My Lords, I declare an interest. I still practise at the Bar and have appeared as defence counsel in Serious Fraud Office and other very long cases; with a bit of luck, I will continue to do so. I am also the head of a large set of mainly criminal chambers many of whose members are involved daily in Serious Fraud Office cases.
I start with a procedural point that was introduced into the debate by the noble Lord, Lord Clinton-Davis, and dealt with by the noble and learned Lord the Attorney-General concerning whether we should give the Bill a Second Reading. The point is a simple one for me: giving the Bill a Second Reading involves an implicit acceptance of the unacceptable. The only acceptable amendment to it that I can see is to oppose Clause 2 standing part; that would have the same effect as voting against the Bill at Second Reading.
I also feel entirely unintimidated by the noble and learned Lord’s threat of the Parliament Act. By the next Session we shall have a new Prime Minister, new priorities, new views and possibly even new personnel in various offices. If a week is a long time in politics, it is an extremely long time if there is a change of Prime Minister in the interim.
I do not say that the noble and learned Lord the Attorney-General is seeking to undermine the jury system. I listened carefully to what he said and I take him to be a man of his word, as I have always found him to be in the past. Nor do I think that he is proposing the thin end of a large wedge; that is not a very useful argument in this debate. He just has it horribly wrong on this occasion.
I agree entirely with the noble and learned Lord that, over the years, the Diplock courts have reached high standards of justice in Northern Ireland. I also agree with him entirely that there are certain classes of case in which, in this modern age, it is no longer possible to have a reliable trial by jury, but they are a very special class of case. They are not cases where the jury has to be there for a long time or has to make a difficult judgment; they are cases where the jury system is so undermined by, for example, intimidation of or threats to jurors or sectarian conflict that it is simply not possible for the jury to return a reliable verdict. By no stretch of the imagination do fraud cases fall into that category. This is an attempt at a pragmatic Bill; it is an attempt by the Government to persuade the House that, quite simply, fraud cases are too burdensome for juries. However, for reasons that I shall set out, I disagree wholeheartedly.
My one serious criticism of the noble and learned Lord’s introduction to this debate, measured as it was, was his inappropriate use of remarks made some years ago by the Lord Chief Justice as he now is. The Attorney-General should perhaps have recognised, as he may reflect he should have done, that significant changes have taken place in the management of fraud trials since those remarks were made. As I understand it, today the noble and learned Lord the Lord Chief Justice takes a somewhat adjusted view of what he said, as the noble and learned Lord the Attorney-General put it, several years ago.
I do not want to dwell on the legal philosophy behind the jury system—many have already spoken about that—but I hold to the view that a jury trial is a most democratic act. Taking part in a jury trial is probably the most democratic act that any citizen can undertake.
Surely the decision on honesty or dishonesty—the essential decision in a jury trial—is a classic determination for a jury. It is worth looking at the record of jury trials. How many cases have there been in which there has been a successful appeal on the basis of something done by the jury? So few as to amount statistically to zero. But there have, of course, been many appeals in which errors by judges are so serious that the conviction has been rendered unsafe, with the result that there has had to be a retrial.
I believe that the Attorney-General knows that in every, or almost every, case of fraud, if tried by judge alone, there would be an appeal in which his or her conclusions not only of law but also of fact would be attacked. There would be complex decisions on disclosure and PII. Although the system of PII has worked tolerably well in Diplock courts, there has been at least one instance in the past two years in which there have been difficulties because two judges were dealing with issues on the admissibility of evidence, with a separate judge deciding on public interest immunity.
The noble Lord, Lord Rosser, said that judges decide very important issues of liability on their own every day of the week. Of course he is right, but the cachet of criminal is rather different from the cachet of tortfeasor. We do not refer to that tortfeasor over there, but, for example, we may well not wish to see sitting in your Lordships’ House criminals who are convicted while Members of this House. It is a different quality of issue.
Jurors’ determinations of fact are based on a collective view as lay people of the conduct of the defendant. A judge’s determination of fact may in some cases—I hesitate to say this in the presence of distinguished and retired judges in this House—be somewhere between idiosyncratic and a great deal worse. The annals of the law reports are full of cases where judges have made serious mistakes; as I said earlier, jurors have made few.
The Fraud Act 2006 has already been mentioned. In so far as there is any complexity in deciding whether someone has been proved to be dishonest or not, that decision-making process has been simplified very sensibly by the introduction of an overarching offence of fraud. We can expect to see that charge frequently. From my experience and that garnered from others, I can speak of many cases in which juries have brought in differential—mixed—verdicts. They find some defendants guilty and others not guilty, and defendants guilty of some charges and not others in very long cases.
I can cite one from the Central Criminal Court where all defendants were found guilty—regrettably including my client. It was an SFO case. I can cite another SFO case at Snaresbrook Crown Court in which two were found guilty, one not guilty—happily, my client—and one not guilty on a retrial. I can cite a case at Southwark Crown Court in which there was a very obvious understanding between the judge and jury. Eventually as a result of extremely good case management, the judge took it out of the hands of the jury at half-time, accepting a submission of no case to answer. The jury had asked numerous questions during the trial, and it was quite clear that their engagement had had an effect on the judge.
In another SFO case at the Central Criminal Court, two defendants were found guilty and another not guilty. There are many other cases, not of serious fraud, where exactly the objections made by the noble and learned Lord the Attorney General could be made. For example, in the cockle pickers’ case at Preston Crown Court, which lasted for several months and in which I appeared for one defendant, three defendants were found guilty and two not guilty.
This brings me to the question of representative juries. I do not know where the noble Lord, Lord Rosser, gets his view that juries in long cases are not representative. It is illogical. Within a random selection of the population will be people who have employment difficulties, people who have booked holidays and people who have family difficulties. Thinking in particular about the cockle pickers’ case, among others, I suggest that if one examined the evidence empirically—and far more research into juries is needed—one would find that juries were just as representative in long fraud cases as in others.
The question of undue burdensomeness for juries has already been discussed; I will not repeat what has already been said about the research of Professor Sally Lloyd-Bostock. The noble and learned Lord the Attorney General has failed completely, in addressing the House, to take into account the numerous measures taken in the last two to three years to enable juries to understand fraud cases better. I have heard the Lord Chief Justice’s protocol cited day after day in court; it has had a dramatic effect on the management of cases. There is currently a long ongoing case, albeit not one of fraud, in which a High Court judge has decided that there should be one lead cross-examination of the expert witnesses to be called by the prosecution. Someone involved told me that this has shortened the case substantially.
Judge Rivlin, resident judge at Southwark Crown Court, has a system of allocating and managing cases so that they are dealt with effectively and practically within that Crown Court. Technology, as I have seen, is used in many cases; it shortens them dramatically, juries like using it and it gives everyone, counsel included, a much clearer understanding of the case. Then, of course, there is the welcome development of plea bargaining. Plea bargaining, let us face it, has been done behind the scenes throughout my 35 years of practice at the Bar. It should be formalised and made more open; it should be clear what benefits are available. Perhaps it should be more like the American system in that regard. It is another development that can be used to shorten cases and manage them more effectively.
Comparable common law countries retain juries for long cases, including those of serious fraud—as, in my view, we should here. I am afraid that the Government have not produced enough evidence for this Bill to go to the jury of Parliament. It is not a case of the jury being out; the jury should not be in at all. The evidence for juries’ ability to deal with these cases is stronger than ever.
My Lords, I am glad to follow the noble Lord, Lord Carlile of Berriew. The mixed results he has adduced concerning representation should not be viewed by anybody as a deterrent to instructing him; they will be very well represented.
I am rather torn on this issue. My own experience compels me to the view that the situation presented by the Bill is somewhat misplaced. On the other hand, I do not think that what the Opposition propose in moving this amendment is worthy of them. All in all, because of that, and because I consider this Bill capable of amendment, I shall vote for it—but with gritted teeth.
To suggest, as the noble Lord, Lord Hunt, did, that there has been no adequate consultation about this issue is quite wrong. The Roskill report, the Auld report and the debates that have taken place in the legal profession on this issue have all been of immense importance. I think that the noble Lord rather overstated the case, uncharacteristically, because I like to think that he is a friend of mine. I am sure that he is.
However, I am torn on this matter because I spent some 50 years in the profession of solicitor—indeed, the noble Lord, Lord Hunt, and I are the only two solicitors in this debate—and a great deal of time involved in fraud trials, but I cannot recall any in my own experience that lasted for more than three or four months. Nowadays it is quite common for fraud trials to last considerably beyond that period. Indeed there was the Jubilee Line case, which has been widely quoted today; that was not a fraud issue, but it lasted in all for more than two years. Certainly, any juror who was on that panel should be sympathised with.
It is no small wonder, therefore, that demands have grown for juries to be dispensed with. My own view on what ought to be a non-political issue is that the Government have not finally fully made out the case for taking this very drastic step. I am far from convinced that all or a majority of fraud cases have become so complex in more recent times that a jury is incapable of comprehending the essential issue. Of course, that hesitation that I spoke of could be overcome—but it has not today by virtue of the arguments made in this important debate. We have heard some excellent speeches, but speeches that have been devoid of argument.
The proposal that the Government advance to do away with juries in certain fraud trials divides the legal profession. Many organisations that advise on criminal proceedings, such as the Bar Council, the Law Society and Justice, have made very strong representations on this count. But although these representations have been very persuasive, do they really express a majority or minority view? We do not know. It is certainly an issue that divides the whole legal profession. Accordingly, it would be folly for the Government to ignore those significant views—and I entirely agree with the noble Lord, Lord Hunt, that there ought to be more discussion about this issue than has taken place.
There is a powerful common denominator between everyone who has participated in this debate. How do we improve the present position? How do we ensure that we arrive at an intelligent decision on admittedly complex matters? Are we satisfied that trial judges always exercise sufficient and satisfactory control of the long cases that come before them? How best can we accomplish that? We have heard little about it, except that the present situation is fine; that it ought not to be altered. The Government have said, “Of course, we should—as far as a small minority of fraud cases is concerned”. So how can we make an intelligent decision about that?
My suspicions about the Bill were intensified by the Solicitor-General’s important statement, on extending the measure to other classes of cases, that the Government,
“have no intention at this stage”—[Official Report, Commons, 29/11/06; col. 1094.]
of doing that. That is why I am so obliged to my noble and learned friend for saying today, in clear terms, that that was not the Government’s case, which was that there was no intention of going beyond what they were proposing at the present time. I am grateful to him for saying precisely that. In other words, the Government are saying that, as far as this is concerned, the anxiety that several of us have expressed is misplaced.
The Government contend that the proposed legislation is satisfactory, and that it is only because of this House that they have not been able to ensure that the necessary legislation should take effect. Well, that may be and it may not be. Certainly, serious consideration ought to be given to what the Government say regarding highly complex cases; they are duty-bound to adduce evidence that juries are incapable of coming to a sensible decision as far as that is concerned. Having said that, I depart from the Opposition in several respects.
It is idle to pretend that it is possible to oppose this Bill in principle, and therefore come to the decision that we ought to vote against it. Of how many Bills could that be said? There are many that I have heard myself in this place, put by the Opposition of all kinds—Labour and Conservative. Is it not possible to come to a decision today that we can amend this Bill in several respects—to make it rather better and make sure that a jury trial in a democratic society can take place, but that there may be an exception to that? Should we not come to a conclusion that fraud is rather special and difficult? How should it be handled?
All this is capable of amendment. No single issue has been adduced so far to show that the Bill is incapable of amendment. The noble Lord, Lord Kingsland, says that the House of Commons concluded that it would try to amend the Bill and failed. But that is quite different from this place. If the Liberal Democrats, Conservatives and some Members on this side conclude that a certain amendment should be tried, it is possible that it will be carried. That has happened many times in the past. I plead guilty myself to voting against the Government on four or five occasions, and could do so on this Bill.
In conclusion, I have several questions for my noble and learned friend. First, would the defendant be entitled to be heard at the same hearing at which the prosecution can submit that the case should proceed without a jury? I do not think that anything is said about this in the Bill. Secondly, what sort of sanction can be imposed on prosecutors who do not obey the injunction that they should present their case succinctly, as sometimes happens?
Although I have doubts about the Bill, I do think that the Opposition entirely misconstrue the situation. To play politics on so important a matter is scandalous and unforgivable. Any chance of amending the Bill will be lost, without doubt, if the Government deploy the Parliament Act; so rather than abstain, as I was inclined to do, I will vote for the Government in the hope that the Bill will be satisfactorily amended in many respects. The Opposition cannot escape from the past as easily as they pretend. Mr Michael Howard, who was then the Home Secretary, proposed exactly what the Government are doing today. Who on the opposition side objected then to what he said? Not a single person.
My Lords, I am very glad that the noble and learned Lord was one of them, but I do not think that his was a majority view at all. As I said, the Government are entirely wrong about the Bill, but there is nothing in it that cannot be cured or attacked by the Opposition—I mean all opposition parties—and some Labour Back-Benchers as well.
My Lords, as someone who was a magistrate but who has long since retired, I have law and order still listed as one of my interests. However, it is not a subject on which I normally speak in your Lordships’ House, especially as there are so many eminent lawyers here. Listening today to so many of them, I wonder why I changed my mind. The last time I spoke in a law and order debate was when I made my maiden speech in 1994 in the debate on the Queen’s Speech.
Like many members of the public, I have been concerned at the huge costs, which sometimes run into millions of pounds. The defence, lacking the resources of the prosecution, is often at a disadvantage. I am concerned about the gridlock caused when a specialist judge, a courtroom and prosecuting lawyers are tied up for many months; about cases in which members of the jury are drowned in paper or, nowadays, have to study masses of figures and documents on a computer screen, although I note the point made by the noble Lord, Lord Carlile, that sometimes this makes it easier for the jury; and about cases in which even a jury consisting entirely of chartered accountants—this is obviously an imaginary jury—might find themselves bewildered by all the facts in front of them.
However, the noble and learned Lord the Attorney-General asked how many of your Lordships would like to be tied up for nine months, a year or even longer. I found that a bit odd because he went on to say that the length of the trial was not the concern. I agree that most of us would not want that, although we sit here day after day, week after week and month after month quite happily, but we do not have to because we can sit outside if we wish.
The problem is that the public often are rightly incensed when all that effort, time and money is wasted, and the case collapses. I am not talking about too many defendants being acquitted, as is sometimes claimed. That is what juries are for; namely, to put the onus entirely on the prosecution and to give the defendant the benefit of any doubt.
The Bill is supposed to deal with complex fraud cases; can the Minister tell us why so many of them have to be complex? That bothers me. I am not talking about cases where the fraud is a result of convoluted manoeuvrings of the defendant. Often, the most blatant frauds are as a result of some relatively simple actions. Why is it so often the case that a large number of similar charges, based on similar actions and evidence, are levelled against the defendant? The noble Lord, Lord Maclennan, said that it was not necessary in the Shipman case to bring in all the other cases that had taken place. There can be dozens of such charges and, sometimes, there are many more. Why? Unlike in the United States of America where sentences are usually consecutive, the sentencing practice here is for concurrent sentences.
