Lords Sitting of 21 January 1985

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Derby.

Water Authorities: Finance Policy
The Earl of Kinnoull: 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 rights of objection ratepayers may exercise when a water authority is overruled as to how little it may charge the consumer.
The Parliamentary Under-Secretary of State, Department of the Environment (The Earl of Avon): My Lords, the statutes have provided water authority customers with no formal procedure for objecting to water charges apart from the right under paragraph 39C of Schedule 3 to the Water Act 1973 (as amended by a schedule to the Local Government Finance Act 1982) to inspect the accounts at each audit and to make representations to the auditor. But they are free to express their opinions on their own account or through the consumer consultative committees which were established under the Water Act 1983 to represent consumers' interests to the water authorities and the companies.
The Earl of Kinnoull: My Lords, may I thank my noble friend for that long reply? Would he not agree that the present accounting system for statutory bodies and nationalised industries, known as the "current cost convention" and the target rates of return throw up some unjustified and excessive profits, to the detriment of consumers? Would my noble friend say what is the justification, for instance, of the Thames Water Authority needing to produce profits estimated at £70 million for 1985–86 that a 12 per cent. increase in charges would produce?
The Earl of Avon: My Lords, I do not really agree with my noble friend. Requiring the water authorities to achieve a rate of return on their asset is a sound business practice and it ensures that resources are used to the best advantage—with which principle the noble Lord, Lord Bruce of Donington, as an accountant, would no doubt agree.
Baroness Burton of Coventry: My Lords, having listened very carefully to what the Minister said in his original reply, may I ask him whether he is aware that we discussed the consumer consultative committees on Thursday last when his noble friend Lord Skelmersdale, I think, agreed that these committees should be able to consider fundamental questions, including general charging and financial policies? As that was accepted and is in the Secretary of State's guidelines, does the Minister's reply to the noble Earl, Lord Kinnoull, mean that the matter he has referred to could in turn be referred to the consumer committee?
The Earl of Avon: My Lords, I read the exchange last week which the noble Baroness had with my noble friend Lord Skelmersdale and I am glad that she took the same reading of it as I did. The point is that the consumer committees can have this information and indeed they should have it; and I very much hope they do have this information.
Baroness Birk: My Lords, where is the logic at the moment in compelling water authorities to increase their charges to the ratepayer at a time when local authorities are being forced to do exactly the opposite? Secondly, is it not true, as the CBI has pointed out, that at a time when the target is to reduce industrial costs, the increase of 25 to 30 per cent. in real terms over the next three years for an essential commodity is a serious blow for manufacturing industry? So is it not true that both domestic and industrial consumers are suffering very badly—industry as a whole and the ratepayers as a whole—through the Government's actions alone?
The Earl of Avon: My Lords, somebody else has to pay. The higher returns will allow the water authorities to undertake more investment in water services and sewerage, and next year the higher investment is

