CONSENTS TO PROSECUTIONS BILL (Hansard, 14 March 1979)

HC Deb 14 March 1979 vol 964 cc657-72 657

§ 4.30 p.m.

§ The Attorney-General (Mr. S. C. Silkin)
I beg to move, That the Chairman do now report to the House that the Committee recommend that the Consents to Prosecutions Bill ought to be read a Second time. From time to time when Parliament establishes a criminal offence it decides that, for one reason or another, there shall be no prosecution for that offence without the consent of a prescribed authority. Sometimes the authority is the Attorney-General or Solicitor-General, sometimes the Director of Public Prosecutions, and occasionally some other Minister of the Crown, or the Director in the alternative.
The reasons for these provisions seem to have been many and various. In some instances they seem to have been the result of some parliamentary whim, the cause of which is lost in history. In other cases the reason is clear. Offences of particular gravity and sensitivity, where there may be a fine balance of 658 judgment of the public interest, will not infrequently be subject to a consent provision.
It is right that from time to time these provisions should be reviewed to demote or weed out those that are no longer needed. The Bill's principal purpose is to perform that function.
When, on 24 June 1977, my right hon. Friend the Prime Minister announced the setting up of a Royal Commission on criminal procedure, he added that pending the Commission's report studies would be made within government of various matters relating to prosecution authorities and procedures. An interdepartmental working party was accordingly set up to consider aspects of the prosecution system.
I have more than once referred to the intense pressure of work on both the department of the Director of Public Prosecutions and the Law Officers' Department. That led to the inclusion within 659 the terms of reference of the working party of a detailed examination of the various consent requirements to which I have referred. The working party includes representatives of my Department, the Director's department, the Home Office, the police and the prosecuting solicitors. It concluded that a number of the consent functions now vested in the Attorney-General or the Law Officers of England and Wales could safely be transferred to the Director of Public Prosecutions. The Bill gives effect to that conclusion.
The transfer of these functions will make a modest but real contribution to expediting the administration of justice and easing the burden both upon my Department and upon that of the Director.
The enactments in respect of which the change is proposed are listed in the schedule to the Bill. Under most of the statutes listed, prosecutions take place extremely rarely. In several cases I cannot remember ever having received a request for my consent. For example, section 10(1) of the Agriculutural Credits Act 1928 makes it an offence to print for publication or publish any list of agricultural charges or the names of farmers who have created agricultural charges. My consent to prosecutions is required, but I can assure the Committee that my Department is not besieged by queues of angry farmers demanding penal action against offending publishers. The maximum penalty for that offence is £20.
Section 4(3) of the Coinage Offences Act 1936 makes it an offence to tender, utter or put off any coin which has been defaced by the stamping thereon of any names or words. Again my consent is required to a prosecution for that act of desecration, for which the penalty is a fine of £2.
However, about 100 cases under the prevention of corruption Acts are referred to me or to the Solicitor-General every year, as are also a number of applications for consent to prosecutions under the Explosive Substances Act 1883. In both cases the circumstances of the offence can vary enormously—from the trivial to the very serious and from the simple to the very complex.
I should make it clear that relatively trivial cases can often be as complex and 660 time-consuming as some of the more serious cases. The fact that a case is trivial does not mean that it is necessarily simple. The Committee will, I hope, agree that it does not justify the use of a Law Officer's time to consider whether to consent to the prosecution of a drunken driver charged with trying to slip a £5 note into a policeman's hand or the prosecution of a youngster experimenting with explosives in a garden shed. At present those cases have to come to the Law Officers.
