HC Deb 13 May 1908 vol 188 cc1161-75

Order for Third Reading read.

Motion made, and Question proposed, "That the Bill be now read a third time."

SIR F. BANBURY (City of London)

said he was glad to see the hon. and learned Gentleman, the Attorney-General, in his place, because he desired to ask him a few questions with regard to the office of Director of Public Prosecutions. He thought he was correct in saying—and he hoped the Attorney-General would correct him if he was wrong—that when that office was divided some years ago it was found not to answer, and when a Report was made on the division, it was strongly recommended by eminent counsel that the subdivision should no longer be allowed to exist. As far as he could remember the hon. and learned Gentleman had said that matters had altered very considerably since the Report and that the passing of the Criminal Appeal Bill had rendered it absolutely necessary that further assistance should be given to the Treasury. It had been pointed out on his side of the House that further assistance might be given without dividing the office. They all knew that if they had two chiefs of two offices they must both be good men and paid salaries commensurate with the dignity of the two offices set up, whereas if they only had one chief they only had to give one salary, and they could give a lower salary for the second post and still have the work well and properly done. He was sure the Attorney-General would agree with him when he said that it was absolutely necessary now that every economy should be practised; that could not be denied on either side of the House, and therefore he wanted to know if it was too late to retain the office as it was at present, with one head, receiving an adequate salary. He would be the last to object to an adequate salary being paid to anyone, least of all to a prominent legal official. He did not wish in any way to prevent the Attorney-General filling the office in a proper manner, but he would like to ask whether he could not, by having one head, effect a saving, without injury to efficiency. He had listened to the speeches on the Second Reading of the Bill and also upon the Expenses Resolution, and he had not heard any adequate reason why the office should not be held under one chief, with a certain number of capable assistants under him. The Attorney-General would remember that a question arose as to what the cost would be under the Bill, and that he could not inform the House at that time what it would amount to, but he thought he gave an undertaking or said that as far as he could he would see that no further appointments were made than were absolutely necessary, and that, as they could not tell how many appeals were going to be made under the Criminal Appeal Act, to commence with he would proceed carefully and not appoint more than a small number of new officials. Some time had elapsed since that statement was made, and he would like to ask the hon. and learned Gentleman whether he had seen anything to induce him to vary that opinion, and whether, after consideration, he could give them any indication as to the cost, at any rate for the first year. He did not want to bind him beyond the bounds of reason, and he quite admitted that in two or three years time they might have a great number of appeals or very few appeals; much depended on the decisions of the Judges, and on other circumstances over which neither the hon. and learned Gentleman nor that House could possibly have any control; but, in view of all those circumstances, he thought it was advisable to proceed cautiously in the first instance. He saw the Chancellor of the Exchequer opposite, and he was sure he would agree that in view of all the expenses which were going to occur next year it would be advisable for the moment not to over-burden the finances of the country by appointing too many distinguished lawyers to these particular positions It was a little awkward, as both the hon. and learned Gentleman and the right hon. Gentleman opposite belonged to that great profession, but he was certain their public spirit rose above their profession, and that they would desire to minimise, as far as possible with efficiency, the emoluments of the office. He was not quite sure, with regard to the qualifications in subsection 4, Clause 1, what people were to be appointed. The Director of Public Prosecutions was to be a barrister or solicitor of not less than ten years standing. He did not know that that was long enough. He would have thought that fifteen years would be a very much better time, because it was difficult to learn all the intricacies of the law in ten years. Then again, the Assistant Director must have seven years experience, and he would like to know why they should not both have the same number of years experience. The Assistant Director would be nearly as responsible as the Director himself, and it was very necessary that he should have ample qualifications and experience for fulfilling that post. He was talking about something of which he had not had a very great experience, and he was quite willing to accept the answer of the hon. and learned Gentleman whatever it might be. The hon. and learned Gentleman might tell him that these words were only put in as a safeguard, and that he would see to it that the best possible men were appointed. If that was so, he did not think he had anything further to say, but in an Act of Parliament it was best to leave nothing to the people who had to carry it out. They might not always have to deal with people so capable as the hon, and learned Gentleman, and therefore he would rather not leave anything to be decided by the people who would have to carry out the Act. If that had been done in the years past they would not have had so much trouble as they had now. Sub-section 4, Clause 2, read— It is hereby declared that the provisions of any Act requiring or authorising any Court to make on order for the payment to the prosecutor of any expenses of or incidental to the prosecution of any offence apply with respect to the payment of those costs to the Director of Public Prosecutions, as they apply with respect to the payment of those costs to a private prosecutor. He presumed that that was a just thing. He did not know to what it committed them, but he presumed it was necessary.

