Fraud (Trials without a Jury) Bill

Public Bill Committee, 12 December 2006.

John Bercow (Conservative, Buckingham)

I should like to remind right hon. and hon. Members that adequate notice of amendments should be given. As a general rule, I do not intend to call starred amendments.

Mike O'Brien (Labour, North Warwickshire)

I beg to move,

That—

(1) during proceedings on the Fraud (Trials without a Jury) Bill the Committee shall (in addition to its first meeting at 10.30 a.m. on Tuesday 12th December) meet—

(a) at 4.00 p.m. on Tuesday 12th December;

(b) at 9.00 a.m. and 1.00 p.m. on Thursday 14th December;

(2) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 4.00 p.m. on Thursday 14th December.

I am sure that we will enjoy a useful and interesting debate under your able chairmanship, Mr. Bercow, and I look forward to it.

The Bill is short and contains a small number of clauses, so it should not detain us unduly long. Some Committees go on for months, but I suspect that we will be able to deal with the Bill in about three or four sittings. For that reason, we propose to meet again this afternoon and on Thursday at the times set out in the resolution of the Programming Sub-Committee.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

First, may I apologise for two things by way of preliminary? I have not served on a Committee as a Back Bencher for more than 20 years, and I have not been on a Committee for more than 12, so it is at least possible that I shall commit the occasional solecism. I apologise for that in advance.

Secondly, I have moved a manuscript amendment. I appreciate what you have just said about amendments, Mr. Bercow, and, with respect, I entirely agree that notice needs to be given. However, this is a somewhat exceptional situation. As you will see, the amendment would slip the whole thing back by an hour on Thursday afternoon and slip the start time back by an hour this afternoon. The reason for that is that it seems likely that there will be a statement on post offices on Thursday. That is a matter of extreme importance to many Members, particularly rural Members. I imagine that the constituents of Buckingham are pretty concerned about what will happen to the post offices in their constituency, Mr. Bercow, and they would be very sad indeed if their representative could not express their views on that occasion. I am sure that that is also true of those in other constituencies, including Sleaford and North Hykeham. I therefore respectfully suggest that it is important that members of the Committee can be present at the statement.

As far as this afternoon is concerned, you will have heard Mr. Speaker reply to a point of order yesterday, Mr. Bercow, on the report of the Iraq study group. As there was in business questions last Thursday, there was pressure for the Prime Minister to make a statement. Mr. Speaker indicated obliquely that he might—I can put it no stronger than that—be favourably disposed to an urgent question. I can tell you, Mr. Bercow, that there is an urgent question before him for his consideration.

David Heath (Liberal Democrat, Somerton and Frome)

Several.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I hear from the Liberal Benches that there are several. It is possible that Mr. Speaker will accede to an application for such a question. If he does, it would be a tragedy if hon. Members, particularly those of us who have condemned the war from the start, did not have the opportunity to be present. It is with those thoughts in mind that I have proposed my amendment. If agreed to, it would cause no prejudice to the conduct of the Committee, because as much time would be provided as under the motion. I cannot see any disadvantage to anybody, but much good would be served.

Crispin Blunt (Conservative, Reigate)

On a point of order, Mr. Bercow, does the amendment have to be taken en bloc, or are we allowed to take parts of it?

John Bercow (Conservative, Buckingham)

If the hon. Gentleman wishes to speak on the matter, he is welcome to do so. He will be able to develop his line of argument on the case for distinguishing between different parts of the proposed manuscript amendment that has been tabled by the right hon. and learned Member for Sleaford and North Hykeham.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It is a pleasure to serve under your chairmanship, Mr. Bercow.

Like the Solicitor-General, we anticipate that the whole discussion can be contained within the general parameters set out in the programme motion, irrespective of the differences between us. My hon. Friend the Member for Somerton and Frome and I have listened to the right hon. and learned Member for Sleaford and North Hykeham and are sympathetic to his amendment. It is a sensible accommodation of likely business. It does not change the amount of time that the Committee intends to sit and I urge hon. Members to accept it, because it gives us cover if things elsewhere should occupy members of the Committee. My hon. Friend and I have the same interest in being elsewhere, for the reasons stated by the right hon. and learned Gentleman. The amendment keeps the total number of hours; we may well finish within that time, but in any event, it gives us flexibility to enable us to do well both parts of our job this week.

Dominic Grieve (Conservative, Beaconsfield)

I welcome you to the Chair, Mr. Bercow, and I look forward to serving on the Committee under your chairmanship.

I would like to make two points. First, I sent my apologies as I was not able to attend the Programming Sub-Committee yesterday because of another commitment. I spoke to the Solicitor-General before the Sub-Committee, however, and I did not raise any objections to the suggested timetable. At that stage, I had not had an opportunity to hear the points raised by my right hon. and learned Friend the Member for Sleaford and North Hykeham. It seems to me that he makes some pertinent points and if they can be accommodated during the sitting, I would support that.

Secondly, I raised an eyebrow when I saw Thursday’s timetable, as it is unusual for a Committee to start sitting at 1 pm. It is of some inconvenience to me, and I understand that the reason is a desire on the part of some hon. Members to leave the House rather early on Thursday afternoon. One wonders whether some will return on Monday, although that is a matter only of quiet speculation. I say only that if the times proposed by my right hon. and learned Friend could be accommodated, I would be wholly content to go along with them. We should try to achieve consensus, however. If any hon. Member feels that some parts of the proposals could be accommodated, it will be desirable to reach agreement on that in the time of this short debate. I am sorry that when the timetable of the Programming Sub-Committee was put forward, I did not know of the particular point that my right hon. and learned Friend has raised.

Crispin Blunt (Conservative, Reigate)

Having listened to the arguments so far, I would like to propose my own amendment, which I hope will be acceptable to the whole Committee.

My hon. Friend was incorrect on one point: in my experience, it is normal for Committees to start at 1 pm and finish at 4 pm on a Thursday. Had I been available for nomination to the Programming Sub-Committee—

Dominic Grieve (Conservative, Beaconsfield)

I defer to my hon. Friend, but I say to him only that I have sat on many Committees of this House and I cannot remember a single Committee starting at 1 o’clock. Heaven knows that I have sat on enough Committees in the last four years—it seems to be my lot in life.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It is a recent development.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman may be right that it is a recent development, but the last Committee that I served on, which was not so long ago, definitely started at 2 pm on a Thursday afternoon.

Crispin Blunt (Conservative, Reigate)

It is usually a matter of agreement that the time is either 1 to 4 pm or 2 to 5 pm. Neither time is without precedent. My hon. Friend is right that 2 to5 pm is probably more normal, but 1 to 4 pm is not unusual—I put it no more strongly than that.

However, if the Committee agrees, I would like to accommodate my right hon. and learned Friend the Member for Sleaford and North Hykeham as far as possible by suggesting that we start at 4.30 pm today, which would mean amending paragraph (1)(a) from4 to 4.30 pm.

David Heath (Liberal Democrat, Somerton and Frome)

The difficulty may be that 4.30 pm would not solve the problem that the right hon. and learned Member for Sleaford and North Hykeham referred to. We are already expecting a statement. If we have an urgent question as well, it will depend on the order of the question and the statement as to which will take precedence.

Crispin Blunt (Conservative, Reigate)

We may have four statements—we are not in a position guess. I was therefore attempting to take an acceptable course. The time could be 4.35 pm, or I would otherwise be content with 5 pm. I also suggest that a 2 pm start on Thursday ought to be acceptable. The Bill is relatively short. The Solicitor-General and I both had the pleasure of serving on the Committee that dealt with the Companies Bill, as indeed did you, Mr. Bercow—that was the first occasion on which I had the honour of serving under your chairmanship—which had rather more than 1,000 clauses. We have four sittings planned for this Bill; in the end, following some negotiation on the Companies Bill, we had 22 sittings to deal with 1,000 clauses. I dare say that we will be able to get through the issues in this Bill by Thursday, even if we take an hour of the total time for considering the Bill by changing the start time from 1 to 2 pm on Thursday. I therefore suggest that we change the start time from 1 to 2 pm on Thursday, accepting that we will finish at 4 pm.

I suggest that today’s start time should be 4.30 pm. However, whether the mood of the Committee will allow for a 5 pm start—

John Bercow (Conservative, Buckingham)

Order. The Committee needs to be clear, as does the Chairman, as to whether the hon. Gentleman is formally tabling an amendment. At the moment, the only formal amendment tabled was tabled in manuscript form, perfectly legitimately, by the right hon. and learned Member for Sleaford and North Hykeham. If the hon. Gentleman wishes to table what effectively constitutes an amendment to an amendment, he needs to be clear and explicit about the precise terms of that proposed amendment to an amendment, with which, I think I am right in saying, the Committee would first deal, before coming to the amendment tabled by the right hon. and learned Member for Sleaford and North Hykeham.

Crispin Blunt (Conservative, Reigate)

I am most grateful to you, Mr. Bercow. In the circumstances, I was seeking merely an indication from around the Committee as to whether the views I was expressing were going to receive support.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend is of course seeking compromise, which I suppose I am in favour of. He does not like a proposed end time of 5 pm on Thursday. I am very reluctant to lose any time from the total available for our deliberations, but if he were to suggest an end time of 4.30 pm on that day, and a start time today of 4.30 rather than 5 pm, we would keep the total amount of time. I would be willing to compromise on that basis.

John Bercow (Conservative, Buckingham)

Order. Is the right hon. and learned Gentleman indicating that, on that basis, or in that expectation, he is prepared at this stage to withdraw his own amendment?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I would be perfectly willing to do so, on the basis that there is another amendment coming forward. If we are going to revert to the Government’s motion, the answer is no.

John Bercow (Conservative, Buckingham)

I am grateful to the right hon. and learned Gentleman for that clarification. On that basis, a revised amendment—an amendment to an amendment—may be forthcoming from the hon. Member for Reigate. The written record will testify to that, although it will only be viewable subsequently. He might wish to continue and then conclude his remarks.

Crispin Blunt (Conservative, Reigate)

I have listened to my right hon. and learned Friend, who, understandably, is not prepared to concede that hour on Thursday. It would seem that having three hours is more important to him than starting at 2 o’clock. In those circumstances, I support his amendment to sit from 2 o’clock to 5 o’clock, but I fear that we might not have a majority in Committee in favour of that. I shall not move my amendment and I shall support his one, but I fear that we will not succeed.

John Bercow (Conservative, Buckingham)

I am grateful to the hon. Gentleman. For the avoidance of doubt, we have one amendment in front of us, tabled by the right hon. and learned Member for Sleaford and North Hykeham.

Mike O'Brien (Labour, North Warwickshire)

I do not want to intrude on the private grief between the hon. Members for Beaconsfield and for Reigate over the times that the Committee will start in the afternoon, or anything like that, but I would like some clarification on the current proposal. Is it that we begin at 5 o’clock on Tuesday and 1 o’clock on Thursday?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

That is not my amendment.

Mike O'Brien (Labour, North Warwickshire)

In that case, this to-ing and fro-ing between Opposition Members about their proposals has left me very much in the dark. I hope that you can give me some clarification, Mr. Bercow.

John Bercow (Conservative, Buckingham)

I am grateful to the Solicitor-General. It is indeed my responsibility to give clarification and I am happy to do so. I read out the amendment proposed by the right hon. and learned Member for Sleaford and North Hykeham, but I shall do so again because there has been considerable to-ing and fro-ing, as the Solicitor-General said.

The proposed amendment is that the resolution of the Programming Sub-Committee be varied as follows: in paragraph (1)(a), leave out “4.00 p.m.” and insert “5.00 p.m.” In paragraph (1)(b), leave out “1.00 p.m.” and insert “2.00 p.m.” In paragraph (2), leave out“4.00 p.m.” and insert “5.00 p.m.”

Mike O'Brien (Labour, North Warwickshire)

Thank you, Mr. Bercow. Opposition Members were invited to the Programming Sub-Committee. I received an apology from the hon. Member for Beaconsfield, who was otherwise engaged, which I accept entirely. However, no concern was expressed in the Committee about the times that were set and the Opposition made no representations.

Crispin Blunt (Conservative, Reigate)

On a point of order, Mr. Bercow, I realise that the Government arrange things differently from the rest of us, but Back Benchers in Her Majesty’s Opposition are allowed their own opinion. My right hon. and learned Friend made a perfectly sensible suggestion, and we are trying to resolve the situation. He was not invited, or appointed to the Programming Sub-Committee.

John Bercow (Conservative, Buckingham)

I am grateful, but that is not a point of order, but a point of debate. The position is as stated.

Mike O'Brien (Labour, North Warwickshire)

Thank you, Mr. Bercow. I have no quarrel with a Back Bencher making a proposal. However, Front Benchers were invited to the Committee—

Dominic Grieve (Conservative, Beaconsfield)

Will the Solicitor-General give way?

Mike O'Brien (Labour, North Warwickshire)

Let me finish my point and then I shall give way. Let us not get too agitated. We are only talking about the timings.

Opposition Front Benchers were invited to the Programming Sub-Committee, which met yesterday and had a brief discussion. No concern was expressed about the times and nothing led me to believe that Opposition Front Benchers would do anything other than accept them. However, I am not seeking to be unduly difficult and as far as I am concerned the main thing for the Government is that we get the Bill out following proper discussion by 4 pm on Thursday. I want to make it very clear that that is our view.

I shall be happy, however, with the Committee’s agreement, to accommodate the concerns of Back Benchers. If the Committee wishes to sit at 4.30 pm today, that is fine with me; I have no problem with that part of the proposal, or with a change of time from1 pm to 2 pm on Thursday. I shall be happy to sit from 2 pm until 4 pm. I am not happy, however, to extend the period over which we consider the Bill.

I seek your guidance Mr. Bercow, but as I understand it the 4 pm out-time is subject to a resolution of the House. We might not have to go back to the Commons to change it, but 4 pm is the time at which I should like the Bill to come out of the Committee. I shall be happy to listen to representations to the contrary, but we need to get on with consideration of the Bill if we are to get it out at the right time.

Dominic Grieve (Conservative, Beaconsfield)

I do rather slightly regret the Solicitor-General’s remarks. I hoped that I had made it clear earlier that I had no criticism of the Government over the matter. I spoke to the Solicitor-General because I knew that I would have difficulty in attending the Programming Sub-Committee. If I had felt at that time that I objected to anything about the programme, I would have said so. I did not. Although I found the 1 pm start slightly unusual, it did not bother me in the least; I was happy to go along with it. However, I did not know about the problems raised by my right hon. and learned Friend the Member for Sleaford and North Hykeham. If I believe that his argument has enough force, I will support it, even if we are defeated in the vote. If his amendment can be accommodated, I would seek to do so. That is no criticism whatsoever of the Government’s approach to the matter.

The Solicitor-Generalrose—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will the Solicitor-General give way?

Mike O'Brien (Labour, North Warwickshire)

Let me respond to the points made by the hon. Member for Beaconsfield, then I shall happily give way. The hon. Gentleman rightly has no criticism of the Government on this occasion. However, I am free to criticise the way in which the Opposition have dealt with the matter, and I have done so.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am seeking compromise, and that is what I have put to the Solicitor-General. I am sorry that he is not prepared to agree to extend the conclusion time on Thursday 14 December from 4 pm to 5 pm; I cannot think why he will not. No doubt he has his private reasons for that. However, what about today? This is more a point of order, Mr. Bercow: what time would we normally finish today?

John Bercow (Conservative, Buckingham)

Ordinarily, we would finish at about 7 pm. That is not a binding rule, but it is customary.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am grateful. May I then continue with my intervention, because I suspected that that was the case. If the Solicitor-General would accede to a proposition that we continue sitting until 8 pm or thereabouts today, I would be content with an out-time of 4 pm on Thursday. The result of that would be that we would lose very little time overall.

John Bercow (Conservative, Buckingham)

Order. Just before the Solicitor-General responds, may I advise the Committee that the matter that the right hon. and learned Gentleman has just raised and his proposal that the Committee sit somewhat later are matters that can be determined informally by the Committee. It is only right for me to say that, although it forms no part of the amendment, the Solicitor-General will have heard the point made in the intervention by the right hon. and learned Gentleman.

Mike O'Brien (Labour, North Warwickshire)

Members of the Committee will have their own views about their appointments this evening. I am not sure when they will have expected the Committee to end and therefore what other appointments they might have. I hear what the right hon. and learned Gentleman says, but I make no commitment with regard to the time at which the Committee will finish its deliberations. There is no obligatory finishing time in the evening, so it is a matter for him whether he wishes to press his amendment. I have no great objection to starting at 4.30 pm this afternoon if that is what he wishes to do, but I remind the Committee that we have now spent 25 minutes of the sitting wasting time in discussing how long it will be. I would rather get on to the substance of the Bill, which is very important. I give way, however, because I know that a couple of hon. Members wish to intervene.

David Heath (Liberal Democrat, Somerton and Frome)

I am getting rather frustrated by the length of the debate on something which should have been easily reconcilable. I hope that perhaps the amendment tabled by the right hon. and learned Gentleman mayin fact be three amendments rather than a single amendment, which will enable the Committee to reach a sensible decision. I also draw attention to the fact that no one should have any expectation as to how long the Committee will sit until this evening, other than having some recognition of the time of completion of business in the main Chamber. I therefore do not see that we have any difficulty with the time available for the Bill. If we can accommodate members of the Committee, surely it should be sensible to do so.

Mike O'Brien (Labour, North Warwickshire)

I hear what the hon. Gentleman says.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I sense that there is now a recognition of the consensus to start a bit later today. The first part of the right hon. and learned Gentleman’s amendment proposes a start a bit later on Thursday, and the second part of the motion, for reasons we all know, proposes that proceedings finish at four o’clock. We have the flexibility this evening and I hope that use will be made of that. Therefore, I support two parts of the amendment and not the third and then we can get on with the business.

