He is seriously examining the objections of Lord Taylor of Gosforth, the Lord Chief Justice, who last week castigated clause 28 of the Bill obliging judges to compel an accused to enter the witness box.
Lord Taylor's onslaught was part of an outspoken three-pronged attack by peers and judges on key planks of the Government's law and order programme. Mr Howard is already poised to drop the controversial proposal for government-appointed police committee chairmen contained in the Police and Magistrates' Courts Bill, to head off a Lords revolt.
In cases where defendants have signalled that they will not offer evidence at trial, clause 28 would require judges to 'call upon' them to do so. Refusal to go into the witness box would risk the court or jury drawing adverse inferences. Lord Taylor believes it is sufficient for judges to have a discretion, exercisable in individual cases depending on their circumstances, to make adverse comments during summing-up on an accused's failure to testify.
He argues that a refusal to testify might be seen as defiance of the judge, which could have a more adverse effect on a jury than a judge's comments when summing-up.
Mr Howard and Home Office colleagues believe a discretionary power might serve to intensify the danger highlighted by Lord Taylor, whereas a blanket rule would mean all cases received the same treatment. But they have recognised that the objections of the Lord Chief Justice must be studied carefully.