I apologise for repeating myself from my maiden speech—I am not 100 per cent sure that I will say exactly the same today, 13 years later. I said that I hope that our judges will limit the use of concurrent sentences because I believe where there are three convictions there ought to be three sentences. Our courts should not be a kind of discount store: commit two crimes and get one free. I notice the noble Lord, Lord Rosser, shaking his head, although I did say that I am not sure if I will still say the same today. My point is about concurrent sentences. To hear one case is one thing, but to have to listen to 40 cases to get to the same position is something else.
There is a story, which is perhaps apocryphal, about a president of the Court of Appeal who, when faced with counsel’s opening remark, “There are X number of grounds for appeal”, would reply, “Well, Mr So and So, just tell us your best point”. Without trying to create an atmosphere of prejudice in the minds of a jury by the sheer weight of allegations against a defendant, it cannot be beyond the wit of the prosecution to secure a conviction on the basis of perhaps one, two or even three sample charges. The magistrates’ courts had a system of taking into consideration similar offences that had not been tried before the court, but would allow the court to realise the sort of person it was dealing with and the things that he had done.
This avoids the prosecution taking a second bite at the cherry if it is dissatisfied with the sentence that has been imposed. It also clears the book of numerous other related offences. In the end, the consequential disgrace of the conviction will always be the same, especially to a so-called white-collar criminal. As I said, concurrent sentences result in the same amount of time in prison no matter how many charges are levelled against the same defendant. The Crown Prosecution Service and the Serious Fraud Office could be persuaded to restrain their exuberance in the interests of securing justice for the prosecution and the defendant and in the public interest. They should simply bring before the court in the words of the Court of Appeal judge “their best case only”. That would help to solve some of the problems that, according to the Government, this Bill seeks to redress. I know that the noble and learned Lord the Attorney-General is trying to do his best, but we wonder whether getting rid of the jury is the solution.
Juries, which have been so aptly described by my noble friend Lord Hunt, are a pillar of our legal system. In all conscience, to get rid of the jury to alleviate the problem of complexity is a step too far. I do not believe that we on this side or the Government should be thinking of allowing this to happen. I very much hope that the Attorney-General will think long and hard about this. I know that he has. I do not know how much consultation has taken place, but I have heard from around the House today that there has not been enough. The Attorney-General is nodding his head; we are all doing that today. I assume that he does not agree with what has been said. However, he will agree that all people today, whether they are speaking for or against the Bill, are doing so with conscience, conviction and with real belief. Therefore, it is imperative that, before we get rid of systems that have been in place for some 700 years, as my noble friend said, we take to heart and think carefully about what it would mean.
My Lords, I am not a lawyer either, but I have been called for jury service on two occasions. Because of that, I have an interest in jury trials and therefore a deep concern about the Bill. I have to make it clear that I do not have a sentimental view about juries, but I do know that most of the British public are proud to fulfil their civic duty by doing jury service, even when it is most inconvenient for them. I also know that various Governments have explored this issue before, and that the Roskill commission in the mid-1980s, as we have heard, recommended a judge and two assessors for some serious fraud trials. However, there were powerful voices on the opposite side too, in particular Lord Devlin, who said in his evidence:
“Trial by jury forms part of the political compromise we have made between arbitrary and popular government. ‘Arbitrary’ in this confrontation means the rule by those, e.g. the judges, who are not answerable to the electorate”.
He went on to say:
“Not since the glorious revolution of 1688 has a citizen been imprisoned for any substantial time, ie longer than the short sentence for summary offences, otherwise than on the verdict of a jury”.
I wish to make three points. The first is whether this Bill is the best way to remedy the problem of the length and complexity of some serious fraud trials. Surely, it is not only the jury for whom it is a burden, but all those involved, including the trial judge. Arguably, serious fraud is not as stressful on the jury as trials involving the emotions, such as rape or murder. As for complexity, the report on the aborted Jubilee Line trial, about which we have heard so much this afternoon, showed that the jury were fully up to speed on that particular case, in spite of those who hoped that it would vindicate the Government's position. I have recently heard of several serious fraud cases lasting months in which the jury has had up to half a dozen lever-arch files of documents to read, which it has willingly done. Only last week, I heard of a trial with 30,000 documents, in which the judge told me that the jury was completely on top of the issues. If there is no jury in such cases, is it not likely that they will last even longer, as there will be no incentive on the part of either side to cut to the chase, as it were? In a debate on the Roskill proposals in 1986, the late Lord Wigoder QC pointed out that there would be no pressure at all to keep the case simple or clear.
My first point is therefore that surely the more difficult job of tackling the length and complexity of cases should be undertaken before the relatively simple and blunt instrument is used to axe jury trial in serious fraud cases. As others have said already, the reforms instituted by the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, in March 2005 on the control and management of heavy fraud and other complex criminal cases have hardly been given any time to work, and certainly cannot have had time to be reviewed.
Secondly, the Criminal Justice Act 2003, which contains the substance of this Bill, was only passed after the Government offered the famous consultation on this particular part. As we have heard, that turned out to be a hurriedly arranged morning seminar; I remember it well. Considering that this is an important change in the law, I would be interested to hear what consultation the Government have had with bodies such as the Criminal Bar Association. It cannot be right that the Government seek to change the law in this area with so little consensus among law practitioners.
My third and last point is that abolishing jury trial for any serious crime is a dangerous step for the Government to take without that consensus. It looks to the man and woman in the street as though the Government do not trust them, as members of a potential jury, to get serious fraud case decisions right. My informal researches among the judges whom I have come across recently have not uncovered any appetite at all for judge-only trials—in fact, just the opposite—and I am sure it was not just to do with their personal safety, which is not something we have heard much about. Their comments have all been remarkably similar—that they believe juries do a good job. One said to me only yesterday, “Their verdicts, as representatives of society, have a validity which that arrived at by a judge sitting alone, even supported as it would be by a fully reasoned judgment, would lack in the eyes of society as a whole”. Undermining public confidence, even in subtle ways, in our criminal justice system is extremely undesirable. People trust the jury system, even though it may be more costly and time-consuming than any alternative.
When the noble and learned Lord the Attorney-General was asked in a radio interview last year whether the Bill was not the thin end of the wedge to abolish jury trial in other cases, I distinctly heard him reply that if it was a wedge, it was the thinnest of all possible wedges. But that is what a wedge has to be in order to be effective. The rationale that the Government are using in this case could be used to abolish the jury in other cases. After all, other long criminal cases are just as burdensome and complex, as we have heard.
Finally, I find the Government's method of getting their way on the Bill oppressive, and I am glad that the combined opposition are planning to act in a robust fashion at the end of the debate.
My Lords, the service of any one of us to sit on a jury, as is now required, is an act of citizenship. The jury trial most democratically embraces another aspect of citizenship—the right to be tried by your peers. The two—being a juror and being tried by a jury—therefore fulfil two basic elements of being a citizen: the duty to perform a duty and the responsibility that that entails, and the right to have rights to be tried by a jury.
I regard that as not legal, although in its context, in essence, it is a democratic feature of our democracy. If this is an appropriate act of citizenship, I remind those on my Benches that the work that was put in to achieving the working man’s suffrage was subsequently followed by the abolition of special juries and the right of every voting man and woman to sit on a jury. It was thought to be that fundamental.
Any change to this democratic issue should be tested democratically. One should always be prepared to test a principle, no matter how firmly held, by its practicality. This Bill tests the principle of jury trial by its practicality in serious fraud cases. It does so by setting out conditions. In the fifth volume of the six volumes of legislation for 2003, Section 43 of the Criminal Justice Act provides conditions, which the Bill does not rehearse again but which still apply. The condition for a trial without a jury is that the complexity of it or its length is likely to make it so burdensome to a jury that the interests of justice require a trial by a judge alone. Before a judge so decides, he must have regard in Section 43(6) to,
“any steps which might reasonably be taken”,
to make the trial less complex and shorter. Those principles still apply, and I propose to test them against the Bill.
Complexity means intelligibility of the evidence, not only by a jury but by the people who present it. Whether they are the police or the Serious Fraud Office, it is their duty to make a criminal charge and its supporting elements intelligible. I simply do not accept that because we are in the 21st century fraud and dishonesty have become so complex that they are no longer intelligible to the ordinary person.
In the very first fraud case in which I was led as a junior, the opening by the prosecuting silk was something like this, “This case is about a lot of money”. He pointed to the people in the dock and said “It belonged to their company, and it is all gone. It is gone because of their dishonesty. Over the next few days, we are going to find out what they did with it”. He then called the first witness. Am I to be told that that did not explain to the jury the three elements of any such fraud case—participation, knowledge and dishonesty—each of which is capable of being judged by any ordinary citizen, provided the material is presented intelligibly? It would be a sad moment if, as some think, the implosion of the Serious Fraud Office was accompanied by this fundamental constitutional change. Let us see the fraud prosecution system working effectively first to make things more intelligible and therefore less complex.
On length, I unashamedly invite the House to note that our friend and ally the United States took on what it thought to be our best values, one of which was the jury trial. It has never ever given up on that value and on its importance in society. If American citizens were listening to our debate, they simply would not understand it. “Why are you proposing to conduct a serious fraud case without a jury?” they would ask. “Because it takes too long”. “Why does it take too long?” “Because that is our system”. “Why is it your system?” “Because it has always been like that”. That is a weak and illogical basis for doing away with a serious principle.
The noble Lord, Lord Carlile of Berriew, was quite right to point out significant change: the as-yet-untested effect of the Fraud Act; simplicity of the offence; the growing effect of complex trial protocols; new ways of doing things; shortening matters; introducing technical evidence in an attractive way; and time-limiting us lawyers.
On the last of these, why not? I once heard a prosecutor being told by a judge in a New York trial concerning a fraud about letters of credit that, with five defendants, he had 30 minutes to close the three-week trial to the jury. He dealt with the first defendant as follows. He explained in about a minute the man’s defence, then looked at the jury and said, “If any of you guys believe that, meet me after court because I am going to sell you the Brooklyn Bridge”. He then moved on to the second defendant.
Are the Government really saying that the complexity and length of trials involving dishonesty mean that they are not capable of being judged by the ordinary folk of this country? Everybody knows dishonesty when they see it. The questions are not as complex and long as we claim they ought to be. It is a disgrace that any trial should take more than three months. That the six that we heard of took more than a year is unbelievable and unjustifiable.
I looked up what our party’s manifesto of 2005 said on this issue. It stated:
“We will overhaul the laws on fraud”—
that has been done—
“and the way that fraud trials are conducted to update them for the 21st century and make them quicker and more effective”.
I invite my noble and learned friend the Attorney-General to explain to us in his closing remarks how this Bill will make trials quicker and more effective; in other words, more intelligible and shorter. I have seen nothing in the Bill, nor heard anything said, that shows that objective being achieved in this legislative context.
Even in this modernising 21st century, we should not forget the basics. There is nothing more basic than to sit in a court room and watch one citizen being judged by other citizens. It is absolutely essential. We do away with it at our peril, and we certainly do not do away with it without compelling evidence that it is necessary.
My Lords, the noble Lord, Lord Brennan, has applied to his own speech his criteria of intelligibility, simplicity and attractive presentation.
As Solicitor-General in 1986, I supported the then Government’s decision not to accept the recommendation of the majority of the Roskill committee that serious and complex fraud trials should be tried by a special fraud tribunal, consisting of a judge and a small number of a specially qualified lay members. I preferred to retain the jury system, and I still do. Perhaps it is right that I should begin by declaring that I have form.
Like the noble Lord, Lord Carlile, I propose to leave to others the well recognised and, to my mind, compelling virtues of jury trial. I would otherwise be only repeating and no doubt spoiling what many others have said in that regard. I shall make only a single point, which is that this state of conflict which today’s debate has illustrated is no kind of background against which to introduce an important constitutional change, especially one which bears on our rights as citizens to be tried by our peers, and especially when so many innovations, sensibly and properly made by government and the judiciary in recent years, have yet to be proved and evaluated.
In 2003, as we have been reminded, this was recognised by Mr Blunkett, the then Home Secretary. He showed this by inserting a provision into his Criminal Justice Bill that the clause giving effect to his policies—now Section 43—could come into force only if it was approved by resolution of both Houses using the affirmative procedure. Today, I want to suggest that the background is even less propitious for the kind of change that Section 43 would make. That is because many innovations have been put in place whose purposes are to improve the arrangements for serious and complex fraud trials—indeed all serious and complex trials—but the full effects have not yet had time to materialise. For example, the Fraud Act 2006 has been in force only since January this year. We should insist that sufficient time is given.
Let me instance further the protocol introduced by the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, on 22 March 2005, just two years ago. We were reminded of that today so I can make the point quickly. However, incidentally, the date that that was handed down by the learned judge was the date on which the Jubilee Line case trial was terminated to general consternation. The trial judge accepted that a fair trial was not possible because there had been such delays and interruptions.
The new protocol, the noble Lord, Lord Carlisle, has said, is cited every day in the courts. In introducing it, the noble and learned Lord, Lord Woolf, said at the outset:
“Hitherto, a lack of case management has contributed to problems across the whole criminal justice system. Nowhere is this more evident than in the case of heavy fraud and other complex cases”.
Stating that it was designed primarily for jury trials, the noble and learned Lord said:
“It will ensure”—
he was referring to his protocol—
“that trials are conducted in a way that will enable juries to retain and assess the evidence which they have heard. The need for this is obvious.”
The noble and learned Lord, Lord Woolf, said that it was implicit in the protocol that trials of six months are not capable of satisfactory disposal save in exceptional circumstances, a point already made by the noble Lord, Lord Elystan-Morgan. He said that generally they ought not to be permitted to exceed three months and, to achieve that, the roles of the lead advocates for the prosecution and the defence team were clearly identified in the protocol. By reason of these and other directions on case management, enough time must now be given to see how they affect matters. We have been told that first indications are encouraging.
As I have indicated, recent innovations do not stop there. Faced with the débâcle of the Jubilee Line, the Attorney-General sensibly commissioned an independent report from the Chief Inspector of the Crown Prosecution Service Inspectorate, Mr. Stephen Wooler. When this was published in June 2006, it was accorded much acclaim. Mr. Wooler wrote:
“Although the termination of the case was the direct result of its length, that in turn was attributable to a number of factors, some of which were clearly avoidable. In addition, the case was formulated in a manner which greatly added to its length and complexity.”
Crucially, for today’s debate, he added:
“Its circumstances were in reality so unusual that it cannot be relied on to support either position in that debate”.
He was referring to the debate about the suitability of juries to try fraud cases and, in particular, the proposal to implement Section 43.
