Rt Hon Lord Lilley

    Mr. Peter Lilley (Hitchin and Harpenden): I welcome this debate, which gives us an opportunity to recognise the immense contribution made by Lord Justice Auld, even if we do not sympathise with the line that he has taken. He has produced a major report that is clearly and powerfully argued.

    The timing of the debate is fortuitous. New Labour fought the 1997 election in defence of the right to elect for jury trial, which the then shadow Home Secretary strongly opposed any attempts to remove. Having been elected, the Government reversed their position and decided to put two Bills through Parliament–both of which, happily, were defeated–to abolish the right to trial by jury. Labour‘s manifesto for the last general election contained a commitment to abolish the right to trial by jury. We now learn through the columns of The Times that the Government propose to abandon that position too. That shows an appalling lack of consistency, other than to betray whatever pledges they were elected on. I hope that the Minister will not try to seek safety in silence. If the Government‘s spin doctors can inform the press about their position, Ministers can inform the House of Commons.

    I approach the debate with some apprehension, because I suspect that I am the only Member here who is not a lawyer and has no legal qualifications. My first mention of lawyers in the House when I was a new and junior Member was to quote Falstaff, who said,

    “let‘s kill all the lawyers”.

    I wondered why there was a chill throughout the Chamber, then realised that on that occasion, too, I was the only non-lawyer speaking on a legal matter.

    Mr. Burnett : The Minister is too self-effacing to make this admission, but I shall do so on his behalf. He is not a lawyer.

    Mr. Lilley : In that case, I look to him for a healthy dose of common sense.

    Although I am not a lawyer, I participated actively in our discussions of these matters in the last Conservative Cabinet. Those discussions must remain confidential, but suffice it to say that the outcome was, to my satisfaction, that we did not commit ourselves to the abolition of jury trial, although we consulted on the Narey report.

    Mr. Garnier : I am sorry to interrupt my right hon. Friend, who has hardly started his remarks. We did not want to get rid of trial by jury, but neither, according to its manifesto, did the Labour party. Its manifesto said that it would

    “remove the ‘widely abused‘ right of defendants alone to dictate whether or not they should be tried in crown courts.”

    It made no mention of abolishing trial by jury. The problem that the Government face is that they have said one thing but want the world to believe another.

    Mr. Lilley : I am afraid that Lord Justice Auld intensified that problem by equating the right to jury trial with the right of the defendant to elect for jury trial. He said that there was no right to jury trial until 1855, and that it was only when people had the opportunity to escape the panoply and problems of jury trial that that right could be said to exist. That is of course a nonsense created by those who wish to pretend that it is a relatively new creation and has nothing to do with the traditional rights of the Englishman to be tried by jury for any serious felony.

    I claim no great legal expertise, but I am conscious that, although the general public are unaware of most of our judicial principles, there are some that they value and in which they have great confidence. Above all, they would have confidence and trust in the system of jury trial in the event of their facing a serious charge. I was therefore very reluctant to contemplate any attempt by the previous Conservative Government to diminish the right of access to jury trial, and I was even more hostile to this Government‘s including such proposals in a Bill. I was also suspicious of the provenance of the arguments in favour of such proposals, which are redolent of bureaucratic and professional disdain for lay involvement in the judicial process.

    It is natural for members of a profession to feel that their own expertise outweighs the contributions of lay people, but I fear that such feelings are in part responsible for proposals that the judicial establishment has outlined time and again in various reports, culminating in that by Lord Justice Auld. His report is underpinned not just by hostility to the right of defendants to elect for jury trial but by a deep mistrust of jury trial as such. My suspicion is that this marks not the concluding stages of an argument that will be resolved, one way or another, by deciding whether defendants should have the right to choose jury trial, but the beginning of a process that will erode the use of juries altogether.