*MR. REES (Montgomery Boroughs)

said he did not know whether the splitting of the two offices portended the resignation of Lord Desart, who had carried out his duties to such great satisfaction for so many years. He hoped that if it did he would retain one of those offices, which he rather understood was the case, and if the Attorney-General would tell the House that, he would satisfy legitimate curiosity on the subject. He did not know why the hon. Baronet took exception to the qualification provided by subsection 4, Clause 1, because not only was the qualification considerable in itself, but he understood that such technical qualifications were not altogether necessary, but that it was more a safeguard, a counsel of perfection, than of necessity. Either of the officers holding these offices was in a position to obtain the best possible legal advice, including that of the Attorney-General himself, whenever he wanted it, and not only had the office been held to public satisfaction by Lord Desart, but one of his predecessors, the late hon. Member for Sheffield, whose loss the House so much deplored, was also by no means unsuccessful in carrying out his duties, though he might have been properly described as an amateur lawyer. Nor could he see why the hon. Baronet objected to the lesser qualification in the case of the Assistant Director, because, except in regard to politicians, it was presumed that the senior officer was more likely to hold the senior place and to be the more capable to perform the duties. He did not suggest that that was a law of universal application, but he thought it applied to offices of this character. Would the Attorney-General tell them what was going to be the salary of the two offices after they had been divided as was proposed in the Bill?

MR. RAWLINSON (Cambridge University)

said that on the Second Reading he made a strong appeal to his friends to allow the Bill to go through, understanding that it was urgent and necessary, but he would like to make a small point of complaint about it. It was said to be urgent then and was urgent then. It was absolutely essential that it should be brought into force before the Criminal Appeal Act came into force on 18th April. The Third Reading had not been brought on till now, and the Criminal Appeal Act had been in force for some considerable time. When they were appealed to to allow to be pushed through before a particular date a Bill which never came upon the Notice Paper again, that seemed to be a fair subject for criticism. It was only because he was friendly to the Bill that he dared to take up the position of a candid friend of the Government. As, however, delay had occurred the Government could give them information now which they could not do on earlier stages. They must know now, of course, what the arrangements were, and what staff it was proposed to have for the Public Prosecutor in future, and probably they could give details in regard to the expenditure, etc., which on the Second Reading of the Bill they had no right to ask for because of the urgency of the case. He fully agreed with what had keep said of the virtues of Lord Desart, though why such a distinguished servant should be referred to as an amateur lawyer he did not know. He thought it would probably be agreed that the qualification in Section 1, subsection 4, would be amply sufficient. The qualification for barristers and solicitors he held was always founded by their enemies upon the well-known Latin motto "Nemo fuit repente turpissimus." It might apply possibly to those being called to the Bar or seeking admission to the ranks of solicitors, but not to those who had become barristers or solicitors. The object of a qualification of this kind was probably to prevent the appointment, if such a thing were possible, for political reasons, of a person who was not a lawyer at all to a post of that kind—a course of action which was, he believed, known some thirty or forty years ago. The minimum qualification of seven years was amply sufficient. This was an important Bill and was necessary to the working of the Criminal Appeal Act, and no doubt it was desirable that the House should pass it. At the same time, they were now in a position to receive further information than they had on the Second Reading. The Government were to be most sincerely congratulated on the appointment of Sir Charles Matthews as director of the new office.