Corruption cases in particular are often highly complicated, involving a great deal of detailed evidence. The consideration of these cases imposes a substantial burden upon the Law Officers and the resources of my Department and, in addition, on the department of the Director of Public Prosecutions in preparing the material for the Law Officers. Moreover, corruption cases often take a considerable time to reach court because of their complexity, and every reference of such a case to the Law Officers increases the delay.
I fully appreciate that corruption cases are sometimes highly sensitive politically, and that in such cases direct political responsibility is doubtless important. The Poulson series of cases was an example of that. It was, I believe, entirely right that my predecessor and then I myself should have had the ultimate control and decided which cases should be brought and—a very difficult question—when the investigation should be brought to an end.
The transfer of the statutory powers to consent to prosecutions to the Director of Public Prosecutions will not mean that the Law Officers will cease to consider important and sensitive cases of that kind. The Director of Public Prosecutions will automatically bring such cases to the Law Officers under the normal consultative procedures, which operate quite apart from the statutory requirement. Among the cases brought to us will certainly be a number of corruption cases. Indeed, I intend to give clear guidance to that effect. The transfer of functions to the Director of Public Prosecutions will in no way affect the Director's duty to act under the general superintendence of the Attorney-General. In clause 4(2) of the Bill we specifically reaffirm that principle.
661 In addition to transferring to the Director of Public Prosecutions the power to consent to, or bring, prosecutions under the scheduled statutes, the Bill makes provision for effecting future transfers without the need for an Act of Parliament both from the Law Officers to the Director, and vice versa, by statutory instrument subject to the affirmative procedure.
The Bill contains another useful provision which will save unnecessary waste of time and administrative labour. In certain circumstances the functions of the Attorney-General may be performed by the Solicitor-General. The existing provisions in this respect are, however, unsatisfactory and inconsistent.
By virtue of section 1 of the Law Officers Act 1944, unless the office of Attorney-General is vacant or the Attorney-General is unable to act owing to absence or illness, the Solicitor-General can act on my behalf only with my specific authority given in a particular case. That means that I have to sign a separate authority each time the Solicitor-General gives a consent on my behalf. Being a conscientious Attorney-General, I naturally apply my mind in each case individually to the question whether I ought to delegate, and so read a number of papers, often unnecessarily.
Section 2(1) of the Prevention of Corruption Act 1906 provides that no prosecution may be instituted without the consent of either the Attorney-General or the Solicitor-General, so no delegation from me is required in that case, but provisions such as that are rare. Such differences are quite anomalous. Clause 3 empowers me to give directions which will rationalise this procedure.
The Bill does not, of course, extend to Scotland. Consideration was given to the question of extending it to Northern Ireland, but I decided that that was unnecessary in view of the provisions of article 7 of the Prosecution of Offences (Northern Ireland) Order 1972. The effect of that article is that, where a transferred provision under the Government of Ireland Act 1920 which required the consent of the Attorney-General for Northern Ireland to the initiation or carrying on of criminal proceedings was in force before the coming into operation of that order, it is sufficient if the consent is given instead by the Director of Public Prosec- 662 tions for Northern Ireland. In effect, the Director gives the consent, although there, as here, he will consult the Attorney-General in any case of difficulty or sensitivity.
This provision covers any statute, whether of the Westminster or Northern Ireland Parliament, relating to a matter in respect of which the Parliament of Northern Ireland had power to legislate. It does not cover prosecutions under the repealed Special Powers Acts.
I am confident that this modest measure will commend itself to the Committee as a useful improvement of the administration of justice by simplifying the law relating to consent to prosecutions, and by rationalising the law. By avoiding duplication of effort between my Department and that of the Director of Public Prosecutions, unnecessary labour will be saved, and the resources of both Departments will be used more efficiently and economically.

