HL Deb 28 February 1985 vol 460 cc1017-39

3.22 p.m.

Read a third time.

Clause 1 [The Crown Prosecution Service]:

The Minister of State, Home Office (Lord Elton) moved Amendment No. 1: Page 2, line 1, after ("the") insert ("Chief").

The noble Lord said: My Lords, in moving Amendment No. 1, I beg leave to speak also to a rather large but simple group of amendments numbering 3 to 19 inclusive, 23, 33, 34 and 35.

Amendment No. 3: Page 2, line 12, leave out ("as a prosecuting officer") and insert ("for the purposes of this subsection, and any person so designated shall be known as a Crown Prosecutor").

Amendment No. 4: Page 2, line 14, leave out ("prosecuting officer") and insert ("Crown Prosecutor").

Amendment No. 5: Page 2, line 15, leave out ("section") and insert ("subsection").

Amendment No. 6: Page 2, line 16, after ("a") insert ("Chief").

Amendment No. 7: Page 2, line 22, leave out ("prosecuting officer") and insert ("Crown Prosecutor"

Amendment No. 8: Page 2, line 32, leave out ("prosecuting officer") and insert ("Crown Prosecutor").

Amendment No. 9: Page 4, line 23, leave out ("Prosecuting officers") and insert ("Crown Prosecutors").

Amendment No. 10: Page 4, line 33, leave out ("prosecuting officers") and insert ("Crown Prosecutors").

Amendment No. 11: Page 4, line 35, leave out ("prosecuting officers") and insert ("Crown Prosecutors").

Amendment No. 12: Page 4, line 44, leave out ("prosecuting officers") and insert ("Crown Prosecutors").

Amendment No. 13: Page 5, line 6, leave out ("prosecuting officers") and insert ("Crown Prosecutors").

Amendment No. 14: Page 5, line 13, leave out ("prosecuting officer") and insert ("Crown Prosecutor").

Amendment No. 15: Clause 5, page 5, line 15, leave out ("prosecuting officer") and insert ("Crown Prosecutor").

Amendment No. 16: Page 5, line 22, leave out ("prosecuting officer") and insert ("Crown Prosecutor").

Amendment No. 17: Page 5, line 24, leave out ("prosecuting officer") and insert ("Crown Prosecutor").

Amendment No. 18: Clause 7, page 5, line 33, leave out ("prosecuting officer") and insert ("Crown Prosecutor").

Amendment No. 19: Page 6, line 4, leave out ("prosecuting officer") and insert ("Crown Prosecutor").

Amendment No. 23: Clause 14, page 12, leave out lines 11 to 13.

Amendment No. 33: Clause 26, page 27, line 12, leave out ("prosecuting officer") and insert ("Crown Prosecutor").

Amendment No. 34: Page 27, line 18, leave out ("prosecuting officer") and insert ("Crown Prosecutor")

Amendment No. 35: Schedule 1, page 29, leave out lines 7 to 11.

The noble and learned Lord, Lord Elwyn-Jones, gave us the opportunity to consider at Report stage whether we had chosen the right names for the officers of the new service. I said then that I was not entirely convinced that his alternative, the "Crown advocate", was altogether appropriate since advocacy was not the sole function of the people concerned, but that we were not irrevocably wedded to the term "prosecuting officer" provided we could be sure that any alternative title was a better one.

We have now had an opportunity to reflect, and it seems to us that the function and status we are looking at can both be aptly described in the term "Crown Prosecutor". As that title had already been earmarked for the chief prosecutor in a district, it follows that using it to describe what we now call his subordinates means giving hid a new title as well. Again the simple solution is to change his title to "Chief Crown Prosecutor". We believe that that title adequately reflects the role and status of the senior officer responsible to the Director of Public Prosecutions for the operation of the service in an area.

The status of this officer has properly been the concern of a number of your Lordships, and I think they will welcome, as I do, the fact that the new title corresponds directly with that of Chief Constable. We know that these new titles have been received favourably by the Prosecuting Solicitors' Society, and I hope they will be received equally favourably by your Lordships.

I ought to add that Amendments 23 and 35 to the definitions in Clause 14 and Schedule 1 are consequential. Your Lordships will see that their effect is to remove the definition of the term "prosecuting officer" in both places, and that they do not substitute definitions of the term "Crown Prosecutor". The reason is that the term "prosecuting officer" was merely descriptive and that its meaning had therefore to be fixed by definition in the Statute. The term "Crown Prosecutor" on the other hand is a title and is fixed by the terms of Amendment No. 3: any person so designated shall be known as a Crown Prosecutor". These are all presentational changes but they reflect the importance we attach to the new service and to the morale of staff coming into it, and they may also affect the way in which the service is perceived in a fashion which I hope your Lordships will find beneficial. I beg to move.

Lord Mishcon

My Lords, in all parts of your Lordships' House there has been concern about the status of the prosecuting service and those in charge of it. We from these Benches have been endeavouring to play our part in securing that status. Nomenclature is sometimes important, as those of your Lordships who have been in the Army will probably remember. In those circumstances, obviously, we welcome the Government's decision to alter the nomeclature and to do it in the way they have done, and therefore we support these amendments.

On Question, amendment agreed to.

Lord Prys-Davies moved Amendment No. 2: Page 2, line 10, at end insert ("and in respect of any such appointments made for the discharge of his functions in Wales, the Director, for each specified area in Wales, shall appoint where practicable a sufficient number of staff who are able to conduct the business of the service in the Welsh language.").

The noble Lord said: My Lords, I beg to move Amendment No. 2. In Committee we had no information about the number of cases which were being heard entirely in the Welsh language. Indeed some doubts were expressed as to whether any trial had been held in the Welsh language. Since then I have been doing my homework and I can tell the House that in the year 1981—and the year 1981 is not untypical at all—332 magistrates' court cases were heard entirely in Welsh; another 187 were heard mainly in Welsh; while 396 cases were heard partly in Welsh.

In Gwynedd—and that is probably the most intensely Welsh speaking area of Wales—the clerk to the magistrates' court in Pwllheli could say: The court at Pwllheli is fortunate in that all the solicitors practising in the court are Welsh speaking, and also the senior police officers. From his key position as clerk to the magistrates he went on to say most strongly: I find that by using the Welsh language in a purely Welsh area the parties and the witnesses are able to express themselves in a more coherent manner and much time is saved. This indeed was the situation which I believe was envisaged by the noble and learned Lord, Lord Edmund-Davies, when he recommended to the Lord Chancellor the provisions which ought to be implemented in Wales in order to give full effect to the Welsh Language Act 1967.