MR. WILLIAM RUTHERFORD (Liverpool, West Derby)

said they had been strongly appealed to on the Second Reading not to go into the merits of this important Bill on the ground that it was absolutely necessary that it should be passed before the Court of Criminal Appeal Act came into operation. But as the Criminal Appeal Court had come into existence, and no attempt had been made in the meantime to put this Bill on the Statute-book, they might take the opportunity of looking at it again on its merits, and ascertaining whether there was any real necessity for it. This subject was really very important. This was the third time within the last twenty-five years that it had come before Parliament, and if he understood the effect of the Bill aright it simply meant putting back the law as it stood between 1879 and 1884. The office of Director of Public Prosecutions was established by the Prosecution of Offences Act of 1879, with a salary of £2,000 a year, and the patronage of making the appointment was left with the Secretary of State, but the Attorney-General had the right to appoint six assistants to the Public Prosecutor, to divide the country into districts, and generally to make arrangements for public prosecutions. That Act had not been in operation five years when it was referred to a Committee to consider the whole subject, and to say whether it was really necessary to maintain this army of special officials. As a consequence of the Committee's Report the Act of 1884 was passed, the effect of which was that the whole of the appointments made under the Act of 1879 were revoked, and the Solicitor to the Treasury became, thereupon, the official Director of Public Prosecutions, and it was provided in that Act that any assistant solicitors in the Treasury Office would be competent to take up and discharge those duties. By Section 3 of the Act the police had to send particulars of all their prosecutions to the Treasury, and Section 4 repealed the Act of 1879 with the exception of the second paragraph of Section 2, and Section 6, which was now repealed by this Bill. Substantially, what was done by the Bill was that the procedure set up by the Act of 1879, and condemned by the Committee in 1884, was to be put in force again. The Secretary of State had now to appoint a Director of Public Prosecutions. That was exactly the section of the Act of 1879 which the Act of 1884 revoked. But it was to be put back in a worse form with regard to the assistants. In the Act of 1879 the number of assistants was restricted to six, and, of course, they could not get more than £2,000 a year, which was the amount paid to the chief, and therefore they had some sort of an idea of what it was going to cost. That was not the case in the present Bill. There might be practically as many of these officials as the Government chose to appoint. By Clause 2, Section 6 of the Act of 1879 was repealed. That was an exceedingly valuable clause. Why had they gone out of their way to repeal it? The effect of the section was that when a prosecution had been undertaken by private people, or by a person duly qualified under some statute to prosecute, and had been taken out of his hands by the Director of Public Prosecutions, who had a right to intervene in any prosecution whenever he thought fit and take it up, and the Director of Public Prosecutions had withdrawn the prosecution, it should be competent for the original prosecutor to apply to the Judge on an affidavit to get the prosecution reinstated. It was sought by this Bill to take away that very useful and proper clause, and the effect would be that if the Director of Public Prosecutions thought certain proceedings ought to be put an end to all he had to do was to intervene and take the matter up, and then decline to go any further with it, and the original prosecutor had no right to go on. He entirely failed to understand upon what conceivable grounds it was sought to repeal such an exceedingly important provision. He had looked up Hansard and found that the debates did not last two minutes altogether either on First, Second, or Third Reading or in Committee on the Bill of 1884. They also found in the excellent Report to which reference had been that the prosecution itself fell into the hands of the Treasury and therefore the Committee recommended that in the interest of efficiency and economy it would be much better if the decision as to the prosecution and its carrying out was in the hands of one person instead of two. On the recommendations of the Committee the House passed the Act of 1884. Now, the House was asked to put an end to the Act, and to revive the procedure which that Committee condemned, because there was a change consequent upon the new law of Criminal Appeal. It was difficult to see why Criminal Appeal should have anything to do with it. He had intended on the occasion of the Second Reading to have gone into the merits of this Bill, but, so strong was the appeal made to the House to pass the Bill on the ground of urgency, that he refrained from so doing. Now they found there was nothing in the point of urgency, and unless he could get some satisfactory assurance from the right hon. Gentleman he should certainly be disposed to vote against the Third Reading. It was a stupid departmental measure, the only result of which would be to create a lot of patronage, and in his opinion no useful purpose could be served by it.