§ 4.43 p.m.

§ Sir Michael Havers
We are grateful to the Attorney-General for the way in which he has explained the Bill to us. The schedule ought to be sent for compulsory reading by historians. Research on it would probably turn up even more than the Attorney-General has managed to discover. One can imagine what fun Punch, Frank Johnson or Andrew Alexander would have with it. It would be a rich pasture for humorous comment for them to look at the various Acts of Parliament which have in the past required the Attorney-General's consent. Even if Bernard Levin were still"Taper ", or not silent in his present incarnation, I am sure he would manage to find it a gold mine for his running attacks on the Law Officers' Department.
We have considered seriously and carefully the various statutes which are now excluded. We felt anxious about the Explosive Substances Act and about corruption. It may be a case of offering £5 to a policeman not to run a man in for being drunk in charge, but the Attorney-General will know, as I did when I was in his Department, the number of occasions in which police officers are alleged to have been guilty of corruption—allegations which are so easy to make and so difficult to deny. I am sure that the present incumbents take just as much 663 care and treat the matter with the same anxiety as did Sir Peter Rawlinson, now Lord Rawlinson, and I when we were in that Department. It was so important that police officers who could be so easily attacked in this way should not have a consent given for a prosecution for corruption unless it was really felt that the case would lead to a conviction, because of the tremendous damage done to their careers.
We are in the position of having an outstandingly competent Director of Public Prosecutions—a man for whom all those who know him have nothing but admiration. That admiration applies also to his staff, which is still undermanned, but the Attorney-General and I are doing everything we can to remedy that. It is a Department which is well able to look after these problems and well able to take on the extra burdens. It is a great relief to know, too, that when the Director is in doubt he will carry on the usual practice of consulting the Law Officers. So if there is a matter of anxiety, the Director will do what he has always done in the past, and that is to go back to the Law Officers' Department and ask for its assistance.
Thus, although the critics might call this measure the"benefit to the Attorney-General Bill "—in a way, it is, because it will relieve his Department of some of the onerous duties which, certainly in my day, took up too much time, with all the pressure of other business that there was—knowing that the Director will be there with his staff to look carefully, and knowing that the Director will be able still to consult the Attorney-General, in spite of our doubts on the two areas I mentioned—the Explosive Substances Act and the corruption issue—we welcome the Bill and wish it a quick and successful passage through the House.

§ 4.46 p.m.

§ Mr, Ivan Lawrence
I rise not to make a speech about a measure which will be wholly welcomed by the right hon. and learned Gentleman's successor—who will shortly follow him in a post now to be relieved of a burden—but merely to ask a question which arises from something that the right hon. and learned Gentleman said, and something which appears in the explanatory memorandum.
664 I quite understand how the Bill eases the burden upon the Attorney-General, but the right hon. and learned Gentleman went on to say that it also eases the burden upon the Director of Public Prosecutions. I should be grateful if he could explain how that arises. I ask that, not in a carping manner, but because we are all concerned that the office of the Director of Public Prosecutions has hitherto been under extreme pressure. Moves have been made on both sides of the House to try to get the Director's office more sturdily staffed and with access to greater financial resources than hitherto.

§ 4.48 p.m.

§ Mr. Christopher Price
As so often, I am, I think, the only layman on this Committee—

§ Mr. Alf Bates
No.

§ Mr. Price
I apologise to my hon. Friend. We laymen are in a tiny minority here and—I suspect—at a slight disadvantage.
The difficulty with the schedule is that, although it gives a long list of Acts, it is not clear exactly which section of an Act refers to what. It would be a considerable labour—which I admit that I have not undertaken—to check it. I should like my right hon. Friend and learned Friend the Attorney-General to give us some indication of the other schedule which is not printed here—in other words, how much this leaves him with. What is the broad amount of statutory responsibilities and consent to prosecutions left with him after he has got rid of this lot?
I am a little worried about the arrangements my right hon. and learned Friend has made concerning the Public Bodies Corrupt Practices Act. There might be different opinions about whether we have an outstanding Director of Public Prosecutions, but I suspect that that is quite irrelevant. We should try to get the matter right. As I understand the arrangements that the Attorney-General outlined, in terms of politically sensitive prosecutions under that Act, the Director would have the sort of consultations that he normally has with the Law Officers. But as I understand matters, the decision as to whether he enters into those consultations is now the Director's and not 665 the Attorney-General's. Thus, we are in the Bill we are handing over lock, stock and barrel, however widespread it may be, every politically sensitive corruption prosecution to the Director, with the proviso that the Director always acts under the general supervision of the Attorney-General.
Just as we have come out of the Poulson saga it is important to keep in mind that if one were to come across, either in local government or in some vast quango area, the sort of depth of corruption which we saw in the Poulson case, the House would, I believe, wish the Law Officers to retain, as it were, de jure control as well as de facto control over such prosecutions. From the arrangements outlined by the Attorney-General, I was not absolutely convinced that that would be so. I hope that he will refer to this question and reservation when he winds up.

