§ 3.31 p.m.
§ Report received.
§ Clause 1 [The Crown Prosecution Service]:
Lord Elwyn-Jones moved Amendment No. 1:
Page 2, line 4, after ("area") insert ("and shall be appointed by the Director of Public Prosecutions after consultation with the Attorney-General;").
§ The noble and learned Lord said: My Lords, when considering this first amendment it may be convenient for your Lordships to consider also Amendments Nos. 2 and 5.
§ Amendment No. 2: Page 2, line 7, after ("Director") insert (", subject to subsection (1)(b) above,").
Amendment No. 5: Page 2, line 12, at end insert—
("( ) A Crown Prosecutor may only be dismissed from office by the joint decision of the Director of Public Prosecutions and the Attorney-General.").
§ The Minister of State, Home Office (Lord Elton)
My Lords, may I ask the noble and learned Lord whether he intends to take Amendment No. 4 separately? I understood that this was to go with Amendments Nos. 1 and 2 and that Amendment No. 5 went with Amendment No. 6. I ask this for guidance.
§ Lord Elwyn-Jones
My Lords, I think Amendment No. 4 goes with Amendment No. 6, but it does not come in with Amendments Nos. 1, 2 and 5. It is purely a question of convenience, but I think that that would be a more practical arrangement than dealing with the points together.
The effect of Amendment No. 1 is to impose upon the Director of Public Prosecutions, who appoints the Crown prosecutors under Clause 1(1)(b) of the Bill, the duty also of consulting the Attorney-General. He might well do so in practice in any case, because the Attorney-General, after all, is in close touch with the Bar and in cases of direct concern to him he nominates counsel and knows them fairly well. The purpose of the amendment is to seek to enhance the status and significance of the office of the Crown prosecutor, and that would be added to if the Director were required to consult with the Attorney in making the appointment. I understand that this would bring the position comparable to that of procurator fiscals in Scotland.
The knowledge that the Attorney is consulted and involved in the appointment of Crown prosecutors will, we think, be helpful in enhancing his standing, and it is important that that should be done particularly vis-à-vis the chief constable in the given area because he is to exercise positions of great importance in the administration of justice.
The next two amendments, Amendments Nos. 2 and 5, follow the same pattern. Amendment No. 2 is consequential on Amendment No. 1. Amendment No. 5 deals with the dismissal of a Crown prosecutor. I would not expect, or hope, that to be a frequent 314 event. Here, again, the amendment proposes that a Crown prosecutor may only be dismissed from office by a joint decision of the Director and the Attorney-General. Here we come into the same problem or necessity as to identifying the importance and independence of the office of the Crown prosecutor, and, again, we feel his position would be enhanced if the Attorney-General was involved in the process and was consulted. I understand that in Scotland the Lord Advocate must sanction the dismissal of a procurator fiscal, and that is rather a higher protection than is provided in the clause as it stands. As I have said, it is not likely that the situation will arise often so it will not unduly add to the considerable burdens of the Attorney-General, but it is, we believe, a useful addition to the provisions regarding Crown prosecutors.
I am informed that the Prosecuting Solicitors Society is anxious to support these proposals. As I say, they will do something to identify and establish the important status of prosecuting officers in the scene that we are considering. I beg to move.
§ Lord Elton
My Lords, the aim of these amendments, as the noble and learned Lord has confirmed, is to enhance and safeguard the position of Crown prosecutors by associating the Attorney-General with their appointment and, should it occur, their dismissal. We entirely agree with the sponsors of the amendment about the importance of the Crown prosecutors to the new service. Under our proposals for maximum delegation they will carry heavy responsibilities. In particular, they will be responsible to the Director for supervising the operation of the service in their areas, and they will in fact be the linchpins of the new service. Their calibre will be vital to its success.
Under Clause 1 as drafted, they will be designated from among the legally qualified officers of the service. All those officers will, of course, have been appointed by the Director. The amendments graft on to the clause an arrangement for Crown prosecutors to be appointed by the Director after consultation with the Attorney-General. They also require a joint decision by the Attorney-General and the Director as a prerequisite to the dismissal of a Crown prosecutor. We need to be clear about the respective positions of the Director of Public Prosecutions, on the one hand, and the Attorney-General, on the other.
The Director is to be the statutory head of the service. He is to act under the superintendence of the Attorney—and the term "superintendence" is deliberately chosen to describe a particular kind of relationship. It is the relationship which the Director of Public Prosecutions now has with the Attorney-General, and it is different from the one normally obtaining in a Government department between the head of the department, the permanent secretary, and the Minister responsible for it. It is a looser relationship. As it implies, the Attorney-General has a general answerability in relation to the Director but he does not involve himself in everything that the Director does. It is for the Director to decide when, in addition to cases requiring the Attorney-General's consent, a decision is such that he must refer it to the Attorney-General. This may be a decision on a case or 315 a decision on some aspect of the operation of the Director's department; but the initiative in deciding what is appropriate for referral is the Director's, and not the Attorney-General's.
In establishing the new service the Government decided it was right to build on this relationship between the Attorney-General and the Director. It would serve to ensure that a proper balance could be struck between the need for accountability in respect of the prosecution function, on the one hand, and, on the other, the importance of safeguarding individual decisions from improper interference. Any provisions which might alter that relationship and risk disturbing this balance, therefore, need to be carefully examined; but the balance is important, and if we are to lose it we must ensure that the likely gains are worth the certain loss.
I have to say that I doubt whether involving the Attorney-General in the management of the new service in the way that the amendments propose would, in those terms, be worth doing if the only purpose is to underscore the important status of Crown prosecutors. I think it would be unwise to involve the Attorney-General at this level of decision. Why should decisions as to their appointment or dismissal alone of all the management decisions that the director has to take be singled out for the special attention of the Attorney-General? If the director cannot be trusted to take those decisions without this safeguard, he surely does not have any business to be head of the service at all.
I also noticed, as I am sure your Lordships have noted, that the amendments do not deal with the position of senior staff in the Director's own office, some of whom are likely to be of more senior rank in the Civil Service than the Crown prosecutors designated under Clause 1. Of course, those who are moving this amendment may think—as indeed do I—that for such staff the existing procedures (that is to say, the procedures for recruitment to the Civil Service, for promotion within it and for dismissal from it) provide sufficient guarantee of the fairness and impartiality of decisions in relation to individuals already. That seems to us to be entirely correct.
For recruitment, in general responsibility is placed on the Civil Service Commissioners to operate on the basis of fair and open competition. For promotion, departments must set up procedures to achieve the objectives of fairness and impartiality. For dismissal, in addition to the statutory protections contained in the Employment Protection (Consolidation) Act 1978, there are special safeguards against unfair dismissal, including the right of appeal to the independent Civil Service Appeal Board. So there are suitable safeguards at present. They are rather elaborate, and they will apply equally to members of the new service who are Crown prosecutors as to any other. If we add to them a requirement for the Attorney-General's involvement, I cannot see that we add anything of substance or use beyond what we already have.
Having got this far in the argument, as I reflected on these amendments I returned to the proposals on the Marshalled List and studied them more closely. It then seemed to me more than likely that they had been put 316 down more to encourage me to repeat, as I have done, my emphasis of the important role that Crown prosecutors will have. I say that because I do not think that the noble and learned Lord would think it satisfactory for any other purpose to require the Director to consult the Attorney-General and yet to leave with him, as his amendment would, the sole duty of making the appointment. Nor do I think that he would actually be satisfied if the dismissal of a Crown prosecutor was to be at the joint decision of the Director and the Attorney-General. Given that it is the Director who is supervised and the Attorney who does the supervising, is not the product of what is proposed likely to be simply to transfer both decisions effectively from the Director to the Attorney-General? I do not think that that is what the noble and learned Lord would want or what your Lordships would want.
The noble and learned Lord has allied his arguments in a way slightly different from that which I quite wrongly expected. He may take me to task for leaving matters of substance out, and I shall try to answer him in detail if he does. But I think that your Lordships would rather that I sat down to see whether I have already succeeded in satisfying him.
§ Lord Mishcon
My Lords, if I may say so, I am afraid that the noble Lord the Minister has missed the substance of the argument behind these amendments. It is not a question of asking him to repeat the matters which he so clearly (as is his custom) brought to the attention of the House at previous stages of the Bill. There is a very clear intention behind these amendments, and the substantial point is this. Whatever the noble Lord may say to the House—and which this House obviously accepts readily—about the status of the Crown prosecutor, the fact of the matter is that only those of us who, in years hence, take the trouble, as many of us will, to look up his comments and speeches will have the benefit of those remarks. It is the public who will see the effect of this Bill.
What these amendments seek to do is to carry into effect the very principle that the noble Lord has been keen to substantiate; and that is, not only the status of the Crown prosecutor, but his complete and absolute independence. His status in regard to the chief constable is very important, as is his status in regard to the Director of Public Prosecutions. I am afraid that the noble Lord made me extremely nervous when he pointed out that there might be senior officials underneath the DPP who would be senior, as I understood him to say, in status to the Crown prosecutor.
The whole purpose of this Bill is to see, and to let the public see, that the Crown prosecutor, obviously behaving under guidelines that will be laid down, one hopes in general terms for Parliament to see, will indeed be the person who has the sufficient and independent status of chief constable and Director of Public Prosecutions in order to see that his decisions about prosecutions are themselves independent.
There is no difficulty about this. If one were thinking in terms of a weighty administrative process where names had to be submitted and the Attorney-General 317 was bound under this amendment to interview the applicants, and so on, or to be personally present when the Crown prosecutor was dismissed—an event which one imagines might happen once in a millennium, if then—I could understand it. All that this asks for is that there should be consultation with the Attorney-General. It may be nominal consultation—and I am perfectly content to abide by those words—but it would be seen that the Attorney-General has given the imprimatur of his high office to an appointment which is an independent one and which shows the proper status that we who are behind the intent of this Bill want to see.
It is because I believe the noble Lord the Minister—and I say this with the utmost deference—really missed the substance of these amendments and thought that we were after a repetition of his previous statements that I ask him most earnestly to reconsider and to accept the amendments now before the House.
§ Lord Rawlinson of Ewell
My Lords, I do not share with the noble Lord his anxiety. It seems to me that the Crown prosecutor's independence is very clearly demonstrated, because it is demonstrated by the position of the Director of Public Prosecutions appointed by the Attorney-General. I do not share the anxiety that he has that it does not demonstrate the independence of the Crown prosecutor.
It is no use having nominal consultation. That is rather absurd, in my submission. I think that one has to consult and the Attorney-General then has to play a considerable part in deciding whether someone is to be appointed. Once one has appointed a Director of Public Prosecutions, it is far better that he should be sufficiently independent to be able to appoint his own staff and his own officers. From what I understand is clearly behind the ideas of the amendment, my belief is that the Minister is right, and I think it is far better to leave it as it is.
§ Lord Campbell of Alloway
My Lords, I find myself in some difficulty. With respect, I do not wholly share the view that has been expressed by my noble and learned friend Lord Rawlinson of Ewell about this matter. I think that it is unfortunate that these amendments have been grouped together because, as regards appointment, I am entirely in agreement with everything that my noble and learned friend Lord Rawlinson has said.
The Director acts under the superintendence of the Attorney-General, and there is no need whatever, as I see it, to involve the Attorney-General in matters of management. But as regards dismissal, I see a totally different problem. That is Amendment No. 5. All right, it may happen once in a millennium; but how important it is when it happens! I support the spirit of Amendment No. 5. I think that it warrants special attention. The dismissal of a Crown prosecutor warrants the attention of the Attorney as a safeguard to enhance and entrench independence. It is wrong, as I see it, to regard this as a mere question of rank, status or some sort of ladder of precedence. The Crown prosecutor is in a special position, and his dismissal is a matter of great importance. Although it happens rarely, as I have said, I think it warrants the 318 support the spirit of Amendment No. 5 but not of Amendments Nos. 1 and 2.
My Lords, this amendment worries me for this very simple reason. The appointment and dismissal of the Crown prosecutors, indirectly by virtue of Amendment No. 1 and directly by virtue of Amendment No. 2, by bringing in the AttorneyGeneral—the Attorney-General is the appointee of the Government of the day—politicises, be it ever so slightly, the appointment and dismissal of the Crown prosecutors. I believe that that would be sad.
§ Lord Wilson of Langside
My Lords, I hesitate to intervene in this matter, more particularly because I did not hear the initial presentation of this amendment. Unfortunately I was detained outside the Chamber. But may I just ask the Minister if he has thought that it might be helpful—and I put it no higher—to consult with his noble and learned friend the Lord Advocate about this? That is because the Lord Advocate carries, or carried at one time, the responsibilities in relation to the procurators fiscal, who were in the same position, and I think had to approve their appointment. It is so long since I was concerned in the matter that I do not wish to pontificate, but I should have thought that the Lord Advocate might be able to give some helpful advice as to his situation which would be relevant to the context of this amendment.
§ Lord Elton
My Lords, with your Lordships' leave, I will be brief. I am grateful to noble friends who have supported me and I recognise the valiant efforts of those who have been less supportive. My answer, in fact, is to the noble Lord, Lord Mishcon, who suggested that I had missed the point of the amendment. The substantive point, he made abundantly clear. I addressed virtually the whole of my answer to it. When I came to the end of what I had to say about it, it appeared to me that I had demolished it. I therefore said that at that point I turned to other motivations to see whether perhaps what the noble Lord wanted was something else. I tried to supply that as well. I evidently failed. I apologise for that. But the fact remains as I stated it: that we believe that the Director General must be answerable for the service, and if he is answerable for the service then he must have control of it, and that means hiring and firing.
§ Lord Elwyn-Jones
My Lords, I do not wish to make too heavy weather of this, certainly not of Amendment No. 5, which, I respectfully agree with the noble Lord, Lord Campbell of Alloway, is probably the more important of the two. But with the conception that the noble Lord suggested, that the fact that an appointment was made by the Attorney-General politicised the matter, he is treading on very dangerous ground. I submit that it is quite incorrect—if he allows me to be blunt upon the matter. One of the matters that I think perhaps the noble Lord may overlook is that already the Attorney-General, in making appointments, is enmeshed in the prosecution process. After all, he appoints the key prosecutors at the Old Bailey. I have forgotten what they are called now.
§ Lord Elwyn-Jones
My Lords, Treasury counsel. They were sometimes called "Treasury devils" but Treasury counsel may be a more courteous name. The Attorney-General appoints them. They are extremely important, in that they have the responsibility of conducting the more serious cases at the Old Bailey on the nomination of the Attorney-General. Therefore, there is nothing politicising, abnormal, quaint or out of order, if I may say so, in what has been suggested.
On the general point—I certainly will not repeat it—the position of Crown prosecutors is this. They will be the key men on the prosecution side in each of the areas that will be set up. They are vitally important elements, or links, in the whole chain of responsibility for prosecution. Therefore the more we can build up their status and position the better.
With regard to the power of dismissal, that is a very considerable and important power. I should venture to think that the involvement of the Attorney-General in that matter is of very great importance. It again enhances the significance of the Crown prosecutor and strengthens his position vis-à-vis the existing authorities, some of whom may slightly resent the changes.
Therefore, while I certainly do not press Amendment No. 1, or Amendment No. 2, which is consequential upon it, I do feel that Amendment No. 5 is of sufficient importance to take soundings of the opinion of the House upon it.
§ The Lord Chancellor
My Lords, then what I propose to do is put Amendment No. 1. Is it your Lordships' pleasure that Amendment No. 1 be withdrawn?
§ Lord Elwyn-Jones: My Lords, that is so.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 2 not moved.]
Lord Renton moved Amendment No. 3:
Page 2, line 8, leave out from beginning to ("he") in line 9.
§ The noble Lord said: My Lords, I beg to move Amendment No. 3. The same point is raised in Amendments Nos. 7, 12, 18 and 33, which have a similar effect. I suggest they should all be discussed together.
§ Amendment No. 7: Clause 2, page 2, line 40, leave out ("with the approval of the Treasury").
§ Amendment No. 12: Clause 10, page 7, line 2, leave out from ("may") to ("by") in line 3.
§ Amendment No. 18: Clause 13, page 11, line 29, leave out from ("may") to ("by") in line 30.
§ Amendment No. 33: Clause 20, page 19, line 42, leave out ("with the consent of the Treasury").
§ The noble and learned Lord, Lord Simon of Glaisdale, who tabled these amendments with my support, asked me to apologise for his unavoidable absence. That is why I am moving these amendments. He and I have both felt for a long time—and I think other noble Lords on both sides of the House have done so too—that it is quite unnecessary to clutter up our statutes with references to the "consent of the Treasury" or similar words, when Ministers are directed by Parliament to do the things specified in these statutes.320
I should perhaps mention that the noble and learned Lord, Lord Simon, has formed this view in spite of the fact—indeed it could be said because of the fact—that he was once Financial Secretary to the Treasury as well as having been Under-Secretary at the Home Office, a Law Officer and a Law Lord. He first raised this matter at Committee stage on 17th January at column 1104 of Hansard. Because it is rather vividly expressed by him, I wonder if I may just quote what he said. He said:
That formula appears in clause after clause of Bill after Bill, and it is utterly unnecessary. It merely clogs up the statute book with unnecessary verbiage. The ordinary internal machinery of government takes care that the Treasury is consulted as to matters of that sort. I know that the Treasury is deeply devoted to this incantation and has persuaded the Parliamentary Counsel's Office to go along with that view. But it really is utter nonsense. I desire once more to put on record the waste of time, effort and money that goes into multiplying unnecessary formulae in Acts of Parliament".
My noble friend Lord Elton replied very briefly on that occasion, saying:
I have cause to know exactly how closely their machinery"—
that is, the Treasury's machinery—
works in these matters. However, I am also a champion, as are many others, of shortening legislation",
and then he promised to look at it again.
§ Before I go any further, I think I should just point out the five places in the Statute where the point arises. The first is covered by Amendment No. 3, where we find that the Director of Public Prosecutions is required to get the consent, or the approval, of the Treasury when appointing staff and arranging their conditions of service. As we all know—and it arose on the previous amendment—the DPP is appointed by the Attorney-General, who, I should mention, is also responsible for what the DPP does and what he spends.