Mike O'Brien (Labour, North Warwickshire)

Let us see. Providing that we can discuss or vote on amendments consecutively, if you are content with that, Mr. Bercow, we can deal with each of those amendments in time. Providing that we can do that, I suggest that we proceed and vote on the various times, so that we can make a decision and move on.

John Bercow (Conservative, Buckingham)

I am grateful to the Solicitor-General. I already made the point about the informal understanding that could lead to a later finish tonight. I ought, as a matter of record, to explain that the so-called “get-out time” is not a matter of a resolution of the House; that is a question of the get-out date. Therefore, there is nothing binding, so far as the House is concerned, about the get-out time, although I heard the Solicitor-General’s view that the get-out time should remain as it is.

I intend to proceed as follows. I will ask the right hon. and learned Member for Sleaford and North Hykeham if he wishes to withdraw his existing amendment and to submit a revised amendment, including what I would describe—for shorthand purposes—as the 4.30 point. I do not propose at this point to take any further amendments and, presented with a suitably revised amendment by the right hon. and learned Gentleman that is in order, I propose to put that to the vote.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

On a point of order, Mr. Bercow and in reply to your question, I am prepared to withdrawmy existing amendment, substitute 4.30 for 4 in paragraph (1) and leave the rest of the measure as it is presently drafted.

John Bercow (Conservative, Buckingham)

Can I just be clear that the right hon. and learned Gentleman wishes to continue with that part of his amendment that inserts a 5 pm finish on Thursday?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

No, it seems that at the moment that does not have the support of the Committee. In the interests of our agreement, I would like a 4.30 pm start today and 2 pm on Thursday. I beg to ask leave to withdraw the amendment.

John Bercow (Conservative, Buckingham)

By way of background and for the benefit of Members not familiar with it, I ought to explain that as a result of deliberations on the Floor of the House on 1 November on the legislative process, a number of changes to that process were agreed by the House and have been reflected in revised Standing Orders. That is the background to the motion relating to the reporting of evidence.

Clause 1

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I want to propose that clause 1 does not stand part of the Bill. As I said, my familiarity with Committees is rusty in the extreme but I think that it is in order for me to advance the arguments why the clause should not stand part of the Bill.

The effect of clause 1 not standing part of the Bill is that we would go back to the affirmative resolution procedure, which is provided for in the Criminal Justice Act 2003. Mr. Bercow, you and I, and my hon. Friend the Member for Beaconsfield were very interested in the passage of that Bill, as, no doubt, was the Solicitor-General, who will remember the considerable disagreement that arose between the Houses on what was then clause 42, which became clause 43; namely, whether complicated fraud cases should be held without a jury.

The House reached deadlock. At that stage, there was a bargaining process, to which I was not party, but it was reflected in the speeches made by the then Home Secretary and the Government spokesman in the other place, Lady Scotland, when they laid the affirmative resolution procedure. That procedure was part ofa bargain, which comprised something like the Government not trying to force their proposals forward; they would have very serious discussions with all the interested parties to see whether it was possible to formulate a lay assessor or special jury. It was plain that undertakings were being given to both Houses that very serious attempts would be made to agree a special procedure that did not involve judge-alone trials. That was the basis on which the other place accepted the Bill, and the basis on which it was enacted.

Stephen Hesford (Labour, Wirral West)

The right hon. and learned Gentleman will recall that on Second Reading I asked him if he would be in favour if the Government had come forward with a different procedure of judge and tribunal. He gave me an honest and straightforward answer: no, he would not. In those circumstances, even if the discussions had taken place, the right hon. and learned Gentleman’s position would have been the same. What, therefore, is his point?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The point is that Governments should keep their word. It is as simple as that. Integrity is an important thing in government. This Government have not got a reputation for integrity and this is yet another example of why they have not. They entered into a bargain; they told the House of Commons and the House of Lords what that bargain was, and they are departing from it. It is unseemly and dishonest and we should not be a party to that kind of conduct.

The question is whether anybody has made a serious attempt to become involved with the other parties—

John Bercow (Conservative, Buckingham)

Order. I must ask the right hon. and learned Gentleman to withdraw the term “dishonest”.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I certainly will.

It does nothing for the reputation of politics that a government should give their pledged word to the House of Commons and to the House of Lords and then not deliver on their pledge. I will not say that it is dishonest, simply that it is unseemly and disgraceful, and I hope that that will satisfy the decorum of this place.

There is no doubt what the House of Lords was told, and no doubt what the House of Commons was told. It is in Hansard; I have it here—I have the reports in front of me.

David Heath (Liberal Democrat, Somerton and Frome)

Actually, three parties to that agreement, who are sitting in the Committee at the moment, can confirm the details.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I will sit down soon, Mr. Bercow, so that the hon. Gentleman and my hon. Friend the Member for Beaconsfield can confirm what I am saying. There has been no serious attempt to involve anybody in finding alternative ways forward, which breaches the commitment to this House. For that reason alone, we should go back to the affirmative resolution procedure.

I have one other point, Mr. Bercow—I know that we need to press on. We are seeing this primary legislation simply in order to enable the Government to use the Parliament Act. The right hon. and noble Lord Hunt of Wirral made it absolutely plain that he and our friends would not support this on an affirmative resolution. The Government know full well that they will have difficulties with that resolution in another place and are introducing primary legislation so that the Parliament Act can be applied—and this change in the law, fundamental in its character, can thus be forced through. I happen to think that that is a disgrace.

Therefore there are two reasons for opposing the motion, Mr Bercow. First, although the Government have not been dishonest, they have departed from their pledged commitment to both Houses. Secondly, I deeply disapprove of the Parliament Act procedure.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Of course, there will be agreement between the three of us on these Benches, but the negotiations that led to the insertion of the clause with the affirmative resolution in both Houses was expressly done in order to require both Houses to be able to take part in that agreement—and expressly to avoid a type of Parliament Act procedure which in the end allows one House to prevail over the other.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am grateful to the hon. Gentleman for making that point plain. Indeed, it was correct for him to make that point on the Floor of the House. I have a copy of that speech before me. This is a serious matter. It goes to the integrity of government, and I very much hope that we do not give clause 1 a fair passage.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I, too, have some short but similarly strongly felt views to express. This important matter is controversial because it is a move away from the principle that, in England and Wales, there should be a jury trial for all serious offences. That is why, when the relevant legislation was going through the House in 2003, it was important for the Government to get their Bill, but it was also important for the Opposition parties—and some Government Back Benchers—to ensure that the Bill was passed without a proposal to get rid of jury trial in England and Wales for this category of offences.

We had many robust debates in both Houses, and the Lords rejected the Government’s proposal on several occasions. Mr Bercow, you will remember that this has been round the course before in earlier guises. Finally, with the clock against us at the very end of the Session—literally, a day or two before prorogation—there were extremely intensive discussions. In the end, it was proposed to have a double lock on a proposal to move to jury trial: the House of Commons and the House of Lords both needed to agree it. That is contained in the section that clause 1 proposes to amend by taking out the double lock.

Three things follow from that. First, when discussing whether there was a way for the Government to have their Bill in general but not this particular desired part, we looked at various options and there was negotiation through day and night to see what accommodation could be given. In the end, this was found to be the most convenient outcome, so it was not an outcome that did not ultimately command the agreement of both Houses.

Secondly, it was clear—and the references are in Hansard, in exchanges between the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett) and myself—that there were other conditions to be fulfilled, with the double lock and negotiations. There is, to put it gently, debate on whether the envisaged formal consultations ever happened; I do not want to elaborate at this stage. In our view, they never happened in the way that we expected or envisaged. There was a consultation of sorts, but it was never sold at the time as what we had agreed. Indeed, we were surprised to be then told that that had been the expected consultation. In our view, therefore, the second part of the proposal was not delivered at the time.

My third point is that there have been discussions with the Attorney-General and the Solicitor-General. I know that the hon. Member for Beaconsfield has had such discussions on more than one occasion, as have I. The discussions were not meaningless—alternatives were considered, but in the end agreement was not possible and the block therefore remains. We sought agreement irrespective of the formal consultation, but it was not possible, and we are back where we started.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman was party to the agreement and it was anticipated that he would be party to the following discussions. He will remember that the then Home Secretary said:

“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, 20 November 2003; Vol. 413, c. 1027.]

Will the hon. Gentleman say whether he has been involved in any detailed discussions with the Government in fulfilment of that pledge?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The answer is that I can say expressly what happened: there was never any formal consultation with either of the Opposition parties, nor with the judiciary. There was a seminar in the Lords to which certain people were invited, but that was all, and it was never billed as such a consultation. There were then separate bilateral conversations at the invitation of the Attorney-General—both to the Conservative party and to me. So conversations have occurred, though not quite as we expected. The conclusion is the same, however: there was no agreement.

As the hon. Member for Wirral, West said to the right hon. and learned Gentleman, there was no presumption that alternatives did not exist—we considered alternatives. For example, we examined the possibility of smaller juries, and we considered juries with particular qualifications or characteristics. Some of us, however, were unwilling to move from the principle that there should be a jury trial, or a trial with jurors, to decide questions of fact. The double lock is intended to ensure that both Houses must be satisfied on the question of departing from the principle of jury trials in fraud cases in England and Wales. They have not been so satisfied. The right decision was made previously, and that decision remains the right one now. The clause should therefore be rejected because it would change a very clear political, parliamentary and constitutional agreement.

Dominic Grieve (Conservative, Beaconsfield)

I, too, was party to the discussions at the conclusion of the passage of the Criminal Justice Billin 2003—in particular during the stand-off disagreement between the House of Lords and the House of Commons on certain parts of that Bill. I have absolutely no doubt that the way in which the matter was resolved—in particular the introduction of the double-lock mechanism—was a direct consequence of the impasse that had been reached between the positions of the two Houses. There were numerous late night negotiations that covered different topics. At the end of the day, virtually every aspect had been satisfactorily resolved, except for the Government’s desire to remove juries from certain fraud trials.

Let me make the position clear, because I recollect the explicit words of my right hon. Friend the Member for Haltemprice and Howden (David Davis) to the Home Secretary, outside the Chamber. He said that the Opposition were prepared to collapse the Criminal Justice Bill if the Government persisted in their desire to retain section 43, because we felt extremely strongly about it. It was in response to that that, after a time of meditation, the Government proposed what I assumed at the time to be a face-saving device to allow a graceful withdrawal; indeed it was almost explicitly represented to us as that. That was the double-lock mechanism, and it was designed to ensure that section 43 would not be implemented without the consent of both Houses of Parliament.

I entirely agree with my right hon. and learned Friend the Member for Sleaford and North Hykeham that the removal of the double-lock mechanism is undesirable because we do not wish to end up with a Parliament Act position. The Government appeared to concede, as I understood it at the time of those negotiations, that only the consent of both Houses of Parliament would be satisfactory for the implementation of the proposals. These proposals are almost identical to the original ones, apart from the substitution of “High Court Judge” for “Crown Court Judge”. I can think of no good reason why the double-lock mechanism should not remain.

One of the startling aspects of this Bill is that, according to clause 4, on commencement, it appears that the Act is to come into force at the end of a period of two months beginning with the day on which it is passed. As I highlighted on Second Reading, even if this Bill were to reach the statute book, there would be some procedural aspects that needed to be resolved by way of new court regulations before it could be implemented. I am startled to note that it is blithely assumed that eight weeks after this Bill is passed by the Houses of Parliament the first applications can be made to the Lord Chief Justice. The procedure exists for conducting such trials without further difficulty.

As we highlighted on Second Reading, there will be procedural issues about how to conduct a trial without a jury where the judge has to make rulings on law, possibly on public interest immunity material, and at the same time not be influenced in the decisions that he makes based on the facts. I assume that, if this unfortunate Bill were to be implemented, at some point the Government would tell us what they propose. There are, therefore, powerful reasons for having a commencement order. As the commencement order that we agreed back in 2003 was a resolution of both Houses of Parliament, it seems to me that it is a very good idea to keep that in.

David Heath (Liberal Democrat, Somerton and Frome)

As I did not have the opportunity to do so on my earlier interventions, may I say what a pleasure it is to serve under your chairmanship, Mr. Bercow?

The right hon. and learned Member for Sleaford and North Hykeham is absolutely right when he says that this is a matter of integrity. It is the integrity of the Government that is in question because I, too, was a party to the discussions that were held with the Home Secretary in his room behind the Speaker’s Chair very late into the night when we were discussing the Criminal Justice Bill, as it then was.

It was absolutely clear to all who were involved that the proposal was supposed to have a particular effect, the double lock. It was absolutely clear that the Government were, in good faith, to undertake discussions with the Opposition parties to see if there was a consensus view on dealing with complex fraud cases. It is equally clear that, by virtue of this clause, the Government are going back on the double-lock mechanism and, secondly, that no such meaningful consultation between all parties took place. Instead we had this absurd seminar in which the Attorney-General in another place invited a few of his chums round to talk about jury trial in an amorphous and unstructured way. I am not sure about the Conservative Front Bench, but members of this Front Bench who speak for the Liberal Democrats on home affairs, on constitutional affairs or in respect of the Law Officers in our House were at no time asked to attend, invited to attend or even told of the existence of this seminar.

Dominic Grieve (Conservative, Beaconsfield)

I did not touch on the discussions in my own remarks but I am on the record on many occasions as saying that we did not consider the seminar to be the “discussions and negotiations” that the Government had offered, and we were totally unaware that that was in fact the only offering that was going to be made.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman, who confirms my view. We are left with a rather unpleasant taste in the mouth from the whole episode.

The one area in which the Government have been true to their word has been the undertaking that they gave a short time ago in another place not to use the order-making process that was outlined in the 2003 Act to proceed with the matter, but to bring it back as primary legislation. That is why the Bill is before us. For that, at least, I applaud them. However, many of us feel that it is brought before us in this form thanks not to altruism on the part of the Government but because they know perfectly well that they would not receive the consent of the other place to secondary legislation. In using the primary legislative route—particularly through a short Bill such as the one presented to us today—they accept that they will not get the measure through in this Session, but open up the opportunity of using the Parliament Acts to force it through against the strong arguments that will, I suspect, be adduced in another place.

We are left with what I think is a rather underhand procedure to achieve an objective that the Government undertook not to try to achieve by those means. That is a heavy charge to lay against the Government. The other matter that is pertinent, given that we are considering clause stand part, is the timeliness of the proposals in any case. I listened carefully to all the remarks made on Second Reading. At no time was any cogent argument put forward that circumstances had changed since our discussions on the Criminal Justice Bill in 2003.

In fact, if there were arguments of timeliness, they would be in the reverse direction, because we have had changes in procedure and changes to the definition of fraud, by virtue of the Fraud Act 2006, which we dealt with in the last Session. We have had the interesting experience of observing from afar very significant fraud trials under another jurisdiction—the common law jurisdiction of the United States of America, which has retained jury trial for complex fraud and appears to have no difficulty whatsoever in securing convictions on that basis. We are still, therefore, at a loss to know why the Government persist in the view that there is a difficulty that can be solved only by the abolition of an ancient right of the people of this country in respect of complex fraud.

For all those reasons, we would be absolutely right not to allow clause 1 to stand part of the Bill. In fact, if it were possible for the Committee to vote out every single clause of the Bill and to ask you, Mr. Bercow, to report that the Bill had been deleted in Committee, I would feel that it had done its work well.

Mike O'Brien (Labour, North Warwickshire)

The clause is important. It removes the obligation for there to be an affirmative resolution before commencement and paves the way for the implementation of section 43 of the Criminal Justice Act 2003. That allows for the prosecution in serious and complex fraud cases of persons before a judge sitting alone without a jury.

I have listened with care to the debate. I shall deal first with the procedural point raised by the hon. Member for Beaconsfield, then look at some of the points that were raised about the consultation before saying something about the substance.

Clause 4 will commence the Bill, rather than implement section 43 of the 2003 Act. It will amend that section, but there will need to be a commencement order to bring the section into force. I hope that that deals with the hon. Gentleman’s procedural question and his concerns about regulations and so on.

It was never intended that there should be a formal consultation such as those on White Papers, Green Papers and legislation. Our view was always that the Bill would provide an opportunity for representatives of the Opposition to meet Ministers to discuss whether there was room for agreement on the way forward on non-jury trials. To facilitate that, the Attorney-General organised a seminar, which was held in January 2005 and attended by spokespersons from the Opposition. The hon. Member for Somerton and Frome said that the Liberal Democrats were not in attendance. Well, they were invited, and Lord Thomas of Gresford attended. I understand that he is a Liberal Democrat spokesman.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Solicitor-General give way?

Mike O'Brien (Labour, North Warwickshire)

I may have misunderstood the hon. Gentleman and, if so, I shall allow him to correct me.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Solicitor-General. He said that it was never understood that there would be formal consultation. By whom? He was not party to the agreement, but those of us who were understood clearly that there would be formal consultation.

Lord Thomas of Gresford was invited, as a senior lawyer in the House of Lords, to a seminar organised by the Attorney-General. That is very different from inviting the Liberal Democrat Front-Bench spokespeople in the Commons to a formal consultation, on which we had a clear undertaking from the Government. Does he not understand that?

Mike O'Brien (Labour, North Warwickshire)

I simply do not agree with the hon. Gentleman. I understand his point perfectly, but over the years there have been repeated opportunities for broad consultation on the Auld report, the Roskill report and so on. The matter has been going on for decades, never mind years. Professionals, the public and others have had ample opportunity to express their views over many years. The Government’s intention, which was always made clear, was that there would be an opportunity for Front Benchers of the main parties to come together and find out whether there was room for agreement. A seminar was held, to which not only Front Benchers were invited—

David Heath (Liberal Democrat, Somerton and Frome)

We were not.

Mike O'Brien (Labour, North Warwickshire)

The hon. Gentleman keeps saying that his Front Benchers were not invited. My understanding is that they were.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It is nonsense to debate matters of fact but, just for the record, as far as I am aware no invitation came personally to my hon. Friend the Member for Somerton and Frome or myself. Lord Thomas, who was a spokesman in the Lords at the time, was invited, and he accepted and went along. As far as I am aware, the invitation to something billed as the consultation, following discussions with the Home Secretary the previous autumn, was not extended to Front Benchers in both Houses.