In an Oral Statement made to this House on the day of publication, 27 June 2006—reported at cols. 1096 to 1099 of the Official Report—the noble and learned Lord the Attorney-General made it clear that he did not agree with that conclusion. He was at pains to explain, as he was entitled to do, that in 2003 he had agreed with the DPP a new approach to the management of serious and complex cases so as to enable greater input by lawyers into the most critical decisions faced by the service. Moreover, he said that the director had established a new system of case management panels—in operation only since September 2005—which were already demonstrating their worth by strengthening the presentation of cases, identifying any potential weaknesses and, in some cases, shortening the predicted trial lengths.
Lastly, after referring to the protocol, the noble and learned Lord the Attorney-General said:
“These developments, combined with revised disclosure protocols and my own revised guidelines to prosecutors on disclosure, combine to make a very different system from that which was in operation during the Jubilee Line trial”.—[Official Report, 27/6/06; col. 1099.]
A very different system, a new system, a new approach, all these are admirable developments. Let us take time to evaluate them. Let us not heed tonight the ill judged threat about the Parliament Act. Let us see what fruit these developments bear before we cut down an older and much prized tree as no longer fit for purpose.
My Lords, each of the preceding 12 speakers has identified a problem with jury trials: problems of length and complexity. There is agreement in the House about that, but none of those who defended the Bill has given any indication that either of those problems will be met by this measure.
I am sorry that two speakers got up and half-apologised for being non-lawyers, because this Bill is about reducing the involvement of ordinary people who are, in the main, not lawyers in our legal process. That is one of the reasons why it is fundamentally flawed.
It says much for the personal and persuasive powers of his advocacy that my noble and learned friend the Attorney-General has managed to make this legislation, which I believe has the potential to do immense damage to a cardinal principle of our criminal justice system, sound modest and half-reasonable. I believe that it is neither of those things.
I too have to declare form in that I have been in practice at the criminal Bar for more than 30 years. I have watched juries in action, day in and day out, in cases which were on occasion complex, lengthy and burdensome to all involved and which occasionally also involved fraud.
The Bill’s first flaw is that it approaches only one tiny area of the criminal law. Fraud does not have a monopoly of complexity. A very short case, as the noble Lord, Lord Kingsland, pointed out, may involve technical or scientific issues or a sheer bulk of evidence, which are difficult to convey to a layman and, very often, to a lawyer. Fraud does not have a monopoly on length.
Cases with a large number of defendants, in particular where there are many witnesses for the prosecution and perhaps many for the defence, may involve relatively straightforward facts—in other words, who did what to whom during an affray. However, they still take a very long time to try and do impose the burdens about which we have heard on jurors.
Fraud does not have a monopoly on long trials or on causing inconvenience. All jury trials, especially long ones, cause inconvenience to jurors, even when they have been given a reliable estimate of length at the outset and when, on occasions, those estimates are inaccurate because of unforeseen delays. In those cases, the inconvenience is magnified.
There are problems with all long jury cases; yet the Bill makes no attempt to tackle the real problems to which, I believe, there are real solutions. Instead, it simply sacrifices the principal cornerstone of our criminal justice system: that serious crime is tried by ordinary men and women sitting as a jury. I believe it makes that sacrifice for no good reason.
Jury trial matters. It is one of the main reasons why our criminal justice system is still the most respected in the world. Justice is done in public. Our criminal law is not just the province of lawyers, but in every criminal trial, the law is interpreted in a practical way by 12 lay people—they are usually lay people—in a way that, through their verdicts, sets public standards of morality and honesty that reflect the changes in society. Juries are largely incorruptible and, most importantly, as others have said, they command public confidence as no individual can, however distinguished a lawyer he or she may be. What is more, juries get it right more often than any other system.
When the Labour Party came to government in 1997, I never thought that just 10 years later I would be saying to a Labour Attorney-General, “Trust the people”. Jury trial and its continuation for all serious allegations of crime is not just of historic importance and is not just of importance to woolly liberals who have been dismissed by recent Home Secretaries; but, apart from throwing away 700 years, it is, or it should be, of importance to anyone and everyone who cares that those who commit crimes are convicted and those wrongly accused are not.
What are we really talking about? What is the justification for the measure that is before the House? It does not follow the recommendations of either Lord Roskill or Lord Justice Auld in its detail. We all recognise there is a problem; it affects not only juries but also defendants, their relatives, the judges who have to sum up at the end, witnesses, police officers and even lawyers. However, the problems are not faced by the Bill. Somewhere in the Chamber is an elephant which my noble and learned friend refuses to confront: the suggestion that juries cannot understand difficult cases. It would not be possible for the noble and learned Lord to say that juries cannot understand complex fraud, so he does not do so. However, it is implicit in the wording of the notes to the Bill that I picked up from the Printed Paper Office in this House. That suggests that complexity makes a trial too burdensome for ordinary men and women.
Fraud is about dishonesty. Time and again, a jury of 12 people has shown that it can tell what is dishonest; what is more, our criminal law defines “dishonesty” by the standards of ordinary men and women. Therefore, it is ordinary men and women, not professional lawyers, accountants or experts, who should make that decision in the court room. If there is any real evidence that juries are bamboozled into making wrong decisions by complexity, I have yet to see or hear it and I hope the Government will produce it.
It is said that it is easy enough to prosecute what is sometimes called blue-collar fraud but not white-collar fraud and, therefore, sometimes people who commit more complex fraud get away with it. Surely, the solution to that cannot be to create a two-tier justice system with different modes of trial for each of them. That is a mad logic and cannot lie with equality before the law.
From my reading of the debates in another place, I had not understood that it was suggested on behalf of the Government that cases tried by a judge alone will either cost less or be any quicker. I had not understood that until I heard my noble and learned friend today suggesting that they might be quicker because a judge would be able to go away and read the evidence. Is it suggested that these new-style fraud trials are to take place away from public scrutiny? A cardinal principle of our criminal trials is that evidence is presented in open court for all to see and hear rather than a judge reading papers in his room and then emerging to give a ruling. Where is the evidence that this measure will cost either a penny less or save any time whatever?
Nor is it suggested that conviction rates, which are already higher than average according to the Serious Fraud Office statistics, will necessarily rise. To confront the problem, which we all recognise, we need something to which speaker after speaker has referred: a concerted effort that has already begun to deal with how long cases like these, whether fraud or terrorism or whatever, are presented before a jury.
I agree with what my noble friend Lord Brennan said; I do not see why any trial should last more than three months. Most trials should have no more than three people in the dock and, looking at the protocol, produced by the noble and learned Lord, Lord Woolf, two years ago, at the Fraud Act, which was produced last year, and at the proposals of the Criminal Bar Association, there are many ways in which case management could be vastly improved. Judges perhaps have been too timid about intervening.
Not that long ago, I had a case in front of a judge who was far from timid. The case was likely to last some time and involved very young witnesses. We were told that no subject could be raised by more than one counsel in cross-examination—in other words, one counsel dealt with a topic and that was the end of it—and that no one was to cross-examine for more than half an hour. We got our act together and we did it. It was not unlike this House. At Second Reading, speeches are not time-limited and we speak for longer, but if we are given a fixed time we usually stick to it. That could be done in courts up and down the land, with proper timetabling and a robust approach to case management. That would render the whole of this exercise, the whole of what my noble and learned friend has done, unnecessary.
The handling of jury trials and of jurors has improved greatly, but there is a huge amount to be done and a willingness to do it. I am very sad that instead of embracing that willingness, my noble and learned friend has chosen to do something which, in my limited experience in this Chamber, does not work well; that is, to threaten the House.
We do not need a measure that masquerades as a modest little proposal, designed to deal with only a very few cases each year, but which, in reality, sticks a knife into the main artery of our criminal justice system; that is the principle that all serious crime should be tried by a jury of ordinary men and women. We now need to tackle those two problems: how we present complex issues and how we can reduce the time for which everyone involved in a case has to be present. That can be done.
I am troubled by my noble and learned friend’s remark that there are no plans to extend this provision to other areas. I am afraid that that gives me no confidence, because we have heard those assurances before. On criminal justice issues, often government plans appear to have been made at very short notice in response to that day's newspaper headlines. In another place, Mr Quentin Davies reminded the House of what Blackstone had written in his commentaries 200 years ago. I apologise for doing the same, but those words are so apposite to today's debate that they are worthy of note. He said,
“let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern”.
That must not be allowed to happen. I regret that I shall be unable to support my noble and learned friend in the Division Lobby tonight.
My Lords, there have been many good speeches and highly pertinent points have been made, so I will try to keep mine very short. We are dealing with one of our historic rights and liberties. The noble Lord, Lord Brennan, could not have put it better when he pointed out that every citizen has both the right to be tried by jury and the duty to sit on a jury. That, as the noble Baroness, Lady Mallalieu, said, was drawn to our attention by Blackstone 200 years ago and reinforced by Lord Devlin, who has been rightly quoted.
Juries are exceptionally well fitted to try questions of honesty and dishonesty. They have shown that in complex fraud cases just as much as in any other type of case. Although the Serious Fraud Office had a tricky time during my period as a law officer, I did my best to build it up and it has done remarkably well. I hope that the Government are not going to dismantle it. About eight or nine cases were described as having collapsed during those years, and I have made it my business to look into every single one of them to find out why they went wrong. The problem was never the jury; it was always either problems with the presentation of the case by the prosecution or difficulties that the judge—and one often had great sympathy with the judge—had in seeking to analyse and sum up the case for the jury. It is now proposed that the duty of trying the key issue of honesty or dishonesty be removed from the jury and put as an extra burden on to the judge.
Although I have a practising certificate, I do not practise and am not formally declaring an interest in fraud cases; but over a long career I have had the opportunity to discuss this with many very experienced fraud judges, the great majority of whom would much prefer to analyse the case for the jury in the summing-up and leave the question of fact to the jury. One of the great strengths of the system is that the jury’s decision commands huge—I would almost say complete—public confidence. It is one of the absolute mainstays of our liberties in that respect. To ask the judge to carry out all those duties and present it in a written judgment is a formidable burden. Noble Lords have been absolutely right in saying that it will not reduce costs and it is unlikely to shorten cases, particularly if, as the noble and learned Lord the Attorney-General said, it will bring in many more charges.
There is a point in being able to bring the full ramifications, or a sufficient number of them, to present the overall dishonesty. I know that that matter has quite rightly concerned the noble and learned Lord the Lord Chief Justice, with whom I have had the privilege of discussing these matters, but I could not properly go further than to say that. The Government have rightly addressed that serious point. Taking that into account, I am quite certain that one should always focus, if possible, on the main charges only. If you can convict on the main charges there is no point in overburdening the case with a lot of charges, particularly in relation to the smaller fry. As noble Lords have pointed out, juries have shown themselves well capable of distinguishing between the real architects of the fraud and the lesser individuals. They have very often rightly acquitted the lesser individuals while convicting the main architects of the fraud.
The noble and learned Lord the Attorney-General said that the average conviction rate over the past five years was 61 per cent. In my day, I looked at that figure and at the proportion of cases in which Mr Big was convicted, which was significantly higher than the overall average conviction rate. I can tell the House with absolute confidence that juries have no hesitation in convicting fraudsters if they are satisfied that their guilt is proved.
For this reason I believe that the Government are going down the wrong course in this Bill. The criticism that it might be the thin edge of the wedge cannot be ignored. It has to be remembered that this is the fourth or fifth attack on the jury system brought forward by this Government in the past 10 years, starting with very small cases, on the basis that they were only very little—I think that that is the Victorian cartoon about a baby—and now in serious and complex fraud cases, on the basis supposedly that there are only a very small number of them and that that is where it will stop.
Anyone who has been a Minister knows what the words “The Government have no plans to do so” mean. It means that it is not part of their current proposals for the coming Session; it does not mean that it will not be part of some future proposals. I will say no more about that. The criticism of the idea that the Parliament Acts might be used is vulnerable on several grounds. First, as has rightly been said by almost all noble Lords, this is a huge, historic constitutional issue in which the Parliament Acts should never be used, except in extremis. The manifesto does not say “we propose to abolish trial by jury in any circumstance”. As the noble Lord, Lord Brennan, indicated, the words used have already been put into effect and the new protocols should be given time to work. I believe they will work. The mood for more efficient prosecution of fraud and complex cases has been growing over the past 10 to 15 years and will continue to do so. The counter act to a use of the Parliament Acts might be repealed by some future Government coming in, but I do not think we want to get into that kind of ding-dong. Let us draw back and think carefully now. Let us allow the present protocols to work.
I will finish on the burdensomeness of the duties on the jury. Although I take an entirely different view on this matter from the noble Lord, Lord Rosser, he did the House a service by pointing out that it can be very burdensome to sit on a jury. That is the defence of our liberties. Blackstone, as quoted by the noble Baroness, Lady Mallalieu, reminded us of that. We are all conscious in this House, and our children and grandchildren will look back at it further, that in defence of our liberties our parents fought the Second World War and our grandparents went through the ordeals of the First World War. How does sitting on a jury compare with that in the defence of our liberties? What do the jurors think in any event? It is not the length of time that they resent; it is when a case collapses, when they perhaps are fully on top of it and the opportunity to do justice is taken from them through no fault of their own. Let us continue with our present system.
My Lords, the noble and learned Lord, Lord Lyell, seemed to be saying that we are improving our track record at dealing with fraud and fraud trials. As I see something like £16 billion a year being extracted by fraud, which is approximately £650 per household in the UK per annum, I am increasingly angered at this situation—the low rate of prosecution, the relatively lenient sentencing of fraud and the increasing exploitation of fraud by organised crime.
Fairly recently the National Criminal Intelligence Service estimated that United Kingdom organised crime gets as much money from fraud as it does from drugs. I am therefore seriously concerned about the problem. However, I do not see anything in the Bill to suggest that my noble and learned friend the Attorney-General is engaging in a general, or even significant, attack on jury trials. To hear the rising rhetoric of some speakers in this debate, one would imagine that this is a full-frontal attack on every civil liberty that has existed for the past 700 years. I do not see it that way, nor do I believe that jury trials are a prerequisite for justice to be dispensed. Day by day across the UK, trials take place in magistrates’ courts without a jury. As the Solicitor-General, Mike O’Brien, said at Second Reading in the House of Commons:
“Every day, in criminal courts across the country, people elect in either-way cases to allow district judges—judges sitting alone—to decide guilt or innocence in trials ... Someone who gets arrested for benefit fraud and charged with a deception can be tried by a judge sitting alone, so it surely cannot be said that a senior judge sitting alone could not do justice in the case of someone arrested for a serious white collar crime”.—[Official Report, Commons, 29/11/06; col. 1097.]
I listened with interest to the noble Lord, Lord Maclennan, waxing eloquent about our freedoms and liberties, which he equated with jury trials. I do not believe that he enjoys an unfettered right to them north of the Border, but are we going to conclude from that that people north of the Border have lost all their liberties and do not enjoy any of the freedoms we have? Of course we are not. It is a preposterous notion.
