Lords Sitting of 17 January 1985

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.

Water Authorities: Consumer Consultation
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, as consumer councils in the water industry are not included in the Written Answer concerning consultation on tariffs charges given to the Baroness Burton of Coventry on 30th October last (col. 808), they will add these councils to those having a statutory right to be consulted.
Lord Skelmersdale: My Lords, water authorities' consumer consultative committees were not included in the reply of my noble friend Lord Lucas of Chilworth because these committees are not technically statutory bodies. My right honourable friend the Secretary of State for the Environment does not consider that measures beyond those contained in Section 7 of the Water Act 1983 are required.
Baroness Burton of Coventry: My Lords, does the Minister realise that his reply is most extraordinary, in view of the facts? May I ask him whether these committees have not a statutory basis, as they were set up under Section 7 of the Water Act 1983? May I further ask him whether he has in his brief a copy of the Secretary of State for the Environment's Guidelines, Water Authorities and the Representation of' Consumers' Interests? May I ask him further whether he is aware that there is a sentence in those guidelines that these committees—and I shall quote it exactly—
"should be able to consider fundamental questions including general charging and financial policies"?
Lord Skelmersdale: My Lords, although the water authorities have a statutory duty to have consumer representatives' committees looking after their affairs, the committees themselves are not statutory. The consumer consultative committees' constitutions charge the authorities to consult them in advance of decisions on proposals with significant implications for their consumers. This they have done and are continuing to do.
Baroness Burton of Coventry: My Lords, is the Minister denying the guidelines issued by his own Secretary of State? May I ask him whether he will say directly whether or not he supports, or is against, the
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sentence issued by the Secretary of State which says that these committees
"should be able to consider fundamental questions including general charging and financial policies"?
Lord Skelmersdale: No, my Lords, I am not doing anything of the sort. I repeat that the consumer consultative committees have been consulted by the water authorities, are being consulted, and will continue to be consulted.
Baroness Nicol: My Lords, is the Minister aware of the views of the industrial consumers as expressed by the CBI in November 1984 in which they quote the extra costs which will be falling on industry this year as a result of increased water charges; for example, £47,000 for a paper-making company and £45,000 for a pharmaceutical company? This is based on a 12 per cent. rise, which is modest. Is the Minister able to explain to the House why we should not consider this to be a tax-gathering exercise, one particularly without any democratic control?
Lord Skelmersdale: Yes, my Lords, I am aware of the CBI representations of late last year. I will tell the noble Baroness that the position is quite simple. Water delivery and collection has a cost and this cost is reflected in a charge to the user.
Baroness Burton of Coventry: My Lords, may I ask the Minister whether he really will make matters clear, because until I read Hansard tomorrow it seems to me that he contradicted himself? Did I not understand him to say at the beginning that the consultative consumer committees would not necessarily be discussing financial charges? If so and in any case, would he give me a direct answer as to whether he accepts that these committees should be able to consider,
"fundamental questions including general charging and financial policies"?
If that is the case, why may they not be added to those industries which have this right?
Lord Skelmersdale: My Lords, my noble friend Lord Lucas answered the Question which the noble Baroness put down for Written Answer in October last. He answered it correctly. So far as her quote goes, yes, of course, I agree and, as I have said I think now three times, the consumer consultative committees are consulted, have been consulted, and will continue to be consulted on all these matters.
Baroness Nicol: My Lords, will the Minister answer the point about whether or not he considers this to be a tax-gathering exercise? We have already seen tax gathering on electricity and on gas. Are we now seeing it on water? He really has not answered this point. Will he comment on it?
Lord Skelmersdale: My Lords, I am afraid that I disagree; I think that I have answered it. It is not a tax-gathering exercise.

Argentina-United Kingdom Relations
3.13 p.m.
Lord Hatch of Lusby: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have any plans to re-open negotiations with the Argentine Government and, if so, to include the issue of the sovereignty of the Falkland Islands on the agenda.
The Minister of State, Foreign and Commonwealth Office (Baroness Young): My Lords, as my right honourable friend the Prime Minister said in another place on the 31st of October 1984, we remain ready to work for more normal relations with Argentina. But we have made it clear that we are not prepared to discuss sovereignty over the Falkland Islands. The Argentine Government have continued to insist that any discussions about normalising relations must be linked with discussion of sovereignty; we hope that they will come to see the advantages of a more pragmatic and constructive approach.
Lord Hatch of Lusby: My Lords, may I ask the noble Baroness the Minister whether she has read the report of the Foreign Affairs Committee of another place on this issue? Can she respond in this House to the assertion which is contained in this report? After noting that the present policy costs this Government a thousand times as much to defend a Falkland Islands citizen as a British citizen, the report goes on—and I am asking the noble Baroness whether she will respond to this— to say:
"Some kind of accommodation with Argentina is not only inevitable in view of the cost of the present policy to the United Kingdom but also desirable if the Falklands are to have any prospect of long-term economic prosperity and political stability."
Can she also tell us whether it is the view of Her Majesty's Government that the citizens of the Falkland Islands have a veto on any negotiations between the Foreign Office of this country and Argentina? I say this particularly in view of the extraordinary action which has been taken by Sir Rex Hunt this week in promulgating a constitution for those islands which apparently cannot be questioned or debated by our Parliament.
Baroness Young: My Lords, the noble Lord, Lord Hatch, has actually asked four questions. I shall try to answer two. The first answer is that I have read the report of the Foreign Affairs Committee and of course the Government will be putting forward their considered response. As to his last point, of course in all matters concerning dependent territories Parliament is the supreme authority.
Lord Gladwyn: My Lords, might not the Government agree to resume negotiations with the Argentine, not on the basis of discussion of sovereignty, which is a tendentious term and can mean almost anything, but on the basis of an agreed discussion at the end of the negotiations on what might be called the political future of the Falkland Islands? That could include all kinds of special relationships
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with the Argentine and the Falklands. It could include all kinds of very good solutions. Why not agree to that?
Baroness Young: My Lords, as the Government have made plain on very many occasions, we should like to have better bilateral relations with Argentina. We tried to achieve this in the very long and detailed negotiations that went on leading up to the final meeting in Berne last July. It was a matter of great regret to the Government that the agreement was broken, but the Government are quite clear that they are not prepared to negotiate sovereignty.
Lord Boyd-Carpenter: My Lords, in view of the fact that Argentina indulged in an act of military aggression against British territory and British ships, can my noble friend say whether she is now making any suggestion of the payment of compensation or reparations, as has normally been the case with similar episodes in history?
Baroness Young: My Lords, no, this has not been a matter which has been considered at all. Indeed, the Government have already taken a number of what we believe are helpful and positive steps with the idea of getting ourselves back to more normal bilateral relations with Argentina.
Lord Cledwyn of Penrhos: My Lords, would the noble Baroness agree that the Argentine now has a democratic government under a moderate and benign leadership? Is not this a time therefore to seek an agreed agenda which could form the basis of a further meeting between ourselves and the Government of the Argentine? In those circumstances, would it not be quite wrong and irresponsible to let this matter drift on inconclusively, given the cost of the present exercise? Also, could she say whether there is any truth in the report that the Government are thinking of drafting a constituton for the Falklands? If that is so, what is the nature of the exercise and how is this to be done?
Baroness Young: My Lords, the answer to the first of the noble Lord's questions is as I have already indicated: we wish to have more normal bilateral relations with Argentina. It was to our great regret that the talks broke down in Berne. They were established, with the agreement of the Argentine Government, on the basis that the Argentines would have the right to raise the subject of sovereignty; we would say that we were not prepared to discuss it; and we would then move on to other topics. It was a matter of great regret that this agreement was broken and that the Argentine Government have insisted that sovereignty must be discussed along with any other issues that we should like to discuss with them.
On the second point raised by the noble Lord—which is a quite separate one concerning the constitution—it is only reasonable that a new constitution should be discussed privately with the councillors and the elected representatives of the Falkland Islanders in the Falklands. It has been put to them; but on this basis of the discussion and agreement with the councillors, copies of the draft constitutions for the Falkland Islands and the Falkland Islands Dependencies will shortly be put into the Libraries of both Houses.
Lord Cledwyn of Penrhos: My Lords, would it be the purpose of such a constitution to entrench the principle of sovereignty? If that is the case, it really will make a settlement quite impossible.
Baroness Young: My Lords, as I have already indicated in answer to the Question raised by the noble Lord, Lord Hatch, in all matters regarding dependent territories the ultimate authority must be Parliament.
The Earl of Onslow: My Lords, is it not true that the United Nations has made it a condition of decolonisation that it should be the consent of the people concerned who are governed by a metropolitan power? Furthermore, is my noble friend aware that three months ago, when I went to the Falkland Islands, it was quite impossible to find but one Falkland Islander who wanted the question of sovereignty discussed?
Further, is it not odd that a noble Lord in this House, who seems to assume that the "Belgrano" was on a pleasure cruise and who advocated the freeing of the African colonies on the grounds of self-determination, should now be happy to advocate the handing over of free-born British citizens to an erstwhile Fascist state?
Baroness Young: My Lords, in answering both my noble friend Lord Onslow and an earlier question, I think it might be helpful to confirm that the Government have agreed that the human rights chapter of the new constitution for the Falkland Islands should have in its preamble a reaffirmation of the islanders' right to self-determination. The wording repeats the provisions regarding self-determination in Article I of the International Covenant on Civil and Political Rights.
Lord Kennet: My Lords, since the Argentine Government will not negotiate with us unless sovereignty is on the agenda, and since we will not negotiate with them if it is, would the Government think it possible to make modest advances by obviating negotiations altogether and proceeding by simultaneous unilateral declarations, as described in the report of the Select Committee of the House of Commons?
Baroness Young: My Lords, this is a proposal which I recognise has been raised on a number of occasions—that we should lift the protection zone in exchange for Argentina agreeing that there should be a cessation of hostilities. We have always made it plain that we do not see that one necessarily follows from the other.
Viscount Montgomery of Alamein: My Lords, can my noble friend say what is her attitude to the United Nations' resolutions that negotiations should be resumed, bearing in mind that there is a considerable balance of opinion in the world that negotiations on this issue are desirable, especially in view of the fact that Argentina now has a democratically elected Government and is extremely favourable to Western influence?
Baroness Young: My Lords, we have welcomed the fact that Argentina now has a democratically elected Government. We hope that as the Argentine people have had the right to choose their own Government they will recognise that the Falkland islanders should have a similar right to their own choice. On the question of the United Nations' debate, the fact is that when we are asked to enter into negotiations we are being asked to enter into negotiations about sovereignty.
Lord Hatch of Lusby: My Lords, will the noble Baroness answer the question put by my noble friend Lord Cledwyn as to how the new constitution of the Falklands will be promulgated? Is it the case that it will be promulgated through Order in Council, or following a debate in this Parliament? Secondly, will the noble Baroness agree—
The Lord President of the Council (Viscount Whitelaw): My Lords, will the noble Lord please remember that he had four questions the first time? He will be imposing a lot on the House if he is going to have two or three again on the second occasion.
Lord Hatch of Lusby: My Lords, as the noble Baroness herself admitted, she was going to answer only 50 per cent. of the points that I asked about in my first question.
Without any question as to who was responsible for the breakdown of negotiations in Berne, would she not agree that it is in the interests of this country, of the Falkland islanders, and of world peace particularly in view of the rearmament of the Argentine, for Her Majesty's Government now to take a new initiative to try to re-establish friendly relations between our two countries?
Baroness Young: My Lords, as I have said on several occasions already this afternoon, Her Majesty's Government would like to have better bilateral relations with Argentina. We have indicated a number of areas where we think progress could be made, which would be confidence building measures, which would be pragmatic and which would be constructive and helpful in the present situation. We hope for a response from Argentina.
Lord Maude of Stratford-upon-Avon: My Lords, can my noble friend clarify the Government's oft repeated statement that sovereignty is not negotiable, because it seems to confuse two quite different issues? While it is clearly true that their de jure right of sovereignty is not negotiable, though it might be justiciable, surely the question of transfer of sovereignty in a dependent terroritory has always been negotiable throughout the history of this country. If the Government simply mean that they do not intend or want to negotiate, should they not say so quite clearly, rather than say it is not negotiable?
Baroness Young: My Lords, my noble friend, with his usual clarity, has drawn attention to a particular point about sovereignty. What the Government have made quite clear in Parliament and have said to the Falkland islanders themselves is that they are not going to enter into negotiations with Argentina on the

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subject of sovereignty. I have been asked in various forms whether the islanders' wishes will always come first, to which I have responded that the ultimate authority on the future of our dependent territories is the British Parliament.
Lord Glenamara: My Lords, is the noble Baroness aware that many of us believe that the Argentine has no valid claim whatever to the Falklands? Is she further aware that there is not a single Argentine citizen living in the Falklands and that the way ahead surely is to spend the next decade building up the economy of the Falklands and then to grant them independence which is guaranteed. as we have done with many other island colonies throughout the world—an independence which is guaranteed by a number of countries, including Britain and the United States, and in which the Argentine is invited to share?
Baroness Young: My Lords, I would agree with the noble Lord, Lord Glenamara, that we have no doubt as to our sovereignty over the Falkland Islands. We wish to see the economy expand and improve, so that the way of life of the Falkland islanders may continue and may improve. I have already indicated our view on sovereignty.
Baroness Vickers: My Lords, may I ask the noble Baroness the Minister when we will be able to see the draft constitution in this country? I understand that it is circulating in the Falklands. I think it would be helpful to the discussion if we could have a copy here.
Baroness Young: Yes, my Lords; I am glad to confirm to my noble friend that we expect to be able shortly to place in the Libraries of both Houses of Parliament copies of the draft constitutions for the Falkland Islands and for the Falkland Islands Dependencies.
Baroness Seear: My Lords, may we have some consideration as to when a Question is not a Question and turns into a debate?
Viscount Whitelaw: My Lords, I am very grateful to the noble Baroness the Leader of the Liberal Party. I think this is a matter which the House will very seriously have to consider. Patience is a great virtue, I know, but my patience this afternoon with this particular very important Question has probably gone beyond the bounds of what the House intended and what the Procedure Committee intended when it set down the time for Questions.

EEC: Payment of Superlevy
3.28 p.m.
Lord Wynford: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the latest information on the payment of superlevy by EEC member states, and by producers and dairies within those states, in excess of quota.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead): My Lords, the Commission collected from member states the amounts of supplementary levy which it estimated to be due in December by deducting them from the advances intended to cover expenditure in that month. As it became clear at the Agriculture Council in December that there were differences in the interpretation of the rules and uncertainty about the amount of levy, we and six other member states suspended collection of the levy. In the event only Germany has collected levy from producers. Greece and Italy do not have to collect levy until the end of the milk year.
In addition, the Commission has instituted legal procedures against the seven member states and has reduced the advances for their January expenditure on milk by 12½ per cent.
Lord Wynford: My Lords, I thank my noble friend the Minister for that reply because it clarifies a position which is very often obscure and also fluid. Can my noble friend confirm that if the Italian Government or any other government disregard the EEC rule, payments for over production of milk and its products must be made by individual producers and not by the governments themselves out of their own funds? Then the whole scheme would become unacceptable to us because there would not be parity on equal terms throughout the Community.
Lord Belstead: My Lords, my noble friend is almost right. There are two forms of quota: one is the form for which we opted, which is payments through dairies; and the other is payments by individual producers. Where my noble friend is absolutely right is that the payments must not be made by the national governments.
Lord John-Mackie: My Lords, may I ask the Minister a few questions on this point? Do farmers know their liabilities for this levy, and has any of it been collected? If it has been collected, what is happening to it? Is it being retained by the board, or being invested? What would happen if everybody took the attitude, "We are not going to pay unless you pay"? There would then be a bit of a deadlock, would there not?
Lord Belstead: My Lords, there has been no collection of levy in the United Kingdom because we were not prepared to see our producers disadvantaged compared with others. It is true that we now face a dilemma. It is possible that we can get out of it through further discussion within the Agriculture Council. What is absolutely certain is that, unless other member states change their attitude to the proper collection of the levy, the British Government's attitude will remain the same.
Viscount Hood: My Lords, is the Minister aware that the rigidity between the wholesale and direct sales quota is harmful to British producers—notably, cheese makers?
Lord Belstead: My Lords, I entirely agree with my noble friend. I am glad to say that the Commission

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have put forward a proposal which would have some beneficial effect at the Agriculture Council this week. I hope this is something that can be carried forward in a fruitful way.
Lord John-Mackie: My Lords, can the Minister answer my first question? Do farmers really know what their liability is, if the levy is collected?
Lord Belstead: My Lords, it is quite fair of the noble Lord to ask me that question, because it is the first question in all farmers' minds. The primary levy was notified to producers a long time ago but we are still in the final stages of appeals being examined by the tribunal, which now numbers 90 members who are trying to finish their work as swiftly as possible. What all farmers in Great Britain know is that there is a considerable undershoot for the present marketing year of some 2 per cent. and therefore there should be a good deal of flexibility for production for the rest of the marketing year up to April.
Lord Monk Bretton: My Lords, is my noble friend aware of press reports that the Commission is now offering concessions to member states to get levy paid? I gather that one of these concessions may well amount to absolving France from levy altogether in the first year. I wonder whether these concessions will, overall, be fair to United Kingdom producers who have met their target under the quota system at great cost to themselves.
Lord Belstead: My Lords, I am aware of those reports but the fact is that the Commission have put forward two proposals: one to prevent movement between direct sale and wholesale quotas, which was an aspect raised by my noble friend in a previous question, and the other to provide for re-allocation of unused quota between producers or between regions within countries—which would benefit producers who are above quota. Both those proposals, if they were to be agreed, would be of very great assistance to the United Kingdom.
Lord Wynford: My Lords, my noble friend Lord Hood has put his finger on a most iniquitous and desperately unfair situation as regards the direct sale and wholesale position. Does my noble friend the Minister not agree that in these circumstances, where a producer has both wholesale and direct sale quotas (and there are many of these—I believe 3,000 of them), the damaging inflexibility which exists will not be fairly and fully remedied unless there is backdating to 2nd April 1984? I ask what the Government are proposing to do to right this very grave wrong from its first inception.
Lord Belstead: My Lords, my noble friend is absolutely right about the difficulty that exists here. My right honourable friend the Minister has been pressing for more flexibility again and again at Agriculture Councils. I will certainly draw the attention of my right honourable friend to my noble friend's remarks, and I give my noble friend an assurance that we will continue to press this important matter.

Nationalised Industries: Employee Involvement
3.34 p.m.
Lord Grimond: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they intend to take to associate workers, in those industries which are to remain nationalised, with the ownership and management of such industries.
The Minister without Portfolio (Lord Young of Graffham): My Lords, the Government will continue to encourage employee involvement in the nationalised industries as elsewhere. We believe that good employee involvement practices most suited to each organisation are best introduced on a voluntary basis by the management of the particular organisation, in conjunction with the employees and their representatives.
Lord Grimond: My Lords, I thank the Minister for that mildly encouraging Answer. May I ask him to be a little more specific? Would it not be a good thing, bearing in mind that industrial relations have not always been spectacularly improved by the present state of nationalisation, to encourage workers' co-operatives in some parts of the nationalised industries? Might it not even be a good thing to suggest to the miners that if they believe they can keep certain mines open to advantage, then they might try their hand at one or two of those mines?
Lord Young of Graffham: My Lords, I am not too sure that the present state of the coal industry has much to do with the state of worker or management involvement in that industry—
Noble Lords: Oh!
Lord Young of Graffham:—in the form of co-operatives. Section 1 of the Employment Act 1982, which brought in the possibility of reporting on this position, does not apply to nationalised industries. At the moment, the Government are looking at the position to see how the initial reports which have been coming out for a year—reports by companies on involvement—are actually working through.
Lord Rochester: My Lords, does what the Minister has just said indicate that Her Majesty's Government take the view that there is as much—or more—need for action aimed at increasing employee involvement in its widest sense in the nationalised industries, and indeed in the public services, as in the private sector of industry?
Lord Young of Graffham: My Lords, the Government are always interested in improving employee involvement in the management of industries be they in the nationalised industry sector or in the private sector. At the present time, Section 1 of the 1982 Act excludes nationalised industries, as it excludes companies with fewer than 250 employees and other types of organisations, such as building

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societies and parts of the public services. The Government will of course look at and monitor carefully the reports coming from existing private sector companies—larger companies—and the results of those reports.
Lord Dean of Beswick: My Lords, can the Minister be more specific about whether the Government intend to allow any companies to remain nationalised, bearing in mind their present policy of disposing of very valuable, publicly-owned assets? If the Government continue with that policy at the same speed, this whole question may become totally irrelevant in the near future.
Lord Young of Graffham: My Lords, I am sure that your Lordships' House has taken note of the improvement in service and profits of such companies once forming nationalised industries but which have now moved back into the private sector.

Business
The Earl of Swinton: My Lords, it may be for the convenience of the House if I announce that dinner will be available at the usual time this evening. The Committee stage of the Prosecution of Offences Bill will be adjourned at approximately 7 p.m. for a short period. During this adjournment the Third Reading of the Elections (Northern Ireland) Bill will be taken.

Cinemas Bill [H.L.]
The Lord Chancellor (Lord Hailsham of Saint Marylebone): My Lords, I beg to introduce a Bill to consolidate the Cinematograph Acts 1909 to 1982 and certain related enactments, with an amendment to give effect to a recommendation of the Law Commission. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(The Lord Chancellor.)
On Question, Bill read a first time, and to be printed.

Prosecution of Offences Bill [H.L.]
3.38 p.m.
Baroness Trumpington: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Trumpington.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [The Crown Prosecution Service]:
The Minister of State, Home Office (Lord Elton)The Minister of State, Home Office (Lord Elton) moved Amendment No. 1:
Page 1, line 12. leave out from ("Service") to ("under") in line 13, and insert—
("(b) the Crown Prosecutors, designated under subsection (4) below, each of whom shall be the member of the Service responsible to the Director for supervising the operation of the Service in his area; and
(c) the other staff appointed by the Director").
The noble Lord said: I should like, if I may, to speak also to Amendments Nos. 4, 6 and 7:
Amendment No. 4: Page 2, line 7, leave out from ("Director") to ("designate") and insert ("shall divide England and Wales into areas and, for each of those areas.").
Amendment No. 6: Page 2, line 8, leave out ("as senior officer for that area") and insert ("for the purposes of this section").
Amendment No. 7: Page 2, line 9, at end insert—
("(4A) The Director may, from time to time, vary the division of England and Wales made for the purposes of subsection (4) above").
These amendments have been devised together to meet concern expressed by noble Lords on Second Reading about the drafting of Clause 1 of the Bill as introduced in your Lordships' House.
Lord Simon of Glaisdale: I wonder if I may interrupt the noble Lord to ask whether it would be possible to alert those who are interested in the debates in Committee of the grouping of amendments in advance.
Lord Elton: Yes, and I was under the impression that this had, as usual, and as a matter of courtesy, been done. But if the noble and learned Lord is not a party to that information, I will arrange for a copy of the groupings to be sent to him forthwith.
Lord Simon of Glaisdale: I am most grateful.
Lord Elton: I repeat that in this instance I am speaking to Government Amendments Nos. 1, 4, 6 and 7 and that I would expect the noble and learned Lord who has tabled Amendment No. 5 to find himself very quickly involved in these exchanges with that amendment. Having said that, and made those arrangements, I should like to say that these amendments in the Government's name have been tabled in answer to the real concern expressed by many of your Lordships at Second Reading. The concern was about more than drafting; it was about the whole question of whether a national service has to be an over-centralised service, and if so whether that was what your Lordships wanted.
The main effect of the amendments is to place the Director of Public Prosecutions under a duty to divide England and Wales into areas; to oblige him to appoint a Crown prosecutor for each such area; and to make it clear on the face of the Bill that the Crown prosecutor will be responsible to the Director for the operation of the Crown prosecution service in his area. I know that that is of particular interest to my noble friend Lady Faithfull who also has amendments tabled with that end in view.
The fourth amendment, which gives the Director power to alter the initial division of the country into areas, is designed to enable him to take account of