The object of this amendment is to safeguard the position as described by the clerk of the Pwllheli magistrates' court. We believe that it goes a long way to meet the existing need in those districts of Wales where Welsh is habitually spoken by the majority of the people. There are quite a number of such districts. In nine out of the 37 district councils in Wales, according to the 1981 census, Welsh is spoken by the majority of the population, and in another three it is spoken by between 40 per cent. and 50 per cent. of the population.

Unless the Bill incorporates an amendment along these lines, it does not, in the view of many people in Wales, wholly come to terms with the administration of justice in the Welsh speaking districts of Wales. Of course nobody expects every prosecutor in Wales to be able to conduct proceedings in the Welsh language, but a Director and a Crown Prosecutor ought to be under a statutory duty—not merely an undertaking of the Minister, although we value his undertakings very much—to appoint where practicable"— and these are new words which were not before the Committee— a sufficient number of staff"— again new words— who are able to conduct the business of the service in the Welsh language.".

The concept of practicability was used in the Administration of Justice (Miscellaneous Provisions) Act 1938 in connection with the appointment of the chairman or deputy chairman of the Quarter Sessions. That concept worked very well indeed in practice. Therefore, that is the precedent in the amendment. What is practicable in the circumstances must obviously depend on a consideration of many factors within the limit of what is reasonable. The amendment would place a duty on the Crown Prosecutor to appoint a sufficient number of Welsh-speaking prosecutors. Provided that he has taken all practicable steps to provide such prosecutors, then he will have discharged his function under the Act. That is the amendment which we move. I think it meets many of the points raised by the Minister at the Committee Stage. I beg to move.

3.30 p.m.

Lord Edmund-Davies

My Lords, I beg to support the amendment. It is in my personal experience highly desirable that there should be a provision of this measured nature introduced into the statute. I fully understand and am grateful for the approach of the noble Lord, Lord Elton, on a previous occasion in relation to this matter. So far from any hostility being evinced or reluctance, there was a sympathetic reception of the notion.

While compiling the report, which I had the privilege of rendering as a result of a one-man inquiry at the request of the noble and learned Lord the Lord Chancellor some years ago, I learned the vital necessity of seeing that all links were forged, that any break in the link could bring about the result that people out of desire, and sometimes out of necessity, required that their trial be conducted in Welsh, and that there should be available the staff necessary to give recognition to that desire and right under the 1967 Act.

Accordingly, there is proper moderation introduced into the amendment by a reference to the practicability of the situation. Nevertheless, it is desirable that that measured amendment should find its reflection in the statute, otherwise lassitude can, and does, creep in and there can be a reluctance on the part of those who are not always sympathetic to the use of the Welsh language in the courts. I venture to submit that it is highly desirable that there should be evinced in the statute, in the measured way that is suggested, recognition of the high desirability of, wherever practicable, having available Welsh-speaking prosecutors. I beg to support the amendment.

Lord Renton

My Lords, I must confess that I have no Welsh blood in me so far as I know and I am not a member of the Welsh Circuit. But as a member of the English Bar I used frequently in the 1930s to appear in Wales—mostly in Traffic Commissioners' courts for the Great Western Railway, of blessed memory! There was one occasion when I was the only person in court who could not speak Welsh. A. T. James, who some noble and learned Lords may remember, was kind enough to translate the whole of the proceedings into English for my benefit. Therefore, if this amendment were to be effective—and bearing in mind what a wonderful way the Welsh have of living in both worlds—it should, where practicable and where necessary, refer to, conduct business of the service in the Welsh or English languages". There could again be similar circumstances.

I was speaking of 50 years ago. We have heard two eloquent speeches from noble Lords with a real Welsh background pointing out the need for translation, presumably into the Welsh language. There is no doubt about it that 50 years ago many Welsh people did not speak a word of English or understand English. I came across them in North Wales perhaps much more than in South Wales; I went to North Wales, too. I would say that today pretty well every Welsh-speaking person in Wales under the age of 65 is bilingual. They may have a greater facility in Welsh than in English, but they have learned to live in the country of which we are all proud to be citizens. To say that these people are incapable of getting along in courts in which the official language is English is rather pessimistic.

I have another point to raise about this amendment. It is that the Director is required where practicable to appoint, a sufficient number of staff … able to conduct the business of the service in the Welsh language". But who is to be the judge of whether or not it is practicable? If it is found that it ought to have been done and has not been done, how is this provision to be enforced? I wonder whether the noble Lords who have tabled this amendment have thought that question through. I should be interested to know what the answer to it may be.

Lord Donaldson of Kingsbridge

My Lords, I am a strict non-Welshman, and without consulting the colleagues on these Benches among whom Wales is well-distributed, I have not the slightest hesitation in supporting the amendment. It seems clear that the problem that the noble Lord, Lord Renton, has raised can easily be solved. The person who decides whether it is practicable or not to do anything at the time is the person who is told to do it. In this case that is the Director. I see no problem there. It is entirely desirable that we should do anything we can at any time to support the reality of this language, of which I do not understand a word but which I know to be a wonderful one from so many friends who do. I do not think I would be saying too much on behalf of my colleagues when I way that we support this amendment fully.

Lord Campbell of Alloway

My Lords, I support the spirit of this amendment. I totally agree that language is crucial and it is just no use saying that people can express themselves as well in English as in Welsh or other languages if that is not so. But I suggest that this could have been met by some form of undertaking without drafting it into the form of a statute. In a sense that is a steam roller to crack a walnut. I should have thought that an appropriate undertaking by the Government that they would ensure that the spirit of this amendment was faithfully carried out would have been sufficient in all the circumstances.

Lord Leatherland

My Lords, there seems to me to be a fair amount of common sense and fairness in this amendment, but one aspect puzzles me. The laws themselves are not printed in Welsh and therefore if the laws are not printed in Welsh, the whole exercise seems to become impracticable.

Lord Elton

My Lords, the noble Lord's amendment makes what is at first sight a reasonable requirement in what are at first sight reasonable terms. All that the noble Lord wants is to ensure that there are enough Welsh-speaking staff to conduct the business of the service in Welsh. He does not, I am sure, mean that the business of the service shall be conducted only in Welsh, which could be inferred from the drafting of the amendment. But the noble Lord knows as well as any of us that the majority of Welsh men and women, even, do not have Welsh as their second language. Much of the business of the service therefore of necessity will have to be conducted in English, even in Wales. Nonetheless, the noble Lord and his supporters are anxious that, where it is appropriate for the Welsh language to be used, the service shall be able to use it.

With only one reservation, I am entirely in agreement with that objective, as is my noble friend, Lord Campbell of Alloway. My reservation is one which I am sure, on reflection, noble Lords opposite will share. It is simply this: that the principle of appointing Welsh speakers to the service shall operate only to the benefit and not to the detriment of the Welsh people as a whole. By that I mean that, when it comes to the appointment of staff, the ability to speak Welsh shall be seen as an important consideration but not as the overriding consideration. We must have a thoroughly efficient and competent staff, and I am sure that noble Lords opposite would not for a moment therefore wish us to appoint people who are efficient or competent simply because they are fluent in the musical tongue of their fathers.