Mike O'Brien (Labour, North Warwickshire)

My understanding was that the hon. Gentleman had been invited, but he tells me that he was not. I shall ask my officials to check whether an invitation went to him—perhaps he did not receive it. I understand that the hon. Member for Beaconsfield accepts that he was invited.

Dominic Grieve (Conservative, Beaconsfield)

I was certainly invited, but I did not understand from the invitation that it was the formal consultation procedure that the Government had promised. I thought that I was being invited to a seminar to consider the issue. The fact that it was the one and only consultation was not spelt out.

Mike O'Brien (Labour, North Warwickshire)

I do not accept that a formal consultation, giving yet another opportunity for public discussion, was either necessary or promised. I am not sure what on earth the hon. Gentleman expected the seminar to be—it was billed clearly as a discussion on serious fraud trials. Its substance dealt with the options available, such as a single judge, a judge with assessors and various other alternatives in order to resolve what everyone accepts, I think, is an issue—the length and manageability of serious and complex fraud cases.

The seminar was held and views were expressed, not only by Front Benchers from the two main Opposition parties—they were representatives from the Lords—but by others who were present. Those were fed into the Government’s consideration of how to proceed. We took the view that it was unlikely that the other place would pass an order in relation to section 43. Following further thought, we decided that it would be better to amend the 2003 Act.

I listened to the rather agitated hyperbole—if I may call it that—from the right hon. and learned Member for Sleaford and North Hykeham about how we have proceeded. I think that for the Government to bring forward new primary legislation, which will be considered fully in this House and another place, is a perfectly honourable and proper way to proceed. Hon. Members will have the opportunity to express their views, as they have done and will continue to do, in the course of our discussions.

I shall move from process to substance.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

For the record, I have seen a note on the seminar. The Solicitor-General said that the Government formed the view after the seminar that the House of Lords would not agree to trials without jury. In the seminar, was there a unanimous, or significant majority view about an acceptable alternative?

Mike O'Brien (Labour, North Warwickshire)

The view that we needed to bring forward primary legislation was not formulated immediately after the seminar. The hon. Gentleman might recall that we debated the matter in the Chamber in considering an order. We decided that it was unlikely that it would get through the other place and, therefore, brought forward primary legislation.

On the substance of the hon. Gentleman’s point, at the end of the seminar, it was clear that we did not have consensus. However, most people who spoke thought that if we moved to non-jury trials, a single judge would be the best approach, although there was not a vote. Other people were in favour of a judge with assessors or small juries. Different views were expressed. However, most people who spoke indicated that if we were to move to non-jury trials, a single judge would be better.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am listening to the Solicitor-General carefully. My impression is that the majority of those who spoke were not in favour of departing from jury trials.

Mike O'Brien (Labour, North Warwickshire)

I was not at the seminar, so I regret that I cannot tell the right hon. and learned Gentleman whether his view is correct. I understand that there was substantial support during the seminar for both points of view. There were those who took the view that jury trials should continue, even in serious and complex fraud cases, and those who thought that the system should change. As far as I am aware, no vote was taken, so I cannot deal with the point that he makes.

I shall deal now with the clause. It is important, because it repeals the requirement for an affirmative resolution, which means that section 43 will be amended. As a result, we will be able to bring about non-jury trials, following an appropriate commencement order. Trial without jury, under section 43, will relieve the excessive burden on jurors, who have their lives disrupted for months on end. At the same time, the provision will allow the full criminality of the most serious cases to be laid out, to ensure that defendants face charges that adequately reflect the totality of the accusations against them. Such cases will be dealt with more efficiently, because the judge sitting alone will be able to read evidence that otherwise would have to be presented orally, at length, to a jury. The need for indictments to be severed or simplified would be lessened.

Bob Neill (Conservative, Bromley and Chislehurst)

It is a pleasure to serve under your chairmanship, Mr. Bercow.

Has the Solicitor-General had discussions with the Lord Chief Justice and the presiding judges of the circuit about the extra personnel that would be required by the Queen’s bench division, to make available sufficient High Court judges to try the cases? Has he had discussions about the flexibility that will be required by HM Courts Service in listing to accommodate cases that are to be tried alone? Does he have any view on what support for these proposals exists among the judiciary?

Mike O'Brien (Labour, North Warwickshire)

The judiciary will no doubt express its own views, but I think that I can say that there is support among many senior judges. No doubt, other judges take a different view. As in any group of people, there will be differing views. We know, from Lord Justice Auld’s report and the views expressed on a number of occasions by members of the judiciary, that there are those who support the proposals. The Lord Chief Justice will have to look in due course at the availability of High Court judges. We can discuss that matter when we reach that point of the Bill. To answer the point, there are differing views on the bench; of that I am sure. There is support for the change, as well as opposition to it.

It is important that the judge should be able fully to look at all the evidence. It is not our intention that the change to section 43 should be the thin end of the wedge of an attack on jury trials, as some have suggested. The provision will affect only a tiny number of exceptionally long and complex serious fraud cases. The Government have no plan to go further than is already provided for in section 43. The other provisions, in part 7 of the 2003 Act, have, by and large, already been implemented. Section 43 seeks to deal with a specific, fundamental problem in serious and complex fraud cases, namely, the combination of an enormously long trial, which imposes an intolerable burden on jurors, and a failure to achieve justice. We therefore need to move forward with this change.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I want to make a point in response to the Solicitor-General. I make no complaint that he referred to my comments as “agitated hyperbole”. Agitated? Perhaps they were, because we are talking about a scandalous matter. Hyperbole? I think not, because I shall demonstrate that there has been a clear departure from plighted commitments.

First, let us examine the nature of the seminar which, surprisingly, the Solicitor-General did not attend. [Interruption.] If the hon. and learned Member for North Warwickshire was not Solicitor-General at the time, I withdraw that remark.

Mike O'Brien (Labour, North Warwickshire)

I would have attended the seminar if I had been in a position to do so, but I was not Solicitor-General at the time.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I stand corrected and I am prepared to acknowledge that I am at fault. However, we know the nature of the seminar as described by the Solicitor-General: it was a gathering at which a number of people were not present. I believe that the hon. Members for North Southwark and Bermondsey and for Somerton and Frome were invited but I understand that my hon. Friend the Member for Beaconsfield was not aware of it. It constituted the formal consideration promised by the then Home Secretary, who said:

“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. We are able to look at that in relation to the SFO in a way that Roskill could not. In that light, I will not press for implementation of the clause.”—[Official Report, 20 November 2003; Vol. 413, c. 1027.]

What was promised on the Floor of the House was a comprehensive consultation involving the two main Opposition parties and the other responsible stakeholders, which is the phrase now used. What has been described to us clearly does not fall within that description.

Dominic Grieve (Conservative, Beaconsfield)

I was unable to attend the seminar because I was unaware of its nature when I received the invitation and I had a prior commitment. My noble Friend Lord Kingsland attended, but at the end of the seminar he still did not appreciate that it was the formal consultation that the Government had offered.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have the greatest respect for my noble Friend Lord Kingsland and if he did not understand that it was the formal seminar promised by the Home Secretary of the day, one can be sure that no one else did either. What is certain is that the consultation promised by that Home Secretary was not delivered.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to make an obvious point. The present Solicitor-General and the Attorney-General occasionally telephone and ask me to meet them about something. Discussions take place between the offices, convenient dates are fixed and there is no doubt that the conversations are intended to be formal and on the record; officials attend, too. If there had been a telephone call to the hon. Member for Beaconsfield or to me saying, “We really need you at this seminar,” we could have rearranged the date, but it never had that status in the conversation with Opposition parties. That is my point.

There may have been invitations to a seminar and there may have been discussions but there are many such occasions, as the Solicitor-General indicated. We were not aware that something of such formality was taking place or we would have attended, or sought another date when we could have had those discussions.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman’s intervention is extremely important. I have often criticised the hon. Gentleman, but never for being otherwise than assiduous—sometimes he is too assiduous. Had he had the slightest inkling that this was the formal seminar that he had been promised he would have been the first to be there; he would have been there throughout and he would have talked at very great length. None of those things happened, and that is powerful evidence in support of my proposition.

However, I have a much more serious matter to raise: we heard the Solicitor-General’s explanation of what the commitment was and I found it impossible to reconcile his understanding of the formal commitment with that given by the Home Secretary of the day. That being so, I will remind the Committee what that Home Secretary said in support of accepting the affirmative resolution procedure.

The hon. Member for North Southwark and Bermondsey asked the then Home Secretary the following:

“Is it 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?”

The then Home Secretary 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 that I have mentioned, and that could be incorporated in one or other of the two measures that have ... been consulted on, or will come before the House in the Queen’s Speech. That safeguard is appropriate. I give a binding undertaking that we will follow that agreement”. —[Official Report, 20 November 2003; Vol. 413, c. 1028.]

The only thing that would be consistent with this Bill passing into law is if it applied to Northern Ireland. Everything else would be a breach of that undertaking.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

For the record, and because the event was quite an important bit of political history, thehon. Member for Beaconsfield is absolutely right. He and his right hon. Friend made the view of the Conservative party as a whole about the Bill absolutely clear, as we did for the Liberal Democrats. It was clear that the Government were having to concede because they would not have got their legislation, and time was running out. That too is consistent with them needing to make that significant change of position, for otherwise the Bill would have fallen.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Absolutely right. If anyone wants to confirm what the hon. Gentleman has just said, it is in column 1030 for that day, where my hon. Friend the Member for Beaconsfield made it plain that what we were then witnessing was, in his own words, “a climbdown”. He went on to make it absolutely plain that the other place would not pass what was then clause 42. We are dealing with a departure from a commitment given on the Floor of the House, which is an extremely serious matter.

I have one other point to make. The Solicitor-General has, from time to time, referred in Committee and on the Floor of the House to the advantages of putting full criminality before the court. Anybody who has practiced in the criminal courts knows that one is seldom obliged to do that, and generally speaking it is a jolly good thing not to put full criminality, as it overloads indictments. Actually, one should identify those charges in respect of which there is good evidence, put the leading charges into the indictment and confine the case and the evidence to them. That is how to compress cases within manageable size, and it leads to a proper result, in that the appropriate penalty is then passed. To load the case with a multiplicity of indictments, simply to expose full criminality, has been deprecated by the judiciary time and time again. It is best dealt with, if at all, by offences being taking into consideration, or by the new procedure contained in the Criminal Justice Act 2003, which enables trial judges sitting alone to look at what were previously those TICs.

The idea that you should, as a matter of course, put full criminality before a court is an absurd proposition and can only come from a Government who have little experience of criminal law.

Mike O'Brien (Labour, North Warwickshire)

Let me briefly respond to a couple of the points made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). There has been no departure, in our view, from any commitment that was given. The right hon. and learned Gentleman quite rightly read out the list of individuals and organisations that would be expected to contribute: the Attorney-General, the Serious Fraud Office, the Opposition parties, and the senior judiciary. A seminar was held to ask them for their views.

I do not know quite what the representatives of the Liberal Democrats and Conservatives thought they were going to when the Attorney-General, following the passage of the 2003 Act and in light of the fact that there had been a commitment to consultation, invited them to a discussion of how non-jury trials might take place. What on earth did they think they were doing if they were not going as part of the consultation? It beggars belief that the Opposition now claim that they sent respected senior lawyers to the very type of meeting and discussion promised by the Government, but that they did not know what they were doing. Do they often go along to meetings at which they do not know what on earth they are doing? It is preposterous to suggest that the leading spokesmen of the Opposition parties did not know what they were doing in going to that kind of seminar. Did they think it was an academic discussion, or some sort of light entertainment? What on earth did they think it was?

They knew perfectly well that it was a serious discussion about a very serious issue, because it had been the subject of legislation. The Government said that there would be further consultation, and there was. If certain spokesmen for the Opposition could not make it, that is fine; it is their decision. If certain spokesmen turned up, expressed a view, engaged in the discussion and let their views be known, before walking away not knowing what on earth they had been doing at the discussion, that is a problem for the Opposition parties. They need to look at the nature and qualities of some of their spokesmen, because I do not think that the position adopted by them is in the least bit acceptable. They knew that it was a consultation on a serious issue. They were involved in it. They may not have liked the outcome, or decided that it was inadequate, but I do not accept that they did not know what they were doing. That beggars belief.

Subsequently there have been meetings between spokesmen for the Opposition, myself, the Attorney-General and other hon. Members from the Conservative and Liberal Democrat parties. Those discussions resulted in the clear view that we cannot agree on the matter. Therefore, we need to go back to seeing whether the House is prepared to pass legislation in order to amend section 43 or the provisions dealing with its implementation, to ensure that we can move forward. The Government always made it clear that it was our intention to move forward.

The right hon. and learned Member for Sleaford and North Hykeham raised a point about a commitment made by a former Home Secretary. I have the words before me. The hon. Member for North Southwark and Bermondsey said:

“Is it 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?”

It was clear then that the Bill had been amended so that an order would need to be passed by both Houses. That provision was there for a purpose, and everyone knew what it was. The implication of the hon. Gentleman’s question was whether there would need to be further legislative discussion and voting on the matter before section 43 could be implemented. As was clear then, it has always been the Government’s view that further legislation would be needed and we have no problem with that. The then Home Secretary, my right hon. Friend the Member for Sheffield, Brightside, said that he was prepared to give an undertaking to that effect, and we have kept to it. Given that the order that we sought to introduce was unlikely to be passed, we have now introduced further legislation.

The then Home Secretary’s response to the comment was:

“I am prepared to give that undertaking.”

As I have explained, the undertaking has been kept. He continued:

“It is part of the agreement that we will retain the clause, but move forward towards looking”—

“looking” is the important word there—

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

That undertaking was kept—we looked at the alternative solutions. There was a seminar, and there were subsequent further meetings to discuss the various options. We have complied with the undertaking and I do not accept that there has been any breach of the sort that the right hon. and learned Member for Sleaford and North Hykeham has suggested.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is one of the most pored-over exchanges in which I have ever been involved. The Solicitor-General was, no doubt inadvertently, slightly misleading about the timing. The exchange was in November 2003, at the end of the Session. The then Home Secretary mentioned examining progress to consider where we should go next, and he made the statement that we have all been quoting. There was then a whole year, during which we had a Queen’s Speech, and there were measures, but there was no formal consultation. The seminar was in January 2005, and it had nothing to do with the proposals that he had referred to in his response, because the parliamentary year had been and gone before the seminar came around.

Mike O'Brien (Labour, North Warwickshire)

I do not accept that I have misled anyone. I indicated that the seminar was in January 2005—on the 24th, in fact. I gather that the invitation to the Liberal Democrats was not made to the hon. Gentleman, but to John Burnett, who I think may now be Lord Burnett. He was then the legal spokesman for the Liberal Democrats and the invitation went to him. [Interruption.] The hon. Gentleman did not get the invitation but the Liberal Democrats did—there is no doubt about that.

When the seminar took place we had not sought to introduce the order, but clearly it was always our intention that at some point we would do so, or in any event seek to implement non-jury trials. Therefore, when we held the seminar it was the Attorney-General’s intention that that should constitute the consultation opportunity for the Opposition. Some Opposition spokesmen from another place decided to attend, but spokespersons from the Commons decided not to attend or were unable to for various reasons. I make no criticism of that, but it does not invalidate the consultation process and it should not cause problems for the Government. We believe that the process was perfectly proper and sensible.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Solicitor-General is seeking to reconcile what he is doing today with the commitments given by the then Home Secretary. Will he help the Committee in the following way? He would accept, I believe, that the Conservative spokesmen in the Commons and in the Lords—my hon. Friend the Member for Beaconsfield and Lord Hunt of Wirral—made it plain that they would never vote for the affirmative resolution in the form of clause 42. Did the Home Secretary indicate at any stage that, if he could not obtain agreement or find a way forward using special assessors or a special jury, he would seek to ram through the provisions of clause 42 by subsequent primary legislation? Did he ever say that at any stage? I of course have his statement in front of me.

Mike O'Brien (Labour, North Warwickshire)

I was not privy to his personal thoughts on the matter, but the intention of the Government was that we take the matter forward by way of order, and I assume that that was the Home Secretary’s intention at that stage.

During the year, we brought an order before the House, which again, by a significant majority, expressed forcefully the view that it wanted to see progress in dealing with the problem of complex and serious fraud trials. It therefore passed the order. It became clear, however, that the combined votes of the Opposition in the other place were likely to frustrate the passage of that order. In those circumstances, the Government took the view that the better way of proceeding was by way of primary legislation, and that is why we have brought the Bill before the House.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

It follows from what the Solicitor-General is saying that at no time was it suggested by the former Home Secretary, when he outlined the agreement to the House of the Commons, that there was a possibility that primary legislation would be used to force through clause 43. Had he done so, it might well have been the case that the Opposition parties would have defeated the Criminal Justice Bill, as it then was.

Mike O'Brien (Labour, North Warwickshire)

I am not sure what point the right hon. and learned Gentleman feels that he has made by saying that. However, if he feels happier by reason of having said it, I am pleased. I welcome anything that makes him happier about this Bill. Sofar as we are concerned, however, the clause has been brought forward honourably and properly. We have done it by way of primary legislation, we have subjected it to full and proper debate and we believe that the changes that it will enable us to undertake need to be made if we are to have a system of justice that better delivers effective justice. That is what the people of this country want. I hope that we can now vote on the clause.

Clause 2

Douglas Hogg (Conservative, Sleaford and North Hykeham)

On a point of order, Mr. Bercow, I would appreciate some guidance. Clause 2 amends section 43 of the Criminal Justice Act 2003. The new clauses, for the most part, seek to do precisely the same thing but in different ways. I understand that they will be debated in due course, as you have set them out on the marshalled list. I want to be sure that if we do not debate the new clause stand part motion we will not prejudice our ability to debate subsequently the new clauses. I am not clear about that, and should like to be before we debate the new clauses.