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changes in local circumstances or in the needs of the service. The first amendment specifies, by amending lines 12 and 13 of Clause 1, that the Director will designate Crown prosecutors to be responsible to him for supervising the operation of the Crown prosecution service in his area. In this way, the status of the Crown prosecutor, as distinct from that of other members of the service, is established on the face of the Bill.
The second amendment, on page 2, at line 7, replaces the permissive provision that would have allowed the Director to divide the country into areas with a duty so to do. Taken together with the third amendment, to line 8 of page 2, it ensures that the Director is also under a duty to designate a Crown prosecutor for each area. These processes are also on the face of the Bill. The fourth amendment, as I have already said, allows the process to be adjusted to changing circumstances.
I hope your Lordships will appreciate the spirit in which these amendments have been brought forward. We have persistently stressed our commitment to ensuring that the new service, although organised on a unified national basis, should not become over-centralised. I think in a sense it is almost misleading to talk about a national service if by that is meant some centralised body where decisions are constantly referred up the line, and inevitably to London. That is not at all what we have in mind. There will be local offices in the new service, based on areas which will he aligned with police force areas. Subject to the recommendations of the management consultants (who I mentioned at Second Reading were advising us on the local organisation of the service) areas for the purposes of Clause 1 of the Bill will correspond to police force areas, though possibly combining some smaller areas.
Of course, the mere existence of local offices would not alone be enough to ensure efficient operation of the new service if all the time the Director's central office were insisting on cases being referred up to it. That would add to delay and expense and would be wholly undesirable. There will of course continue to be particular cases or classes of case which will need the personal involvement of the Director. The noble and learned Lord, Lord Elwyn-Jones, recognised this in his speech at Second Reading. But that is a very different matter from routine referral of the general run of cases.
Since the Second Reading debate my right honourable friend the Attorney-General has published a White Paper which I think we shall all find very helpful in considering how the new service is to work. It deals with the distribution of functions between local offices and the Director's office. I took the liberty of sending a copy of the White Paper to all noble Lords and noble Baronesses who spoke in the Second Reading debate—I hope they received them—and I know copies have been placed in the Library. As the White Paper shows, it is proposed when the new service is established that there will be not less delegation of decision taking to the local level, but more. Lest there be any lingering doubts over the import of the White Paper, which I would suggest is as clear a statement of policy as a Minister responsible for a service could be expected to give, let me add two further points.
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3.45 p.m.
As part of the planning for the introduction of the new service the Director of Public Prosecutions has already begun to leave to local prosecuting solicitors' departments (where they exist) certain cases among those listed in Annex A to the White Paper. The annex illustrates the more common offences which will generally be handled in future by the Crown prosecutor without reference to headquarters. Cases have been delegated in this way in virtually all the categories listed in that annex. They include all the more serious sexual offences and offences against the person. Clearly, the Director is at present limited in the degree to which he may delegate by the current provisions of the Prosecution of Offences Regulations, which mean that the conduct of the cases can be delegated to prosecuting solicitors' departments only after the Director's consent, if required, has been given; or the case has been reported to him if it falls within the categories of cases which are required to be reported. But here, too, the Director is anxious to make progress in advance of the setting up of the new service, not least to free his staff for the strategic tasks of preparing for its introduction. The Attorney-General is therefore proposing to lay an amendment to the regulations to give greater flexibility in allowing cases to be left at the local level in the run up to the introduction of the new service.
The second point I promised to make is this. The brief for the management consultants who will advise on the staffing levels and working procedures of the new service reflects the Government's intentions as to delegation of decision-taking to the local level as well. It necessarily follows that the nature of the case-working function at the headquarters level is assumed to be the reduced one envisaged under our proposals for the purposes of considering the appropriate staffing levels. These will be set accordingly. Thus, the headquarters office of the new service will simply not have sufficient staff to intervene in a wider range of cases than is intended. Practical constraints, as well as our decisions of policy, will therefore dictate that decisions in general will be taken at the local level.
I hope that I shall be forgiven for what may appear to be digressions into other areas of policy or something approaching a mini-Second Reading speech; but this is a response to a Second Reading debate of some importance and the Committee will have seen the extent to which Government policy now matches the concern which has been shown. I hope that the Committee will find that is of use.
I know that a number of speakers were deeply and genuinely worried that what we were setting up might turn out to be a vast, impersonal bureaucratic machine with every decision of consequence taken at the top and every process therefore prolonged. We believe that prosecutors should be aware of and sensitive to local circumstances as the Director himself cannot be. I hope that my right honourable friend's White Paper, coupled with the information that I have given about changes in current practice and the four specific amendments I now propose, will serve to show that we not only intend to have all appropriate decisions devolved to local level but that that is the character of the service that eventually must emerge. I beg to move.
Lord Elwyn-Jones: We are grateful to the noble Lord for having so carefully and in such detail paid due regard to the anxieties and points raised at Second Reading on the overall picture of the future set-up. We shall obviously have to consider some of the matters to which the noble Lord referred in some detail; but it is right that he should have put us in the picture at this stage and I make no complaint that his speech was something in the way of a Second Reading submission. We are grateful to him for having given us advance notice of what is in store in future.
With regard to what is presently proposed in these amendments, I am not sure that Amendment No. 5 sleeps happily in the same bed as the others, but I can come to it as it has been done in this way.
Amendment No. 5: Page 2, line 7, leave out ("may") and insert ("shall").
It is not a major point, but it is, nevertheless, a point of some importance. So far as Amendments Nos. 1, 4, 6 and 7 are concerned, some of what they contain is a response to points that noble Lords on this side of the Committee raised during the Second Reading debate. Nevertheless, a major area of uncertainty remains: namely, what are the geographical areas which are likely to be included in the areas of England and Wales divided for the purposes of this measure? Amendment No. 4 does not make that clear. It provides that:
"The Director shall divide England and Wales into areas",
and so on, but there is no specification as to what those areas should be.
Lord Elton: Will the noble and learned Lord advise me how he would like me to deal with this? I can give him an answer to that point straightaway, but perhaps he would prefer me not to keep bobbing up and down but to deal with everything at once at the end. I am in his hands.
Lord Elwyn-Jones: I think it would be convenient if the noble Lord were to make a general response at the end, attractive as it is to see him bobbing up and down like this or like that.
As I was saying when I was so helpfully interrupted, what still remains unresolved is the geographical expanse of the areas which it is contemplated should be created. One of the purposes of the whole of this legislative scheme is that the conduct of prosecutions should be taken out of the hands of the police. The size of the areas is relevant to that. If the areas coincide with the existing police force areas and the Crown prosecutors would therefore correspond largely with the senior prosecuting solicitors now existing in each police area, the fear is that there will be a greater risk that the new service will only be a slightly revised version of the old, and that the fresh start that it is hoped will result from these new measures will not occur.
If the areas are too small—and that is the position today in regard to several of the existing police areas—the necessity for consistency to be established in policy and practice in relation to prosecutions may not arise. There will be separate policies, and the separation of practices which exist now will be perpetuated. Accordingly, therefore, I hope that in his reply the noble Lord will be more precise than the amendments at present seem to establish.
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If we turn to Amendment No. 5, Clause 1(4) at present provides that:
"The Director may, for any area specified by him, designate a prosecuting officer as senior officer for that area and any person so designated shall be known as a Crown Prosecutor".
But surely the existence of a Crown prosecutor for each area is of the very essence of the set-up. We suggest that it should be mandatory on the part of the Director and that it should not merely be a case where the need to do that is a matter for his discretion.
Lord Simon of Glaisdale: I wonder whether the noble and learned Lord, Lord Elwyn-Jones, would help me, because I have only just seen the grouping, for which I am very grateful. Amendment No. 4, put down by the noble Lord, Lord Elton, is mandatory. Amendment No. 5, which apparently was put down later, is also mandatory. I cannot see the relationship between those two.
Lord Elwyn-Jones: If I may say so to the noble and learned Lord this is one of the matters that I have been endeavouring to point out in my observations. Amendment No. 4 requires the division of England and Wales into areas. That is mandatory. But there has not yet been any amendment of subsection (4), which merely empowers the Director. I should not be surprised if the noble Lord in replying to me shortly may not be disposed to agree with my submission on this matter. It is certainly extraordinarily inconsistent if there is merely a power given in subsection (4) and not a positive duty imposed.
Lord Simon of Glaisdale: I do not think I could have made my point clear. It seems to me that both amendments refer to exactly the same line—line 7.
Lord Elton: The noble and learned Lord has from the Cross-Benches made an absolutely accurate assessment to the noble and learned Lord on the Opposition Front Bench. If I may deal with that point first, my amendment, Government Amendment No. 4, strikes out the words in line 7 from "Director" to "designate" and inserts the words:
"shall divide England and Wales into areas and, for each of those areas",
and the word "shall" naturally is implied in the construction; the imperative applies to the whole of the subsection. The noble and learned Lord, Lord Elwyn-Jones, and I are for once, and I hope not for the last time this afternoon, entirely at one.
As to the extent of the areas, which concerns the noble and learned Lord, Lord Elwyn-Jones, the intention is, subject to the advice which we shall have from consultants about the best way to operate this in administrative terms, that the areas shall coincide with existing police force areas. There may be cases where smaller police force areas could, with advantage, be amalgamated. I cannot give a hard and fast undertaking that they will be the same, but they will be approximately the same.
I take the noble and learned Lord's point that there may be some sort of impetus for a cosy relationship to carry on, as it were, after the change of regime. I do not honestly think that that will persist very long when the appointments to the service are made on a national

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and not an area basis, and when guidelines for the service are promulgated by the Director of Public Prosecutions. It is a point that I shall certainly bear in mind, and I shall see that those considering this issue will bear it in mind also. I am not in a position to say anything stronger than that. But what I hope we have established is that we now have not only the intention but the machinery to establish a prosecution service which is national in extent and in overall policy but which genuinely takes sensitive decisions at the proper local level.
Lord Elwyn-Jones: If the noble Lord will allow me, may I ask him whether the guidelines will be brought before the House for consideration? How will the matter be dealt with procedurally, so to speak? It seems to be of considerable importance.
Lord Elton: I am not sure to which guidelines the noble and learned Lord is referring. He has an amendment down to one set of guidelines. Those are the guidelines which he seeks to incorporate in the annual report in a later amendment. But they do not seem to me to bite on the issue with which he is concerned. I think that what he is concerned with is the decision the Government will take about the extent of individual areas before they are imposed. I shall have to take advice about how that will be tackled.
4 p.m.
Lord Wigoder: As one who has always believed that the service should be run as a national system without it being an over-centralised system, may I suggest that the combined effect of the recent White Paper and the noble Lord's amendments appears to provide a very helpful and constructive solution. I very much prefer his proposed solution to the alternatives that are in some respects indicated by the amendments to which we shall be coming shortly, in the name of the noble Baroness, Lady Faithfull.
The only matter I should like to raise with the noble Lord the Minister at this stage is this. He is of course aware of the existence of a body called the Prosecuting Solicitors' Society of England and Wales. They have for some years now been making the most helpful, moderate and restrained suggestions as to precisely how this service should be established. They have been putting forward detailed alternatives to the existing Bill which I have in my hand. I did not think it right in the circumstances to table those as amendments, but so far as I can see they are in substance met by the Minister's proposals which he has now put before the Committee. I must ask him to confirm, if he can, that he has been in touch with that society and that they are on the whole reasonably content with these proposals for a modified form of decentralisation which are now before the Committee.
Lord Rawlinson of Ewell: Owing to other duties I did not have the opportunity to speak in the Second Reading debate upon this Bill. I want to say only that I agree with the noble Lord who has just spoken. Having read what was said by noble Lords in that debate, having seen the Attorney-General's White Paper and having heard my noble friend the Minister,
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the noble Lord, Lord Elton, today, personally I am wholly satisfied with the proposals which are now presented. This is the kind of service that personally I had always wanted to see. If I were in the position that I held and which the noble and learned Lord, Lord Elwyn-Jones, before me, held, I would indeed be very content with that which is proposed.
Obviously it is sensible that the police areas should be founded upon those areas. As my noble friend said, of course it is quite right to have certain adjustments which may become administratively more sensible. But I think the view that they should be based upon those areas is right. I do not share the fears of the noble and learned Lord, Lord Elwyn-Jones, that the situation might be thought to be rather the same as it was before, because I think the whole concept of the system is so very different. I believe that administratively it is only sensible that they should be presently attached to the areas of the various police areas.
Having read a lot of what was said in the debate of 29th November, I should have thought that the White Paper which the Attorney-General has provided for us really satisfies the anxieties which have been expressed. It seems to me to be an extremely sensible division—just the kind that one would want to have if one had the responsibility of the Attorney-General.
The only point I would make to my noble friend is that one of the strange anomalies is that the Director of Public Prosecutions is appointed by the Home Secretary, not by the Attorney-General. The Attorney-General is in fact answerable for the duties and the acts of the Director of Public Prosecutions, who is appointed by the Home Secretary. I have always thought that this was a considerable nonsense. I suppose that some people who have said that it was too centralised and too Government controlled might think therefore it would be more sensible if the Director of Public Prosecutions came under and was appointed by the Attorney-General, who has duties which are outside those of a Minister and which are the quasi-judicial duties which are traditionally exercised by a Law Officer of the Crown.
Lord Mishcon: I am so glad that I yielded to the noble Lord, Lord Wigoder, in order that he could speak before me, because it was so much better that an eminent member of the Bar paid the compliment that I was going to pay to the Prosecuting Solicitors' Society. I am deeply grateful to him. I share all that he has said.
I hope that in regard to the vital matter of areas and the setting-up of this service the noble Lord the Minister will be able to confirm that consultations will take place with the Bar, the Law Society and the Prosecuting Solicitors' Society. I think they have much to contribute. I regard this question of the areas that are chosen to be so vital that I was a little unhappy to gather—though the noble Lord the Minister will correct me if I am wrong—that this is a matter which is not to come before Parliament. It is vital, as my noble and learned friend Lord Elwyn-Jones brought out so clearly, that this new service should not be deemed to be really a reincarnation of the old service. If the areas coincide with the police areas, merely as a matter of principle, then, without any doubt at all, this

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concept will be in everybody's mind, especially—and here I should like to raise a fresh point, if I may, on the Minister's amendments—if the status of the prosecutor is not made absolutely clear, and with that status being certainly not below that of the chief constable of the area. I think that is a most important point.
I hope that if management consultants are to advise the Government on the question of the personnel who are to form this new service, they will be able to express a view and possibly advise as to the convenience of the areas, bearing in mind the principle that I believe all of us want to keep clear in our minds; namely, that this is to be a new service, not just as a novelty but as a new concept, separating quite definitely the police who are inquiring into crime from the prosecution of crime.
Lord Renton: I listened with interest to what the noble Lord, Lord Mishcon, has just said, and I wonder whether I may ask him this. If the present areas are so obviously right and convenient, would he suggest that they should be changed merely in order that the new system may appear to be a different one?
Lord Mishcon: I rise to answer that and to treat with respect, as the Chamber always does, anything that the noble Lord, Lord Renton, says, having regard to his experience. If there is a severe disadvantage, and it is shown to be such, if the police areas are not made the same areas, then obviously I should have to yield in my principle. But I would then say that it must be made abundantly clear—and I say this in any event—that the prosecutor in an area has equal status, at the very very least, with the chief constable of the area.
Lord Simon of Glaisdale: So far as areas are concerned, may I suggest that the Scottish system should be looked at? I think there is much evidence that that works very well and might well provide a guidance in this country. So far as the wider question is concerned, like the noble Lords, Lord Wigoder and Lord Hutchinson, I was convinced on balance by the October 1983 White Paper that the system should be a national one, though I shared misgivings as to whether that might not involve us in a great centralised bureaucracy. But, like the noble and learned Lord, Lord Rawlinson, having seen the White Paper of last December, I have had all my misgivings assuaged. I think that though one can argue about detail, the Government now have the matter substantially right.
On Second Reading I mentioned three cases where the decision had to be made centrally with accountability to Parliament. One was the decision of Sir Hartley Shawcross not to prosecute the striking dockers after the war. Another was the Manchester flower sellers. The third was the Russian athlete who yielded to a collectivist impulse in a London store. The noble Lord, Lord Elystan-Morgan, in what was, I hope I may say, as I am so much older than he is, an admirable winding up speech, said that those examples and similar examples did not necessarily point to a centralised system. That was absolutely true. One could devise a system whereby those sorts of
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decisions did come to the centre to be accountable to Parliament. But that would be far more complicated than the system that has now been adopted. I venture to think that a system with the Attorney and the Director at the top and the deputy down below operating locally is far more likely to be satisfactory and does really meet all the misgivings that were expressed. I welcome very much what we now have.
Lord Campbell of Alloway: I shall detain your Lordships for only one moment. A very important point has been made by my noble and learned friend Lord Rawlinson. It is of such importance that it should be underlined. It is that the Director ought to be appointed by the Attorney and not by the Home Secretary. It removes the political aspect and it puts the appointment within the remit of the Attorney, whose duties in this regard are beyond politics. That is wholly desirable. As I am addressing your Lordships, may I say that I, along with other noble Lords, wholly welcome the Bill? I agree wholeheartedly with what has been said. However, I very much doubt whether the fear of reincarnation which haunts the noble Lord, Lord Mishcon, will materialise.
Lord Irving of Dartford: As is customary, I should like to make a declaration of interest. I have an association with NALGO. Of its 800,000 members, half a million are employed in local government in professional, technical and clerical grades. And a large number of them are actually employed in prosecuting solicitors' departments outside London. They range from prosecuting solicitors themselves right down to the lower non-manual grades. Indeed, 6,000 of them are employed in 19 separate police civilian staff branches and a substantial further number are employed in related activities in county councils. It can therefore be seen that members of NALGO have a considerable interest in the principles of the Bill and a personal interest as those who must work in the new system and who will be affected by the changes.
I should like first to welcome the noble Lord's amendment as a clear recognition of the independence of the local service under its own Crown prosecutor, although centralised, of course, under the DPP. In practice, each Crown prosecutor will work in one geographical area and is bound to form working relationships with the local police and court officers, irrespective of the identities of the respective employers or the sources of their respective remuneration. It would be very wise, so far as we are concerned, to have the present police areas adopted. We welcome what the noble Lord has said about the use of police areas. We would like to know a little more about the detail. Perhaps, if the noble Lord cannot give a further assurance about the details, we shall have to come hack to the matter at another stage.
4.15 p.m.
I should like to probe a related matter. NALGO feels that the system should be a local one controlled by local prosecuting authorities covering, as I say, the same geographical areas as police authorities. The members of the local prosecuting authorities would be elected and/or appointed in the same manner as members of police authorities. But to protect the

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independence of the prosecuting authorities from the police, and to avoid the suspicion by the public of undue interference by one authority with the other at a political level, members of the local prosecuting authority would not be entitled to be members of the police authority for the same area and vice versa. In the case of county authorities, such a local system would mean in effect the creation of a prosecution committee of county councillors who would not be members of the police authority. In the case of combined areas, the prosecuting authority would be constituted in the same way as a combined police authority but, again, with no members common to both.
We say this for the reason expressed by my noble and learned friend Lord Elwyn-Jones, or it may have been my noble friend Lord Mishcon. It is important that the local Crown prosecutor should have comparable status and proper balance with the chief constable in his area. This is one way, we believe, of achieving objectivity and independence in the service. NALGO believes that such a local system would strike the right balance between the disadvantages of a national or regional system and suspicion of excessive connection between the police and prosecuting service that might otherwise arise from a combined police and prosecuting authority as recommended by the Royal Commission. At the same time, such a local system would have a proper and desirable degree of local accountability to elected representatives of the local community.
Baroness Macleod of Borve: Before my noble friend answers, I should like to take up one or two of the matters that have been raised. I may have misheard the noble Lord, Lord Irving, but he seemed to imply—I hope I am wrong—that the prosecuting authority, as he called it, would be elected. Surely it would be appointed, not elected, by the local authorities. I should like very much to know whether or not that is correct. It alters the whole situation.
I should also like to say how much I welcome all these amendments, including Amendment No. 5. I am certain that that is the right way to proceed. It is also surely the case that the authority areas should be co-terminous with police areas. That would be a practical way of appointing them. The Magistrates' Association and also the probation officers with whom I have been in contact also warmly welcome the Bill. I wish to say that in your Lordships' House. They have very few grumbles about it. As we proceed, we have, of course, many amendments to discuss. These first amendments, however, should be warmly welcomed.
Lord Irving of Dartford: Before the noble Baroness sits down, I can perhaps settle the question that she raised. I said "elected or appointed". I hope therefore that I have covered the provision. The purpose is to have comparability with the police authority.
Baroness Faithfull: I am in some difficulty because Amendments Nos. 1, 4, 6 and 7, which the Minister has moved or spoken to, have preceded my Amendments Nos. 2 and 3 and subsequent amendments which are consequential except for two amendments concerning juveniles
Amendment No. 2: Page line 13, at end insert—
("; and
(c) the staff appointed by the councils of counties and metropolitan districts under this Act.").
Amendment No. 3: Page 2, line 5, leave out subsections (3) and (4) and insert—
("(3) The council of a metropolitan district specified by order in respect of the area to be specified in the order made by the Attorney General for the purposes of this section and the council of the county in respect of the area of that county shall appoint such staff for the Service as, with the approval of the Attorney General as to numbers, remuneration and other terms and conditions of service, they consider necessary for the discharge of the functions of the Crown Prosecution Service within their areas, and may designate any member of the Service who is a barrister or solicitor as a prosecuting officer, and may designate a prosecuting officer as senior officer for that area and any person so designated shall be known as a Crown Prosecutor.
(4) Every Crown Prosecutor and every prosecuting officer who is appointed and designated under subsection (3) of this section shall hold office during the pleasure of the Director.").
Despite the fact, having heard the views of the noble Lord, Lord Wigoder, of the noble and learned Lord, Lord Simon, and of my noble and learned friend Lord Rawlinson, that I shall probably be in a minority, I nevertheless feel that I should put another point of view. I appreciate that my noble friend the Minister has met some of the complaints and difficulties of a decentralised service. I should, however, like to put the view of many people in this country who are calling for a locally-directed service. I am moving—at least, I should have been moving—that for England and Wales the recommended prosecution service, for which there is, of course, universal support, should be a locally-based and locally-directed service, and not a centrally-directed service as laid down in this Bill.
I appreciate from what has already been said and what I have read in the White Papers that there are powerful arguments on both sides. The Royal Commission's report on the subject, published in 1981, recommended, as we all know, the setting up of a prosecution service independent of the police; but the Royal Commission recommended the formation of a locally-based service and it stated that a centrally-directed national prosecution service is (and I quote) "neither desirable nor necessary".
As your Lordships well know, on the Royal Commission there were 11 members who were connected with the law in various different spheres, as well as other people such as trades union representatives and the police. Her Majesty's Government questioned the formation of a locally-directed service and, as we all know, set up the independent departmental working party of 16 who included seven Home Office staff, the Director of Public Prosecutions, two from the Lord Chancellor's department and two from the Law Officer's department. Indeed, they were all centrally-based civil servants. There was no judge on the committee, no clerk to the justices, and no prosecuting or defence solicitors in criminal law.
The report recommended against the Royal Commission. May we look briefly at some of the reasons why the committee disagreed with the Royal Commission and recommended against a locally-based and locally-directed prosecution service? First of all, there were the risks of political influence. Does this not denote a lack of confidence in local government? Can it not be argued that at some time this might equally apply to a centrally-based service? Our Civil

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Service is second to none in the world in its ability and integrity, but there can be, and have been, lapses. Furthermore, will not the Attorney-General be in an even more difficult position than he is at present? He wears two hats, that of an independent Law Officer and that of a politician. May I pose the hypothetical suggestion: in the future—certainly not in the present—might a future Attorney-General veer towards wearing his political hat?
Secondly, it is said that a centrally-based service would provide consistency throughout the country. Whether the service is centrally or locally based, there are to be guidelines, and in the second White Paper these are laid out, or at least guidance is given as to what these might be. The local Crown prosecutor will deal with a number of cases on his own responsibility, but in cases specified in the White Paper there will have to be, even now, despite what my noble friend the Minister has said, referral to the headquarters. Under the circumstances, will not the management tend to be in the hands of professional administrators rather than solicitors?
The centrally-based service, through the Director of Public Prosecutions and the Attorney-General, would be directly responsible to Parliament. But is there not a discrepancy here? Cases taken locally, as I understand it, will not be the responsibility of the Director of Public Prosecutions and the Attorney-General. If things go wrong, the buck rests at the door of the local Crown prosecutor and his staff: and where do we stand with accountability? Dare I suggest that, human nature being what it is, the promotion of interests will tend to be not with the service in the country but rather at the centre? This, I agree, may be less of a problem now that there is to be some form of decentralisation.
Is it a feasibility for the Director of Public Prosecutions to intervene with the local Crown prosecutor and take over criminal proceedings which he has not initially instituted? One reels when one thinks of the magnitude of the task of the Director of Public Prosecution. There are some two-and-a-quarter million cases before the magistrates' courts throughout England and Wales, and more than 80,000 in the Crown Courts. These figures were given at the police conference held—
Lord Elton: Will my noble friend give way? It may add to the speed of our proceedings, and certainly will help me in conducting this afternoon's debate. I am not clear in my mind whether my noble friend is speaking only against the amendments which I have tabled, and which your Lordships broadly favour, or whether she is speaking also in favour of her own amendments. I need to know this in order to know whether, in my reply, I should rely on the material which I have against her amendments, which I regard as pretty damaging, or simply on responding in a constructive way to the things she said about mine.
Baroness Faithfull: I am very grateful to my noble friend the Minister because I, too, was in great trouble. If I did not speak in this debate, and if the Committee accepted his amendments, I should not have been able to move my two amendments, as I saw it. Therefore,
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I am doing a double hop: I am speaking against his amendments and for my amendments. I am sorry if I have crossed the rules of the Committee in doing this, but I could see no other way of dealing with the matter. It seems to me that, in a democratic society and in a Committee such as your Lordships', an opposite point of view should be heard.
Lord Elton: If my noble friend will permit me to help her, in what I must say is a pretty quixotic gesture, I think she is speaking to Amendments Nos. 2, 3, 8, 10, 11 and 12, and possibly 37 and 40.
Baroness Faithfull: Yes. I am speaking to Nos. 2 and 3; the rest are consequential. They are consequential amendments, as I understand it.
I realise that if there is to be a decentralised service the problem of the number of cases that I was talking about will not be such a great one. Nevertheless, perhaps it is right that attention should be drawn to these figures. Would it not be feasible to establish a locally-based Crown prosecution service, organised constitutionally in the same fundamental way as the coroner service, which is locally-based but amenable to the Crown; the registration service, which submits reports to the Registrar-General and the Department of Health and Social Security; and the rent officer service? In these three services the principal officers are appointed and paid for by the local authority, which provides the accommodation. The principal officers, however, are not employees of the local authority, but hold independent office. They may only be dismissed by, or with the consent of, central government, usually in consultation with local government. Central government lay down the terms of their appointment and their numbers, although the local authority determines their salary levels. In this way, these imporant office holders are seen to be totally independent of central and local political control.
There is a case, as we all agree, for the setting up of a prosecution service independent of the police. There is a case for an independent prosecutor with a freestanding responsibility equal to that of the Chief Constable. There is a case for guidelines. But is there a case for a massive new centralised bureaucracy even though there are to be area offices? Would it not be wiser to approach the future in an evolutionary rather than a revolutionary way which will be costly? Should we not build and improve on the best of what we have rather than construct a new and untried system which will be bureaucratic in its approach and liable to be at risk in the future from precisely the political influences it seeks to avert?
4.30 p.m.
Lord Elton: My noble friend has set me a somewhat formidable task because I have to satisfy her without rendering the rest of your Lordships impatient. I say that in no dismissive sense. But in a way I am presented with the occasion for yet a third Second Reading speech. I shall try to avoid that and to distil what I have written before me before I turn to the other points which your Lordships have made, because we need to clear this issue out of the way.
My noble friend summarised her case at the conclusion of her remarks by saying that what we