§ The next amendment is Amendment No. 7 in Clause 2(3), where we find that the Attorney-General is to determine the DPP's salary with the consent of the Treasury. Then, in Amendment No. 12 to Clause 10(1), the Attorney-General has to make regulations for the transfer of staff. In Clause 13(1), the Attorney-General has to make regulations for prescribing scales of fees for counsel and costs for witnesses.
§ Finally, we find under Amendment No. 33 to Clause 20(3) that no less a personage than the noble and learned Lord the Lord Chancellor himself has to make regulations governing scales of costs payable out of public funds and can only do so after consultation with the Treasury.
§ 4 p.m.
Since the Committee stage, my noble friend Lord Elton has written a helpful and very full and candid letter to the noble and learned Lord, Lord Simon of Glaisdale, giving reasons for retaining the requirement of the Treasury's consent. My noble friend will no doubt use arguments similar to those in that letter when he replies. I hope that I shall not be considered to be taking a mean advantage but only to be alerting your Lordships to the issues and perhaps saving a little time if I refer to that letter and make one or two brief comments upon it. My noble friend Lord Elton says in the letter to the noble and learned Lord, Lord Simon:
The practice of including a provision along these lines has of course developed over time. It serves to ensure that due
consideration is given to prospective expenditure by departments of Government responsible for policy decisions involving the use of public moneys. Of course, at the end of the day each department will, through its Ministers, be accountable to the House of Commons for expenditure incurred. But this provision safeguards against the risk of expenditure being thus incurred and presented to the Treasury and ultimately the House of Commons as a fait accompli".
I suggest that that view of the matter reveals an unjustified lack of confidence between the Treasury and other departments. It reveals an unjustified lack of confidence in our now well developed machinery of government. I really think that it is very unflattering altogether to the whole system, and the sooner we get rid of this nonsense the better. I do not wish to continue much longer but I must, I think, refer to another reference by my noble friend Lord Elton. He says:
I might add that even if we were, nevertheless, minded to remove these references to the Treasury's approval, the change could we believe only properly be made with the positive approval of the House of Commons, rather than during the passage of the Bill through our own House".
I ask, my Lords: what are we here for? Are we a revising Chamber, or not? Are we to present our Bills to another place, if they start here, with nonsense embedded in them? Or are we to try to prune those Bills if we have the opportunity, as we have this afternoon?
§ I would remind your Lordships that the other place does, in any event, control finance. After all, there is consultation that goes on all the time behind the scenes in which we know that the Treasury are in one sense always with us and in another sense apparently always against us, if we are Ministers. But, at the end of all that process, it is the House of Commons that has to approve the estimates, that has to vote money on account, and that has the opportunity of scrutinising expenditure. So it seems to me that this is unnecessary. I would also mention that either House has the power under Clause 28 of this Bill to annul regulations. Therefore, the references in Amendments Nos. 12, 18 and 33 have their own safeguards anyway. They are all power to make regulations. It seems absurd that the power should not be exercised except with the consent of the Treasury.
§ I say, in conclusion, that the Attorney-General is not going to be able to perform the duties placed upon him under this Bill in any event unless Treasury Ministers ask Members of another place to make financial provision for those duties to be performed, as they have to do for all other departments. I beg to move.
§ Lord Denning
My Lords, I would support the amendment not only for the reason that it is unnecessary to have these clauses in the Bill but also because it is important that we emphasise in the Bill the independence and the impartiality of the Attorney-General under our constitution. What he does should not be subject to the consent of the Treasury or of any Government representative whatever. The position of the Attorney-General has been considered in our courts. There was the great case that your Lordships will remember when a union was going to stop all the mail to South Africa because it objected to apartheid. The Attorney-General of the day, although there was clearly a breach of the law, would take no steps to stop 322 that breach of the criminal law. It came to the Court of Appeal. We thought that someone else could do it. I was wrong, but this is what I said—
§ Lord Denning
My Lords, wrong according to the House of Lords. I said:What then does it all come to? If the contention of the Attorney-General is correct, it means that he is the final arbiter as to whether the law should be enforced or not. If he does not act himself or refuses to give his consent to his name being used, then the law will not be enforced".I said to the Attorney-General, quoting old Thomas Fuller:Be you never so high the law is above you".I was held to be wrong. The Attorney-General is the final arbiter in this land as to whether or not the law should be enforced in criminal matters. Indeed, in the House of Lords my noble and learned friend Lord Dilhorne, speaking of the Attorney-General, said:In the exercise of these powers he is not subject to direction by his Ministerial colleagues or to control and supervision by the court".If this is the position it is essential in our constitution and should be known, that he must be independent of any party or any influence by Ministers at all. He must be impartial and, I should like to add, he must be independent of ministerial pressure, the same as the police must be. Under the Bill we are to have the independent prosecution service. So the police must not bring pressure on the prosecution service as to whether or not to prosecute. The decision on the facts must be left to the prosecution service, to the Crown prosecutor and, in the last resort, to the Attorney-General.
Because of that position, I dislike seeing anything in this Bill which requires the Attorney-General or the Director of Public Prosecutions to obtain the consent of the Treasury. It is unnecessary, as my noble friend Lord Renton says. It is not only unnecessary: it also seems to me to contain just a hint of encroachment of his independence and impartiality. I support the amendment and hope that we can leave out these things altogether.
§ Lord Campbell of Alloway
My Lords, very briefly, I support my noble friend Lord Renton on this. This is not only unnecessary but it could work really ridiculous, unintended mischief. Let us consider subsection (2). Suppose the Director appoints the staff and he does not get the approval of the Treasury. Is the appointment valid? Suppose that under Clause 2(3) he pays the remuneration without the approval of the Treasury. What happens to the money? The whole thing works an unintended mischief. There is no real necessity for it, and we should do away with it.
§ Lord Boyd-Carpenter
My Lords, I hate to differ from my country neighbour, the noble and learned Lord, Lord Denning, and from my old friend and colleague Lord Renton, but I find this amendment not only unnecessary but, in the ultimate, somewhat harmful. I fully agree with what the noble and learned Lord, Lord Denning, said about the independence of the Attorney-General and of the police, but we are not concerned with that. We are concerned with the 323 charges that they will be able to impose on public funds. The noble and learned Lord, Lord Denning, calls in aid the argument about the police, but I should like to point out that neither the Metropolitan Police nor, through the local authorities, the country police are free from Treasury control on the amount that they may spend on recruitment and pay to the service; so the noble and learned Lord's analogy in relation to the police is really, with respect, against him.
I am bound to say that I am shocked that the noble and learned Lord, Lord Simon of Glaisdale, should have so far forgotten the struggles to control expenditure which he had, as a very good Financial Secretary to the Treasury, as to back this amendment. Perhaps that accounts for his absence today; perhaps he has had a fit of repentance and has therefore left the moving of this amendment to the less sensitive conscience of my noble friend Lord Renton. It is all very well for my noble friend Lord Renton to say, "Well, the Treasury has got it and, anyway, it is a matter for the House of Commons". My noble friend knows as well as anybody who has served in the House of Commons the limitations and defects of the control of that House over public expenditure, with the vast scale and infinite detail of public expenditure today and the appalling limitations of parliamentary time. My noble friend knows that.
It is all very well to say, "Oh, well, the Treasury is all right and it can easily control it without these provisions". It has been my job, as at one time it was that of the noble and learned Lord, Lord Simon of Glaisdale—it has been my job twice—to deal with public expenditure, and I can assure your Lordships that it is one of the most difficult tasks that can be imposed on any member of a government. You are "the abominable 'No' man"; you have to say "No" to colleagues' demands for expenditure. The whole pressure of Ministers and their departments is all for an increase in public spending. It does not need arguing. You have only to look over the history of the last 25 or 30 years to see the constant pressure to increase expenditure. It would seem to me to be utterly irresponsible deliberately to remove, as this amendment seeks to do, a provision which, in however modest a degree, supports the Treasury in its gallant and immensely difficult efforts to control public expenditure. The scales are weighted heavily against the Treasury.
I do not rate this provision, which is in many other statutes, unduly high, but it has some value. Your Lordships will also consider this. We have been told that it is in many other statutes. If it is removed from this Bill, will not the inference be that the control of the Treasury over these particular items is less, and is intended by Parliament to be less, than it is in other areas? We are concerned here with what is a particularly sensitive area of public expenditure: the recruitment and pay of staff. That is what the first amendment deals with. It does not need stressing that if one department of Government either goes in for large-scale recruiting or ups the pay of its staff out of line with the rest of the public service, you are going to generate very considerable pressures for increased public expenditure right across the board because of the whole argument of the relationship between the 324 remuneration of one public servant and that of another. The question of the relativities immediately arises.
I do not want to make heavy weather of this. My noble friend moved the amendment in the most lighthearted and amiable way. But I think this amendment is a little more serious and a little more damaging than perhaps has been suggested so far. If it comes to a vote, my vote will be firmly for keeping in the control of the Treasury and so helping it in the immense and immensely important task it has in dealing with public expenditure.
§ Lord Elton
My Lords, the noble and learned Lord, Lord Simon of Glaisdale, was most persuasive at the Committee stage, and my noble friend Lord Renton has explained in part why this should be accepted by saying that in this respect he apparently is a gamekeeper turned poacher. I was indeed more than half inclined to agree with him then that references to the Treasury should be excised from the Bill. He has been quoted at sufficient length for me not to repeat the arguments he put forward. If I still believed that the formulae which are under siege by the noble and learned Lord, and now by my noble friend Lord Renton, were in fact redundant, I should be the first to support their removal. Like them, I hate seeing unnecessary words on the face of a statute.
However, I am reluctantly persuaded that the offending words are necessary. This has been so clearly explained by my noble friend Lord Boyd-Carpenter that I shall say less than I had intended to say. It is the essence of the argument that my noble friend Lord Renton seeks to put forward that, as a matter of practice, the Treasury will be brought in when decisions which affect expenditure are being taken, and therefore it is not necessary to say so on the face of the Bill. As my noble friend Lord Boyd-Carpenter so appositely and clearly stated, if you change what is written on the face of a Bill, dealing with a matter which has been dealt with for decades with the same formula, it is necessary for those interpreting the statute to find some reason for your having done so; and the only reason that this amendment would leave available to the critical reader would be that we thought it less important to control expenditure in this area and that the authority of the Treasury was in some way reduced and mitigated. That would be misleading.
I am strongly advised that the words:requiring the consent or approval of the Treasury",protect the authority of Treasury Ministers. It would be highly undesirable if, by departing from established convention in this Bill, we were to risk giving the impression that decisions in matters covered by it were only a matter for the Attorney-General, the Director or the Lord Chancellor, as the case might be, without reference at all to the Treasury. This is a matter of some importance. I understand how my noble friend feels about the deference which I sought to pay to the Commons, but this is a money matter and I think it is without doubt that the Commons must have the first say because it is the House which traditionally deals with Supply.
325 I wrote a letter at greater length, even, than the quotations by my noble friend Lord Renton might lead your Lordships to expect, which went into this all very thoroughly. It was placed in the Library. I think I have said enough from it to show how we on these Benches would expect our noble friends to resist any attempt to amend the Bill in this way.
§ Lord Renton
My Lords, in spite of my disagreement with my noble friend, I should like to thank him for the letter which he sent to the noble and learned Lord, Lord Simon, and for his generally open-minded approach to this matter. I should like to thank the noble and learned Lord, Lord Denning, for raising a question of principle which I did not raise when moving the amendment. My old friend Lord Boyd-Carpenter—he used that term, so rightly; I will not say how old—is a former Chief Secretary to the Treasury and therefore it was not surprising to hear him singing an old Treasury song. I was disappointed that my noble friend Lord Elton was so eager to join in the chorus of it. I think that their speeches entirely ignore the tremendous power that another place has over Ministers who are answerable to it—as are some Ministers before your Lordships—and who have control over regulations and public expenditure.
I hope that it will not go down on the record that I accept that the matter was approached by me in a light-hearted manner. I think that that was the view expressed by my noble friend Lord Boyd-Carpenter. There are some of us who feel very seriously that there is too much nonsense that by habit goes into Acts of Parliament, and this was an attempt to try to get rid of some of it. However, having given the matter a good airing, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Elwyn-Jones moved Amendment No. 4:
Page 2, line 12, leave out ("prosecuting officer") and insert ("crown advocate").
§ The noble and learned Lord said: My Lords, it may be for the convenience of your Lordships if we also discuss Amendment No. 6 with Amendment No. 4:
§ Amendment No. 6: Page 2, line 14, leave out ("prosecuting officer") and insert ("crown advocate").
The amendments deal with a short point. Clause 1(3) contains the provision that:
The Director may designate any member of the Service who is a barrister or solicitor as a prosecuting officer".
What is suggested is that that individual should instead be called and termed "Crown advocate". In the magistrates' courts at present the police constable who conducts a prosecution is sometimes called the "prosecuting officer". Indeed, police sergeants are also so designated. If I may say so, the term conjures up someone who is not of major significance in the prosecution field. The term "Crown advocate" conveniently embraces both counsel and solicitors who will be entitled to function as such. I understand that this proposal would be much welcomed by the Society of Prosecuting Solicitors.
§ Names are not without importance. A rose by any other name we know will smell as sweet. But perhaps a prosecuting officer will, I shall not say "smell sweeter" if he is called a "Crown advocate"—it seems that I have introduced an unattractive thought into 326 our discussion—but it may well be that the term "Crown advocate" would be more acceptable. Of course, the prosecutor has to prosecute and I am not running away from that. We had a tremendous counsel on my circuit who later became a metropolitan magistrate. He was criticised on one occasion for over-prosecuting and he said, "Members of the jury, I have come here to prosecute the defendant, not to give him a bouquet"! I am not suggesting that prosecuting officers should grant bouquets around the place, but I seriously suggest that it would improve the position, the language and the title of this important functionary in the new set-up, if he is called the "Crown advocate" in place of the "prosecuting officer". I beg to move.
§ Lord Elton
My Lords, in recognising that the noble and learned Lord's epithets are entirely suitable for St. Valentine's Day, I cannot entirely follow him in his enthusiasm for the amendments. They are, if I may say so, entirely presentational and I am sure that the noble and learned Lord would accept that view, because we are concerned with the presentation of the service to the public.
The change that the noble and learned Lord proposes would not be a substantial change in the Bill. I would not suggest that we take strong exception to it, but we ought first to consider very carefully whether it would be a change for the better. We need to ask ourselves: what is the case for it, and what is the case against it?
As I understand it, the noble and learned Lord is saying that the case is this. Those who are likely to transfer into the new service are thought to prefer the term "Crown advocate" to that of "prosecuting officer". Perhaps they believe that it sounds less partial or of higher status. I am not at all sure that the existing prosecuting solicitors as a group take that view, but I believe that the noble and learned Lord has a view on that matter.
In any case, some individuals no doubt do dislike the term "prosecuting officer". I think that there may be others who would dislike being called "Crown advocate". However, there are some incidental difficulties with the term "Crown advocate" itself. In the first place, it could be taken to imply that the principal function, if not the only function, of those so described is advocacy. It is true that providing advocates in the magistrates' courts will be one of the main functions of the new service but it does have other functions.
It will, perhaps first and foremost, be responsible for taking over the conduct of cases where the police have initiated a prosecution. As our debates in Committee made clear, that function will include a duty to consider whether to continue with the prosecution, as well as the other decisions which need to be taken once the case has come to court. Officers of the service will also exercise other functions now undertaken by the Director, including the giving of consent to prosecution for various offences. And the service will brief counsel to appear in the Crown Court. Therefore, they will not be simply a force of advocates.
To describe members of the service as "Crown advocates" may give a misleadingly narrow impression of what they will actually do. In fact, 327 whatever name we choose to apply to any officer of the service designated under Clause 1(3), some of them may not, as it happens, appear as advocates very often at all. That is my first reservation about the proposed new term.
My second reservation is its relationship to the title that we have decided to give to the senior member of staff who is responsible for supervising the operation of the service in an area. He is to be known as the "Crown Prosecutor". If we agree that the way in which the service is perceived and understood by all and sundry is important, then we have to ask ourselves whether it would be clear that the Crown advocate works under the supervision of the Crown Prosecutor. I do not think that it would be clear. At present, we have in the Bill three levels of authority marked out by three clearly related titles: the Director of Public Prosecutions; the Crown Prosecutor and prosecuting officer. The function of prosecution is explicit at each level. The amendment seeks to provide that it should remain explicit in the upper levels, but should not be referred to at all at the third.
I know that these are minor rather than major objections to the new suggested name. If it were clear that the new term had strong advantages over what is in the Bill, I dare say that they would not prove conclusive. But I doubt whether the new term does have such advantages. As I have said, the main claim for it seems to be that it avoids a connotation of partiality, of being identified with the prosecution. But if this were a substantive point, then presumably we should have to think again about the title "Crown Prosecutor" and, indeed, "Director of Public Prosecutions". I am not aware of any significant body of opinion that these terms are unsatisfactory and I would very much like to hear the views of others of your Lordships on this matter, if they are strong views, before concluding the matter. My view at the moment is that the case is not made out.
§ Lord Mishcon
My Lords, before the noble Lord the Minister sits down, may I ask him in all frankness whether he is himself pleased with the title of "prosecuting officer", and if he is not, whether, with the usual open-mindedness that he has just expressed, he would be prepared to consider the term to see whether a better title is available when we come to Third Reading? My noble and learned friend and I are not wedded to the title of "Crown advocate": we merely want to improve on what seems to be a bad title at the moment.
§ Lord Elton
My Lords, with your Lordships' leave, what I sought to say was that I did not wish to suggest that "prosecuting officer" was perfect. I was saying that, whatever its level, "Crown advocate" seemed to be misleading, and we should not be content with that. I do not find the term "prosecuting officer" objectionable; but of course I shall consider whether there are adequate reasons for thinking that something else might be better. I do not think that such an idea will spring into my mind of its own volition, so if the noble Lord or anyone else has ideas to canvas, I should be interested to hear them. In advance of that, I cannot undertake to bring forward an amendment at the Third Reading.