John Bercow (Conservative, Buckingham)

There is no such problem. It is perfectly legitimate for us to debate Clause 2 now and, indeed, subsequently to debate and in due course to vote upon each of the new clauses. The order as set out is the order that we can and should follow

Dominic Grieve (Conservative, Beaconsfield)

Clause 2 seeks to amend Section 43 of the Criminal Justice Act 2003 to substitute for “Crown Court Judge” a “High Court Judge” conducting the trial.

I would not like the Bill to go through this Committee without the Solicitor-General explaining the Government’s reasoning in deciding to entrust these trials to High Court judges. My reason for saying this is that I noticed the Solicitor-General picking his words with some care in the course of the earlier debate about the extent to which the judiciary might support these proposals.

I am not in a position to conduct a survey of all Her Majesty’s judges, but I have yet to come across a single Crown court judge who did not consider, first, that jury trial was a perfectly satisfactory vehicle for dealing with long and complex fraud cases and, second, a Crown court Judge who did not think that the worst possible thing that could happen to him was to be asked to sit and try a fraud trial on his own. As I hinted in my earlier interventions in Committee, this is because there are all sorts of procedural problems surrounding such a trial process which judges—they have communicated with me informally about this in large numbers—consider to be massively unsatisfactory.

If a judge should express the view that they are sure a person is guilty in a complex criminal case that leads to a substantial period of imprisonment and should it subsequently transpire, whether through the appeal process or by the Criminal Cases Review Commission, that some further evidence comes to light which shows that the wretched defendant was in fact telling the total truth when he denied his criminality, this will have a serious adverse impact on the judge’s credibility and standing. This is almost inevitable, however good a judge is at carrying out his work. This highlights why involving the judiciary in factual decision making to a criminal standard of proof in serious cases is a very dangerous road to take.

The Government has taken the view that, in the circumstances, it should be High Court judges who should be carrying out this procedure and not Crown court judges. In fairness to the Government, that was a proposal that came from the Opposition Back Benches at the time of the 2003 Criminal Justice Act because it was suggested that High Court judges would be more familiar with the procedure of dealing with trials on their own than the average Crown court judge.

That in itself, however, does not fully explain the Government’s reasoning and therefore I would like to take the opportunity of probing so that we can have fully on the record why the Government have decided that this is the appropriate course of action to take. I think that would be very useful and I hope the Minister can enlighten the Committee on the matter.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have a linked question, and a separate question that is germane to new clause 2. I take up the question asked by the hon. Member for Beaconsfield. Have the Government had consultations with the High Court bench on whether it is ready and preparing for the eventuality of Parliament agreeing to this measure? More particularly, do the Government envisage certain types of High Court judges doing the work rather than judges taken at random from the court? For example, will commercial judges be asked to do the work? Some reports suggest that there will be a list of designated High Court judges who will do this sort of work.

That gives rise to a matter that has caused some anxiety in previous debates and elsewhere: that there will be judges who are known to be the judges of fact and law in these cases. By definition, because they will be the only ones in the country who have that responsibility, they might be more exposed to threats from people who cannot knobble juries but who will be able to spot judges who might try their case.

My second question relates to clause 2(2), which amends section 48 of the Criminal Justice Act 2003, and refers to the wording not just in respect of fraud trials but of trials that would be heard by a single judge where there has been jury tampering or where the jury has been discharged for that reason.

When we debated the Criminal Justice Bill in 2003, it was accepted by Parliament, including the House of Commons, that the one exception to a jury trial in serious cases should be in the event of the corruption of a jury, where there was a safety issue, or when there was a suspicion that jury tampering meant that there could not be a fair verdict on fact. My question to the Solicitor-General is, has that part of the Act been implemented?

The Solicitor-Generalindicated assent.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Solicitor-General nods, which confirms what I thought, that it has been implemented. If so, on how many occasions has the measure been invoked, if at all? If it has not been invoked, is it simply because no application has been made or that no such circumstances have arisen? I am seeking an update on this part of the proposal, because it is novel legal ground and there has been no chance in the formal domain, on the record in Parliament, to learn whether that has happened or any chance to discuss the progress towards implementation.

Bob Neill (Conservative, Bromley and Chislehurst)

I want to probe the Solicitor-General further on similar lines. I refer to my earlier intervention on the impact of the proposal on the judicial personnel who will be required to deal with these matters. I agree with my hon. Friend the Member for Beaconsfield that the suggestion that these matters are dealt with by a High Court judge came largely from the Conservative Benches, but I want to be sure that the Solicitor-General and the Government have thought through the practical implications.

In murder cases, for example, it is possible to release the case from a High Court judge to a designated senior circuit judge—ticketed judges, as they are called in the profession. I take it that it is not intended that that should be the case in this measure, otherwise it would be self-defeating. Or would it? The ability to release a murder case to a senior circuit judge is a very useful and flexible tool in respect of listing and judicial availability. The lack of availability of ticketed judges in murder and rape cases is one of the constraints that cause delays in hearing cases.

It is important to ensure that there is not a similar delay in the cases we are discussing if a suitable judge designate is not available, a matter to which the hon. Member for North Southwark and Bermondsey referred. If these cases are not to be released, how do we get round that lack of flexibility? It is ironic that it is now possible for senior circuit judges to sit in the Court of Appeal. They are very often ticketed to try murders, but it does not appear that they would be ticketed to try serious fraud cases. That might be an unintended consequence, but it seems to be a paradox. Will it be resolved through the Bill or regulations?

What consultation has there been, not just with the senior judiciary, but, particularly, with the Council of Circuit Judges, whose members might have a useful view, and presiding circuit judges, who will have a responsibility for the administration and listing of such cases? Those matters are as yet unclear, and I would be grateful to the Solicitor-General if he could provide clarification.

Mike O'Brien (Labour, North Warwickshire)

Clause 2 provides that applications under section 43 of the Criminal Justice Act 2003 and the resulting non-jury trials would have to be heard by a High Court judge, rather than a Crown court judge. The change was proposed during various discussions and the Government have said that we are disposed to accept it. The status of High Court judges provides an added safeguard and we felt that the proposal was one to which we could accede.

I listened with great care to the comments made by the hon. Member for Bromley and Chislehurst on the nature of the High Court judges who might consider such matters. The identification of appropriate judges to hear such cases would be a matter for the President of the Queen’s bench division. The hon. Gentleman raised an interesting point: some senior circuit judges can try not only murder cases, but very complex ones, and some of them might be more than competent to deal with complex and serious fraud cases sitting alone. That is worth thinking about. I do not want to make public details of the recent discussions between the Lord Chief Justice and the President of the Queen’s bench division, but it is safe to say that a point was made similar to that raised by the hon. Gentleman. I would like to think a little more about it. We might be able to identify certain circuit judges who would be capable of dealing with such cases sitting alone—some very able circuit judges come to mind, although, perhaps not all of them. I shall think about that, because he made some good points.

There are, I believe, 108 High Court judges. That limit is set in statute so we will have to take into account the availability of judges. We do not anticipate that the number of trials that are likely to take place in a year will be very great—we estimate an average of up to six. In the past, we have suggested that it could be as many as 15 or 20, but that is a remote prospect. However, given the various demands on High Court judges and given that such trials, even if they are few in number, will take a considerable length of time, there might well be pressures. It bears thinking about, so I listened with great care to what the hon. Gentleman said.

As I told the hon. Member for Beaconsfield, in response to suggestions by the Opposition, we have concluded that High Court judges will be an added safeguard. We have no difficulty with that. High Court judges are used to deciding matters of great importance. They are senior judges who decide cases involving vast sums of money far more often than such sums are likely to be the subject of serious and complex fraud cases. To the hon. Member for North Southwark and Bermondsey, I say that I do not think that there is a great likelihood that such judges will be nobbled or corrupted, or that they might become the victims of approaches that are not already made to them. They decide big cases now; there is no suggestion that there is corruption or attempted nobbling of those judges, and I do not anticipate that we are likely to face that in cases of serious and complex fraud that come before them. In any event, our judges are more than capable of dealing appropriately with any approach that might be made, because it would clearly be an unlawful approach.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Reinforcing the point that my hon. Friend the Member for Bromley and Chislehurst made, does the Solicitor-General accept that now, the judges who have the greatest experience in fraud cases are the Old Bailey judges—who are not High Court judges by definition—and senior circuit judges? Does he accept that High Court judges rarely try fraud cases because of the length of time that such cases often take? He would have great difficulty finding a High Court judge who, in his or her judicial capacity, has actually tried fraud cases.

Mike O'Brien (Labour, North Warwickshire)

I hear what the right hon. and learned Gentleman says and, as I told his hon. Friend the Member for Bromley and Chislehurst, I shall bear those points in mind. We have responded to a request from the Opposition to the effect that High Court judges might have the appropriate seniority to deal with such cases. I have some sympathy with the view expressed by the right hon. and learned Gentleman that some senior Old Bailey judges and circuit judges might be capable of trying the cases. That is a valid point and, as I have said, I should like some time to think about it. In due course, after reflection, I may come back to the Committee and express a view onthe issue.

Let me respond to the point made by the hon. Member for North Southwark and Bermondsey about section 48. That was implemented on 24 July, and I am unaware of any circumstance in which it has been invoked to date. I should be surprised if it had been. However, I shall double check that and if it is necessary to correct what I have said I shall write to the Committee.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

On the point that was made by three hon. Members about the sort of judge to hear the cases, I hope that the Solicitor-General will say a word about whether there has been any discussion of the categories of High Court judges that Ministers have in mind.

Let me make it clear that nobody is suggesting that judges are likely to fall for attempts to corrupt them. That is not being alleged. Unless I am missing something, there will be a new category of judge or of trial. At the moment, the difficult cases dealt with by single judges are civil cases, not criminal cases, except when they are appeal hearings, in which higher court judges sit. Apart from jury-nobbling cases, which they could now hear, it would be a new circumstance in which a Crown court or High Court judge alone would be the judge of fact.

Mike O'Brien (Labour, North Warwickshire)

It is not intended that the Government will identify a new category of High Court judges to sit in such cases. Which judges are available and appropriate to try particular cases is a decision that must be left to the Queen’s bench division.

The hon. Gentleman is right to say that we are going into new territory. Judges will be hearing cases without juries. We know that there are non-jury trials in magistrates courts before district judges and in Northern Ireland; and in magistrates courts, although magistrates sit, there are no jurors. A lot of cases are decided without juries, so that is not a big innovation, but it will be a change for serious and complex fraud cases to be tried without a jury before a High Court judge. Some High Court judges deal primarily with civil cases, but they might well have had experience of criminal practice. The straight answer to the hon. Gentleman’s question is that we shall have to wait and see how the President of the Queen’s bench division decides to allocate judges.

The hon. Gentleman also asked about the various views on the matter that have been expressed by judges. I have tried to make my points carefully, and it is part of my responsibility not to get judges involved in a contentious area of political debate. They should stay above that. It is publicly known that some support the change, and no doubt there are those who oppose it—the hon. Member for Beaconsfield has referred to discussions that he has had with Crown court judges. I do not want to bring judges into a contentious party political debate, which would be undesirable given their standing above and beyond such debate. However, it is safe to say that there are different views.

I believe that I have dealt with all the points raised, and I shall be happy to deal with any others.

Clause 3

Dominic Grieve (Conservative, Beaconsfield)

The issue to consider is simple. If it is possible to avoid Northern Ireland having inflicted on it what the Government wish to inflict on England and Wales, I wish to take every opportunity to ensure that it is avoided. For the reasons that I have already given—I shall not labour them—I can think of no good reason why Northern Ireland should be included in the Bill. In due course, when we have the opportunity to vote on the clause, I shall seek to delete the reference to Northern Ireland so that, even if we have the misfortune of the Bill being imposed on England and Wales, the inhabitants of Northern Ireland can be protected from it.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

It would be helpful if the Under-Secretary could tell the Committee why the proposal is being dealt with in this Bill rather than in the Justice and Security (Northern Ireland) Bill. Will she also tell us what the effect of that legislation will be? It has not come to the House of Commons yet, so we have not considered it. I have glanced briefly at it, but not given it detailed attention. I understand that it may well be debated this week in the House of Lords. It is directly relevant to the clause because I understand that it will make changes to jury trial in Northern Ireland.

As the Minister and colleagues well know, Northern Ireland is the one part of the United Kingdom where for a long period, going back to the 1970s, and for particular reasons—namely terrorism concerns—trial without jury has existed in what are called the Diplock courts. Particular criteria must be met, but that is considered. What is now happening is the welcome normalisation of life in Northern Ireland, including the normalisation of the criminal justice process, which is going back to jury trial in many more cases. It would therefore seem sensible that we should debate these matters in the context of Northern Ireland, where Northern Ireland Members of both Houses could see that this is a matter that directly affects them, not one that is tagged on to a debate about English and Welsh jury trial, which is clearly a different legal system and one where relevant Members of our House and the House of Lords would have expertise and interest.

My question is first, what justification do the Government have for this proposal? It is a parallel point to that made a moment ago by the hon. Member for Beaconsfield. Secondly, can the Government explain how this is consistent with the general picture of Government policy towards Northern Ireland, which is to extend jury trial, not reduce it? It seems to me that if they are trying to get the message across in Northern Ireland that we want jury trial to be the norm again, this will be entirely inconsistent with that approach because with one piece of legislation they will be saying that jury trial can disappear while with the other they will be saying that jury trial can appear.

Finally, my other, linked, concern is that Northern Ireland may well in the past have been a place where the threats to the judge and the jury were considerable—far more than in any other part of the United Kingdom. The Government in the 1970s took the view that the threats were such that they needed to get rid of juries in particular cases, and Parliament agreed to that in exceptional circumstances. Some of us oppose this legislation because we do not believe that there are exceptional circumstances. Fraud is, sadly, normal; it is not abnormal. Large-scale fraud happens, and it has happened over recent years just as much as it happens at the moment. This is not a response to a particular trend. We are therefore keen to ensure that Northern Ireland is treated similarly to the rest of the UK and that it does not have legislation going in two different and inconsistent directions.

Will the Minister reflect on whether it might be better if the Government accepted a view that is going to be expressed and voted on by Members on these Benches? That is that this clause should come out of the Bill and, if the Government want to make the case for this proposal for Northern Ireland, they should make it in the context of the wider debate—the wider legislative opportunity that will arise when Northern Ireland criminal justice is debated, which we happen to know will be in this Session.

Joan Ryan (Labour, Enfield North)

As this is the first time I rise in this Committee I welcome you, Mr. Bercow, to the role of overseeing our proceedings.

The provisions set out in section 43 will enable the criminal justice system to deal more effectively with what we might call white-collar crime and will enable the full criminality of cases to be exposed. They will therefore result in more efficient trials and relieve the excessive burden on jurors, who have to have their lives disrupted on end, as we have already discussed. These are, in the Government’s view, substantial benefits. I can therefore see no reason why they should not be realised in Northern Ireland as well as in England and Wales. That is the justification I give to right hon. and hon. Members of this Committee.

This is a simple issue. It is not about inflicting something on Northern Ireland; it is about extending a benefit to Northern Ireland, in the interests of justice. The hon. Member for North Southwark and Bermondsey talked about normalisation in Northern Ireland, which is a process that hon. Members in all parts of the House welcome. Given that part 7 of the Criminal Justice Act 2003 already applies to Northern Ireland, it would seem strange if these changes were not made in parallel. Part 7 applies to Northern Ireland because the 2003 Act extends there. That is normal procedure. I hear what the hon. Gentleman says about the prospect of changes to the criminal justice system in Northern Ireland and the Diplock courts, but that is a process of normalisation. Northern Ireland is moving from difficult times to better times, which hopefully will become even better. That process should not affect our desire to see serious and complex fraud detected and successfully prosecuted in Northern Ireland, as in England and Wales.

The clause ensures simply that the Bill will extend to Northern Ireland. It is not a matter of tagging it on, which is the expression that the hon. Gentleman used. Part 7 applies, so it is not an extraordinary measure that is tagged on. I recommend that the Committee support the clause and that the provision be applied to Northern Ireland. Serious and complex fraud cases currently have little chance of resulting in a conviction that reflects their full criminality. If we are to apply a measure in England and Wales that allows such cases to be prosecuted before only a judge, there is no justification for not applying it in Northern Ireland.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am rising to support my hon. Friend the Member for Beaconsfield. To begin with, let us put an end to the idea of full criminality going before a court. It is a thoroughly bad concept. Anybody who knows anything about judicial processes knows that it is deprecated by the judges: they do not want to have full criminality brought before them as it extends trials unnecessarily. Let us put an end to that nonsense—I know that it comes from the Home Office, but it is nonsense.

Much more importantly, this is ultimately a matter of democracy. [Interruption.] I am sorry, I have something stuck in my throat. I wish it were whisky. We have been reminded by the hon. Member for North Southwark and Bermondsey that legislation that will affect the legal system in Northern Ireland is about to go through the House. The process will inevitably be attended very closely by Northern Ireland Members. Most importantly, they will be heavily represented at the Committee stage. Whether the benefits of these provisions should be extended to Northern Ireland is essentially a matter for Northern Ireland representatives. They are necessarily squeezed out of the process on this Bill because of their limited number and the fact that the main thrust of the Bill is directed towards England and Wales. They have every right to feel excluded. I therefore entirely agree with the point made by the hon. Gentleman and my hon. Friend the Member for Beaconsfield that the matter should be dealt with in legislation that applies exclusively to Northern Ireland, so that the hon. Memberswho represent that Province have an opportunity comprehensively to put their arguments.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The Minister made the general point, but can she tell us, just so that we are all clear, what exactly the Government are proposing for Northern Ireland? We have not heard that from Ministers, and it is relevant. They are proposing changes to the criminal justice system. I do not pretend to be an expert yet, because I have not looked at the Bill in detail, so it would be helpful to know what they propose. We could then form a judgment about whether it is appropriate to link it with this provision.