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proposed was likely to become a bureaucratic machine of great proportions and that it was liable to political influence. As to the question of the bureaucratic tendencies of the machine, I think that my noble friend ought to be satisfied with what I said at the beginning of this debate if she reads it again tomorrow morning in the light of what she has subsequently said. I do think that we have dealt with that issue effectively.
As to the question of political influence, I have to ask my noble friend whether her aspersions—if that is the right word—cast in a purely hypothetical way against the Attorney-General who is a Law Officer of the Crown (and I am referring to when she said that he might one day become more political) are any less reprehensible than the aspersions which by inference I suppose we may be said to cast against local government by seeking to take control of this machine away from local authorities. Recent history in the current coal strike suggests to me that we have perhaps fractionally more basis for our anxiety than does my noble friend. I urge her to read the cuttings of the local papers.
My noble friend has the support of the noble Lord, Lord Irving of Dartford, and I attribute to him the importance of somebody who speaks with the influence and with the connections which he recited. But I do not think that I can in all honesty, in the light of what the rest of your Lordships have said in welcoming my amendments, go through my noble friend's amendment in detail. It would be necessary for me to do that in order to deal fully with her case, and the reason for that is as follows. During a Committee stage one normally distinguishes between amendments which are directed to the detail of the Bill and its detailed effect, which one deals with in detail, and amendments which may be widely, loosely and erroneously drafted, but in which the general principle is clear.
The general principle is one which I think we dealt with exhaustively on Second Reading, in the White Paper and in the speeches which we have already had. Therefore, in order to see what my noble friend is driving at I must read the amendments in detail to see what exactly is the chain of responsibility which is in her mind and those of her advisers, how exactly will the organisation work and how effective will it be. That would take me some time but I think that I can draw to my noble friend's attention, perhaps in the corridors, a number of areas where there are really very disturbing discontinuities in these responsibilities and parts of the machine that would not work. As that is the only way in which to discover what is in my noble friend's mind, I cannot dismiss them as merely being drafting errors which could he helpfully disposed of from the Government Box.
I think that I have spent as long as I should in dealing with my noble friend's amendments and if your Lordships want to return to the matter and take up the issue it is open to your Lordships to do so, because this is the Committee stage. We have spent some time on the matter, but on the other hand it should be possible for us to dispose of a large number of amendments.
I turn now to the other points which were raised. It is snowing outside and it appears to be snowing at the
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Box as well, but I shall do my best to see my way through it. The noble Lord, Lord Wigoder, properly and courteously—as did the noble Lord, Lord Mishcon—drew attention to the importance and experience of the Prosecuting Solicitors' Society. I am happy to say that they have been consulted in this process and I understand that they are content with what is proposed in the amendments which are still before your Lordships.
My noble and learned friend Lord Rawlinson and my noble friend Lord Campbell of Alloway were concerned that the Director of Public Prosecutions should not be appointed by the Home Secretary. I am very happy to draw their attention to Clause 2 of the Bill which provides that he shall be appointed by the Attorney-General. Therefore, I think that that should give them every reassurance they want. I should like in passing to thank them for their helpful supporting remarks.
The question of the areas to be allotted to Crown prosecutors is one which exercised your Lordships, especially noble Lords opposite but also other noble Lords including the noble and learned Lord, Lord Simon of Glaisdale. I honestly think that in practical terms one cannot think of this as a parliamentary exercise like the Boundary Commission reporting to Parliament; it is an administrative exercise, but I recognise your Lordships' interest. I can certainly undertake that what your Lordships have said and the example of the Scottish areas will be put into the minds of those who advise us for consideration in the context of the record of this debate. I would add in passing that the areas attributed to the procurator fiscal are rather smaller than those attributed to chief constables in this country. However, those and other matters are germane to the studies of those who advise us.
I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for his helpful remarks in expressing what I think is the general feeling that the Government have taken large and effective steps to meet the concerns which your Lordships had expressed at Second Reading. As to the status of the Crown prosecutor, I ought to say to the noble Lord, Lord Irving of Dartford, as well as to the noble Lord, Lord Mishcon, that that is of course achieved by his independence. He is an independent authority who cannot be directed by anybody at the local level. The chief constable comes under the police authority, but the police authority cannot legally give him directions on operational matters. So we expect him to have at least an equal status in that respect.
I have delved through the snowdrift and I think that I have extracted the principal points that your Lordships have put before me. If I have left anything out I shall be very happy to be put right and I shall try to correct the error. Otherwise, I suggest that your Lordships may now be content to move on to the next batch of amendments, which I presume will not be those of my noble friend unless your Lordships so determine.
Baroness Faithfull: Before my noble friend sits down, I wonder whether he could help me on a matter of procedure. I imagine that I shall have to move my

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amendments and then withdraw them so that we can have conversations in the corridor?
Lord Elton: I can undertake to have a conversation in the corridor—in any corridor—with my noble friend at any time; in fact I seem to have been doing that for a number of years.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): Does the noble Baroness wish to move Amendment No. 2?
Baroness Faithfull: I wish to move Amendment No. 2, and, with your Lordships' permission, I shall then withdraw it.
[Printed earlier: col. 1090.]
At this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: The next amendment is Amendment No. 3. If this amendment were to be agreed to I would not be able to call Amendments Nos. 4 to 7 inclusive.
(Amendment No. 3 not moved.)
Lord Elton Lord Elton moved Amendment No. 4:
[Printed earlier: col. 1080.]
On Question, amendment agreed to.
(Amendment No. 5 not moved.)
Lord Elton Lord Elton moved Amendment No. 6:
[Printed earlier: col 1080.]
On Question, amendment agreed to.
Lord Elton Lord Elton moved Amendment No. 7:
[Printed earlier: col. 1080.]
The noble Lord said: I beg to move. As this amendment is the end of the group, I should also like to thank other noble Lords who have made helpful and supportive remarks, if I have not already done so, although I have referred to them in other contexts.
On Question, amendment agreed to.
[Amendment No. 8 not moved.]
Baroness Faithfull Baroness Faithfull moved Amendment No. 9:
Page 2, line 14, at end insert—
("(5A) The Director may designate any member of the Service who is a barrister or a solicitor as a reporter.
(5B) Without prejudice to any functions which may have been assigned to him in his capacity as a member of the Service, every reporter shall have all the powers of the Director as to the institution and conduct of proceedings in respect of persons under 17 years of age but shall exercise these powers under the direction of
the Director".)
The noble Baroness said: This amendment provides for the appointment of separate personnel within the Crown prosecution service to deal with the cases of juveniles. Perhaps I may deal first with the appointment of separate personnel and deal later with the work "reporter". I submit to your Lordships that the ethos and practice of dealing with juveniles is
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different from that of dealing with adults. In the case of juveniles both justice and welfare are involved. Section 44 of the Children and Young Persons Act 1933 lays down:
"Every court in dealing with a child or young person who is brought before it, either … as an offender or otherwise, shall have regard to the welfare of the child or young person".
Similarly, the Magistrates' Courts Act 1980 expresses the underlying philosophy of the juvenile court system in Section 24—namely, that persons under the age of 17 should be tried summarily and the court must have regard to the welfare of the child. Thus, children and young persons are dealt with separately from adults. They are dealt with by a separate juvenile court. At the moment the police are developing their juvenile bureaux and deal with juveniles differently from their adult clientele. Thus it would seem that those in the Crown prosecution service should be those with an interest in juveniles, those who have a knowledge of the services available to the court for juveniles and those with a belief in the ethos of justice and welfare.
I come to the word "reporter". This word is used in the juvenile justice system in Scotland and denotes the person appointed to service the panels. These panels are difficult to explain on the English scene, but they approximate, although not entirely, to our magistrates at the juvenile court. These panels are serviced by a reporter who has special training and experience in dealing with juveniles. Sadly, in England and Wales the Scottish system has not been adopted. Just lately there have been several working parties which have produced reports and which have instead recommended that the welfare side of juvenile work should be referred to family courts, as was recommended in the Finer Committee report.
It was difficult to find a word instead of "reporter", and perhaps some noble Lords may be able to think of a better word. But throughout many of the police forces, throughout the social service and throughout the education service it is increasingly recognised that every effort needs to be made to prevent and deflect children from entering the penal system. But that denotes an acknowledged policy on the part of the police, other services and not least the prosecution service. I beg to move.
4.45 p.m.
Lord Mishcon: The Committee will not be surprised to know that from these Benches we ardently support the spirit behind the amendment of the noble Baroness, which she has moved with her usual eloquence. The Committee will not be surprised at this in view of the speech that was made by my noble and learned friend Lord Elwyn-Jones on Second Reading when he again referred to this principle with favour. There is no doubt at all that juvenile cases. both in regard to their consideration and as to whether a prosecution should be brought and how they should be dealt with, are a very specialised matter: and they should be a very specialised matter, and should not be subject to the general rules and procedure which relate to prosecution.
I have said that we support the spirit behind the amendment. Whether or not is it necessary to set up a system—and no one has greater admiration for Scots

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law and procedure than I, in so far as I have been taught it—I see no reason to have possibly a complicated system where a special person with a special designaton is called upon to deal with juvenile cases. One would have thought that the principle could be answered much more simply by calling for specialisation of those who are to deal with juvenile cases within the prosecution service and by ensuring that such cases are indeed allotted to those specialists.
I am proud to tell the Committee that my own Law Society, at its own cost, has set up a panel of solicitors who specialise in dealing with care cases. I realise at once that when mentioning care cases, this would not come within the area of the work to be carried out by the prosecution service. But it shows that this principle in the profession is certainly acknowledged—the principle that is embodied in the amendment moved by the noble Baroness. 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. I suggest to the noble Baroness most respectfully that that might be a more simple way of dealing with the matter, and one which might commend itself to this Committee.
Lord Hutchinson of Lullington: On behalf of these Benches I should also like to support this amendment. There is no part of the criminal process which is more important than the juvenile and young persons part. Very few of those at the top of the legal profession have had any direct experience of dealing with juveniles. One cannot help feeling that that is the main reason why it has taken such an extremely long time to appreciate that from first to last the system for dealing with juveniles is simply inappropriate if it is based on the same system as that dealing with adults. Now we have an opportunity right at the beginning to divorce the dealing with young children from the process as it is directed towards adults. The series: prosecution, trial and sentence, and then the involvement of policemen, prison officers, lawyers, judges and forms of imprisonment, is simply not appropriate as a procedure for children.
Therefore I urge the Committee to agree that if we can start by separating the procedure of the juvenile offender right at the beginning, then we shall have begun on the only possible road which leads to any hope in dealing with children. If you catch children at this age you can still achieve something. Thinking now has come to the point where after adolescence there is little hope of doing anything about recidivism, but up to the age of 16 there is still hope.
I do not think I entirely agree with the noble Lord, Lord Mishcon, because it does not seem to me that this amendment envisages a large apparatus. All it is doing, if I understand the noble Baroness, is to appoint a specific person in the organisation who shall he designated with a special name, and it will be that person (with those persons necessary to assist) who will deal with the questions whether to prosecute, whether to institute proceedings, and what inquiries should be made. It seems to me and to those of us who sit on
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these Benches that this is a crucial amendment, and it might really lead to the beginning of dealing with juveniles in a new and more imaginative manner.
Lord Campbell of Alloway: I strongly support the spirit of this amendment. I should like to associate myself with what has just been said by the noble Lord, Lord Hutchinson, and also with what has been said by the noble Lord, Lord Mishcon. I am not sure how one goes about achieving the implementation of the spirit upon which we are all agreed, but I should not have thought that a mere assurance was wholly appropriate. I would not have thought that the amendment as it stands is all that complex. Perhaps if consideration could he given by my noble friend the Minister to these matters and we could hear his reaction it would be easier to deal with the question of implementation.
Implementation there must be. It might interest your Lordships to know that at the recent Roehampton Judicial Seminar, to which I referred the other day, Mr. David Hopkin—and I say this for the sake of the record with his permission—the Chief Metropolitan Stipendiary Magistrate, at the conclusion of his talk on sentencing options available in the case of juvenile offenders, expressly endorsed the rectitude of the approach of my noble friend Lady Faithfull not only at Second Reading in your Lordships' House but also in her letter to The Times.
It is a great opportunity, and one that should not be missed. As has already been said, dealing with the young under 17, the institution of proceedings against them, even the conduct of proceedings against these people, warrants speacialist training and expertise which is not ordinarily enjoyed by a Crown prosecutor, or a prosecuting officer as envisaged by this Bill. I earnestly entreat my noble friend the Minister to take this seriously. How he will deal with it I am not at this stage quite sure, but I repeat, because it is important, that I agree with the noble Lord, Lord Hutchinson, and I cannot at the moment see what is wrong with the amendment.
Lord Simon of Glaisdale: I am accustomed to following the noble Baroness. Lady Faithfull, and I share to the full the recognition which all your Lordships have of her outstanding experience and knowledge in this field. Also from what I have seen of the Scottish system I think it is superior in certain respects to ours. Where I venture to differ is on a matter that the noble Baroness specifically raised, namely, the family court.
I have been on record in favour of family courts for over 30 years now. That has been endorsed wholeheartedly fairly recently by the authoritative Finer Committee, and the Family Relations Committee of the Law Society has also now put its weight behind the system of' family courts. It is not the occasion now to debate that matter in detail. I hope there will be an opportunity of doing so. However, to my mind that is a more favourable way of dealing with the problem which the noble Baroness has identified, and I should be sorry to see a system instituted now which might prejudice what is to my mind a vastly better way of dealing with the problem.
Baroness Macleod of Borve: As one who for many years has been chairman of a large and difficult juvenile court, I should like to support all noble Lords who have spoken in favour of this amendment this afternoon. I am certain that in the future we shall need not only people of wisdom and ability but people who also have direct knowledge of children and their problems—the problems of those children who have allegedly gone astray who might be brought before the courts. It is important that we have qualified people who will be able to decide whether those children shall be brought before the courts: indeed whether the many other ways of dealing with these children are not going to have any avail, and whether a court appearance is the only way of dealing with them.
In my experience it is important that there should be people in the prosecution service who have specialised knowledge. Of course, they have to be barristers or solicitors but they must also have specialised knowledge of juveniles, of the way children think, and of the way they behave. As one noble Lord has already said, you can make or mar persons for life if you bring them before a court, or if you deal with them in some other way. After the Minister has spoken to us, whichever way this idea is dealt with, I hope that it becomes part of the Bill.
Lord Rawlinson of Ewell: At first I was not so sure about this. Having listened to the noble Baroness, Lady Macleod, my doubts are now perhaps much less than they were. A great distinction should always be drawn between the process by which a juvenile is brought before a court and the punishment, the penal consequences of the act. If we are going to make the prosecution of boys or girls of 16 who have committed crimes of violence—when they are perfectly well aware how evilly they have behaved—too informal or too, as it were, unimpressive, I wonder whether we really serve so well that which we want to serve. We want, as the noble Lord, Lord Hutchinson, said, to make sure that such a person does not turn into a recidivist, which can so easily happen.
I would want to make sure that when a juvenile is brought before a court, whatever the court is, accused of having broken the law, that shall be something which will have such a significance and make such an impression upon that juvenile that it should not be that afterwards the juvenile can cast it aside with the feeling of having got away with something quite easily, without real fear and without real apprehension. That is my only point.
I see what my noble friend Lady Faithfull has in mind. I see what the noble Lord, Lord Hutchinson, says: that those who have had to do with the law do not really know anything about it. Maybe he is right. I was most impressed by what the noble Baroness, Lady Macleod, has said to us. I beg that whatever system is brought into effect, it shall be one which does make and will make sufficient impression upon people of 16, juveniles admittedly, so that they will not be likely to want to have to experience again going before such a tribunal or court as they have in the past.
5 p.m.
Baroness Macleod of Borve: Before the noble Lord sits down, I hope that I did not give him the impression
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that I personally was a magistrate who deals with these young offenders in a sort of drawing-room way. I am not a nanny and neither is anyone on my Bench. We hold our juvenile courts in a proper court setting. We are above the alleged offenders and the proceedings are conducted in an ordinary, proper, adult way. I would never subscribe to what I think is the way that the family courts are supposed to conduct their business. That, I think, is far too informal.
Lord Elwyn-Jones: As I understand the noble Baroness, Lady Macleod, she is not for a moment suggesting that if you have a case of a rape or murder by a 16 year-old there should be some special dispensation and the ordinary processes of the criminal law should not take place. That is not suggested at all. I could not quite follow the intervention of the noble and learned Lord, Lord Rawlinson.
Lord Rawlinson of Ewell: I only wanted to make quite sure—and that is why I said that I was uncertain until I heard my noble friend Lady Macleod—that no system is developed which takes it so far away from the juveniles as to make it not have considerable impact and effect upon the juvenile accused. It should invoke the majesty of the law, so to speak.
Lord Elwyn-Jones: Perhaps I may conclude this major point which arises. I do not think that I have any quarrel—neither does the noble Baroness—with the noble and learned Lord, Lord Rawlinson, about that. What is essential is that in cases which fall short of the gravity of the kind of crimes that he had in mind, there is the need for specialisation in dealing with the juvenile who, to put the matter neutrally, comes in contact with the law. After all, there is already in many ways specialisation in the criminal system in the treatment of juveniles.
There are the police juvenile bureaux, the juvenile courts themselves, junior attendance centres and junior detention centres. What is proposed in the amendments of the noble Baroness is that there should be a similar kind of specialisation among the personnel of the prosecution side. The Scottish experience, where that exists very clearly, has shown its great value. It is a pity in a sense that the noble and learned Lord the Lord Advocate is not here to give us encouragement on this theme.
Lord Campbell of Alloway: For the sake of the record and to clarify this, for it is important, I was speaking in the context also of, I think, Amendment No. 14, not with the majesty of the law or anything like that in mind, but I was addressing my remarks—and I thought that I was following the noble Lords, Lord Hutchinson and Lord Mishcon, on this—to the decision to invoke the process of law. I was really at a different stage from the stage with which my noble and learned friend was dealing. Perhaps when one reads Hansard one will find that nobody in your Lordships' Committee is very far apart.
Lord Elton: That may well prove to be the case, though I am not entirely sure that it is, because your Lordships have been casting doubts on the perceived clarity of our position a moment ago. This has been a

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most interesting and important debate. I should like to start by thanking my noble friend for precipitating it. She is in some ways a catalyst in your Lordships' House and I am glad to acknowledge her virtues when I am able to do so.
We have been addressing two separate subjects. One of them, as the noble and learned Lord, Lord Simon of Glaisdale, pointed out, goes much wider than the amendment on the Marshalled List or indeed the proper scope of this Bill. That is whether there ought to be a totally separate judicial system, as it were, in miniature for the juvenile section of the market. That is an important question but I think that it would not be proper for me to pursue it at this moment because it lies beyond the scope of the Bill. I will only say that a decision to do that might pre-empt some of the decisions which my noble friend is asking us to undertake. As to saying that the use of the "reporter" (which is something that we did not get into a state about) leads one to suppose that such a development, if it has not already taken place, will take place at once, I think that the choice of the right word as a proper name is difficult. That name is probably not the apt one for the people we are now talking about.
The amendment my noble friend has tabled flows first from her concern that juveniles who are alleged to have committed criminal offences should, wherever appropriate, be diverted away from prosecution altogether. That is a concern which I share with her, as do Her Majesty's Government. I am almost tired of reminding your Lordships that most of your Lordships now present were present when we put Clause 1 into the Criminal Justice Bill, as it then was a couple of years ago, making it a requirement by statute that custodial sentences should be a last resort and the shortest custodial sentence appropriate should always be that which was awarded. So I think our credentials are beyond impeachment there.
It also springs from her conviction, which again we share, that where a juvenile is prosecuted and comes to court the officer of the new service prosecuting the case should conduct it with due regard to the special procedures and climate in the juvenile court. I share my noble friend's concern and that of many others that these objects are achieved. But it appears to me that the way of achieving them which she proposes is not perhaps entirely necessary and could, I fear, in some circumstances have consequences which she may be as anxious to avoid as we are.
As the noble Baroness said at Second Reading, the policy of Her Majesty's Government is directed towards diversion. I will not go on about that except to point out that the introduction of the new service has produced a further hurdle which a juvenile case must overcome before it gets to court. In considering where the public interest lies, the prosecutor will take note of all relevant circumstances, including the views of any other agencies which have been consulted. The amendment seeks to lay down by whom cases should be handled once this additional hurdle has been overcome.
It provides for a particular kind or class of prosecutor, with the category of reporter, and it is intended, I presume, that he alone should have the power to handle juvenile cases. I realise that my noble friend's intention, and those, I think I detect, of new
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approaches to juvenile crime (of which she is a moving spirit) are entirely laudable, but I am not at all confident that this is the way to set about achieving them. It is partly a matter of drafting but it is partly a matter of something more serious.
On the matter of drafting I was only going to mention the question of the choice of name. That, as I say, need not detain us; but if we accept that the mere name is negotiable, I fear it does not entirely get us out of our difficulties. The difficulty I now see is this. The intended, but not, so far as I can see, the actual, effect of the amendment is to secure that only prosecutors specifically designated for this purpose and no others shall be permitted to deal with juvenile cases.
My noble friend's purpose in seeking to draft the statute in that way is to ensure that the notable and important differences between the way in which juveniles and adults should be handled and between the disposals available in juvenile and adult cases are matters with which the prosecution staff in juvenile cases are intimately and thoroughly familiar. My noble friend wants to make sure that a body of expertise is built up, from which both the juveniles and the community will benefit. Here again we are in sympathy with her, as is the noble Lord, Lord Mishcon, and his noble and learned friend.
It is not this that gives me pause—in a moment I shall explain how we intend to achieve this development of expertise—but what does give me pause is this. It is my experience that in running any large organisation of people the only effective way of getting the results you want is to make the best arrangements you can and then watch the results. In almost every case, after watching the results for a while, you have to adjust the arrangements. You may find that the priorities you have chosen cut across each other in unexpected ways. You find that your allocation of staff has failed to take account of factors that you could not foresee, or you find that unexpected strengths or unexpected weaknesses have developed in your organisation which can be made the best of only by adjusting your original plan. Management must be free to make these adjustments if it is to achieve the effects we want.
The overall manager of the independent prosecution service is going to be the Director of Public Prosecutions, and at the local level the Crown prosecutor will have that role. There is no harm at all in your Lordships or anyone else advising the managers in the new service that they ought to make sure that juvenile cases are taken only by people expert in that sort of work, and that they should take steps to see that expertise is rapidly developed. But if you go further and instruct them to achieve that object in what here, now, today appears to be this very sensible way, and if you then go further still and inscribe that instruction on the statute book, you have placed upon them a compulsion that cannot be removed without passing another Act of Parliament for the purpose. There is always a queue—a very long queue—as we all know to our cost, for Acts of Parliament. I am not certain, and I do not see how your Lordships can be, what the practical effect of this precise wording will be in four, five, six or 10 years' time. We do not know how career structures will develop in the service; we do not know how workloads will develop; we do not know