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expected to be about £80 million, with further increases in later years. The higher charges ensure that the consumer and not the taxpayer pays for the improved service that he receives.
Lord Nugent of Guildford: My Lords, is my noble friend aware that the water industry, like other nationalised industries, is required to provide for its capital programme by a measure of self-finance? Is he aware that the water industry is at a far lower scale than any other nationalised industry, having inherited a situation where there was no self-financing at all for capital expenditure and so the whole of the burden fell on the Public Works Loans Board—in other words, on the shoulders of the whole community? Therefore is my noble friend aware that it is very much in the interests of all concerned that the measure of self-financing by the water industry, including the Thames Water Authority, should be increased so that the amount of money required to be borne by the rest of the community is reduced?
The Earl of Avon: My Lords, I am grateful to my noble friend for the supplementary question. I think that the Government are right in considering that the water authority's present average rate of return of 1 per cent. is too low and the higher targets will allow water authorities to increase their investment and reduce their borrowing.
Baroness Burton of Coventry: My Lords, from the reply of the noble Earl it seems that I must apologise for not having made myself clear. Is he aware that I asked him whether the rights of objection that ratepayers may exercise, as specified by the noble Earl, Lord Kinnoull, could be taken up by the consumer consultative committees? I did not ask whether the consultative committees could have this information: I asked whether they could act on it.
The Earl of Avon: My Lords, the water authorities are obliged to consult their consumer consultative committees well in advance before deciding upon proposals. I am advised that we have had active correspondence with the consultative committees and that representations from them look to be encouraging and appear to be indicating that the system is working as it should.
Lord Dean of Beswick: My Lords, can the Minister tell us whether the editorial in today's Evening Standard is correct in saying that one of the major authorities—the largest in the country—is refusing to act as an income tax collector to collect further taxation for the Chancellor of the Exchequer? If they pursue this course, can the Minister tell us whether additional legislation will be required to enable the Government to force water authorities to carry out the Minister's bidding?
The Earl of Avon: My Lords, the noble Lord is ahead of me on the editorial in the Evening Standard. I normally read it after Question Time. But so far as the other supplementary question of the noble Lord is concerned, as we do not agree that this is indirect taxation the problem does not arise.
Baroness Fisher of Rednal: My Lords, has the Minister seen a copy of the Water Bulletin? That is the magazine which is issued weekly and which covers all water issues. Today's issue has various comments from the water chiefs and finishes up by stating:
"Announcing increases in water charges for 1985/86 last week water authority chiefs reminded customers that the Government carried the blame for the size of the increases".
The Earl of Avon: My Lords, I have already said to the House that the rate of return of 1 per cent. is too low, and we believe that 1.4 per cent. would be about right. I do not think that that really quantifies with that particular article.
The Earl of Kinnoull: My Lords, is my noble friend aware that there are no rebates available for water rates? In view of the excessive increase, will he consider bringing water rates into line with general rate rebates?
The Earl of Avon: My Lords, water service charges are a relatively small part of bills and are taken into account when supplementary benefit is calculated. Some 3 million householders get help in this way.
Baroness Birk: My Lords, I am sorry to intervene again, but the Minister said that 1.7 per cent. is quite low, which of course it is as an increase, but it is not the real increase. The real increase is the rate of current replacement, which is four times as high and works out at 6.8 per cent.
The Earl of Avon: My Lords, I will not argue with the noble Baroness's figure, but my figure should have been 1.4 per cent.