§ Lord Elwyn-Jones
My Lords, as the noble Lord has approached this matter sympathetically, and in the light of what has been said, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Lord Chancellor
My Lords, we now come to Amendment No. 5, to which I think the noble and learned Lord has spoken. He has indicated that he wishes to divide the House on it.
§ Lord Elwyn-Jones moved Amendment No. 5:
§ [Printed earlier: col. 313.]
§ The noble and learned Lord said: My Lords, I beg to move Amendment No. 5 to which I have already spoken.
§ 4.31 p.m.
§ On Question, Whether the said amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents, 74; Not-Contents, 103.
|DIVISION NO. 1|
|Airedale, L.||Listowel, E.|
|Ardwick, L.||Longford, E.|
|Aylestone, L.||Lovell-Davis, L.|
|Banks, L.||McNair, L.|
|Boston of Faversham, L.||Mar, C.|
|Briginshaw, L.||Melchett, L.|
|Brockway, L.||Meston, L.|
|Carmichael of Kelvingrove, L.||Milford, L.|
|Collison, L.||Mishcon, L.|
|David, B. [Teller.]||Molloy, L.|
|Donaldson of Kingsbridge, L.||Monson, L.|
|Elwyn-Jones, L.||Nicol, B.|
|Ennals, L.||Phillips, B.|
|Ezra, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Fisher of Rednal, B.|
|Fitt, L.||Prys-Davies, L.|
|Gallacher, L.||Ritchie of Dundee, L.|
|George-Brown, L.||Rochester, L.|
|Gladwyn, L.||Seear, B.|
|Graham of Edmonton, L.||Shaughnessy, L.|
|Grimond, L.||Shepherd, L.|
|Hanworth, V.||Simon, V.|
|Harris of Greenwich, L.||Somers, L.|
|Hatch of Lusby, L.||Stallard, L.|
|Hayter, L.||Stedman, B.|
|Henderson of Brompton, L.||Stewart of Fulham, L.|
|Houghton of Sowerby, L.||Stoddart of Swindon, L.|
|Hunt, L.||Strabolgi, L.|
|Irving of Dartford, L.||Taylor of Blackburn, L.|
|Jacobson, L.||Tordoff, L.|
|Jacques, L.||Underhill, L.|
|Jeger, B.||Wells-Pestell, L.|
|Jenkins of Putney, L.||White, B.|
|John-Mackie, L.||Wigoder, L.|
|Kagan, L.||Wilberforce, L.|
|Kaldor, L.||Wilson of Langside, L.|
|Kearton, L.||Wootton of Abinger, B.|
|Ailesbury, M.||Belstead, L.|
|Airey of Abingdon, B.||Bessborough, E.|
|Ampthill, L.||Boothby, L.|
|Auckland, L.||Boyd-Carpenter, L.|
|Avon, E.||Brabazon of Tara, L.|
|Bathurst, E.||Brookes, L.|
|Bauer, L.||Caithness, E.|
|Belhaven and Stenton, L.||Cameron of Lochbroom, L.|
|Beloff, L.||Campbell of Croy, L.|
|Coleraine, L.||Merrivale, L.|
|Constantine of Stanmore, L.||Mersey, V.|
|Cottesloe, L.||Molson, L.|
|Cox, B.||Monckton of Brenchley, V.|
|Craigavon, V.||Moran, L.|
|Cullen of Ashbourne, L.||Morris, L.|
|De Freyne, L.||Murton of Lindisfarne, L.|
|Denham, L. [Teller.]||Northesk, E.|
|Denning, L.||Nugent of Guildford, L.|
|Dilhorne, V.||Onslow, E.|
|Drumalbyn, L.||Orkney, E.|
|Dundee, E.||Pender, L.|
|Effingham, E.||Peyton of Yeovil, L.|
|Ellenborough, L.||Plummer of St. Marylebone, L.|
|Enniskillen, E.||Porritt, L.|
|Faithfull, B.||Portland, D.|
|Ferrers, E.||Quinton, L.|
|Fraser of Kilmorack, L.||Rankeillour, L.|
|Gainford, L.||Rawlinson of Ewell, L.|
|Glanusk, L.||Reay, L.|
|Gray, L.||Renton, L.|
|Gridley, L.||Renwick, L.|
|Hailsham of Saint Marylebone, L.||Sandford, L.|
|Hardinge of Penshurst, L.||Savile, L.|
|Home of the Hirsel, L.||Skelmersdale, L.|
|Hood, V.||Soames, L.|
|Hornsby-Smith, B.||Stamp, L.|
|Hylton-Foster, B.||Strathcarron, L.|
|Ironside, L.||Strathcona and Mount Royal, L.|
|Kitchener, E.||Swansea, L.|
|Lane-Fox, B.||Swinton, E. [Teller.]|
|Lauderdale, E.||Terrington, L.|
|Lloyd of Hampstead, L.||Teviot, L.|
|Long, V.||Teynham, L.|
|Lucas of Chilworth, L.||Trefgarne, L.|
|McAlpine of Moffat, L.||Trumpington, B.|
|McAlpine of West Green, L.||Vivian, L.|
|McFadzean, L.||Whitelaw, V.|
|Macleod of Borve, B.||Young, B.|
|Mancroft, L.||Young of Graffham, L.|
|Maude of Stratford-upon-Avon, L.|
On Question, Motion agreed to.
§ 4.38 p.m.
§ [Amendment No. 6 not moved.]
§ Clause 2 [The Director of Public Prosecutions]:
§ [Amendment No. 7 not moved.]
§ Clause 3 [Functions of the Director]:
Lord Elton moved Amendment No. 8:
Page 3, line 27, leave out from ("offences") to end of line 30
§ The noble Lord said: My Lords, subsection (2)(e) of Clause 3 is designed to replace a duty which is already expressed in Regulation 4 of the prosecution of Offences Regulations. Regulation 4 requires the Director to give advice to the police, to Government departments, to justices' clerks, and to such other persons as he thinks right. Clause 3 is concerned specifically with criminal cases where proceedings have been instituted by the police. Subsection (2)(e) is therefore directed at the duty to advise the police as opposed to the other people mentioned in the regulation. However, in all other respects the intention is the same.
§ I have already said today that I do not welcome superfluous words in a statute, and I received some 330 approval thereby. We find that subsection (2)(e), which is intended to describe the duty already described satisfactorily in the regulation, includes words which do not appear in the regulation and which must therefore be superfluous to our purpose. Those are the words that my amendment is designed to delete. I beg to move.
§ Baroness Faithfull moved Amendment No. 9:
Page 3, line 46, at end insert—
("( ) The prosecution of offences by children and young persons shall be dealt with by the staff of the Crown Prosecution Service who have relevant experience and specific training in the social, educational and community facilities available to juveniles both prior to or after a possible court appearance.")
§ The noble Baroness said: My Lords, first may I apologise, in a way, to the Minister for giving him extra work. When I moved a similar amendment at the last stage he gave what was, up to a point, a satisfactory answer. Secondly, may I apologise for the not very good drafting, I drafted it myself, and therefore it is not an experienced piece of drafting. My noble friend Lord Campbell of Alloway suggested to me before this sitting that the words "relevant" and "specific" might come out.
§ I move this amendment again in order to give a further airing to the subject of this amendment, which is somewhat unusual. I know that my noble friend the Minister will say that this amendment can be dealt with by administrative means. What concerns me is, first, that juveniles are dealt with by three different Government departments in different ways—the Department of Health, the Home Office and the Lord Chancellor's Department in the appointment of magistrates.
§ I have thought that this position should be given a further airing because if it is to be dealt with by administrative means I hope it will be taken note of by all three Government departments—not in this present day but in the future—that it is important that the prosecuting officers should have specific training in dealing with juveniles, because it is a completely different ethos from dealing with adults. I know that my noble friend the Minister will say again that it can be dealt with by administrative means, and can be adhered to by administrative means; but, nevertheless, I should like to give a further airing to this unusual situation—a situation which is different now from what it has been in the past. I beg to move.
§ Lord Campbell of Alloway
My Lords, I supported the spirit of this amendment at Committee stage and I support the spirit of it today. There is an important point of principle involved here which brings into play the more enlightened approach, as some of us think, of Scots' law in this regard. But my noble friend the Minister gave a specific assurance, and I for my part am wholly content with the form of assurance that he gave. Perhaps this is where my noble friend Lady Faithfull and I do not totally agree.
I agree with the spirit of what she proposes, but I am wholly content that this should be implemented in accordance with the full undertaking given by my noble friend at Committee stage. It is more appropriate, is it not, that the implementation should be by 331 means of administrative rules and directions rather than that it should clutter up the body of a statute? Providing that that assurance is honoured—and I am sure that it will be—surely that is sufficient.
§ 4.45 p.m.
§ Lord Mishcon
My Lords, as I said at Committee stage, it will come as no surprise to anyone—certainly no-one who heard the speech of my noble and learned friend Lord Elwyn-Jones at Second Reading—that we support the whole spirit of this amendment. Therefore, I do not intend to make a long speech at Report stage. What I notice is that the noble Baroness, Lady Faithfull, has taken the trouble to set this amendment down in rather different wording in order to procure a more ready acceptance.
I find myself surprisingly often in agreement with the noble Lord, Lord Campbell of Alloway, but I am not sure that I read—and it may be that I have omitted to read something—the clear assurance which he said the noble Lord the Minister gave. I ventured to call for an assurance. I am reading from column 1097 of our proceedings at Committee stage on 17th January, and this is what I said:If the Government could give an assurance in regard to specialisation and the allotment of such cases to those who are the specialists within the service, one would hope that a suitable amendment could either come forward from the Government or from those of us who take this matter so seriously, as do those who sit on these Benches.This was really no political matter at all. Noble Lords from all sides of your Lordships' Committee spoke in favour of this. I remember the speeches made from the Alliance Benches, which obviously supported the spirit of the amendment.
There are two things I have to say. First, it may be that I am wrong about this but the only quotation that I can find from the noble Lord the Minister is at column 1103 of the same day:I am glad to tell your Lordships that the Director of Public Prosecutions is already seized of the point that special considerations apply to juvenile cases".if I may pause there for a moment, it would be most surprising if he were not—and does not dispute the need for prosecutors in juvenile court cases to be attuned to the special procedures and climate of the court".These are completely inoffensive words. If you analyse them, all that they amount to is, "Yes, in regard to this amendment the Director of Public Prosecutions knows perfectly well that juvenile cases often have to be treated rather differently, and one would hope that in juvenile cases there ought to be prosecutors who are attuned to the special procedures and climate of the juvenile court".
That does not go anywhere near the assurance I was seeking, nor does it come up to the wording and spirit of this amendment. Obviously it will be for the noble Baroness, Lady Faithfull, to give her opinion upon this, but speaking from these Benches I see no earthly reason why a suitable amendment cannot be incorporated in the Bill in order to see that the spirit is there in appropriate wording.
The one objection (which I thought was a most formidable one) that the noble Lord the Minister 332 expressed last time was that he said, understandably, that in certain areas where the prosecutors available were rather thin on the ground—this might happen, indeed, quite often—the one person in the outfit who had the special experience and the special training may not be available that day because he was prosecuting in another court, or because he was ill, or because he was on holiday. If there were too much of a mandatory provision, presumably, to comply with the provisions of the Bill if it were amended, there might be an abortive prosecution or severe inconvenience caused to the court and to the defendant by the proceedings having to be adjourned. I thought that was a perfectly valid point.
That is overcome only if there is in the Bill a provision not to the effect that one hopes that the present Director is seized of the difference and so on, but a special provision, or at the very least an undertaking from the Minister, although personally I should not be as happy with that, solemn and sincere though that undertaking would be from the noble Lord the Minister. I am seeking at least an assurance that this would be taken on board, that there would be specialist training courses, or that there would be enlisted people who had this special experience. Without that undertaking we have nothing except a general statement of the kind I quoted. With it I should not be as happy as I would be if a suitable amendment were made to the Bill, so that the provision of this specialist training was provided for by statute.
§ Baroness Macleod of Bone
My Lords, I, too, supported the noble Baroness, Lady Faithful], at the Committee stage. I should like to do so again, for the reasons given by the noble Lord, Lord Mishcon. He quoted my noble friend the Minister when he said that specifically trained prosecution people might be thin on the ground, but from my fairly lengthy experience I believe that those juveniles who have committed crimes may also be thin on the ground. Thus I do not believe that that holds water. I support the amendment, though not the wording, because, like my noble friend, I stuck on the two words "reluctant" and "specific"; otherwise I support the amendment.
§ Lord Donaldson of Kingsbridge
My Lords, from these Benches we fully support the noble Baroness in what she is trying to do. We share some of the doubts about whether the phrasing or the drafting is correct. In particular, I should like to support the request of the noble Lord, Lord Mishcon, that we do not just leave it to the good will of the Minister, but that the Government provide us with a suitable amendment expressing the intention of the noble Baroness, but perhaps more accurately and clearly.
§ Lord Elton
My Lords, I am grateful to my noble friend for explaining the intentions behind her amendment and for prompting this short but interesting debate. We went into the question of the new service's arrangements for handling cases involving juveniles in some detail in Committee, but the subject is intrinsically extremely important and I do not regret returning to it at this stage of progress on the Bill.
333 As I said in Committee, we very much agree with the noble Baroness that when a juvenile is prosecuted the officer of the new service who is conducting the case should do so with due regard to the special procedure and climate of the juvenile court.
I am happy to repeat and clarify, which is I believe what noble Lords wish, the reassurance I then gave. It was that the Director of Public Prosecutions was fully seized of both the special considerations affecting juveniles and the implications for training and development of the new service. I gave that assurance at column 1103, at the point at which the noble Lord, Lord Mishcon, correctly quoted me. I wish also—as I sought to do two paragraphs later—to undertake on his behalf that in areas where there is sufficient juvenile court work to justify specialisation, whether whole time or part-time, officers of the new service will be both assigned and trained specially to deal with juvenile cases. I hope that that is sufficiently explicit.
I argued then that to place a requirement about specialisation on the face of the statute would unhelpfully trammel the Director in managing the new service, and that these were matters that were better dealt with administratively in the manner I have described. The same criticism applies to the amendment which my noble friend has brought forward today. It is one thing to establish, as one of the principles on which the new service would be managed, a recognition of the distinctive issues which arise in cases involving juveniles and to provide for them; but it is another to have within the statute a mandatory requirement that all prosecutions of juveniles must be handled by staff with particular experience and training. Would the defence be able to challenge the validity of the prosecution if that requirement were not met?—presumably it would; and how are the inexperienced to gain experience except by handling actual cases themselves?
I understand my noble friend's concern that the service should build up a corpus of expertise in juvenile work by seeing that that kind of work is not scattered indiscrimintely around the service but is handled by specific people who will add to the value of the training, which I have already said they will receive, a steadily growing volume of experience.
Management must respond to changing circumstances and change is something we cannot foresee. My real anxiety about amending the Bill in the general sense which my noble friend proposes is precisely that it is a Bill that we are amending. It can take as much as four years for even a very large and important matter to find parliamentary time for amendment, once it is enacted. What now looks like good management could quickly become out of date, for reasons that we cannot possibly foresee. We have had experience of this in the past, have we not? I believe my noble friend will recall the Mental Health Act 1959, which provided that various statutory functions relating to compulsory admission to hospitals should be carried out by what were termed mental welfare officers, appointed by local health authorities for the purpose. But after that, with the trend towards what is known as generic rather than specialised social workers, we found that very few social workers were designated as mental welfare 334 officers. Even those who were so designated sometimes lacked the expertise on the legislation required to perform their functions properly. As a result it was necessary to make provision in the Mental Health Act 1983—I believe that is about 14 years later—for the replacement of mental welfare officers by approved social workers. I think my noble friend took part in the debates on that when we took that legislation through Parliament. This illustrates exactly what I am saying—that what could be a strength now could become an albatross later. Therefore what is wanted is not something immutably in statute, or semi-immutably in statute, but something more flexible.
The terms in which we express an enduring and simple principle can be overtaken by changes in the context in which they are intended to operate and be rendered completely inappropriate. It would be a great pity if that were to happen in this case.
I know that my noble friend is concerned that an undertaking given by this Government cannot bind their successors and that she feels that binding it by statute means at least security until parliamentary time could be found by a successor for repeal. But I ask her to recall that it will be the Director, not the Government, who will run the service. We have an extremely satisfactory statement from the Director, which I have given, of the basis on which he intends to handle this matter, and the service does not necessarily change as do a government upon the holding of a general election.
I do not think that I need waste your Lordships' time by addressing myself to the other reservations I have regarding the amendment because several of your Lordships, and, indeed, my noble friend herself, have accepted the defect.
§ Lord Mishcon
My Lords, before the noble Lord adds to that remark may I, with the leave of the House, ask whether he is prepared to undertake that there will be issued to those who are appointing guidelines which would be along the lines of the amendment proposed by the noble Baroness? In other words, will guidelines be issued by the Home Secretary to the Director pointing out the advisability of people of this kind being appointed to this service, within the words of the Minister's assurance?
§ Lord Elton
My Lords, my brief says "guidance", but my advice is that they will be expressed in guidelines. If that is sufficient, I need say no more.
§ Baroness Faithfull
My Lords, I should like to thank all noble Lords from all Benches who have spoken in support of the spirit of this amendment. In the light of the reply given by my noble friend the Minister to the noble Lord, Lord Mishcon, that the point will be embodied in guidelines, at this stage I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5 p.m.
Lord Elwyn-Jones moved Amendment No. 10:
After Clause 3, insert the following new clause:
§ ("Welsh speaking prosecuting officers.
§ . The Director of Public Prosecutions and the Crown Prosecutor for each area designated by the Director in accordance 335 with the provisions of section 1(4) above shall in respect of each such area as is situated within Wales and the County of Gwent be responsible for providing prosecuting officers who are able to conduct cases in the Welsh language as may reasonably be required.").
The noble and learned Lord said: My Lords, this is a very important amendment which deals with a matter of great importance to the Principality. It is a provision that the
Director … and the Crown Prosecutor for each area designated by the Director … shall in respect of each such area as is situated within Wales and the County of Gwent be responsible for providing prosecuting officers who are able to conduct cases in the Welsh language as may reasonably be required.