Secondly, another relevant point about full criminality has been raised. I absolutely support the argument that the right hon. and learned Gentleman made. In addition, it is an argument applicable not only to the criminal law in that context but, for example, to fraud or financial insider dealing. One does not list every offence for some horrible sex offender and bring to court all the victims. Strong cases are taken, such offenders are convicted, and they will then ask for further offences to be taken into consideration. Those cases can then be taken off the file, as it were. That is absolutely normal for a taking and driving away, as it used to be called, or for a burglary or shoplifting offence. By definition, the full criminality never gets to the jury, because it does not need to.

There is a verdict of guilty and one of not guilty; there is a maximum sentence set by Parliament, and that maximum is the same whether an offender commits one of those offences or seven of them. The last bit of the full criminality emerges between conviction and sentence, when matters of previous conviction are read out and litigation is done. We have the process for dealing with that, and it could not be otherwise, or the courts would come to a grinding halt, and many people would be put to particular disadvantage by having to give evidence and take time being exposed to cross-examination, when the case does not need them to be brought to the witness stand.

Dominic Grieve (Conservative, Beaconsfield)

There is another point. I cannot remember, although the hon. Gentleman may, whether Northern Ireland benefits from the provisions of the recent legislation allowing specimen counts to be tabled in cases and the judge alone to deal with the remaining counts after conviction. My memory is not sufficiently good, but the Minister may be able to enlighten us further. In the English context, that is a powerful reason why the legislation is completely unnecessary.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I do not remember either. I was not leading for us on that Bill, so I do not have all the details of that in my head. However, I revert to my general point. Legislation for the criminal justice system in Northern Ireland should, for the sake of the people and the representatives of Northern Ireland, be looked at in one place at one time. It is a nonsense for Parliament, in the same Session, to be dealing with criminal justice in Northern Ireland in two different pieces of legislation, which appear to be going in different directions, and which have so far been presented to us here without any explanation of how they fit into the wider context of what has just happened, if there have been recent changes, or what is about to happen, if the Government get their way.

Joan Ryan (Labour, Enfield North)

Let me deal first with the hon. Gentleman’s last point. As I have explained to him, because part 7 of the 2003 Act applies to Northern Ireland, we have to deal with the connection with Northern Ireland here in this Bill in order for this measure to apply. That is why clause 3 is here. That is common practice, and is perfectly understandable.

I do not think that the Committee is the place to discuss legislation that is before the other place. The Bill extends to Northern Ireland for exactly the reason that has been given. As I have already said, and as he said, some of the current discussions about Northern Ireland have been about the continuation or otherwise of the Diplock courts.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Lady is arguing the case for extending the provision to Northern Ireland. Will she be good enough to tell us whether Northern Ireland representatives were involved in the consultation of the kind that was promised by the then Home Secretary and that took place to examine alternative possibilities involving special juries or lay assessors?

Joan Ryan (Labour, Enfield North)

I can confirm to the right hon. and learned Gentleman what he already knows, which is that I am not aware that representatives from Northern Ireland parties were present. I can also tell him that the Lord Chief Justice of Northern Ireland is aware of both the Bill and the clause, and has expressed no misgivings about it whatever.

That touches on another point that has been mentioned—that legislation applying to Northern Ireland should appear in a specific Northern Ireland Bill, and be considered by a Committee containing Northern Ireland Members. Hon. Members will know that there is never any attempt to exclude elected representatives from Northern Ireland from any proceedings. They sit on many Committees, particularly those in which they express an interest, and the usual channels on both sides of the House work hard to ensure that that is achievable. I can assure all members of the Committee that Northern Ireland Members are well aware of our proceedings, including the Bill’s Second Reading. Had they requested a place in the Committee, we would all have made every effort to facilitate it, and I am not sure that the point is as significant as may have appeared to the hon. Member for North Southwark and Bermondsey.

On full criminality, I shall just have to beg to differ with the right hon. and learned Member for Sleaford and North Hykeham. I accept that his view is that full criminality is not a fundamental issue, but that is not my view, nor is it the view on the Government Benches. I think that the interests of justice make it important to expose full criminality in court—that is the case for all blue-collar crime, and there is no reason why the same should not be true for white-collar crime as well. Severing or truncating a charge is not the same as taking other offences into account, such as the theft of another 30 motor cars, or joyriding. There is a fundamental difference, and full criminality is important to justice.

Bob Neill (Conservative, Bromley and Chislehurst)

Does the Minister accept that the area in which full criminality becomes important is in sentencing? For example, within the bracket of sentences available to the judge—the maximum, and the tariff indicated by the Court of Appeal—the judge can decide which sentence is appropriate. The point that I believe my right hon. and learned Friend the Member for Sleaford and North Hykeham is making is that that is separate from the trial process, and the availability of full criminality to the sentencing judge does not make it necessary to have full criminality presented to the jury. That is the real point. As my hon. Friend the Member for Beaconsfield said, it would entirely meet the Minister’s argument if current procedures such as those for specimen counts were severed, so that they were dealt with on sentencing, after the trial on indictment. That would avoid overloading the indictment.

John Bercow (Conservative, Buckingham)

Order. Interventions must be brief.

Bob Neill (Conservative, Bromley and Chislehurst)

I apologise. I shall revert to that point.

Joan Ryan (Labour, Enfield North)

I thank the hon. Gentleman for his enthusiastic intervention. Full criminality is important on sentencing, but sentencing is based on evidence that is exposed during trial, so I stand by what I have said. In serious and complex fraud cases, it is a matter not of filling the indictment with a lot of minor counts, but of avoiding the need to sever the indictment, which results in two trials instead of one. Full criminality is also an important point there.

Dominic Grieve (Conservative, Beaconsfield)

I may have missed this, and I apologise if I did, but I raised the question of whether the new provisions regarding specimen counts, and the judge being able to consider the remaining outstanding counts by himself, apply to Northern Ireland as well. Can the Minister deal with that point?

Joan Ryan (Labour, Enfield North)

I was coming to that point, and it is as the hon. Gentleman says. The Domestic Violence, Crime and Victims Act 2004 applies to Northern Ireland, but it has not yet commenced; that is planned for January 2007. I do not accept that any valid argument has been made that should prevent us applying these measures, which bring substantial benefits. There is absolutely no reason why those should not be realised in Northern Ireland as well as in England and Wales.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have two brief points. First, on the full criminality point, the Minister is suffering under an illusion. Nobody who practises in criminal courts thinks it desirable to overload indictments, and judges will not permit it. If the thought is that every offence will be reflected in account on the indictment, that is illusory; the judges will stop it. If those at the Home Office are labouring under that illusion, I wish that they would put it out of their tiny little minds.

Secondly, on a quite different point, it is clear from what the Minister said that the Northern Ireland representatives were not involved in the discussions that were held—in so far as they were—pursuant to the undertaking given by the then Home Secretary. They have every reason to feel aggrieved, which is a further reason for not allowing this particular Bill to apply to Northern Ireland.

Joan Ryan (Labour, Enfield North)

I have very little to add, because I have answered the points made and stand by what I have already said in relation to full criminality. Had Northern Ireland representatives wished to be present, first, my understanding is that they can be present and speak even if they are not named members of the Committee. Secondly, like all of us, they know how to make representations to be members of the Committee. I have said that the Lord Chief Justice of Northern Ireland has made clear that there are no issues with this matter. That should satisfy the Committee, and I urge that this clause stands part of the Bill.

Clause 4

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I beg to move amendment No. 1, in clause 4, page 2, line 9, leave out ‘months’ and insert ‘years’.

It is an exciting development—the amendment is actually on the Order Paper, as opposed to having snuck up on us unawares. It is a short amendment arguing that if the legislation is passed, it should come into effect not immediately, or after two months, but after two years. Obviously, amendments such as this always contain some mischief. I own up to that. Who knows—there might be a general election within the next two years. I could have made certain that an election took place before the Act came into effect by tabling an amendment that said “four years”, but there is plenty of opportunity for such an amendment at a later stage in proceedings. That will no doubt happen.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

In any event, as the other place is not going to pass the Bill, and, therefore, the Parliament Act will have to be invoked, we are well covered.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Indeed, we are well covered. However, I want to put the case that I and others summarised on Second Reading on the Floor of the House: at the moment, it is nonsense to be legislating. Since the idea was conceived, circumstances have changed in a way that moves the balance of the argument away from legislating. A further delay would give us more information on the justification for the case.

In summary, the Government started down this road during the Prime Minister’s first Administration. They came back to it in the 2003 Act and again in the previous Session. After the general election they sought to pass an order in the Commons to bring this provision into force, but it was dropped in the Lords. However, in the meantime, various other things have happened. First, Parliament spent a lot of time on the Fraud Act 2006, which has just come into force. We have had no time to evaluate it because it has not been on the statute book for long. Will the Solicitor-General tell us whether any of it has come into force and, if so, how much of it? Parliament needs to know how important legislation on the subject before us is working, before it makes a judgment on what further legislation is required.

Secondly, two other procedural changes have been made recently. On 22 March last year, a new protocol for the control and management of heavy fraud and complex criminal cases was handed down in court by the then Lord Chief Justice, Lord Woolf. As Law Officers have accepted, it was intended to deal with that largest complaint—that the organisation of fraud cases was not as good as it should have been. It was meant to reduce the length of fraud cases by implementing measures relating to paperwork and bundling, to ensure the opportunity for summaries and to allow juries to be presented with the material in a more manageable way. That was done in the light of experience gained when such cases were heard in the courts and considered at the highest level of the judiciary.

That protocol was announced in March last year. It is now 18 months later. Will the Minister give us an evaluation of the changes so far? We know that they have been implemented, but have they been successful and, if so, can we see an evaluation? Have the judges carried one out? Have Law Officers been given one, or have they carried one out themselves?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Just in time.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Just in time is always good enough. I thank the Committee for agreeing to change the time of the sitting because it has allowed colleagues the opportunity to speak on the urgent question in the House. That was much appreciated.

The amendment would delay for two years the period before which the Bill comes into force. I put the arguments for waiting to see how the changes already announced will take place. My final argument was to do with the Government’s review. When do they expect to announce the its conclusions? The consultation finished in October. I understood that we were to expect an answer about now, and people will need to digest that. However, it is another reason for giving Parliament, the Committee and the country time to digest the implications of what has happened in the two years since the Government thought we needed to proceed.

I hope that the Committee can be persuaded that it will be sensible not to rush any changes, even if people are minded to support them in principle. I hope that we can agree that it will be better to wait, take stock of where we are, and then properly evaluate the best way to try cases of serious fraud. I hope that that is an attractive argument.

Dominic Grieve (Conservative, Beaconsfield)

I support the amendment. The hon. Gentleman touched on the fact that we have a new Fraud Act—the FraudAct 2006—which has not yet been fully implemented. There has also been no time for us to understand the extent to which it will simplify trials.

I mentioned an issue relating to the Domestic Violence, Crime and Victims Act 2004, which is also highly germane to the debate. Those who participated in the debates on that Act will recollect that it contains a controversial provision that attracted considerable debate, but which the Conservatives did not seek to obstruct. That provision allows for the trial of specimen counts in the case of somebody who carries out what is described as repetitive criminality. When a person has been convicted, it allows the judge alone to make a finding of fact on the outstanding counts that have not been tried but have used the same system to obtain something or otherwise to commit an offence.

The obvious example is someone who uses a credit card 500 times fraudulently and dishonestly to obtain goods or services. Rather than having to plough through all 500 counts, one can pick two or three specimen counts to be tried by jury. After the person has been convicted of those offences, other offences that plainly bear the imprint of their criminality, having been committed in the same period and starting with a specimen count at the beginning and the end of a period, can be dealt with by a judge on his own.

That system existed informally in my early yearsat the Bar. It was called taking offences into consideration. In that period, the system that we had in place was that if a person would not agree to offences being taken into consideration, the judge effectively took them into consideration if he considered that the evidence of a person’s involvement was overwhelming. That system was overturned by the Court of Appeal, which said that if a person disputed TICs, as they were called, the outstanding offences could not go into the balance of the sentencing process. The Government’s proposal in the 2004 Act was precisely to get around the problem by having a formal system of adjudication on outstanding counts. Although some had concerns about the extent to which it might usurp trial by jury, I for one considered it to be a sensible way to proceed.

David Heath (Liberal Democrat, Somerton and Frome)

My recollection of our proceedings on the 2004 Act coincide with the hon. Gentleman’s. Although we had reservations, we all felt that that was a sensible way to proceed for precisely the reason of exposing the full criminality—I believe that is the phrase the Solicitor-General likes to use—without placing too onerous a duty on the jury. Why on earth it has not been implemented, God only knows.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman, with whom I have shared many hours in Committee on numerous Bills, mainly in the field of criminal justice, takes the words out of my mouth because that is precisely the point I was about to move on to.

Mike O'Brien (Labour, North Warwickshire)

Will the hon. Gentleman give way?

Dominic Grieve (Conservative, Beaconsfield)

I will in a moment when I have made another point.

Seeing that the measure was specifically designed to expose the full criminality in a way that provides reassurance of the maintenance of the principle of jury trial, it is odd that the principle and the power in the 2004 Act should have been ignored by the Government in the current proposals. The situation is all the odder because the 2004 Act has been on the statute book for some little time. The Minister will be able to tell us exactly how many months, or years, but we are talking about a considerable period. Yet I understand from a comment this morning that a particular clause dealing with this procedure, which I would have thought would have been fairly easy to implement, has not yet been implemented and is not due to be implemented until January 2007.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Will my hon. Friend give way?

Dominic Grieve (Conservative, Beaconsfield)

I had better be fair and give way to the Solicitor-General first.

Mike O'Brien (Labour, North Warwickshire)

I am curious because as the hon. Gentleman supported the provision, I would have thought that he understood its purpose. It seems that he did not. The particular provision to which he refers, in the 2004 Act, relates to the charging of specimen counts that deal with the same sorts of other counts which are subsequently the subject of sentencing.

The role of such a trial is to deal with a wide range of activities. They are not the same. They may in some cases be broadly similar, but they may indeed be different. Therefore the prosecution of fraud may involve the prosecution not of a range of identical offences, but a broad range of fraudulent activity which may go across a whole series of transactions, some of which may be similar and some of which may not. Therefore, what the hon. Gentleman is talking about, and what we are talking about in the prosecution of fraud, may well be entirely different things, and that is why one does not deal with the other.

Dominic Grieve (Conservative, Beaconsfield)

I listened carefully to what the Solicitor-General said and I am now even more puzzled by what the Government are intending to do in this Bill.

John Bercow (Conservative, Buckingham)

Order. Amendment No. 1 to clause 4 has a relatively limited scope. It concerns the commencement date and the territorial coverage, both of which matters the hon. Gentleman will be well familiar with. He may periodically animadvert to, but he may not dilate upon matters that are outwith the terms of the Bill or the amendment.

Dominic Grieve (Conservative, Beaconsfield)

Mr. Bercow, I am grateful to you for reminding me of the scope of the amendment, but I hope that you will be able to rule at least in order that we are dealing with delay. One of the arguments for delay is to see how the impact of the 2004 Act provisions may work in practice after it has been implemented at the end of January. I will do my best not to digress too much, but the Solicitor-General has raised an issue, to which I hope I can respond promptly and expeditiously. He suggests that in fact there is a completely different effect that is not germane to the issue under consideration. Of course, I will be mindful that I must not stray into a general debate on a clause in a separate Bill.

The Solicitor-General puzzled me because, while I accept entirely that fraud may not necessarily be a systems offence, with a repetition of the same format time over time—although it very often is—he raises a separate issue, which I hope we can properly consider without straying too far. Even if we have trial by judge alone, that does not justify lumping together in one trial a series of separate fraudulent activities. I simply suggest to the Solicitor-General that if a prosecutor attempts to do that, the rules in front of a judge alone would apply exactly as they would in front of a jury and he might well be prevented from doing that, because it could be extremely unfair to a defendant. I hope that the Solicitor-General can provide clarification on that. If we are dealing with one fraud concerning extorting money from A and one from B, I would not necessarily assume that they would be allowed to be tried together.

On the main point, it seems to me that the 2004 Act provision on specimen counts is potentially sufficiently germane to the issue under consideration that we ought to have an opportunity to see how it works. In many cases, I think that it will greatly shorten trials. Prosecutors will be able to select specimen counts in many instances of fraud which involve a system and try those quickly with the reassurance that at the end the judge will assess the full criminality by a speedy method that does not involve a jury. Therefore, it drives something of a coach and horses through one of the Government’s principal arguments. For that reason, and without wishing to digress too far into the principles of the Bill, it seems a powerful argument for saying, “Let’s wait and see how this works in practice,” before we move to a highly controversial measure that departs from our established principles and practices of trial by jury.

Stephen Hesford (Labour, Wirral West)

I made a similar point on Second Reading. Does the hon. Gentleman accept that while a High Court judge listening to an application could take the matters that the hon. Gentleman describes into account, that would have the same effect as looking at the system of report? If in reviewing these things a High Court judge and/or the Lord Chief Justice judged it as a relevant matter and it was argued before them, they would take it into account. No doubt, if it was powerful they would refuse the application for the non-jury trial.

Dominic Grieve (Conservative, Beaconsfield)

I accept that the hon. Gentleman makes an absolutely valid point. When an application is made for having a trial by judge alone, I can see that it would be possible for defence counsel to argue that in such a case, as part of the other arguments that could be advanced, it could have a jury trial because we could proceed on specimen counts and have it tried separately thereafter.

Although I accept that that is a perfectly good argument, my point is simply that, for reasons that are philosophically based, I do not like departing from the principal of trial by jury. On the whole, experience shows that if a mechanism or power is provided, it sometimes ends up being used when it might not necessarily be needed. As I disagree with the Government on that, I would much prefer to give the new systems established in the Fraud Act 2006, which were touched on by the hon. Member for North Southwark and Bermondsey, and the 2004 Act the chance to bed in. We might all end up with an agreement in two years’ time between the Solicitor-General, the Attorney-General and myself, with everybody saying, “Actually, as it’s turned out, we now realise that this really isn’t necessary,” at which point we can be convivial and stop disagreeing, which on the whole is a good thing

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I would be surprised if we managed to do that.