I presume that it was with some such reservation as that in mind that the noble Lords tabled their amendment, and I am therefore happy to repeat the assurance that I gave on Report (when a different amendment on this general subject was tabled) that the ability to speak Welsh competently will be one of the characteristics considered and given importance in the recruitment of members to take up posts in the new service in Wales. I am also happy to repeat the assurance that I gave then that the Government stand by Sections 1 and 2 of the Welsh Language Act 1967, which ensure that any party to proceedings who wishes to speak Welsh in the course of them can do so; and, as the noble Lord himself has eloquently shown already, this does happen, at least, at Pwllelli.

As far as proceedings in court are concerned, I share the views of Theophilus Evans, which I shall attempt to reproduce by saying: "Lle nid oes dim hawl dda, y mae yno yn wastad ofn.". Some of your Lordships will already know that that means that where there is not a good trial there is always fear. The word "hawl" can be taken to mean "prosecution" as well as "trial", and I think that the quotation is aptly chosen to describe my position and that of noble Lords opposite.

But the amendment is not concerned only with the conduct of proceedings in court; it talks of the conduct of the business of the service. In the normal course of events, the service will stand at one remove from defendants or witnesses in a case, since it will be for the police, as it is now, to interview them and to take their statements. Having said that, however, I recognise that there may well be occasions—and I think that there will be occasions—in the course of the business of the service outside its court work when Welsh is used; and that will include correspondence. Where practicable, staff should be appointed who are able to meet that requirement, as the amendment says, and we are more than prepared to extend the assurances already given to cover that point, as well.

I think, with my noble friends and, indeed, with the noble and learned Lord, Lord Denning, when he spoke on a similar amendment at Committee stage, that it is more appropriate for this to be done by undertaking than by legislation; and if we were to proceed by legislation I would follow my noble friend Lord Renton into analysing the effects of the word "practicable" and also of the word "sufficient" in the context in which they are used. My fear is that the amendment is in fact ineffective, but that if it is effective it could, if wrongly interpreted, act to the disadvantage of the Welshmen whose cause has been so eloquently pleaded by their fellow countrymen in this Chamber.

3.45 p.m.

Lord Cledwyn of Penrhos

My Lords, I rise with a sense of inadequacy in place of my noble and learned friend Lord Elwyn-Jones, who sends apologies to the House for his absence. He has a very good excuse; he is sitting judicially. I am deeply disappointed by the response of the noble Lord, despite the fact that he quoted Theophilus Evans. If Theophilus Evans were here in your Lordships' House, he would make a far more effective speech than I can make in reply to the noble Lord, because, as the noble Lord probably knows, Theophilus Evans was one of the greatest advocates of the Welsh language in Welsh history.

We are extremely concerned about the substance of this amendment, for several reasons. I should like to refer in passing to the point made by the noble Lord, Lord Renton, who has been a colleague of mine for many years. We have argued before in Committee in another place. But I am bound to say—and I know him to be a fair man—that I was disappointed by what he said. The fact is that this is a very reasonable amendment. What he must realise is that although most Welsh-speaking people understand English, they are bilingual; and it is greatly to their credit that they are. Although they understand English, and can speak it often much better than many an Englishman, nevertheless they prefer, especially in moments of stress, to express themselves in their own language. Furthermore, I am surprised that anyone should suggest that a Welshman has not the right in his own country to speak his own language. Surely, in this day and age entitlement to that right must be the civilised attitude to adopt.

Lord Renton

My Lords, I am grateful to the noble Lord for giving way. I think that I must have expressed myself extremely badly. I was not denying the right of Welshmen to speak their own language in their own country; of course they should do so if they wish. The point that I was making is that because the education in Wales has now for so long been, in effect, bilingual, nearly all Welsh people understand English very well these days.

Lord Cledwyn of Penrhos

My Lords, that is to their credit, of course. But if we are to go into this matter in any detail, may I say this to the noble Lord? When I was at school, when my noble friend was at school, and when my noble and learned friend Lord Elwyn-Jones was at school in Carmarthenshire, at that stage there was very little Welsh taught in the schools. Today Welsh is taught in the schools far more extensively than it was in those days. Therefore, among the Welsh-speaking population there is a far better grasp of grammatic Welsh today than there was even in those times. Welsh-speaking people are perfectly capable of giving evidence in the courts of Wales; or is the noble Lord saying that they are English courts in Wales? The fact is that they are Anglo-Welsh courts and that a Welshman has as much rights in the courts in Wales as an Englishman has in the courts of England. That is the reality of the situation as I see it. If it is different, I should be grateful if the noble Lord will let me know.

Lord Elton

My Lords, it is not different, but as the noble Lord is addressing himself to the points made by my noble friend, I should remind him that the Government position is to recognise the great importance of the Welsh language for cultural and every other reason and that its position in the courts is already protected by Act of Parliament. There is nothing between the noble Lord opposite and myself on objectives—only on whether it ought to be on the face of the Bill.

Lord Cledwyn of Penrhos

My Lords, I am obliged to the noble Lord. That gives me some comfort because the Act which he supports is the Act which I had the privilege of piloting through Parliament. Nevertheless, let me make one or two points, in extension of what my noble friend Lord Prys-Davies has said, on the facts. In North Wales, for example, there is cause for concern at the present time because of the 20 or so prosecuting officers appointed by the newly-formed Police Prosecuting Department, only three are Welsh-speaking; whereas up to now in Gwynedd almost every solicitor, and in Clwyd a fair number of the solicitors briefed to prosecute for the police were fluent Welsh speakers. So there, at the very start, there is a retrograde step.

Furthermore, the net result of what has taken place recently in Gwynedd is to make it more difficult for the Welsh language to be used freely by parties and witnesses in a magistrates' court there and by the court itself. It also makes it very much more difficult to hold all-Welsh hearings. All-Welsh hearings are perfectly reasonable and they are practical. I have sat throughout all-Welsh hearings where the magistrates were Welsh, where the prosecuting counsel or solicitors were Welsh, where the defending solicitors were Welsh, where the defendant—most important of all—was Welsh and where of course the witnesses were Welsh.

I read in yesterday's edition of the Liverpool Daily Post, which is a newspaper which circulates extensively in Wales, a report of a court case in Gwynedd—and that is the area where most Welsh-speaking people live—in which the court was considering adjourning a case so that an interpretor could be provided for the evidence of a Welsh-speaker. Everyone involved in the case, apart from the prosecuting solicitor (a recent appointment), was Welsh-speaking. That is the very point we have in mind. The effect of the offer of an adjournment was that the witness decided eventually to give his evidence in English, although he had indicated initially that he would feel far more at home giving his evidence in his own language. Surely, before a prosecuting solicitor is appointed to an area which has a high proportion of Welsh-speakers, his ability to conduct a case in that language must be an essential qualification.