Unemployment and Health
2.45 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 will institute an inquiry into the degree of health hazards and premature death attributable to unemployment.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur): No, my Lords. Little of the research so far carried out on this subject has been conclusive. The Government's priority is to tackle the problem of unemployment at its roots.
Lord Hatch of Lusby: My Lords, I wonder whether the Minister will forgive me if I just express my very great sadness that Lord Balogh will no longer appear in this House. We had been great friends for the past 30 years, and I am sure that all noble Lords will regret that his pungent contributions to debate will no longer be heard.
Noble Lords: Hear, hear!
Lord Hatch of Lusby: My Lords, may I ask the noble Lord the Minister whether his attention has been drawn to the survey done on this subject by Professor John Fox and his colleagues at the Social Statistics Research Unit? Admittedly, this was done on figures of 1981, when unemployment was 4 per cent. rather than over 13 per cent., as it is today. But it finds that,
"suicides, accidents and respiratory diseases contribute particularly to the men's deaths"
and that,
"unemployment leads to premature death for men and reveals for the first time that their wives, too, are vulnerable."
Is the Minister also aware that his own Government have said very much the same in the report on social trends by the Central Statistical Office, which finds evidence of higher levels of divorce, alcoholism and reported illnesses among those who had lost their jobs between 1979 and 1983? While I fully admit that there is no conclusive evidence, may I ask the noble Lord whether he will agree that these findings warrant a Government investigation of the effects of unemployment on this very large percentage of our workforce?
Lord Glenarthur: My Lords, before answering the points which the noble Lord raised, I, too, should like to be associated with what he said about the late Lord Balogh and to express sympathy from where I stand for his family. But in answer to the points that the noble Lord raised, yes, we are aware of the research which has been carried out by Professor Fox, but what the noble Lord adduces from that is not really the case. The researchers themselves say no more than that,
"The results from this study support findings by others that unemployment is associated with adverse effects on health".
They do not claim that their work proves conclusively that premature death is directly attributable to unemployment. The reason research has not been conclusive is that it has proved difficult to isolate the effects of unemployment from those of all the other factors that affect health. So far as further research is concerned, we are always willing to consider further bids, but they have to be of demonstrable usefulness.
Lord Ennals: My Lords, will the noble Lord accept that his reply is very disappointing and will he think again about this? Is he aware that the researches that have been published by a number of institutions show that, so far as the long-term unemployed are concerned, there is a 20 per cent. increase in suicides; that by the age of 2 most children of the long-term unemployed are an inch shorter than those of employed families; and that there is a substantial increase in mental and physical illness, as well as a very serious increase in family breakdowns? Will he not consider that a major overall survey is essential, if he is not satisfied by the research that has already been published?
Lord Glenarthur: My Lords, as I indicated in my earlier answer, we do not accept that existing research has generally been conclusive, as the noble Lord himself seems to think it is. We are already pursuing policies which provide the best way of reducing unemployment long-term. Equally the record quite clearly demonstrates the priority which the
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Government attach to meeting the health needs of the population as a whole, whatever the causes of ill-health might be.
Lord Wallace of Coslany: My Lords, is the noble Lord aware that his smooth answer to my noble friend is simply not acceptable? Is he further aware that unemployment imposes tremendous mental strain, not only on the displaced wage earner, but on his wife and family as well? I have experience in this connection and so I know what I am talking about. It is therefore essential, as the Government are longwinded in any attempts to solve the unemployment problem, for them to do something about it.
Lord Glenarthur: My Lords, I have already indicated that we firmly believe that what we are doing to remove the underlying causes of unemployment is the right way of tackling the problem. There are various statistics which I could produce to the noble Lord which would show that this country is doing better than many others. The fact is that the soundness of the methodology being used in some of these surveys is also under some challenge by other researchers in this field. That is the reason for the answer which I gave earlier to the noble Lord.
Baroness Seear: My Lords, would the noble Lord not agree that it is always very easy to criticise the basis of research in the social field? I have been involved in this and nothing is easier than to shoot down the validity of one's opponents in the research field. While it is possible to do this, surely the noble Lord would agree that commonsense, which I should have thought would appeal to him perhaps rather more than would research findings, suggests that the long-term unemployed are bound to be suffering in this way and that special measures are needed to deal with the consequences.
Lord Glenarthur: Yes, my Lords, but it was certainly not my intention or anybody else's to shoot down out of hand the research that has been done. One pays tribute to those who carry out the research. The noble Baroness talks about commonsense in this respect. It is commonsense also, I suggest, that in some individual cases unemployment does contribute to ill health through stress and through low income; and in others ill health is itself a factor in job losses. But generalising from particular cases has proved very difficult, and I am sure that the noble Baroness will realise that it is likely to remain so.
Lord Somers: My Lords, does the noble Lord include in the word "unemployment" all those who are not working; in other words, those who are on strike, who certainly cause a great deal of hardship to others from time to time?
Lord Glenarthur: Yes, my Lords, I am sure that the noble Lord is right in that respect.
Lord Kilmarnock: My Lords, is the noble Lord aware of the work of Dr. Brenner on the association between suicide and unemployment? If not, will the noble Lord's department study it?
Lord Glenarthur: My Lords, I am aware of that work and it is its methodology which has been challenged to some extent by other researchers in that field.
Lord Ennals: My Lords, the researches to which I referred were done not in the United States, but in this country. Is the Minister aware that it was not I who cast doubt on their validity, but he himself? If he does not accept the validity of the researches done in university research departments, would it not be sensible for him to institute precisely the proposal made by my noble friend?
Lord Glenarthur: My Lords, we monitor what is going on, and I have said that if we are to produce any further surveys, they must be of demonstrable usefulness.
Lord Hatch of Lusby: My Lords, if the noble Lord is so convinced that his Government's policies are undermining unemployment and after five years he finds that unemployment has steadily gone on rising and is still rising, how long will it be before he is convinced that his policies are wrong? May I ask him whether he recalls that I did not suggest that any of the research that had been done has been proven, or that the social workers who have done that work assert that their work is conclusive? What I asked him was this: In view of the work that has been done, particularly by the social research department, and in view of the article published in the Lancet, is it not the responsibility of the Government to institute their own inquiry into what is clearly a growing malaise among a large section of our population?
Lord Glenarthur: My Lords, for the third time I can say only that we are willing to consider bids for research on their merits, but that there must be some point in carrying out the research.