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how patterns of crime will develop; and so it seems to me that this amendment would put into a semi-permanent form something which is intended to be helpful now, and which indeed would be helpful now, but which could become a hindrance later.
That is why we feel we ought to try to ensure the development of these necessary skills by different means. 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 and does not dispute the need for prosecutors in juvenile court cases to be attuned to the special procedures and climate of the court. He is also seized of the need to ensure that these special considerations are reflected in the guidance on prosecution policy he will issue to the new service.
5.15 p.m.
This guidance touches very closely on the matters which concern my noble friend, and she may wish to know that his officials have already invited the Association of Directors of Social Services, with whom I know she has close links, to contribute to its formulation. Their comments, I know, will be very welcome to him, as will those of anyone else with expertise in this field. I do not think it would come amiss if my noble friend were to arrange for those with new approaches to juvenile crime to make available their views on this subject, which I think coincide pretty closely with her own.
I can also assure your Lordships and my noble friend that the need to see that prosecutors in juvenile court cases are attuned to the special procedures and climate—I think that is the right word—of the court and the needs of the juveniles themselves will guide the decisions taken in the allocation of prosecutors in these cases. That is the nub of what my noble friend is seeking and also it is sought by those who have supported her. The need will also—and this goes beyond her specific point—act as a guide to devising the training of the new service.
I hope that my noble friend feels I have been able to place on the record this evening words which supply what she has sought to achieve by legislation and that she would agree that they do so in a way that leaves the Director free, as legislation could not, to deal with unforeseen developments in the best possible way.
We have in fact adopted the approach recommended by the noble Lord, Lord Mishcon, of ensuring that we rely upon the development of specialisation and specialists within the service—people, as my noble friend Lady Macleod has said, who have direct experience of children. I can undertake at the Box at this moment that in areas where there is sufficient juvenile court work to justify specialisation, whether whole-time or part-time, officers of the Crown prosecution service will be assigned and trained specially to deal with juvenile court cases. That is the objective that my noble friend seeks to attain—that individual people shall be named for this particularly sensitive work. I hope she will feel that that concern has been met.
Baroness Faithfull: I am indeed grateful to my noble friend the Minister for his very generous,
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understanding and warm reply to a very real problem that exists in this country. May I also thank noble Lords who have spoken and may I say to the noble and learned Lord, Lord Rawlinson, that those of us who deal with juveniles believe that juveniles are diminished unless they are brought to face their wrong-doing. Those of us who deal with juveniles do not excuse them for anything they may have done that is wrong or is against themselves and against society.
Having said that, I think it needs to be said that since the passing of the Criminal Justice Act, unfortunately custodial care for juveniles has increased and one has to say that in years gone by—and, indeed, it is also the case at present—our methods have not succeeded and we have not reduced juvenile delinquency. It is for that reason that we seek to adopt a completely different attitude. It is an attitude of helping the child or young person, whatever he may have done, to face it, but to live in the community and to live with the family and the people whom he has injured or committed an offence against.
I am most grateful to the noble and learned Lord, Lord Simon, for, so to speak, signposting the future in the hope that we may ultimately at some point attain the family courts. I am also most grateful to noble Lords who have so sympathetically spoken on this problem. With the assurance of the Minister, I shall seek to withdraw the amendment, discuss matters with him in the corridor, and bring the case forward again at the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
(Amendment No. 10 not moved.)
On Question, Whether Clause 1, as amended, shall stand part of the Bill?
Lord Simon of Glaisdale: I have a very small point on this particular Bill, though cumulatively it is an enormous point when one considers the legislation of one Session after another. At the top of page 2 of the Bill, subsection (2) says:
"The Director shall appoint such staff for the Service as, with the approval of the Treasury as to numbers, remuneration and other terms and conditions of service, he considers necessary".
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.
Lord Elton: I would be the last Minister to court the wrath of the Treasury in any ill-advised response to what the noble and learned Lord has said. I have cause to know exactly how closely their machinery works in these matters. However, I am also a champion, as are many others, of shortening legislation. I do not believe that I shall be given permission to say more than that we will look at it again; but that we will do.
Clause 1, as amended, agreed to.
Clause 2 [The Director of Public Prosecutions]:
On Question, Whether Clause 2 shall stand part of the Bill?
Lord Elwyn-Jones: May I be permitted to make one observation? May I say how much I agree with the noble and learned Lord, Lord Rawlinson, with regard to the desirability that the Director should be appointed by the Attorney-General? I am hound to say—I do not know whether it was his experience—that the previous existence was uncomfortable, to use the most modest word to read the situation. I congratulate the Government on grasping this nettle, and indeed the Home Office on its willingness to forfeit this previous plum to which it used to attach such importance.
Lord Rawlinson of Ewell: I just wish to make it clear that when I intervened earlier on Clause 1, it had been my experience with regard to the Director of Public Prosecutions that the method of appointment at that time was quite wrong and I wholly agree with what is now being proposed. I am afraid that I did not make it quite clear that I thought that this clause removed that anxiety and made it clear that the whole of this service will come under the umbrella of the quasi-judicial role which is the great and proud tradition of all Attorneys General, whose aim is to make sure and maintain that they are wholly outside the influence of politics.
Clause 2 agreed to.
Clause 3 [Functions of the Director]:
(Amendment No. 11 not moved.)
(Amendment No. 12 not moved.)
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 13:
Page 3, line 16, at end insert—
("( ) to take over the conduct of all proceedings begun by summons under section 170 and section 171 of the Customs and Excise Management Act 1979 or section I of the Criminal Law Act 1977 and relating to the prohibition or restriction in respect of indecent or obscene goods set out in section 42 of the Customs Consolidation Act 1876 and all proceedings begun by summons under section 11 of the Post Office Act 1953;").
The noble Lord said: The effect of this amendment, if it were to be accepted, would be to extend the powers of the Crown prosecution service in relation to prosecutions in respect of obscene publications and the seizure of obscene materials under the Customs Consolidation Act 1876 and the Customs Management Act 1979.
The amendment is justified in my submission on two grounds. First, it is by general principles surely logical and proper that the Crown prosecution service should be seized of this particular duty. Any person who argues to the contrary takes upon himself or herself the onus of showing why this should not be so. Secondly, and perhaps even more forcefully, there is the question of achieving a consistency between the prosecutions now brought by the Customs and Excise authorities in respect of these two Acts and prosecutions brought generally by the police in relation to obscene publications. The lack of
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consistency is not something which arises from a fundamental defect either in the Customs and Excise authorities or in the police, but rather from the fact that there are two entirely different definitions of obscenity relating to those two different areas.
In the 1876 Act and the Customs Management Act 1979 obscene material is not specifically defined. It is left to the general interpretation of the law, which means inevitably that obscenity is regarded as something which is lewd, filthy, dirty and so on—in other words, what the ordinary layman would regard as being obscene. But as far as police prosecutions under the Obscene Publications Act 1959 and the 1964 Act are concerned, obscenity is defined as that which tends to deprave or corrupt the person who is likely to be brought into contact with that particular material. I do not think that I do injustice to the exact wording of the statute. That is the broad wording of it.
This means that there may be material as lewd and as filthy as one could imagine but it is no way obscene within the meaning of the definition of the Acts of 1959 and 1964 merely because the constituency of people likely to come into contact with it is not likely to be depraved or corrupted. On the other hand, one can imagine material which has nothing at all to do with that which is lewd or filthy—a publication, for example, exhorting people to take dangerous drugs. If that is held to have the tendency to deprave or corrupt, it can fall, as has been shown by a well-known authority within the past 10 years, within the definition of obscenity in the Acts of 1959 and 1964.
I make those points as illustrative of the main purpose of this amendment, which is to have one authority dealing with all those matters in order to try to bring about such consistency as is humanly possibly in a situation where there is already a fundamental defect in relation to differences of definition. But until such day as Parliament seeks to spell out a comprehensive definition of obscenity, the best that can be done is to have one authority—the Crown prosecution service—seized of this particular task. I beg to move.
Lord Hutchinson of Lullington: May I support this amendment from these Benches also? I do not know whether it is declaring an interest, but I do so as one who played a substantial part in the liberation of Lady Chatterley's Lover. In 1973 the noble and learned Lord, Lord Denning, in the well-known case which was dealing with one of Mr. Raymond Blackburn's applications to the Divisional Court, referred to the desirability of achieving a uniform standard for obscenity prosecutions throughout the country by a system of referral to a centralised department. Under the prosecution of offenders regulations the police forces are obliged to report to the Director at the moment cases of obscene or indecent publications in which it appears there is a prime facie case for prosecution. Although they are not obliged to take the Director's advice, they do in fact do so.
To get round that desirable ad hoc system which operates at the moment in relation to prosecution for obscenity the police resort to the forfeiture procedure under Section 3, which is mentioned in this clause. What happens is that a kindly police constable warns the bookseller that it would be wise of him to remove certain publications from his shop. If the bookseller

1107
fails to comply, the next thing that happens is that the police arrive and remove the whole of his stock, having gone to a sympathetic magistrate and said that they have reasonable suspicion to believe that there is in the shop obscene material, without having to itemise any particular item at all.
5.30 p.m.
The whole of the stock of the bookshop can be taken away and then a long period elapses while the books and publications are gone through. Those which are considered obscene are kept and brought before the magistrate, and the bookseller then has the choice of going to the court and making a case as to why the publications should not be destroyed, by showing that they are not in fact obscene, or of remaining mute and letting the books be destroyed, and having no publicity, and then starting again in regard to those books. It is for those reasons that the phrase that the censor for the bookseller is the policeman on the beat has a certain amount of truth in it.
If the magistrates find that the books are not obscene and they go hack to the shop, and if they are sold in that shop and in other shops, the police can still take another bite at the cherry. They can then have a go at the mail order part of the shop's business. They can intercept the mail and open envelopes to find that they contain the books or publications in question. They can then bring those items before a magistrates' court—perhaps some other magistrates' court in another area—on the basis that they constitute indecent material being passed through the mails. Although a book or magazine may be sold perfectly properly in the shop as not being obscene, if it is posted, it could be brought before the court as being indecent.
No judge has yet been able to define what on earth "indecent" means. The noble and learned Lord, Lord Simon, had a go at doing so in a well-known case, but his definition was later frowned upon by some other noble and learned lawyer. In fact, what it comes to is that indecency is in the eye of the beholder. What may be indecent to one person will not be indecent to another. What may be indecent in some circumstances may not be indecent in other circumstances. As every practitioner knows, it is an impossible task to defend in a case of indecency involving the post before a bench of magistrates, other than to say, "You may well think when you look at those photographs carefully that nobody in their senses could really say that they were indecent". But one cannot go any further than that, because indecency cannot be defined.
The chances are that most of what are now called "girlie" magazines and many great works of literature have in them, without any doubt whatsoever, passages which are indecent and which do not do anybody the slightest harm. The trouble with this legislation is that it was originally passed in order to preserve the morals of the postmen and had nothing to do with the selling of indecent literature by booksellers, and so on.
Also, in order to support this amendment, and to bring everything under one umbrella, if one of your Lordships was to enter a shop and buy one of these
1108
books or papers which was not considered obscene, go abroad on holiday, and then return to this country with that publication, then a nosey customs officer—a slightly strait-laced customs officer—might look into your suitcase and find it, and then seize that publication on the ground that you had avoided the prohibition on the importation of indecent material. Once again, that book would be considered indecent although it would not be obscene.
This is a very serious situation in relation to the selling of literature and the selling of magazines, where the power of seizure is used in the way I have indicated. One can have the same works brought before the courts as being indecent but not obscene, where there is really no defence. There is no defence under the indecency charges of the matter being for the public good or having literary merit, or anything of that kind.
This is a very important amendment. As has already been so well said, the whole of the obscenity and indecency standard which is to be applied throughout the country should have some similarity and some proper basis, so that there will be consistency throughout the country and so that there does not exist the ridiculous situation of people being convicted in relation to books in one part of the country but being acquitted in another. The only way of achieving that is by having the Director of Public Prosecutions supervising the whole of the standard.
Lord Simon of Glaisdale: To my mind it is very important that we who are members of the talking classes should realise that this is one of the matters on which the working classes do not see eye to eye with us, necessarily. Personally I have the same outlook on these matters as the noble Lord, Lord Hutchinson. Indeed, I was a member of the 1968 Select Committee in another place which led to the 1959 Act, which was the great Act of liberalisation. To my mind, it is extremely important that we should realise that a substantial part of the population do not look at matters as I surmise do most of your Lordships, and that there should therefore remain, here as much as anywhere, the right of private prosecution.
So far as this amendment is concerned, as I read it—and I hope the noble Lord will confirm this—it does not itself trench on the right of private prosecution. In relating to everything that has gone before, I believe it is only customs offences and postal offences which are attracted by this amendment. The noble Lord nods to indicate that that is its intention. The Bill itself deals with the forfeiture provisions to which the noble Lord. Lord Hutchinson, has referred.
Myself, I believe that if one is to preserve the right of private prosecution, it is entirely proper that the initial decision should be made by one authority. With the setting up of the Crown prosecution service obviously that is a far superior authority than the diverse postal and Customs assessors.
I think it was a great pity that the Williams Report was so open to criticism, as it was criticised in your Lordships' House, on matters of detail. Personally, I agreed—although, in spite of what the noble Lord, Lord Hutchinson said, I prefer my own definition—that subject to that, the Williams' approach was superior to anything we have in our law.

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At the moment we are saddled with the substantive law as it is and it seems to me that the prosecution machinery is much more sensible in the way suggested in this amendment.
Lord Elton: There is one consideration that ought to be uppermost in our minds when we consider this amendment; that is, that the Bill provides for a Crown prosecution service whose primary functions are to take over and conduct cases in which criminal proceedings have been instituted by the police.
There are, of course, many other agencies which prosecute in addition to the police, and some of them bring very significant numbers of prosecutions. The Royal Commission, when considering the arrangements for prosecution, in fact commissioned research which showed how significant a prosecution function other public agency prosecutors had. They include, in addition to Customs and Excise, several other Government departments, local authorities, and others. Having commissioned that research, and considered the work of those agencies, however, the Commission recommended that the new prosecution service which they were proposing should not take over these other prosecution functions. According to Chapter 7, paragraphs 41 to 45, of the Royal Commission's report, there were arguments of principle for the Crown prosecutor taking on these prosecutions, but also several constraints which persuaded the Commission of its impracticability for the time being. The cases prosecuted by such agencies represented a significant burden of prosecution activity. There was a variety of practice and procedure among the agencies, reflecting their differing functions and objectives, and they did not therefore lend themselves to uniform treatment by a single authority, attractive as the prospect must be in some cases.
I should also like to make an additional and particular point in relation to prosecutions brought by Her Majesty's Customs and Excise. As your Lordships are aware, one of the primary purposes in establishing the new prosecution service is to secure the separation of the investigation from the prosecution of criminal offences. In the case of the revenue departments, including Customs and Excise—as the work of the committee chaired by the noble and learned Lord, Lord Keith of Kinkel, has shown, in Volume 2, Chapter 18—this separation between the investigation and the prosecution of offences already exists.
This recommendation of the Royal Commission on Criminal Procedure that the Crown prosecutor should not, certainly initially, take over other agency prosecutions, was generally accepted in the course of the consultations that followed publication of its report. The Government accepted this recommendation and our proposals were framed accordingly. The amendment tabled by the noble Lords opposite, however, seeks to alter this position in relation to one class of proceedings; namely, those begun under Sections 170 and 171 of the Customs and Excise Management Act 1979, or Section 1 of the Criminal Law Act 1977, in relation to indecent or obscene publications or articles imposed in contravention of the Customs Consolidation Act 1876, or transmitted, if I may put it that way—and this is the subject of a late
1110
amendment to the amendment—against the prohibition in Section 11 of the Post Office Act 1953.
As your Lordships may know, the 1977 Act concerns conspiracies to commit the principal offences. In relation to this one set of proceedings, but no other, the new service is to act—as the noble Lords advise—as a review of the initial decision to prosecute. It may be asked why Customs and Excise or the Post Office are to be left to run their own show in the general mass of cases with which they deal, some of them very important and some no doubt very sensitive, but not in this one category. I begin to have the thought that noble Lords are actually seeking to use the provisions of this Bill as a means of ironing out wrinkles in obscenity law which fall outside its proper concern.
It is of course already the case that the new service will take over proceedings relating to obscene publications which are initiated by the police. It may seem odd that the new service should not deal with similar cases initiated by the Customs and Excise. But the answer lies in the definition of the new service's functions. It is there to take over the conduct of cases initiated by the police. Once we start to add on individual categories of cases initiated by other agencies, we begin to reverse the recommendation of the Royal Commission. Whatever the arguments of principle, the Royal Commission has stated compellingly the considerations of practicability for leaving this subject for the present. It is a big enough step to introduce a Crown prosecution service to take over the conduct of all proceedings initiated by the police. The new service must be given time to get to grips with its functions in that context before we consider placing on it the very wide and demanding range of other functions towards which this would be the first step.
Noble Lords may be concerned about aspects of the law relating to the importation of indecent or obscene material, or policy on the enforcement of the law. That may or may not be a well-founded concern, but it is somewhat removed from the questions we are addressing in the context of this Bill. I hope I have said enough to persuade noble Lords not to press this amendment, but to pursue their objectives by other means.
Lord Elystan-Morgan: I am sure that the Committee will not think me churlish if I state that we are mildly disappointed, to say the least, by the Minister's reaction in this respect. Of course it is the case that we are all mindful of the fact that there are massive wrinkles in the law of obscenity which need to be ironed out, and of course it is in relation to that main problem that we have considered this amendment, but we put it forward as one which has true merit in the interim between now and such time as Parliament sees fit to place all obscenity law on a basis of broad consistency.
We do not think that this small enclave which, in effect, would be created in the authority of Customs and Excise would in any way damage its general functions. It is not what one would call classically a Customs and Excise situation at all. It is a situation which deals with a broad mass of the public and it is right and proper, we say, that it should be brought under the aegis of the new prosecution service. For those reasons—
Lord Elton: Before the noble Lord advises whether he is going to force the amendment to a Division, may I take the opportunity to reply to a query from the noble and learned Lord, Lord Simon of Glaisdale, which I passed over. There is no right of private prosecution for the Customs and Excise offences covered in the amendment, but there is for offences under Section 11 of the Post Office Act, and the amendment would remove it.
Lord Elystan-Morgan: The noble Lord the Minister divines properly that we intend testing the will of the Committee by means of a Division.
5.48 p.m.
On Question, Whether the said amendment (No. 13) shall be agreed to?
Their Lordships Divided: Contents, 60; Not-Contents, 106.

DIVISION NO. 1

CONTENTS

Ardwick, L.

Jeger, B.

Attlee, E.

John-Mackie, L.

Avebury, L.

Kagan, L.

Aylestone, L.

Kennet, L.

Birk, B.

Kilbracken, L.

Bottomley, L.

Kilmarnock, L.

Briginshaw, L.

Lawrence, L.

Brockway, L.

Longford, E.

Bruce of Donington, L.

Melchett, L.

Caradon, L.

Meston, L.

Carmichael of Kelvingrove, L.

Mishcon, L.

Collison, L.

Monson, L.

David, B.

Nicol, B.

Dean of Beswick, L.

Oram, L.

Diamond, L.

Parry, L.

Donaldson of Kingsbridge, L.

Phillips, B.

Elwyn-Jones, L.

Ponsonby of Shulbrede, L. [Teller.]

Elystan-Morgan, L.

Ennals, L.

Rea, L.

Ewart-Biggs, B.

Simon of Glaisdale, L.

Falkender, B.

Stallard, L.

Fitt, L.

Stedman, B.

Gallacher, L.

Stoddart of Swindon, L.

Glenamara, L.

Strabolgi, L.

Graham of Edmonton, L.

Tordoff, L.

Harris of Greenwich, L.

Underhill, L.

Hatch of Lusby, L.

Wells-Pestell, L.

Hayter, L.

White, B.

Houghton of Sowerby, L.

Wigoder, L. [Teller.]

Hutchinson of Lullington, L.

Winterbottom, L.

Irving of Dartford, L.

NOT-CONTENTS

Airey of Abingdon, B.

Coleraine, L.

Alexander of Tunis, E.

Colwyn, L.

Ampthill, L.

Constantine of Stanmore, L.

Arran, E.

Cox, B.

Atholl, D.

Craigmyle, L.

Auckland, L.

Cullen of Ashbourne, L.

Bauer, L.

Daventry, V.

Belhaven and Stenton, L.

De Freyne, L.

Belstead, L.

De La Warr, E.

Bledisloe, V.

Denham, L. [Teller.]

Boyd-Carpenter, L.

Drumalbyn, L.

Brabazon of Tara, L.

Eden of Winton, L.

Brougham and Vaux, L.

Elliot of Harwood, B.

Buckinghamshire, E.

Elton, L.

Caithness, E.

Enniskillen, E.

Cameron of Lochbroom, L.

Faithfull, B.

Campbell of Alloway, L.

Ferrers, E.

Cathcart, E.

Fraser of Kilmorack, L.

Chelwood, L.

Gibson-Watt, L.

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Glanusk, L.

Monk Bretton, L.

Gray of Contin, L.

Montgomery of Alamein, V.

Greenway, L.

Mottistone, L.

Grimston of Westbury, L.

Mowbray and Stourton, L.

Hailsham of Saint Marylebone, L.

Murton of Lindisfarne, L.

Nelson of Stafford, L.

Halsbury, E.

Newall, L.

Hardinge of Penshurst, L.

Onslow, E.

Hemphill, L.

Orkney, E.

Henley, L.

On-Ewing, L.

Hood, V.

Pender, L.

Hornsby-Smith, B.

Rawlinson of Ewell, L.

Hylton-Foster, B.

Renton, L.

Ingrow, L.

Renwick, L.

Kaberry of Adel, L.

Rochdale, V.

Killearn, L.

Rodney, L.

Kitchener, E.

St. Aldwyn, E.

Lane-Fox, B.

Sandford, L.

Lauderdale, E.

Selborne, E.

Layton, L.

Skelmersdale, L.

Loch, L.

Sudeley, L.

Long, V.

Swansea, L.

Lucas of Chilworth, L.

Swinton, E. [Teller.]

Lyell, L.

Terrington, L.

McFadzean, L.

Thomas of Swynnerton, L.

Macleod of Borve, B.

Trefgarne, L.

Mancroft, L.

Trumpington, B.

Margadale, L.

Vaux of Harrowden, L.

Marley, L.

Vickers, B.

Maude of Stratford-upon-Avon, L.

Vivian, L.

Ward of Witley, V.

Merrivale, L.

Whitelaw, V.

Mersey, V.

Windlesham, L.

Milverton, L.

Wynford, L.

Molson, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.57 p.m.
Baroness Faithfull Baroness Faithfull moved Amendment No. 14:
Page 3, line 35, leave out ("and") and insert—
(("ff)) to take criminal proceedings against a child or young person only if he is satisfied that it would not be adequate for the case to be dealt with by a parent, teacher, or other person or by means of a caution from a constable or through an exercise of the powers of a local authority or other body not involving court proceedings or by means of proceedings under section 1 of the Children and Young Persons Act 1969; and")
The noble Baroness said: During the passage of the Criminal Justice Bill an amendment was moved enjoining magistrates that, before making a custodial order on a juvenile, they should consider all other methods of dealing with the child or young person. In this amendment the prosecuting service is enjoined to see to it that, if possible and practicable, and taking into account the type of offence, in the first instance there should be a caution.
Up and down the country, in many areas, the police have been outstanding in the way in which they have adapted themselves to a changing role in regard to juveniles. In many police authorities they are now cautioning children, not bringing them before the court, and referring them to the other services so that a child may be kept out of the penal system. This is working. It is what is known as the diversionary system. It has been particularly pioneered in Northamptonshire by the chief constable and his colleagues in the health, education, youth and social services, and it is working.
The all-party parliamentary group for children invited to the House of Lords a group of young people who had committed offences and who had been in

1113
custodial care. I well remember that the noble Lord, Lord Seebohm, asked them what they has learnt at approved schools, as they were then. The boys replied to Lord Seebohm, "We learnt from our colleagues in the approved school how to pick locks and break and enter". They then asked the boys what they had learned at borstal. They said that the great advangtage at borstal had been that they had learnt to know which of them, when they came out of borstal, could form a gang to commit further offences.
6 p.m.
From this we deduce that although custodial care sometimes has to be the answer, it is not always. This amendment lays down that in the first instance a caution should be considered for the child or young person. So many police authorities have adopted the role of community police, working closely with the other services in a way that in years gone by has not been done. I reiterate that we congratulate the police on their deep interest in juveniles and their attempt to keep juveniles out of custodial care. This amendment is simply to do what the Criminal Justice Act did, which was to enjoin upon prosecutors that in the first instance cautioning should be considered throughout the country, rather than an immediate appearance before court and a possible custodial order. I beg to move.
Lord Elystan-Morgan: We on this side of the Chamber agree wholeheartedly with this amendment and indeed with the reasons articulated by the noble Baroness in moving it. We also take the view that it is doubtful whether the amendment, if passed, would really extend the law, if at all, beyond where it stands under Section 5 of the Children and Young Persons Act 1969 and the relevant section, which I think is Section 3, of the Criminal Justice Act 1982.
Cautioning in relation to young people, thank goodness, has become something very general. We shall have something to say about the consistency of that pattern when we reach Amendment No. 17. But in 1982, for example, out of 160,000 cautions in England and Wales in that year, two-thirds were in respect of children and young persons. Therefore, we say that the caution is a powerful weapon in the war against crime and has a splendid role to play in the administration of justice. All that this amendment does is to highlight that principle, which has a wide acceptance.
Lord Campbell of Alloway: Briefly, I wholly support this amendment. If, as my noble friend the Minister said, and truly said, on a previous amendment, the obligation under the Bill is to take over proceedings instituted by the police, then it must follow almost as night follows day that a further safety catch or safeguard is requisite and this amendment provides a mandatory safeguard—"only if".
These young people under 17 not only have to be punished—that is one thing—they also need help. They need to establish a relationship of trust and respect with someone in authority. For too often they come from broken homes or a single living room "TV" home and are left to fend for themselves in the streets and in the arcades. They are always open to the
1114
obvious temptations, all of which tend to lead to crime. This would be a humane safeguard built into the Bill. It is an important matter. It is not just a matter of words and drafting. I support the spirit of this amendment.
Lord Milverton: My Lords, I also support this amendment of my noble friend Lady Faithfull. I am sure that it is right to say that by cautioning, young people can be made to feel that they are being helped in a positive way; they can be shown that there are better things to do than harmful things. So I certainly support my noble friend on this amendment. I hope Her Majesty's Government will be able to give their approval and my noble friend the Minister, Lord Elton, will be able to give his approval to it.
Lord Hutchinson of Lullington: I should also like to support the amendment on behalf of those on these Benches for reasons which have already been so well explained.
Lord Elton: I am grateful to my noble friend for the explanation of the intention behind her amendment. I must say that I do understand and sympathise with what lies behind it. However, I am not sure that I can be as sympathetic as she would like me to be. The amendment would have the effect of applying to the Crown Prosecutor restrictions which were included in the Children and Young Persons Act 1969—which, I take it, is from where she has taken her text—but which no Government of either party since then have thought right to bring into force. I hope that noble Lords on the Front Bench opposite will give due weight to that.
The importance of diverting young people from the criminal justice system to the greatest extent possible is, as I think we have now established, something which all of us in this Committee share, on whichever Benches we sit. But we should prefer to do this by encouraging such developments as the increased use of the formal caution by the police, as my noble friend herself suggests, and the establishment of local consultative arrangements between the police and other agencies concerned with juvenile delinquency. We believe that represents a more sensible and satisfactory approach than the blanket restriction which the 1969 Act would have imposed and which my noble friend now wishes to impose.
When one comes to the Crown Prosecutor, there are two further considerations which I think we ought to bear in mind in considering what my noble friend proposes. The first is that, as I said in responding to her earlier amendment, the Director of Public Prosecutions will be developing guidelines for the new service which will stress the special factors which arise in cases involving juveniles. I do believe that these are going to provide the trigger, safety net, or safety catch for which my noble friend Lord Campbell of Alloway is looking.
As I also said, I hope that the director will have the benefit of the advice of my noble friend and her advisers in drawing up these guidelines. My noble friend has rightly said that in many areas the sort of standards of conduct and the ways of dealing with cases, which ways she most admires, are already in

1115
effect. It seems to me that what she will be asking is that the guidelines should insist that good practice becomes universal. I think this is consistent with the flexible approach I have mentioned—and it is important to remember that cases should not even reach the prosecutor unless the police and the other agencies, where appropriate, including the social work departments, have fully considered the scope for diversion.
The second consideration is that the amendment would have the effect of requiring the prosecutor to satisfy himself in all cases that it would not be appropriate to deal with the matter by way of care proceedings. With one exception, we have not seen the new service as having a role in care proceedings. The decision whether to bring care proceedings involves a whole range of questions about the child and the family which, as I am sure my noble friend appreciates. are more the province of others. They are in fact areas in which others have developed, with my noble friend, a very distinct and considerable knowledge and an expertise of their own
The prosecutor will, of course, be aware of the views of these other agencies, such as the social services departments, when they have been made known to him and will want to take them into account. But I think it would be regrettable if the statute required him in effect to take a view on the arguments for compulsory care in any particular case. Also it would be anomalous, to say the least, if the prosecutor decided that care proceedings would be the appropriate course but those who have the right in law to bring such proceedings took a different view. What exactly my noble friend would want to happen there I am not at all sure. I think that the responsibility for this sort of decision should rest where it now does, which is where the knowledge and the wisdom is, but that it should be encouraged by the sort of guidance that I have mentioned. As I have said, there is nothing between my noble friend and the Government on the desirability of diverting juveniles from the courts where possible. But her amendment has the disadvantages that I have attempted to draw to her attention.
Baroness Faithfull: I shall resist the temptation to divide the Committee although the temptation is very great. I am very grateful to my noble friends who have supported this amendment. I shall read with great interest what the Minister has said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 15:
Page 3, line 38, at end insert—
("( ) In the performance of his functions under paragraphs (a), (c) and (d) of subsection (2) above, it shall be the duty of the Director to consider whether it is desirable that those proceedings should or should not be continued.").
The noble and learned Lord said: Clause 3 deals with the duties, among other things, of the Director. They are listed on page 3 of the Bill. The object of the amendment is to state clearly within this important clause that one of the duties of the Director, in every prosecution that he takes over, is to consider whether or not criminal proceedings should be continued. This,
1116
I submit, is the central element in establishing a prosecution service independent of the police. While, for some practical reasons, it will remain in the hands of the police to charge someone following an arrest, as they obviously must in appropriate cases, it should not be the case that everyone so charged will necessarily be the subject of full criminal proceedings.
Indeed, that is already the case. It is already the practice. The police often themselves withdraw charges. The independent prosecution service that we are seeking to set up, working from national criteria for prosecutions, will, we submit, be more able to judge whether or not it is in the public interest for an individual to be proceeded against. This amendment lays down that duty very clearly. It is a useful supplement, we submit, to the stated power that the Director may discontinue proceedings. I beg to move.
Lord Simon of Glaisdale: I wonder how far this amendment is necessary at all. I should have thought that it was part of the functions of any prosecutor seized of a prosecution to decide how far it should be continued. If that is so, I hope very much that the noble and learned Lord will not press an unnecessary amendment.
The second point that I should like to raise is this. The duty is imposed in proceedings under paragraphs (a), (c) and (d). If it is incumbent then, I cannot see why it should not be incumbent in (b),.where the Director considers that the case is sufficiently important for him to call it under his aegis. Surely, it is still his duty to consider at every stage whether the proceedings should be continued.
The third point on which I should like enlightenment is that the duty is imposed on the Director. The Director is defined in the interpretation clause as the Director of Public Prosecutions. Is it the intention that the decision under this amendment should, in all cases, be taken centrally?
6.15 p.m.
Lord Rawlinson: Before my noble friend replies, I, too, should have thought that there must be—I have always understood this to be the case—the power of the prosecutor and the Director to discontinue. If he can take over, he must be entitled to discontinue. One of the great purposes, I hope, of having this service is that he shall say, "No. You may have charged him but there really is not the evidence and I refuse to see this prosecution continued." This introduces the element of independence.
One matter that has concerned me is that, although the Director may have the power in this Bill, what is the position of counsel whom the Director instructs? I have always understood the role of counsel who is instructed to prosecute as being totally and utterly his responsibility; namely, that if he decides that he is not going to continue with the particular prosecution at the time, he may, in his discretion, announce that he is not going to offer any further evidence. I have always wondered what is exactly the position of prosecuting counsel instructed by the Director and that of counsel who is perhaps instructed by other persons in other circumstances?
I hope that the independence will be maintained. It is important that counsel may go to the Director,