MR. FELL (Great Yarmouth)

said he was glad the hon. Baronet representin the City of London had given the House an opportunity to say a few words upon this subject. This work had been very successfully handled by the Treasury Solicitor and Director of Public Prosecutions and his assistants, one of whom was especially selected for the purposes of taking these prosecutions. Under the old system no difficulty had arisen to prevent the Treasury Solicitor getting further assistance if he required it, and that could still be done and he could still remain the head. It was a somewhat extraordinary thing that two days before this Bill was to be read a third time a paragraph should have appeared in the public Press giving the name of the gentleman who had been approached by the Government and offered the new appointment of Public Prosecutor. It would almost look as if the Government already regarded the Bill as law. He was quite prepared to believe that this must have been a slip, but if it was it was a slip that should not have been allowed to occur. He was glad to have this opportunity of raising the question, so that some explanation might be given of why that announcement appeared in the Press, and unless that explanation was satisfactory he should oppose the Bill.


said the Second Reading of this Bill had been allowed to go through without discussion, because of the appeal which had been made on the ground of urgency; that the Criminal Appeal Act was coming into operation, and that these two measures should run pari passu. But the Criminal Appeal Act he pointed out became law some weeks ago. He thought the Government must be under a misapprehension. They must have forgotten that this Bill had not yet been read a third time, because it had actually got into the Press that a certain eminent gentleman had been approached as to whether he would accept the office of Public Prosecutor. He hoped there would be some explanation given of how such a serious mistake took place as to approach anyone with such an offer before the Bill creating the appointment became law. He would like the hon. and learned Gentleman to tell the House at the same time what the salary of this new official was going to be, because that question must also have been raised when the appointment was offered to this eminent gentleman. The Government must know by this time how many minor offices and officers there were to be, and perhaps the Attorney-General would tell the House that also. It was quite a new departure for a Government to take bringing in Bills in this way, and asking as it were for a blank cheque for appointments, as they had done in this instance, and in others recently. Surely the House of Commons had a right to know before they allowed a Bill to leave their control what the expense incurred under that Bill would amount to.