The noble Lord has said, "Ah, let it be done administratively". What we are saying, and what we are insisting upon, is that the principle here is so important that it should be enshrined in the Bill itself. It is a simple matter. It is a matter of justice for the Welsh people; and I hope the Government will concede that in this case.

Lord Elton

My Lords, I rise, with the leave of your Lordships, because there is an expectant silence, from which I imagine the noble Lord expects me to change my position.

Lord Cledwyn of Penrhos

My Lords, that is what we are here for.

Lord Elton

My Lords, we are not here for that: we are here to take a decision by your Lordships on a point of legislation. The noble Lord has said that in a particular case there was a prosecuting solicitor who could not speak Welsh in a court in North Wales. It does not follow from that that if this Bill were on the statute book with the noble Lord's amendment there would be a different prosecuting solicitor acting in the case. It may well be that the best man was appointed and that the best man, in this case, did not happen to speak Welsh. There are, I understand, four out of 11 Welsh-speaking prosecuting solicitors (and not three out of 20, as has been claimed) in North Wales. Every effort is made to appoint Welsh-speaking officers, consistent with the felt need to ensure that the best man gets the job.

The noble Lord has suggested that there is a wealth of Welsh-speaking solicitors to take this particular job. The advice I have is that the intention has been always to produce a Welsh-speaking solicitor where it is possible to do so without passing over the best man for the job. The noble Lord shakes his head. He shakes it about the present and the past: my understanding is binding upon us for the future, and I hope that your Lordships will accept it.

Lord Prys-Davies

My Lords, I am not quite certain whether I am allowed to speak a second time. I understand that I am, and so perhaps I should say that we heard at Committee stage, and we have heard again today, that an insistence on the recruitment of prosecutors able and competent to conduct proceedings in the Welsh language would result in Wales having to put up with second best, as there would be a shortage of Welsh-speaking prosecutors of quality. All I wish to say is that I doubt very much whether that would be so.

On Question, amendment negatived.

Lord Elton moved Amendment No. 3:

[Printed earlier: col. 1018.]

The noble Lord said: My Lords, I spoke to Amendment No. 3 with Amendment No. 1. I now beg to move it formally and to give notice that I shall be seeking to move Amendments Nos. 4 to 19 en bloc for the same reason. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendments Nos. 4 to 19:

[Printed earlier: col. 1018.]

The noble Lord said: My Lords, I beg to move Amendments Nos. 4 to 19 en bloc.

On Question, amendments agreed to.

Clause 9 [Reports by Director to Attorney General]:

Lord Elton moved Amendment No. 20: Page 6, line 38, leave out ("in that year of his functions") and insert ("of his functions during the year ending with that date.").

The noble Lord said: My Lords, Clause 9, as drafted, says that in any year, as soon as practicable after 4th April, the Director shall make to the Attorney General a report on the discharge in that year of his functions". This could be taken to mean that the report should deal only with the discharge by the Director of his functions in the year in which the report is made; that is to say, to cover the period January to April. Clearly, what we intend to require of the report is that it should cover the preceding 12 months. This amendment ensures that the clause achieves that purpose. I beg to move.

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 21:

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:

  1. (a) whether proceedings should or should not be instituted or continued;
  2. (b) the selection of charges to be preferred;
  3. (c) representations regarding mode of trial;
  4. (d) whether pleas of guilty should be accepted.")

The noble Lord said: My Lords, I appreciate that the Government have moved on this matter, and have moved in the direction which the Opposition wanted—and, I believe, which Members in other parts of the House wanted, too. Your Lordships will doubtless remember that at the Report stage an amendment was moved which varied that which was put forward at Committee stage and which called for a mandatory inclusion in the report of various matters which, in their general nature, would cover those aspects which Parliament and the public would want to consider. The noble Lord the Minister was good enough to say, after listening to that debate, that he understood and, indeed, agreed with the spirit of the amendment as it was then put forward and debated, and that the Government were shifting their position—I use the word "shifting" in the nicest possible way—into one which would formulate an amendment at Third Reading which would accommodate the principle we are putting forward.

In the meantime, to enable that to be done, this amendment was put down again. But the Government, as one would expect when an undertaking is given by the noble Lord, Lord Elton, have met their obligation by setting down an amendment, No. 22. In all the circumstances I do not feel it would be right to persist in Amendment No. 21, although it is slightly different in its nature. Amendment No. 21 asks for inclusions in a report: Amendment No. 22 gives a direction to issue a code for Crown prosecutors giving guidance on the general principles to be applied, and then sets out what should be the matters to be dealt with in regard to the code for Crown prosecutors. Then it provides leave to alter; and then it says that the provisions should be set out in the Director's report.

Because Amendment No. 22 includes guidelines which have to be prepared by the Director and passed to the Crown prosecutors, and really covers in principle the point we were trying to make, I believe that the proper course for me to adopt is to withdraw this amendment on behalf of my noble friends—and I hope that would be the view of those on the Alliance Benches who were good enough to put their names down to the amendment but have obviously been prevented, I am sure for some good reason, from being present this afternoon. I think it would be proper, as I have said, to ask your Lordships' leave to move this amendment and then withdraw it, or indeed not move it, on the basis that Amendment No. 22 will be put. I notice that the noble and learned Lord, Lord Rawlinson, possibly wishes to intervene before I sit down.

The Deputy Speaker (Lord Aberdare)

Perhaps I may put the amendment, and then later it may be withdrawn, which would allow other speakers to speak. Amendment proposed: page 6, line 41, at end insert the words as printed on the Marshalled List.

4 p.m.

Lord Rawlinson of Ewell

My Lords, I am grateful to the noble Lord because I wished to speak before he formally withdrew this amendment. I am one of those who have been urging upon my noble friend that there should be some broad detail in the Bill as to what the Director's report should contain. On looking at Amendment No. 22, I was going to congratulate my noble friend, because that is exactly the kind of matter which I wanted to see and which I think an Attorney-General and a Director of Public Prosecutions would like to see and ought to have prepared for Parliament. Therefore, I am glad that the noble Lord has withdrawn his amendment, since I am wholly satisfied with that which we are going to discuss next. I congratulate my noble friend on responding to that which was urged upon him, that we should have a report of the kind which he is now going to give us.

Lord Mishcon

My Lords, I am happy to continue my speech, but only briefly, by saying I am very glad that the noble and learned Lord expressed himself as he did. I think he put it in the past tense when he said that I had withdrawn this amendment. Only to adopt the proper procedure of this House, I am now about to do so. My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elton moved Amendment No. 22: After Clause 9, insert the following new clause

("Guidelines for Crown Prosecutors.