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although, of course, it will be the Director's representative while the case is going on, and say that the case should not be proceeded with, that there is not sufficient evidence and that he will make that clear when the court sits again. It is important that this should be maintained.
I hope that, in this service, we shall always have counsel who, at times, defend and who, at times, prosecute and that we shall not have, come what may, in this important service, a regular prosecuting corps of advocates and a regular defending corps of advocates. This is contrary to the great traditions of the Bar that have led, in a sense, to the liberties of the British people. I agree with the noble and learned Lord, Lord Simon. I do not think that the amendment is really necessary. I hope, however, that it is clear that counsel instructed by the Director can take the step of discontinuing if he thinks fit.
Lord Wigoder: I am not entirely sure that I agree completely with the observations of the two noble and learned Lords who have just spoken. I accept the view, of course, that if the police have charged someone against whom there is no evidence, the powers of the prosecutor to abandon the case are entirely adequate at the moment. The clause, I think, seeks to deal with the situation that gives rise to great problems at the moment where the police have charged a person perfectly properly because there is some evidence, a scintilla of evidence, against that person, and yet the independent prosecutor, when he looks at the papers, comes to the conclusion that it is not in the public interest that the prosecution should continue.
The problem facing the prosecutor in that situation is that, if he takes the common sense view and offers no evidence, there is a risk of proceedings being brought by the defendant on the grounds of malicious prosecution, wrongful imprisonment or whatever it may be. Therefore, rather than incur the possible risk of such proceedings, the prosecutor tends at the moment to say, "There is a little evidence. We must go on to the bitter end and allow either the magistrates' court or the jury to acquit in due course". The most common example that I can give—it happens over and over again—is the interminable trial in which there are a whole series of, let us say, bank robbers in the dock on a charge of conspiracy and tucked away in one corner, a couple of gangsters' molls, because, when the police arrested everyone, those two wretched young ladies happened to have stolen £5 notes in their handbags. Perhaps any prosecutor looking at the papers independently would say "Let us save a vast amount of time and trouble. Let us discontinue the proceedings against these particular defendants and let the police issue cautions as envisaged by this clause". I believe that that is really what is aimed at, and I think that in the present situation there is a weakness which this clause very sensibly seeks to remedy.
Lord Campbell of Alloway: I should like to say, very briefly, that the difficulty is that we create a new statutory obligation under the Bill—again using the words of my noble friend the Minister—to take over proceedings instituted by the police. Therefore, reasonably enough, the amendment proposes a statutory safeguard on the Director so that he is under
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a duty to consider whether it is desirable to continue those proceedings. With the utmost respect to noble Lords who think otherwise, I should have thought that the logic of the amendment was impeccable. I know it could not ever have been the intention of the noble and learned Lord, Lord Elwyn-Jones, but I see the point that it erodes the status and functions of counsel. I know this could not have been present in the mind of the noble and learned Lord, and I find myself in some difficulty.
Lord Elwyn-Jones: This matter would arise before the question of delivery of brief to counsel would occur; before committal. That would be the position. I do not think it would encroach on counsel's responsibilities.
Lord Elton: The purpose of this amendment seems to be to ensure that the new service will consider whether it is appropriate to discontinue proceedings instituted by the police. That is an entirely proper aim. Indeed, one of the main objectives of establishing the new service is to secure a higher quality of decision-making. As the Working Party on Prosecution Arrangements, whose report was published in the White Paper of October 1983, put it, the effect should be that cases which are unlikely to succeed should be weeded out at an early stage. I presume the gangsters' molls would be among the weeds. When the new service—
Lord Wigoder: With respect, no, because they are the cases that succeed; and after a trial lasting four months the judge says to the wretched moll, "Now go away and don't do it again". That is what one is seeking to avoid by this amendment.
Lord Elton: I am properly corrected by the noble Lord, and I shall have to reflect on what he has said.
When the new service is established, all cases in which the initial decision to institute proceedings has been taken by the police will be scrutinised by legally-trained professionals who will have the responsibility of deciding both whether there is sufficient evidence and whether it would be in the public interest for the case to continue. They will do so in accordance with guidance promulgated by the Director of Public Prosecutions; and I think this is where we get towards the case of the noble Lord, Lord Wigoder. This, we envisage, will build on the guidelines, on the criteria for prosecution, issued by the Attorney-General at the beginning of 1983. As noble Lords who have seen these guidelines, which are in the Library, will know, the need to take account both of the sufficiency of the evidence and of the public interest is stressed in them.
The amendment, of course, is framed more modestly than this. It seeks merely to put on the face of the Bill the duty of the service to consider whether proceedings should continue. In fact, as the noble and learned Lord, Lord Simon of Glaisdale, has suggested, they are, as I think the noble Lord will on reflection agree, already there. The references to the conduct of proceedings contained in Clause 3(2)(a), (c) and (d)—and (b)—are interpreted in Clause 14(3). If your Lordships look at that subsection you will find it includes the discontinuation of proceedings. The clear

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implication is that the new service must consider whether it is right to continue. The noble Lord's amendment, which I accept is entirely well-intentioned, adds nothing to that, and I hope that he will be satisfied with that.
May I reply to two other points? The noble and learned Lord, Lord Simon of Glaisdale, was concerned as to whether this meant that on every occasion things would have to go to the Director. I refer him, respectfully, to subsection (6) of Clause 1 of the Bill, which makes it clear that for these purposes the steps to be taken by the Director are to be taken by a prosecuting officer; therefore, we get over that difficulty. I can confirm, if I understood his question right, that the definition in Clause 14(3) does apply equally to Clause 13(2)(b) as to the other three subsections he named.
My noble and learned friend Lord Rawlinson asked about the position of counsel. This is a question which is under review at present by a working party of the Bar, under the chairmanship of Mr. Justice Farquharson. Present law and conventions, I understand, give counsel some degree of independence in relation to the Director or police prosecuting solicitor, but the relationship is a subtle one and not entirely well defined; and it is at present under review.
Lord Elwyn-Jones: The experience of the noble and learned Lord, Lord Rawlinson, will confirm that last observation. Fortunately, counsel, in my own experience, has stood firm occasionally and been allowed to offer no evidence at the trial. The issue arising here is to some extent highlighted and made more detailed and perhaps more practical in the next amendment, Amendment No. 16. But in my submission there is value, at this point of time, in inserting the provision in the amendment. It is quite true—and we did give consideration to this—that far ahead in the Bill we find Clause 14(3). If Clause 14(3) had been embodied in this part of the Bill—at an earlier stage—we might have been more content, but in our view the separateness of that provision from what we are now discussing in regard to the duties of the Director make the amendment desirable. At this stage, when the prosecution can take a certain course in view of the unlikelihood of a conviction and the other factors which the Attorney-General has spelt out, surely it would he desirable that the Director should apply his mind initially, after charging and before committal, to consider whether it is desirable that the proceedings should or should not be continued.
The courts are facing a crisis situation with the burden of work that is coming before them: massive cases, with a considerable number of acquittals on trial, some of which at any rate could have been anticipated. Indeed, this is one of the objects of this whole exercise: to try to limit the number of hopeless cases that come before the courts. Therefore, I take the view that this amendment is a reasonable one. I do not know whether my noble friends feel that we ought to press the matter at this stage to obtain the view of the Committee. My own inclination, in view of the perhaps greater importance and greater directness of the next amendment, is to say that at this stage, at any
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rate, I think I shall be content to ask for leave to withdraw the amendment. We may return to it again at a later stage.
Amendment, by leave, withdrawn.
On Question, Whether Clause 3 shall stand part of the Bill?
Lord Mishcon: If I may, I should like to make one brief point. It is one which I know worries the Automobile Association. Before we leave Clause 3, can the noble Lord the Minister, in his usual succinct way, tell us what the position is in regard to fixed penalties? Does it mean that if the police have failed to give notice of a fixed penalty the prosecuting service can nevertheless exact a fixed penalty instead of bringing proceedings?
Lord Elton: Ignorance is an aid to succinctness, but so is condensed knowledge. The answer is "No".
Baroness Phillips: I should like to make two small points. I have been waiting to ask a question. It may be an over-simplification, but, then. I am not a lawyer. The noble Lord, Lord Wigoder, in his comments on the last amendment, gave an example of where a prosecution was discontinued, and he made reference to a caution. As I understand it, a caution can be administered only after guilt has been admitted. I could not quite see the connection with discontinuing proceedings, because surely if one discontinues proceedings, that is the end of the matter. Secondly, if it is decided by the director to discontinue proceedings when they are brought by the police, would that rule out the possibility of a citizen taking out a private prosecution?
6.30 p.m.
Lord Elton: As regards the first question raised by the noble Baroness, I point out that I also speak with the disadvantage of being a non-lawyer. However, as I understand it, proceedings begin when information is laid. I also understand that if there is a caution and information is not laid, that is an alternative when you are dealing with a case. That disposes of the first question. The second question which the noble Baroness asked is very much larger. The noble and learned Lord, Lord Simon of Glaisdale, has tabled an amendment aimed at the heart of the question of private prosecution. I think that perhaps rather than discuss it under clause stand part, I ought to wait until the appropriate time.
Lord Mishcon: I hope that the noble Lord the Minister will forgive me if, very briefly, I answer his one word, "No" by saying that he might care in his courtesy to give consideration to the point that I raised on clause stand part; otherwise of course the matter will have to be dealt with by an amendment at the Report stage to cover the position.
Lord Elton: I am extremely sorry that I have been rather discourteous to the noble Lord in that I was myself actually distracted as he was commending to me a course which I am sure is absolutely reasonable but to which I ought not to agree at this Box before I know what it is.
Lord Mishcon: I only asked the noble Lord the Minister to consider the position in regard to fixed penalties and the prosecuting service and the lapse by the police in administering a fixed notice provision when it was deemed by the prosecuting service that that was the proper thing to do. I merely asked the noble Lord to consider it and possibly write to me on the matter, because it might save tabling an amendment at the Report stage.
Lord Elton: I am most grateful to the noble Lord for his patient understanding and I am very happy to undertake to consider it further and to write to him if necessary.
Clause 3 agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 16:
After Clause 3, insert the following new clause:
("Discontinuance of proceedings.
.—(1) In any case where criminal proceedings have been instituted and—

(a) the Director has the conduct of the proceedings; and

(b) the case is within the jurisdiction of a magistrates court
(whether sitting as examining justices or otherwise),

the Director or, as the case may be, a prosecuting officer may by issuing a notice of withdrawal discontinue any part of or all of those proceedings.
(2) No notice of withdrawal discontinuing proceedings in respect of an information charging an offence shall be issued after a magistrates court has embarked on the summary trial of that information.
(3) A notice of withdrawal shall be served on the clerk to the justices and shall take effect when it is so served; and a copy of the notice shall be served on the person or persons against whom the charge had been made.
(4) Where an information charges two or more persons with an offence, a notice of withdrawal may discontinue the proceedings in respect of any of those persons.
(5) Where a notice of withdrawal discontinuing the proceedings in respect of a charge against any person is issued—

(a) no court shall entertain any information or indictment against him in respect of that charge, except an information laid with leave of a magistrates court, or an indictment preferred with leave of a circuit judge; and rules of 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; and

(b) a prosecuting officer may direct the chief officer of police to cause that person to be cautioned by a police officer not below the rank of inspector;

and any such caution shall have effect in accordance with section (cautioning By Police).")
The noble Lord said: I hope that if I try to deal with this matter briefly, the Committee will realise that it nevertheless is a very important amendment, especially in view of the discussion which took place on the previous amendment. I do not propose, therefore, to repeat at length the argument because I know that the Committee accepts and so does the noble Lord the Minister that one of the purposes of setting up the prosecution service is to see that there is weeded out at an early stage those prosecutions which are deemed to be hopeless and those prosecutions which should not be brought for reasons of public policy.
As regards the present position—and again I put it briefly, though I am not covering the whole of the ground in so doing—generally speaking, the only way in which a prosecution can be withdrawn is either by offering no evidence, but that means that the whole panoply of a trial has at least to be started before that stage is reached with the prosecution saying that no
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evidence is offered, or by applying to the court for leave to withdraw the prosecution. Not only is that again an unnecessary and painful step, but your Lordships might also think that it is a very embarrassing step on occasions because if the court asks for the reasons for the withdrawal of the prosecution, prosecuting counsel is very often put in a difficult position because the reason may be that he happens to have ascertained—although the defendant does not know it—that the defendant is suffering from a terminal disease and it is thought quite inappropriate to continue with the prosecution in those circumstances. Alternatively, it might be that one of the witnesses coming forward for the prosecution is deemed to be unreliable. Again, that is a rather difficult thing for counsel for the prosecution to say to the court.
Therefore, the opportunity is taken by the amendment—and I hope that the Committee will think that it is a sensible opportunity—to provide a simple procedure in those cases where a notice is served by the prosecuting service saying that there is to be a withdrawal of the prosecution. For those good reasons I hope that your Lordships will think that this amendment is put forward with the utmost seriousness from these Benches and, I note with pleasure, with support from other Benches.
I give only two quotations in the hope of showing the Committee that this proposal was, I believe, in the minds of those who are responsible for this legislation. I note that at the annual conference of the Prosecuting Solicitors' Society, which was held on 22nd September 1984, Mr. David Mellor, Under-Secretary of State, said:
"The extent of devolution proposed, together with the new status—with the statutory authority to drop charges, but perhaps more significant, overall responsibility for the conduct of the case—should foster the development of a strong professional ethos and contribution from all members of the service.".
Naturally, I am emphasising in support of the amendment the words:
"the statutory authority to drop charges",
which were mentioned by the honourable gentleman.
The second and last quotation that I give comes from a Home Office consultative paper on Cautioning by Police, issued in June 1984, which noted in relation to the prosecution service:
"the service will be responsible for the conduct of all cases where proceedings have been instituted, with discretion to alter or drop charges".
I beg to move.
Lord Simon of Glaisdale: I have only one small point to raise. As the noble Lord the Minister indicated, I have tabled an amendment later on which goes to the very heart of the question of the right of private prosecution. I wanted to be assured, in view of the opening words of subsection (5)(a), that this amendment does not impair the right of private prosecutions. I ask that question because my noble and learned friend Lord Elwyn-Jones is liable to fall into heresy on this issue. On the other hand, the noble Lord, Lord, Wigoder, is, I think, staunchly orthodox. However, they have both put their names to this amendment. Perhaps the noble Lord, Lord Mishcon, could reassure me on that matter.
Lord Rawlinson of Ewell: I should also like to ask for clarification on subsection (5)(b). Where a prosecuting officer has had a notice of withdrawal,
"a prosecuting officer may direct the chief officers of police to cause that person to be cautioned by a police officer not below the rank of inspector".
I suppose it is far-fetched, but a situation could arise where a person might refuse to accept the caution. I am not quite sure what the caution is. It may be that someone will think that he has been wrongfully charged and he will want to have the matter dealt with. I notice that in a subsequent amendment to the new clause it is proposed that the caution will be maintained—I do not know, but perhaps it is now—on police records. I presume that a caution has to be accepted by the person who is cautioned. He has to say that he is prepared to accept a caution, which is then entered on the criminal record. It may be that a person would say, "I don't want to be cautioned if it is going to be on the criminal record; I would rather face the accusation which is being made against me". I only really ask for enlightenment from the proposers of the clause as to what they really have in mind. Is it to be a recorded caution? If so, is the person going to be told what his rights are and the alternative—prosecution or caution? That is what I would like to hear from the proposers of the amendment.
Lord Mishcon: I know that the noble and learned Lord knows me well enough to know that I should not have risen in the middle of a sentence unless I thought that my intervention might be helpful. I have an idea—I may be wrong—that the noble and learned Lord thought we were dealing with Amendment No. 17, which deals with cautioning, whereas in fact we are dealing with Amendment No. 16. If I err in saying that, may I tell him that my noble friend Lord Elystan-Morgan, who will deal with Amendment No. 17, will reply to the specific point that he made about cautioning.
Lord Rawlinson of Ewell: I appreciated that we are dealing with Amendment No. 16, but I see that cautioning comes into Amendment No. 17. If the cautioning in Amendment No. 16 is the same kind as that in Amendment No. 17, then, because it is being introduced in Amendment No. 16, I should like to know the effect of it. In other words, does it mean a criminal record for someone? Someone may have said: "I will take the caution but not be prosecuted", someone else may say "I will be damned if I will be cautioned because I have done nothing wrong". I should like to know what the proposers of this particular caution in this particular clause have in mind.
Lord Mishcon: I am most grateful to the noble and learned Lord and he is absolutely right. In subsection (5)(b) there is the provision that:
"a prosecuting officer may direct the chief officer of police to cause that person to be cautioned by a police officer not below the rank of inspector".
That comes within the provisions of Amendment No. 16. I am most grateful to the noble and learned Lord for pointing that out.
This whole question of Amendment No. 16 is based on the withdrawal procedure. The question of the
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caution procedure will be dealt with under Amendment No. 17. I can only say that the main purpose of the amendment does not deal with the question of caution but merely incorporates it in its midst. I hope that the Committee would not have regard to a point on a caution until we reach Amendment No. 17 and meanwhile will agree that no harm would be done by the passing of Amendment No. 16.
Lord Campbell of Alloway: With respect, one cannot very well pass Amendment No. 16 without knowing whether under Amendment No. 17 someone can be cautioned against his will. One cannot proceed on an unknown hypothesis—or can one?
Lord Elton: I think that one often does in practice, but it is not to be commended. May I take it that noble Lords opposite are not speaking to two amendments but only to one and that we shall consider the amendment before us as though it were embeded in the Bill, which otherwise remains as it stands and that the caution that they are speaking of is the caution that now exists?
Lord Mishcon: That is right.
Lord Simon of Glaisdale: Before the Minister replies, I wonder whether the noble Lord, Lord Mishcon, would be kind enough to deal with the question I asked as regards subsection (5)(a) as to whether that impedes the right of private prosecution.
Lord Mishcon: As I understand it, it does not impede the right of private prosecution. As I understand it, what would happen is this. If the prosecutor's office took over a private prosecution, under this amendment that office would then have the right to serve notice of withdrawal. Indeed, as I understand it, at present in certain circumstances the Director has the right, which is very rarely exercised, to take over a private prosecution and then to enter a nolle prosequi if he decides so to do.
6.45 p.m.
Lord Simon of Glaisdale: But that ends—does it not? —with a verdict of not guilty, so that, any subsequent proceedings are met with the plea of autrefois acquit. There is a difference. I speak with great diffidence in the presence of the noble and learned Lord the Lord Advocate; but there was a famous case in Scotland where the Lord Advocate did not proceed and a private prosecution then took place with success. That was the case generally known as the Glasgow rape case.
Lord Elton: If it is useful, the advice I have is that the clause impairs the right of private prosecution because it requires leave from the court for any further prosecution, regardless of how it has been brought about—public or private—on the same charge. I am most grateful to noble Lords who have put down this amendment for raising a question on which it is most helpful to the Government to know your Lordships' views, since we have not found it an entirely easy question and there are weighty considerations on both sides of the question.

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The issue is whether the Crown prosecution service is to have power to discontinue proceedings which are pending before a magistrates' court without having to apply for the leave of that court. Under the present law, as I understand it, withdrawal of proceedings in a case to be tried summarily—though not in committal proceedings—requires the consent of the court. This requirement applies from the point at which an information is laid or, in a case where the defendant has been arrested and charged by the police, from the presentation of the charge sheet to the court. The question whether the requirement of leave of the court should continue was considered by the Royal Commission on Criminal Procedure in paragraph 7.68 of their report, and their views were divided. A minority considered that the requirement should be maintained as a safeguard against withdrawal for improper reasons. The majority, however, recommended that the Crown prosecutor should be required to notify the court of a decision to withdraw, but should not be obliged to seek its consent; but he would be obliged to give reasons in writing for the decision. By way of protection for the accused person, the majority of the Royal Commission further recommended that he should be able to ask for the case to be brought to court and formally dismissed, so that no other proceedings on the same charge could be brought, and could apply for the reimbursement of any costs he might have incurred.
The amendment which is before the Committee evidently embodies the principle of the majority recommendation of the Royal Commission, but there arc some interesting differences in detail. The amendment applies only while proceedings are pending before a magistrates' court, and then only if the court has not embarked on summary trial. I think that the noble Lords who have put down the amendment are right not to seek to alter the position in the Crown Court, where the relationship between the judge and prosecuting counsel (who of course will in future continue to be drawn from the independent Bar) is a delicate one not susceptible to easy definition; it is among the matters now being studied by the working party of the Bar under Mr. Justice Farquharson's chairmanship to which I referred a moment ago, and we do not consider it necessary or appropriate for this Bill to make any immediate change in the procedure and practice of the Crown Court in that respect. As regards the magistrates' court, I note that the amendment does not require any indication of reasons for withdrawal to be given to the court; nor does it, as the majority of the Royal Commission envisaged, entitle the accused to insist on the case coming formally before the court or to apply for costs; instead it provides that proceedings are not to be reinstituted without the leave of a magistrates' court or circuit judge.
Your Lordships will wish to know why the Government have hesitated over accepting the Royal Commission's majority view. Briefly, it was because the primary purpose of Part I of this Bill is to establish a prosecution service which will be fully independent of the police; but it is not an obvious or a necessary consequence of that for the new service also to be more independent of control by the courts. When the Director of Public Prosecutions conducts proceedings
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in a magistrates' court at present, he is subject, just as much as any other prosecutor, to the requirement of leave of the court for withdrawal of proceedings. Thus it does not inevitably follow that the new service of which he will be the head needs, as an essential element in its independence, to be free of the requirement to obtain the court's consent.
Nonetheless, we do appreciate the force of the arguments which can be, and have been, brought to bear in favour of removing that requirement. First, if the Crown prosecution service can take a decision to discontinue proceedings which is operative without the leave of the court, the decision can be communicated immediately to the defendant and provide him with instant relief from the prospect of court proceedings. This would not only save him trouble and even perhaps some distress of mind, but could avoid unnecessarily incurring costs which might eventually have to be met from public funds. Secondly, when one considers the position of the court itself, one has to remember that magistrates—unlike the judge in the Crown Court—have no material before them in the way of depositions, statements and so on, on which they can form a view about whether the prosecution is right in seeking to withdraw the proceedings.
Thirdly, in some cases the reasons for discontinuing proceedings may be of a kind which it would be either contrary to the public interest or harmful to private individuals to disclose. The noble Lord, Lord Mishcon, gave a helpful example: facts about help which the defendant has given to the police, or, as the noble Lord said, about his own state of health, or about the circumstances or attitude of witnesses or others involved in the case. In the Crown Court counsel can put such matters to the judge in chambers, but in the magistrates' court there is no means of dealing with them otherwise than in open court.
In the light of the debate we have had as a result of this matter being brought to the attention of the Committee, noble Lords will I hope be pleased to learn that we are prepared, subject to what I have to say on one or two aspects of the amendment, to meet them on the principle. We shall therefore prepare a provision which I shall endeavour to bring forward at the Report stage. But, as I say, I have to make one or two subsidiary points.
First, if the view of the majority of the Royal Commission is accepted in principle then we would think it right to accept also their consequential proposals both as regards giving the court reasons for withdrawal—though it would not necessarily be right to communicate these reasons to the defendant, or to make them public—and as regards giving the defendant an opportunity to be vindicated publicly by having the case dismissed in court and to apply for costs. That would of course be at the request of the defendant. On these points the proposals of the majority of the Royal Commission appear to us preferable to those of subsection (5)(a) of the new clause before us.
Secondly, for reasons which I shall indicate more fully when we come to the new clause on cautioning by the police—and I hope noble Lords will be prepared to wait until then—I suggest that it would be wrong to