Nuclear Disarmament: Verification
2.55 p.m.
Lord Molloy: 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 will initiate a summit conference to determine a satisfactory method for the verification of agreed measures of nuclear disarmament.
The Parliamentary Under-Secretary of State for the Armed Forces (Lord Trefgarne): My Lords, we attach great importance to the adequate verification of arms control agreements. Verification methods must be determined by the requirements of specific agreements and by the parties to the negotiations. It would be hard for a summit conference to address such technical issues.
Lord Molloy: My Lords, is the Minister aware that I am very pleased to hear that the Government are willing to search hard for a solution to this problem? But is he also aware that a summit conference on this
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matter is possible? Indeed, in the past three or four days something like it has been said by President Reagan and his chief negotiator, Mr. Kampelman. In view of SAMOS I and SAMOS II, which can see a Russian soldier loading his rifle anywhere in the Soviet Union, and in view of all this wonderful, multi-spectral photography, they now believe there is a possibility of arriving at some form of agreement on verification. Could it not be that, between the Soviet Union, on the one hand, and the United States of America, on the other, Great Britain has an opportunity to perform a remarkable role in bringing together the two sides and other interested bodies to try to save mankind?
Lord Trefgarne: My Lords, I think one ought to resist the temptation to imagine that there is some simple panacea to these problems which could produce a simple, straightforward solution overnight. As President Reagan said recently:
"Absolute verification is impossible, but adequate verification is essential".
I think that the technical methods to which the noble Lord referred underline the point that I made earlier: that this is really a matter for technicians and scientists and not for leaders.
Lord Renton: My Lords, is my noble friend aware that in last Wednesday's very useful debate initiated by the noble Lord, Lord Molloy, several of your Lordships mentioned that conventional disarmament is just as necessary and important as nuclear disarmament? Will he bear in mind that, if and when that happens, verification with regard to it will also be necessary?
Lord Trefgarne: My Lords, my noble friend is of course quite right. That is why we attach such importance to the MBFR talks, as they are called, which are presently going on in Vienna.
Lord Shinwell: My Lords, may I ask the noble Lord this question? Are we not attaching too much importance to this idea of verification? Is it not a matter of interpretation: in other words, who is telling the truth about time, space and measurement, and all the rest of it? Why, every now and again, do we pick out some idea in order to solve a problem when in fact there is no problem and therefore can be no solution?
Lord Trefgarne: My Lords, I think the difficulty is that the history of these matters is littered with occasions when we have had to be disappointed, to put it no higher, with the actions of the other side as related to their assurances. For that reason, I am convinced that verification is a crucial part of whatever arms control agreements we can reach; and that is why we support the search for effective measures in that area.
Viscount Trenchard: My Lords, would my noble friend agree that there are some aspects of verification which will continue to require on-site inspection—for instance, chemical weapons and chemical stocks, which none of the new technology is capable of detecting?
Lord Trefgarne: My Lords, I think my noble friend underlines what I said just now: that there are no magic solutions to this problem. I think my noble friend is also right about the particular point which he has raised.
Lord Mayhew: My Lords, since the Minister, in quoting President Reagan, agreed that there can be no complete verification but only adequate verification, is the position of the Government that there may be some agreements which are acceptable even though they in fact involve an element of trust?
Lord Trefgarne: My Lords, I cannot think, off-the-cuff, of an agreement that we would find acceptable which incorporated no measures of verification, but there may be occasions when we have to settle for less than 100 per cent.
Lord Jenkins of Putney: My Lords, will the noble Lord agree that while nuclear verification is now technically possible nothing can replace the will for peace? Will he try to ensure that the will for peace is fully present in the USA, as I believe it to be in the USSR?
Lord Trefgarne: My Lords, I wish that I had the faith of the noble Lord in these matters, but I do not believe any useful purpose would be served by arms control agreements which one side or another can flout at their will.
Lord Molloy: My Lords, is the Minister aware that, as the noble Lord, Lord Renton, has said, conventional arms must equally come under some kind of control?
But there is the most amazing difference between conventional arms and thermonuclear weapons; the latter are on the verge of interfering with the secrets of the universe. The firing of a conventional shell has never created any danger such as that. Is the Minister further aware that eminent American scientists have indicated to their President that he ought to initiate graduated and reciprocal initiatives to reduce tension? There might be some difficulty for the American President in doing that, or even for the Chairman of the Soviet Republic. What I believe is that here—
Noble Lords: Speech!
Lord Molloy: My Lords, I believe sometimes—
Noble Lords: Order!
Lord Molloy: My Lords, I am sure that the Minister acknowledges and is aware of the importance of this subject and recognises that it demands reasonable examination. I believe that Great Britain—
Noble Lords: No!
The Minister of State, Ministry of Agriculture, Fisheries and Food (Lord Belstead): My Lords, will the noble Lord put his remarks in an interrogative form?
Lord Molloy: My Lords, I am grateful to the noble Lord. Is the Minister aware that I hope he will be
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prepared to recognise that this proposition could be accepted? Is he further aware that there have been indications—certainly in the United States—that it might be well worth our while?
Lord Trefgarne: My Lords, if I can grasp the essence of the noble Lord's supplementary question, I certainly agree that we ought to be seeking balanced and verifiable methods of arms control. The Government will do everything they can to achieve that end.