.—(1) The Director shall issue a Code for Crown Prosecutors giving guidance on general principles to be applied by them—

  1. (a) in determining, in any case—
    1. (i) whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or
    2. (ii) what charges should be preferred; and
  2. (b) in considering, in any case, representations to be made by them to any magistrates' court about the mode of trial suitable for that case.

(2) The Director may from time to time make alterations in the Code.

(3) The provisions of the Code shall be set out in the Director's report under section 9 of this Act for the year in which the Code is issued; and any alteration in the Code shall be set out in his report under that section for the year in which the alteration is made".).

The noble Lord said: My Lords, your Lordships have clearly and courteously outlined the previous history, and indeed the first three paragraphs of my speech in moving Amendment No. 22, which I now do. So I shall be brief. The Government fully accept that general guidance issued by the Director to Crown Prosecutors should be published in the Director's annual report. At earlier stages, our reservations were two-fold: first, that it was unnecessary to require such publication on the face of the Bill; and, secondly, that any requirement to publish should make provision for those matters on which confidentiality must be preserved. But we accept the strength of feelings in your Lordships' House that such guidance should be required to be published and we feel that this should outweigh our own reservations over whether provision should be made on the face of the Bill to this effect. I am grateful to my noble and learned friend Lord Rawlinson for welcoming that.

We also believe that our amendment meets our concern that the duty which is on the Director to publish should be so framed as to protect advice in sensitive matters, whose disclosure could be harmful to the public interest. There would, as I pointed out earlier, be great danger if it was necessary to publish advice that there was, say, a loophole in the law before the loophole could be closed.

There are two main differences between our amendment and that of noble Lords opposite which has now been withdrawn. Ours places a duty on the Director to issue a code to Crown prosecutors on the general principles to be applied to the decision whether to institute or continue proceedings and to the principal aspects of the conduct of the case. The new clause requires the code and subsequent alterations to it to be published in the Director's annual report to the Attorney-General. We believe that this will make it clear that the code is to cover general principles and that no risk arises of the duty to publish being held to apply to advice in particular cases which it would be against the public interest publish. There is nothing between us on that.

The second difference is that the Government amendment does not appear to cover decisions as to whether pleas of guilty should be accepted. The difference is one of appearance only. The cases which I believe noble Lords opposite have in mind are those in which a decision must be made whether to drop proceedings for a more serious offence where the defendant has said that he would plead guilty to a less serious offence. I believe that it is these criteria that they think should be published and we agree with that. But technically, and in law, the decision in question is not a decision to accept a plea of guilty to the lesser offence. It is a decision to drop proceedings in connection with the greater offence. That decision is covered by the requirement in subsection (1)(a)(i) of our amendment and there should therefore be nothing between us on that either. I hope that with that explanation all of your Lordships will be content with the effect of our amendment and be prepared to accept it. My Lords, I beg to move.

On Question, amendment agreed to.

Clause 14 [Interpretation of Part 1]:

Lord Elton moved Amendment No. 23.

[Printed earlier: col. 1018.]

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

[Clause 15 [Defence costs]:

Lord Elton moved Amendment No. 24: Page 13, line 27, leave out ("indictable").

The noble Lord said: My Lords, in moving Amendment No. 24, I should like first to say how much my noble and learned friend the Lord Chancellor regrets that he is not here to do it in person. I do it on his behalf. My noble and learned friend is, as I think your Lordships may know, suffering from a bout of influenza and I am sure that your Lordships will want me to wish him a speedy recovery. As I gather that he is already dealing briskly with a succession of red boxes at home, I am glad to say that that wish is likely to be fulfilled quite rapidly.

With your Lordships' leave, in moving Amendment No. 24 I shall also speak on the connected Amendments, Nos. 25, 29, and 36 to 39 inclusive.

Amendment No. 25: Page 13, line 32, leave out ("indictable").

Amendment No. 29: Leave out Clause 17.

Amendment No. 36: Page 31, line 4, leave out sub-paragraph (9).

Amendment No. 37: Page 31, line 8, leave out ("After") and insert ("For").

Amendment No. 38: Page 31, line 8, leave out from ("be") to ("where") in line 9 and insert ("substituted the following—"13.").

Amendment No. 39: Page 31, line 38, leave out ("sections 17 and") and insert ("section").

These amendments fulfil an undertaking given by my noble and learned friend at the Committee stage. Amendment No. 24 enables defendants acquitted in summary cases to recover their costs from central funds. The position regarding appeals in summary cases is dealt with by Amendment No. 26, to which I shall be speaking later. Amendment No. 29, which removes Clause 17 from the Bill, is to an extent consequential on the extension of central funds to summary cases, but it might help if I explained in a little more detail.

Clause 17 enables magistrates' courts to order the prosecutor to pay an acquitted defendant's costs in summary cases. It was included in the Bill because such a defendant would not be able to recover his costs from central funds. With the extension of Clause 15 to cover summary cases, it is no longer necessary to make separate provision for the prosecutor to pay the defendant's costs and Clause 17 can therefore be removed. Consequential amendments to Schedule 1 are also required on the removal of Clause 17. My Lords, I beg to move.

Lord Elwyn-Jones

My Lords, this is a moment to be remembered and to be thankful for, because what is now proposed by the acceptance of the amendments which I had the privilege of moving at an earlier stage means that a serious error and fault—indeed, I would call it a fundamental injustice—in our legal system is to be removed. This omission which we made, and which the noble and learned Lord the Lord Chancellor accepted by a promise in advance, was that where an innocent person has fought to establish his innocence it is indeed ironic that he should find himself condemned in costs, 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 or activities of other persons and authorities.

The noble and learned Lord the Lord Chancellor—and I echo an observation that I made when we heard of the unhappy illness of the Lord Chancellor and extend our wishes on this side of the House for his speedy recovery—has now carried out what he undertook to do on the last occasion. We are grateful for it and I am sure that this improvement in our arrangements for those who come before the courts with inadequate resources will be welcomed throughout the country as a whole.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 25:

[Printed above.]

The noble Lord said: My Lords, I have already spoken to Amendment No. 25. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 26:

Page 14, line 3 leave out subsection (3) and insert— (" (3) Where a person convicted of an offence by a magistrates' court appeals to the Crown Court under section 108 of the Magistrates' Courts Act 1980 (right of appeal against conviction or sentence) and, in consequence of the decision on appeal—

  1. (a) his conviction is set aside; or
  2. (b) a less severe punishment is awarded;
the Crown Court may make a defendant's costs order in favour of the accused.").

The noble Lord said: My Lords, in moving Amendment No. 26 I will, with your Lordships' leave, also speak to Amendments Nos. 27 and 28 on the Marshalled List.