Anyone can complain about all sorts of things, but nobody can properly complain about the length of the consultation process in relation to trial without juries in cases such as these. If there were to be any complaint, one could say that the consultation process, which has taken place over two decades, has, if anything, been far too lengthy. We heard about Lord Roskill’s fraud trials committee. It recommended that complex trials be held before special fraud tribunals made up of a judge and specially qualified lay people rather than before a jury. I understand that the 1998 consultation paper, Juries in Serious Fraud Trials, elicited a majority response favouring replacing juries in serious and complex fraud trials. We have heard several times that, in 2001, Lord Justice Auld reviewed criminal courts in England and Wales. He reported on the benefits of trial by a single judge and concluded in favour of a tribunal comprised of a judge and people with business and financial experience. The Government held a general consultation on the Auld report. When they published their White Paper, Justice for All, in 2001, they decided in favour of trials by judges alone. In the special circumstances of the very small number of long, complex and serious fraud cases each year, I am persuaded of the merit of trial without a jury. However, I can see merit in a judge being assisted by perhaps two assessors with business and financial experience. If my noble and learned friend the Attorney-General is really set against that, I hope we will hear his arguments in his reply so that we can examine his reasoning fairly closely.
The facts are clear. There were some 28,000 contested jury trials in 2005 and about 30,000 last year yet, during the debate in the House of Commons, Mike O’Brien, the Solicitor-General, replied with great clarity to a question from Mr Dominic Grieve about how many cases were affected by the provisions of the Bill. He said:
“our estimate is that the number will be between half a dozen—that is the more likely figure—and 15 to 20 cases”.—[Official Report, Commons, 29/11/06; col. 1090.].
I believe that justice is well served by this modest measure. Considering the size of the problem, it is perhaps too modest. My noble and learned friend quoted what Lord Justice Auld said in his report and that quotation deserves repetition. If I had to pick two of the most compelling factors in favour of reform, I would settle on the burdensome length of trials and the increasing speciality and complexity of the cases with which jurors, who are largely or wholly strangers to the subject matter, are expected to cope. They both put justice at risk.
Particularly in the light of last week’s votes in favour of an appointed House, I caution this House against the amendment moved by the Opposition. For an appointed House that claims to recognise the primacy of the House of Commons to deny the Bill a Second Reading is to play with fire. The Criminal Justice Act 2003 has been passed. Section 43 of that Act, which requires an affirmative resolution, allows serious and complex fraud cases to be tried without a jury in closely defined circumstances. If this Bill were enacted in response to demands from the Opposition, the Government could implement Section 43, as amended, without the need for further parliamentary proceedings. The Bill received a Second Reading in the Commons by a substantial majority. On Report, the Government secured substantial majorities. The Bill was read a third time. To defy the Commons by denying the Bill a Second Reading and a Committee in which amendments can be discussed is dangerous in the light of our vote on composition. I remind the House that the report of the Joint Committee on Conventions was approved by both Houses. I shall quote three short sentences from its conclusions:
“We do not recommend any attempt to define a manifesto Bill … We recommend that in future the Convention be described as the Government Bill Convention”—
and, very significantly—
“In addition the evidence points to the emergence in recent years of a practice that the House of Lords will usually give a Second Reading to any government Bill, whether based on the manifesto or not”.
This House and the other place approved that report on conventions as the basis of a common understanding about how we go forward in relation to reform of your Lordships’ House. If we were serious in the vote last week, we take the step of voting against a Second Reading at our peril.
My Lords, as sensibly prompted by the noble Baroness, Lady Mallalieu, I shall not start by saying that I am not a lawyer. However, I have had great experience of using the jury system in fraud cases, and it might be helpful to have some practical experience of what that has meant. Over the past 25 years, I have been the chairman of 11 public companies.
At the time that they came into my hands, those 11 companies had been recording aggregate shareholder fund losses of just on £2 billion, despite the aggregate value of the frauds against them probably coming out at only half a billion pounds. The emphasis of this is that frauds of this nature are frauds against a whole community. The community affected is not only the people who work in the companies and the shareholders and pension funds around them, but also the traders who are creditors awaiting payment and who will never get it and probably go bust. Therefore, it is right that a jury should effectively speak for a community, with the voice of a community, which is what it does. To take the trial into another city, into the hands of a single, detached judge does not give the community the opportunity to assess and, as appropriate, judge what has taken place.
Of the 11 public companies that I have had in my hands, we took fraud proceedings against the chairmen of four—chairmen who had immediately preceded me. Every one of them was judged guilty by a jury and received a significant custodial sentence. There would have been a fifth charge but the individual concerned died before the charges could be brought. He thereby had presumably opted for trial by a single judge in a higher court. I am sure that he got justice there as he would have done in the jury system here.
I am a very satisfied customer of the jury system. On arriving in your Lordships’ House eight months ago I was delighted to find an old friend of mine in the noble Lord, Lord Dear, who was the Chief Constable of West Midlands when I was heavily engaged in that territory. Without doubt, the noble Lord, Lord Dear, ran the best fraud investigation unit that I have ever seen. There are lessons in how he was doing it to which the Home Office should listen, and either prompt him to run a training course for all the other constabularies around the country or get him to write the definitive textbook on the subject. He was absolutely outstanding.
It is worth considering what he did that made life so much easier for the juries. His CID team would never take a case on for investigation unless you could prove to the team, as though you were the investigating officers, that there was a fraud. Effectively, you had to go through a mock trial and prove it. Once the team had got into the deal and had taken it on board, it was the only constabulary I ever knew that produced a data room on every bit of evidence that came up. It was the pioneer in doing that electronically. The data could be available to the counsel when the case was being prepared for court. That was a missive simplification of the process. That meant that it could also bring in the legal team that would run the prosecution a great deal earlier than would normally be the case. In this way, we managed to get through some extraordinarily complex cases.
I remember we had one where the chairman of the company concerned had devised 52 different methods of removing money from a company in one year. This was very complicated. We managed to get completely separate data to show all the various methods. When the case went to court, the prosecution started not at the biggest end—the £600,000 single take—but on a single £700 item. The evidence was incontrovertible. The chairman had written to a lady saying, “You give me an invoice for £700, I’ll send you a cheque for £700, you give me £500 back and you can keep the other £200”. On that straightforward matter the jury started off knowing the exact nature of what it was dealing with. Thereon, the prosecuting counsel was able to build up all 52 cases, right up to the £1.2 million which had gone missing. At that time, the West Midlands approach was very advanced. I do not know how many others do it today.
I would like to illustrate the nature of the juries that we dealt with in those days. One of the cases turned out to be the longest continuous trial in British criminal history. By continuous trial, I mean it sat every working day for 16 months. It was in Wolverhampton Crown Court, ending in April 1993 with a conviction. The judge in that case complained about the deliberate attempts of the defending counsel to confuse the court and the defending counsel was subsequently suspended from practising. The jury still managed to get through the case every day and follow it.
Each of those cases had a majority of ladies on the jury. I am a great supporter of housewives as jurors. They are absolutely wonderful. We overlook certain factors about them. I hope that the Government are not implying a lack of confidence in the British housewife as a juror because I think that she is excellent. It would be a gratuitous insult to that fine body of women if the Government meant that. Many of them are highly qualified in their own right; they have frequently worked as analysts or secretaries with the boards of companies which have had troubles. They know where bodies get buried in boardrooms and are expert in knowing where to look and what questions to ask.
I have doubts about jurors who have not had the experience of working in industry. If they are 20 or 21 years old and have never worked, have come straight from university or whatever, there is a problem. They lack the experience and understanding of what goes on and how business is run. I would exclude them if there could be positive discrimination against them.
The point was made earlier about the difficulty in getting senior businessmen to be available for big trials. I do not think we want them. In the main, they come from the same community as the people who are being tried and have moved in the same circles, but they are not necessarily the right people to act for that community. Therefore they are not desirable jurors. Give me a jury of 12 housewives and I would be delighted.
I am familiar with the arguments against the jury, but it is the guarantee of trial by a community of a crime against a community. There is no reason whatever to disrupt that well tried process. There are certain things which could and should be done for the future to make jury trial more effective. We should follow the wonderful example of Southwark Crown Court, which has got the most definitive fraud-compatible courtroom anywhere in the country. It has a most accessible database which can be distributed to every member of the jury simultaneously. That is a wonderful facility and we need more of them up and down the country, please. Some consideration should be given to positive discrimination to exclude youths who have not worked, and we should not worry about an imbalance of too many women on a jury because it would work well. In particular, the jury system in this country should not lead us to worry about the time it takes to get a case heard. We have had talk about three months as a maximum. I have never had such a case running for less than six months, and we have never failed in getting everybody’s clear understanding.
The most impressive act I ever saw was the only jury acquittal I ever had. That is the last issue I will deal with. I suspect that this acquittal would not have happened if a judge had been sitting in isolation. In the extremely complex case, we had a very dominant, bully-boy chairman. He had a finance director working for him who thought that the chairman was God Almighty, and he would do anything for him. The finance director was a sad case; his wife had left him, his mother was dying and he was her only support. He had nothing in his life other than the joy of going to work each day and doing whatever his beloved chairman told him to do. What he told him to do was steal £1 million for him. I did not want that finance director put into court. The noble Lord, Lord Dear, and his colleagues, on the only occasion that we ever had serious disagreement, put him up on a charge. I thought that this was going to be terrible; they are going to send him down, he is going to die and it is wrong. He had not taken any money, he had no inflated salary and it would not have been just. The jury convicted the chairman and acquitted the finance director. Had that gone before a judge in isolation, I suspect that they would have had to convict the finance director as well. He might only have got a suspended sentence, but there would not have been the humanity and the insight that the jury was prepared to bring. It was a remarkable case.
If this Bill goes through, I will never be able to look at the image of Magna Carta hanging on our walls again. This will cut the heart out of it and will be the start of the destruction of our liberties in this country. We talk of not having a written constitution but we do; it is hanging on the wall outside.
My Lords, the principal charge against the Bill is that it attacks the foundation stone of British justice: the jury trial. I must confess that I am somewhat mystified by some of the arguments that run along those lines. Like my noble friend Lord Rosser, I note that the British legal system considers very many crimes to be best tried without a jury. It was not so long ago that a drink-driving charge could be tried by jury until it was decided, under a Conservative Government, that that was impractical. Let us take the case of a man getting drunk, taking a car without consent and assaulting the police officer who apprehends him. Parliament has now agreed that the serious offences involved—taking a vehicle without the owner’s consent, assaulting a police officer and drink-driving—are ones that only magistrates can try. I do not hear calls to return such cases to jury trials, so I assume that we believe that justice is being served.
We often hear that the Crown Court is generally reserved for more serious cases, and we reserve jury trial for those cases. I am sure that many here would rather be defrauded than assaulted, so I am not sure on what basis we decide that fraud is more serious than theft and assault. Rather than being serious, fraud is a more complex and difficult charge to pursue and prosecute, and it cannot be dealt with in the same way as common assault. Fraud requires forensic treatment and expensive lawyers, and both are best found in the Crown Courts.
Parliament has long had the power to change the categories of offences which are subject to jury trial, and, as life and society change, it makes changes when they are needed to improve the likelihood of justice being achieved. I believe that that deals with the “slippery slope” argument. Can my noble and learned friend say whether I am right in asserting that a whole raft of offences which were previously subject to trial by jury are no longer so?
I take pride in speaking not as a lawyer but as near as possible as a member of the public. I sense that the public are not convinced that in serious fraud cases the guilty are always convicted and the innocent freed. Rather like my noble friend Lady Mallalieu, I believe that in general the public have confidence in juries but not always. For example, if comedians are prosecuted for tax frauds, I believe they stand a better chance of getting off in Liverpool than they do in Birmingham. I can give many other examples where, from time to time, juries have reached perverse decisions and judgments. In fraud cases, I observe as a member of the public that the minnows seem to get caught, but I perceive that an abnormally high number of serious fraud cases fail, and I believe that there is public concern about that.
The noble Lord, Lord Kingsland, asserts that his party is not soft on fraud trials. However, a problem in dealing with fraud trials was identified as long as 22 years ago, when his party was in power and turned its attention to the matter. I think that most speakers today have accepted that there is still an unresolved problem and I have heard a range of options advanced as solutions. Many involve saying, “Let’s just wait a little bit longer until we see how that works as time passes”, or, “Let’s wait a bit longer for another piece of legislation to work its way through”. If we were to move on not 22 years but 24, 26 or even 28, I suspect that most people in this House would be prepared to let the issue run along those lines. However, I do not believe that, if the public were tested, they would be willing to go along with that. They sense that something is wrong and that it needs to be put right. Given the way in which the Government have presented their case and have been turned back on several occasions, I do not think that our Front Bench is being soft on serious fraud cases; it has put forward a pretty compelling argument for change in respect of juries and I believe that the public will support it.
It seems to me that the major issue is not the length of the trial or, indeed, the ability of some juries to cope with the issues put before them; it is that the full criminality of fraud is not exposed because of the complexity of cases these days and the inability to present the facts to juries clearly and concisely. That was a strong point advanced by my noble and learned friend the Attorney-General, but—I was listening carefully—I did not hear the noble Lord, Lord Kingsland, respond to it convincingly. Perhaps I am being unfair but I should be grateful if the noble Lord would return to that point.
My Lords, is the noble Lord referring to the full detail of the case against the accused? Is that the point to which he is saying I did not respond?
My Lords, I was referring to the range of charges which the prosecution believes it could run but, because it has to present the case orally and go into complex areas which move the focus away from what it sees as the principal arguments, the totality of the case is not advanced.
My Lords, I recall that I did deal with that. My point is simply this: if the Government accept, as they have done, that a jury is perfectly capable of dealing with all the complexities, there is no reason why a fraud case cannot be put to a jury.
My Lords, as I grasped the point advanced by my noble and learned friend the Attorney-General, my understanding is that all the points are not presented to a jury because of the difficulty of getting them across.
I shall move on as this has been a long debate. I will not go over all the points that I had intended to make, as many of them were covered by my noble friend Lord Tomlinson and I do not intend to repeat them, but I shall conclude with his final point about the role of the House in dealing with issues of this nature.
My noble friend referred to the debate last week and mentioned the possible consequences of the Opposition, supported by the Liberal Democrats, moving their amendment and the way that that would be perceived by the Commons. He warned that in due course it could have an adverse effect for this House. I come from an entirely different angle. My noble friend is in favour of a fully appointed House; I am in favour of an elected one. Last week, I argued that this House already has substantial powers—powers of such enormity that, in my opinion, from time to time they should be subject to the consent of the people through elections. I believe that the debate today completely bears out that argument. A totally unelected, appointed House is flying in the face of what the elected Members in the other place perceive to be the correct way forward. We should think long and hard before we decide to wreck, in the way that is being proposed, legislation that has gone through the other place.