who was indistinctly heard was understood to say that he thought that hon. Gentlemen opposite were attributing rather undue importance to the newspaper reports with regard to the learned gentleman who was likely to be appointed to the office of Public Prosecutor. It was inevitable that there should be some kind of negotiation as to terms, but no arrangement of a final character could possibly be made until the Bill passed. It was not unusual for the Government to communicate privately to hon. Gentlemen opposite the names of gentlemen they might think of appointing to offices, and that was done in this case. It was inevitable, perhaps, that such communications should get into the newspapers, but he did not think the Government were in any way to blame. These negotiations had to be entered into, and then a binding engagement could be effected as they might be advised. Another objection had been made in regard to urgency. It was quite true that on the First Reading of the Bill he had laid stress on the point of urgency. The Criminal Appeal Act was coming into force, and they were very anxious, indeed, that the new Department should be properly equipped in readiness. But the House was well aware that circumstances had intervened which had rather disturbed the ordinary course of business. There were first the holidays, and then there were important political events which caused the adjournment of the House over a longer period than usual at that period of the year. Though the delay was regrettable it was inevitable, and it bad interrupted the progress of the Government business. When the House reassembled, hon. Members would remember, business of a very important character arose, which it was difficult and not very safe to postpone, even for a non-controversial Bill, because non-controversial Bills sometimes gave rise to a deal of discussion. He did not say such a thing was likely in this instance, but he had known non-controversial Bills put in front of some very important Bill develop a capacity for controversy undreamt of by their framers. Sometimes that was done to postpone the consideration of important matters subsequently put down. However, he was only putting that as a philosophic and academic consideration, which was not likely to be the case in the present instance. So much for the question of urgency. The hon. Baronet the Member for the City of London had reopened the question of the general principle of the Bill. He was under the impression that he had dealt with that adequately on previous occasions; still, hon. Members were well-entitled to demand at this stage of the Bill a restatement of the general principle, and, if necessary, a fresh defence of it. The hon. Baronet had said that under the Act of 1879 a separate department was created for public prosecutions, and it was put under a separate head. It was found in 1884 that a mistake had been made, and a Committee which inquired into the subject made a Report which led to the Act of 1884. The Report recommended that the Act of 1879 should, in fact, be undone, and that instead of a separate department for public prosecutions the Solicitor to the Treasury ought to do the whole work. Under the Act of 1879 a very distinguished man was appointed Director of Public Prosecutions, with a limited staff, and he so construed the Act, and rightly construed it, that he gave his duties practically no more scope than that of deciding what cases should be prosecuted by the Public Proseutor. He did not carry out the prosecutions himself; he sent them to the Treasury. That was not found to be a very satisfactory plan, and very properly Parliament said that the Act of 1879 had not carried out their intentions, and that the Treasury had better take over the whole work. Therefore, the Solicitor to the Treasury, who was the responsible head of this particular department of the administration of the criminal law, was appointed to do the work, and he thought he had done it very successfully for a long period. But the growth of public business had brought about a new and much more difficult state of things. The Solicitor to the Treasury had to perform a number of duties of which the public were scarcely conscious. He was not merely Solicitor to the Treasury in the narrow sense of that word, if it could be applied to anything so considerable as the Treasury, but he was also Solicitor to the Home Office, the War Office, the Admiralty, the Board of Works, and the Education Office. He had also a department which brought him frequently in contact with the Attorney-General. He was Solicitor for the charity work of the Attorney-General, a department which he could assure the House was one of very great responsibility and importance, devolving not merely great labour on the head of the department, but in a still greater degree on the able subordinates who saw to the details of the charity work which had to come under the purview of the Attorney-General. The Solicitor to the Treasury had also a minor department connected with the Stationery Office and the British Museum. He was also King's Proctor, an office which entailed upon him real personal and individual work to a very much larger extent than was thought. He never intervened except by the Attorney-General's fiat. Each case had to be carefully considered before it was presented to the Attorney-General, and he was the person who had to act when the Attorney-General issued his fiat. The duties of the Solicitor to the Treasury were accompanied by a mass of supervisional and detailed work. Take, for instance, the Admiralty and the War Office. He thought the House might well avail itself of the present opportunity to acquaint itself with the actual working of the great departments. The increase in the Admiralty work had been enormous. The building of docks and of ships caused the Solicitor to the Treasury a great deal of work, for nearly everything was affected by litigation. There was no field of human activity in which was not seen the shadow of the lawyer somewhere. The Admiralty at one time, comparatively speaking, was a small department; there was a smaller number of ships, and they were put in commission in a far smaller way; but the work had enormously increased, and gave rise to numerous arbitrations. The latest Admiralty arbitration had lasted something like twenty days. This involved an elaborate inquiry, and the head of the department had to possess not only a general but a detailed knowledge sufficient to enable him to answer questions on the part of the Government. All that made a growth in his work. Take, again, the Education Department. In 1884 it was a much more simple department than it was to-day. The growth of work meant