§ The Welsh language is not only the oldest European language and its significance in this context is that it is spoken by hundreds of thousands of people in Wales—alas! not enough; it has got to be kept alive—but that a large number would prefer in proceedings in court, putting it at its lowest, to give evidence in Welsh rather than in English.
Under the Welsh Language Act, as noble Lords will know, there is an absolute right for a person to use the Welsh language. Section 1 of that Act provides:
In any legal proceeding in Wales or Monmouthshire the Welsh language may be spoken by any party, witness or other person who desires to use it …".
That already therefore exists as part of our law so that we should not be burdening prosecuting authorities with any duty that they are not, in a sense, subject to already. In order that the right should be real we submit that it is very important that there should be a supply of Welsh-speaking prosecutors. Happily, there are a large number of them available in every prosecuting authority area in Wales at the moment. Here again I call in aid the support given by the Prosecuting Solicitors' Society to this proposal. I hope therefore that it will be carried and carried with enthusiasm. The end of the Welsh national anthem sings—but I shall not sing, not on this occasion! O bydded ir heniaith barhau. Long may the old language live! On that note—if not musical—I end this submission.
§ Lord Rawlinson of Ewell
My Lords, always this House and the profession which the noble and learned Lord has adorned for so many years loves to hear him speak of Wales. I have heard him, not in this House, but on a great oral occasion at the American Bar Association burst into song, to the terror of the American Bar and to the great delight of those of us who were supporting him. I always wonder when he says that Welsh is the oldest European language. He says it with great authority but I am never really sure that that is an actual fact. However, it is now on the record.
When we come to look at this particular amendment, it is quite obvious that the Director of Public Prosecutions, if he has any sense—which he has—and his local directors who have any sense will ensure, if he wants to get any convictions, that there will be prosecutors with the ability to understand, if not at least to speak, Welsh when they are conducting prosecutions. Is it really necessary to make it mandatory? I should have thought it was more sensible to leave it to the good sense of those in charge 336 of prosecutions in Wales to make sure that they have adequate and sensible prosecutors. As I say, they will be those, for otherwise there are those asides between counsel and witnesses which are sometimes not understood by the mere English-speaking members of the Welsh Bar who cannot understand exactly what is happening. I should have thought it much more sensible to leave this to the good administration of the Director to make sure that he has the appropriate officers and not to make it mandatory, as is suggested with such patriotic fervour by the noble and learned Lord.
§ Lord Denning
My Lords, I hope that I have as much affection for the Welsh language as anyone. I have been on the Welsh circuit twice and I did not have to have an interpreter on any case except one and then the witness wanted time to answer the question, so we had an interpreter to turn it from Welsh into English. Seriously, can we make this provision in regard to prosecutors but not also in regard to judges or magistrates or defending counsel? Surely, as my noble and learned friend Lord Rawlinson says, we can leave it to good administration; and the Director or the Crown prosecutor in arranging these matters will certainly see that in any appropriate case there is a counsel or a solicitor who can speak the Welsh language. I should have thought that it could have been dealt with administratively without being put expressly in the statute.
My Lords, I have no idea whether I am voicing a view held by my colleagues on these Benches; but I feel moved to rise briefly to speak from my heart in support of this amendment just in case the noble and learned Lord who has moved it would have no other support except from me. I have the deepest affection and long connections with Wales. I have some knowledge of the language and it seems to me that this is a matter of some importance despite the difficulties.
§ Lord Prys-Davies
; My Lords, I wish to make one or two very brief comments in support of the amendment which has been so ably moved by my noble and learned friend Lord Elwyn-Jones. My noble and learned friend referred to the principle of equal validity of the two languages in the courts of Wales, a principle enshrined in the Welsh Language Act 1967. The noble and learned Lord the Lord Chancellor himself declared in your Lordships' House on 12th June 1973 that it had always been his intention—and here I quote the words of the noble and learned Lord the Lord Chancellor:to give full effect to the principle of equal validity both in spirit and in letter".Indeed, most Welsh people are very grateful to the noble and learned Lord the Lord Chancellor for the personal interest that he has shown in the implementation of the principle in the courts of Wales.
It was on his initiative that the noble and learned Lord, Lord Edmund-Davies, was invited to review the implementation of the 1967 Act in actual practice in the courts of the principality, and we are all grateful to the noble and learned Lord, Lord Edmund-Davies, for his report. The report contained about a dozen 337 recommendations, and one of them is very relevant in the context of this Bill. The noble and learned Lord, Lord Edmund-Davies, recommended:that, all other things being equal, the prosecuting authorities be encouraged to present their cases in Welsh when this course is sought by the accused".This recommendation was accepted and this has been the practice. We are asking in the amendment that the practice be preserved.
In those parts of Wales where the language is at its most polished and is habitually spoken by the majority of the people, it is not uncommon for trials in a magistrates' court to be held entirely in Welsh. In the corner of Wales from which I come, South-East Wales, which is more Anglicised and where the language is in a minority position, I have myself known cases in a magistrates' court to be conducted entirely in the Welsh language. We wish to preserve that position. It is important that that position should continue and it is therefore necessary that the new prosecuting service should be under a duty to provide for prosecutors who are able to conduct cases in the Welsh language. Otherwise, many people fear that the principle of equal validity enshrined in the 1967 Act will, in practice, be undermined and this will spark off a great deal of trouble.
I shall not go on any longer except to say this. There is a precedent for this kind of amendment which predates the 1967 Act. That precedent is to be found in the Administration of Justice (Miscellaneous Provisions) Act 1938, which provided for the appointment, when practicable, of Welsh-speaking chairmen or deputy chairmen of the quarter sessions in Wales and Monmouthshire. That being the position in 1938, we should certainly stand by that position in 1985 and I very much hope that the Government will find this amendment acceptable.
§ Lord Elton
My Lords, I am grateful to the noble and learned Lord for giving us an opportunity to discuss the important subject of the use of the Welsh language in court proceedings in Wales. The Government are well aware of the importance of the Welsh language in sustaining the culture of that country. One has only to read the distinguished and very appropriate names attached to this amendment to realise that the noble and learned Lord and the noble Lords supporting it have the well-being of the Principality very close to their hearts. They want the best for their people and they want it expressed in a way which respects and even supports this unique fascinating culture. As to its antiquity, I shall not enter the lists. They are Welsh and, rightly and properly, they want the best for Wales and that is something in which we entirely support them.
Their aim in tabling this amendment is to facilitate the use of the Welsh language in Welsh courts and we have no quarrel with that aim. This is a Government of all our people and the welfare and identity of Her Majesty's Welsh subjects are as much in trust to it as are the welfare and identity of her subjects in other parts of this United Kingdom. So let us look at the field to which these noble and Celtic Lords have turned our attention.
As your Lordships may be aware, Section 1 of the Welsh Language Act 1967 already provides that any 338 party to legal proceedings in Wales may speak Welsh if he wishes so to do. Section 2 of that Act also provides that forms for use in magistrates' courts in Wales should be available in Welsh. Such forms may, for example, contain a Welsh version on one side of the paper and an English one on the other. They are currently being revised and, we hope, improved, I mention that only to illustrate that in practice, as well as in law, there is no bar to legal proceedings being conducted in Welsh if one of the parties wishes it. And if, as may well be the case, another of the parties to the proceedings does not speak Welsh a translator must, under Section 1 of the Act, be provided for his benefit.
In those circumstances, what effect would the requirement proposed in the amendment for the Crown prosecutor in Wales to appoint Welsh-speaking prosecuting officers have? That requirement would be additional to the requirements in the Act that I recited. It is a requirement upon the appropriate Crown prosecutor to appoint Welsh-speaking prosecutors in the area described as "Wales and the County of Gwent". May I briefly in parenthesis, and with the greatest respect, remind noble Lords opposite about that description—because as an Englishman I make the intervention with the greatest deference and respect—that the whole of the county of Gwent is, as I understand it, in the principality of Wales. When Monmouthshire was on the map, the border marched through it and it was necessary to refer to Monmouthshire in the way that the noble and learned Lord has referred to Gwent. But that necessity no longer arises, because my fellow nationals lay no claim to a single yard of that beautiful county any more and, happily, the words are not needed.
But I digress. The main point is that the amendment would require the Director and the Crown prosecutor to appoint Welsh-speaking prosecutors in Wales. That requirement appears to be qualified by the words at the end of the new clause "as may reasonably be required". There is some uncertainty as to the effect of what I take to be the saving clause. But if the words are effective, they will presumably mean that it will only be necessary to appoint as many Welsh-speaking prosecutors as experience proves to be required or as expectation suggests. It may be necessary to act in every case, or perhaps in most cases, where some of the parties or witnesses wish to speak Welsh. Whether or not the qualification is effective, it seems to us that, though we sympathise with the noble and learned Lords' intentions, we are in some difficulty when it comes to satisfying them in the way they suggest.
Let us look, first, at the requirement as if it were absolute, and then as if it were qualified in the way suggested. We must of course remember that, no less than noble Lords opposite, we want the best for Wales and that must mean procuring the best practitioners for Welsh law. Welshmen are indeed formidable in the law and I do not need to turn to history for the proof of that. I have only to point to the Benches opposite. But formidable Welsh lawyers are not necessarily formidable Welsh speakers. Indeed, speaking Welsh is in some respects I rather think, having made the attempt, more difficult than practising the law, and I hardly think that noble Lords would assert either that 339 all the best lawyers always speak fluent Welsh or that sufficient of the Welsh-speaking best will always be available and anxious to fill the posts that will become vacant.
If the requirement were unqualified, it therefore follows that the amendment which the noble Lords, who want the best for Wales, wish to put forward could result either in compelling the Welsh having to wait indefinitely for justice at the hands of an inadequately staffed service of experts, or actually requiring the Director and the Crown prosecutor for the time being to provide the Principality not with the best but with second best, and I am sure that noble Lords would not wish to place such an absolute requirement on the statute book.
I therefore take it that they would, in fact, wish to place a saving qualification upon it so let us turn to the last five words of the amendment. They mean that the new clause is intended to have the effect of obliging the Crown prosecutor to provide Welsh speakers only where it is likely that the case will be heard in Welsh; and, again, we are in a difficulty. First, it may be that there are simply not enough Welsh-speaking prosecuting officers to cover all the cases conducted or partly conducted in Welsh in a particular area. And, again, the requirement would have the effect of delaying or disrupting the criminal justice system in Wales, simply because a Welsh-speaking prosecuting officer could not be found, even though under the Welsh Language Act 1967 a translator would be available to the defendant and to any witness to testify in Welsh.
I should say that if it does have the effect of a let-out, if the saving clause means that the service can operate even if there is not a qualified Welsh speaker to operate it, then it seems to me that the force of the amendment is entirely lost, because the whole thing becomes discretionary upon the Crown prosecutor. If what noble Lords want today is an unequivocal statement that the Government stand by Sections 1 and 2 of the Welsh Language Act 1967, they can have it and they have it. If they want an undertaking that the ability to speak Welsh competently will be one of the characteristics considered and given importance in recruiting new members to the service in Wales, that also I can and do give. But I doubt whether noble Lords whose names are on the amendment would want to place on the statute book a requirement that must on occasion, and as drafted, result in Wales from time to time having to put up with less than the best.
§ Lord Elwyn-Jones
My Lords, we are of course grateful for that unequivocal commitment and statement of the noble Lord. After many long sessions with him on the devolution Bill, I know how sympathetic he personally is to the aspirations of the Welsh people. We are this year celebrating the millennium of the law of Hywel Dda introduced by that great Welsh prince in the tenth century. It was a law which was the law of Wales until the Welsh Tudors, I regret to say, put an end to it with the Act of Union. But the traditions of the Welsh language and the use of the Welsh language is a precious heritage to the Welsh people and is also—I was glad to note it in the noble Minister's speech—acknowledged and 340 respected by all the inhabitants of the island, which is right and proper.
The purpose of the remaining five words was really to give an illustration of the moderation and not the extremism in the proposals. Some interesting and important semantic points were raised sympathetically by the noble Lord. What I have it in mind to do, if my noble friend Lord Prys-Davies agrees with me, is to give further thought to the precise language of the clause and possibly re-introduce it at the next stage of the Bill. In those circumstances, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 9 [Reports by Director to Attorney General]:
§ Lord Mishcon moved Amendment No. 11:
Page 6, line 41, at end insert—
("( ) A report under subsection (1) shall include a copy of any directions issued by the Director to Crown Prosecutors and prosecuting officers regarding the general criteria to be adopted in exercising the prosecutor's discretion in any of the following matters, that is to say:
The noble Lord said: My Lords, I wonder whether I may bring back to the recollection of the House an important amendment that came at Committee stage. We had reached Clause 9 of the Bill. Clause 9, if I may remind your Lordships, had a bare provision in regard to a very important document, the report by the Director to the Attorney-General, which in turn was to be placed before Parliament. If I may be permitted to remind your Lordships, there are three brief subsections of this clause. The first says:
As soon as practicable after 4th April in any year the Director shall make to the Attorney General a report on the discharge in that year of his functions".
Those are the general words used, and that is the limit of his liability. The second subsection says:
The Attorney General shall lay before Parliament a copy of every report received by him under subsection (1) above and shall cause every such report to be published".
The Director shall, at the request of the Attorney General, report to him in such matters as the Attorney General may specify".
I ventured at Committee stage to put down an amendment, and that amendment was very specific. Indeed, on reflection, I admit to the House it was too specific. The amendment provided that the report should,
include a copy of any advice or guidelines of a general nature which had been—
From various sections of the House a general understanding of what I was trying to get at on behalf of my noble friends was, I think, expressed. I can remember so well, if I may be permitted to say so, the speech that was made by the noble and learned Lord, Lord Rawlinson, on that occasion. He obviously will say what he feels fit to say today.
§ But there was general anxiety that with the Philips Report, which I shall quote in a moment, calling for accountability and openness in regard to the policy pursued on prosecutions, there were some need for this report to include specific matters. The noble Lord the Minister, in the course of a very fair reply to the debate, said that accountability was a good thing and, if I may paraphrase him, I hope fairly, he said that there were dangers in the specific way in which this amendment was drawn, not least in the reference to police matters and the questions of crime.
So my advisers and my colleagues sat down to try to deal with what we thought was a principle admitted by the Minister and with the comments that had been made in the debate. We decided that it was right and proper to leave out that reference to the communications that had been made to the police and the directions that might have been given to the police in regard to crime. What now appears in the amendment before your Lordships, as printed in The Marshalled List with one mis-type which I shall point out in a moment, is a direction for that report to include matters of a completely general but very germane nature, omitting, if I may say so, the objectionable characteristics of the amendment that I ventured to move before your Lordships at Committee stage. The mis-type is in sub-paragraph (d) of the amendment. It should read:
whether pleas of guilty should be accepted
obviously, and not,
whether pleas of not guilty should be accepted".
§ That would not be just a revision of the Bill but a revision of a very great tradition of justice in our country!
I said I was going to quote, with your Lordships' permission, two short sentences from the Philips Report, which is really the inspiration and the very heart of this amendment. They occur on page 138, chapter 6.48:
Openness is the second standard we have set for evaluating a prosecution system. We have defined that term, briefly, as the extent to which the system makes it possible for those who take prosecution decisions to be called publicly to explain and justify their policies and actions. This is often called 'accountability'.
As your Lordships will see, the only mandatory part of this amendment is that there shall be included in the report:
any directions issued by the Director … regarding the general criteria to be adopted in exercising the prosecutor's discretion in any of the following matters, that is to say:
(a) whether proceedings should or should not be instituted or continued;"—
the general principles of that obviously embarrass nobody, but it is of great importance that Parliament and the public should have that information—
- (b) the selection of charges to be preferred;
- (c) representations regarding mode of trial;
- (d) whether pleas of guilty should be accepted".
§ I hope that in its present form the noble Lord the Minister will find himself able to accept the amendment. I tell him in advance, as I am sure he anticipated, that this will obviously be a matter on which your Lordships' views will be required if the amendment is not accepted. I merely remind your Lordships that even in its objectionable form the 342 amendment was defeated at Committee stage by only 17 votes. I beg to move.
§ Lord Rawlinson of Ewell
My Lords, as the noble Lord said, at the Committee stage I indicated my support for provision to be made in the Bill for some form of more detailed report which should be laid before Parliament, and which would be from the Director to the Attorney-General. There were objections to the clause at that time with which my noble friend dealt. Therefore, I sat glowering during that particular Division, not able to support the proposers of the amendment but not happy that my noble friend was not prepared to accept some further elaboration of the report of the Director to the Attorney-General.
As the noble Lord has said, he has come forward excising that objectionable part and is giving what the public are entitled to know and ought to know; the general principles upon which prosecutions will be carried out. This is an important part of the administration of justice. The public are entitled to know the principles upon which prosecutors are going to proceed.
I trust and believe that the noble Lord—who has handled this Bill with great skill and with a great sense of responsibility, knowing full well how important it is, and what a new departure we are making—will be able to accept this amendment. I believe that it is in the public interest that the public should be acquainted with the matters which are set out. I support the amendment.
§ 5.30 p.m.
§ Lord Denning
My Lords, I support the amendment as it now is. I said at Committee stage that the report had to be a full and proper report and that should be enough. But having read the principles, I find that they are just as important for the public and the lawyers to know about as are the principles in law cases and decisions. In other words, those principles should be in the report, so that all may know them. I support the amendment.
§ Lord Hutchinson of Lullington
My Lords, I should also like to support this amendment. I am sure that the House will particularly take note of the words which have fallen from the lips of the noble and learned Lord, Lord Rawlinson—he having held the position of Attorney-General, and if I may say so having held it with great distinction.
The purpose of Clause 9(2), presumably—as has already been emphasised—is that Parliament and the public should be able to review the manner in which the Director is discharging his duties under this Bill. The pre-trial processes are almost the most important part of the criminal process. I should like to emphasise to the House that the decision as to whether to prosecute somebody, the decision as to which charge should be selected, and the decision as to which mode of trial to choose are all of crucial importance. Those are decisions which will be made in private; they are decisions which the public will not know about.
