Clause 29.—(PROVISIONS AS TO ENFORCEMENT.) (Hansard, 17 October 1950)

§ Mr. Hay
I beg to move, in page 41, line 24, to leave out from "taken," to the end of line 25.
This is a point which has some considerable importance in connection with the Bill. I should like to know, first, why the Clause has no definition of who is an authority, body or person having an interest in the performance of the obligation. The Clause provides that where proceedings are considered for the enforcement of any of the obligations or liabilities which may be in the Bill, no proceedings can be taken without the consent of the right hon. and learned Gentleman except where there is an authority, body or person having an interest … I should like to know from the Government what they mean by that, and who is to decide who is an authority, body or person having an interest. It might easily mean, for example, a frontager or a shopkeeper, who might say that he has an interest in the maintenance of the road immediately outside his shop. I should be grateful for some explanation.

§ The Attorney-General
The effect of this Amendment would be that no prosecution could take place without the consent of the Attorney-General. I am not particularly anxious to add greatly to the labours of my Department, which is already very overburdened with work and understaffed with assistance; but, on broader grounds, I am on the whole not anxious that the category of cases in which prosecutions can only take place with the consent of the Attorney-General should be increased.
There are certain classes of cases where the risk of frivolous and unnecessary prosecution is so considerable that Parliament have thought it wise to say there should be no prosecution without the consent of the Attorney-General, or in 1958 some cases the Director of Public Prosecutions, and there are some cases where such important constitutional questions arise, or such important matters of public interest are involved, that Parliament has thought it desirable that the sole responsibility for prosecution should rest with the Attorney-General. I hardly think that could be said of the class of prosecution which would arise under this Bill.
The ordinary position is that the criminal law can be enforced by anybody, the Attorney-General, the Director of Public Prosecutions, the police, or any private citizen who feels moved to invoke it. I think that that should remain the normal position in our law. The fact that that is the normal position results in this, that in those cases the Attorney-General does not intervene to direct a prosecution unless he is satisfied that in all the circumstances the public interest, including in that the interests of justice, make it desirable that the criminal law should be invoked.
In the present case we thought there was perhaps a danger that there might be frivolous prosecutions about these matters by so-called common informers and people who had no real concern in the matter at all—mere busybodies seeking to make trouble—and it was provided that prosecutions by those persons should require the consent of the Attorney-General. But I think it would be going rather too far, and I hope the Committee will agree to say that no one should be entitled to prosecute without the consent of the Attorney-General. We therefore provide in this Clause that where the prosecution was brought by an interested party, someone concerned in enforcing the obligations of the Measure, not a mere busybody but someone really concerned in the matter, he might initiate criminal proceedings, which form one of the sanctions to the obligations which the Bill lays down, without going to the Attorney-General first.
By the phrase, "interested authority" we mean authorities, or managers, or other parties whose relations are governed by the Bill. For instance, in some cases dealing with the question of controlled land it might involve the owner of the land, but in other cases it would only be a matter as between one undertaker and a highway authority, or 1959 perhaps between undertaker and undertaker. Whether the prosecution had been properly commenced by an interested party would be a question of fact which, in the last resort, the court would decide. The defendant could take the objection that the information had been laid without the consent of the Attorney-General and that the authorities on whose behalf it was laid were not interested in the sense which the Measure contemplates.
It is difficult to define it more strictly than that, but that is the intention of the Clause. 1 quite appreciate the point made by the hon. Member on the definition of "interested party" but, having heard my explanation of that, and my general submission in regard to the broader aspects of the Attorney-General's consent being required in cases of this kind, I hope he will find he need not press the Amendment.

§ Mr. Hay
I entirely agree that it is undesirable that there should be an absolute blanket prohibition unless the Attorney-General consents first, but I thought the wording was somewhat inadequate because it does not say definitely who is to decide this important point of whether an individual is an interested party. Having made the point I do not wish to press it unduly and beg to ask leave to withdraw the Amendment.