Dominic Grieve (Conservative, Beaconsfield)

My right hon. and learned Friend, who has much longer experience of parliamentary life than I have, is probably right in his gentle pessimism about the state of politics and the disagreements that spring up. It is nevertheless a laudable aim, especially in this season, and I ask the Solicitor-General to bear that in mind. I am happy to support the amendment.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

With regard to what my hon. Friend the Member for Beaconsfield said, let us be clear that I never see it as my business to agree with the Government. I will stand in the way of a great majority of their policies with as much energy as possible, regardless of the season.

That is not the burden of what I want to say, however. I want to support the hon. Member for North Southwark and Bermondsey and I have four reasons for doing so. First, I entirely agree with what the hon. Gentleman and my hon. Friend said about the implications of section 17 of the Domestic Violence, Crime and Victims Act 2004. It will clearly make a huge difference to the approach of courts in criminal cases, because once a light indictment may be the charge in all but the most serious of accounts, with the rest to be taken without the jury by the judge alone, that will make a difference to the length of trials that are currently deemed to be burdensome because of their length. I say to the Government that, from their perspective, they will do well to bring in section 17 and allow considerable time for it to be worked through, so that one can see its consequences.

My second point relates to case management powers. The courts are becoming increasingly accustomed to using robust case management powers. These have been in existence for some time, but the courts inevitably take time to become fully acquainted with them and to work them through. When used by a robust judge with a co-operative prosecution, the powers can go a long way to reduce the complexity and length of trials. I hope that the judiciary would be encouraged by the senior judiciary to use the powers in a robust manner. I think that it will, and that will be relevant to the subject that we are discussing.

My third point harks back to the undertakings that were given by the former Home Secretary. We have been through the argument of whether there has been proper discussion. We have heard the Solicitor-General’s explanation, and the Committee will make up its own mind. Some of us might think that a satisfactory discharge of the undertakings that were given did not take place. Time would enable the Home Secretary of the day properly to discharge the undertakings given by his predecessor. I would regard that as a good thing.

Lastly and differently, my hon. Friend the Member for Beaconsfield made some important points about the difficulties that will occur in the court of a trial by judge alone. The issue was raised on Second Reading. Currently, the judge is a judge of law and the jury is a judge of fact. The judge makes rulings on a range of procedural matters, such as those relating to admissibility. If he decides in favour of the defence—these are only examples—previous convictions, hearsay evidence or alleged admissions never go before the jury. When the judge is judge of both law and fact, he makes those rulings and is aware of the underlying facts, whether he deems them to be admissible or not. The problem will become even greater when there is an application for public interest immunity. The hon. and learned Member for Medway (Mr. Marshall-Andrews) talked about this point at considerable length and with great eloquence. I am sorry that he is not on the Committee; it would have more fun had he been so.

There will have to be a lot of practice directions, and perhaps statutory instruments, to give effect to the procedural solutions that will be required. I would not be wholly surprised if the reason that section 17 of the 2004 Act has not been introduced is that the Department for Constitutional Affairs and the Home Office have had some difficulty in drafting the necessary consequential orders and practice directions along with the Chief Justice. A delay of two years or so would be useful in that connection. In the end, however, the proposals are thoroughly bad and any delay is worth having; after all, the thing might sink.

Bob Neill (Conservative, Bromley and Chislehurst)

I promise not to be over-enthusiastic this time, Mr. Bercow. I support the observations of my right hon. and learned Friend the Member for Sleaford and North Hykeham, my hon. Friend the Member for Beaconsfield, and the hon. Member for North Southwark and Bermondsey, and I shall supplement them with a couple from my own comparatively recent experience. I was not, of course, a Member at the time of the agreements, so I could not be a party to them. That gave me the opportunity to be active in the criminal justice system, at least on a part-time basis—an activity that, lest it ever be discussed in a focus group in south-east London, I should emphasise has ceased since I became a Member.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I encourage my hon. Friend to remain active at the criminal Bar? That will enable him to say no to the Whips whenever he chooses.

Bob Neill (Conservative, Bromley and Chislehurst)

I shall take my right hon. and learned Friend’s very sage advice. If he ever needs a good junior he will know where to come.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

If he ever needs a good leading counsel, I am here.

Bob Neill (Conservative, Bromley and Chislehurst)

I fear that my diary may get in the way of that at the moment.

My recent experience reinforces my hon. and learned Friend’s point about the desirability of delaying implementation, a point that has been well made in relation to section 17. Just before I entered the House, I prosecuted a fraud case that was not so substantial as to qualify under the serious fraud provisions, but complex nevertheless—it involved something of the order of 250 separate transactions. I have no doubt that those who instructed me would have been delighted, as would I, had I been able to use the section 17 provisions, so that we could have had a short trial on, say, the six counts that embraced the criminality. The judge would then have had the totality of the picture and been able to deal with matters in sentencing. That is why I intervened on the Minister earlier: full criminality is most important in sentencing rather than in anything else, and we can get where we need to be on sentencing by implementing section 17.

Two years’ delay would give us the opportunity to work out how to do that sensibly, because there is much good will for section 17—among practitioners, prosecutors and the judiciary. It would also give us the chance to see how the Criminal Procedure Rules 2005 work out. The resident judges and those more likely to deal with more complex cases in the courts where I practised have been enthusiastic and willing to take the greater case management role on board. There has been good co-operation from the Bar, from solicitors and from the prosecuting authorities. None the less, we are only 18 months into that regime—not very long in the life of some of the complex cases—and matters will take a little time. It would be sensible to have an additional two years to see how things work out in practice. My right hon. and learned Friend the Member for Sleaford and North Hykeham has already argued for the accompanying statutory instruments, protocols and procedures, and I shall not repeat his argument, which was well made.

My final argument for delay is that it would give time for the Government to reflect on the comment made by the Solicitor-General in response to my hon. Friend the Member for Beaconsfield. That response troubled me as much as I believe it troubled my hon. Friend, and it surprised me a little as well. The Solicitor-General said that the indictment could cover a whole range of criminal activities, some of which might be similar and some of which might not. On the face of it, that raises the question whether the Government are proposing to revisit the joinder rules.

Mike O'Brien (Labour, North Warwickshire)

The answer is no, as far as we are concerned. There will of course need to be a link between charges, but they do not have to relate to the same sort of offence. The Domestic Violence, Crime and Victims Act dealt with cases in which there was replication of pretty much identical activities, so that a specimen charge could easily be used. By contrast, we are dealing here with a range of behaviour, and what is happening in fraud trials is that cases are being split and charges are being reduced, so we need to ensure that the full range of the fraudster’s behaviour can be brought before the court.

Bob Neill (Conservative, Bromley and Chislehurst)

I am grateful to the Solicitor-General for that clarification, but from what he said it seems to me that the normal rules about a nexus being found should apply.

Mike O'Brien (Labour, North Warwickshire)

I am not implying that. Of course there will be some nexus between the charges against a defendant, but that does not mean that all the items brought before the court need to be identical. The provisions that the hon. Gentleman is addressing in section 17 relate to charges for virtually identical behaviour. We are considering a range of behaviour, which may well have a nexus but is carried out in a range of ways.

Bob Neill (Conservative, Bromley and Chislehurst)

I am grateful again to the Solicitor-General. That clarifies his position but does not assuage my concern—in fact, it increases it. It might be legitimate for the Government to make changes by another route, but if we are to change the approachto admissibility, that is another reason to have a good deal of time to consider the matter. It would be a substantial departure, and it would be troubling as a matter of principle if there were to be special rules on what can be joined on to an indictment for one class of crime, or indeed the one class of fraud covered by the Bill. I urge the Government to think again about that, and two years would give them time to do so.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

It would give the Government time not only to think again but to consult. The Solicitor-General’s suggestion might well require a substantial amendment to the Indictments Act 1915.

Bob Neill (Conservative, Bromley and Chislehurst)

My right hon. and learned Friend is absolutely right and brings me back to the point that I made before the Solicitor-General helpfully intervened. If there has to be such an amendment, which seems to me the logical consequence of what the Solicitor-General is saying, we need time to get it right, even leaving aside the principle.

Mike O'Brien (Labour, North Warwickshire)

The hon. Gentleman and his colleague, the right hon. and learned Member for Sleaford and North Hykeham, are getting a little carried away with their argument. We do not need to change the nexus rules in relation to trials, nor do we need to amend the way in which indictments are drafted. We need to ensure that we can establish in court the full culpability of fraud defendants so that justice can be done. I notice that the hon. Gentleman winks at his colleague because he has drawn me to clarify the situation, which I hope I have done. I hope that he accepts my position.

Bob Neill (Conservative, Bromley and Chislehurst)

I am grateful to the Solicitor-General, which I am becoming used to. With respect, he has not answered my principal point. If we are to move towards putting a defendant’s total criminality before one tribunal of both fact and law, it is important that we get the procedural rules correct. To start the new system only two months after the Bill is passed and without consultation, as my right hon. and learned Friend the Member for Sleaford and North Hykeham said, seems dangerous even from the Government’s point of view, leaving aside our objections to the proposal. If the Government are to make this change then, for heaven’s sake, they must take the time to ensure that they get it right. That is why I beseech the Government to reconsider being so arbitrary about the Bill’s commencement.

Joan Ryan (Labour, Enfield North)

We have had a lively debate. I was struck at the beginning of our proceedings this afternoon by the sight of the hon. Member for North Southwark and Bermondsey. He rushed in and could hardly draw breath before he urged us not to rush. I assure him that we are not rushing and that we have given the matter long and full consideration. Our debate this morning demonstrated that, and the problem in question has been recognised and considered for not years, months or days but decades. The idea that we have rushed into anything is, to say the least, an exaggeration.

The hon. Gentleman and other hon. and right hon. Members seem to cleave to the idea that if only we were to wait long enough, the need for serious fraud trials to be considered without a jury would somehow disappear. The Government do not share their optimism. It is recognised that the problem has existed for at least20 years and we do not believe that such measures as the Fraud Act 2006 or the Lord Chief Justice’s protocols in 2005, although admirable, will be sufficient to deal with the issue.

Right hon. and hon. Members have asked that we wait for some of the other measures. As has been said, the Fraud Act comes into force on 15 January 2007. As I understand it, the Act deals with the substance and definition of fraud, as opposed to the process by which we deal with it, which is addressed by the Bill before us. I reject the points made my Opposition Members about waiting until the Act is in force.

Dominic Grieve (Conservative, Beaconsfield)

Does the Minister not agree that those two things are linked? One of the arguments that is made persistently in fraud cases—I use that word generically because, sometimes, such cases might concern obtaining property by deception—is that the concepts are complex. With the support of the other place and both sides of the House, the Government have tried to simplify the law in relation to fraud, which ought to make the trials themselves simpler. That goes to the heart of this legislation.

Joan Ryan (Labour, Enfield North)

That something is linked does not mean that it is the same, or can be dealt with in the same way.

An important point was made on Second Reading, to which I am sure that hon. Members were listening, but I shall reiterate it because otherwise Committee members, and anyone reading these proceedings, might assume that we have not adopted a strategic approach, and that this problem has just leapt in front of us and did not exist before. When my hon. and learned Friend the Solicitor-General opened Second Reading proceedings, he stated:

“Our policy has four main strands. We recently took through the House the Fraud Act 2006”—

that has been referred to—

“which will create a statutory offence of fraud and modernise much of our law on deception. Secondly, the Government have also carried out a cross-departmental review of fraud to examine the prevention, detection, investigation, prosecution and punishment of fraud.”

I was asked about that. He continued:

“We published a report in July, and consultation finished on 27 October. We are now considering our response.”

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Under the timetable that the Minister has given us, a cross-departmental report is likely in January. We have seen the consultation document. Does she accept that it is likely to suggest improvements to the process in order to increase the chances of a conviction? They are all good ideas and none of them requires a change in the method of trial, but other things will improve the process.

Joan Ryan (Labour, Enfield North)

I am pleased that the hon. Gentleman thinks that they are good ideas. I am sure that good ideas will come forward. However, that in no way contradicts or undermines what I said about the four-pronged approach—the “four main strands”. Such things work together and I think that a strategic approach has many advantages. We need to plumb that at the outset, not in retrospect. That is what I was talking about.

The third strand deals with the new protocols and procedures for our courts, which have been referred to, and case management. I shall return to what the Solicitor-General said on Second Reading:

“The Bill is the fourth element. It will reform our criminal justice system to enable it more effectively to try a small number of serious and complex frauds without a jury.”—[Official Report, 29 November 2006; Vol. 453, c. 1088.]

I repeat the point about “serious and complex frauds” because they are the point of the measures. Although all the other measures will help in various ways in lots of other cases, we do not believe that they will address the burdensome nature of serious and complex fraud trials.

Having said that, let me respond to the point made by the hon. Member for Beaconsfield about how the Domestic Violence, Crime and Victims Act 2004 applies, and why its provisions have not been implemented. It was necessary to make rules of court, and those took effect in England and Wales in November and will apply to Northern Ireland from January 2007. The relevant provisions of the 2004 Act will therefore be commenced in January, and they are not aimed at section 43 cases—cases of serious and complex fraud. On that point, I return to the comment of my hon. and learned Friend: fraud trials may relate to dissimilar or similar acts, so the specimen credit card fraud cases given as examples by the hon. Member for Beaconsfield might not be relevant to cases of serious and complex fraud. It is not argued that that Act will deal with the issue that this Bill attempts to address.

Mindful of your warnings about straying too far, Mr. Bercow, I shall attempt to rein in my comments and return to the amendment tabled by the hon. Member for North Southwark and Bermondsey. He said that it sought to change the commencement period from eight weeks to two years. I refer him to the point made this morning by the Solicitor-General. Commencement of the Bill will amend section 43, but commencement of section 43 itself depends on a commencement order under the 2003 Act, so the hon. Gentleman need not get too worked up about undue haste.

Let me say a word on a couple of other issues, so as to ensure that I have answered as far as possible every point that was raised. I think that it was the hon. Member for Beaconsfield who talked about convictions and the role of the judge and, in a case with a jury, of the jury. The Lord Chief Justice will need to consider procedural rules, but there is not a problem in, for example, the Diplock courts, or for district judges and magistrates, who try cases without juries. Examples of endurance trials already exist, so that addresses that point.

Questions were asked—also, I think, by the hon. Member for Beaconsfield—about the way in which prosecution applications under section 43 will be made in circumstances involving sensitive information. That relates to the point that I have just made. Concern has been expressed about the potential for unfairness to defendants in cases in which a judge considers a public interest immunity application and then goes on to conduct the trial. The Government are confident that existing public interest immunity procedures are fair and effective and do not in any way endanger the rights of defendants. Currently, lay magistrates, district judges and others hear public interest immunity applications and then go on to find the facts. I hope that that lays that point to rest, or at least answers it, even if it is not a response with which the hon. Gentleman is satisfied.

I believe that I have covered the points that hon. Members raised about measures that we have taken in our overall strategy and shown why the fourth part of that strategy is important. The Bill should not be delayed, and it cannot be replaced with the other measures that we are taking. The Government’s unshaken view is that, in a small number of serious and complex fraud cases, trial without a jury is the best solution. We remain committed to the provision in section 43 and can see no grounds for delaying its introduction yet further. I therefore ask the hon. Member for North Southwark and Bermondsey to withdraw the amendment. If he does not, I will urge hon. Members to vote against it.

David Heath (Liberal Democrat, Somerton and Frome)

On the basis of that response, I hope that my hon. Friend the Member for North Southwark and Bermondsey will not withdraw his amendment. It seemed to me that in setting out the Government’s strategy, the Minister made it abundantly clear that it is based on an ex cathedra statement that they will proceed irrespective of the evidence and the effect of the other measures that are being taken.

It has always been suggested that the Bill is needed because of the complexity of the cases in question and the strain that they put on juries. However, the Minister said clearly that the fourth element of the Government’s strategy—to proceed with the removal of trial by jury—will be unaffected by the other measures being taken. She said that even if the existing legislation, the changes to procedural rules and the redefinition of the offence of fraud were proved substantially to reduce the complexity of cases and the time that they take, they would have no effect on the Government’s intention to remove the jury from trials in complex fraud cases.

I am left to conclude that the Government’s intention lies in a vacuum and is not based on any evidence of a requirement. It is certainly not based on the view, which is held on these Benches and was displayed by some Labour Members on Second Reading, although possibly not those in the Committee, that jury trial is a good in itself. It is part of the judicial system of England and Wales and should not be dispensed with unless there are very strong arguments for doing so. Such arguments have not been adduced by the Minister, who is impervious to any rational explanation involving other measures that have been taken. I hope that my hon. Friend will not withdraw his amendment and that we shall have the opportunity to divide on it.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Even if I had started to wobble, my hon. Friend would have prevented me from going too far. I was not tempted to wobble, because I have listened carefully to the Minister and the Solicitor-General, as I did on Second Reading. I wish to deal with the matter, because there is no point in failing to confront the issues put forward by the Government.

There are two up-front, objective reasons why the Government are still pushing for this fourth strand in their set of measures. There is also one unspoken reason, which I believe might be the motive behind the two spoken reasons. The three strands that are not to do with trial by jury are on case management, procedural changes and so on. They address, in part, one of the Government’s two objectives, which is to get rid of the burdensome nature of trial by jury. I understand that argument. If you, Mr. Bercow, I, or anybody else were called for jury service, as we are eligible to be, and found ourselves on a case that was to last for six months, it would be burdensome—more so for some people than others. I am not naive about that. Some of the changes announced in the past two years are specifically intended to address that point. Let me give the Government the objective evidence—it was not concocted either by me or the Solicitor-General.