My Lords, I happened by coincidence to be reading a summing-up on Sunday, and I shall quote what the judge said to the jury. I think it is helpful to see how democratic principles are applied to a jury, to follow what the noble Lord, Lord Brooke, was saying. The judge said:
“You stand in between the state and the accused person. Trial by one’s peers has a long history in our jurisprudence as being the most tried and tested method of determining guilt or innocence of one's fellow citizens. It is an important right. Each of you will have come to the court bringing with you all of your lifelong experiences, coming from a cross-section of society, as to how people behave in our society, as to what is acceptable and unacceptable, and, most importantly, each of you brings with you, your innate common sense”.
That was the summing-up of the honourable Justice Brook in a capital case of murder in the Port of Spain Assizes in Trinidad last year. It illustrates better than I can think the way in which we should be proud of how we have exported all over the world the concept of a democratic jury to determine guilt or innocence in serious criminal cases. Nothing could have been more burdensome for the jury than that case, which ended with the judge saying to the defendant in sentencing him:
“May the Lord have mercy on your soul”.
The noble Lord, Lord Brennan, referred to the United States of America carrying that same proud tradition. The trial of one of our number, the noble Lord, Lord Black of Crossharbour, is about to start in Chicago. It is said that there are 2 million documents. It is a trial with a jury and it is estimated that it will take four months. That gives you some idea of how, with a proper approach, a trial can be confined.
In the Enron trial in Texas, a jury listened to 56 witnesses over 15 weeks and studied 20 boxes of documents. It found the two former chief executives guilty of fraud and conspiracy. After the guilty verdict the jury gave a press conference; that is a good example of transparency, which we do not have in this country. It is interesting to see how representative the jury was. To hear the arguments advanced, sometimes you would think that the jury comes from the most unemployed people in our society. In this case, a payroll manager, Carolyn Kuchera, said:
“We were responsible. We were always accountable. We had to find a way to circle back and tie up loose ends. And I think those [Enron] employees were entitled to the same thing”.
A business owner, Wendy Vaughan, said they were given,
“a puzzle with about 25,000 pieces dumped on the table”.
The jury forewoman, Deborah Smith, who works in human resources at an oil services company, said that the jurors came with a variety of life experiences but a mutually high level of endurance. The issue at the end was simple: dishonesty or not. She said:
“It’s hard to believe that the defendant, such a hands-on individual, could not possibly know the things that were going on in the company”.
She said of the jury itself:
“I think the balance we had on this jury was very effective. We got to know each other, respect each other and listen to each other”.
There you have the democratic process of the jury, which we have exported to the world, working.
The collapse of the Jubilee Line trial here led the head of the SFO, Mr Robert Wardle, who, your Lordships will recall, was the decision maker who bravely risked the wrath of the Prime Minister and the Attorney-General in pulling the British Aerospace bribery investigation, to express his belief that traditional methods no longer work in long fraud cases. It may be that that is where this is all coming from. He called for early plea bargains and the removal of juries. The head of the Serious Fraud Office said that. Well he would, wouldn't he? However, the report—referred to by many of your Lordships—from the Chief Inspector of the CPS Inspectorate, Mr Stephen Wooler, who investigated the collapsed trial, stated:
“The jury did not appear to have any difficulty understanding the evidence or the essentials of the case”.
That throws through the window the view expressed in Lord Roskill’s report, which was not accepted by the Government of the day, that the jury suffered from “cognitive unfitness”—in other words, they did not know what they were talking about.
The argument has shifted. In the other place, the Solicitor-General, Mike O’Brien, said in relation to the Bill:
“I am not advancing what the hon. and learned Gentleman describes as the stupid jury argument—not at all. I want to make it very clear that it is not our claim that juries are incapable of understanding complex fraud cases”.—[Official Report, Commons, 29/11/06; col. 1098.]
That is an answer to some noble Lords on the Benches opposite.
What is “burdensome”, to use the word from the Act? What is burdensome to the jury? It is now said that the length of such trials represents,
“an unreasonable intrusion on jurors' personal lives”.
The complexities of the case will place a burden on ordinary members of the public. Your Lordships will recall that the Jubilee Line case lasted some two years. In the Wooler report, the jurors said that they were “pleased” to serve for nearly two years and that they took their task seriously and were committed to jury service. As the noble and learned Lord, Lord Mayhew, said, they were incensed that the case had been stopped before they could come to their conclusions.
The argument, as many of your Lordships have said, of unreasonable intrusion on jurors' personal lives applies, of course, to any long trial, such as in cases of terrorism, where there will be much evidence of surveillance; trafficking in people or drugs; corruption; murder/manslaughter; or any conspiracy. There is nothing special about fraud, as the noble Baroness, Lady Mallalieu, said, which makes it overlong. If the Bill goes through it will not be long before there will be pressure to try any case that is likely to last more than six weeks or three months by judge alone. Mention has already been made by the noble Lord, Lord Clinton-Davis, of the fatal words:
“The Government have no plans to extend the Bill at this stage”.
I remind the noble Lord, Lord Brooke, that no argument has been advanced that convictions will be more likely as a result of a transfer to a judge-alone trial. That is not the argument. That would be surprising because where there is a trial, 81 or 82 per cent of defendants are convicted, which is higher than in almost any other category of crime.
The Solicitor-General pointed out the advantages of trial by judge alone, as he saw it, in the Bill's passage through the Commons. He said:
“A judge can curtail lengthy speeches by … windbag lawyers”
“ensure that the trial proceeds much more expeditiously”.—[Official Report, Commons, 29/11/06; col. 1101.]
That was his first point. I am sure that the noble Baroness, Lady Miller, will allow me to remind her that I fancy that the Court of Appeal would have said, “Just tell us your best point, Mr O’Brien”. Juries are not persuaded by wind; they are much more persuaded by the leader spoken of by the noble Lord, Lord Brennan—the one who is succinct and to the point. The “windbag lawyers” is just abuse with no foundation in fact—not even in Birmingham. I see the noble and learned Lord, Lord Archer, here, so especially not in Birmingham, where Mr O’Brien practises as a criminal solicitor—or did so.
The second point is that there will be much less need for cases to be severed or for sample charges. Justice can be done by exposing the whole criminality of the case in a single trial. We have heard that argument advanced by the noble and learned Lord the Attorney-General today as well. That is the great error of assuming that by lumping together all the charges that you can think of, putting in all the evidence, adding as many defendants as you can, there will be a greater degree of justice. Nothing could be further from the truth, as any practitioner will tell you. The whole point is to simplify, pare down, make clear exactly why, if you are prosecuting, you want a person convicted. It is only right that when someone goes to prison as a result of having been convicted of a crime, the argument has been advanced in such a simple and clear way that the public understand it. We do not want a system where so much is thrown in front of a judge that no one can understand why X has gone to prison for three years. There must be clarity.
Indeed, in the Domestic Violence, Crime and Victims Act 2004, the Government introduced the trial of sample counts by a jury. As far as I know, that has not been implemented. If there is no simplification, no cutting down on documents and no paring of the issues, prosecution cases will be less well prepared and less concise, and trials will be longer. The only ones to gain, as usual, will be the lawyers with high fees.
Mr O’Brien’s third point was that a reasoned judgment will demonstrate that all procedures have been followed. The American solution is to allow the jury to hold a press conference, as I have already pointed out. I have some experience of these reasoned judgments from the district court in Hong Kong, where a judge sits on his own in fraud cases. I echo the noble Lord, Lord Carlile. Do not think that a reasoned judgment will result in greater acceptance of a verdict of guilty by the defendant or will lead to fewer appeals. As the noble Lord, Lord Carlile, said, every case is likely to be appealed. The virtue of the jury verdict is that it is conclusive. There is no partial blame; you are either guilty or not guilty. Every verdict, wherever it is given, in any court in the country, carries the same weight. It is conclusive. You do not have to look at the small print to see why that verdict was arrived at.
What the Government propose is, in effect, a special court for white-collar crime, where the criminality of the defendant is tested not by a cross section of the public, but by a single white-collar judge. I think the noble Lord, Lord James, would be opposed to that. This is supported by lawyers in the Government, including the noble and learned Lord the Attorney General, whose lips would have curled, in practice, at the thought of appearing in a criminal court before a jury. They are happy to have commercial cases tried by a single judge and would probably have thrown a criminal brief out of the window, as shown by one of the favourite anecdotes of the noble Lord, Lord Hooson, from his brief sojourn in Sir Patrick Hastings’s chambers.
The noble Baroness, Lady Kennedy, is not in her place. I understand that she is in America to receive an honour for her work in human rights. I remember her comment to me when we were talking about our responsibility, as criminal lawyers, for people’s lives, rather than cash. She said that it did not pay very well, but at least it was fun. The noble Baroness, Lady Kennedy, warned the House, when opposing Section 43 during the Committee stage of the Criminal Justice Bill, of undermining public confidence in the judicial system. She said:
“In some high-profile cases, there may be a public perception that the judge is a man brought in to do a job for the state”.—[Official Report, 15/7/03; col. 780.]
I have no hesitation in quoting her further. To my chagrin, I cannot better what she said:
“Juries keep the law honest and comprehensible because working with juries—as those of us who work with juries know—puts an obligation on all of us to explain the law and the rules and to apply the standards of the public to what is right and wrong. The jury stops the law becoming opaque. It stops the law becoming closed and sometimes even dishonest”.—[Official Report, 15/7/03; col. 779.]
I entirely agree with the words of the noble Baroness, Lady Kennedy.
This Bill should go no further. Mr Robert Wardle may think that it will make his task easier; he is wrong. We are threatened with the Parliament Act, but surely this is not as important to the Government as hunting, is it? I see no advantage in cost savings, the simplification of issues, greater transparency or—above all—fulfilling the aim of the criminal justice system, which is to protect the innocent and punish the guilty. This Bill should be thrown out.
My Lords, the noble Lord, Lord Kingsland, thanked me in his first remarks for having opened the debate on the Bill in what he described as a “measured and dispassionate way.” I opened this debate in a measured and dispassionate way because dispassionate and objective arguments, not emotion, drive this Bill. I am sorry that, at times in this debate, the same was not true of the opposing arguments. I absolve, if I may, the noble Lord, Lord Hunt. Like the noble Lord, Lord Clinton-Davis, I would like to regard him as a friend. I understand his strong feelings in light of what happened in 2003, but I disagree with him entirely. It is now three and a half years since the Criminal Justice Act 2003 came to its conclusion. I do not agree that there is anything at all wrong in now inviting Parliament to implement one of the provisions then passed.
I am sorry, though not at all surprised, that this debate has turned into the suggestion that the Government are trying to remove trial by jury. This is not a generalised attack on trial by jury. Nor do cheap jibes about the rule of law help. I want, therefore, to look at the arguments and the responses to those arguments. I remind noble Lords, as we come to vote and consider whether this is a Bill against the rule of law, that the particular proposal I have been promoting has been proposed and supported by senior judges, though not all of them. I have been very anxious not to bring judges into a political debate. I have therefore quoted public reports and a public lecture.
The noble Baroness, Lady Miller, put her finger on two aspects of why this matters. I want to make the point that people participating in debates in this House should never say that they are sorry that they are not lawyers. I hope never to hear such an apology again. Many of us should, perhaps, make the opposite apology.
My Lords, my admiration for the judgment of the noble Baroness remains at a high level. If she will permit me, I draw attention to it because this is a matter not for lawyers but for the public. That is why the second point made by the noble Baroness is so pertinent. She said—and I believe her to be absolutely right—that the public in this country are utterly disconcerted when they see serious crime not being dealt with and serious cases collapsing. The noble Baroness, Lady Mallalieu, may be right to say that in many parts of the world our justice system is admired. I wish that was true in all the cities in this country; it certainly is not. This is something we must look at very hard.
What arguments have been advanced the other way? The principal argument is that this is a generalised attack on the jury system. It is not. It is limited to a small category of cases. It is not the first time that Parliament has agreed that there are exceptional cases where jury trial should not be applied. This House agreed this in 2003 in relation to Section 44 of the Criminal Justice Act 2003, with regard to jury intimidation. It accepted it in the Domestic Violence, Crime and Victims Act 2004, which, contrary to the knowledge of the noble Lord, Lord Thomas of Gresford, is in force. In 1988—forgive me for mentioning it—the Government of the party opposite declassified or reclassified a number of offences so that they ceased to be offences capable of being tried by jury and became summary offences. Several noble Lords who have spoken were Ministers in that Government. From time to time it is appropriate to look at the merits of the argument and see whether that is right. As I said when I opened this debate, I fully recognise the huge advantages of jury trial, many of which have been referred to, but there are some exceptional cases in which the disadvantages outweigh those advantages.
What was the second argument put forward? There was the perhaps slightly curious argument that if it was justified to have a non-jury trial for serious, complex and long fraud cases, what about other complex and long cases? I do not think that those who made that point were inviting me to amend the Bill to extend it. That is the one thing that I do not want to do. But there is a difference, which has been referred to in this House before—the noble Lord, Lord Marsh, drew attention to it in an earlier debate, and I am sorry that he is not in his place. There are serious and long trials in which the subject matter is well within the understanding and experience of those who hear it; but when you get into areas of great complexity about financial instruments, capital markets, split capital trusts and so forth, it becomes much more difficult for any of us to be able to judge those against the experiences that we have. If it is a case in which the question is—and this was a point raised by the noble Lord, Lord Brennan, who is I think not in his place—
Yes he is.
My Lords, I apologise to the noble Lord. He is in the place normally occupied by the noble Lord, Lord Stoddart, which has become known as “this corner” in this House. I apologise for not having spotted him.
If you can point to the people in the dock and say, “The money was once over there, but now it is in their pockets”, I do not think that juries have much difficulty in seeing the dishonesty. Other cases are much more complex and difficult and problems and difficulties arise. I cannot remember which noble Lord asked this question, but we are certainly not saying that all cases that involve fraud fit within these procedures; absolutely not.
That takes me to a point that singularly, with respect, was not referred to by those noble Lords who responded to this Bill—that is, the terms of the Criminal Justice Act that require a decision on whether the interests of justice require that a case should be tried by a judge alone.
The third point that was raised was that there are other measures that ought to deal with the problems that we have identified. I make it clear and have made it clear that I welcome those other measures and welcome the support expressed today for some additional measures, such as plea bargaining. I am not sure about press conferences by juries, but no doubt we shall hear the noble Lord, Lord Thomas, further on that at a later stage. Some of those measures are very valuable, but the question is whether they would solve all the problem cases. I have two responses. First, I do not believe from the empirical evidence that they will. Secondly, to the extent that we have improvements in trial process, those are all matters that can be taken into account by the judge and the Lord Chief Justice who makes the decision whether the mode of trial should be by judge alone or by judge and jury. So there is a built-in mechanism in the Bill to enable those measures to have effect—and, if they do, no doubt a judge will say in the light of looking at a particular case that the interests of justice do not require that it should be dealt with by a judge alone, because it is possible to deal with it in this or that way.