Unlike what goes on in open court, nobody will know why it is that certain decisions have been taken. 343 The decision as to whether or not to bring a charge, and the selection of charges, will of course control the time which trials are going to take. The mode of trial will also decide the question of congestion in the two sorts of trials: summary or in the Crown Courts. And whether to accept pleas of guilty will raise the whole question of plea bargaining, which is a matter that should have all the light that is possible displayed upon it.
I urge upon the House that all four heads are crucial matters in the criminal process. They are crucial matters for Parliament and the public to be able to see how they are being handled and what the policy is in regard to each of them.
§ Lord Elton
My Lords, the noble Lord, Lord Mishcon, very adroitly returns our attention to an important issue which he brought before the House at an earlier stage. I am grateful to him for enabling us to consider this matter again and to bring forward an amendment which has been improved by a reduction of its specificity—a word which I find very difficult to pronounce. The amendment which was pressed to a Division in Committee was rejected by a margin which, in these days, is perhaps more significant than the noble Lord gave it credit for. But the improvements are real, and they help, although they have still left us in some difficulty.
As I told your Lordships when we last discussed this matter, it is the intention that the report by the Director to the Attorney-General on the performance of the service's functions should contain any developments of general interest or importance. This will include material about the criteria on which decisions such as those to which the amendment refers are taken, as may be appropriate. However, a difficulty with this amendment, as with its predecessor, is that it makes no allowance for exceptions to the requirement to publication, to take account of the need for confidentiality in certain sorts of cases. As I said then, it would not be wise to require the Director to make public every weakness that might have been discovered in our legislation and which the criminal fraternity might be able to turn to their advantage in order to evade the results of their crimes.
Nonetheless, the arguments of my noble friend, the noble Lord, and others, are of great interest and press on a principle of openness which I should be very unhappy to resist. I have listened closely to the arguments that have been put forward by your Lordships in favour of the amendment, and they deserve very careful consideration.
I remind noble Lords opposite—who have wide experience in this field and who will recall this point—that the present Attorney-General is the first holder of that office ever to publish criteria for the guidance of those responsible for prosecutions. So I do not feel that our bona fides are in question. Those guidelines were published in 1983; but the Attorney-General has always recognised the desirability of making public any general criteria that may be laid down by the Director of Public Prosecutions upon which, once the Crown prosecution service is established, the discretion of prosecutors should be exercised.
344 We should therefore like time to consider the provisions by which that may best be achieved. It may be that it can best be achieved by incorporation in a report under subsection (1) of the clause, as proposed, in some form. With that assurance, perhaps the noble Lord will consider that withdrawing the amendment would be the best way to allow us to proceed in order to try and bring something forward at a later stage.
§ Lord Mishcon
My Lords, will the noble Lord the Minister, kindly repeat the assurance he gave? I did not quite comprehend all its terms.
§ Lord Elton
My Lords, I said that we recognise, and always have, the desirability of making public any general criteria that may be laid down by the Director of Public Prosecutions upon which, once the Crown prosecution service is established, the discretion of prosecutors should be exercised. We should therefore like time to consider the provisions by which this may best be achieved. It may be that incorporation in a report under subsection (1) of the clause will be appropriate. With that assurance, the noble Lord may think it best to allow us time to see whether we can introduce a provision that we may all agree upon.
§ Lord Simon of Glaisdale
My Lords, I do not understand what the Minister is proposing. Is he proposing to deal with the matter on Third Reading? Obviously, there is something to be said on each side, although speaking for myself it seems that those who have spoken in support of this amendment have made a formidable case. The real answer of the noble Lord the Minister was that there might be some exceptional cases where publicity was undesirable. I should have thought, if I understood this correctly—and the noble Lord was good enough to nod—that the right course is for your Lordships to accept the amendment at this stage, leaving the noble Lord the Minister to bring forward any suitable proviso at Third Reading.
§ Lord Elton
My Lords, with your Lordships' leave, the noble and learned Lord, Lord Simon of Glaisdale, has correctly interpreted my anxieties and my undertaking, but not the timing which I had in mind. The difficulty is—and he has already expressed it clearly as, I hope, I have, too—that there must in the general provision be some kind of provision for not declaring things which it would be damaging to the criminal justice system to reveal. I think we are on common ground there.
I cannot undertake to have this right by Third Reading. If I did, we could not then have a Committee style debate on it. I think I am right in saying that the normal custom in your Lordships' House in such a case is not to amend the Bill in a sense which the Government could not accept as being perfect, but to accept the Government's undertaking to try to bring forward a perfect amendment for debate and possible further amendment in another place.
§ Lord Renton
My Lords, may I on this occasion strongly support my noble friend Lord Elton? The suggestion that we should accept an amendment which everyone agrees could be improved upon because it is not yet quite right seems to be wrong. 345 When we do make an appropriate amendment it should be in its final form, which is what my noble friend is suggesting. Therefore, with respect, I should have thought that we should accept the undertaking, rather than make an imperfect job of it now.
§ Lord Airedale
My Lords, I think it would be a great pity if the proposed Government amendment was not forthcoming before the Bill leaves this House. Noble Lords have expressed themselves as particularly interested in this matter and if the Government amendment is introduced in another place, the debate there might go along different lines. I am sure your Lordships would like to see the Government amendment before the Bill leaves here.
§ Lord Elton
My Lords, will your Lordships permit me, unusually and improperly, to speak a third time on Report? I must be very careful in committing the time of parliamentary draftsmen because they are not concerned with only one Bill at one time. I can undertake that, if it is feasible without prejudicing other vital work which is also necessary to the timetable of the business of both Houses, we will bring something forward at Third Reading. I cannot promise otherwise because I do not know the load under which the parliamentary draftsmen are labouring at the moment.
As to the intervention of the noble Lord, Lord Airedale, the Bill will, of course, come back to your Lordships after the Commons has seen it. It will be open to him then to make comment if he feels that the discussions in another place have taken the wrong turn. I hope, therefore, that the fairly categorical undertaking I have given will be sufficient to satisfy your Lordships.
§ 5.45 p.m.
§ Lord Mishcon
My Lords, I should always want to be reasonable with the Minister in the same way as he is always reasonable with us. I am in a difficulty. Frankly, my difficulty is one not seen by the noble Lord, Lord Renton. He took it for granted that the noble Lord the Minister had pointed to a defect in the amendment which one had to agree should be rectified. I have had no opportunity of anwering the noble Lord the Minister and I therefore ask the noble Lord, Lord Renton, among others of your Lordships, to be kind enough to listen to my reply, which is this. The only objection that the Government have to this amendment—as I understand it, but I shall be corrected if I am wrongly stating it—is that there could be cases which it would be contrary to the national interest, or to security, or to police matters, to divulge in a report of the kind we have in mind in this amendment. That is why I specifically put in—because it was a point made by the noble Lord the Minister on the last occasion—the words,the general criteria to be adopted".I do not ask for particulars of all matters relating to the three classifications which follow, nor even for the particular criteria or the specific criteria. In this amendment I am asking only for the "general criteria". Obviously anyone making this report will see to it that in the "general criteria" matters of the kind referred to by the Minister are not included.
346 Therefore, in the light of the only objection put forward by the Government, the amendment as I understand it, does not have that defect. It has no defects. So I feel that I ought to say to the Minister—although it is difficult to do so now because he has replied, but I am sure that your Lordships with your customary generosity will give him leave to rise for a fourth time, as this is so important—that the point I am making is this. I cannot see the answer to this amendment. I cannot see the harm in it being accepted. The answer from the Government does not come up to the light of day when one sees what the wording is: namely, "general criteria". Therefore, I ask the Government, in exactly the same way as did the noble and learned Lord, Lord Simon of Glaisdale, and, I believe, the noble and learned Lord, Lord Denning: please accept this amendment, but if you have better words than "general criteria—and there can be only a couple of words put in—by all means come forward at Third Reading with a better amendment. I assure the House that we on these Benches will be only too happy, if it happens to have better wording—although I cannot see how it could be bettered—to accept it. To leave it in the way that the noble Lord the Minister wants us to leave it—that the Bill might not be amended in this House but that an amendment might be brought forward in another place—seems to us to be unsatisfactory.
§ Lord Elton
My Lords, before the noble Lord sits down—I think that it is only by saying those words that I can be permitted to speak again—I ask him to reflect on the offer I have made to come forward at Third Reading, if it is possible so to do, with an acceptable draft for this purpose. It will still be open to him to put down his amendment if he wishes the House to decide upon it at Third Reading, if he does not see an amendment which he finds acceptable then. I think that is the right way to go ahead.
§ Lord Mishcon
My Lords, that is a perfectly reasonable statement and in those circumstances I only ask the noble Lord to use all his considerable best efforts to see that the Government amendment is available at Third Reading. He is nodding his head—so that goes down in the Official Report. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 10 [Transfer of staff]:
§ The Lord Chancellor
My Lords, I see that the noble Lord, Lord Simon of Glaisdale, is now here, but my noble friend Lord Renton indicated that Amendment No. 12 might not be moved.
§ Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 12:
§ [Printed earlier.]
§ The noble and learned Lord said: My Lords, that is correct. I rise merely to apologise for the fact that I could not be here to move the series of amendments. I gather that the noble Lord the Minister, as I expected, resisted it and the noble Lord, Lord Renton, then withdrew the first of the series of amendments—I trust with suitable minatory gestures and words. In the 347 circumstances I do not propose to move this amendment.
§ [Amendment No. 12 not moved.]
§ Clause 12 [Premises formerly used in connection with Director's new functions.]:
Lord Elton moved Amendment No. 13:
Page 10, line 10, at end insert ("in relation to those premises").
§ The noble Lord said: My Lords, with your Lordships' leave, I shall speak also to Amendments Nos. 14, 15, 16 and 17.
§ Amendment No. 14: Page 10, line 12, after ("(6)") insert ("or (6A)").
§ Amendment No. 15: Page 10, line 25, at end insert ("in relation to any premises").
§ Amendment No. 16: Page 10, line 30, leave out ("any particular") and insert ("those").
Amendment No. 17: Page 10, line 36, at end insert—
("(6A) Where the Secretary of State—
§ I shall seek to move Amendments Nos. 14 to 17 en bloc. As I said in Committee, we intend to house the new service separately from the police as quickly as possible. It will clearly be best if it can be accommodated in its own premises. That may not be possible immediately and that is why we have the scheme in Clause 12 under which it can use local authority or police authority accommodation on a temporary basis to start with.
§ The scheme in the clause allows that arrangement to work for a maximum period of five years, renewable once and once only. But although we provided an upper limit on how long we may take to achieve our goal, we had not provided for dealing with the case where, as I hope, we may achieve it much more quickly than this—in other words, the clause as drafted does not specifically allow the obligations on the local or the police authority to be terminated before the five-year period is up. Indeed, as currently drafted, it could be read as implying that a local authority may be obliged to make the premises available to the service for the whole of the five years, even though the prosecution service had moved out only after six months. That is undesirable, as well as being unnecessary.
§ The new subsection (6A) inserted by Amendment No. 17 accordingly ensures that the obligations placed on the local or police authority can be ended on reasonable notice being given by the Secretary of State. The other amendments are consequential upon it. They simply ensure that the other provisions of Clause 12 relating to the points at which the local authority's obligations are terminated can apply to individual premises instead of being drafted in terms of the local or police authority on whom they are imposed. I beg to move.348
§ Lord Elton moved Amendments Nos. 14 to 17:
§ [Printed above.]
§ Clause 13 [Control of certain fees and expenses etc. paid by the Service]:
§ [Amendment No. 18 not moved.]
§ Clause 14 [Interpretation of Part I]:
Lord Irving of Dartford moved Amendment No. 19:
Page 13, line 1, leave out subsection (6).
§ The noble Lord said: My Lords, in moving this amendment I should like to thank the noble Lord, Lord Elton, for the very thorough and sympathetic way in which he replied by letter to the points which were made at the Committee stage on the Bill. This again is a probing amendment. The assurance that I ask for is that no members transferred to the new service and from the local government to the Principal Civil Service Pension Scheme will suffer in any way.
§ The Pension (Increase) Act 1971 applies to official pensions—that is, those provided for under statute; for example, for civil servants, Members of Parliament, teachers, local government officers, police, fire service and National Health Service staff. No problem arises on transfers of functions from one authority or employer to another: the pensioners of a transferred service may either be left with the former authority or taken over by a successor authority. Whoever is responsible for paying the pension applies the provisions of the Act. There may be problems so far as the paying authority is concerned about who will bear, or reimburse, the cost, but that is of no concern to the pensioner.
§ The objective of this subsection in the Bill is obscure. It would not normally be necessary to make any special provision for index-linking, except to define which employer or authority shall bear the cost. The unions, however, fear that the clause may be intended to deprive transferred employees of their expectation to index-linked pensions on retirement. The reference to the Act seems unnecessary on a straight transfer between services enjoying an equal expectation to benefit under it.
§ It is also important to bear in mind the following differences between the Local Government Superannuation Scheme to which members of the service at present belong and the Principal Civil Service Pension Scheme to which they will be transferred. These differences are real.
§ The local government scheme is contributory—6 per cent.—with full tax allowance. The Civil Service scheme is non-contributory, except that there is a contribution of 1½ per cent. for widows and dependants' benefits. There is, however, a notional deduction in the remuneration of a civil servant of about 8 per cent. to take account of the noncontributory pension plus the cost of index-linking. The objective of transferred staff must be to preserve their existing net pay—that is, gross pay less 6 per cent. before tax.
§ Secondly, lump sums payable by the local government scheme are increased by 1½ per cent. of the 349 full 3/80 per year in respect of service prior to 30th September 1950. This is an actuarial adjustment because the scheme bore no liability for widows pensions before that date. There is no comparable provision in the Civil Service scheme. The sums involved can be quite appreciable. For example, a person appointed at age 18 on 1st October 1940 will have 10 years service prior to 30th September 1950. On retirement at age 65, with 45 years reckonable service, say, on a salary of £20,000, the basic lump sum will be 3/80 x 45 x £20,000, which is £33, 750, and the increase of 5 per cent. will be £1,687.50.
§ The normal retirement age in the local government scheme is 65, while the normal retirement age for civil servants is 60. The Civil Service scheme provides for a normal retirement age of 60, although it allows for up to 45 years reckonable service at age 65.
§ Protection of rights could be provided under existing legislation but preservation on transfer in the past from the local government scheme to the Civil Service scheme seems to have been non-existent. There are enabling powers under Section 33 of the Superannuation Act 1965 for the Treasury to introduce protective rules, but, so far as can be ascertained, they were not used in connection with the last relevant situation—that is, the transfer of staff under the Vehicle and Driving Licences Act 1969. There is, however, an important difference between the current situation and the position in 1969. Officers affected by the 1969 Act were eligible for compensation under the Crombie Code (The Vehicle and Driving Licences (Compensation to Officers) Regulations 1970) if they suffered loss of employment before the normal retirement age for local government officers of 65 years. Clearly, with the compensation regulations in the background, the Civil Service would not have enforced retirement at 60, but it is now firm Government policy to refuse Crombie terms so that the oblique partial protection to the superannuation rights thereby afforded in the past will have to be sought by other means.
§ Although it appears that there have been no protective rules on transfer of services between local government and the Civil Service, there are longstanding arrangements on transfers of services between local government and the NHS, whereby officers have been able to retain their previous rights if they have been more favourable than those of the NHS. Enabling powers exist in the Superannuation Act 1972 whereby local government scheme rights could be preserved for employees transferred to the Civil Service scheme.
I first ask the noble Lord whether central Government will reimburse local authorities for payment of index-linked increases of existing pensions. Secondly, I ask for the further and main assurance that no members transferred to the new service and from the local government to the Principal Civil Service Pension Scheme will suffer in any way. I beg to move.
§ Lord Graham of Edmonton
My Lords, I simply rise briefly to reinforce the reasonable way in which my noble friend Lord Irving moved the amendment. May I also begin, as he did, by thanking the noble Lord the 350 Minister most sincerely for his courtesy and care in responding to the points raised? He answered some at the time of the debate but he has taken the trouble to reply to others in writing.
May I pay the Minister the compliment of referring him to column 29 of Hansard on the debate of 21st January? He there said to my noble friend:It is not our intention to disadvantage staff transferring to the new service. As I have said, our policy has been to proceed by way of full consultation; our aim is to take the staff affected along with us in the preparation and planning of the new service, as well as in the details of their own transfer to it".The case for the basis of the concern has been made adequately. I simply ask the Minister to understand that people outside the House are relying on what he said. Their fears are that when, for instance, a 58 year-old man retires from the new service his pension entitlement may be damaged. He said that no time will be lost in assuring people that that will not happen. But as has been mentioned, the retirement age for civil servants is 60 whereas under the local government scheme it is 65. Clearly there is a potential loss of five years' service unless the Government are prepared to make provisions to enhance the pension rights of those who are retired early.
§ Lord Elton
My Lords, the noble Lords, Lord Irving of Dartford and Lord Graham, have shown that they share our concern to ensure that staff transferring into the new service should not be disadvantaged. I had supposed in the light of our earlier correspondence that the chief concern which they would deploy would be about redundancy, but I understand that I was misled in that respect, and I leap nimbly on to paragraphs 7 or 8 of my brief, to their relief and mine.
The Bill makes specific provision to protect the rights of staff under existing employment protection legislation. Clause 10 preserves continuity of employment for the purposes of certain entitlements, such as, for example, to maternity leave. Clause 14(6) itself preserves the rights of staff to the protection afforded by the Employment Protection (Consultation) Act 1978 on a change of employer. As I mentioned in Committee, the effect of deleting this subsection—as proposed in this amendment—would be to remove that protection. I do not believe that either of the noble Lords who have spoken would themselves wish to dispense with that protection, and nor indeed would the staff concerned. Therefore I take it that this is a probing amendment in the classic meaning of the term.
I must stress again that the subsection, in so far as it applies to the Pensions (Increase) Act 1971, serves only one limited purpose. It ensures that the liability for meeting the cost of pensions increases of existing pensioners—pensioners, not staff—falls on the local authority which last employed them. It is not considered appropriate that the Government should reimburse local authorities the costs of meeting pensions increase liability of existing pensioners who rendered service to the local authority concerned and not to the prosecution service, as is obvious.