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make the cautioning process, which should remain essentially informal and flexible, the subject of a statutory provision such as is envisaged in subsection (5)(b). In order not to make this provision over-
elaborate, it has been drafted in such general terms that where a defendant intended to plead not guilty and the prosecution was withdrawn for lack of evidence, the police could still be directed to caution the defendant.
Of course, the provision would not be applied in such a perverse way in practice; but if applying it sensibly depends on the good sense of members of the Crown prosecution service and the police acting in accordance with guidance from the Director of Public Prosecutions and the Home Office, it would be better to leave the question of cautioning to be dealt with, as at present, under non-statutory guidelines. Subject to these points, I hope that in the light of the assurance I have given that the Government will bring forward a provision to deal with the principle of the new clause, noble Lords may be willing to withdraw the amendment at this stage.
Lord Mishcon: I am most grateful, as are my noble friends, and I am sure those associated with this amendment, for the way in which the noble Lord the Minister has dealt with it and has given certain assurances. I know that before I ask for leave, in the circumstances, to take a certain course the noble Lord will forgive me if I quote, only for the purpose of the record, one sentence in the Philips Report, the Royal Commission on Criminal Procedure, at page 167:
"In the opinion of the majority, however, present experience suggests that requiring the leave of the court to withdrawal has to a large extent become in practice a mere formality".
In the circumstances mentioned by the noble Lord the Minister, and in view of his assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 17:
After Clause 3, insert the following new clause:
("Cautioning by police.
—(1) Where a police officer not below the rank of inspector is satisfied that any person has committed an offence, he may, instead of charging that person or causing him to be prosecuted, caution him.
(2) No person shall be cautioned in respect of an offence unless the cautioning officer is satisfied—

(a) that there is sufficient evidence against him such that a court might properly convict him of that offence; and

(b) that no person aggrieved by the offence intends to prefer an information or indictment against the offender in respect of that offence;

(3) Where a person has been cautioned in respect of an offence no court shall entertain any information or indictment preferred against him in respect of that offence, except an information or indictment preferred with the consent of the Director of Public Prosecutions.
(4) A caution may be maintained on police records for a period of two years and, unless the person cautioned is convicted of a recordable offence during that period, it shall thereafter be expunged from such records.
(5) A person who has been cautioned (or the parent or guardian of a child or young person who has been cautioned) may within one month thereof apply to a magistrates' court for an order directing that there is to be no entry maintained in police records of the caution and that any such entry already made shall be expunged; and the court shall make the order unless satisfied that the person committed the offence.
(6) An application under subsection (5) shall be by way of complaint against the chief officer of police of the area in which the person is cautioned; and on the hearing of such a complaint the procedure shall be the same as if it were an information preferred by the officer against the person.
(7) Unless the person desires that the proceedings shall be conducted in public, an application under subsection (5) shall be heard and determined in camera.
(8) In exercising their functions and powers under this section police officers shall have regard to any guidance given to them jointly by the Secretary of State and the Attorney General.
(9) For the purposes of this or any other Act a caution shall not be deemed a conviction.")
The noble Lord said: The purpose of this amendment is to give the practice of cautioning offenders a statutory status and basis. Although, of course, cautioning is something that we have had for a long time as an alternative to prosecution, and although there is reference to cautioning in three Acts of Parliament, it is nowhere spelt out in detail and nowhere is the legal effect of cautioning actually defined. It is referred to, as the Committee will know, in the Street Offences Act 1959, in the Children and Young Persons Act 1969, and in the Act which Parliament passed last year, the Police and Criminal Evidence Act.
The practice of cautioning is one which undoubtedly is very much on the increase. The consultative document issued by the Home Office is very aware of the point that there are substantial inconsistencies between one police area and another. The Home Office envisages that to some extent this may be cured by the issuing of guidelines. I understand that those guidelines are likely to be published in the fairly near future.
The point behind the amendment, however, is that we doubt very much whether such consistency can be achieved without something of higher standing than the issuing of guidelines. After all, the Inspectorate of Constabulary, no doubt for decades, has been travelling from one chief constable to another seeking to bring about a greater consistency than exists at the present moment.
I was about to quote from the report of the Royal Commission, but it is, if I remember rightly, at paragraph 640 of that report that the point is made by the Royal Commission that there is a great variance between the rates of cautions issued in respect of indictable offences comparing one police force with another. It gives a group of areas where the caution rate is 2 per cent.; it lists others where it rises to 15 per cent.; others at 17 per cent., and I think Suffolk was at the top of that league in 1978, if I remember rightly, at 22 per cent. I see the Minister nods. I think I have it reasonably accurately. That was the situation with regard to indictable offences relating to adult persons.
Again, there was a wide disparity between police forces, some running at the rate of 33 per cent. in relation to the cautioning of juvenile persons in respect of indictable offences, whereas a group of other forces went as high as a figure of over 60 per cent. I am sorry that I have not in fact got the document with me to be able to quote the exact figures, but I think the ones I have given are broadly accurate.
Lord Elton: I should like the opportunity, not to interrupt the noble Lord but to pay him the compliment that he has remembered everything

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absolutely accurately. I have been checking in the papers that he did not have before him.
Lord Elystan-Morgan: I am grateful to the noble Lord the Minister. No doubt these inconsistencies are well known to nearly every Member of this Committee, and I have not the slightest doubt but that they cause worry, if not, indeed, despair. How can we even convince the public at large that ordinary men and women stand in exactly the same light before the law? It surely depends where they live.
Of course, so far as the more serious offences are concerned, where the issue of discretion as to prosecution does not arise it does not make any difference at all, but in borderline cases—and these are the cases where caution is administered in so many cases—it depends a great deal on whether you live in Cleveland, in Greater London, in South Wales, in Suffolk or, indeed, in Devon and Cornwall. That is something which brings the administration of justice into utter disrepute.
Since I still do not have the report, I think I can accurately summarise it if not quote the recommendation made by the Royal Commission, I think at paragraph 759, where it made the point that it was necessary, first, to give a legislative basis to the practice of cautioning, long hallowed by usage, and, secondly, that every effort should be made by legislation to bring about as much consistency as is reasonably possible.
7 p.m.
That is what this amendment by way of a new clause seeks to do. If I may summarise its provisions in a few sentences, they are these. First, it sets out the general principle in subsection (1); secondly, it ordains that no person shall be cautioned unless there is a prima facie case against him and unless it be the case that no private prosecution is already extant in relation to that matter; thirdly, it states that where a person is cautioned no court shall entertain any information or indictment prefered against him save with the consent of the Director of Private Prosecution; fourthly, a caution may be maintained on police records for a period of only two years. At the moment, as I understand it, there is no time limit for the maintenance of that record. It remains for all eternity, as I understand the position at the moment. Subsections (5), (6) and (7) deal with an appellate procedure so that, if a person wishes to challenge the validity of that caution, that person is entitled within a period of a month to appeal to a magistrates' court sitting in camera, if so requested, and to have the matter adjudicated upon by that Bench.
That, I think, to a large extent answers the question raised by the noble and learned Lord, Lord Rawlinson of Ewell. He asks what would happen if a person did not wish to be cautioned and wished to challenge the matter. The clause does not ordain that a caution should be administered only in cases where there has been a confession. I am sure that the Committee will readily understand why that should be so; because there can be few more agonising situations for a person to be placed in than, on the one hand, to have the temptation of having everything against him dropped provided he makes a confession and, on the other hand, to confess to something of which he is not guilty.
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What clearer inducement could there be to make (to put it in technical language) an involuntary statement in those circumstances? Where a person says presumably, "I don't wish to be cautioned", then of course (to use a slang term) everything goes back to square one and the situation then is that the prosecuting authority will consider what its position would be were it not for the fact of having sought to administer a caution. In most cases, no doubt, the matter will proceed in the ordinary way but, of course, it may be one of those cases where one of the bundle of considerations material to the issue of whether to caution or not was the fact that the case against the would-be defendant was a weak one and that it might not proceed in any event on account of that particular factor.
Subsection (8) maintains that police officers shall have regard to any guidance given to them jointly by the Secretary of State and the Attorney-General. Well, of course, guidance is given at the present moment to the Inspector of Constabulary and subsection (9), for the avoidance of doubt and from an abundance of caution, ordains that a caution shall not be deemed to be a conviction. We commend this amendment to the Committee as a strong weapon in the armoury of the public in the battle against crime and a weapon that can be made more efficient by making it more consistent in its use. I beg to move.
Lord Elton: I am grateful to the noble Lord for giving us a chance to look at an important facet of the policy area covered by this Bill. Cautioning policy is relevant to prosecution policy because cautioning is a means, an important and much-used means, although a varyingly-used means, of diverting offenders from the prosecuting process and the courts. If the new clause looks faintly familiar to your Lordships, as it did to me, it is because those of us with a close interest in the Police and Criminal Evidence Bill in the last Session are seeing it for the second time. It was tabled in Committee on that Bill in another place by one of the noble Lord's friends whom my right honourable friend congratulated on his perseverance and gallantry in attempting to provide a framework for cautioning. The Committee, I may add, negatived the Motion to include the new clause in that Bill but that in no way makes it less suitable as a pretext for a debate in this House. It does give a clue as to what the Government's reaction is likely to be.
Nonetheless, I welcome the opportunity to discuss cautioning and will put forward our response to the arguments in favour of a legislative basis for it. First, though, I think that I should say something about the Government's attitude about cautioning, something about what we have been doing and something about where matters will stand when the Crown prosecution service comes into being.
Cautioning is, of course, a well-established alternative to prosection. It has an important role to play in diverting offenders, particularly juvenile offenders, from the criminal justice system. It represents a decision not to prosecute. It takes the form of a warning, normally delivered by a uniformed police officer, to the offender as to his future conduct. The Royal Commission drew attention to the disparities in cautioning rates among police forces and the noble

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Lord drew our attention to the Royal Commission and proved that it was necessary for us to have only one copy of the report between us and that it was essential that I should have it.
Accepting those discrepancies, let me say what steps we have been taking. In June this year, we published a consultative document which included research undertaken into police force practice, the report of a working group of Home Office officials and chief officers of police, and draft guidelines to the police on cautioning. The guidelines represented the view of the working group as to what was needed to create greater consistency and effectiveness in the use of cautioning. I may add that the group itself commented that they did not believe that a statutory definition of cautioning would, of itself, create greater consistency. Those draft guidelines have been the subject of consultation, and comments have now been received on them from many bodies. My right honourable friend hopes to publish very shortly a final version of these guidelines which will have been revised in the light of the consultations. Thereafter we will be watching to see how police forces operate the guidelines. We shall place particular reliance on Her Majesty's Inspectorate of Constabulary to ensure that they are applied.
Under the provisions of the Bill as drafted, the initial decision as to whether to institute proceedings will in general remain with the police and so, therefore, will the ability to caution an offender. In cases of doubt, it will always be open to the police to seek the advice of the prosecutor as to the right course of action in an individual case; and, if the police institute proceedings, it would be open to the prosecutor to drop charges, recommending (as the Director of Public Prosecutions now on occasions recommends) that a caution can be given instead. Certainly, however, our hope is that consultation between the new service and the police as to the general policy to be followed will make such cases few and far between. And the guidelines will be open to discussion with the advent of the new service.
The Committee will realise from what I have just said, if from nothing else, that we regard cautioning as an important means of diverting suitable offenders from court and as a proven one. It is widely used, as I have said, but it does not necessarily mean that a case is made for the process to be subject to statute. The noble Lord asked whether we should not have the sort of safeguards for the offender which his amendment proposes. Certainly, it is inherent in the nature of the caution that it may determine future action against the offender should he offend again. We ought therefore to be as certain as we can that the offender did commit the offence in question. Agreed: and the new guidelines will bring home the importance of ensuring a sufficiency of evidence against the offender, that he admits the offence and that he consents to be cautioned.
What is the position that the noble Lord's amendment provides to the aggrieved party who intends to prosecute privately? This will interest the noble and learned Lord, Lord Simon of Glaisdale. Here, we admit that there are difficulties. The noble Lord's amendment suggests two ways of dealing with it. First, the police should satisfy themselves that the aggrieved party does not intend private proceedings
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and, secondly, it puts a bar on private proceedings after the issue of a caution except with the approval of the Director of Public Prosecutions. I suggest that the first step is in the right direction, although I am not certain that I see a case for making it a legislative one. But the second step seems to us to raise very difficult issues about restricting the right to private prosecution. I think the noble and learned Lord will be with me there.
The noble Lord's amendment would create a right of appeal. I cannot help wondering whether that is not a very elaborate machine. If the virtues of cautioning lie in its flexibility, informality and simplicity, are we not in danger of subverting them? And if our objective is to remove people from the formal criminal justice system, do we not stand every chance of putting them straight back in? In what is here proposed I catch very clear echoes of the scheme for cautioning prostitutes under the Street Offences Act 1959 and its provisions for appeals. I hardly think we can be encouraged by that precedent.
In short, I think the amendment would formalise and make more complex what ought to be informal and simple. Moreover, I think it would militate against what we must continually recall as one of the objects of this legislation: the expedition of justice. The hearing of applications under subsection (5) of the proposed clause, which will in effect be appeals against police cautions, will be a new class of business that will presumably have to be carried by old shoulders.
I would add one other gloss of information about what we propose in the future. The guidance which the Home Secretary has in mind to issue shortly, and to which I have referred, proposes a time limit of three years before the offender's record is cleared: if he does not re-offend, then he would be cleared. So I think that much of what the noble Lord wants will emerge in the course of events.
Lord Elystan-Morgan: I am sure we are very grateful to the Minister for the very full and sympathetic way in which he has dealt with the amendment. Certainly we will not divide the Committee on this matter, but we will ponder and reflect deeply upon his words. I do not consider that this is in any way a matter which is capable of easy solution. There is no perfect answer and there is no really acceptable situation that we can aim at.
What worries me very greatly, and, I am sure, worries the Minister in the same way, is that in a country with such meticulous standards of justice it is possible for two people to commit exactly the same acts in exactly the same situation in different parts of the country and yet one is prosecuted to conviction and punished and the other is cautioned. It may be that even without a statutory basis greater consitency can be brought about, but I am sure that it is the earnest hope and desire of each and every Member of this Committee that that will be the case, in one way or the other, whichever way be the most appropriate and efficacious in this connection.
In so far as the maintenance of records for a period of three years is concerned, I do not think we would go to war over the difference between two years and three years. I think it is about the right sort of variant, and

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I am very grateful indeed to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Trumpington: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
Lord Ponsonby of Shulbrede: My Lords, before we take the next business, perhaps the noble Baroness could indicate that we would not return to the Prosecution of Offences Bill before 8 o'clock.
Baroness Trumpington: My Lords, I apologise to your Lordships; I did not know how long the intervening business would take. However, assuming that it will take very little time, I trust the House will adjourn during pleasure until 8 o'clock.

Elections (Northern Ireland) Bill
7.14 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell): My Lords, I beg to move that this Bill be now read a third time.
I am personally very grateful for the careful consideration given to the Bill which is before us this evening. As your Lordships will have heard from me on several occasions, this is an important Bill dealing with a serious problem that goes to the very heart of our democratic process in a part of the United Kingdom where the political divisions are wide and where the probity of the electoral system is essential if these divisions are to be resolved through political dialogue and not through unconstitutional means and, indeed, violence.
During our debates in your Lordships' House and in another place we have all been united in support of the principles that underlie the Bill. It is of course widely accepted in Northern Ireland, in your Lordships' House and in another place that in recent years personation has become a substantially greater problem than in the past. The Government's objective is to protect the fundamental right of a citizen to vote by restricting so far as possible the opportunities for personation at elections in Northern Ireland.
There has been no dispute among your Lordships about the worthiness and, indeed, the necessity of this objective. Our experience in recent elections—most notably the 1983 General Election—has demonstrated clearly that the existing legislation is inadequate to deal with a problem of the scale that now confronts us. Our present electoral law was never designed to withstand the pressures to which it has been subjected recently. But we have had to bear in mind one other fundamental principle of the electoral system of the United Kingdom: that as few obstacles as possible should be put in the way of the legitimate elector who wishes to cast his vote. The noble Lord, Lord Monson, drew attention to this particular point at Committee stage and expressed his fears that this Bill might discourage more legitimate voters than it would deter personators.
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However, I want to stress that we wish to encourage the legitimate voter by discouraging the vote-stealer. The legitimate voter, no less than the democratic process in general, is entitled to protection against those who are bent on abuse. The Government recognise the fears expressed by the noble Lord and others, and careful consideration is being given now to the most effective and extensive campaign of publicity which can be mounted, subject to Parliament's approval of the Bill, to ensure that every elector in Northern Ireland is made aware, first, of the requirement to produce a specified document in order to obtain a ballot paper on polling day; and, secondly, of the importance of coming out to cast their vote so that local elected institutions accurately reflect the true balance of political opinion in Northern Ireland and are distorted neither by abuse nor by abstention from the poll. I know that many in this House and in another place have expressed concern about publicity, and the Government will do all they can to get that aspect right. Of course, we shall also look to the Northern Ireland political parties to make sure that their supporters understand the new procedures and turn out properly equipped to vote on polling day.
At Second Reading, the noble Lords, Lord Dunleath and Lord Coleraine, both touched on the case for an electoral identity card with a photograph. Such an idea was also strongly advocated by some Members of another place. This is not a case that the Government dismissed lightly; but I am sure your Lordships would accept that if receipt of a ballot paper were dependent on production of such a document there would, in the judgment of the Government, be a substantial risk that the result of an election would be distorted. That is because so many people in Northern Ireland would, for a variety of reasons, refuse or otherwise fail to obtain such a document. Such a step, of course, would represent a far greater departure from the well-established voting arrangements than those provided for in the present Bill; and it is further than the Government wish to go unless it can be demonstrated that all other means of preventing abuse are ineffective.
I remain convinced that production of just one of a number of existing documents is the best approach, not least because the great majority of electors, if not all, should already have one of these documents to hand. For the slightly longer term, we are prepared, as I said at Second Reading, to look carefully at the proposal by my noble friend Lord Coleraine for a voluntary scheme of what we might call "protected voting".
This Bill is in effect a double-barrelled weapon against personators. The requirement to produce a specified document to assist the presiding officer in deciding whether there is any doubt about whether the elector is the person on the electoral register he claims to be, will make it considerably more difficult—but I stress not impossible—to practise personation. To attempt widespread, organised personation will now require an extensive commitment of resources from any organisation and it will also now expose those who seek to organise or practise personation to grave risk of arrest and subsequent prosecution under the provisions of Clause 3 which creates new offences relating to the specified documents. Taken together,

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these two clauses in the Bill provide a formidable weapon against those who seek to undermine the electoral system and subvert the democratic process.
I wish to thank the noble Lords, Lord Underhill and Lord Donaldson, and indeed all of your Lordships who have spoken and have taken interest in this Bill at its various stages in your Lordships' House, for the firm support that we have received in this important matter, and above all for your Lordships' assistance in helping its passage through this House. Much remains to be done consequent on its passing. It will be necessary to draft new local elections rules incorporating its provisions in good time for the district council elections in May. These must be made by Order in Council subject to the affirmative resolution procedure; and the political parties must have time to consider the new rules and their implications for the conduct of the forthcoming elections. The constructive and helpful comments of noble Lords will be of great help to all of those whose goodwill is required to see that fair elections in Northern Ireland lead to good government at local and, above all, at national level.
Your Lordships have scrutinised this Bill thoroughly; the Government have been supported strongly on all sides on the need for such legislation; and there is a consensus that, given Northern Ireland's circumstances, the approach we have taken is the right one. I beg to move.
Moved, That the Bill be now read a third time.—(Lord Lyell.)
Lord Underhill: My Lords, we are grateful to the Minister for again spelling out the reasons for the Bill. The last thing your Lordships would want is to go through the same speeches we made on Second Reading. On behalf of the Opposition I ought to make it thoroughly clear that we are completely in favour of the Bill. We regret the necessity for the Bill, but it is absolutely essential if we want to safeguard the integrity of our elections.
One important provision is that the list of documents can be varied, which will be by affirmative resolution. I am glad that the noble Lord, Lord Lyell, emphasised particularly the attention that will be given to publicity. This will be vital, particularly at the first elections this year. I am assuming that the Government, through the Northern Ireland Office, will be making adequate arrangements to monitor the whole process of the Bill, particularly the position of electors who may be turned away from the polling stations or not given ballot papers because they cannot produce one of the documents. One will want to know how those electors react. We do not want to find that a large number say, "To blazes with the election. They are not giving me a ballot paper, so I am not going to come back".
I have also been asked by the noble Lord, Lord Donaldson, to express his apologies. Another engagement prevented him from being here for the passing of this Bill.
7.24 p.m.
Lord Fitt: My Lords, let me say at the outset to set the Minister's mind at rest that I have no intention of
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speaking in as great detail on this occasion as I did on Second Reading. However, I think it is right once again for me to put on record some of my reservations about the Bill.
I support the Bill. I support the concern that has been expressed by the Government and by all legitimate authorities in Northern Ireland; but I do have legitimate reservations. It should be pointed out that of the 17 Members who were elected to represent Northern Ireland constituencies I would not agree with 16 of them—perhaps 17 of them. Fifteen of them voted against the Bill in the House of Commons. I think that their reservations and their concern should be taken into account. After all, they are the people who will be facing the electorate. We do not have to do that. We should listen very carefully to the reservations they have expressed.
Some of those reservations were rather frivolous; others were entirely valid. I would suggest to the Minister that many of the reservations in the speeches which I heard in the Commons, as reported in Hansard, which I read, in particular the speeches by Mr. McCusker and Mr. Ross (their constituencies have new names now) are entirely valid.
I was not present during the Committee stage of the Bill. I understand and I have read that an amendment was put forward by the noble Lord, Lord Monson. Had I been here, I would perhaps not have voted for his amendment, but would have agreed with many of the observations which he then made. I say that because this is not emergency legislation. This is not the emergency provisions Bill. This is not the emergency Prevention of Terrorism Bill. This will be an Act of Parliament which we are placing on the statute book and it will be there as far we as we can see into the future.
It is necessary to bring about this legislation because of the gross abuse of the electoral system which has taken place in Northern Ireland over recent years. It is right to say that a good deal of that abuse—perhaps 90 per cent. of it—has taken place within the nationalist community by representatives of Sinn Fein. I saw it at first hand in the West Belfast constituency at the last election. It happened again in Mid-Ulster and in other nationalist areas. It is right for us to take these measures, but I think we should be conscious at all times that this is bringing about a fundamental change between one part of the United Kingdom and another part.
We have heard over recent years that the Prime Minister has said that Northern Ireland is as British as Finchley. To anyone who knows the circumstances of Northern Ireland, that is so only in theory. It is not as British as Finchley. You do not have the armoured cars and the army in Finchley as we have them in Belfast. You do not have to have this type of legislation to apply to the electorate or voters of the Finchley area. So I think that, while it is necessary to adopt this legislation, every safeguard must be initiated to ensure that those people who wish to vote are not prevented from doing so because of the obstacles in this legislation.
I am somewhat heartened by the Minister's speech this evening in that he has given an indication that the Government will engage in maximum publicity in the

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run-up to an election to make every elector aware of the identity documents which will be necessary before he can vote.
There is another serious reservation. Both my reservations are linked, and I speak with some experience of elections. The tinted ballot paper—the pink ballot paper, as we have known it in Northern Ireland—was never of any great effect. It is there for psychological reasons to make the elector think that he has actually voted, but no election in Northern Ireland has ever been won or lost on a tinted ballot paper.
Other clauses in the Bill make provision that where an elector is refused a ballot paper because of the attitude of the presiding officer and that elector is in the right, he can have recourse to an election petition. What ordinary aggrieved elector will have recourse to the courts by way of an election petition? First, such a person would not have the expertise or the knowledge required to set about doing that. More importantly, he would not have the financial resources. I sincerely hope that such cases will not arise, and to have contained in legislation that such would be the likely outcome is way beyond the bounds of reality. It is hardly likely that any aggrieved elector would resort to an election petition.
I said when I first became a Member of this House and I say it again now, in full knowledge of the malpractice of impersonation as I saw it operate, that the Government obviously believe impersonation has reached a stage where it is necessary to implement legislation. Let the Government transfer their concern into the minds of the magistrates in Northern Ireland. I have known for many years that, although provision was made for maximum penalties in the case of a person convicted of impersonation, in practice such a person would normally be fined £5, £10 or £15—which was totally inadequate.
That was the level of fines in relatively peaceful days, before the advent of Sinn Fein, the paramilitary organisations and the almost military style of impersonation. I hope that the Minister will make it clear when he replies this evening that the courts in Northern Ireland will regard impersonation as a very serious offence. I would suggest imprisonment as the maximum penalty. The evidence will certainly indicate whether a person was being foolish or made a mistake, but persons who are guilty of deliberate impersonation in Northern Ireland will be clearly evident to the police. It will be clear who they are, on whose behalf they were operating, and how they were operating. When such persons are found guilty of impersonation, they should be sentenced to the maximum sentence.
I realise that we are to have local government elections, but before we have those elections, it is necessary to have further consultations with the elected representatives in Northern Ireland, as it is they who will stand or fall in the forthcoming elections. It is all right for me now because I no longer have a vote in Northern Ireland. I vote in Kent, and I do not believe that a great deal of impersonation goes on in that part of the United Kingdom.
Where a person has been arrested, taken to the police station, and charged with impersonation, then the RUC should hold that person until the poll closes
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later that day. In the 1983 elections, I saw young lads being arrested, taken to the police station, charged, and allowed out on bail—and immediately they were out on bail they went to another polling station. It was rumoured, although perhaps there was no firm proof, that one young lad who was charged and fined about £15 had voted 17 times that day. The fine was paid for him by the Noraid organisation in America. I suggest that a fine is not adequate in those circumstances and that if a person is convicted of impersonation, he or she should be sentenced to imprisonment.
With those reservations—and I am perfectly sure that the Government are well aware that this legislation is not foolproof and that mistakes can be made—I will only add that everything should be done to deter impersonators and to provide adequate facilities to ensure that those entitled to vote are permitted to do so.
Lord Lyell: My Lords, we are very grateful to the noble Lord, Lord Underhill, and for the kind compliments he passed on from the noble Lord, Lord Donaldson, who, we quite understand, has another engagement to meet: he was kind enough to warn me of that. The noble Lord, Lord Underhill, was also very kind in his comments and I should like to reciprocate them. He raised one point concerning the monitoring of the results of this Bill. I can assure him that the Government will be doing that. We could hardly fail to hear any protests and to take on board any points which arise. We believe that prevention is certainly better than cure, and that is why I reiterated at the conclusion of my opening remarks our belief that much has to be done when this Bill passes into an Act, as I hope it will, and that new regulations and rules for local elections will be required.
I should like to thank the noble Lord, Lord Fitt, for giving us the benefit of his knowledge of what has gone on. Indeed, the noble Lord has been—if one can say such a thing—a victim of many of the practices I mentioned at earlier stages of this Bill. We accept that all these malpractices are highly undesirable, and that is why we are attempting to strike them out with the use of this particular Bill. We have taken into account the reservations expressed in your Lordships' House as well as in another place.
The noble Lord, Lord Fitt, mentioned the question of penalties. If the noble Lord will consult Clause 3, which deals with offences relating to the specified documents—the Irish way of bluff—he will find in subsection (7) some fairly draconian penalties. Whether the noble Lord would regard them as adequate, I know not. But I am sure that if he will look at even the fairly large print he will find that the Government have set out various penalties which we hope will add teeth to the measures we propose in this Bill.
I believe that your Lordships would not wish me to say anything more, except to express my gratitude for the attention and hard work that has been done by all Members of your Lordships' House. I am deeply grateful. I beg to move that this Bill be now read a third time.
On Question, Bill read a third time, and passed.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8 o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The sitting was suspended from 7.37 until 8 p.m.]