§ 4.51 p.m.

§ Mr. T. H. H. Skeet
I am rather surprised at one measure which has been included in the list after the so-called extensive weeding out. I refer to the Newspapers, Printers, and Reading Rooms Repeal Act 1869. The relevant section of that Act provides that any person who shall print any paper or book…and who shall not print…his or her name and usual place of abode or business…shall…forfeit a sum not more than five pounds ". I should have thought that that, too, should go. I dare say that the Attorney-General has received representations from publishers about the extraordinary nature and triviality of the offence involved. In sorting out these matters, could he not have deleted this one? In that case it would not require the consent of either the Law Officers of the Crown or the DPP.
There are other matters which could be left to a more informed and better educated public. After all, we have had education for 150 years in this country. There are one or two rather complicated measures in the schedule—the Mines and Quarries Act 1954, for example. I should not have thought that many members of the public would come along and start too many actions which would cause a great deal of consternation in the Attorney-General's office or that of the Direc- 666 tor, and that this could have been left to the usual processes.
Another measure which I believe should fall into the same category is the Prevention of Oil Pollution Act 1971, under which quite sizeable damages can be awarded in certain specific instances. Perhaps references could be left to the public themselves instead of needing to go back to the Director.
Another such measure is the Law of Property Act 1925, section 183, which provides that any person disposing of property or any interest therein…who…conceals from the purchaser any…incumbrance…with intent…to defraud is guilty of a misdemeanour punishable by a fine or imprisonment. The Attorney-General said that he had about 100 cases per year under the Explosive Substances Act and about 100 cases under the prevention of corruption Acts. Has he had many cases in the past five or six years under section 183 of the Law of Property Act 1925? Perhaps that may be left to the people concerned who feel that they have been defrauded, who could start prosecutions if they thought that desirable.
I do not want to take too long, but I wish to mention one other case which seems a little serious—the Criminal Justice Act 1967 and the question of the reporting of committal proceedings. This came up recently in the Thorpe case and is very politically sensitive. There, of course, the Director of Public Prosecutions has a dual role. He would have to conduct the prosecution and would also have to assent or dissent to the bringing of a private prosecution. I should have thought that rather an extraordinary position in which to be. Perhaps the Attorney-General would consider that a little further and give us a general view of his position.
There is another point, which concerns the Children and Young Persons (Harmful Publications) Act 1955, which I understand covers horror comics. I should have thought that that could well be left to the public to decide and to bring their own prosecutions if necessary. Is it really necessary for us to call upon the Director himself to vet the proceedings?
I am fully in favour of this piece of legislation. I am only bringing out the 667 corner point in order to get some sort of answer from the Attorney-General. I believe that the Bill will not lead to a lowering of the burden. In many cases, on politically sensitive issues, there will be consultation with the Law Officers. The file will have to be sent to them for consideration and, of course, it will be read twice rather than once. However, if that is the way in which the Government wish to do it, I think that we should approve.

§ 4.57 p.m.