Your Lordships will recall that the amendment to this subsection, which met with approval in 351 Committee, tightened-up the reference to the 1971 Act, to put the purpose of the subsection beyond doubt. That was done to allay the fears on the part of staff that the subsection in some way impinged on their rights to index-linked pensions. If the terms and conditions of transfer to the new service, taken as a whole, are less favourable than those currently enjoyed by staff, then the staff may claim constructive dismissal; and if the claim is successful, the staff will be entitled to compensation. The details of the terms and conditions will be for negotiation with the unions.
I dare say that your Lordships will have a little sympathy with me in that the noble Lord, Lord Irving of Dartford, asked me a great number of specific detailed and technical questions in an area of great complexity, where Acts of Parliament interact, and he did so without giving me notice. I regret that, without that notice. I can only undertake to write to him in reply. As I did on the occasion of his last intervention, I will place a copy of the reply in the Library and I shall of course give a copy to both of the noble Lords who have spoken. That is the best I can do under the circumstances.
§ Lord Irving of Dartford
My Lords, as the noble Lord has said, this is a very complicated and technical matter. It seems that what he has said is satisfactory. I shall look forward with interest to the correspondence which I hope will be equally satisfactory. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 15 [Defence costs]:
Lord Elwyn-Jones moved Amendment No. 20:
Page 13, line 18, leave out ("indictable")
§ The noble and learned Lord said: My Lords, it may be for the convenience of the House to deal with Amendments Nos. 20, 21 and 22 together.
§ Amendment No. 21: Page 13, line 23, leave out ("indictable")
Amendment No. 22: Page 13, line 36, leave out subsection (3) and insert—
("(3) Where an appeal is brought to a Crown Court and is allowed in whole or part, the court may make a defendant's costs order in favour of the appellant.")
These are important amendments, both in relation to principle and to practice. Their general effect will be to widen very considerably the granting of costs out of central funds to a successful defendant in relation to non-indictable offences. At the moment that discretion does not exist to make such orders. As I understand it, the only discretion that is vested in the court to make an order for costs against the prosecution is in indictable cases.
§ The effect of Amendment No. 20 would be that where a person has been charged with an offence but the prosecution have not proceeded with it, no distinction should be drawn between indictable and non-indictable offences and the defendant should be entitled to his costs. Likewise, the effect of Amendment No. 21 would be that where a magistrates' court, as examining justices, is examining an indictable offence and decides not to commit the accused for trial, in those cases it would not apply for non-indictable offences that such a court would be 352 seized of such an issue. Therefore it proposes to give to the magistrates' courts a considerable extension of discretion for the award of costs where it would, in justice and equity, be right to protect the defendant in the proceedings.
§ Indictable offences "covers" a wide range of grave offences. But the mass of offences—about 97 per cent. of them—that come before the magistrates' court are dealt with there summarily. They concern the mass of people who come before the courts. Indeed, the main experience of people in the courts is in the magistrates' courts. There the court deals with important offences: common assaults; assaults; assaulting a police officer in the execution of his duty; using threatening or insulting words and behaviour. Those are a wide range of important matters where the character and reputation of the defendant may be at stake and where the best defence that he can put up and pay for should be available to him.
§ In many of those cases legal aid will not be granted for a number of reasons. Some magistrates' courts are more ready than others to grant legal aid. We have not yet found a way of dealing with that discrepancy but unfortunately it is the case. Nevertheless, even though legal aid may not be available, the defendant has to make sacrifices to provide the best defence he can, and indeed to present his case. In those circumstances, if he is then acquitted, we submit that justice demands that he should not be mulcted in costs but should have them paid out of central funds.
§ Amendment No. 20 deals with the generality of the position which I have mentioned. Amendment No. 22 deals with the situation where there has been a successful appeal brought from the magistrates' court decision to the Crown Court. There, the likelihood of briefing counsel is more the case. But there it may be that the costs are greater than those for the average case in a magistrates' court. Therefore, if the successful defendant has to pay the costs, the hardship is proportionately greater still.
§ Our submission is that where an innocent person has fought to establish his innocence it is ironic that he should find himself condemned in costs in so far as his own legal expenses are concerned, if he is acquitted on a matter that came to the court, not on his initiative but entirely by the machinery of other persons and other authorities.
§ This is a matter on which the Law Society and many others have campaigned for a very long time. It is an anomaly in our law. Therefore we think it right to have these amendments moved so that a fundamental injustice in our administration of justice is removed. I beg to move.
§ The Lord Chancellor
My Lords, I agreed in Committee to take this back for further consultation. I am now able to tell the noble and learned Lord and any other noble Lords who might otherwise have spoken that I am able to accept the amendment in principle. If the noble and learned Lord will be good enough to withdraw this amendment, I shall come back on Third Reading with an amendment that I hope will embody that principle.
§ Lord Elwyn-Jones
My Lords, naturally, we are deeply grateful and delighted at the readiness of the noble and learned Lord to come forward with that generous response to the amendment. In the circumstances, while waiting with hope and expectation—
§ Lord Renton
My Lords, before the noble and learned Lord withdraws the amendment, I wonder whether I might say that I would not like it to be thought that the support for the view that my noble and learned friend the Lord Chancellor has expressed has no sympathy on this side of the House. I am sure that I speak for all my noble friends when I say that we greatly welcome the decision that my noble and learned friend on the Woolsack has taken.
§ Lord Elwyn-Jones
My Lords, I am grateful to the noble Lord. I did not put the amendment forward in any partisan or party spirit. It is nevertheless right that he should be publicly associated in this place with this excellent measure of reform. It will cause great relief and give great satisfaction to the public at large. In those circumstances, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Lord Chancellor
My Lords, I take it that, on the same undertaking, Amendment No. 21 is not moved.
§ [Amendment No. 21 not moved.]
§ Lord Elwyn-Jones moved Amendment No. 22:
§ [Printed earlier.]
§ The noble and learned Lord said: My Lords, this concerns the situation where there has been a successful appeal from a magistrates' court decision. I have made some observations about it. I wonder, therefore, whether the noble and learned Lord's generosity of spirit would also extend to this amendment. I beg to move.
§ The Lord Chancellor
My Lords, the answer is, "Yes". I give the same undertaking in relation to that.
§ Lord Elwyn-Jones
My Lords, what a bounteous and happy day it is! The spirit of St. Valentine is pervading and obviously coursing through the veins of the noble and learned Lord. We are grateful to him. On similar terms, I ask leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 23 not moved.]
§ Lord Mishcon moved Amendment No. 24:
Page 14, line 41, at end insert—
("( ) Where a defendant's costs order is made in favour of a legally assisted person, the court shall, on the application of that person and his solicitor, revoke the legal aid orders relating to the relevant proceedings whereupon the assisted person shall be deemed never to have been an assisted person in those proceedings and solicitor and counsel shall have no right to payment of remuneration from the legal aid fund or by the Lord Chancellor pursuant to section 37 of the Legal Aid Act 1974.").
§ The noble Lord said: My Lords, I apologise to the House for my hesitancy in coming to the Dispatch Box. It was indeed a hesitancy that had a good reason behind it. I wanted to make quite sure that I had correctly noted the amendments that have been made to the amendment that came before your Lordships previously, at Committee stage. The amendment provides that there should be no debit to the legal aid fund if a recovery can be made by a successful defendant from the other funds that are available. I remember so well, as your Lordships will, the noble and learned Lord, Lord Simon of Glaisdale, saying at Committee stage that he did not like the idea of this peculiar accounting and these peculiar provisions which really meant that the public—the taxpayer—was paying for it in any event and it was purely a question of which named pocket it came from. Nevertheless, it was the same public pocket.
§ I thought that I had made the point on the last occasion that this was not really the case here, because it does make a difference. I brought before your Lordships, if I recall correctly, the fact that the cost of the legal aid fund was so often a matter of public discussion—indeed, hesitancy was expressed on so many occasions by the noble and learned Lord, whose heart was in the right place on these matters—that the fund really could not be extended to benefit various classes of persons who might be deserving of it, and, indeed, could not be extended to categories of tribunals where it was just to do so, because the limit of the fund had been reached and a not-too-generous Treasury was not prepared to recommend any increases however hard the noble and learned Lord might fight for them.
§ 6.15 p.m.
It is therefore important to ascertain to which fund the debit takes place. The amendment says:
Where a defendant's costs order is made in favour of a legally assisted person, the court shall, on the application of that person and his solicitor, revoke the legal aid orders relating to the relevant proceedings".
Those words have been put in since last time to cover a point that I believe was made by the noble and learned Lord in regard to the drafting. The amendment goes on:
whereupon the assisted person shall be deemed never to have been an assisted person in those proceedings and solicitor and counsel shall have no right to payment of remuneration from the legal aid fund or by the Lord Chancellor pursuant to section 37 of the Legal Aid Act 1974".
§ I believe that the noble and learned Lord listened with some sympathy to what was said in general terms. I hope that by the amended wording I have got over any technical difficulties that might have existed. I beg to move.
§ The Lord Chancellor
My Lords, not until I have put the Question. The Question is, That Amendment No. 24 be agreed to?
§ Lord Campbell of Alloway
My Lords, before the noble Lord sits down, may I ask a question on a point of clarification? The words,shall … revoke the legal aid orders355 in these circumstances are mandatory. The words,whereupon the assisted person shall be deemed never to have been an assisted personraise the question of what happens to the funds he has paid on account.
§ Lord Renton
My Lords, before the noble Lord attempts to answer that question, I have another query. I very nearly moved an amendment to this amendment; namely, to leave out the wordson the application of that person and his solicitor".That phrase seems to me to create uncertainty. It makes the disposition of public funds depend upon whether an application is made by that person or his solicitor. That seems to be contrary to the general intention expressed by the noble Lord, Lord Mishcon.
§ Lord Mishcon
My Lords, as this is my amendment and I am able to rise on only one more occasion under the Standing Orders, would noble Lords forgive me if I do not take advantage of this moment to speak?
§ The Lord Chancellor
My Lords, I am afraid that I may have "jumped the gun" as regards the questions of my two noble friends to the noble Lord, Lord Mishcon. If so, I apologise to them. I should perhaps not have put the Question at the time I did. I am afraid, however, that I cannot be as benevolent in relation to this amendment as I have been to the previous three or four amendments. The amendment seems to me to be wrong both in principle and in practice. The Bill sets out straightforward arrangements under which a defendant who is legally aided and receives a defendant's costs order looks to the legal aid fund for his legal aid costs and to central funds for any additional expenses he has incurred which are not covered by the legal aid order. This ensures that he and his legal advisers already receive what is due to them.
Provision is also made under the Legal Aid Act 1982 for legal aid contributions to be returned where a defendant is acquitted, and this will apply whether or not the defendant also receives a defendant's costs order. Indeed, in this respect I am told that the noble Lord's amendment does nothing more for the defendant than is done under the Bill. The amendment would indeed, as my noble friend Lord Renton has rightly pointed out, require the defendant to take an additional step in the proceedings so that the court could revoke his legal aid order for him. In any event, the amendment is still, I am told, technically defective in at least one of the respects I touched on in debate in Committee, because contrary to what the noble Lord, Lord Mishcon, believes, and suggested in Committee, the amendment will not cause the contribution to be returned automatically.
More importantly, I cannot accept that it is right in principle to make different and entirely separate funding arrangements for those who have been acquitted. Legal aid is intended for those who have been acquitted as it is for those who are convicted, and just as much for those who are acquitted as for those who are convicted. The arrangements in the Bill are perfectly straightforward and I submit that it would be wrong to change them for the sole purpose of enabling 356 different accounting arrangements, which is what they seem to be, to be followed, according to the result of the case. I would agree that the cost to public funds is not important in this particular amendment; but the accounting arrangements are, and for that reason I cannot accept the amendment.
§ Lord Mishcon
My Lords, I am so glad I took the course I did, because it enables me to say that naturally I shall have to take the advice of the Law Society, which expressed support for this amendment, not only on what the noble and learned Lord has said but on the two contributions which were made, very validly, if I may say so, by the noble Lord, Lord Renton, and the noble Lord, Lord Campbell of Alloway. In the meantime, I think I ought really to ask the leave of the House to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 16 [Prosecution costs]:
Lord Graham of Edmonton moved Amendment No. 25:
Page 16, line 20, leave out ("a local authority or other") and insert ("an").
§ The noble Lord said: My Lords, I beg to move Amendment No. 25, and at the same time I should like to speak to Amendments Nos. 26 and 27, which hang together.
§ Amendment No. 26: Page 16, line 22, leave out ("or of local government").
Amendment No. 27: Page 16, line 30, at end insert—
(" ( ) For the avoidance of doubt the term "public authority" shall not include a local authority.").
In a previous debate on this Bill my noble and learned friend Lord Elwyn-Jones spoke substantially to the matters which are covered in my amendments. I read very carefully indeed, in column 62 of Hansard of 21st January, the words which he used. The genesis of these amendments is from the local authorities, and principally the Association of Metropolitan Authorities. My noble and learned friend said:
The fear that has been expressed to us is that this may very well inhibit local authorities from bringing important prosecutions which only they can bring and which often indeed it is their duty to bring".
I have been provided with a good illustration of that kind of inhibition. I have here the words of a chief trading standards officer. This is what he has said:
I have serious reservations about Part IV—the costs of other public prosecutions which includes local authorities. It will be seen from the document"—
the document referred to is a consultation paper circulated by the Lord Chancellor's Department on the implications of an independent prosecution service for the award of costs in criminal cases—
that payment of costs from central funds to the prosecutor in indictable cases dates back to 1826. The present proposal is to abolish such payments and let the costs of all such prosecutions be borne by the authority concerned and that awards of costs out of central funds should not be available".
The trading standards officer goes on:
I have acted as prosecutor for several London authorities in turn over the past twenty years or so in respect of trading standards matters. A fair proportion of these have been in 'either way' cases where the costs of the prosecution have been borne out of central funds. I can say from direct experience that some of these
prosecutions would never have been taken in the public interest at all if the local authorities concerned had had to pay for the privilege. I have no hesitation at all in saying that implementation of this proposal will deter local authorities from engaging in prosecution against the larger companies or concerns which will automatically elect for trial in the knowledge that the consequent increased costs of the prosecution would be a deterrent factor".
The noble and learned Lord the Lord Chancellor, in responding on that occasion, went some way to expressing sympathy with the point that was made. At col. 63 of Hansard he said:
Ministers are of course concerned to avoid significant additional burdens on local authorities, and it is recognised that the removal of provision of awards from central funds might result in some local authorities bearing a greater proportion of such expenditure than at present".
He went on to say:
However, now I am in my bountiful mood and I am pleased to say that we shall be making a transfer in 1986–87 and in future years to allow account to be taken in local authority current expenditure provision and in setting aggregate Exchequer grant and extra cost to local authorities".
§ That might have been taken as satisfactory and in fulfilment of the points that were made. But I must say to the noble and learned Lord that it does not meet fully the points made on that occasion. Even if it is accepted that the proposed transfer in 1986–87 and beyond would compensate local authorities overall for the loss of awards of costs from central funds, the distributional effects of the present system would mean that any additional grant would not be received by the individual authority incurring considerable costs in prosecuting and would not recompense it for the money so expended. The effect would be exacerbated for individual authorities where additional expenditure takes them over Government targets and penalties are incurred.
§ The Lord Chancellor's Department, I am advised, has conducted a survey of costs paid to local authorities from central funds, and says the proportion is quite small: some 1 per cent., or £500,000. While this may be minimal in national terms, the sums involved can be considerable to a particular local authority contemplating proceedings, and there is the danger that in the course of time the reason for the adjustment will lapse from memory centrally and eventually be eliminated. I believe that there is a point of principle here and that the Government have not got it quite right on this occasion. I consider that the courts should be left to decide, as at present, on the merits of any application by a local authority for costs from central funds. I beg to move.
§ Lord Renton
My Lords, with respect to the noble Lord, Lord Graham, whose motives I greatly respect, in this as in other matters, I really do not see how the Government could accept these amendments. Granted that local authorities will no longer be carrying out prosecutions on behalf of the police; but it nevertheless seems to me that there will be a number of occasions when a local authority cannot carry out all the many statutory duties laid upon it by Parliament, or cannot protect its own interests or its ratepayers' interests, if these amendments are accepted. So much for the substance of the matter.
358 6.30 p.m.
I must now, with respect to the noble Lord, draw attention to his drafting problem. Amendment No. 27 says:For the avoidance of doubt the term 'public authority' shall not include a local authority".That really introduces a legal fiction. It seems to me to introduce an element of doubt which the subsection would not remove. Therefore, from the point of view of drafting as well, I think that the Government might find it very difficult to accept these amendments.
§ Lord Campbell of Alloway
My Lords, for those reasons I also oppose the amendment. It seems curious that the noble Lord should be proposing what is really a form of centralised direction in respect of local authorities and their funding. I thought that the whole ethos of his argument on other occasions—to which we need not refer—was that local authorities should be as autonomous as possible. Therefore, quite apart from the reasons that have already been given by my noble friend, in my view the amendment lies in conflict with the basic approach, the basic principle.
§ Lord Mishcon
My Lords, I must come to the defence of my noble friend. It is not a question of autonomy; it is a question of a local authority having a public duty to conduct certain prosecutions. Noble Lords know perfectly well the nature of those prosecutions—they relate to the protection of public health and matters of that kind. The fear that ratepayers may have to pay money, especially in these times of constraint—indeed, costs are being awarded all over the place against local authorities in respect of the prosecutions that they bring—is obviously a matter of great concern to local authorities. Indeed, that fear could defeat the very autonomy of which the noble Lord has been speaking, because local authorities may be deterred from carrying out their duties and from making decisions which they ought to make, literally because of the consequential expense of so doing. As I understand it, that was the purpose of my noble friend's amendment and, if I may say so with deep respect, it is not answered by the point that the noble Lord, Lord Campbell of Alloway—who always makes very valid points—made on this occasion.