Prosecution of Offences Bill [H.L.]
House again in Committee.
Clause 4 [Prosecuting officers]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 18:
Page 4, line 30, at end insert—
("( ) In the conduct of any proceedings, prosecuting officers shall be subject in all respects to the same rules of professional conduct and discipline as practising barristers and solicitors.").
The noble and learned Lord said: This is a short but, I submit, important amendment. It provides as an addition to Clause 4, relating to the duties, functions and rights of audience of prosecuting officers, that:
"In the conduct of any proceedings, prosecuting officers shall be subject in all respects to the same rules of professional conduct and discipline as practising barristers and solicitors".
What those of us who support this amendment think important is to assert firmly and clearly the principle and proposition that prosecuting officers remain independent and are at all times subject to the overriding requirements of professional ethics. There may be thought to be a slight danger, when involved in this substantial and important machine, that this professional and ethical principle may be forgotten. We think that it would be a source of strength and a reinforcement to the individual officers who may well come to the conclusion that a prosecution which is about to be launched should not, in fact, be launched and continued. They may well have to take that view against the contrary views and wishes of the charging police force. Its value will also be to remind officers that they are lawyers first and foremost, and not the servants of a great organisation.
We feel that emphasising the professional independence of the members of the profession concerned as prosecuting officers will make it clear that they are free to exercise their own independent professional judgment and are not to be subject to the orders of whosoever it may be. That is the purpose of the amendment. It may be thought that it is not wholly necessary. The view we take is that it will be a reinforcement, a reassurance and a strengthening of the independence of the lawyers concerned; which is, of course, vital to the proper administration of justice. I beg to move.
Lord Hutchinson of Lullington: I should like to support this amendment and in doing so to speak, if I may, on behalf of my profession because, in our view, the success of this service will depend very largely on those who work in it maintaining precisely the same standard which independent members of the Bar, it is hoped, have maintained in their jobs from day to day.
We have here a huge organisation which will attract to itself young men who will become part of it, and they may not perhaps have the advantage which young
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members of the Bar have of rubbing shoulders with their colleagues from day to day in the courts, and particularly out of the courts. I submit that it can only be good that they should be reminded in the Bill itself that the organisation will depend upon them maintaining precisely the same standards as they would have done at the independent Bar.
The Lord Chancellor: I think I can reassure both the noble and learned Lord who proposed this amendment and the noble Lord, Lord Hutchinson of Lullington, who spoke particularly for the Bar. It is our intention that the standards of behaviour which govern a prosecuting officer in the new service should be exactly identical to the standards of behaviour now observed by prosecuting barristers and solicitors in the courts of the land. It is our policy that it should be so. I hope also to be able to reassure both the noble and learned Lord and the noble Lord that it must be so.
I take, first, the solicitors' profession. The prosecuting officers in the new service will not be subject to rules differing from and less stringent than those affecting solicitors engaged in separate practice, because they will be practising solicitors; that is what they will be. Year by year they will have to take out a practising certificate and that will automatically subject them to the whole disciplinary code and the same ethical rules as apply to other practising solicitors, and they will be subject to the Disciplinary Tribunal of the Law Society.
The position of banisters is virtually the same, although it might, I am advised, lead to a small alteration in the code, but that is something which the Bar itself could achieve. All banisters at the moment are subject to the code of conduct approved by the Bar in General Meeting in July 1980. This covers all matters of professional etiquette and discipline, not merely those relating to criminal proceedings. It is enforced by the Disciplinary Tribunal of the Senate in conjunction with the Professional Conduct Committee of the Bar. Rule 180 provides as follows, and I think it should be put on record:
"An employed barrister"—
I take it that these banisters will be employed barristers within that phrase—
"is a barrister who is engaged to provide legal advice or services either for his employer under a contract of employment or by virtue of an office under the Crown or in the institutions of the European Communities. A barrister who is neither a practising barrister nor an employed barrister is a non-practising barrister. The provisions of this Code apply to employed and non-practising banisters except where they expressly or by necessary implication apply to practising banisters only".
It follows that barristers employed in the Crown prosecution service will in any event by subject to all the provisions of the code other than those expressly or impliedly applicable only to practising banisters.
The provisions of the code which deal specifically with duties relating to the prosecution and defence contain references both to "barristers" and to "counsel". The term "counsel" is generally understood to mean a practising barrister, and rule 182 specifically prohibits an employed barrister appearing as counsel. That is the point that I mentioned in my previous paragraph at which the Bar might differ from solicitors. It could be argued that employed barristers are impliedly excluded from the

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rules which are expressly applied to counsel. It is not our intention that that should be so. It only rests with the Bar, which is responsible for its code of conduct, to alter the draftmanship to fit the new situation.
That is the right road, I think. Both barristers and solicitors employed by the new prosecution service will be subject to all the rules applying to advocates and advisers in the profession. I want to give my unqualified assurance that it is my desire and intention that that should remain.
Lord Elwyn-Jones: If I may say so, I think that it is useful, putting it at its lowest, that this amendment was put down to enable that powerful and authoritative statement to emerge from the noble and learned Lord the Lord Chancellor to confirm and affirm what I ventured to say in my observations and what is in fact said in brief in the amendment. In those circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Wigoder: Clause 4 refers to the rights of audience at the Crown Court. It is therefore a clause of immediate and pressing concern to the whole of the Bar as a practising profession. I want, if I may, to raise this matter in, I hope, an entirely non-controversial way. The fact is that at the present time the existing rights of audience in the Crown Courts which the Bar enjoys are regarded by the Bar as being absolutely essential to its survival as an independent profession. Any whittling away of those existing rights would, I think, severely interfere with the prospects of the Bar surviving in that way.
I am not concerned in this matter as a former member of the Bar. I am concerned as a member of the community who regards the existence of an independent Bar as a matter of the greatest possible importance in our society. It was therefore with very great anxiety that the Bar awaited the debate on Second Reading to see what was to be said about that matter. The noble Lord, Lord Elton, said on 29th November at column 1017 of Hansard:
"I should emphasise that the Government hold strongly to the view that rights of audience in Crown Court trials should continue to be confined to an independent Bar which both prosecutes and defends".
That observation was extremely welcome. It contained, I think quite inadvertently, an element of ambiguity when the noble Lord used the expression, "Crown Court trials". There are those who believe that a trial is only a contested case, whereas of course before the Crown Court there are not only contested cases but also pleas of guilty, appeals against sentence, appeals against conviction and committals for sentence.
8.15 p.m.
In order to attempt to clarify that possible ambiguity I wrote to the noble Lord and received from him, as I would have expected, not only a most courteous but also a most helpful reply to which he has indicated I
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might properly refer in the Committee this evening. What he said was that Clause 4 was,
"designed to ensure that prosecuting officers in the new service should be treated alike, whether barristers or solicitors".
The Bar, of course, would indeed accept that. He pointed out that the clause would relieve,
"barristers employed as prosecuting officers in the service of the need to obtain the leave of a magistrates' court to conduct prosecutions in cases which the new service will have a statutory duty to conduct".
That again, of course, is agreed. He then pointed out:
"They are accordingly given the rights of audience that practising solicitors already enjoy".
The noble Lord, Lord Elton, then went on to refer to the fact that,
"the clause also provides for the Lord Chancellor's direction-making power under section 83 of the Supreme Court Act 1981 to apply to all prosecuting officers,"
and not merely to solicitors.
There are, I think, two directions that have been given under Section 83. One is a very limited one, referring to certain slightly obscure parts of the country, which I need not, I think, mention any further. The other is a direction that gives solicitors the right to appear in certain cases in the Crown Court when they have been defending in the magistrates' court in proceedings below. That, so far as I can see, has no direct relevance to this matter because it refers entirely to the possibility of solicitors appearing for the defence in the Crown Court. I think that it is right to say that it is not in fact a provision that has been taken up to any substantial extent by the solicitors' profession in any event.
What was most welcome was the noble Lord, Lord Elton, going on to say:
"There is no intention to extend these rights any further, for example to include the conduct of criminal trials before the Crown Court".
He then said:
"the government have recently reaffirmed their acceptance of the Benson Commission's recommendation that in general rights of audience in the Crown Court should be the preserve of an independent Bar".
He added in his last paragraph:
"the fact remains that the Bill will provide the framework of the new service for some time to come, and it is clearly right that the direction-making power under section 83 … should be capable of applying to its members".
That, again, I understand.
But he concluded with the significant words:
"We have however at present no plans for the power to be used in relation to prosecuting officers, even as regards appeals or committals for sentence to the Crown Court. This is partly because for some considerable period we expect the service to be hard put to discharge its commitment to provide advocates in magistrates' courts".
Those words were most welcome to the Bar, and I think that they should be given a rather wider audience than they received in the course of a letter from the noble Lord to me.
As I say, I am hoping not to be involved in any matters of controversy this evening, but I should like to take the opportunity to ask the noble and learned Lord the Lord Chancellor whether—as I am sure he will—he agrees with the observations made by his colleague. I am sure he will accept that the Bar could not possibly expect a Lord Chancellor to bind himself

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and his successors for all time, but it would, I think, be very much appreciated if the noble and learned Lord were able to say this evening that for the foreseeable future at any rate he does not anticipate any alteration in the present position and that, if the situation were to arise in which it might be thought desirable to consider any possible alteration, he would, of course, fully consult the Bar before any such alteration were made.
The Lord Chancellor: I hope and believe that I can comply fully with the request of the noble Lord, Lord Wigoder. As the Committee will remember, I was responsible for passing through Parliament the Supreme Court Act 1981 when this question of the right of audience was canvassed at rather greater length than we shall need to do this evening. I hoped and believed—and in the result I think I hoped and believed with reason—that so far as then regarded the rights of audience in the Crown Court, we had laid to rest any sense of grievance on either side of either branch of the profession.
Section 83 of that Act gave the Lord Chancellor power in order to see that the public was adequately served, to have regard to any shortage of counsel in a particular area, to any rights of audience formerly exercised by solicitors, and to other circumstances affecting the public interest. Of course there were one or two cases, as the noble Lord, Lord Wigoder, has implied—though I cannot remember exactly where they were—where there were former rights of audience of solicitors at courts of quarter sessions in a particular locality.
I can confirm that it is absolutely no part of the Government's intention, nor of mine, to use that section as a means of altering the balance between the two parts of the legal profession. Indeed, I have discouraged one and all from trying to resurrect this particular controversy which I think is damaging to the good relations between the two parts of the profession, whose co-operation at the present juncture of history I think is absolutely essential to a vital and independent legal profession, in the art of advocacy and in the art of giving advice. To my mind it is absolutely beyond question that the continuance of a strong and independent Bar is a matter which affects the public interest. As the noble Lord, Lord Wigoder says, it is beyond my power to bind the long succession of Lord Chancellors which I hope will take place after my demise. But while recognising the fact that it is beyond my power to bind a future Lord Chancellor, I do not think that any future Lord Chancelor could properly discharge his duty without taking that fully into account.
In addition to the letter which my noble friend Lord Elton, who is sitting beside me, sent to the noble Lord in the course of their exchange, and to which the noble Lord, Lord Wigoder, has referred, it will be remembered that my right honourable and learned friend the Attorney-General wrote to The Times on 6th August last year and he made it clear that the question of any general extension of rights of audience in the Crown Court is not a matter which this Government are currently considering. That will remain the case.
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I would be absolutely sure in my own mind that any future Lord Chancellor, if he wished to exercise, in any direction, the power conferred by Section 83 of the Supreme Court Act 1981, would be consulting very fully all interested bodies. I must say that if I thought that any action of mine, as Lord Chancellor, would be undermining the separate position of the Bar, I should be very deeply disturbed indeed. I am a barrister, the son of a barrister, and the father of two barristers. I remain devoted to my own branch of the profession and full of admiration for those from whom I received my bread during the greater part of my professional life. I hope that the noble Lord, Lord Wigoder, will feel that I have fully complied with his request.
Lord Elwyn-Jones: I am grateful to the noble and learned Lord the Lord Chancellor for his all-embracing declaration of interest with regard to this matter and for the assurances that he has given.
Lord Hutchinson of Lullington: Perhaps I may add that the words of the noble and learned Lord the Chancellor will go a very long way to reassure the Bar, which has been deeply concerned with the possible implications of the words that one finds in Clause 4. It was the fact that the very basis on which the profession operates as an independent Bar could be swept aside by a mere practice direction, without provision for consultation or debate, that has caused the Bar Council and the profession the greatest concern. I know the words of the noble and learned Lord will bring a great measure of comfort to them.
Lord Mishcon: As one who loves his side of the profession as much as the noble and learned Lord loves his, I think it would be expedient if I remained silent.
Clause 4 agreed to.
Clause 5 [Conduct of prosecutions on behalf of the Service]:
[Amendment No. 19 not moved.]
Lord Irving of Dartford Lord Irving of Dartford moved Amendment No. 20:
Page 5, line 8, leave out paragraphs (a) and (b) and insert ("a solicitor or a barrister who is, in either case, a member of the staff of a public authority.").
The noble Lord said: I beg to move Amendment No. 20. With the permission of the Committee I should like also at the same time to speak to Amendment No. 21: Page 5, line 11, leave out ("institute or").
I wish very briefly to use this amendment to probe the mind of the noble Lord and perhaps to seek clarification. I think the first question is concerned with the point that in Clause 5 it is stated:
"The Director may at any time appoint a person who is not a prosecuting officer but who is—

(a) a solicitor; or

(b) a barrister who is a member of the staff of a public authority.".

To a layman it is not immediately self-evident why the distinction should be made. Perhaps the noble Lord would tell us.
However, our real concern is to ensure that a proper provision should be made for the staff requirements of

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the public service. This is in order to secure an image of independence as well as efficiency. Of course we recognise that it will he necessary to use solicitors in private practice on occasions, but we feel that this use should be under certain constraints. We think that these should be that they do not make decisions about prosecutions or initiate proceedings. Amendment No. 21, to leave out the words "institute or", is intended to ensure that fact and that the solicitor in private practice acting in this capacity should operate only as an advocate in the court dealing with the decisions already made by the staff of the Crown prosecutor. It is highly desirable that in this way the service should be and appear to be independent of any local interest. I therefore ask the noble Lord whether he proposes that there should be any constraints on the use of solicitors in private practice and, if so, what these should be.
Lord Mishcon: I am sure the Committee will be obliged to my noble friend Lord Irving of Dartford for having explained this amendment, which I do not think was clear to many of us when we saw the original wording. Now that we know his thoughts, having been expediently silent in regard to the last discussion, I wonder whether I may, however, voice my feelings, which at the moment are personal, in regard to what he has said about the powers of the solicitors and the power of the prosecuting authority to employ them.
I submit two points. First of all, I submit that it would be inexpedient to limit the power of the prosecuting authority to instruct solicitors in private practice, where he finds it necessary in various areas, or because of being overburdened, even though he has a full complement of staff in another area. I think it would be quite wrong to limit his right to instruct solicitors in private practice and to put any constraint—if I may use the words of my noble friend—upon his power to do so and to go only to members of my profession who are employed by a public authority.
Furthermore, I submit to the Committee that it would be quite wrong to prevent, as a matter of practice, the employment of solicitors in private practice or anywhere else, to institute proceedings, because very often it would be left to the solicitor to lay the information and to apply for a summons in a magistrates' court in order to initiate a prosecution. It would be wrong, in my submission, for there to be any such limitation. I noticed, incidentally, that my noble friend, with his ususal wisdom, said that this was a probing amendment. I hope that, having heard what I have had to say, he may with his usual courtesy, make an application for leave of the Committee to withdraw it.
8.30 p.m.
Lord Graham of Edmonton: I appreciate fully what my noble friend Lord Mishcon has said. I wish, nevertheless, to reinforce in part some of the arguments advanced by my noble friend Lord Irving. I start, like my noble friend, as a seeker after clarification. Those who are in possession of the information can certainly give it.
I start from the premise that wherever possible I want to use the public rather than the private service. There are others, of course, who would say that they
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prefer, wherever possible, to use the private rather than the public, not merely in this instance, but in others, too. Here, we have a clause to institute or take over the conduct of cases and, according to the face of the Bill, to differentiate. Where a solicitor is used, there is no qualification. Where a barrister is used, the barrister must be a member of the staff of a public authority. Although my noble friend Lord Mishcon has gone some way to explain some of the difficulties and restrictions that the amendment seeks to impose, I wish nevertheless to use this opportunity to raise with the Minister one or two problems concerning needs that have been put to me.
The noble and learned Lord, Lord Simon of Glaisdale, referred, in an earlier amendment, to Clause 1(2), which states:
"The Director shall appoint such staff for the Service as … ".
I stress the word "staff". In the clause now before the Committee, we are talking about the staff of a public authority. In earlier amendments, the noble Lord, Lord Elton, referred to the product of the work of management consultants who are at present, I understand, engaged in producing some ideas or a framework for the staff and the location of offices in the future. That cannot be divorced wholly from what we are now discussing. My noble friend Lord Mishcon has pointed out that there would be times when the work of a department was so over-burdened that it was necessary to seek the use of private solicitors. In an ideal world, there would be no need for that to happen.
The level of staff recommended by the management consultants will be crucial. It is all very well to take the words on the face of the Bill. I respect the view of my noble friend, with his experience, that it is not possible to avoid using private solicitors. I would simply say to the Minister that I need to be convinced at this stage that he considers that the report of the management consultants will satisfy not only the Minister himself and your Lordships but also a great many people outside who are deeply affected in their professional work.
I understand that the management consultants' report, which is crucial to the welfare and wellbeing of many thousands of people, has been promised in an interim form but has yet to see the light of day. I believe that the Minister would render a service to the Committee and many people outside if we could see the report as quickly as possible. That might satisfy a number of questions that arise in people's minds. If the report is not available at this stage—and it is not—it may be available on Report or at Third Reading. I believe that when the Bill goes down the corridor a number of voices will be raised about how essential it is to see what has been recommended by the management consultants concerning levels of staff and location of offices.
I hope the Minister will appreciate not only that these are genuine inquiries raised by the differentiation, but also that they provide the Minister with the opportunity, before my noble friend considers what action to take on his amendment, to be satisfied that before the Bill leaves this House we shall be better informed. We wish to know what is in the mind of the Minister in the light of the report from the management consultants that we assume he will be

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seeing very soon. The levels of staff referred to in Clause 5 must be affected by the outcome of the report.
Lord Elton: I, too, am indebted to the noble Lord, Lord Irving of Dartford, for explaining that this is a probing amendment. I shall give him all the information that I have because I think that that is what he wants. I do not think, however, that I shall entirely satisfy the noble Lord, Lord Graham of Edmonton. If I recall the Order Paper correctly, we have amendments down that touch on matters of conditions of employment and so on. I would not really want to find myself on Monday repeating what I have said to a rather thinner Committee this evening. It seems not necessary to say it twice although I take the point that the whole of the Bill meshes together.
The purpose of Clause 5 is to allow the Director of Public Prosecutions and therefore the new service to appoint solicitors in private practice, or lawyers—both solicitors and barristers—employed by public authorities, to undertake certain cases which he will be under a statutory duty to conduct. In case anyone thinks that Clause 5 discriminates against barristers in the private sector (I think that the noble Lord, Lord Graham of Edmonton. may have thought that it did) I should add that no provision seems necessary for the Director or the service in order to brief counsel on its behalf. That power exists.
The effect of the amendment would be to allow the Director to appoint lawyers employed by public authorities but to deprive him of the right to assign work to solicitors in private practice, although he could of course continue to allot briefs to counsel. The underlying purpose would appear to be not to discriminate against the solicitors' branch of the profession but rather to prevent the use at all of lawyers in private practice. That, in our view, as well as in that of the noble Lord, Lord Mishcon, would be most regrettable.
We are all agreed, I am sure, that a principal object of the House, as well as of the Bill, is to secure swifter justice. We want the work of the courts to be as expeditious as possible. The Government are even putting forward in the Bill a clause putting time limits on the preliminary stages that bear directly on the prosecution. Your Lordships are also aware, I am sure, that the magistrates' courts in particular produce a very uneven flow of work. Some courts sit only on one or two days a week. In most courts the heaviest rush of work is on Mondays following the excesses and excitments of the weekend.
The power to appoint employees of public bodies will not help us to deal with those peaks of work. That power is simply to enable lawyers working for public authorities to conduct criminal proceedings which although technically the Director is under a duty to perform, fall naturally to that authority. It follows therefore that, given the noble Lord's amendment, the Director would be faced with a single choice. Either the service must be staffed up to meet the heaviest load of work it can expect to meet in every area in each day, or else it must be staffed at a level that will result in delays in the provision of justice whenever there is a rush of work or a local crime wave.
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The first choice means that the taxpayer has to pay for people who will be fully employed only from time to time. The second means that justice will not be as swift as it can, or should, be. The first choice is not acceptable to taxpayers. The second is contrary to what your Lordships are seeking to help us do in the Bill. That is why we have provided in the Bill as drafted at Clause 5(1)(a) a power to appoint solicitors in private practice. They will be able to take up some of the work at peak periods. This is helpful to the service, efficient in expenditure terms and, I think I can safely say, welcome to the profession. The alternative is either more expensive or slower. I hope that noble Lords will not insist. I know that they will not insist on it. I hope, however, in exposing the argument against the amendment, I have answered the questions that the noble Lord asked.
However, he spoke to two amendments, and therefore I ought to say that his Amendment No. 21 would limit the contribution that could be made by those assigned cases under the terms of Clause 5 by the Director of the service. Clause 5 as drafted would enable cases to be assigned to solicitors in private practice, or to lawyers, whether solicitors or barristers, employed by public authorities. Those to whom cases are assigned would have all the powers of prosecuting officers but would exercise them subject to the instructions. The amendment, if made, would confine what such agents could do by precluding them from instituting proceedings.
I am not sure that I can see any case for singling out in this way the institution of proceedings from all the rest of the action or decisions arising out of the conduct of a case. I think I can best illustrate my reservations by a single example. The police, let us say, have instituted proceedings in a given case which the service has assigned to a local solicitor. On examining the case, he concludes that the offence identified by the police is not supported by the evidence, but that a lesser offence is. What is to happen? Must the papers in the case be sent back to the Crown prosecution service and the case possibly adjourned meanwhile? And to what purpose? If the question is a clear-cut one and the agent is confident that the service will take the same view, better. surely, that the private practitioner should be able to institute proceedings on the lesser charge. Although there are other little fragments that I have before me, I think that I have probably said enough to satisfy the noble Lord.
Lord Elwyn-Jones: May I, for my part, having heard what has been said on these amendments, express the view that the clause is much better as it stands?
Lord Irving of Dartford: I am most grateful to the noble Lord. He has helped to clarify the matter, although I am still not very clear about it. It may be because the noble Lord, Lord Graham, and I are not lawyers that we find it difficult to understand the distinction between the barrister and the lawyer in this context. That is the only point I would ask the Minister to clarify. I am prepared to accept that we may look at the other matters later on. Perhaps he would say just a word on that.
Lord Elton: I should think, subject to correction, that a barrister would say there was no distinction

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between a barrister and a lawyer but there was a distinction between a barrister and a solicitor.
Lord Irving of Dartford: I did say this was a probing amendment, and so, with the permission of the Committee, I should be glad to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 and22 not moved.]
Clause 5 agreed to.
Clause 6 [Prosecutions instituted and conducted otherwise than by the Service]:
[Amendment No. 23 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 24:
Page 5, line 21, at end insert—
("( ) Where any person other than the Director institutes criminal proceedings other than specified proceedings it shall be the duty of the clerk to the justices in any court where such proceedings are instituted to notify the Director as soon as practicable of the nature of the proceedings and by whom they have been instituted.").
The noble Lord said: This amendment seeks to ensure that the Director understands exactly what is happening and has notice of exactly what is happening in regard to the institution of any criminal proceedings so that he can exercise his jurisdiction and powers as given under this Bill. If there is a private prosecution, for example, or there is a prosecution instituted, as it would be entitled to be under some other statute, by anyone other than the Director, it would be impossible for the Director to exercise those powers unless he had notice of the institution of the proceedings; and therefore this provides a convenient procedure by which it is the duty of the clerk of the court to notify the Director when proceedings are instituted otherwise than by the prosecutor's office. I think I can succinctly put the amendment in this form, and I hope that the Committee will agree with it.
8.45 p.m.
Lord Hutchinson of Lullington: I should like to support this proposal. I shall fall out here, I know, with the noble and learned Lord, Lord Simon of Glaisdale, on this. The mischief of continuing private prosecutions is that the motivation of those who bring private prosecutions may well not be the good of society but may be based on personal spite, on revenge, on financial gain, on blackmail, on fanaticism—all sorts of motivations. If this private prosecution procedure is going to be allowed to continue, then I would submit that it is absolutely essential that the Director or the Crown prosecutor should know in every case that a private prosecution has in fact been launched so that he can look at it and decide whether he ought, in the public interest, to take over the prosecution rather than allow it to go on, either in order to stop it or to prosecute it on behalf of society and not for some personal reason.
Lord Wigoder: I sympathise entirely with what the noble Lord, Lord Mishcon, is seeking to achieve by this amendment. I wonder whether he would not consider, on reflection, that it is just a little widely drawn, and whether he really intends, for example, that it should be the duty of the clerk to notify, let us say, every single shoplifting prosecution to the Director of Public Prosecutions.
Lord Mishcon: If I may answer that question very quickly, I should have thought that the shoplifting case was the very example that I wanted to take, instead of making it an exception. One knows that there are many cases of stores bringing prosecutions very properly indeed. There are other cases where there is scant evidence and the stores make themselves responsible for a prosecution. All of us know of some very hard and grievous cases, especially with old people who are absent-minded, where the case ought never to have been brought. Quite honestly, I should not want to make that sort of case an exception; and I cannot think of any case where I should.
Lord Elton: This amendment would require that whenever a prosecution was brought by the public authorities or by private citizens the clerk to the justices would be obliged to notify the new service of the particulars of the case. I take it from what the noble Lord, Lord Mishcon, said in introducing the amendment that its purpose is to ensure that the service does not overlook any case the sensitivity or importance of which requires its attention, and to place on the service some duty to ensure that cases brought by other prosecutors conform to the policies and standards of evidence which the service itself applies in deciding whether to continue with a prosecution.
We have already considered, at an earlier part of today's discussions, the reasons for limiting the remit of the new service to proceedings instituted by the police. To place on it the review function envisaged by requiring the justices' clerks to send the particulars of all other cases, as mentioned in the amendment, gives rise to similar difficulties. It is in fact open to the further objection that if intervention by the new service were considered desirable it could only happen at a late stage, and my own opinion is that there must be a risk of the service, faced with an influx of these cases but also with decisions about cases which it will conduct, tending to deal somewhat cursorily with those which are not its own responsibility.
I really wonder whether the Bill does not already contain safeguards which make the amendment unnecessary. Clause 7(4) already places a duty upon the justices' clerk to send to the Director the papers in any case where the prosecution is withdrawn or is not proceeded with within a reasonable time and there is some ground for suspecting that there is no satisfactory reason for the withdrawal or the failure to proceed. That is one safeguard. In addition, the Crown prosecutor will of course be aware of any significant cases which raise issues of concern to the service or touch on the public interest. These are precisely cases of the sort which the Director might choose to take over under the existing powers and in which the Crown prosecutor might intervene under the terms of Clause 6(2); so that is another safeguard.
Then, too, there is the restriction which Clause 24 will place on the bringing of vexatious prosecutions, extending to criminal proceedings the provisions which now apply to vexatious litigants in civil cases; so that is another safeguard.
As I have already said, we have discussed the grounds for not placing within the remit of the service the activities of the public agency prosecutors whose