That takes me on to an important point. Case management largely works one way. A judge can tell the prosecution, “You’re not bringing that evidence, that charge or those defendants”. A judge cannot say to a defendant, “You’re not running this or that defence”. So the way in which you cut cases down—and this is the fundamental point about bringing the full criminality—is by requiring a prosecution to cut down its case. I do not deny that; indeed, I encourage the prosecutors to look hard at cases to cut them down when appropriate. I go back to the passage that I quoted in opening from the noble and learned Lord, Lord Phillips of Worth Matravers, the Lord Chief Justice—and I do not understand him to take a different view about this matter, despite the remarks of the noble Lord, Lord Carlile of Berriew—that justice is flawed if the nature of the tribunal’s process means that cogent evidence cannot be put before it. There are examples where cases have not proceeded as a result of that. In the Maxwell trial, the trial judge said:
“The prosecution and most of the defence are agreed that, were it practicable, all the counts should be the subject matter of a single trial. All are agreed that the length and complexity of such a trial would far outstrip the capacity of any jury”.
It was not dealt with in a single trial and, after the first trial came to an end, the second trial was stayed on the grounds that it would be an abuse of process to continue.
I do not say that juries cannot understand. What I said very clearly in opening was that for juries to understand you have to cut the case down, and it is in cutting the case down that in some cases means that the case is not presented as it ought to be.
My Lords, does the noble and learned Lord the Attorney-General accept that if there is to be a regime whereby a greater multiplicity of defendants and counts in the indictment are to be considered, that could not be done administratively but would almost certainly need an amendment of the Indictments Act 1915 and the indictment rules?
My Lords, I bow to the noble Lord’s experience but I do not agree with him. I do not see why that should be so. If a judge is trying the case alone and believes that he can manage with more defendants than might have been before a jury, so long as he is satisfied that there is not some prejudice that is taking place that is inappropriate, I do not see why he should not make that decision. But it will be for the judge to decide; that is, fundamentally, the point.
I need to say just a word about the Jubilee Line case, which I have not put forward as a reason for this Bill. Mr Stephen Wooler, who wrote the report, made it clear that he did not think one could draw conclusions either way from that case, because it was so special. What I have said, from which I am afraid I do not resile, is that the facts of that case, how long it went on and the extent to which juries were expected to sit for days without evidence being given—sometimes because of problems that the jurors had, as well as others—demonstrate what the burden of those cases can be on jurors.
I shall conclude by what the Opposition have put forward. However, I shall make one point before I do. I am sorry to have to do this, but I take exception to the habit to which the noble Lord, Lord Thomas, seems to be getting into of making personal attacks on people, particularly on people who are not here—and on Mr Robert Wardle in particular. Never mind the Solicitor-General—politicians should be prepared to put up with that sort of thing—but I am sorry to have to say that I thought that that was uncalled for.
I would not have taken the exceptional step of telling your Lordships of the intention to bring this back under the Parliament Act if this were voted down today but for the extraordinary step that is proposed—to vote this down on Second Reading. I did this so that it is absolutely clear that the opportunity to amend or improve this Bill, which I had thought the parties opposite had been asking for each time that they stopped us proceeding—saying, “Let’s go through this on a Bill”—will be denied to the whole House.
I can tell the noble Lord behind me that I am not opposed to assessors as a matter of principle; if that is what the House wants, we can look at it. The problem is that if the amendment of the noble Lord, Lord Kingsland, is passed then we will not even be able to consider it, but if the Bill comes back then it will come back as it stands.
My Lords, that is not my understanding of the Government’s position at all. Before this Bill was introduced, we had the right under Section 43 of the Criminal Justice Act 2003 to receive in the form of a draft affirmative order and to vote on it. The noble and learned Lord knew full well, two or three months before the tabling of the order was envisaged, that the House was likely to vote against it. He therefore changed tack and decided to introduce primary legislation, knowing that one consequence of doing so—if the House did not agree with the contents of that legislation—would be Parliament Act procedures. His decision to do that had nothing whatever to do with any expressed desire by the Opposition of preferring primary legislation because, unlike an order, they could amend it.
I am sorry, my Lords, but I had not wanted to get into the history of all of this. I had thought and hoped that we were here to look at the substance of the proposals. The fact is that a Motion was tabled, but not two or three months before the resolution came to the House. After it had been passed in another place, it became apparent that the resolution would not be accepted in this House—I entirely agree and was perfectly open about that—and a resolution was tabled, or was about to be, I believe by the noble Lord, making it clear that the Opposition wanted to debate this through the course of primary legislation. Indeed, they put down amendments to the Fraud Bill.
I had thought, from the fuss that there was about how much consultation there had been and the demands for Motions that the parties opposite wanted to discuss the possibility of changes. Yet that is not possible if this Bill is voted down today. I am sorry, but I find the explanation for taking that view and going against the conventions of this House extraordinary.
The noble Lord, Lord Kingsland, also said at one stage that there was no point in having amendments because the Government had made it clear in the Commons that it did not like the amendments that were tabled then. First, that is not right because amendments were accepted following suggestions put forward by the Government. Secondly, if that is a new Opposition policy—that if we are grumpy enough in the other place, amendments will not be tabled in this place—I suspect that my noble friend the Chief Whip will be absolutely delighted.
My Lords, the noble Lord, Lord Clinton-Davis, raised a similar matter to that raised by the noble and learned Lord the Attorney-General. There is a simple logic behind tabling the amendment at Second Reading, as we have done today. If we went on to Committee, we would table “do not stand part” amendments to every single clause in the Bill. What is the point of doing that? Indeed, I wonder whether it would be procedurally acceptable if we sought to do it. The decision to amend the Second Reading flows ineluctably from the position that we would have taken in Committee.
My Lords, the logic of my noble friend’s position is for everyone to judge. This Bill is not an attack on the jury system and repeating the contrary proposition, however often, does not make it true. It is ultimately about justice and about ensuring that those who are responsible for fraud on the grander scale can be called to account as effectually as those charged with more everyday offences.
We want the sharks to be caught and not just the minnows, to take the analogy that was used behind me. Many distinguished people and senior judicial figures over the years have proposed non-jury trial as a solution to this particular problem—and Parliament enacted it in 2003. Lord Justice Auld’s dictum—that our present position puts justice at risk—has been referred to several times. That is the basis on which this Bill is put forward, and I commend this Bill to the House.
My Lords, I shall be relatively telegraphic. First, in my submission the Government have not made out a case for the measure. From what the Government wish to do in procedures for fraud trials run by a single judge, we know that they will not be any shorter; indeed, it is highly likely that they will be longer. I do not think that that will give the public any more confidence in non-jury trial than they have in some of the existing trials. So, they will not be shorter.
Secondly, in the mind of the Government there is clearly no problem about complexity. The Solicitor-General, in another place, said in terms that the problem was not complexity but the length of time that the trial took and the burden which that placed on the jury. That may well be true; but that problem applies to all long and complicated trials, not just fraud trials, which is why some of your Lordships raise question marks about the underlying intentions of the Government with respect to jury trial. If the logic behind this measure is that long and complex trials are burdensome to juries, it is easily extended to all such trials. That may not be the intention of the noble and learned Lord the Attorney-General but it is the logic of his argument.
It would be extremely easy for a future Government—or, dare I say it, a future noble and learned Lord, a future Attorney-General—to apply that logic to a whole other range of criminal trials. The noble and learned Lord shakes his head now, and I am sure that his intentions are sound; but the logic is clear.
My Lords, the noble Lord is simply failing to take account of what I said. It is not just the length and complexity but the particular circumstances of serious, complex fraud cases that involve considerations, financial instruments and all the rest that is outside the normal ken of most of us that adds an element of complexity that is not present in other cases.
Well then, my Lords, the Government are changing their position, since throughout the procedures in another place they made it clear that complexity was not an issue.
There is a wider dimension to this case, which is that we are not just talking about a procedure in the context of a particular offence. We are talking about jury trial in general. If there are two principles that infuse the liberties of the citizen, they are the principle of habeas corpus and the principle of jury trial. They are both under threat from this Government. Happily, we have managed to prevent the Government from extending the time in which someone can spend in detention without charge to 90 days; but I suspect that very soon we will have another battle on our hands.
We now also have a battle over jury trial—an equally important component of our liberties. The sooner we confront it, the better. I wish to seek the opinion of the House.
Parliament (Joint Departments) Bill [HL]
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 1 agreed to.
Clause 2 [Exercise of functions of the Corporate Officers]:
1: Clause 2 , page 2, line 5, leave out “Commission”
The noble Lord said: I have observed that there is a difference between the arrangements in the two Houses. Clause 2(3) deals with the arrangements for deciding which functions should be exercised as joint functions under the mechanism to be set up by this Bill. We have been told that the proposal is for only computers and information technology to be jointly managed, but the Bill is deliberately worded much wider than that. It would allow other functions to be made joint, subject to this subsection.
It was clear at Second Reading that there is some favour for the idea that other functions should be made joint; for example, the Library, the refreshment department and potentially other things. In your Lordships’ House, changes in the functions can be made only with the approval of the whole House. But in another place changes can be made with simply the approval of the Commission. In other words, the Government propose that this House is to be in this respect the more democratic House; that is, trust the Peers, but do not trust the people’s elected representatives. Some might say that that is a very proper attitude, but it is odd given that last week we were told that we are not democratic enough—illegitimate, in fact. However, we seem to be able to look after our own affairs collectively and not be subjected, as the Bill proposes for another place, to an elected dictatorship. Why are the two Houses being treated differently? I beg to move.
I support my noble friend’s amendment, which I touched on at Second Reading. On the face of it, an asymmetrical relationship between the mechanisms will be adopted for the two Houses. It may be that there are legitimate reasons for that. As I mentioned at Second Reading, it may be a matter for the other House to determine its own procedures, but it would be interesting to tease out the reasoning, so that it is on the record.
I think that it would be helpful to clarify that this is not a government Bill. I am taking the Bill through this House because there is no mechanism for something which affects Parliament to be brought forward except through the Government. I confirm that this is not a government Bill, it is a parliamentary Bill. I recognise that this is an issue that has concerned the noble Lord, Lord Cope, and the noble Lord, Lord Norton of Louth, who raised this when we discussed the Bill at Second Reading. There are different governance arrangements between the two Houses. Clause 2 provides that in exercising certain functions under the Bill, the Corporate Officer of the House of Lords may act only in accordance with recommendations made by the House Committee of the House of Lords and approved by this House. That is the way that we do business. The Corporate Officers are the Clerks of the two Houses.
The noble Lord, Lord Cope, suggested that the draft Bill should be amended to include the Floor of the House requirement. We were happy to agree that and the Bill was amended prior to its introduction. This amendment would require a decision on the Floor of the House in another place. It would be highly unusual for this House to amend a Bill in this way, given that it touches on a matter of internal House of Commons procedure. I hope, therefore, that having had the opportunity to raise the issue and my having explained that there are different governance arrangements between the two Houses, the noble Lord, Lord Cope, will feel able to withdraw his amendment.
I must first apologise if I appeared to be treating the Lord President as though she were speaking for the Government. I realise that she is actually speaking as Leader of the House. As far as the amendment is concerned, the Leader of the House is quite right to say that, in the end, it is for another place to decide how they wish to do things. Having drawn attention to the matter, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
2: After Clause 2 , insert the following new Clause—
A joint department shall, by 30th September each year, lay before both Houses of Parliament a report of the department’s operations and financial affairs in the financial year ending on 31st March in the preceding year.”
The noble Lord said: The amendment provides for an annual report. It stems from the idea that these joint departments are to be, in effect, self-standing joint subsidiaries of the two Houses. I think it would be wise to ensure that the affairs of such departments are not solely to be judged by being disentangled from the consolidated reports and accounts of the two Houses, but seen first separately as individual departments.
When I look at the consolidated accounts of a great company, I like to be able to unravel what has happened in the various subsidiaries of that company. That is all the more important in the case of a subsidiary jointly owned by two different companies. That is the analogy here.
On reflection, the words “the preceding year” should be replaced by “that”, but I am not proposing a manuscript amendment. The present drafting means that the report for the financial year ended 3l March 2007 need not be produced until 30 September 2008. I really intended that it should be produced by 30 September 2007, but I await the response in principle to the idea of an annual report before pursuing that particular detail. I beg to move.
I support my noble friend’s amendment. I added my name to it because it is a sensible way of addressing a point that came up at Second Reading. As my noble friend indicated, it anticipates the future if a joint department—not just PICT but any future joint department—is created. It is important that there is transparency and some reporting to each House and this would be one way of achieving that. I regard it as a necessary but not sufficient condition for informing the Houses about what a joint department is doing. One would assume that a department would want to disseminate material about what it is doing, keeping both Houses informed as a matter of course, but it is invaluable to have this on the record as part of the Bill itself. It would trigger some action on behalf of the joint department and serve as a reminder of the responsibility to both Houses. I therefore strongly support my noble friend’s amendment.
I have some sympathy with the spirit of the amendment proposed. The noble Lord, Lord Cope, is quite right: the amendment as currently drafted would provide for an 18-month rather than six-month delay between the end of year and the report.
In terms of the practice envisaged here, the House of Commons Commission and the House Committee already publish annual reports. It is anticipated that the joint departments would include within those reports a report of their work. We do not need to legislate about an annual report, but in listening to what noble Lords have said about the importance of recognising that a joint department is somewhat different from other departments, I see no reason why we should not encourage the House Committee, for example, to ask the joint department to put a separate report on its work to the House Committee, which can then be available to Members of this House.
Rather than including it in legislation in the way proposed by the noble Lord, Lord Cope, I would ask the noble Lord to withdraw the amendment and for there to be a very strong push from the House Committee—a number of representatives on that committee are in the Chamber—to ask that a separate report be produced for it which can then be made available to the House. In that spirit, I ask the noble Lord to withdraw his amendment.
I seem to have support in principle from all three major parties in the House. As I confessed when moving the amendment, it is flawed. I will rest on the principles having been agreed and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 [Staff]:
3: Clause 3 , page 2, line 18, leave out “both” and insert “each of the”
The noble Lord said: I now turn to a more significant point in some ways. It concerns what happens when there is a difference in the treatment of the staff from what would apply normally in the Home Civil Service. Under the Bill as it stands, when the requirements of both Houses make it necessary, the conditions of service of the staff can be varied and presumably will be varied. But the Bill says “both” Houses. In some respects, the requirements of both Houses will be the same or similar, but in other respects they are different. If one House has different requirements, under the Bill as it stands, they cannot be accommodated. If the Bill were adjusted to say, as the amendment suggests, that the requirements of “each” House should be accommodated, there would be less pressure for both Houses to go about their business in the same way and we would be freer to make our own arrangements.
I will give an example. Take the hours of sitting. In your Lordships' House, we are much more flexible than another place these days in the hours of sitting and the way that we arrange our business. That is to our advantage. The Commons can predict its hours of sitting and voting with much greater precision than we can. Last night, for example, we sat on for an extra hour to finish off the Report stage of a Bill which had taken rather longer than expected.