§ Mr. Edward Lyons
The Bill represents an attempt to reduce the burden on the Attorney-General's Department and is a recognition of the onerous burden carried by the Law Officers and a very small staff. It has always seemed incredible to me that we allow such a small staff to carry so heavy a burden, even though the Department does not carry legislative responsibility.
If one cannot get more staff, the only thing to do is to reduce the number of the Department's responsibilities. However, I should like to think that the diminution of executive responsibilities implied in the Bill means that the Attorney-General's Department is clearing the decks for the day when some Lord Chancellor or the House of Commons decides that it is about time the Attorney-General carried a legislative function and that he should have a Department to match.
It is a curious oddity in the House of Commons that the Attorney-General is put up like a sitting duck to answer Questions to the Lord Chancellor in respect of legal policy decided by the Lord Chancellor when he has no constitutional position in influencing the legal policy of the Lord Chancellor. The House of Commons insists that it is the premier forum for legislation. It also insists in all other matters on having Ministers who not only answer in the Commons but also help to make policy themselves.
However, the Lord Chancellor is sitting on a huge bureaucracy in the House of Lords, and the poor Attorney-General is put up to answer for him, while carrying no responsibility for decisions. It is anomalous, and I do not understand why the House of Commons persists in allowing such a situation.
668 Of course I welcome the Bill, and I hope that in its small way it will make the burden of the Law Officers and their diligent staff a little less than it has been hitherto.

§ 4.59 p.m.

§ The Attorney-General
May I have leave of the Committee to speak again?
I am grateful to the right hon. and learned Member for Wimbledon (Sir M. Havers) and to the Committee for the welcome that has generally been given to the Bill. I am also grateful to my hon. and learned Friend the Member for Bradford, West (Mr. Lyons) for what he said about the hard duties of the Department over which I exercise responsibility.
Perhaps I ought to say that those duties which are ours by virtue of acting on an agency basis, as it were, for the Lord Chancellor are nothing compared with our quite unseen duties advising our colleagues in Government on legal, constitutional and similar matters affecting other Departments and the Government generally. It is always a matter of curiosity to me that the public rarely hear about these duties, which take up probably 95 per cent. of my time and cover an enormously wide area, extending from Brussels to Antarctica. The public hear mainly about the occasions when representatives of the media complain bitterly that I either have or have not brought a prosecution, depending upon their particular interests. That is, however, only a very small part of my task, and any lessening of the burden will be very welcome.
The hon. Member for Burton (Mr. Lawrence) asked, very reasonably, how it came about that what we proposed in the Bill would lessen the burden of the Director as well as the Law Officers. The answer is that in cases such as I instanced—for example, a minor explosives case where somebody has been playing around with fireworks in the garden shed—the matter comes up through the police to the Director and the Director has to study the case and put all the evidence into proper shape in the ordinary way. Then, when he has made out what may be, from his point of view, a perfectly simple case, where he is advised by counsel and there is no real necessity for anything beyond that, he has to do the work of submitting the case to the Law Officers. 669 They then send it back with their consent or perhaps with a question which the Director has to follow up.
The Director has the extra burden of the submission of the work which ought to be quite unnecessary in many cases, and which, when the Law Officers are heavily burdened with other things, will also take up a good deal of unnecessary time and cause delay. A double burden is involved
From his own experience, the hon. Member for Burton will understand that in a case which may be fairly complex, even though the matters involved are perhaps relatively trivial and the penalty at the end of the day may be relatively small, there may be a stream of correspondence between the Director and the Law Officers at different stages. The Law Officers must be informed at an early stage, and so on. That is where the duplication arises.
My hon. Friend the Member for Lewisham, West (Mr. Price) asked first how much was left to the Attorney-General. I take it that he was referring to these particular tasks rather than the more general aspects of the Attorney-General's duties—the other 95 per cent.—on which I have already said a word or two. I can tell him that the consent of the Attorney-General will still be required under the Biological Weapons Act 1974, the Counter-Inflation Act 1973, the Criminal Law Act 1977, in relation to conspiracy, provisions under the Customs and Excise Act 1952, the Genocide Act 1969, the Housing Act 1957, the Hijacking Act 1971, the Internationally Protected Persons Act 1978, the Official Secrets Acts, the Prevention of Terrorism (Temporary Provisions) Acts, the Protection of Aircraft Act 1973, the Public Order Acts, the Sexual Offences (Amendment) Act 1976, the Suppression of Terrorism Act 1978 and the Theatres Act 1968.
There are various offences. I hope that I shall not be asked to detail them. There will still be a substantial burden. We want to look at some of those offences again as time goes by. For example, when we have the Williams committee report on obscenity and kindred offences we shall no doubt be looking at the effect that it might have on the Theatres Act and provisions under it. Some of these 670 measures may not survive for ever in any event. One hopes that they will not.
My hon. Friend expressed some hesitation in relation to the Public Bodies Corrupt Practices Act—for example, whether the decision on consultation will, in practice, be that of the Director, and the Law Officers will not come into the matter at all. If one transfers power to somebody else there is always that possible danger.
One is inevitably taking some risk by doing that, but, as I said in my opening remarks, I intend to lay down clear guidelines to the Director. Although it is hardly necessary for that to be done, it will be done because it is already clearly established between his department and mine what kind of cases ought to be referred to the Law Officers and where we should be consulted.
In passing over as important a subject as the Public Bodies Corrupt Practices Act, we shall be very careful to make quite sure that all the sensitive areas are properly covered in the guidelines, so that there will be no room for doubt.
Lest difficulties crop up in future, we have made provision in the Bill for changes. We have provided this flexible method of dealing with the matter. If we find insuperable difficulties we can alter the schedule and make such changes as may be required.
The hon. Member for Bedford (Mr. Skeet) would have liked us to go further than is proposed in the Bill. Looking at the schedule, he suggested that in many cases there was no need for a consent provision. I would not disagree with what he says about that. Inded, one can go well outside the consent provisions enumerated in the schedule into other fields and one may find the same situation.
While I have held my office, I have sought to discourage the indiscriminate inclusion of consent provisions in favour of Ministers, for example, where it did not seem to me to be necessary. But when other Departments are responsible for Bills I can only advise, and they must take their own course, subject to the views of the House, if it spots what may seem to be an unnecessary consent provision.
Unfortunately, that kind of provision is the sort of provision that the House rarely does spot. It is the kind of clause that goes through on the nod. If we had 671 asked the working party to do the very thorough-going job that the hon. Member has in mind, which I hope will be done in due course, it would have taken a good deal longer. I very much doubt whether we should have been able to produce within the time any legislation on the matter, certainly not a measure which gives the first aid which this Bill gives and which remedies the immediate situation. I assure the hon. Gentleman that his suggestion will continue to be examined, and, if not by the working party—though I am sure that the working party will be looking generally at these matters—it is the sort of matter that the Royal Commission on criminal procedure will be looking at. Indeed, it falls generally into the pattern of what the future status of the Director should be and the general question which will, no doubt, be discussed by that body on the future of private prosecutions and such matters that raise wide issues.