Amendment No. 27: Page 14, line 8, after ("Appeal") insert ("—(a)")

Amendment No. 28: Page 14, line 13, at end insert— ("or (b) on an appeal under that Part against sentence, exercises its powers under section 11(3) of that Act (powers where the court considers that the appellant should be sentenced differently for an offence for which he was dealt with by the court below);").

These amendments also fulfil undertakings given by my noble and learned friend at the Report stage. Their effect is two-fold. First, they will extend the availability of awards of costs from central funds to appellants in summary cases. Secondly, they enable the Crown Court and the Court of Appeal to make an award of costs out of central funds to a defendant who, on appeal against sentence, has a less severe punishment substituted for the original sentence.

My Lords, I beg to move.

Lord Mischon

My Lords, not only your Lordships' House but the Law Society—which campaigned in this matter and indeed on the last matter that we discussed—will be most grateful to the noble Lord the Minister for having had second thoughts on this aspect. I suppose appreciation ought also to be expressed to the noble and learned Lord who, unfortunately, is not with us this afternoon. I have nothing more to say other than to express that gratitude and to say that the Government are so sensible to have accepted what was said from this side.

Lord Elton

My Lords, with your Lordships' leave, the noble Lord is most kind. To be fair, I think some collective credit is always due to governments when they get things right; but in this case the noble Lord should direct all his gratitude at my noble and learned friend and not at myself. I shall see that his next red box is packed with laurels.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 27:

[Printed above.]

The noble Lord said: My Lords, this amendment is consequential. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 28:

[Printed above.]

On Question, amendment agreed to.

Lord Elton moved Amendment No. 29:

[Printed earlier: col. 1030.]

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 24. I beg to move.

On Question, amendment agreed to.

Clause 18 [Prosecution costs]:

Lord Elton moved Amendment No. 30: Page 17, line 22, after ("dismisses") insert ("—(a)").

The noble Lord said: My Lords, I shall, with your Lordships' leave, speak also to Amendment No. 31.

Amendment No. 31: Page 17, line 24, after ("1968") insert— ("or (b) an application by the accused for leave to appeal to the House of Lords under Part II of that Act;").

Your Lordships will remember that my noble and learned friend moved amendments on Report which enabled the House in its judicial capacity to exercise its inherent jurisdiction with regard to the award of costs between parties without restriction. It has since transpired that those amendments in fact went wider than was necessary and inadvertently removed the power of the Court of Appeal to order the accused to pay costs under Clause 18 where that court had dismissed his application for leave to appeal to the House of Lords. This amendment and Amendment No. 31 on the Marshalled List therefore restore the status quo. I beg to move.

On Question, amendment agreed to.

Lord Elton moved Amendment No. 31:

[Printed above.]

The noble Lord said: My Lords, I beg to move.

Lord Elwyn-Jones

My Lords, I wonder whether the noble Lord, Lord Elton, will explain why it is deemed necessary to make this amendment. The amendment at page 17, line 24, empowers the Court of Appeal to make an order as to costs in respect of an application by the accused for leave to appeal to the House of Lords being rejected by the Court of Appeal. Is this really thought in all circumstances to be necessary? It runs against the kindly stream of goodwill that has been exhibited so far today. Will the noble Lord say why we should cast a cloud over the happy horizon that has previously existed?

Lord Elton

My Lords, we are rather removing a cloud from the stream of goodwill because clouds tend to swell streams. As I understand it, the course that the stream was to run was clearly marked out at an earlier stage and the amendment enlarged upon the intention. The effect of the amendments now on the Marshalled List is to restore the stream of goodwill to its predicted course. I could with difficulty and coaching give the noble and learned Lord the detail of this rather complicated consideration but I am assured that the effect is merely to restore the status quo in an area in which there had not been an undertaking to alter it. If the noble and learned Lord would bear with me until I write, and if he is not content with my letter, he would then talk to his colleagues in another place or perhaps call me to task when the Bill comes back, I think that would expedite proceedings.

Lord Elwyn-Jones

My Lords, I shall certainly bear with that period of waiting; but having spent a happy day upstairs in another capacity, I would not encourage any interference with rights of appeal to your Lordships' House.

On Question, amendment agreed to.

Clause 23 [Discontinuance of proceedings in magistrates' courts]:

4.15 p.m.

Lord Mishcon moved Amendment No. 32:

Page 25, line 13, leave out subsection (8) and insert— ("(8) Where proceedings are discontinued in respect of a charge against any person no court shall entertain any information against him in respect of that charge, except any information laid with leave of a magistrates' court and rules of that court shall provide that that person shall be entitled to be given notice of and to appear and be heard on any application for such leave.").

The noble Lord said: My Lords, I wonder whether I could reawaken in your Lordships' minds memories of a very important amendment and a very important principle which we discussed at earlier stages of the Bill. At Committee stage we brought forward an amendment, which was quite widely discussed as I remember, that the opportunity should be taken with this new prosecution service to weed out those prosecutions which should not be continued in the view of the prosecuting service.

The difficulty with the present procedure is that one has to obtain the leave of the court in order to do that. Obtaining the leave of the court in turn necessitates a considerable amount of work; the preparation of it; with the appearance in court of learned counsel in some cases and of solicitors in others; and the attendance of the parties concerned. The Government felt that that was a sensible principle and came forward with an amendment at Report stage which was considered by your Lordships on 14th February. I quote from col. 371 of the Official Report for that day where the Minister 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".

We looked at that amendment. It is nobody's fault, but we did not have very much time to consider it. On behalf of my noble friends, I expressed gratitude for the step that the Government had taken towards us but gave notice, if I may put it in that way, at col. 373 in the following terms: 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". If your Lordships will look at the provision that is now in the Bill as a result of the amendment accepted at Report stage, you will find that a discontinuance notice can be served, the procedure carried out, and thereafter and without any leave having to be obtained from the court a fresh prosecution can be started upon the same facts; and it would be exactly the same offence charged by the prosecution.

One can readily imagine the feelings of an unknowing defendant who finds himself in that position at a later stage, having thought that the proceedings had been discontinued. One can also understand the feelings of a knowing defendant who appreciates that, although proceedings have been discontinued by notice, next week, next month—it could be next year—fresh proceedings can be started all over again. It may very well be at that stage, whether it be the knowing defendant or the unknowing defendant I have tried to describe to your Lordships, that a witness for the defence is no longer available or that evidence has been destroyed.

Those are matters which obviously ought to be considered by a court before fresh proceedings can be started, so that the court can decide whether it is just in all the circumstances and whether the defendant has been unduly prejudiced as a result of the prosecution, having served the notice originally, not proceeding with the charges but bringing them forward all over again at a later date. In my humble submission that must be right. It is surely a principle of jurisprudence that the court must be able to consider whether hardship has accrued and whether a defendant has been unduly prejudiced as a result of the prosecution's action and not his own.