Local Authorities' Assets: Capital Receipts
3.1 p.m.
Lord Dean of Beswick: 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 are their short and long term proposals for the £5 bn. which they now hold, belonging to the local authorities which was raised as capital receipts by the sale of publicly owned assets.
The Earl of Avon: My Lords, I can assure the noble Lord that the Government are not "holding" any of the local authorities' money. The cash from the sale of assets remains in their hands. What my right honourable friend the Secretary of State for the Environment is proposing is that the use of such receipts for additional capital expenditure by the authorities should be spread over a longer period of time than hitherto, in order to help keep total local authority capital expenditure within the levels allowed for in the Government's public expenditure plans.
Lord Dean of Beswick: My Lords, can the Minister give a copper-bottomed undertaking that the substantial sums of money which belong to the local authorities will not be used by the Chancellor of the Exchequer in the future to effect a further cut in income tax, which appears to be the only policy he has at present? May I further ask what in global terms are the financial sums involved in the cut from 40 per cent. to 20 per cent. this year?
The Earl of Avon: My Lords, I am not sure about a copper-bottomed guarantee, but I can assure the noble Lord that local authorities will be able to use this money. They can put the money on deposit, repay debt, or offset borrowing, as they have done in the past few years.
So far as the statistics are concerned, luckily the sum of £5 billion is quite easy for me to work out. It will mean that 20 per cent. of that figure will be available, which is £1 billion, whereas had it remained at 40 per cent., as it has done this year, the local authorities could have spent £2 billion.
Lord Ross of Marnock: My Lords, surely the whole argument for the sale of council houses was that it would give local authorities control of funds which they could spend on housing as they liked. The Government are now changing that.
The Earl of Avon: My Lords, we are, indeed, reducing the rate from 40 per cent. this year to 20 per cent. next year.
Noble Lords: Why?
Lord Grimond: My Lords, do not the Government treat receipts from the sale of the capital of nationalised industries as income and set it against the PSBR? Are not local authorities entitled to do the same thing, or are they forced to treat the sale of their capital assets as capital?
The Earl of Avon: My Lords, my understanding is that they treat it as capital, but this is a case where the particular sum of money which the noble Lord opposite just mentioned is out of all proportion to what it was expected to be. I am delighted that sales have successfully reached £5 billion, but obviously this is a sum of money which it is impossible to allow to be floating about.
Baroness Birk: My Lords, I am glad that the Minister is delighted about that, but I do not believe that the 1 million or more people on the housing waiting list, or the 80,000 homeless families, will feel very delighted; nor will those people who need improvements to their homes. Is the Minister aware of the very strong feelings expressed by a multitude of organisations concerned with construction and economics over the fact that Neddy has calculated that it will cost disproportionately more to put right the longer we delay?
Is the Minister aware also of the very strong letter sent to The Times last week by the president of the Royal Institute of British Architects, which pointed out not only that these cuts are poor value for money, but that they also inhibit recovery by the private sector, which the Government are pledged to expand? The letter explained how tragic and wrong this was for the whole of our economy, for housing, and for the people of this country.
The Earl of Avon: My Lords, I do not go along with everything that has been said lately about this matter. Myself I believe that opportunities exist and that the housing starts which were begun this year have been an encouraging sign that the private sector is leading the house-building industry.
Lord Mackie of Benshie: My Lords, did I understand the Minister to say, in reply to a previous question, that some of the £5 billion would be put on deposit and that some would be set against borrowing? Can he tell us the proportions?
The Earl of Avon: My Lords, it is very much up to local authorities; it is up to them to do what they like; maybe they will repay debt.
Lord Ezra: My Lords, is the noble Earl aware of the findings of the recent NEDC report on investment in the infrastructure? Among other things, it drew attention to the very large amount of repair and maintenance now required in the public housing sector. In view of the fact that the report was published
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after the Government reached the decision which has been the subject of this Question, are the Government now prepared to reconsider the disbursement of those funds?
The Earl of Avon: My Lords, the Government are looking at the Neddy report and will be responding. Myself I believe that the World Bank's 20-nation comparative study showed a strong correlation between low tax and rapid economic and employment growth. I believe that the research which has shown that tax cuts have a better effect on job creation and price inflation than the alternative to cuts—
Noble Lords: Speech!
The Earl of Avon:—is right.
Lord Stallard: My Lords, did I understand the noble Earl to say in reply to a question a few moments ago that he was delighted local authorities had been so successful in raising the amount of money they have, and that it was because of that success that the Government are taking the stance which they are taking? Is he saying in effect that we ought to be telling local authorities they have been too successful, and that if they continue with that line of success, they might lose even more than the £5 billion? That seems to be a very strange policy.
The Earl of Avon: My Lords, if they are more successful, then there would be more than £5 billion.