Of course that has an effect on the staff and their conditions of employment, which have to allow for it. We want to remain in charge of our arrangements of that sort. It is most important that Peers can raise whatever points they wish on Bills, and the flexibility of our timetable is part of that. Yesterday, as frequently happens, the Government gave way on various points, no doubt because of the time pressure among other things; I would like to think that the arguments were persuasive, but the time pressure may have contributed to the decisions made. In another place, there is no need for the Government to give way at all these days. Permanent universal guillotines make that unnecessary. The conditions of the staff obviously reflect that difference in arrangements between the two Houses. If we were to be changed to a substantially elected or all-elected House, no doubt the timing arrangements for sittings might change too, because the pressures on Members would be the same at both ends of the Corridor—but that is another matter. In any case, we should preserve the ability of each House to make the arrangements that suit them. The staff conditions should at any rate be able to be negotiated to accommodate that.
This may not be so important in connection with the computer and IT staff but, as we know, the Bill can have a much wider effect. If it applies to some other departments, the issue could be particularly significant. I beg to move.
Again, I appreciate and understand the point that the noble Lord seeks to address through the amendment. If my memory serves me correctly, he made some reference to the matter on Second Reading. I assure him that the operation of PICT already takes account of the sitting hours of both Houses.
Clause 3(2)(b) relates to staff terms and conditions, and it is not anticipated that a joint department would require significantly different terms and conditions from those of either House. The matter will remain subject to consultation with staff representatives in connection with any joint department. As the noble Lord knows, a key purpose of the Bill is to protect staff rights—that is precisely why we needed it—and staff representatives have been assured of management’s early intention to set up a Whitley committee structure for PICT.
On the general issue of service levels and what might happen if the two Houses wanted different things, I do not think that we would get to the point of a lowest common denominator. For example, the two Houses have co-operated closely in relation to the IT strategy for a long time. Our House has made its own decisions about Members’ equipment and the levels of support required. If there are proposals for future joint departments, they will have to come to the Floor of the House, so I do not anticipate that we would agree anything that would prevent our House making our service needs clear.
I recognise the noble Lord’s concerns—I am continuing to talk, but here is the noble Baroness, Lady Neuberger, so I can stop now—but I ask him to withdraw his amendment.
I acknowledged that, so far as the Bill and the arrangements under it apply only to PICT, this is probably not a problem, but it can apply much wider. I had rather hoped that the noble Baroness the Leader of the House would say that “both Houses” meant that they both had to be satisfied—each individually. If that were so, my amendment would not be necessary. As matters stand, I am not entirely persuaded.
That makes my position much easier. As “both” seems to mean much the same as “each”, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clauses 4 to 6 agreed to.
Schedule agreed to.
House resumed: Bill reported without amendment.
Health: Malnutrition in Hospitals
asked Her Majesty’s Government what plans they have to prevent malnutrition in hospitals, as highlighted in the Age Concern report Hungry to be Heard.
The noble Baroness said: My Lords, I thank the noble Baroness, Lady Amos, who is leaving the Chamber, for going on slightly longer than she needed, I gather, to give me time to get down from my office. I apologise.
There has been considerable news coverage of Age Concern's Hungry to be Heard campaign, started in August last year. It showed just how serious the issue of nutrition for older people in hospitals is, with six out of 10 older people at risk of becoming malnourished or their situation getting worse in hospital, and patients over 80 admitted to hospital having a five times higher prevalence of malnutrition than those under 50, with all the accompanying horrors.
Age Concern came up with a list of seven steps to end malnutrition, including some fairly obvious things, one might say, such as listening to older people, their relatives and carers; all ward staff becoming “food aware”; hospital staff having to follow professional codes; assessing signs of malnutrition; introducing protected mealtimes; implementing a red-tray system to give staff warning that the patient has trouble eating; and using volunteers where appropriate. All those seem remarkably sensible, and I very much hope that the Minister will be able to tell us that many of them have come about, eight months on.
I want to take a longer look. In all the concern that there has been over recent years about malnutrition, particularly among older people in hospital, little attention has been paid to the enjoyment of food and to what older people like to eat. Long-stay wards for older people, which are not necessarily the sorts of wards that we would like to see come back, nevertheless often used to provide food that older people particularly liked. Steamed puddings, for instance, which we also get in your Lordships’ House, were an old favourite, and a traditional roast dinner was another. As chairman of a big community health services NHS trust in central London in the mid-1990s, I was only too well aware of the likes and dislikes of many of the patients on the old long-stay “care of the elderly” wards. Steamed pudding was a great favourite and some of the older women, with bird-like frames, would lap it up in huge portions as though their lives depended on it. Of course, in a way, they did. Steamed pudding is easy to eat—soft, sweet, nourishing and very familiar. It takes relatively little agility with cutlery for frail older people to manage it and, washed down with plenty of custard made with full cream milk, it probably provided most of the calories they needed for a day.
I certainly could not have managed the sorts of portions they were given as of course; nor would I have wanted them. But that is precisely the point. At that stage, on those wards we still had our own cooks preparing the food; wonderful men and women who would come in at 3 am on Christmas morning to get the turkeys into the ovens ready for a slap-up meal. They also knew, as they watched the carving or did it themselves, that cutting things up into small pieces was essential, even though what was being served was the favourite of all time—a roast dinner followed by a steamed pudding.
In more recent years food in hospitals has been of varying quality, often pre-frozen and brought in ready to be thawed and cooked. There is neither the time nor the staff available to help older people to eat what has been provided. Anecdotes abound about older people in hospital being given a meal, it being left at the end of the bed and then cleared away later, with a cheery remark such as, “Didn’t fancy it, then, darling? Don’t blame you—don’t fancy it much myself”, without the realisation that the older person may or may not have “fancied” it but actually could not reach it. Had they been able to reach it, they could not have fed themselves anyway, and no nurse or care assistant seemed to notice. It is as though what patients eat is of no interest in a modern healthcare setting. Paying attention to what older people eat has not been high on the agenda.
In terms of what makes for successful ageing, old people rate diet and enjoying food very highly. They may well cook the foods they like for themselves when they are at home, but when they cannot do so, either due to frailty or because they are in hospital, questions need to be asked about how good it could be if real attention were paid to it. Since we know that older people rate food as a key part of successful ageing, it might be argued that hospitals and other institutions such as care homes have to catch up with the population’s different views on food these days. If people, including older people, want organic and vegetarian food, they should have it without argument in precisely the same way as no one would argue with a demand for kosher or halal food.
The English Community Care Association, one of the representative bodies for care homes in England, held a high-level symposium in July 2006 focusing on just these issues. The chief executive of ECCA, Martin Green, went on record as saying:
“There are many elements to ensuring that a resident is well nourished, but there is no nutrition in a meal that a resident doesn’t eat”.
All this comes in the wake of a report by CSCI entitled Highlight of the Day?, arguing for the likes and dislikes of care home residents to be explored and catered to, and for older people to be encouraged to participate in decisions about meals and their presentation. Given the extent to which older people describe meals and good food as an essential part of ageing well, it is extraordinary that this has been far from fully grasped by the hospital sector and the care home sector.
The issue goes wider than simply being in hospital. The malnutrition advisory group, an expert group of doctors and other health experts, has warned that one in seven people over 65 in the UK is malnourished or at severe risk of malnutrition. Apparently, it is most pronounced in the north-west of the country, where one in five over 65 year-olds is undernourished. Despite a north-south divide in the case of general malnutrition, when it comes to nursing homes, where around one in four older people is likely to spend their last days, malnutrition rates are more generally one in five. Added to this, around 60 per cent of those over 65 admitted to hospital are found to be malnourished, and if anything it seems to be getting worse.
Some people have said that the figures that have been adduced in all of this in the various reports—Age Concern’s and others—show special pleading on the part of the experts in the field. The counter-argument has come from Professor Marinos Elia and others in the group, who say that the statistics come from an analysis of data obtained from the national nutrition and diet survey conducted as long ago as 1998. More importantly, Professor Elia and others describe this as a public health problem costing the country anything between £2 billion and £4 billion a year, mainly through increased or return hospital stays.
I have read a huge number of stories about people being neglected and simply not fed. I do not have time in this short debate to go through them, but you can read in the Age Concern report and elsewhere stories of people who weigh something like 7 stone when they go into hospital, but in a three-month stay lose something like a stone, anything between 2 and 7 kilograms, which is really quite appalling. Food and feeding are generally rather neglected, and we have not taken on board just how serious that is. People who visit older people at home, people who work in care homes, home helps, district nurses and family members all ought to be aware of the risk of malnutrition. As we are increasingly obsessed with obesity, we have somehow lost sight of malnutrition as an issue, particularly for older people. If someone is not overweight, we somehow perceive that as a good thing. That they might be seriously underweight, or not eating adequately, often does not cross even the experts’ minds, let alone the rest of us.
What can we do? Age Concern came up with a very good list of things that we could do. When I raised this in November, the then Minister, the noble Lord, Lord Warner, told me that,
“the better hospital food programme has improved the quality and availability of hospital food”,
but he was not clear precisely how that had helped older people. He also said that it was down to people at local level to make the best use of experience gained from allowing staff to focus on helping patients to eat, through the protected mealtimes initiative. He suggested that it was up to local decision-makers to,
“put ward housekeepers in place when they think it is appropriate”.—[Official Report, 6/11/06; col. 590.]
I accept that it is down to local decision-makers; as a former NHS trust chair, I would have been very irritated if it had not been, but we need to see some central passion behind guidance and speeches. If it was clear that this was something that shocked Ministers, doctors and nurses, we would see a rapid change. If Ministers were pressing for it, we would see all trusts sign up to Age Concern’s seven steps. If Ministers felt strongly, the Commission for Patient and Public Involvement in Health would not have found the results of its survey of food in hospitals so disappointing, with a third of people abandoning their food and 40 per cent having food brought in by visitors. Until we get away from nine out of 10 nurses saying that they do not have time to help people eat properly, it will be impossible to get real changes.
Which? magazine found that only 18 per cent of people surveyed over the past 12 months were satisfied with the food quality, compared with 57 per cent in private hospitals. It cannot be a coincidence that the Commission for Patient and Public Involvement in Health food watch survey and the Which? survey show such different results from the Government’s own patient environment action team survey compiled by hospitals themselves, and it takes some explaining. The Healthcare Commission reported in October that 96 per cent of hospitals were meeting core standards on hospital food, but that same commission is also adding a focus on food and help with eating in its dignity assessment programme carried out early this year, which suggests that it, too, was not wholly satisfied, especially as all this affects vulnerable people.
No one thinks that this should be a national programme, but the setting and monitoring of standards is something on which Ministers, doctors, nurses’ leaders and others could and should set a lead. There was an emergency meeting on malnutrition in hospitals last week, on 14 March, and it would be good to hear what came out of it. I know that encouraging an “army of volunteers” to help feed patients is one key idea that was discussed. As chair of the Commission on the Future of Volunteering in England, I would be very interested to know how the Government would propose planning the recruitment of such a large army, its training, supervision and retention and how they would recognise the contribution that such an army of volunteers would be making to the NHS in particular and to our public services more generally. I very much hope that the Minister will be able to give me some comfort as a result of this short debate.
My Lords, I congratulate the noble Baroness, Lady Neuberger, on securing this very important short debate. I welcome, as she did, the Age Concern Hungry to be Heard campaign and the Government’s announcement of their own campaign last week.
We always have to remember that, as life becomes very narrow with old age, if someone is not well, is frail and has to go into hospital or into a care home, time for food is more and more important, choice of food is more and more important, and eating is perhaps the only remaining social activity of importance for many people. It is therefore appalling that so many people in hospital are malnourished. It is equally terrible that people going into hospital are malnourished. It means that this is a problem not just for the hospitals but for the whole community, and that it is seriously under-recognised. I hope that the Minister will acknowledge that when she responds.
The noble Baroness, Lady Neuberger, quoted many of the very important and distressing figures. I shall add only that four out of 10 over-80s are admitted to hospital when they are already malnourished. Malnutrition costs us more than £7.3 billion a year, with more than half of that spent on the over-65s.
The risk of malnutrition increases with age. Another aspect of it which is usually forgotten is dehydration, which is a huge problem. Water is not always available and to hand. It is a very simple to correct, but it is not done. In both hospitals and care homes, huge numbers of people suffer from dehydration.
We know that we will live longer as we get older, so all these problems will be exacerbated unless we change things now. Sadly, as with obesity, the attention always seems to be focused on the diet of the very young. We do not want to take away that focus; we just want to extend it so that all age groups are considered as we try to improve this situation, because the old people whom we are talking about are very vulnerable and require our attention.
Malnutrition is also a key marker of inequality in health, social care and housing within regions and localities. It is one of the key reasons behind the shorter life expectancy in the north and Scotland which the noble Baroness, Lady Neuberger, mentioned. Life expectancy there is about 10 years less than it is in the south-east of this country. That is quite appalling.
As we know, the causes of malnutrition are complex and go far wider than just poor food. Among them are social isolation—when you really cannot be bothered with food—underlying disease, lack of mobility and a lack of diverse, accessible local food shops. Therefore, finding solutions in the community is even more complex than doing so in the clinical settings that we have described. They require input from a range of sources: the NHS—particularly primary care services—local government, the voluntary sector and families. One of the reasons why elderly people who are malnourished somehow slip between the cracks in the plaster is that nobody is quite certain who should take responsibility, so everybody pushes it on to someone else and the problem is easily and frequently overlooked.
Some months ago, I was privileged to launch the National Association of Care Catering’s menu planner for care homes here in Parliament. I commend it on the great attention to detail that went into devising menus that were not only nutritious but often tailored to specific conditions such as osteoporosis, anaemia and others; for example, when a person has difficulties chewing or swallowing. The menus would retain a person’s interest in eating. The menu planner is about 160 pages long, so it is not light reading, but it provides a very good model and is worth studying by many professionals in this field.
I call on the Government to develop professional accreditation, filling gaps in training for people among the different professions who care for frail, old people. I have referred previously in the House to enhanced training for care professionals, and this seems to be a very good element to include in it.
We also have to ensure that screening for malnutrition is embedded in practice at all levels of older people’s health services. The International Longevity Centre has been involved in a European study of malnutrition which shows that the problem is not limited to this country but that it is worse here than in many other countries because we do not have a culture of taking food into our relatives in hospitals and care homes. The food is provided there, but it is often very poor.
I hope that the Government agree that we need to strengthen local government and community involvement, maximising the use of agencies such as sheltered housing groups, GPs’ surgeries and meeting clubs, leisure centres and voluntary organisations as well to get across the message of how important nutrition is. We need in particular to ensure that families, who often do such a great job in caring, are aware of the signs. I hope that we will be reassured by the Minister that these issues will be taken forward by the Government.
My Lords, I pay warm tribute to both noble Baronesses whose excellent speeches on this important document we have been privileged to hear. However, the more that one looks into this problem facing elderly people in NHS hospitals, the more horrifying is the picture that emerges. I was alerted to it more than five years ago. Ever since, I have checked and rechecked the facts and received letters, and what I have learned has angered and upset me a great deal, because the situation is worse than the report states.