§ Mr. Skeet
Will the Attorney-General give in answer to a parliamentary question not merely those matters that have been transferred and are in the schedule but those which have been retained by him, including the actual sections in question? That would be a clarification

THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE
Goodhew, Mr. Victor (Chairman)	Lawrence, Mr.
Anderson, Mr.	Lyons, Mr. Edward
Attorney-General, The	Morgan, Mr.
Bates, Mr.	Price, Mr. Christopher
Body, Mr.	Skeet, Mr.
Havers, Sir M.	Stradling Thomas, Mr. John

672

§ to the public of where the demarcation falls.

§ The Attorney-General
There is a useful little booklet, available in the Library, I believe, issued by the Director of Public Prosecutions, called"Prosecution of Offences Regulations 1978 ", following the making recently of new regulations. It is an extremely valuable booklet because it sets out all the offences. I commend it to hon. Members. It also indicates the duties of the Director, what matters he is required to deal with, what matters he may deal with, what matters the police have to send to him, what matters they may send to him, and so on.

§ Mr. Lawrence
rose—

§ The Chairman
I am afraid that the hon. Gentleman, having spoken once in this Second Reading Committee, is unable to speak a second time.

§ Question put and agreed to.

§ Ordered, That the Chairman do now report to the House that the Committee recommend that the Consents to Prosecutions Bill ought to be read a Second time.

§ Committee rose at thirteen minutes past Five o'clock.