HL Deb 17 January 1985 vol 458 cc1139-61

House again in Committee.

Clause 4 [Prosecuting officers]:

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 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 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 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 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.

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 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—

  1. (a) a solicitor; or
  2. (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 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 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 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.

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 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 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 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 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 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 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 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 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 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.

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 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 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 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.