As I intimated might be the case at Report stage, we are saying at Third Reading that the Government's amendment is perfectly in order but that before proceedings are re-instituted, having been discontinued under the provisions of the amendment—and they can be, and no doubt there will be some cases where they ought to be—the leave of the court must first be obtained. This means that the accused will be able, through his representative, one imagines, to explain to the court why in his view it would be wrong for proceedings to be re-instituted. Nevertheless, the court can decide, in a proper case, that yes, the proceedings should be re-instituted. It is this question of the leave of the court that is the sole point, but such an important point, of this amendment. I beg to move.

Lord Campbell of Alloway

My Lords, with respect, I should not have thought that this was a matter for the leave of the court. This is not like the ordinary situation where, for example, an indictment lies on the file, not to be proceeded with without leave of the court. This question concerns the instituting of proceedings which, although I appreciate that there is a fairly thin line, lies within the province of the prosecution and not within the province of the court.

Lord Elton

My Lords, the effect of this amendment would be to strike out subsection (8) in Clause 23 of the Bill and with it the unfettered right of the prosecutor to institute fresh proceedings in a case in which he has earlier discontinued proceedings. In place of that subsection the noble Lord proposes two provisions. First, there would be a requirement that such proceedings shall in future be initiated only with the leave of the magistrates' court. Secondly, they may be initiated only with the knowledge of the defendant, who must be able to resist the application in that court for leave to proceed.

The requirement that leave to proceed must be sought from the court is not a particularly dramatic departure because the leave of the justices is already required for the institution of any proceedings; and the proposal is to that extent superfluous. The substantive new feature proposed by the amendment is the requirement that the defendant should be apprised of the intention to bring new proceedings and enabled to appear at the hearing of the application. It is not clear from the amendment what courses would be open to the defendant appearing at the application. Is it to be open to him, for example, to submit that there is no case to answer? There are other and rather more appropriate opportunities for him to do that. Perhaps the sponsors of the amendment envisage that the defendant will be able to argue about the appropriateness of the bringing of proceedings—

Lord Simon of Glaisdale

My Lords, perhaps I may interrupt the Minister. When he states that there will be other, more appropriate occasions for the defendant to submit that there is no case to answer, does he mean later?

Lord Elton

Yes, my Lords. As I was saying, perhaps the noble Lord, Lord Mishcon, intends that the defendant should be able to argue about the appropriateness of the bringing of proceedings. But apart from questions of jurisdiction and whether the information discloses an offence known to law, I understand that considerations of appropriateness play no part in the decision whether to grant process on the information. I do not suppose noble Lords are suggesting that the courts should be able to withhold access to the courts simply because, for instance, they disagree with the overall prosecution policy of the new service.

That is one difficulty I see; but there is also a practical reason why this amendment is, in our view, undesirable. By requiring the defendant to be notified is there not a risk that if the information is for the purpose of seeking a warrant for his arrest, he could abscond? If the offence was a serious one, that could be very much against the public interest.

We believe that our provision as drafted adequately safeguards the defendant's position, and I shall briefly recapitulate the main points. The effect of subsection (6) is to enable the accused to nullify the discontinuation notice issued by the Crown Prosecution Service. It therefore ensures that no accused person need be any worse off as a result of the clause. When the accused issues his counter-notice, the case comes before the magistrates. At that stage they can decide—as they can in any case now, and after hearing any representations from the accused—whether the application to withdraw the information should be granted.

As now, it will be up to the prosecutor whether to seek leave to withdraw, or whether instead to offer no evidence. In the latter case—but not the former—there has been an adjudication by the courts which, as your Lordships will know, acts as a bar to future proceedings for the same offence. Obviously, it is also open to the prosecutor to continue the case, and the risk that it might be pursued to a conviction is one that the accused runs in issuing his counter-notice.

There are many reasons the prosecution service might have for wishing to re-start proceedings. It would be quite wrong to put the court generally in the position of determining, almost as a matter of public policy, which of those reasons are valid and which are not. It may be that at the time of the original proceedings the evidence was thought insufficient to sustain a conviction; or a witness who might have been intimidated subsequently proved willing to testify. The prosecution service might have discontinued the original proceedings on compassionate grounds; perhaps in, say, a shoplifting case where the shoplifter claimed to have been confused because of the effects of medication. The accused might re-offend, and it may then transpire that he or she was not under medication at all but lived by persistent and calculated theft from shops. In that case it might well be appropriate to reinstate the earlier charge if only to avoid the court being misled as to the uniqueness of the incident.

The approach in the clause as drafted strikes the right balance between proper protection for the accused and leaving the Crown Prosecution Service discretion to drop proceedings. We feel that the amendment would upset that balance. I hope, therefore, that noble Lords will recognise that the Bill as drafted is preferable to the amendment, and that the noble Lord will leave it as it is.

Lord Mishcon

My Lords, I wish that I could in fairness and in decency adopt any suggestion made so courteously by the noble Lord the Minister, but I cannot. If the Minister will forgive my saying so, he has given reasons for opposing this amendment which are weak when one compares them with the reasons for requiring that the leave of the court has to be obtained. I shall explain those latter reasons briefly, one by one.

First, there is the point that before any proceedings are commenced the leave of the court has to be obtained in the sense, obviously, that information is laid. Anyone practising in the courts knows perfectly well that that is a mere formality—certainly in regard to the police prosecution. It would only be in an extraordinary case that the court, if advised by the clerk that there was some extraordinary matter to be considered, would decide that such a prosecution should not be permitted. So in regard to fresh proceedings—where leave would have to be obtained, if this amendment is accepted—they are very different from the normal formality. Indeed, most likely the court would not even know that it was a question of fresh proceedings where a notice of discontinuance had previously been served.

Secondly, the noble Lord the Minister says that from looking at this amendment nobody would know what other matters the court would have to consider on the application for leave and what it would be open to an accused person to argue—if he were to argue that it would be unjust and prejudicial for leave to be given for fresh proceedings to be instituted.

4.30 p.m.

We all know, if I may say so, that where leave to do something is asked of the court the only relevant factor is whether the leave should in fact be granted because of the reasons advanced by one side or the other as to the justice and prima facie nature of any such proceedings. Therefore, the answer to the noble Lord the Minister is obvious. The only question to be argued on leave is: would it be prejudical? No court is going to allow a defendant to go into the case and say that, in his view, no case lies against him. That will be for the court to decide subsequently. What he will be arguing is that there would be a complete hardship in his case if the proceedings were allowed to be recommenced after a notice of discontinuance.