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cases would presumably under this amendment have to be brought before the prosecution service as well. We are also concerned on all sides of the Committee not to restrict further than is absolutely necessary the right of private prosecution. I believe that the Bill goes as far as is necessary, short of routinely involving the new service in the affairs of all other prosecutors, which is what the amendment would do. I do not think that we should go as far as that. I believe that it would be extending the reach of the service beyond its grasp.
Lord Mishcon: I am sure that it would not be right at this hour to take this debate any further in Committee. But I would ask the noble Lord the Minister, with his customary care and courtesy, to consider rather carefully between now and the Report stage what he has said. I say that because implicit in what he said was the power of the prosecuting service and the duty of the prosecuting service in certain respects, even though the proceedings were not brought by, or even known to at their initiation, the prosecutor's service. I do not understand how the prosecutor's office can possibly do this without their having knowledge of proceedings. One does not imagine that these proceedings will be so multifarious that he would have to examine them in such detail and that they would occupy very much of the time of the prosecutor's office. If the nature of the prosecution is immediately brought to his attention, I should have thought that in very many cases he would see, by the very nature of the charges, that there is no need for him to interfere and no need for him to consider whether matters of public policy are involved. But there will be cases where such matters will be involved and I repeat that, without notice, I cannot see how he can exercise his jurisdiction.
Having said that, as I have said, I do not think that a debate on this matter, although it is a very important one, ought to be carried any further by me, at all events at this stage. But I would ask the noble Lord the Minister to reconsider the position in order that we cover properly the matters with which we are trying to deal in this Bill and the proper conduct and unified service and consistency of the prosecutor's department. Having said that, and in the hope that the noble Lord the Minister will kindly say that he would be prepared to consider what has been said tonight, I would be prepared to withdraw the amendment.
Lord Elton: It is an agreeable change for me to be asked by the noble Lord to consider what I have said and not what the noble Lord has himself said. I think that I may ask him to consider what I have said as well, because I think that there was a good deal of sense in it. But of course I shall read the debate before the next stage.
Lord Mishcon: I promise a mutuality of consideration. That having been said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 25 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 26:
Page 5, line 24, at end insert—
(" (3) Without prejudice to any other provision of this Part of this Act, all provisions in any enactment requiring the prosecution of any offence to be undertaken by or with the consent of the Attorney General, the Solicitor General or the Director of Public Prosecutions are hereby repealed.")
The noble and learned Lord said: This amendment raises generally the question of private prosecutions. It is obviously a probing amendment because it is defective in that at least it would require a repeal schedule to complete it, and it is probably defective in other ways as well. However, it raises an important consitutional point—a point that has always been recognised as important constitutionally; namely, the liberty of the individual under the rule of law.
Private prosecutions were the origin of our system of criminal jurisdiction and even when public prosecutions and public authorities to prosecute were instituted, it was still recognised that the subsisting right of private prosecution constituted, as I have said, an important constitutional safeguard and right of the ordinary' citizen. That was recognised by institutional writers of the highest eminence right down to our own day.
However, that right of the individual under the rule of law has been eroded haphazardly in the way that was described by the Royal Commission. The various exceptions where the consent of the Attorney-General or the Solicitor or the Director needs to be obtained are set out very conveniently in the prosecution of offences regulations. I think that I have quoted the title incorrectly, but the noble Lord will put it right. I went through them and I found the Genocide Act and the Suicide Act, and so one could see that there was some rhyme somewhere. What one could not see was any reason, and nor could the Royal Commission when they examined it. They described the various restrictions on private prosecution, the various needs to get a consent, as being "haphazardly" accumulated over the years. I think that they used the expression "arbitrarily imposed".
As I have said, underlying the right of private prosecution is the liberty of the individual, and the liberty of the individual to say, "You may be in authority, you may be a great person in the state, you may be robed in all the panoply of glory of the state, you may claim that you know best what should be done, but I, a poor citizen, one of the humblest in the land, nevertheless live under the same rule of law as you do and I claim to invoke the power of the law even though you think in your greatness that it should not be invoked". Of course the ordinary citizen claiming that right may be actuated as the noble Lord, Lord Hutchinson, suggested a moment ago, by some malign motive. He may be blackmailing, he may be jealous, he may be merely a nuisance monger.
But there is a parallel right which the law vouchsafes. Anybody who reports injury, misuse or negligence of a child is protected by the law. The authority to whom it is reported, whether the police or the National Society for the Prevention of Cruelty to Children, must guard the source of information. Such a report may be a blackmailing one, it may be a malign one, it may be a jealous one, it may even be a

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demented one, but that is merly to say that anything of value may be misused, and it is no answer to the right of private prosecution—that high liberty under the law—to say that it may be misused like any other thing of value.
9 p.m.
The real essence of the restriction is that it amounts to a dispensing power. It is only when the consent is refused that a matter becomes of moment. What the state is then saying is: "We do not choose to enforce the law. You may point to the law, but we choose to dispense with its enforcement". That was the claim of James II. From what he said before Christmas, I know that the noble Lord, Lord Glenamara, apparently still owes allegiance to James II, but I do not think that he advocates the use of a dispensing power, and that is what this is.
Therefore, it has always been most valuable to have, alongside the right of public prosecution, the right of private prosecution. It may be annoying to publishers to have Mrs. Whitehouse on their tail, and many of the recent attempts to demand consent to private prosecution seem to be directed at that type of activity. However, as I ventured to tell your Lordships earlier, it is important that a minority—even though one may strongly disagree—should be allowed to enjoy the rights that British law has habitually extended to minorities.
The position then is that these restrictions have grown up haphazardly. Perhaps it will be sufficient if I refer to what the Royal Commission said about it in paragraphs 7.54 and 7.56. I shall come to their conclusion in a moment, when I review what is to be done to rationalise this haphazard mass of restrictions, this mish-mash, this hotch-potch. The first thing one can do is to say that there shall be no right of prosecution at all. I think that on Second Reading my noble and learned friend Lord Elwyn-Jones dallied platonically with that idea. The noble Lord, Lord Hutchinson, was prepared to embrace it rather more warmly, although he did not then definitely espouse it, as I think he may have done tonight. There is a short answer, and I repeat it with diffidence in the presence of the noble and learned Lord the Lord Advocate.
When your Lordships heard the case judicially of McKendrick v. Sinclair, it was taken for granted by both sides and by the Appellate Committee that there was no subsisting right of private prosecution in Scotland. The last one had been in 1909.I do not think that there had been one prior to that for 100 or 150 years. That committee contained two very great Scottish judges—the late Lord Reid and my noble and learned friend Lord Kilbrandon. However, as I say, it was taken for granted at the Bar and by those two great judges that there was no subsisting right of private prosecution in Scotland.
However, then came what was known as the Glasgow rape case, where a woman was repeatedly indecently assaulted, was raped and was severely slashed by a razor. At the time, the noble and learned Lord the Lord Advocate declined to prosecute in the end for perfectly good reasons connected with the health, particularly the mental health, of the victim of that wicked assault. He accounted for his decision to your Lordships and account was made in the other
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place. It is right that that sort of case should be accountable to Parliament. But there was an outcry in all the press and throughout Parliament that, when there had been actual confessions in the hands of the police, these youths should not have been brought to justice. It was then claimed and conceded and found by the High Court of Judiciary that there was a right of private prosecution. If that had not happened, there would have been a judicial scandal. Public opinion was absolutely affronted to think that no action was to be taken in that case.
Therefore, I ask your Lordships to say that, even if the Royal Commission had not recommended to the contrary, it is unthinkable that the solution should be that we should now disregard or derogate from the right of private prosecution.
The second possible step is that which the Royal Commission recommend in paragraph 7.57:
"Rationalisation of the consent provisions need not be delayed. It will be some time, however, before the shape of the new prosecution service emerges and it is fully operational. Until then it will not be possible to decide upon the full scope of the Director's work. We can make no recommendation about this, except that the position should be reviewed by the responsible Minister and reported to Parliament five years after the commencement date for the Act establishing the new service".
The Royal Commission recommended that only those cases that were of supreme importance to the State such as those involving diplomatic relations or international intercourse, and so on, should still require consent. In my respectful submission even that is unnecessary, because under the new system it is still open to the Attorney or the Director to call in any case and to enter a nolle prosequi, as happened in a case I mentioned earlier, the case of the Russian athlete accused of larceny in a London store.
The key sentence that one can fasten on is, "rationalisation of the consent provisions need not be delayed". I ask your Lordships to say that there need be no further delay at all, that the right to call in and take over and enter a nolle prosequi is all that is required, and that in the meantime we can abolish all these restrictions on an ancient liberty of our people. I beg to move.
Lord Elwyn-Jones: I hope that the noble and learned Lord, Lord Simon, will not think me guilty of heresy if I venture to disagree with him in regard to his amendment. He put it forward with his customary vigour and clarity, but I regret to say I cannot agree with it. As I understand it, the proposal of the amendment is to open up all offences to the possibility of private prosecution.
The law has evolved over a long period identifying certain sensitive matters as requiring, before they can be made the subject of prosecution, the consent of the Director of Public Prosecutions. It sometimes has arisen because the language creating an offence is in broad and general terms and some degree of supervision over the exercise of it in the criminal court may be deemed to be necessary.
However, broadly speaking the limitations, or the requirements for consent by the Director of Public Prosecutions—because apart from in those areas, of course, the private citizen is entitled to bring private prosecutions—deal with such sensitive matters as

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official secrets, obscene publications, electoral offences, public corruption, and several sexual offences.
In all those cases there are usually good reasons why prosecutions do not take place. If an examination of the list of them were to indicate this or that example where a refusal of the right of private prosecution is something that ought not to be accepted, then the law should be amended in respect of that particular offence. But in the instances that I have given it would not be in the public interest, broadly speaking, for a prosecution to be brought without the preliminary consent of authorities which have the responsibility of seeing that these matters are prosecuted effectively and fairly.
The decision not to prosecute those under the age of consent is an example of the kind of consideration which is important. The decision not to prosecute those under the age of consent who engage in sexual activities is usually taken because prosecution in those cases would harm the children more than the offence itself is an infringement of the criminal law. The children would suffer more than society would benefit from the bringing of the prosecution.
A further consideration now arises in the context of this Bill that the attempt to introduce a uniform and rational cautioning system by the police, acting under the guidance of the prosecution service, would be endangered if not defeated if the noble and learned Lord's amendment were passed as it stands. I hope, therefore, that, although he may be able to identify an individual instance where a denial of the right of private prosecution would seem to be an abuse of power, so to speak, short of identifying a particular case where it would seem a nonsense or worse to deny the right of private prosecution, the noble and learned Lord may, in the light of the considerations of public policy involved, feel able to withdraw his amendment.
9.15 p.m.
Lord Hutchinson of Lullington: I too confess to being a heretic. May I also object to this amendment? The noble and learned Lord has referred to an ancient liberty. I would venture to suggest that it is so ancient now that it has become really an anachronism. There was a good historical reason for it in the past but time has marched on and now the criminal process is organised and controlled. A reference was made to the mish-mash of removals, and the mass of removals on the Statute Book evidences—does it not?—the view of Parliament that this right is really an anachronism now.
One has only to take one example which has been referred to this evening—that is, obscene publications. It has been removed in relation to the cinema, in relation to television, in relation to radio, in relation to the theatre, in relation to the seizure process—and all of that, of course, might be said to be directed towards the activities of Mrs. Whitehouse, whom I will defend to my dying day because she has certainly increased my income over the last 10 years. May she last long! It is said that the Attorney-General has power to enter a nolle prosequi but anyone who has ever tried to get any Attorney-General to enter a nolle prosequi knows that
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it is almost an impossible task. As was asked a little earlier this evening, how in any event will the Attorney-General know that there is a private prosecution which is being instituted in some part of the country? I would suggest that this amendment be turned down.
Lord Elton: The noble and learned Lord, Lord Simon of Glaisdale, has raised a fascinating subject on which he has been kind enough to be in touch with me and upon which I can immediately say that I cannot hope to pretend to the authority or experience which he commands. However, I recognise, as did my noble friend Lord Renton at Second Reading and as the noble and learned Lord himself has recognised, that the right of private prosecution is an essential bulwark of our criminal justice system. Therefore, although I welcome the direction of what the noble Lord, Lord Hutchinson of Lullington, has said, I cannot perhaps follow him all the way. It represents in important measure, a safeguard for the individual against official inaction. This point remains valid even as we recognise that it is not used very often.
This was a subject on which one of the earliest indications of the Government's attitude to the report of the Royal Commission on Criminal Procedure was given. From a very early stage, we took the view that it would not be right to add to the constraints on private prosecutions in the way the Royal Commission recommended. Hence, Clause 6(1) of the Bill carefully preserves the right of private prosecution. But rights, as we know, may be abused and freedoms can be misused to the misery of others and to the detriment of the public interest. Parliament has therefore seen fit to make the consent of a Law Officer or the Director of Public Prosecutions necessary to the bringing of proceedings in some cases, especially those of great sensitivity or difficulty.
The noble and learned Lord is strongly and eloquently concerned over what he calls the erosion of the right of private prosecution. This erosion is undoubtedly significant. As your Lordships will know from paragraph 48 of Chapter 7 of the report, it extends to well over 100 Acts of Parliament. The noble and learned Lord referred to the convenient list in the Prosecution of Offences Regulations 1978, which, I should add, has been updated on a number of occasions since. I know that his concern extends to the requirement for the Attorney-General's consent in relation to prosecutions under the Genocide Act and to that of the Attorney-General for certain offences under the explosives legislation. He feels that good grounds are necessary for these restrictions in any case where a citizen may have been personally affected by the offences.
The noble and learned Lord has opened up a very considerable and complex subject. I have been looking at and have brought with me lists of the consents required under various Acts of Parliament. They comprise an extremely bulky document which I will not dip into now, though I shall refer to it if individual types of cases are quoted. But of course the lists do not set out what was in Parliament's mind as it added each separate requirement.
I entirely understand, nevertheless, the noble Lord's desire to find some rationale, some abiding principle behind them, some resaon as well as rhyme. I made

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some attempt to provide it when, in a letter that I wrote to the noble and learned Lord, I quoted from the Home Office Memorandum No. 8 of their written evidence to the Royal Commission on Criminal Procedure, giving the main criteria. For the record, perhaps I should repeat those short paragraphs. It gives the main criteria as: first, to secure consistency of practice in bringing prosecutions: that is to say, where it is not possible to define the offence very precisely so that the law goes wider than the mischief aimed at, or is open to a variety of interpretations; secondly, to prevent abuse or the bringing of the law into disrepute; for example, with the kind of offence which might otherwise result in vexatious private prosecutions or the institution of proceedings in trivial cases; thirdly, to enable account to be taken of mitigating factors, which may vary so widely from case to case that they are not susceptible of statutory definition; fourthly, to provide some central control over the use of the criminal law when it has to intrude into areas which are particularly sensitive or controversial, such as race relations or censorship; and, finally and fifthly, to ensure that decisions on prosecution take account of important considerations of public policy or of a political or international character, such as may arise, for instance, in relation to official secrets or hi-jacking.
In the main, these criteria represent different aspects of the same theme. This theme is that in certain sorts of cases, which may for instance have international repercussions or which are particularly likely to be controversial or sensitive, or where it has not been possible to focus precisely on the mischief aimed at by law, Parliament has thought it right to apply the brake of a Law Officer's or the Director's consent before proceedings are instituted. Without such a brake, the risk arises that an individual may face the trauma of prosecution because another has an irrational bee in his bonnet about some particular matter, possibly in a situation where it is clear to everybody else that there will be no conviction and proceedings are unwarranted.
If United Kingdom citizens, to take another example, were held under delicate and volatile circumstances in a hi-jacked foreign airliner and a private citizen felt convinced that someone who had assisted the hi-jackers was at large in this country, I really do not think that that private citizen, entirely ignorant of what delicate international negotiations might be in train, should be able to erupt on to the scene with a private prosecution. The public interest, surely, and the interests of the hostages on the plane, certainly, would require that he must get clearance from the central authority that would be seized of the facts.
Similar considerations arise in respect of statutes dealing with other international crimes where prosecutions may be mounted only by or with the consent of the Attorney-General. I am thinking, for example, of the Internationally Protected Persons Act 1978, which deals with certain serious offences committed abroad against heads of state, government Ministers, diplomats and so on. The public interest, again, is clearly what Parliament had in mind when it imposed the restriction which prevents prosecutions under the Official Secrets Act, save by or with the consent of the Attorney-General.
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The noble and learned Lord has referred to the Genocide Act. That Act, which provides penalties of up to 14 years and life sentence for various offences, makes it an offence, among other things, to kill members of a national, ethnic, racial or religious group with intent to destroy that group in whole or in part. I think that the Attorney-General's consent is properly required for prosecutions for offences under that Act because there may very well be considerations of public policy associated with the decision whether a prosecution should be brought.
We have various offences under the legislation, of which there is a good deal, on explosives. Under the Explosive Substances Act 1883, the Attorney-General's consent is required for prosecution because, I believe, of the wide powers and penalties prescribed by the Act which, it was envisaged, would be used only in exceptional circumstances. The maximum sentence for one of the offences covered is 14 years, and for the others it is life.
The noble and learned Lord, Lord Simon of Glaisdale, has endorsed and underlined the need for the Attorney-General to be accountable to Parliament for decisions to prosecute or not to prosecute in which questions of public interest arose. I think I can rightly remind him of that. I ought to go on to say that accountability is a chain and the Attorney-General is a link in it. Where matters are so close to the public interest or so open to private abuse that Parliament wishes to hold him accountable to it, he cannot, I think, sensibly remain the last link in the chain. The chain must reach down to the point of decision and the person who takes the decision that can affect these matters. The requirement for the consent directly of the Attorney-General, or indirectly of the Director of Public Prosecutions, forms the necessary extra links in the chain.
That is a general proposition, and I think it was a general proposition that the noble and learned Lord, Lord Simon of Glaisdale, wanted me to adduce. It may be an incomplete rationale for the limits we have on private prosecution, but I believe it to be sound as far as it goes. I believe that it disposes, in part at least, of the noble and learned Lord's charge that, like James II, the statute invites the Crown to treat the judges as lions under the throne, or the law as something which it has in its gift. But what that rationale does not do, and what I have not attempted to do, is to state whether in every single case these restrictions, some of them very ancient, remain valid and essential.
The existing requirements result from the piecemeal enactments of provisions on very different subjects, at widely different times over the past 100 years or more, and to meet very different needs. Circumstances change, and I accept that there may now be anomalies in the designation of matters requiring a Law Officer's consent or that of the Director of Public Prosecutions. Nevertheless, many restrictions are, I believe—they have been amply illustrated opposite—necessary to the public good. There is a very big baby in this bathwater and we cannot simply overturn the tub.
As the noble and learned Lord, Lord Elwyn-Jones, has said, we need to look at the provisions individually. I am sure that the noble and learned Lord himself would not want to do any such thing as to overturn the provisions en bloc, and that he and your Lordships

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would agree that we could proceed only after a thorough review of the statutes—more than 100 of them—concerned. That review of the statutes would be a major task, and the task to which we have already set our hand in this Bill ought to take precedence over it.
I do not want to elaborate on this matter because your Lordships want to get on, but the noble and learned Lord raised a Scottish question. I understand that the right to private prosecution has in fact been recognised, although under very different constraints, in Scotland for some considerable time.
Lord Simon of Glaisdale: I said that it was recognised in that case, but as recently as 1971 it was regarded as obsolete in the case of McKendrick v. Sinclair. That was the point I made.
Lord Elton: I am ably, promptly and aptly prompted to remind the noble and learned Lord that we are dealing here—this is a lesson to me never to trespass north of the Border—not with a private prosecution, but with something called assizement. I say that with some dread because I can take the argument no further without assistance.
9.30 p.m.
If I may return to our theme, the Government would not wish to belittle the importance of the private right to prosecute. As I have said, Her Majesty's Government believe it to be important. The noble and learned Lord, Lord Simon of Glaisdale, referred to the Royal Commission's dissatisfaction with the current provisions. In recommending that the requirements for a Law Officer's or the Director's consent should be rationalised without delay, the Royal Commission also had in mind that it was proposing new and additional constraints on the right of private prosecutions itself. In sympathy with the thrust of the noble and learned Lord's own view, the Government do not think it would be right further to constrain private prosecution.
The Royal Commission itself also recognised that the full scope of the Director's role would not become clear until the new service was fully operational. What it comes down to is that this is a question of priorities. We must first put on a proper statutory footing the arrangements for prosecution which have grown up in such a variety of ways across the country. Then, I suggest, is the time to examine the operation of the various consent provisions, including those of the Director, which will be exercisable by prosecuting officers in the new service. That is the fullest answer I can give to a noble and learned Lord who knew more at the beginning of my speech than I know at the end of it.
Lord Simon of Glaisdale: It is extraordinarily difficult to say anything in reply to a debate of this sort because the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Hutchinson, always sound—indeed, always are—the very soul of reasonableness. That goes also for the noble Lord the Minister. He is not one of those Ministers who reads his brief for the debate at the stops at traffic lights on
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his way to this House. In fact, I had my vacation rudely disturbed because he had chosen to work on this Bill well before Parliament was due to reassemble.
I should like to say one or two things, as noble Lords who have spoken have been good enough to deal with my arguments. The noble Lord, Lord Hutchinson, described the right of prosecution as an anachronism. Leaving aside questions of nomenclature between English and Scottish law, was the right of private prosecution in the Glasgow case really an anachronism? Does anybody, having read the account of that case, hold it to be so? Would it not have been a scandal, a failure of justice, and an affront to the people of Scotland if there had been no power to prosecute privately? Was that really an anachronism?
The noble Lord went on to say that everyone knows how difficult it is to get the Attorney to intervene and enter a nolle prosequi. In fact, he said, it was an impossible task. It certainly is not in the sort of case which the Royal Commission thought should still be dealt with by the Law Officers and by the Director. Both noble Lords and the Minister mentioned sensitive areas and selected various offences which seemed fairly obvious. The Minister referred to the Home Office memorandum. This is what the Royal Commission says about that memorandum:
"The rationale proposing such descriptions was given in the Home Office memorandum but the reasons given there do not seem to be the basis of any coherent policy and an examination of the Act concerned suggests that some of the restrictions have been arbitrarily imposed".
Having been engaged in setting up a prosecution service which is reasonable and fit for modern conditions, are we going to let those anomalies, those haphazard insertions in the statute book, stand? I confess I was very disappointed that the noble Lord the Minister did not even say that the Government were busily examining these 100-odd offences to see which of them could be freed from the restrictions.
However, having said that, I thank noble Lords who have intervened in this debate and listened to it. It would be idle at this hour to seek to divide the Committee and I therefore, with great misgivings, ask leave to withdraw my amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Renton): I understand that Amendments Nos. 27 to 30 are not moved. I therefore put the Question—
Lord Ponsonby of Shulbrede: Clause stand part.
The Deputy Chairman of Committees: I am very much obliged to the noble Lord. Clause 6 stand part is the next Question I have to put. The Question is that Clause 6 stand part of the Bill?
Clause 6 agreed to.
Clause 7 [Delivery of Recognisances etc. to Director]:
[Amendments Nos. 27 to 30 not moved.]
Clause 7 agreed to.
Clause 8 [Reports to Director by Chief Officers of Police]:
[Amendments Nos. 31 and 32 not moved.]
Clause 8 agreed to.
Clause 9 [Reports by Director to Attorney General]:
[Amendment No. 33 not moved.]
The Deputy Chairman of Committees: The Question is that Clause 9 stand part of the Bill?
Noble Lords: Amendment No.34.
Lord Simon of Glaisdale: Have we dealt with Amendment No. 34? I think the noble Lord the Minister spoke to it, but I do not think it has been moved.
The Deputy Chairman of Committees: I beg your Lordships' pardon. I now call Amendment No. 34.
Lord Elton Lord Elton moved Amendment No. 34:
Page 6, line 35, leave out ("by him")
The noble Lord said: I am sorely tempted to say that I did deal with this amendment, but I regret to say that I did not. It is a minor drafting amendment. The clause as it stands is slightly ambiguous as to whether the Director of Public Prosecutions' annual report to my right honourable friend the Attorney-General should deal with the work of the service as a whole as well as with the Director's personal performance as head of the service. It is our intention that it should, and this amendment helps to make that clear. I beg to move.
On Question, amendment agreed to.
[Amendment No.35 not moved.]
House resumed.
House adjourned at twenty minutes before ten o'clock.