    I am afraid that close reading of Lord Justice Auld‘s report has enhanced my suspicions. It is true that it contains valuable proposals on improving the way in which juries work and on increasing public participation in juries. Those of us who believe in juries should not pretend that they are perfect and incapable of improvement. Instead, we should endorse, support and adopt proposals to improve the working of jury trials, and advance our own. However, the report also contains proposals that would further erode the use of juries. Under them, many issues would be deemed too trivial for juries to consider, and would be considered instead by the new tier of district courts. Others, however, including fraud, are deemed too complex for juries. Lord Justice Auld proposes not only that fraud be removed from the purview of juries but that all cases of similar complexity be so removed in the long run. As my hon. and learned Friend said, juries would no longer have the last word on the question of guilt or innocence; instead, their conclusions would be subject to review by judges. Young people, too, would be removed from the purview of juries. Lord Justice Auld is eroding the involvement of juries in our judicial system in a number of ways, and undermining the very principle of such involvement. If, according to his logic, most cases are either too trivial or too complex for juries, what role is left for them?

    The Government‘s case for abolishing the right to choose jury trial, which Lord Justice Auld endorses eloquently and emphatically, rests on a number of presumptions, including that the right of election is powerful tool that is widely manipulated and abused by experienced criminals to escape their just deserts, and at great cost to the taxpayer in the form of expensive trials. Lord Justice Auld endorses the argument of Ministers that by removing that right they can simultaneously prevent such abuse, ensure that criminals get their just deserts and save large sums of taxpayers‘ money. Moreover, they assert, as has Lord Justice Auld, that it is wrong in principle for the defendant to choose the venue and that that decision should be made by the system.

    Those points are blown apart by the evidence. Above all, it cannot simultaneously be true that experienced and hardened criminals are manipulating the system to get off lightly and that if we removed that right it would make great savings to the system, when it is revealed that those savings come largely from those people facing shorter prison sentences or none at all. The Government, Lord Justice Auld and those who defend the proposition cannot have it both ways. Nor can they have it both ways by saying that it is a matter of principle that decisions about venue and mode of trial be taken by the system on objective criteria, not by the defendant, and yet proposing, as Lord Justice Auld has done in a further effort to narrow the scope for juries, that the choice of mode of trial, in the case of the new trials for fraud and complex cases, be given to the defendant, to sweeten the pill. If it is wrong to allow defendants the right of choice in normal either way cases, why should they be given the right of choice where attempts are being made to prise jury trials further out of the system?

    We must examine the report extremely cautiously and not allow it to weaken further the role of juries in our system. I asked a question about how many people had served on juries during the past 12 months, and the answer was 187,000. That is very considerable lay participation. Those people, by and large, take their role seriously and are, overwhelmingly, satisfied that, despite their loss of time and remuneration while serving, they have done something worth while and contributed to the justice and civic fabric of society. If we reduce such people‘s involvement in the judicial system, and the prospect of involving them, we lose a very valuable point of contact between the ordinary public and the judicial system.

    I return to the positive aspects of the Auld report. Lord Justice Auld has proposed means of encouraging more people to participate in the jury system. Some three times as many as that 187,000 people had to be invited to serve on juries before a sufficient number who were willing to do so could be found. We must make serving on a jury easier and more of an obligation. Lord Justice Auld highlighted an inherent unfairness in the system, a comment endorsed by the hon. Member for Stafford (Mr. Kidney), which would be made far worse were the right to elect for jury trial removed. That is where the lower court, having heard a comparatively minor case because it deemed it within its competence, and having convicted the defendant, subsequently passes him to the Crown court for a more serious sentence because it decides that the case was more serious than it initially led people to believe.

    We must remove that manifest unfairness, which made the Government‘s previous proposal intolerable. Far better to leave defendants the right to elect for trial by jury, with the knowledge that if they opt for the lower court, they will be sentenced within its sentencing powers with no subsequent right for the lower court to refer to the Crown court. That is a proposal in Lord Justice Auld‘s report that I hope that Parliament and the Government will endorse and implement in due course.

    22 January 2002 c188-91WH,198WH