Some old people are quite literally being starved to death. It is not more than “some”, but I worry about every single one of them. There is a growing realisation of this; there have been television programmes and newspaper articles. A recent BBC “Look East” programme elicited the biggest response that it has ever had. I have received more than 200 foolscap pages from the BBC, sent in by relatives or friends who have visited people in hospital and seen for themselves what has happened. I spent a long time putting together a dossier for the Minister, the noble Lord, Lord Hunt. He has been most helpful, and I am quite sure that he means to do something positive to help in this regard. Every single person mentioned in the dossier has been contacted by me—I have spent hours on the telephone—and the evidence that I have put forward is truly incontrovertible.
Some old people are being deliberately organised into a condition where “nil by mouth” can be put on their bed—I did not realise that until I started to look at it. I have submitted these details to the Minister. All this came out of the reports received by the BBC. I am convinced that the damage is done by the rule that states that giving people food and liquid is medical treatment. Doctors can withhold medical treatment almost at will, and this is what worries me. While backing this report to the full, we must surely make it our next step to try with the medical profession to alter this rule, so as perhaps to say that if “nil by mouth” is to stay on a bed for longer than a day, or two days at most, it has to be agreed by two or three doctors and a medical expert, because, so often, that “nil by mouth” sign is left on the bed day after day. Noble Lords should believe me when I say that people are dying while suffering, because to die through a lack of liquid is a terribly painful way to die.
We in this House have a huge responsibility, and I know that the Government are now alert to it. In backing this document, I ask that we take the further step of backing and saving our old people.
Baroness Verma: My Lords, I, too, thank the noble Baroness, Lady Neuberger, for introducing this important debate. She raised some very important points, many of which I shall add to. I declare an interest as a healthcare provider. I expect that all of us in your Lordships’ House could relate heart-rending experiences of our own or of family and friends. Age Concern’s document Hungry to be Heard comes as no surprise to many noble Lords, as the issue has been aired many times. Sadly, little seems to have changed; here we are again discussing an issue so important to the welfare of our most vulnerable groups.
As other noble Lords said, six out of 10 older people are at risk of becoming malnourished or of their situation getting worse after coming into hospital. That adds approximately £7.3 billion to NHS costs, as those patients take longer to recover or develop other complications or illnesses through malnutrition. Nine out of 10 nursing staff say that they do not always have enough time to ensure that patients eat properly.
However, it is not only about finding time for nursing staff to ensure that patients eat; there are many additional factors. The elderly may not be able to understand nurses. It is not unusual to find staff for whom English is not a first language. If patients are not English-speaking, it is difficult to express a problem with the full confidence of being understood. It might be that a patient suffers from learning disabilities, dementia or Alzheimer's disease. These patients need specially trained staff to encourage them to eat and, in many cases, support them in doing so. Above all, a well balanced menu must be fed to patients, one that takes into account the patient’s ability to eat the meal.
I can give many examples. If noble Lords will indulge me, I will cite an example of an Asian lady who went into hospital and could not explain that she was a vegetarian and did not eat onions or garlic. In the end, her family had to bring food in daily. The noble Baroness, Lady Greengross, referred to the fact that people do not always know that they can bring food in to their family, but this lady’s family brought food in because she was not eating any meals at all.
Residential care, nursing homes and social services responsible for meal provision to clients in their own homes all have to follow minimum standards which offer choice and meet users’ differing needs. Surely it is even more important that such requirements are essential and followed in hospitals, as the same, if not better, standards need to be met.
The Minister will remind your Lordships’ House of The Essence of Care framework, which provides guidelines for nutritional assessments to be carried out on patients coming into hospital, identifying nutritional needs and devising care plans based on those assessments. Will the Minister say whether all hospitals are working to that framework, what monitoring has been carried out, whether results have been published and whether they are available to the public? Will she also assure the House that all patients coming into hospital are screened to identify those at risk from malnutrition so that appropriate action, needed to give staff enough time to help support individuals is taken?
We all are aware of the campaign led by Lloyd Grossman, which looked at the quality of food served in hospitals. The Better Hospital Food programme made much of menus becoming varied and offering more choices. However, if one is sick, elderly and finding it difficult to chew or swallow, as the noble Baroness, Lady Neuberger, said, it is not fancy menu choices that you want but familiar well balanced and easy, manageable food.
A spoon of mashed potatoes served in the middle of a plate does not constitute a meal, neither does a thick, salty bowl of soup that looks like wallpaper paste. We understand the practices of remote food preparation and reheating on hospital sites. Will the Minister assure the House that there will be a more rigorous inspection regime of monitoring the quality of food supplied to hospitals, assessing whether that food is of both nutritional value and cost benefit to hospitals and what distance it travels?
In many cases, trays are left out of patients’ reach, even where hospitals use the red-tray policy. That is not always deliberate but the result of a lack of staff understanding or the inability of the patient to access the tray. The patient may not even remember whether he or she needs to reach out for the tray. Will the Minister assure us that, whatever the stresses that nurses and auxiliary staff are under today, time will be made in their day to feed vulnerable patients who cannot access a tray?
We know about the stresses that nurse and auxiliary staff are facing, especially with hospitals having to square ever-increasing deficits and make cuts to front-line staff. However, will the Minister assure the House that all hospitals have a full and proper policy in place to ensure that all ward staff are food aware, that appropriate training is given to staff and that they have a protected mealtimes policy?
Do the Government have a firm date for the publication of the findings from the summit to tackle malnutrition in older people, which Ivan Lewis, the Minister in another place, announced last week? Might greater use of the voluntary sector be considered as part of meal-time assistance? What plans will the Government implement to achieve a fundamental shift in NHS cultures and practices on treatment of the elderly and people who suffer from dementia and Alzheimer’s disease?
My Lords, this has been an excellent, although rather short, debate. I am very grateful to the noble Baroness, Lady Neuberger, for enabling this discussion to take place. It is an extremely important issue. I very much regret that it has not provoked the interest I believe it deserves. However, this evening we have quality here.
The challenges of providing good nutritional care are huge. For that reason, last Friday, my honourable friend the health Minister Ivan Lewis, announced a new national plan for older people and nutrition. He is passionate about the issue. The announcement followed a nutrition summit held on 14 March, which was attended by leading charities, clinicians, nutrition experts and care home representatives. That was not an emergency meeting. It was set up as part of the Dignity in Care campaign because feedback from the various listening events that have taken place showed that attention to food is so important to patients.
The issues that were under discussion at the meeting included raising awareness, setting nutritional standards, streamlining guidance, training for staff and managers—the noble Baroness, Lady Greengross, stressed the importance of that—and a clearer focus in inspections. Water UK was one of the organisations involved in the summit. I can assure the noble Baronesses, Lady Greengross and Lady Knight, that the important issue of hydration will be properly considered and dealt with. The action plan will be further developed in close consultation with front-line workers, including Age Concern and other organisations that attended the summit. We can expect the plan in the not too distant future.
A great deal has already been achieved. For far too long food was not treated with the priority that it deserves and for too long food and feeding were neglected. In 2000, the NHS Plan accepted that, despite the sterling efforts of dedicated catering staff, food had somehow slipped off the agenda for too many NHS staff. More importantly, the plan acknowledged that food really matters to patients, not just as a source of fuel, but as a way of making their hospital stay more pleasant. It made it clear that improvements in food and nutritional care were needed.
The noble Baroness, Lady Neuberger, is absolutely right to talk of the importance of enjoying food. We want to include roast dinners, steamed puddings as well as the many other varied menus that are available. Of course, there is still a place for traditional dishes. Catering managers and dieticians are best placed to understand what their local populations need. They must talk to patients themselves to see what they want. We have to ensure that patients, such as the Indian lady cited by the noble Baroness, Lady Verma, are aware that different dishes are available—vegetarian, kosher or whatever—and that their relatives can bring food into hospital.
Soon after the NHS Plan was published, we evaluated the quality of hospital food, via patient environment action team assessments—PEAT assessments. We have continued to assess food quality ever since. Every year, things have got better—from 17 per cent “good” in 2002 to over 34 per cent “excellent” last year. The Age Concern report acknowledges that, speaking of food that would grace any restaurant. Of course, we have to ensure that the food provided is the food that people want to eat. If one is feeling poorly or ill, one has a very special palate.
The noble Baroness, Lady Verma, spoke of the Better Hospital Food programme. Its remit was not to provide fancy menus, but to do much more. It accomplished some very specific things; for example, more food is now available round the clock. We have introduced 24-hour services, snack boxes and daily snacks. For the last year in which statistics were collected, 2004, 89 per cent of hospitals had introduced ward kitchen services to provide light snacks, 80 per cent were providing snack boxes and 84 per cent were providing extra snacks during the day. In most cases, patients can now choose a hot meal in the evening, whereas before, many only had soup and a sandwich; 94 per cent of hospitals reported that they provided that service. Many hospitals have also improved the visual appearance of their menus, providing more information and a professional appearance.
Another key plank of the Better Hospital Food programme was the introduction of protected mealtimes. In partnership with the Royal College of Nursing, we introduced the concept of an oasis of calm at mealtimes; a period when all unnecessary activity on the ward stops, and everyone—staff and patients alike—can concentrate on the meal. Once patients have the time to relish their food, and staff have the time to help them to eat, food intake increases and so does enjoyment.
Good food is important, but it is not enough. The best food is of no value if it is not eaten and for many older people it will not be eaten if the requisite assistance is not there. That is at the very heart of the Age Concern report. Stories of food left out of reach or taken away uneaten are shocking. Such care is unacceptable. When it happens, we must roundly condemn it, but it is not the norm. Most patients receive the help they need to eat. The Healthcare Commission in-patient survey found that 83 per cent of patients sometimes or always got the help they needed to eat. This is not good enough and there must be improvements, but the situation is not as disastrous as some would have us believe.
I warmly welcome the Age Concern report as a generally thoughtful and considered piece of work. In particular, I value the way in which it has identified its seven essential steps to improved nutritional care. We accept much of what it recommends, but already we are taking steps to make things better; for example, Ivan Lewis’s Dignity in Care campaign. Nutrition and support when eating were among the top 10 concerns that people raised when describing their experiences of being treated with dignity.
We have also focused attention on how nurses can improve the care of older people. There are now 85,000 more nurses in the NHS than in 1997 and 67 per cent more nurses entered training between 1997 and 2004. More nurses means more nursing care, and it should also mean more time for patients.
The challenges identified by Age Concern are not unique to this country, hence the resolution from the Council of Europe on food in hospitals. We are actively supporting the Council of Europe Alliance, a group of interested bodies including the Hospital Caterers Association, the British Dietetic Association, the Royal College of Nursing and the British Medical Association, who have taken the recommendations of the Council of Europe’s resolution on food in hospitals and translated it into straightforward, practical actions. Its 10 key characteristics of good nutritional care on the ward directly support much of the Age Concern report.
Step one of Age Concern’s seven steps is about listening to older people. We are listening to older people. We have introduced the modern matron with the authority to take action to improve care. Nurse leaders in hospitals all over the country are taking the lead for care, listening to patients and their families and working with nurses and their teams to deliver better care. We have also increased the time students spend learning in practice settings so that they gain the necessary practical skills they need to be equipped to provide personal care for patients.
Step two is that all staff should be more food aware. We certainly accept the need for all ward staff to become food aware. Food is an essential part of treatment, and everyone needs to recognise it. Florence Nightingale spoke of the,
“thousands of patients [who] are annually starved in the midst of plenty, from want of attention to the ways which alone make it possible for them to take food”.
We must not fall into the trap of seeing food as an add-on, a luxury, a nice-to-have. Food is a must-have, and we will continue to spread that message.
Step three relates to professional codes and guidance. The Age Concern report rightly charges hospital staff with responsibility for following their own professional codes and guidance. This, of course, is where the work of the Council of Europe Alliance could be so productive. Each organisation within the Alliance is jointly committed to the 10 actions, but each will work with its own members in the way that is right for them. The Government wholeheartedly endorse the need for good practice, but delivery of that practice lies in the hands of NHS staff.
Step four concerns screening on admission. As the noble Baroness, Lady Greengross, rightly informed us, up to 40 per cent of hospital patients are at risk of malnourishment on admission. Studies suggest that it is even worse for admission to the social care sector. This is a problem for the community as a whole, not just for care homes and hospitals. I am therefore pleased to endorse Age Concern’s recommendation that older people should all be screened on admission. Indeed, we emphasise the importance of screening within the Better Hospital Food programme and further work on this is still going on within the National Patient Safety Agency. Again, Age Concern itself is actively involved in this work.
Steps five and six cover the introduction of protected mealtimes and a red tray system. The National Patient Safety Agency is taking forward the work on protected mealtimes. We fully support all the actions being taken in this area. Along with the red tray system, it offers a proactive solution to a long-standing problem.
I now turn to Age Concern’s final recommendation—the use of trained volunteers to support patients at mealtimes. We have long recognised the enormous value that volunteers make to patients’ experience of the NHS. We have supported the sector in developing its potential contribution through the Opportunities for Volunteering scheme, and by providing funding through the Section 64 scheme. I know that some trusts are already using volunteers to support patients at mealtimes, and I am sure they will continue to do so. In response to the noble Baroness, Lady Neuberger, this is not something that we will act on centrally, but we are going to encourage all trusts to make better use of volunteers.
The noble Baroness, Lady Knight, raised some important issues in her contribution. I must respond to the point made about nil-by-mouth orders. The most common reason for a nil-by-mouth order would be for patients awaiting surgery, as it is important that a person has an empty stomach before an anaesthetic. Another common reason in older people would be if somebody has had a stroke and lost the ability to swallow. In this circumstance it is important that a dietician speech and language therapist is involved so that the patient gets the appropriate treatment.
I know that the noble Baroness and the noble Lords, Lord Carlile and Lord Patten, have met the noble Lord, Lord Hunt, and Professor Ian Philp, the national director for older people’s services and neurological conditions, to discuss concerns about the deliberate withholding of food and drink and that the noble Lord, Lord Hunt, has agreed to make a Statement on the Government’s position. I do not wish to pre-empt that Statement.
I endorse much of what the Age Concern report said. Its recommendations are sound and sensible, and with partners in the NHS, we have actions in place to maintain improvement. However, I do not accept the suggestion that nutritional care is currently in disarray. Much has already been achieved, but there is much more to do. As my honourable friend Ivan Lewis said last week,
“there is no excuse for vulnerable, older people not receiving the food they require and the necessary help to eat that food”.
We have already done a huge amount to improve the quality of food in hospitals, but there are challenges in relation to the support of frail, elderly people who need encouragement to eat. We recognise that, and, as I hope I have demonstrated, we are not complacent and that, rather, we are taking action.
Finally, I pay tribute to the many NHS staff who have worked so hard to bring nutritional care up the agenda and who continue to make it their priority.
House adjourned at 8.31 pm.