that Lord Desart had been obliged to delegate much of his work, but he now found that the delegation was getting beyond the scope of proper and adequate supervision. Lord Desart said he could delegate his work to able men up to a certain point, but in the last few years his duties of supervision had been practically impossible of adequate performance on account of the immense number of the delegated duties. He was King's Proctor. At one time the King's Proctor mainly dealt with certain domestic differencies of an interesting character, but he also had attached to that office certain duties connected with international law in cases of crime. All these duties had become more urgent every year, so that what was workable in 1884 was now no longer workable. The whole purpose of the Bill was really to deal with that state of things. From this general consideration he would now pass to one or two minor points. The hon. Baronet the Member for the City had remarked that he had not told them anything about the expense. He did not know much more than before. There had not been a great many assizes or sessions. The exact number of criminal appeals up to date was fifteen, which rather justified the observation he had made previously, that he did not think that at first there would be many appeals. He had given the House the exact number of persons employed in the existing Department devoted especially to criminal business. First there was Lord Desart, the director, one assistant solicitor, who acted as assistant director, two chief clerks, one first class clerk, two assistant chief clerks, and five other clerks. They proposed to add to that number the new director, and additional clerks and shorthand clerks. At present difficulties were being surmounted by the existing staff with a magnificent energy which one very often found among public servants, who were never asked in vain, especially in the higher departments, to give extra labour, and they gave it with a greater readiness than frequently was experienced in the case of the employees of private firms. They had not seen, at any rate up to the present moment, any reason to suppose that the estimate they were making was either extravagant or underneath the demand. Of course, when the Summer Assizes began to be held, and they got the sittings of Quarter Sessions in a larger number throughout the country, they might receive some disagreeable surprise. They might find that there were a great many appeals which would lead to a heavy strain on our judicial system, but up to within the last few days they had not had any reason to suppose that they had not made adequate provision. They had no intention whatever—in fact they were too closely watched by the Treasury for that—of appointing new officers or clerks, or assistant directors, until it became absolutely necessary. As to what number might be absolutely necessary they were very largely in doubt. As to the period of qualification of any barrister who might be appointed, the limit was put at seven and ten years, and he knew of no reason why it should not be nine or eleven years, except that the limit of seven or ten years appeared to have been generally accepted. Then with regard to Section 2 which repealed Section 6 of the Prosecution of Offences Act, 1879, that was a very small and simple matter. The clause provided that where a prosecution was undertaken by a private individual, and it was taken over by the Director of Public Prosecutions, when the latter abandoned it, the private prosecutor should be able to apply to the Court for leave to go on. The hon. Member for the West Derby Division of Liverpool had described that as a very valuable clause, but they had had twenty-eight years experience of it, and it had never been acted upon once. It was a clause which it was thought must occasionally give use to some degree of oppression in cases where the Public Prosecutor had reason to think that the prosecution was being urged on by private persons from personal or indirect motives. It must be remembered that there had always been that danger in our system of criminal law, which left so much to the initiative of private individuals. Generally speaking, our law was left to be enforced by the intervention of the private citizen and the public prosecution was the exception. We did not, like other countries, put all prosecutions into the hands of the Public Prosecutor. The prosecution was put in his hands only in exceptional cases, but it was found both in other countries and in our own that very often the name of the King was used in a prosecution for some quite indirect and personal purpose; they saw it quite recently in a great prosecution in a police court, where undoubtedly the prosecution was instituted against a man who was grossly wronged, and who suffered in purse and health from motives which were not of a kind that would commend themselves to the country at large. They were collateral to the carrying on of a civil litigation. In such cases it had always been held that the Public Prosecutor should have the right to abandon such proceedings, and it had never happened or at all events very seldom happened, that the private prosecutor had desired to carry them on. They were discussing an academic question, as the clause had never been put in operation. It had been thought, however, that by the repeal of that clause it might be possible to prevent the occurrence of injustice, and as the clause had never been operative for twenty-eight years it was thought desirable as this Bill was being drafted to take the opportunity of effecting the repeal.


said the effect of the clause was that where a prosecution was undertaken by a private individual, and it was afterwards taken over by the Director of Public Prosecutions, when the Director of Public Prosecutions abandoned it the prosecutor could apply to the Court for leave to go on, and the fact that there had been no case under this clause was because its being upon the Statute-book prevented the necessity arising.


said he quite understood the effect of the clause, and had stated it, and the hon. Gentleman had just repeated it. Of course the clause was drafted with a view to give the Public Prosecutor the right to take up a prosecution, and if he abandoned it the private prosecutor could take it up. But that power, which it gave to the private prosecutor, was thought to be a source of danger in certain cases, and so they had put this provision in the Bill. But it was a small matter and not of great importance; it could not be held that the clause was an extremely valuable one, as the hon. Member for West Derby had said.

Question put, and agreed to.

Bill read the third time and passed.