§ Lord Denning
My Lords, I, too, sympathise with the amendment. The local authorities have many duties—whether it be to deal with Sunday trading, or many other matters—as regards which it is within their option whether or not to launch a prosecution. Some of those cases have resulted in points of law which have gone to the House of Lords. Those local authorities may well be deterred from instituting prosecutions which they ought to institute, if they are to bear all the burden of costs themselves without any recourse, as they have apparently had in the past, to central funds. Therefore, I sympathise with the amendment.
§ Lord Airedale
My Lords, with great respect, I sympathise with that view. Let us suppose that there is a test case as regards a supplier of dangerous goods who is supplying them all over the country. He has to be prosecuted somewhere. A local authority is selected 359 and he is prosecuted there. However, the matter is of great interest throughout the country. I should have thought that as regards a case of that nature it would be fair that the costs should be borne by central funds, because the whole nation would be interested in the outcome of the case.
§ The Lord Chancellor
My Lords, I thought that we had discussed this matter adequately in Committee. Perhaps I may remind the House—and particularly the noble and learned Lord, Lord Denning—of the actual background to this matter. The Bill enables any court in indictable cases to order payment out of central funds of costs properly incurred by a private prosecutor. That is part of the policy of the Bill. The power cannot, however, be exercised in favour of public authorities. I agree with my noble friend below the gangway that the definition of "public authority" in Clause 16 (6) (c) includes "local authority"; why should it not? The effect of the amendments would be to delete local authorities from the list of those not entitled to get their costs out of central funds.
No doubt it is true that one of the statutory duties imposed on some local authorities is the enforcement of legislation in certain areas. I have particularly in mind consumer protection and safety. But there does not seem to be any valid reason whatever why this function should be singled out for funding on a case by case basis. Such funding, it has been found, produces variations which do not easily provide for accountable management. It is unwieldy and it is also expensive to administer. Moreover, it seems to me to be right in principle that the costs of public authority prosecutions be borne by the authority bringing the prosecution. The clause aims to achieve a uniform system of funding for public authority prosecutions and I submit that we should not miss the opportunity to rationalise that arrangement.
However, as I told your Lordships in Committee and as the noble Lord, Lord Graham of Edmonton, very fairly stated, Ministers were concerned to avoid significant additional burdens on local authorities and I shall be making a yearly transfer, beginning in the year 1986–87, to allow account to be taken in local authority current expenditure provision and in setting aggregate Exchequer grant and extra cost to local authorities.
I understand that some concern has been expressed that some local authorities would not benefit from the transfer. Of course I accept that it would not be possible to distribute the transfer so as to compensate each local authority for the exact amount they will not be able to recover from central funds. But the amount involved is, I am told, less than £1 million. Considering the huge number of local authorities in the country and the fact that there will be some benefit from the PES transfer, the loss, if any, to individual authorities will be absolutely minuscule. I do not accept that it would be reasonable, in all the circumstances, to set up a special and separate system for local authorities, the cost of which could perfectly well outweigh any possible benefit to the local authorities. I, therefore, resist the amendment.
§ Lord Graham of Edmonton
My Lords, I am grateful to the very learned and noble Lords who have contributed to the debate and who have expressed interest in and some sympathy with the amendment. They have certainly conveyed to me that the matter still requires, both inside and outside the House, some further study of the words of the noble and learned Lord the Lord Chancellor.
I am bound to say that the whole raison d'être of my interest in the matter is that it has been put to me that it is possible that in some instances whether an authority persists in seeking to discharge its statutory duty could depend on whether by so doing a cost element will be borne by the ratepayers. I look immediately at the noble Lord, Lord Renton. In a debate last week we were considering not only the question of to what extent people must be under a statutory obligation, but also the question of to what extent authorities should be enforced to carry out their statutory obligations. I should imagine that in this instance, as the noble and learned Lord, Lord Denning, pointed out, whether or not one proceeds to do what one should do is sometimes in the gift. The option is there whether or not one decides to fulfil one's statutory obligation. Although the noble and learned Lord the Lord Chancellor has pointed out that it is minuscule, his own department tells us that the quantification of "minuscule" it this instance could be £500,000. I understand the difficulty of allocating precisely to the authorities that have borne the expenditure the proportion of the £500,000 that they have had to bear. I certainly understand that that is not easy to do. I shall undertake to study very carefully what the noble and learned Lord the Lord Chancellor has said; I shall consult with those outside who are deeply interested in this matter; and I may return with an amendment in some other form at a later stage. At this stage, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments No. 26 and 27 not moved.]
§ Clause 18 [Prosecution costs]:
The Lord Chancellor moved Amendment No. 28:
Page 17, line 18, leave out from ("1968") to the end of line 22 and insert ("it").
The noble and learned Lord said: My Lords, Amendment No. 28 is a paving amendment to Amendment No. 34, and if I may I shall speak to both amendments at this stage because it is more orderly.
Amendment No. 34: Page 21, line 11, leave out from ("1968") to the end of line 12.
These amendments remove from the Bill the provisions which cut down the House of Lord's existing inherent jurisdiction to make party and party awards of costs. I think that I could have said, but for the fact that this affects your Lordships' House directly, that these are probably purely technical amendments. But in view of the fact that it affects the judicial work of your Lordships' House, I think that I ought to expand a little on that.
§ The second amendment, which is the principal one—No. 34—removes Clause 21(1)(b) and thus enables this House, when working in its judicial 361 capacity to exercise its inherent jurisdiction with regard to the award of costs between parties without restriction. Unlike the lower courts, the House of Lords does not require statutory authority to make a party and party award of costs. This wide discretion is cut down, so far as appeals under Part II of the Criminal Appeals Act 1968 are concerned, by Section 19(2) of the Costs in Criminal Cases Act 1973. This restriction is presently continued by Clause 21(1)(b) of this Bill.
§ It is intended that the House should exercise all the powers in relation to orders for costs between parties in criminal proceedings as can be exercised under the Bill by the magistrates' court and the Supreme Court. As presently drafted, the Bill achieves this aim by a combination of statutory restriction and reliance on the inherent jurisdiction of the House. It would be more appropriate to leave all matters relating to costs between parties to the discretion of this House and the amendments achieve this aim. It is, however, intended that the inherent jurisdiction should be exercised consistently with the provisions of the Bill and the regulations made under it by the Lord Chancellor.
§ The House will, of course, continue to be able to make orders for costs from central funds under the provisions of Clauses 15 and 16. The statutory powers are unaffected by the amendments, which deal solely with party and party awards of costs.
§ The first amendment is paving to the second amendment. Clause 18(2)(b) falls altogether once the restriction on the House's inherent jurisdiction contained in Clause 21(1) (b) is removed. With that explanation, I beg to move Amendment No. 28.
§ Clause 19 [Provision for orders as to costs in other circumstances]:
§ 6.45 p.m.
Lord Mishcon: moved Amendment No. 29:
Page 18, line 9, leave out first ("to") and insert ("in the conduct of).
§ The noble Lord said: My Lords, I can deal with this matter very briefly, for the only reason I bring it before your Lordships is the interchange between the noble and learned Lord the Lord Chancellor and myself on the last occasion when I was privileged to bring this amendment before your Lordships.
If I may, I should like to quote from col. 90 of our proceedings at the Committee stage on 21st January. This is what the noble and learned Lord said:
If I may speak first to Amendment No. 61"—
which is the number relating to this amendment at the Committee stage—
this is an unnecessary amendment and makes no difference to the meaning of the clause as drafted. The only effect of it, so I understand, is that the unnecessary or improper act of omission for which a party is being penalised occurs within the proceedings and not outside them, but that is already the case under the clause as drafted and is not added to by the addition of the words "in the conduct of".
The use of the word "costs" in the context of the clause can only be interpreted as limiting the power to award costs to cases where the improper act or omission occurred in the proceedings. Costs can only be in the proceedings. I think that the fear that the costs provision could be used in such a way as to defeat the right of silence, as it is called, or any other substantive right of the defendant, is not one that will bear examination".
Those are very strong words and they have only one meaning. But then the noble and learned Lord went on to say:
I shall of course take further counsel with the draftsmen to make sure that I am right in what I have said, but that is the advice which I have received and that I believe to be the case".
I most respectfully ask the noble and learned Lord whether he has consulted the draftsmen and whether, as a result, his view is precisely the same as that which he expressed on the last occasion. I beg to move.
§ The Lord Chancellor
My Lords, I am grateful to the noble Lord, Lord Mishcon, for reverting to this matter. As he reminded the House, I agreed in Committee to take further counsel with the draftsmen to ensure that the clause as worded provided that costs could only be awarded where the improper act or omission occurred in the proceedings. I am happy to say that on this occasion I am advised that I was right. I am advised that the provision goes no wider than is necessary for this and that the amendment is therefore unnecessary.
The clause as drafted ensures that the regulations made under it cannot concern matters which fall outside the proceedings. I have already given undertakings in respect of wide consultation about the regulations, and I can assure the House again that I have no intention whatever, even if I was able to, of using the regulations other than in the way I previously indicated.
§ Lord Mishcon
My Lords, in the light of those remarks, for which I am most grateful, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Mishcon moved Amendment No. 30:
Page 18, line 10, insert—
("Provided that the regulations shall not empower any court to make such an order against any person who is acquitted or whose appeal against conviction is allowed.").
The noble Lord said: My Lords, it is for precisely a similar reason that this amendment has again been brought before your Lordships. Once more I can be brief. I wanted to ensure that the regulations could not have the bad result that is set out in this amendment, and again I am looking at col. 91 of our proceedings on the previous occasion in Committee. This is what the noble and learned Lord said:
For these reasons I am anxious to consult the profession and the judiciary over any regulations that I may make".
The noble and learned Lord repeated that intention and we are most grateful for it. He said:
I am sure that these are innocent of any evil intent. If they have by any chance a side effect which may be evil in effect or consequence, I will ask the draftsman to look at it in the light of what the noble Lord, Lord Mishcon, has said".
The sole purpose of tabling this amendment is to ask the same question as I asked on the last occasion—namely, whether the noble and learned Lord, as he kindly said he would, has consulted the draftsman and whether he will confirm that the view he took last time is the correct view. I beg to move.
§ The Lord Chancellor
My Lords, I am again grateful to the noble Lord, Lord Mishcon, for reverting to this 363 subject. I undertook in Committee to consider the wording of this clause to see whether any improvement in the drafting was required. I said, however, that if it were a question of policy, I would stand firm. The words used follow the precedent of Order 62 of the Rules of the Supreme Court, which does not seem to have caused the courts undue difficulty. As I said in Committee, I take the view that "unnecessary" is easier to interpret than "unreasonable". As well as meaning "not needed", "unnecessary" means "avoidable" and "voluntary". The court will be in a position to decide whether a prosecutor or defendant could have avoided the act or omission, or whether it was a "voluntary" act or omission. "Unreasonable", on the other hand, is more difficult to define and would, I suggest, open the door to long argument as to its meaning. The wording has been carefully considered, by the draftsman as well by others in my department, and it is not thought that any improvement can be made.
The amendment was moved in the most friendly of spirits; but if it had not been I would have said that the amendment would strike at the heart of the clause. The fact that a defendant is acquitted does not mean that he has a complete licence throughout to act in an unnecessary, prolix, or time-wasting or money-wasting way so as to put the other party to unnecessary expense which would not otherwise have been incurred. Such behaviour should be penalised whatever the outcome of the case. I have given the House undertakings that there will be wide and full consultation before the regulations are laid, and I therefore invite the noble Lord to feel that I have given the matter adequate consideration.
§ Lord Mishcon
My Lords, once more I am most grateful. I only have to tell the House that I am so amused at the way in which the noble and learned Lord uses his great power of advocacy. He said that if the amendment had not been moved in the friendly way that it was he would have said—and then said it! Therefore the whole advantage of moving an amendment in a friendly way appears to have been lost. I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Campbell of Alloway moved Amendment No. 31:
Page 18, line 43, at end insert—
("( ) The Lord Chancellor shall by regulations make provision empowering the Crown Court in any criminal proceedings to make an order for payment of costs and expenses out of central funds in favour of any person who in the opinion of the court has reasonably incurred such costs and expenses by virtue of any order or direction sought or made against such person under section 4(2) or 11 of the Contempt of Court Act 1981.").
§ The noble Lord said: My Lords, this also is an amendment moved in a friendly spirit. In its original form at Committee stage this amendment contained drafting defects to which my noble and learned friend the Lord Chancellor was good enough to draw specific attention. The clause went too wide, in particular in failing to limit the incidence of the clause to criminal 364 proceedings in the Crown Court. In its present form the hope is that these defects have been cured and that your Lordships will be able to support the amendment.
§ My noble and learned friend the Lord Chancellor said that he would wish to give a little more thought to the matter, and to have an opportunity for further discussion, and would wish to consider whether something more could be done. He expressed the hope that in that irenic spirit the amendment would not be pressed, and so the amendment was withdrawn.
§ May I remind your Lordships briefly that at the Committee stage the spirit of this amendment was acceptable to the noble and learned Lord, Lord Denning, to the noble Lord, Lord Elystan-Morgan, who spoke on behalf of the Opposition Benches, as well as (so it could have appeared) to my noble and learned friend the Lord Chancellor, who took on board, as he always does, the element of injustice, and that something could be done about it perhaps as a matter of principle.
§ The injustice, which I stress before your Lordships again, is where an order is made by the Crown Court to postpone the report of proceedings, or part of proceedings, under Section 4(2) or Section 11 of the Contempt of Court Act where a direction is given prohibiting a report of a name, or any other matter, to be published. The injustice arises because the only challenge which can be made to such restriction if ordered is to the judge who has the conduct of the trial.
§ If on hearing argument he allows that challenge and revokes that order, then he has no power to order costs out of central funds even if he wishes to do so, as was the case reported in the Nottingham Crown Court referred to at Committee stage. There was also the Horsham drugs case referred to by the noble and learned Lord, Lord Denning, where the Court of Appeal quashed the order.
§ This injustice affects not only journalists and representatives of the media but, as cogently pointed out by my noble and learned friend the Lord Chancellor, also third parties who have no connection with the press or the media. These reporting restrictions may be imposed without having heard any representations from journalists, the media, or interested third parties so affected.
§ There is a certain amount of authority on this subject, some of which has been handed down and includes guidance from the noble and learned Lord, Lord Denning, and Lord Justice Watkins. It is not a simple matter—it never has been and never will be—to draw the line between the interests of justice in any particular case and the public interest, the freedom of the press. It is only the rare borderline case which is susceptible to reasonable challenge; and your Lordships may well think that in such a case there ought to be a challenge to maintain open justice and to maintain the freedom of the press.
§ Those who raise a successful challenge must now do so at their own expense, often very substantial, in order to revoke an order of the court which the court should not have made. In this they not only advance their private interests, whether individual or commercial, but also the public interest, the freedom of the press.365
As the noble and learned Lord, Lord Denning, said at Committee stage on 21st January (at col. 96 of Hansard),
If they have to take it up at their own expense, they should … be allowed their costs out of central funds".
As the noble Lord, Lord Elystan-Morgan, said (at col. 97):
there should be the discretion in the court in a proper case where it sees fit to allow costs out of central funds.
Such is the purpose of the amendment.
§ In view of the recent correspondence that I have had with my noble and learned friend the Lord Chancellor, I wish to emphasise to your Lordships that this amendment is not concerned in any way with the problem which arises because there is no appeal from the order and no judicial review. That was canvassed in Amendment No. 50A at Committee stage of the Administration of Justice Bill. It is acknowledged that this is another problem which is a wider problem produced by the drafting of Section 29(3), and that this is a problem which should be tackled head on and not by any piecemeal approach. Therefore, that amendment will not be pursued at the Report stage of the Administration of Justice Bill.
§ This whole question of any substantive appeal or judicial review must be left over for some future Criminal Procedure (Amendment) Act. In the meantime, we are in the situation that the hope is that the noble and learned Lord the Lord Chief Justice may issue practice directions to serve as guidelines as to the hearing of representations and as to the revocation of orders made, and so forth, to ensure a measure of due administration. But today we are concerned (whether there be guidelines, whether there be practice directions, or whether there be not) with the question of costs when such orders are made or revoked; costs and expenses reasonably incurred by virtue of any order or direction made under either of those two sections.
This falls within the intendment of the Bill, as the marginal gloss to Clause 19 itself shows,
Provisions for orders as to costs in other circumstances.
This is one of such circumstances, and I beg to move.
§ Lord Mishcon
My Lords, may I, in the shortest speech that I make to your Lordships today, say from these Benches that we support this amendment? At the same time, I ought to expresss—because I promised that I would do so—the apology of my noble and learned friend Lord Elwyn-Jones for his absence from the rest of the proceedings. He has an important public function to fulfil.
§ 7 p.m.
§ Lord Denning
My Lords, at the Committee stage my noble and learned friend the Lord Chancellor gave us some little hope that something might be done in this situation because this is what happens under the Contempt of Court Act when a case comes on which may be of great public interest but the reporting of which in the newspapers the judge nevertheless thinks may prejudice the fair trial or the trial of another case, because what may come out by way of evidence in a newspaper report may be prejudicial in other circumstances. The judge can then say to the reporters 366 and all the media that they are not to report the case. Equally, the same question arises about the name of an individual, who may be a witness or a party, and whether his name should be made public or whether it should be written down, as the magistrates and judges sometimes allow, and not announced in public or given public notice. The Contempt of Court Act allows the judge to say that that name is not to be given, even if it is obtained from some other source. The judge can order the media not to give a name, and he can also order no reporting.
The people affected by that are the newspaper reporters and the media, because they may be acting in the public interest to give a fair trial full notice. When they are affected by such an order, often made in their absence, they might want to ask the judge to reconsider his decision for one reason or another, and the judge may be persuaded by their arguments—which may be on a point of law, on the construction of a section of an Act—to allow reporting. Are they to bear their own costs? The judge cannot be ordered to pay the costs; but they have been put to great expense in getting an order revoked which perhaps ought not to be have been made in the beginning.
The amendment suggests that in those circumstances we should give the judge power. There cannot now be an appeal: we have previously heard all about that. In those circumstances, cannot the judge order this comparatively small amount of costs to come out of central funds? That is the point of the amendment which my noble and learned friend said that he would consider carefully. I do not know whether he can give any help today. I support the amendment.