Business
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Prosecution of Offences Bill will be adjourned at approximately 7 p.m. for a short period. During that adjournment the Regional Development Grant (Prescribed Percentage, Amount and Limit) Order 1984 will be taken.

Leicestershire Bill [H.L.]
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That those provisions in the Bill against which no petition has been presented or if presented has been withdrawn in whole or in part, or which become unopposed by reason of any of the provisions of Standing Order 113 be committed to a Select Committee and that the quorum of the Select Committee be two.—(Lord Aberdare.)
On Question, Motion agreed to.

Prosecution of Offences Bill [H.L.]
3.8 p.m.
The Minister of State, Home Office (Lord Elton): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Elton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 9 [Reports by Director to Attorney General]:
Lord Mishcon Lord Mishcon moved Amendment No. 36:
Page 6, line 41, at end insert—
(" ( ) A report under subsection (1) shall include a copy of any advice or guidelines of a general nature which has been—

(a) given under section 3(2)(e) of this Act (advice by Director to police on matters relating to criminal offences, etc.);

(b) given by the Director in relation to prosecution policies to Crown Prosecutors and prosecuting officers.").

The noble Lord said: I can explain this amendment in very simple and short terms. There is to be an annual report by the Director and this amendment says that that report should include certain items which would come before Parliament. Those items are, first, the advice by the Director to the police on matters relating to criminal offences, and so on, coming within Clause 3(2)(e) of the Bill, and, secondly, the advice or guidelines of a general nature given by the Director in relation to prosecution policies to Crown prosecutors and prosecuting officers.
Perhaps I may make the basis of this amendment by way of a quotation from the Philips Report, to which reference has so often been made in the course of the proceedings of this Bill. The report states on page 138, Chapter 6.48:
"Openness is the second standard we have set for evaluating a prosecution system. We have defined that term, briefly, as the extent to which the system makes it possible for those who take prosecution decisions to be called publicly to explain and justify their policies and actions. This is often called 'accountability'."
I should have thought that that was an essential amendment if the philosophy in that report which I have just expressed is to be carried into practical effect. I beg to move.
Lord Rawlinson of Ewell: I welcome this amendment and certainly look forward to hearing what my noble friend the Minister has to say in reply, because consistency in the principle of prosecution is tremendously important. Therefore, it is important that any advice given by the Director in relation to prosecution policies should be publicly well known. Having looked at this amendment and having heard what the noble Lord said I encourage my noble friend to include this in the report, if at all possible, which the Director will be making.
Lord Renton: One does realise the superficially good motive behind this amendment but one wonders why we pass laws. What are laws? Laws should be enforceable and there should be a sanction if they are not obeyed. I wonder what would happen if the instructions in this amendment were not carried out.
Lord Rawlinson of Ewell: Does my noble friend not agree, however, that there have been many examples in the past? For instance, the Director has given advice on such matters as sexual offences and on general policy. That is the kind of guidance given to the police that sometimes the Attorney-General has to answer
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for in the House of Commons. Is it not good that it should be made public?
Lord Renton: I concede at once that, of course, in the past many so-called laws have been passed which have been merely administrative instructions by Parliament to Ministers—instructions which could perfectly well be made public and be firmly obeyed within the Government. However, sometimes we need to pause and think about the extent to which we legislate on purely administrative matters. It is for that reason only that I have a doubt as to whether we are going a little too far in that respect on this amendment.
3.15 p.m.