The last reason given by the noble Lord the Minister—and he must really have reached for the bottom of the wastepaper basket to find it—is that an accused might abscond on being told that fresh proceedings are being started. Is one really going to take it for granted that proceedings are to be discontinued, with reasons given for it, except in an absolute minority of cases, where this sort of defendant would be the defendant to the proceedings—actually discontinued at the wish of the prosecution—and that here is a rogue and vagabond who might abscond, but who did not do it beforehand, on hearing that the proceedings are about to be recommenced? Are we to take that minority of cases and ignore the majority of cases where, on a discontinuance notice being served, a man is entitled to think that he does not have to go on preparing his case and watching his witnesses to make sure they do not forget? Is he to be put in that position, willy-nilly? Or is he to be able to go to a court of law and say, "Really, this period of time has elapsed: is it just?"

I ought to remind your Lordships of one thing before I conclude. My noble friends and I have agreed on this in the amendment. When a notice of discontinuance is served reasons have to be given by the prosecution, but the defendant is not entitled to know what those reasons are. The court will know because they will be on the court file. Therefore, the court will have the history, on any application for leave, as to why the discontinuance was permitted—I am sorry, not "permitted"; the court has no right to permit: why the notice of discontinuance was served on the last occasion. All those facts will be before the court, as to why the prosecution did it. Was it the merciful ground that the noble Lord mentioned? Was it because of the unreliability of a witness at that stage? Was it because a witness could not be found, but latterly a witness has turned up? All those matters will be on file. The poor defendant will not know what those reasons were, even at that stage. Is it not right that, before something which has been discontinued is recommenced, at least a fiat is given by the court, "Let it go forward: let it he done", and an opportunity given for the defendant to argue that he would be unduly prejudiced if that leave were granted?

I must tell the noble Lord the Minister that we on this side feel so firmly about this elementary justice, as we see it, in which there is not one iota of political thought or argument but purely the consideration of justice, that the opinion of your Lordships' House must be taken.

Lord Renton

My Lords, in view of what the noble Lord, Lord Mishcon, has just said, and although I did not entirely agree with it, I concede it was a very persuasive speech and we should consider whether—

Lord Denham

My Lords, if my noble friend will forgive me, I think that the noble Lord whose amendment it is has already replied and moved the Motion (is that not right?) in which case I am afraid my noble friend is a little too late to come in.

Lord Mishcon

My Lords, I have not yet sat down.

Lord Renton

My Lords, I have not previously spoken. Am I too late to come in, then?

Lord Denham

My Lords, if the noble Lord whose amendment it is has replied to the debate, then it is a little too late to intervene.

4.35 p.m.

On Question, Whether the said amendment (No. 32) shall be agreed to?

Their Lordships divided: Contents, 84; Not-Contents, 93.

Ailesbury, M. David, B. [Teller.]
Airedale, L. Dean of Beswick, L.
Allenby of Megiddo, V. Diamond, L.
Ampthill, L. Donaldson of Kingsbridge, L.
Ardwick, L. Elwyn-Jones, L.
Aylestone, L. Evans of Claughton, L.
Banks, L. Falkland, V.
Beaumont of Whitley, L. Fisher of Rednal, B.
Beswick, L. Gallacher, L.
Birk, B. Gladwyn, L.
Bottomley, L. Graham of Edmonton, L.
Brockway, L. Gregson, L.
Bruce of Donington, L. Grimond, L.
Chitnis, L. Hampton, L.
Cledwyn of Penrhos, L. Hanworth, V.
Harris of Greenwich, L. Ponsonby of Shulbrede, L. [Teller.]
Henderson of Brompton, L.
Hooson, L. Prys-Davies, L.
Houghton of Sowerby, L. Reilly, L.
Hughes, L. Ritchie of Dundee, L.
Ilchester, E. Roberthall, L.
Irving of Dartford, L. Rugby, L.
Jacques, L. Seear, B.
Jeger, B. Serota, B.
Jenkins of Putney, L. Shackleton, L.
John-Mackie, L. Shepherd, L.
Kaldor, L. Shinwell, L.
Kilmarnock, L. Simon of Glaisdale, L.
Leatherland, L. Somers, L.
Listowel, E. Stedman, B.
Llewelyn-Davies of Hastoe, B. Stewart of Fulham, L.
Lloyd of Kilgerran, L. Stoddart of Swindon, L.
Lockwood, B. Strabolgi, L.
Longford, E. Taylor of Blackburn, L.
Mais, L. Tordoff, L.
Mayhew, L. Underhill, L.
Melchett, L. Wallace of Coslany, L.
Mishcon, L. Wells-Pestell, L.
Molloy, L. White, B.
Mulley, L. Wigoder, L.
Nicol, B. Winterbottom, L.
Oram, L. Wootton of Abinger, B.
Peart, L.
Airey of Abingdon, B. Home of the Hirsel, L.
Alport, L. Hood, V.
Auckland, L. Hylton-Foster, B.
Avon, E. Inglewood, L.
Belhaven and Stenton, L. Lane-Fox, B.
Boardman, L. Lauderdale, E.
Boyd-Carpenter, L. Long, V. [Teller.]
Brabazon of Tara, L. Lucas of Chilworth, L.
Caithness, E. Lyell, L.
Cameron of Lochbroom, L. Mancroft, L.
Campbell of Alloway, L. Mar, C.
Cathcart, E. Marley, L.
Coleraine, L. Merrivale, L.
Colwyn, L. Mersey, V.
Constantine of Stanmore, L. Milverton, L.
Cottesloe, L. Mottistone, L.
Cox, B. Moyne, L.
Craigavon, V. Nugent of Guildford, L.
Cranbrook, E. Orkney, E.
Crathorne, L. Pender, L.
Cross, V. Porritt, L.
Cullen of Ashbourne, L. Portland, D.
Davidson, V. Rankeillour, L.
Denham, L. [Teller.] Rawlinson of Ewell, L.
Dilhorne, V. Reigate, L.
Drumalbyn, L. Renton, L.
Ellenborough, L. Rodney, L.
Elliot of Harwood, B. St. Davids, V.
Elton, L. Sandford, L.
Enniskillen, E. Sandys, L.
Faithfull, B. Savile, L.
Ferrier, L. Skelmersdale, L.
Fortescue, E. Strathcarron, L.
Fraser of Kilmorack, L. Strathspey, L.
Gainford, L. Suffield, L.
Gardner of Parkes, B. Swansea, L.
Gisborough, L. Swinton, E.
Glanusk, L. Terrington, L.
Glenarthur, L. Teviot, L.
Gowrie, E. Teynham, L.
Gray, L. Thomas of Swynnerton, L.
Gray of Contin, L. Trefgarne, L.
Gridley, L. Trumpington, B.
Hardinge of Penshurst, L. Vickers, B.
Hemphill, L. Vivian, L.
Henley, L. Whitelaw, V.
Hives, L.

Resolved in the negative, and amendment disagreed to accordingly.