We had the report on the Jubilee line case. Quite rightly, the report, produced by Her Majesty’s chief inspector of the Crown Prosecution Service, a Government appointee, looked into why that case went wrong.

Stephen Hesford (Labour, Wirral West)

Will the hon. Gentleman give way?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Bear with me.

I concede that the executive summary of the chief inspector’s report stated:

“Seen from the perspective of the jury, the trial was a quite intolerable burden.”

Clearly, the inspector looking into the Jubilee line case said that it was burdensome for the jury.

The hon. Member for Beaconsfield quoted the evidence of jurors, which, unusually, was in the public domain because the trial was discontinued. The inspector reported that the trial was burdensome not because the jurors did not understand it or because the issues were burdensome but, putting it bluntly, because the trial went on for so long, in an uncontrolled way, and the judge did not appear to have a full grip of the case. Gradually, things started unwrapping.

There have been burdensome cases.

Stephen Hesford (Labour, Wirral West)

I am obliged to the hon. Gentleman for giving way. He was, I believe, in the Chamber on Second Reading; indeed, he led for the Liberals. The Solicitor-General made it plain, time and time again, that in persuading people that we need these measures, the Jubilee line case was not relied on. It seems to me to be wrong for the hon. Gentleman to waste the Committee’s time quoting a case on which the Government did not rely, and which is not germane to proceedings.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

If the hon. Gentleman will allow me, I had not finished my point.

There have been burdensome cases, but the Government have supported measures introduced by the Lord Chief Justice to deal with that burdensome risk.

The protocol, which is only a year and half old, in setting out the proposals, states:

“Central to the Protocol is its identification of a consensus that no trial should be permitted to exceed three months or an outer limit of six months, save in exceptional circumstances.”

Those are not my words; they are Lord Woolf’s, and he elaborates on that point.

One of the things that has been done since the Jubilee line trial is the introduction of a protocol that says, “We will have shorter trials. This is the way to do it. In procedural terms, here is the way in which you can have much shorter trials.” That is one of the things that will lift the burden. In fact, the Government have argued that the main element of the burden is the length of trial.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

One of the suggestions that the Lord Chief Justice contemplates is that the indictment should only cover the central material on which the Crown needs to rely, and that the concept of full criminality should play no part in the indictment.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is correct and the right hon. and learned Gentleman made the point well. We have discussed in the debate and in others why the “whole criminality” point is not valid. It is not compatible with any other part of the criminal justice system, nor is it necessary to secure justice. That is the issue.

I asked the Solicitor-General, and he gave me a perfectly reasonable answer, to show us why we have a continuing problem post the Jubilee line case. The case is relatively old and has not been relied on. The Solicitor-General cited three cases that he said gave rise to the problem being one that the three strands are not sufficient to address, and that a fourth strand is required. He said:

“There is a serious history of such proposals, and eminent judges have made reports”

but

“Since the passing of the Criminal Justice Act 2003”

—so, since the last time we looked at these issues—

“there has been further evidence of the importance of introducing such a measure. I referred to cases that had to be severed. In the Talbot Village Trust case, completed in 2004, the trial judge had to order the prosecution case to be reduced for management reasons. Again, in the Versailles case of 2004, which involved Cushnie and others, the judge ordered three counts against one of the defendants to be severed in the interests of trial management.”—[Official Report, 29 November 2006;Vol. 453, c. 1132.]

He also mentioned a third case, that of the Global Wildlife Trust.

Were those cases evidence of an unsuccessful outcome? I was assisted by a young Mr. McCracken—a lawyer of the future working in my office. It would be a slight overstatement to say that his research required great skill, because the availability of the web and the Serious Fraud Office website enabled us to find a summary. With him looking up the cases for me, I discovered the details. Neither case was a failure.

The press release concerning the first, dated16 February 2004 and entitled

“Fraud on charity hidden in £15 million building contracts”

said:

“Three construction industry professionals were convicted today at Winchester Crown Court for defrauding the Talbot Village Trust in Dorset of £3.5 million through manipulation of building contracts. The fraud related to six contracts totalling £15 million and involved invoicing for work not done and disguising inflated professional fees in the contracts.”

I accept that that case had gone on for a relatively long time; it had started in the magistrates court in 2001. However, although two defendants were acquitted, three were convicted. Unless the Minister is going to say that a case that results in any acquittals is a failure—not an argument that I hope anyone would make—the serious punishments that were awarded for those offences prove that the case did not, in fact, fail.

The other case was the Versailles case concerning Carlton Cushnie, who is based in my constituency. The Serious Fraud Office press release of 29 June 2005 was entitled

“The Versailles case: Carlton Cushnie ordered to pay”

and said:

“Carlton Ellington Cushnie was ordered today at Southwark Crown Court to pay over £10 million by way of confiscation in relation to the Versailles fraud.

This hearing arises from Cushnie's conviction on 25 May 2004, and sentencing on 8 June 2004 when he received six years imprisonment and was disqualified from acting as a company director for 10 years. The sentence was handed down for conspiring to defraud private investors who provided monies to Versailles Traders Limited and Trading Partners Limited. The earliest Cushnie can be released from prison is 8 June 2007.”

So the two cases that were readily accessible on the SFO website were not unsuccessful. Convictions and significant imprisonment were secured in both, and one secured a huge financial penalty. There were two acquittals in one of the cases, but it was possible to present to the juries both the seriousness of the cases and the breadth of the criminality involved. The juries—one in Winchester and one in Southwark—reached guilty verdicts.

Mike O'Brien (Labour, North Warwickshire)

I shall not try to make my point by way of intervention, and we shall perhaps have the opportunity to deal with it later. I shall merely say that, in the case of Talbot Village Trust, the judge ordered that the scope of the prosecution case should be reduced for trial management reasons. In the SFO’s opinion, that reduction made the case appear disjointed, and undermined the prosecution case in a number of key areas, although it was none the less successful. There is capability to succeed, but the SFO was concerned about the way in which the case proceeded as a result of the decision.

I am conscious of your strictures, Mr. Bercow, so I shall not go into detail on the Versailles case on intervention. In that case the judge ordered one of the three counts against Cushnie to be severed in the interests of trial management, and the SFO again felt that that did not allow the jury to see the full picture.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This sort of exchange is valuable. However, the whole history of both cases—the committal from the magistrates court, the commencement of the trial and the judges decision on trial handling—came before the Lord Chief Justice’s direction of last year. Both cases also came before the report of Her Majesty’s inspector into the Jubilee line failures. My point is that we have learnt the lessons from the system failures that led to long trials and burdensome implications for jurors. We have not, however, learnt the lessons of the past year and a half—since the beginning of the changes. Those changes will reduce trial lengths substantially in nearly every case, but without—in the view of the judges and the SFO—prejudicing the generality of the case on guilt that is presented to the jury.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman’s point is important. He may join with me in inquiring about something on which the Solicitor-General may be able to help us later. A six-year sentence is a very long one by modern standards, particularly for fraud. If it is being suggested that the level of criminality was not reflected in the final outcome of the sentence, it would be interesting to know the view of the Solicitor-General on the sort of sentence that the total criminality ought to have attracted. I really wonder whether it would in reality have been very much.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Just one other point, although we could turn this into a seminar on recent successes in SFO cases. I am conscious, Mr. Bercow, that you will not allow us to do so.

David Heath (Liberal Democrat, Somerton and Frome)

It would be a useful precedent.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Yes, a useful extra seminar that we had not anticipated. I will just pick up this point; in the Winchester case, there was a unanimous verdict by the jury. So, that was not one of those cases that struggled to get a verdict, and I share the concern of the hon. Member for Beaconsfield that the evidence and argument do not suggest that justice there was letting off those people lightly, since they were not.

That leads to my last point. The unspoken reason motivating the Government in part, which sort of slipped out on Second Reading, is that they think convictions will go up if there is no jury. If that is in their minds explicitly or implicitly, then it is a worrying thought. There are a couple of obvious points to make if that was their thought.

We all want to have criminals dealt with by the justice system, and to be convicted when they commit offences. Serious criminals need to be convicted and punished seriously. When you represent a constituency like mine, where there is still a lot of poverty and some extreme affluence, so near to the City of London, not a few people have come to see me over the years saying, “Why is it that the heavy hand of the law comes down on little people for small offences”—that is not my phrase, but other people’s—“when the big crooks working in the City or elsewhere are not being caught?”

So I am up for these people being prosecuted, with the SFO doing its job properly, serious investigation being pursued and people being brought to book and locked up when they deserve it. However, if the suggestion is that we are not getting enough guilty verdicts, the evidence does not support that and the philosophy is fundamentally flawed.

David Heath (Liberal Democrat, Somerton and Frome)

Another thing occurs to me in what my hon. Friend was saying about these two cases that the Solicitor-General relies on as evidence of the need for change. For his proposition to be correct, then there must be an assumption that the Lord Chief Justice would produce new rules of procedure and new guidance for trials without a jury as opposed to trials with a jury. The purpose of those new rules—[Interruption.] Well, the Solicitor-General is looking puzzled, but otherwise the severance would be exactly the same in a trial before a judge alone as with one before a jury. If that is the case, it means that having got the length of complex trials down, by using the Lord Chief Justice’s rules, the Government now propose to increase the length of trials—and, therefore, their cost and complexity—once the jury was safely out of the way. Does my hon. Friend believe that is the Government’s intention?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The debate could be extended, but without putting words into his mouth what my hon. Friend implies is that we would, objectively or rationally, have to take a different view if we had all seen a report written by the Serious Fraud Office saying that since the experience of the jubilee line case and Her Majesty’s inspectors’ report, and since the Lord Chief Justice’s protocol, and the experience of recent trials, then in the light of all those experiences it was still of the view that the new procedures were not delivering the outcomes that everybody has sought. If that came in the annual report of the Serious Fraud Office, then we would all have to take notice and probably say, “We’ll give it a bit more time, to see if they bed down a little longer”. We would be arguing for time. However, that is absolutely not the case, and the last of these cases saw a conviction only in June 2005.

To do the Solicitor-General credit and to be fair, I will observe that I have not gone into similar detail on the last of the three cases that he cited—the Global Wildlife Trust—for the simple reason that it was not as easy to find out the details from the same place. So, of course, I shall wait to hear from the Minister. However, the Solicitor-General conceded that it was not that the prosecution was not successful—the implication was that it was successful—but that the size of the case was limited. So we return to the argument of whether the full criminality was exposed to the court.

Joan Ryan (Labour, Enfield North)

To help the hon. Gentleman, he might like to know that in the case that he could not find—the third one on the Global Wildlife Trust—the severance of the indictment meant that one defendant was not tried in the first and, so far, only trial, and that it is uncertain when, if ever, the second trial will take place. I think that that is relevant to his remarks—one of the trials did not reach a satisfactory conclusion, in the interests of justice.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

My wise hon. Friend the Member for Somerton and Frome, one of the omnipresent three wise men, said that it is not surprising that we could not find the information as the last trial has not happened yet, which is, of course, true. I would not dare to contest that.

The serious point is that we could make a judgment only if a trial went ahead. However, in my experience, from my more limited number of years at the Bar, prosecuting and defending, there is a severance of many criminal cases. One of the first cases that I prosecuted for Thames Valley police was for affray on Blackbird Leys estate in Oxford, which occasionally features in debates on criminal justice in this place. Lots of people participated in the case and in the end there were two trials because it was easier for case and jury management. They were related to the same offence, but none the less that was the decision.

That is quite common in all sorts of cases. We look at how we can best manage the case and consider things such as the number of defendants, bundles of papers and the length of time. That is not unique to fraud cases and it is not a sign of weakness. Of course, we would not get a whole picture of life on the Blackbird Leys estate over 24 hours if a trial was split into two, nor the whole story of a company and its activities over a lifetime of 10 years, but that does not prevent justice from being done. The question is whether justice is done.

My proposition is simple: it is neither timely nor reasonable to implement the Bill. The Minister made a procedural point and I shall end with a substantive one. She told us not to worry because two timetable triggers remain and that if the measures become law two months after the passage of the Act, it is all right because a commencement order would yet to be laid. However, my hon. Friend and I have spotted the flaw. The commencement order would not require the assent of both Houses of Parliament by affirmative resolution. So that is not a sufficient protection. Although the Minister might delay for a day, a week, a month or even a year before the introduction of the commencement order by the Attorney-General, I am afraid that we saw through that claim.

Finally, on the four strand approach, there is a consensus that three of them are perfectly acceptable. The fourth would change a fundamental element of British criminal justice. We should not change a system that has the confidence of the people and delivers a very high success rate—we should not even consider it, unless everything else has been tried, which we have not yet done. Even if we had, some of us would still need persuading. So we are certainly not persuaded.

New Clause 1

Douglas Hogg (Conservative, Sleaford and North Hykeham)

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

The object of the new clause is to enable the defendant, or a defendant if there be more than one, to make an application for a trial without a jury. At the moment, as the Committee knows, an application for a judge-alone trial under section 43 can be made only by the prosecution. That raises the question: why should a defendant not be able to make such an application? Itis my recollection that Lord Justice Auld, in his recommendations, contemplated that a defendant should be able to make an application. What I seek to do, therefore, if we must go down this road, is to ensure parity between the prosecution and the defendant.

The question that we need to address is whether there are circumstances in which a defendant might wish to have a judge-alone trial. The answer is yes; I can contemplate at least three sets of circumstances in which that might happen. The first, which will occur increasingly often thanks to changes in the legal aid rules, will occur when defendants pay for their own legal representation. A defendant might well conclude that it would be quicker to hold a trial without a jury. If it is quicker, and he is paying for his own representation, it will be cheaper for him. That might be the sort of situation in which a defendant would wish to have a judge-alone trial. There are parallels in cases of libel, in which defendants can elect judge-alone trials.

The second circumstance that might arise is that in which a defendant might conclude that he is likely to get a more favourable hearing from a judge. I think that that would be a fairly exceptional situation, but I can think of it arising in some circumstances. A defendant may be of a class that would make him think that he would get a less sympathetic hearing from a jury than from a judge. Let us be honest about this: if one was a professional, middle-class person and an alleged white-collar fraudster, one might feel that one would get a thoroughly unsympathetic hearing from a jury. That has been so in some libel cases, in which defendants have come to that conclusion. One could ask oneself whether the same is not true of politicians. We are said to be one of the least popular groups of individuals in the land, which may well be true. If I were foolish enough to start a libel action, I would much rather have my case tried before a judge alone than before a jury and I can contemplate situations in which, if I were tried for a serious fraud case, the same would apply, simply because we are the kind of people that we are.

There is a different situation that is equally relevant, which depends on the nature of the offence. Let us say that a defendant is charged with milking pension schemes. We know how sensitive the public is about pensions schemes, and rightly so. A defendant might come to the view that such charges would get an unsympathetic hearing from a jury. Let us consider Farepak: I am not suggesting that any fraud has been committed, but for the purpose of illustrating the argument, let us assume that there was an allegation of fraud associated with Farepak. I can very well see that a defendant who was charged with that kind of offence might think that he would get a pretty rough ride from a jury. There are cases in which a defendant might choose a judge-alone trial, because he reckoned that he would get a rough ride from a jury.

The third class of cases is related to the first, but nevertheless stands alone. I can contemplate a situation in which a defendant might conclude that the complexity of a case was so great that it was best dealt with by a judge, on the basis that the jury would not properly understand it and would not return a safe verdict. Let us consider cases of long-term fraud involving lots of people from abroad. Such cases would involve a mass of documents, much of which would have to be translated from Arabic, for example, and the original text of which would not be comprehensible. Furthermore, and more damagingly from the defendant’s point of view, most of the witnesses would speak in Arabic and would have to have their evidence translated by an interpreter. I have done a number of cases in which interpretation was essential and I can say that one rather loses the thread of the evidence when it comes through an interpreter. If there are a lot of witnesses whose evidence is being interpreted, there is a real danger of losing the plot, however good the interpreter may be—many of them are quite good in this context. In those circumstances, I can imagine a defendant saying, “This is a jolly difficult case because of the special reasons that I have advised, and I would be happier if my case were determined by a judge alone.”

I am against this Bill and I hope it fails, but now that we are here we have to try to improve the beastly thing if we can. It is difficult to see an argument of principle for the defendant not being in the same position asthe Crown. It was the view of Lord Justice Auld that the defendant should be in that position and that is the proper way forward. I therefore commend new clause 1 to the Committee.

David Heath (Liberal Democrat, Somerton and Frome)

I listened carefully to the right hon. and learned Gentleman, and I found his arguments persuasive to an extent. I am inclined to support his views.

On equity, if there is to be a trial in which the forces on either side are equal under the law, it must be right in principle that the application for a trial without jury should be open to both the prosecution and the defence. I share the right hon. and learned Gentleman’s view on circumstances in which the defence might consider it in the interests of the accused to go to a judge-only trial.

He mentioned the complexity of a case, but the crucial issue is the complexity of the defence. Much of our discussion has been to do with whether the complexity of the prosecution case is understood by a court, but there are instances in which the complexity of the defence in a fraud trial will raise the question whether the jury can understand it fully. My view is that, if both the defence and the prosecution do their work properly, that will not be an issue. However, if there is not a requirement for a jury to be in place, it will be perfectly proper for the defence to argue to a judge that the complexity of the defence is such that it should be heard before a judge only.

That will be particularly true in cases on the cusp of sharp practice and dishonest behaviour in which the defence argues that the defendant’s behaviour was reprehensible in the view of the common man—and therefore of the jury—and not sound business practice, but was not fraud because it was not dishonest. At that margin, a defendant might feel better able to explain their position to a judge than to a jury.

Nothing that I say should be taken as an expression of a view contrary to that which I have expressed throughout progress of this Bill and preceding Bills. I believe that the jury is an essential part of the process, but I can conceive of a position whereby the defence would want a judge-only trial.