§ Mr. Manningham-Buller
I beg to move, in page 41, line 26, to leave out subsection (3).
No doubt the Attorney-General will recollect the arguments he advanced at an earlier stage which I hope can be applied very persuasively by us on this occasion with a view to getting his acceptance to the proposition I shall advance. I imagine subsection (3) of this Clause is merely intended to apply to the Post Office, but I should be interested to know whether the right hon. and learned Gentleman can say whether the exclusion from the operation of this Bill is intended to apply to any other "authority, body or person on behalf of the Crown."
This is a very wide exclusion Clause. If it is meant to apply to any other "authority, body or person" what sort of "authority, body or person on behalf of the Crown"? The Central Land Board has many activities, but I cannot 1960 see the Central Land Board being one of those authorities in question. I have come to the conclusion, rightly or wrongly, through reading the Bill, that this subsection is meant only to apply to the Post Office. If that is so, why not say so?
The second point for consideration is whether this Bill really should not apply to the Post Office. I know the difficulties the right hon. and learned Gentleman advanced about the prosecution of the Crown against the Crown, but the Post Office is one of the biggest diggers of holes in our highways. If the Post Office is to be excluded from all the liabilities created by this Bill for breaches of obligations imposed by this Bill, I can quite well imagine that this vast Measure, detailed, complicated and not easy to understand, will not be called the Public Utilities Street Works Bill, but will be known commonly, at least in the Post Office, as the Public Futilities Bill. I hope the right hon. and learned Gentleman will be able to make out a strong case, if there is a case, for the retention of this exclusion Clause, but I should be much more content if he could tell me that not only will this Bill apply to industries recently nationalised, but to the Post Office as well.

§ The Attorney-General
I am very glad the hon. and learned Member by his suggested new title for this Bill—which I notice he has not put down in the form of an actual Amendment—has been able to introduce a note of humour in our discussions of this beneficent, but otherwise very boring piece of legislation. The Amendment which the hon. and learned Gentleman has put down runs counter to what has hitherto always been accepted as the constitutional position of the Crown in relation to the jurisdiction of the criminal courts.
7.30 p.m.
The Clause is intended to preclude not only the Post Office although of course the Post Office is in practice the most important case. But earlier this afternoon we had the case of the Minister of Fuel and Power who, in relation to his powers in dealing with Government pipe-line, is a statutory undertaker. I think there may be some cases where the Minister of Transport is an authority, and one or two cases where the Minister of Supply or the Minister of Works may be an undertaker. 1961 But the principle which the Bill seeks to maintain is that the Crown, as represented by the different Ministers, is not liable to prosecution at the suit of the Crown in the courts of the Crown. It would introduce a most odd constitutional anomaly if the Crown were to be made liable in its own courts and at the suit of its own prosecutors.
As was indicated by the hon. and learned Gentleman, in practice, so far as Government Departments are concerned, the one most concerned with opening up—and later reinstating—holes in the road is the Post Office. But nationalised industries, gas and electricity and so on, although nationalised, are not emanations of the Crown and are given no protection whatever against prosecution. The Central Land Board, I apprehend, would not be an undertaker or authority for the purposes of this Bill. What are its precise powers is sometimes a matter of legal dispute, but it would not be an emanation of the Crown for the purposes of this subsection.
The effect of the subsection is simply to ensure the maintenance of what is a traditional and not unimportant constitutional principle, that the Crown is not liable to criminal proceedings. I hope that the hon. and learned Gentleman will see fit to withdraw his Amendment, bearing in mind that additional point which I made earlier before the Committee, that the effect of criminal proceedings against the Crown would be inevitably illusionary, since the payment of any fine now goes to the Crown.

§ Mr. Manningham-Buller
The last argument advanced by the right hon. and learned Gentleman is not really so very persuasive. It would appear that the effect of fining any one of these nationalised industries, gas, electricity or transport, merely means that the great British public have to find the money in one way or another. But I am glad to have received from the right hon. and learned Gentleman an explanation of the reason why it is desired to retain subsection (3). While I hope that the Post Office will in fact always fulfil all the obligations imposed under this Measure, and so would never have run the risk of paying a fine, I beg to ask leave to withdraw this Amendment.