§ The Lord Chancellor
My Lords, there is a point here, but it is not the point made by the amendment, which in terms of Gough is only an attempt to take an air shot. The law is, as decided by a case called Crook, that the people named in this amendment have no right to appear before the court at all. Noble Lords may like that or they may not like it, but that is what the Divisional Court has held.
What my noble friend Lord Campbell of Alloway is trying to do in this amendment, and what the noble and learned Lord, Lord Denning, is supporting, is to say that I ought to make regulations to pay the costs of somebody who cannot be there.The other day upon the stair I met a man who wasn't there. I saw the chap again today. I wish the fellow would go away".This amendment is totally misconceived, but there is a serious point behind it. That is not the question of costs because, of course, I cannot order costs to be paid to somebody who cannot be there. The point is whether they ought to be allowed to be there. In other words, the real point is one of locus standi and not a question of costs. I tried to explain that to my noble and learned friend, but apparently I have not got the situation home to him.
I hope I will persuade my noble and learned friend that I am just as sympathetic as I was in Committee. Representations on the issue of locus standi, which is the point, have been received from the Press Council and, I know, for others. The possibility of change is 367 under consideration; that is to say, and possibility of change as regards locus standi. Obviously I cannot say this evening what the outcome of that consideration will be, but once the question of locus standi is decided I shall have to consider again the question of costs.
I must tell the House that that costs will not necessarily follow the event. At least the big corporations or associations will be paying their costs out of untaxed income, no doubt for the purpose of their own businesses. But I can say to my noble friend, as I said in Committee, that there is a serious point here, not only affecting the Contempt of Court Act as regards the reporting of cases. I refer, without mentioning names, to a case which will be prominent in the minds of many noble Lords, where a third party wanted the restriction removed because everybody knew who he was. He was seriously damaged both in pocket and in reputation by his inability to defend himself. This is a real point, but it is a point of locus standi, not a question of costs. If the point about locus standi can be solved, then I will look at the question of costs again. I hope I have been reasonable.
§ Lord Denning
My Lords, with leave of the House, may I say that I had not heard of this point about locus standi before. It was not raised on the last occasion. but there is a complete answer to it in law. Here, an order has been made by a judge which affects the newspaper reporter in that court and affects other people and reporters. When a person is affected by an order of a judge, surely he has a locus standi to come before that judge and ask for it to be altered? I should have held, without any authority—and I have tried this question of locus standi in many cases—that anyone aggrieved by an order of a judge or court has a locus standi to ask for it to be removed. I do not want any further consideration on that; but I was hoping that in those circumstances my noble and learned friend the Lord Chancellor could once more do what he can to help.
§ Lord Campbell of Alloway
My Lords, briefly, there are two points here, and I am grateful to my noble and learned friend for the great care he has taken to deal with them. I respectfully seek to answer them. The first point is that there is no question here of costs following the event. It is wholly discretionary. The second point concerns locus standi. I shall be very brief. These people have, with respect, a right to appear. If they were denied that right they could go, as a matter of natural justice, to the Divisional Court to ask for an order that they be heard. This has not yet been decided, but it will not be too far away.
Secondly, they do appear. They are not people one meets on the stairs but who are not there. They appear in fact. They challenge the orders. They do, in fact, have them revoked. If orders are made against somebody, it is not a question of an ectoplasmic presence: they are made against that person.
Therefore, with respect, I do not understand the argument based upon locus standi. But I quite agree that behind all this there are the problems of due administration; of practice directions, perhaps, from the noble and learned Lord, Lord Lane, Lord Chief Justice. There are also problems in considering 368 amendments to Section 29(3), to which my noble and learned friend the Lord Chancellor referred in the wider context. Having heard what has been said, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 20 [Regulations]:
Lord Morris moved Amendment No. 32:
Page 19, line 14, leave out from ("Part") to ("into") in line 16.
§ The noble Lord said: My Lords, this is nothing other than a drafting amendment which is consequential upon the removal at an earlier stage of the original Clause 22 of the Bill. If this amendment were not to go through, the Bill as it stands at the moment would be defective. I beg to move.
§ The Lord Chancellor
My Lords, with this amendment, I think, goes Amendment No. 37. I thought it was in the name of the noble and learned Lord, Lord Elwyn-Jones.
§ Lord Mishcon
My Lords, by arrangement with the noble Lord, Lord Morris, he had his say and I am grateful to him for it. I endorse what he says and I speak also to Amendment No. 37.Amendment No. 37: Line 4, leave out ("for the reference to the Court of Appeal of certain Crown Court sentences and").If it is necessary to have a tidying-up operation, I am perfectly prepared—as, I am sure, would be the noble Lord, Lord Morris, also—to leave this until Third Reading in order to do so, unless the noble and learned Lord feels that it is appropriate to agree the two amendments.
§ The Lord Chancellor
My Lords, what I think is right is that, in view of the decision of the Committee to remove the original Clause 22 from the Bill, I cannot resist these amendments; but I do so without prejudice to what my right honourable and learned friend may do in another place because I reiterate my opinion that this House did a real disservice to the administration of justice, to consistency in sentencing, and to the protection of the innocent and vulnerable people of this country, and I think it has public opinion against it. But I do not resist the amendments.
§ Lord Mishcon
My Lords, if I may speak twice, the noble and learned Lord speaks "without prejudice". I have never heard such a prejudicial remark.
§ Lord Simon of Glaisdale
My Lords, I would only point out, in view of what my noble and learned friend who sits on the Woolsack has said, that the ci-devant Clause 22 was removed by a majority of, I think, 42. Of the minority, 20 were Ministers and one was a Social Democrat noble Lord who went into the wrong Lobby.
§ The Lord Chancellor
My Lords, what I said, if I may by leave of the House repeat it, is that I spoke without prejudice to what my right honourable and learned friend might do in another place. I did not say that I am not filled with indignation at what happened on Committee, because I am.
§ [Amendment N0.33 not moved.]369
§ Lord Elton moved Amendment No. 34:
§ [Printed earlier: col. 360.]
§ The noble Lord said: My Lords, my noble and learned friend spoke most convincingly to this with Amendment No. 28. I beg to move.
§ Clause 22 [Power of Secretary of State to set time limits in relation to preliminary stages of criminal proceedings]:
§ Lord Elton moved Amendment No. 35:
Page 23, line 20, at end insert—
("(6A) Where a magistrates' court decides to extend, or further extend, a custody or overall time limit, the accused may appeal against the decision to the Crown Court.
(6B) Where a magistrates' court refuses to extend, or further extend, a custody or overall time limit the prosecution may appeal against the refusal to the Crown Court.
(6C) An appeal under subsection (6B) above may not be commenced after the expiry of the limit in question; but where such an appeal is commenced before the expiry of the limit the limit shall be deemed not to have expired before the determination or abandonment of the appeal.").
§ The noble Lord said: My Lords, the purpose of this amendment, which I mentioned was under consideration during the Committee stage, is to enable an appeal to be brought by either the accused or the prosecution respectively against a decision of a magistrates' court to extend or not to extend a time limit. An appeal would lie to the Crown Court. Having reconsidered the clause we feel that the decision whether or not to extend a time limit is one in which it would not be appropriate to leave a magistrates' court with the final say. A decision to extend will leave the accused at risk of or in custody in the case of a custody limit, or in jeopardy of proceedings in the case of an overall limit. A decision not to extend a custody limit will free an accused to whom the courts have not seen fit to grant bail, and a decision not to extend an overall limit will terminate the proceedings against him. We feel that decisions of such consequence ought to be capable of being reconsidered by a higher court.
§ In this we are again following the Scottish precedent, to which noble Lords opposite drew the attention of the House during the Committee stage. The relevant Scottish provision allows appeals to the High Court, but we think that it would fit more naturally with the court structure in England and Wales to provide for appeals to be determined by the Crown Court.
§ 7.15 p.m.
§ There are several aspects of the provision which I ought to draw to your Lordships' attention. The first concerns what would happen while an appeal was pending. In the case of an overall time limit, which, as your Lordships will recall, is the one which applies to the specified stages before trial whether or not the accused is in custody, the possibility of the case eventually coming to trial would have to be kept alive in the event that the prosecution won its appeal. That is why the amendment provides that the time limit should be deemed not to have expired until the appeal has been determined or abandoned.
§ In the case of a custody time limit, the Government's view is that it would be right for the 370 magistrates to retain discretion whether to bail the accused or continue to remand him in custody until the appeal had been heard. Again, this can conveniently be done by providing that the limit should be deemed not to have expired while the appeal is pending. We gave this question of whether the accused could be kept in custody pending a prosecution appeal a great deal of thought, but decided on balance that it would provide a measure of reassurance for the public if the possibility of a remand in custody was kept open until the appeal had been heard. Your Lordships will recognise that this places a burden on the prosecutor to appeal only when there are good grounds for doing so and on the Crown Court to arrange for such appeals to be heard as quickly as possible.
§ The second aspect to which I should draw your Lordships' attention concerns the period within which notification of an appeal may be given. The accused would be able to appeal at any time, subject to the requirements of the Crown Court Rules. These currently provide that an appeal must be brought within 21 days of the decision or such longer period as the court may allow. The prosecution would additionally be required by the terms of the amendment to bring any appeal before the expiry of the custody or overall time limit which the magistrates' court had refused to extend, or extend further. This tighter requirement on the prosecution seems to us a necessary and important safeguard for the accused, since otherwise he could be kept in custody beyond the custody time limit simply because it was theoretically open to the prosecution to appeal.
§ Finally, I must tell your Lordships that it will be necessary to make some provision on the face of the statute covering the availability of legal aid for appeals. We shall do this at a later stage. We believe that the inclusion of an appeals provision is a useful addition to the time limits procedure. I commend the amendment to the House.
Lord Elton moved Amendment No. 36:
After Clause 22, insert the following new clause:
§ ("Discontinuance of proceedings in magistrates' courts
§ .—(1) Where the Director of Public Prosecutions has the conduct of proceedings for an offence, this section applies in relation to the preliminary stages of those proceedings.
§ (2) In this section, "preliminary stage" in relation to proceedings for an offence does not include—
- (a) in the case of a summary offence, any stage of the proceedings after the court has begun to hear evidence for the prosecution at the trial;
- (b) in the case of an indictable offence, any stage of the proceedings after—
- (i) the accused has been committed for trial; or
- (ii) the court has begun to hear evidence for the prosecution at a summary trial of the offence.
§ (3) Where, at any time during the preliminary stages of the proceedings, the Director gives notice under this section to the clerk of the court that he does not want the proceedings to continue, they shall be discontinued unless the accused has given notice under subsection (6) below that he wants them to continue.
§ (4) The Director shall, in any notice given under subsection (3) above, give reasons for not wanting the proceedings to continue.
§ (5) On giving any notice under subsection (3) above the Director shall inform the accused of the notice and of the accused's right to require the proceedings to be continued; but the Director shall not be obliged to give the accused any indication of his reasons for not wanting the proceedings to continue.371
§ (6) Where the Director has given notice under subsection (3) above, the accused shall, if he wants the proceedings to continue, give notice to that effect to the clerk of the court.
§ (7) Where the clerk of the court has been so notified by the accused he shall inform the Director.
§ (8) The discontinuance of any proceedings by virtue of this section shall not prevent the institution of fresh proceedings in respect of the same offence.")
§ The noble Lord said: My Lords, I undertook during our debate in Committee on the new clause proposed by the noble and learned Lords opposite to bring forward an amendment to empower the new service to drop charges without being required to seek leave of the magistrates' court. That is the purpose of this amendment. I made clear during that debate that the Government accepted the strong arguments of principle and practice in favour of such a change. If I may briefly remind your Lordships, the principal among these were the need for the new service to be effective in weeding out unsound cases, and the desirability of avoiding unnecessary expense and worry by the defendant. But I also said that in making the change we should need to take steps to safeguard the position of the defendant. Our debate in Committee was very useful in bringing into focus the matters this amendment has to deal with and I am grateful to the noble Lords for their initiative in bringing the issue forward and for their contribution to the debate. This amendment in no small part is a product of that effort.
§ Under the new clause, the Crown prosecution service may, subject to certain safeguards, decide to discontinue proceedings without being required to seek the leave of the magistrates' court which is seized of the case. In a case which is to be tried on indictment, the new service may discontinue proceedings under the provisions of the clause but only up to the point at which the case is committed for trial at the Crown Court. Once the case is within the purview of the Crown Court, of course, the question of discontinuance is a matter for prosecuting counsel and the trial judge. We do not, as I explained in Committee, think it necessary or appropriate to make any immediate change in respect of that relationship, which is at the moment being examined by a working party of the Bar.
§ In a case to be tried summarily, the new clause allows the prosecutor to discontinue proceedings up until the point at which the trial begins; that is to say, once the court begins to hear the evidence for the prosecution. Once this point has been reached, it seems appropriate that the leave of the court should be required to a decision to withdraw proceedings, in the same way as at present.
§ Even before this point, however, the decision of the prosecutor is not final or secret. It is not secret because the notice which the Director—and hence the service—must give to the clerk of the court under subsection (3) must, under the terms of subsection (4), contain the reasons for the decision. The defendant must, of course, be informed that the notice has been issued, but it is not proposed that he will be given the reasons. This picks up a point made in Committee by the noble Lord, Lord Mishcon, which is indeed one of the grounds for making this change.372
§ We agree with the noble Lord that there will be cases where it would be undesirable for reasons to be given in open court. In a very succinct and constructive speech he gave the example of a case being dropped on compassionate grounds, because the defendant is suffering from a terminal illness, from the knowledge of which his family are shielding him; or, to look at a somewhat different case, a prosecution witness may be thought so unreliable as fatally to weaken the evidence. In such a case also it is clearly desirable that the reasons for withdrawal should be given to the court only in writing and not to the defendant, thus securing that the court can be satisfied as to the propriety of the withdrawal, while maintaining an appropriate degree of confidentiality.
§ So, as I said a moment ago, the decision of the prosecutor is not secret nor is it final, because the notice of withdrawal can be nullified if the defendant issues a counter-notice, because he wants to insist on the matter being brought to court and cleared up. The majority of the Royal Commission, when recommending a provision such as this, thought it important—as do we—that the defendant should be able to proceed to trial and thus be able publicly to clear his name. The provision in subsection (6) for issue of a counter-notice gives effect to this recommendation.
§ It is also right that the defendant should be able to apply for costs. I should therefore explain why the new clause is silent about costs. It is simply because the clause bites only on those cases of which the court is already seized—that is, cases in which the information has been laid before the court—and Clauses 15 and 17 of the Bill already provide for the defendant to seek an award of costs once the information has been laid, even if the case is not proceeded with. The clause does nothing to curtail that provision.
§ I have other notes about the clause, but I think that your Lordships are anxious to get on. I am quite happy to reply, as I have a right to do, to the debate if other Lords wish me to speak further. Otherwise, I am content to move. My Lords. I beg to move.
§ Lord Airedale
My Lords, may I just ask this question? If the defendant wants the case to go on in order to clear his name, does the case really go on and does the prosecution call the doubtful witness about whom it is uncertain, or does the prosecution simply offer no further evidence?
§ Lord Renton
My Lords, this new clause, taken by itself, appears to be acceptable. But when we compare it with Clause 22 which it follows, we find ourselves in the strange position of double definition of the same phrase. The two definitions are not identical and they are both negative definitions.
Perhaps I may just explain. Clause 22 starts off by stating:The Secretary of State may by regulations make provision, with respect to any specified preliminary stage of proceedings for an offence".Then in subsection (8) of that clause we find that a "preliminary stage" is defined:in relation to any proceedings, does not include any stage of the proceedings after the accused has been arraigned in the Crown Court, or in the case of a summary trial, the magistrates' courts has begun to hear evidence for the prosecution at the trial.373 But in turning to my noble friend's new clause, we find in subsection (2) that "preliminary stage" is defined again, so soon and slightly differently—
§ Lord Simon of Glaisdale
My Lords, has the noble Lord not left out the important words "In this section"?
§ Lord Renton
My Lords, I have not omitted those words from my mind. I can assure the noble and learned Lord. But I find it very strange that we have a definition of "preliminary stage" in Clause 22 and then another definition in Clause 23. They overlap with each other and seem to have only very slightly different purposes. I should have thought there was a strong case for looking at both of these clauses again and for trying to dovetail and collate the two. It would be better drafting.
§ Lord Mishcon
My Lords, I wonder whether I may briefly express the appreciation of these Benches for the gracious way in which the noble Lord described our activities on the last occasion in regard to this amendment and for the action he has taken. In similar courtesy, perhaps I may tell him that we find this amendment acceptable, but I want to tell him also that between now and Third Reading we shall be considering the question of whether or not the leave of the court should have to be obtained before fresh proceedings are started after a discontinuance. Having given notice of that, we are certainly not going to oppose the amendment tonight.
§ Lord Elton
My Lords, perhaps I may start by thanking the noble Lord, Lord Mishcon, for his recognition of our attempts to satisfy him and, of course, I am happy to give him time to consider whether we have succeeded in doing that. I would say to the noble Lord, Lord Airedale, that in the case to which he has drawn our attention it would be for the accused to ask the magistrates to dismiss the case and the magistrates would agree to its being dismissed. That is how I understand it would be handled.
To my noble friend Lord Renton I have to say that I think I need slightly more notice of his point than I have had. I see that there is perhaps an oddity in having definitions of the same term in successive clauses, differently stated. I am not absolutely certain that there is, in fact, a discontinuity, but at the same time I see that, on the face of it, it might be—if I were to say that it would be, I would be making a commitment which I could not make—better to have a common definition which might fall outside both clauses; I do not know. But I am grateful to him for applying, as he invariably does, his meticulous eye to the detail of the drafting. As the only Member of your Lordships' House who I think I can recall using a keeling schedule when in opposition simply on the advice that he gave as chairman of a very distinguished committee, I hope that I stand in good grace with him, and we will do what is necessary.
§ In the Title:
§ Lord Mishcon moved Amendment No. 37:
§ [Printed earlier: col. 368.]