My last point returns to principles. I have mentioned the principle of equity, but there is a further principle. As my hon. Friend the Member for North Southwark and Bermondsey said when speaking to the previous amendment, the Solicitor-General, in presenting the case for the Bill on Second Reading and in Committee, has come perilously close to saying that one of its purposes is to secure more convictions, because more people will be found guilty by a judge than by a judge and jury. Considering that one purpose of it is to replace the finding of fact by a jury with the finding of fact by a judge on the basis of the same evidence, that is a worrying principle on which to work.

That concern could be dispelled at a stroke if the Government were to accept the new clause, which would make it clear that not only the prosecution but the defence could expect the interests of justice to be best served by a court without a jury. Nothing could better exemplify that than a clear and explicit statement that the Bill is not purely a device to secure more convictions but is intended to serve the best interests of justice. For all those reasons, I shall be interested to hear the Solicitor-General’s response to the right hon. and learned Gentleman, who made an interesting point.

Dominic Grieve (Conservative, Beaconsfield)

Some Members will recollect that when we considered the Criminal Justice Bill in 2003—it introduced section 43, the matter now under consideration—we considered whether jury trial should be restricted for several different categories. One of the principal arguments at the time, and one on which we persuaded the Government to back down, was over the Government’s wish to give a general right to the defendant to obtain a trial without a jury. The right could be denied in cases where it was thought that the defendant was trying to avoid the wrath of the public; that is, the defendant might consider that a compliant judge would be kinder than a jury. I took grave exception to the principle and argued against it. As a result, it was eventually defeated in the Lords and the Government dropped it.

We also considered whether to get rid of juries for cases in which jury nobbling had taken place, or where there were grounds to fear that it might take place and justify, in effect, a Diplock court because the trial could not take place with a jury. For obvious reasons, the prosecutor would normally seek such a ruling, because, on the whole, defendants would not seek a ruling on the basis that they would nobble their own jury, albeit sometimes a defendant fears that somebody else—for example, a co-defendant—might nobble the jury to his prejudice.

Leaving that to one side, I have never been keen on the idea of defendants being able to opt out of jury trial. However, having said that, my right hon. and learned Friend the Member for Sleaford and North Hykeham made a good case, because what is sauce for the goose is sauce for the gander, and there is a lack of equality of arms in a process in which only the prosecution can argue that the seriousness, complexity and length of a trial is such that the jury should be removed, and the trial should take place by judge alone. If the Government are arguing the principle that it is offensive to good justice that such long, complex trials should be allowed to take place with a jury, I cannot see why the defendant should not be allowed to make that argument as well.

Moreover, if we are to end up with multi-handed trials, which often happens—it is common for four, five, six, seven or eight defendants to be tried for fraud together—when the case goes before the Lord Chief Justice on an application by the prosecution for trial by judge alone, it must at least be possible that different defendants will have different views on the matter. Some defendants may welcome the idea of trial by judge alone, but others may argue that they wish to be tried by a jury. Therefore, while the system in the Bill allows such an argument to take place, it seems to be a little defective, whereas the new clause tabled by my right hon. and learned Friend would establish straightforwardly and clearly that all parties can argue one way or the other. I do not think it beyond the bounds of possibility that there might frequently be circumstances in which all sorts of arguments would be made from different angles.

To take an example, the Solicitor-General raised the issue of the full criminality being exposed. One consequence of the exposure of full criminality, as an example, is that it frequently happens—I have been involved in such trials with juries—that there are two principal defendants and a third defendant whose role in the overall alleged fraud is pretty minimal. He, however, has to sit through months of evidence, while his barrister picks up substantial fees for doing absolutely nothing because it is not until day 56 of the trial that he finally comes to the witness box to give the bit of evidence that concerns his client.

In such cases, there might well be arguments for severance, and one of them might be that one lot of defendants says, “It is a long and complex trial. We would like it to take place in front of a judge alone, because that would shorten it,” whereas the other defendant says, “This is a long and complex trial, and it will be made even longer if I have to appear in front of a judge alone; I want it to be severed, and I want to argue to be tried in front of a jury, because my case is a short and simple one.”

I give that by way of illustration. I might add that that argument could even take place as the Bill stands. Given that one can easily foresee a multiplicity of arguments, I must say that my right hon. and learned Friend has made a powerful and compelling case and I will be happy to support him if the matter goes to a vote. I see that the Solicitor-General has a full reply to make. It might be that on this issue we have persuaded him that there is merit in the point that is being made.

Mike O'Brien (Labour, North Warwickshire)

I have in my hand the original clause that the Government included in the 2003 Bill. At that stage, it was our intention that there should be an ability for the defendant to waive jury trial. In that case, we also provided for defendants taking different views by giving a veto to a defendant. I am curious, because the Conservatives strongly opposed the provisions at that time and it seems that they nowtake a somewhat different view, as do the Liberal Democrats. Can the hon. Gentleman say whether, if we introduced a provision such as this, which we had not intended to do, the Conservatives—and, perhaps, the Liberal Democrats—would be disposed to support it?I might well be disposed to give it serious consideration.

Dominic Grieve (Conservative, Beaconsfield)

I fairly laid out, I hope, two key points. First, my principled opposition to opening a door that allowed people to elect trial without a jury. That is what was debated during the passage of the 2003 Bill, and it is something to which I remain resolutely opposed because I believe in jury trial. I made that clear then, and I am sure that it coloured my approach to the various areas in which the Government wanted to restrict trial by jury. However, I accept that if clause 43, which I do not want to see on the statute book, is to be placed on the statute book, then there may be an argument—the one put forward by my right hon. and learned Friend the Member for Sleaford and North Hykeham—for saying that what I have described as fairness or sauce for the goose and sauce for the gander demands that a defendant should be able to make a similar application.

Although, as I indicated, I can see that that argument could take place in cases in which there is more than one defendant, it ought to be possible, too, if there is a single defendant. I do not know what the Solicitor-General wishes to do about that. In any event, it is not my amendment; it is that of my right hon. and learned Friend, who will doubtless respond shortly. However, we could leave it for the moment if the Government wished to return to the matter on Report; it could be considered in another place; or we could all reflect on it.

My right hon. and learned Friend makes the compelling case that if we allow one party to ask for something in those circumstances, once we have conceded the principle and even though we did not like doing so, there will be a strong argument for letting the other party make a similar application. I am quite prepared to consider it, although it may be wise to reflect on it briefly before trying to reach consensus. As it is not my new clause, however, I defer to my right hon. and learned Friend—and to the Solicitor-General.

Mike O'Brien (Labour, North Warwickshire)

It has been an interesting debate. The proposal that the Government put forward in the Criminal Justice Act 2003 was similar to that being put forward as a new clause by the right hon. and learned Member for Sleaford and North Hykeham. If my recollection serves me well—I stand to be corrected—the Conservative party strongly opposed the idea, as did the Liberal Democrats. They now support the provision.

It had not been the Government’s intention to revive the proposal for the defendant to have a waiver on jury trial. However, I am more than happy to reflect on the idea. Some time ago, the Government would have been disposed to accept not the broad recommendation of the Auld review for a general waiver but a specific provision that would give a defendant a veto on a non-jury trial, so that if one defendant wanted a jury trial and the other did not, a jury trail would take place, unless the prosecution had made its application in the normal way.

That is how we dealt with it, but I have been led to believe by the substance of the debate that Opposition Members are seriously prepared to revisit the matter and would be prepared to support a Government amendment on report. I do not know whether we would be in time to do it on Thursday, but we might be prepared to table a Government amendment after due reflection and some discussion. I give no undertakings at this stage; I say only that I am prepared to reflect on the matter and discuss it.

I have listened with care to the proposals of the right hon. and learned Member for Sleaford and North Hykeham. I do not envisage that it will unduly delay the passage of the Bill. We have always tried to proceed through consensus. Given the strong speeches made by the right hon. and learned Member and by the Liberal Democrats in favour of the amendment, and the encouragement of the Opposition spokesperson, the hon. Member for Beaconsfield, I feel that the right hon. and learned Gentleman might not wish to press the matter to a Division, and that he will agree that we should reflect on it and perhaps return to it on Report.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am grateful to the Solicitor-General. I realise that he is not giving an undertaking to come back with an amendment on Report that would encapsulate or wholly reflect my thoughts. However, I understood him to say that he would give serious consideration to the principle. He indicated that he might be willing to embark on negotiations and discussions with Front Benchers. I would be rather pleased to be associated with those discussions. That said, it would be churlish not to welcome what the Solicitor-General has said.

I have told you already, Mr. Bercow, that my knowledge of procedure is 20 years old. Do I need the leave of the Committee to withdraw my motion? If, by any chance, the Government do not introduce proposals of the kind that we have outlined, I am sure that the Committee will not be surprised if I seek to catch the Deputy Speaker’s eye and move something similar on Report. I beg to ask leave to withdraw the motion.

New Clause 2

Douglas Hogg (Conservative, Sleaford and North Hykeham)

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

The new clause is a safeguard provision. If one refers to section 43 of the 2003 Act, one will see that there are precious few safeguards for a defendant. The only criterion applicable to an order as to whether a judge-alone trial is made is that which is set out in section 43(5). There, the court is not directed in any strong way to consider the position or the arguments of the defendant, and in general terms of fairness and parity, that seems to be unfair. Let us remember that under the existing provisions, the Crown is the party who makes the application, and one must assume that the Crown—the prosecution—is under the belief that it is in the Crown’s interests to make it. However, the Crown is not obliged to consider the welfare and interests of the defendant, nor is the court so directed in any direct manner. Consequently, the interests of the defendant do not seem to be properly protected under the existing legislation.

The Government from time to time talk about rebalancing the criminal system. I am deeply suspicious whenever I hear that, because I subscribe to the old-fashioned view, which I believe none the less to be right, whereby it is better by far that the occasional guilty person escapes justice than that innocent people are convicted. Incidentally, that view is regularly reinforced by Lord Bingham, the former Lord Chief Justice, who has committed himself to it in several recent judgments. I entirely agree with him. I have seen miscarriages of justice, and I have been associated with them in the criminal courts. I have seen people convicted of serious offences when in my judgment they should not have been. It is unpleasant and upsetting, and it should not happen in a mature judicial system. I want, therefore, proper safeguards.

One must ask, “In what circumstances would a defendant assert that a judge-alone trial might be unfair?” We must leave aside the fact that many judges become prosecution-minded. It is important to keep that fact in mind, but it would be difficult to articulate to the trial judge. I have practised at the Bar off and on since 1968-69, sometimes more off than on, because I was a Minister for 13 years, but it does not alter the fact that I am pretty familiar with judges, and many become prosecution-minded. I agree that that argument would not be easy to advance to a trial judge in favour of a jury or of denying a judge-alone trial, but it is a fact.

There are other curious circumstances in which that argument may arise, most notably the perverse verdict. Oddly enough, despite the name, “perverse verdict”, it is one of the important safeguards that a citizen has against the state. A perverse verdict operates when the Crown can establish the evidential requirements needed to sustain a conviction, but, broadly speaking, one should not convict in that case. There are several examples of that; I shall come to the fraud example in a moment.

In general terms, there is the mercy killing type of case in which murder is made out in accordance with the ordinary test of the Homicide Act 1957, but it was done to spare a person a long and horrible death. The perverse verdict is where the jury says, “We will not convict in such a case albeit that the legal requirements have been established.” Although it concerns a different point, the Ponting case is an example of the jury deciding that although the evidential requirements have been made out, the Government have acted oppressively in bringing the prosecution at all.

Stephen Hesford (Labour, Wirral West)

Our common-law jurisdiction has developed over hundreds of years and all that common law is judge-made. As time goes by, judges review previous judgments and depart from them or make different judgments. Does not the right hon. and learned Gentleman envisage that a judge might come up with a perverse judgment, to use his term, if he or she thought the prosecution oppressive?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

There is no chance of that at all. If the legal requirement were made, a judge would convict as a matter of fact, but a jury might not because juries bring a different set of considerations to a case. They bring the consideration of a citizen assessing the propriety, appropriateness and broad justice of the case. It is not open to a trial judge who is the judge of both law and fact to do that, but it is open to a jury. Perverse verdicts are so called because the jury should not reach that decision, in one sense, and that is why a judge will not do it. A jury, however, might, and the Ponting case is one such case.

Juries might reach similar decisions in fraud cases in which the Crown has behaved in a way that is oppressive but falls short of “abuse of process”—a technical term with which lawyers are familiar. For example, in a case in which there has been unauthorised eavesdropping, inducements to make witnesses say things or coercive conduct of a kind that does not quite so infringe the PACE regulations as to make the evidence inadmissible, the jury might well decide that they are damned if they will convict albeit that the legal requirements are met. The perverse verdict is therefore an important safeguard in protecting the individual as against the state, and I can well see why a defendant might say, “I want to have the benefit of a jury trial.”

There is another argument that flows from a point made by my hon. Friend the Member for Beaconsfield. He is entirely right to say that there is often a multi-handed defence in which one defendant is the minnow and the other defendants are the sharks. In such a case, the minnow might well want a jury trial. My new clause would enable the minnow to say, “Please let me have a jury trial.” That might have one of two beneficial consequences: the minnow might win; or the minnow’s application might be so likely to win that the Crown would make an application to sever so that the minnow’s case could be tried separately in a different pond. That is to safeguard the interests of a defendant.

There is nothing in section 43 that seriously protects a defendant but there should be. I am perfectly willing to accept that the language in my new clause might be a little off, but, incidentally, it is modelled on section 43(7) in which the phrase “significantly disadvantage the prosecution” is used by the Government. They cannot, therefore, be heard to quarrel with the phrase “significantly disadvantage a defendant” because that is their language while the phrase

“or otherwise prejudice a defendant”

is a concept very well known to the criminal courts.

I hope that the Solicitor-General, in the surprising spirit of compromise that is developing in the Committee and which as a good-natured chap I encourage, comes forward to say, “Well, he has a point and I will take it away and give it serious consideration”. If he does that, on the same terms as I have withdrawn new clause 1, I will withdraw new clause 2.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I rise to support the new clause and will briefly say why. At the moment, when an application is made, the law as drafted requires the judge to consider a limited number of issues. The most important of which is whether a case is burdensometo the jury; that is the effect of section 43(5) of the2003 Act. There is a definition of what may make a case burdensome that we have partly touched on in earlier debates: complexity, length or both. The judge then has to assess whether complexity or length can be dealt with by procedural matters and if it should become a procedural question. There is only one other further prerequisite in the current legislation. That is that the judge is prohibited by law from coming to the conclusion that to dispense with the jury would be reasonable if it would severely and significantly disadvantage the prosecution.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I think that subsection (7) applies when considering whether or not there can be changes made to the way the crown is handling or proposing to handle cases.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The right hon. and learned Gentleman is quite right; I was not sufficiently precise in my language.

The last part of the consideration is whether a trial would be able to continue by management and that is a matter when the interests of the prosecution are weighed in the balance.

There is no consideration requirement in the present Act for the defendant’s interests. The right hon. and learned Gentleman, in tabling the new clause, seeks to point out that both parties should be considered in this trial as well as the jury’s interests. The new clause has the merit of introducing a third and highly relevant player into the mind of the judge by law when going through the process. Let us look at the jury—is it in their interests? Let us look at the prosecution—would it be to their disadvantage if the processes were changed? If it is to their disadvantage, that road becomes a cul-de-sac. The right hon. and learned Gentleman asked about the defendant, but he went further than that and pointed out that what is in the interests of one defendant may not be in the interests of all defendants. That, as we all know, it always a material consideration.

The same reasoning determines whether people elect for a summary trial in a magistrates court for a lesser offence or go to a jury. Often one party, normally the less involved participant in the events that give rise to the charges, prefer a jury because it is perceived they would give consideration to the separate roles more carefully and give the benefit of the doubt. The judge, of course, follows the same rules in theory, but would not have the same confidence of a defendant as a jury. However, there would be the ability to distinguish those things. Presuming that this year the Lords will reject the proposal and next year the Government will bring it back and use the Parliament Act, if we are driven to have a new process that involves non-jury trial, it seems imperative that the interests of the defendant is in the mind of the judge when considering an application. That must mean the interests of each and every defendant and that is why the new clause has much to commend.

Dominic Grieve (Conservative, Beaconsfield)

I do not want to take up much more of the Committee’s time. It seems to me that in discussing new clause 1 we touched on the potential of opening up a new area. Although our principled opposition to this Bill remains total—I still believe that the Government will have to resort to the mechanism of the Parliament Act to get it through another place—if at some point in the future it is to go on the statute book, even if I dislike it in principle, I wish it to be as good as possible.

If we are to end up with a situation where both the prosecution and the defence can apply to the judge for trial without a jury this will have an impact on all the preconditions that have to be looked at in order to ensure that there are proper safeguard. It probably also applies to the new clause 4 conditions that we will come on to look at thereafter. As drafted at the moment, section 43 has the prosecutor’s view in mind and not that of the defendant.

If prosecution and defence representations are considered and there is an option for the defence to ask for trial without a jury in the very limited number of cases suggested by the Attorney-General and Solicitor-General, it will be very important that those measures should be so tailored first to emphasize the desirability of maintaining trial with a jury whenever possible, as long as it is not contrary to the interests of justice, and, second, to ensure that no party is placed at a significant disadvantage.

My right hon. and learned Friend the Member for Sleaford and North Hykeham has highlighted an important area in which I have always thought section 43 was deficient. It seems to look at mechanistic and procedural matters rather than at the issue of prejudice. I hope I am not opening too much of a can of worms because I can see that this is a debate which could continue well into Report if we were to carry out a major alteration to the Bill.

I would encourage my right hon. and learned Friend the Member for Sleaford and North Hykeham to withdraw the motion because, clearly, if we are moving towards the notion that a defendant also should be able to make an application, we would need to be looking at new clause 2 with that in mind. I would wish wherever possible to preserve jury trial even if one side or the other were asking for something different.

That concludes my remarks on the particular new clause, although I suspect that when we come to new clause 4, I am likely to repeat very much the same thing, which may shorten matters. One needs to look at the totality if we are to shift to a defendant being able to make the application as well.

The rest of the debate is in Hansard.