Lord Elton: I wonder whether I may water and tend my noble friend's doubt until it grows a little. The noble Lord's amendment seeks to oblige the Director in his annual report to the Attorney-General to reproduce all policy guidelines of a general nature that he has promulgated to Crown prosecutors and all general advice given by the service to the police under the terms of Clause 3(2)(e).
We see the new service as being responsible not only for the prosecution of cases initially brought by the police, but also as a readily accessible source of advice to the police on all criminal matters. Clause 3(2)(e) is designed to allow the service to give such advice, and we expect that the police will regularly wish to take advantage of its provisions. They may, for example, wish to check with the service whether it considers prosecutions should be brought in particular circumstances; or, in a complex or difficult area of the law, which particular charges are appropriate in which situations. The new service may also advise the police on any matter that may lead to the bringing of a prosecution, such as the exercise by the police of powers of arrest, detention or search and seizure. The police will, I believe, come very quickly to regard the new service as an invaluable source of expertise on the law on these matters and on policy issues associated with prosecution.
Although in some cases the advice given may fall within the description covered by the amendment, there may be room for differing views whether it is really suitable for publication. Certainly one can imagine circumstances where it may not be, because of the implications for the prevention, investigation or detection of offences. Where such circumstances arise, it would be a great pity if the police were to feel inhibited from seeking the new service's advice because the confidentiality of it could not be guaranteed, or if the service were to be inhibited from giving advice of a general nature which revealed certain courses which might be pursued by defendants with greater impunity than others.
As regards matters of prosecution policy, we agree that it is in principle desirable for the Director's report to discuss any developments of significance or importance in the year to which the report relates. Guidelines of a general nature will, after all, be highly relevant to the discharge of his functions by the Director. But I am not sure the best course is to require every guideline of a general nature to be published. The aim of the report, which will be laid before this House and another place, is to give information about

15
the Director's, and the service's, performance of their functions. This will necessarily involve discussion of many important matters relating to how the service goes about its business, including its use of resources and—what is clearly a matter of concern to this House—policy on delegation of decision-taking to the local level. On this particular aspect, my right honourable friend the Attorney-General, in his recent White Paper, has said that any amendments to the distribution of work will be published in the annual report.
In short, I think that my noble friend Lord Renton, in his helpful intervention, is right to suggest that we are looking at what is properly an administrative, rather than a statutory, direction. I believe that it would be counter-productive to insist, as the amendment does, on the publication of all general policy guidelines and all policy advice to the police, regardless of their significance or the need in some circumstances for confidentiality. I do so for two reasons. The first is that it would tend to clutter up the report with detail which will obscure the main issues. That is not a principal objection, because that could be put into an appendix, I agree, but I think that the threat to confidentiality, allied with the question of how far down to detail legislation should go, should combine to persuade noble Lords that this is perhaps not a very helpful amendment.
Lord Rawlinson of Ewell: I find that difficult to appreciate. We are providing that there shall be a report by the Director to the Attorney-General on the discharge of his functions. That is provided for in the Bill, and that it shall be laid before Parliament. I understand that the purpose is that the Director should explain to the Attorney-General, who shall be answerable to Parliament, what has been happening in the field of prosecutions during the year.
If he is to make a proper report, is it not essential for him to be able to set out the guidelines he has given in the course of the year with regard to prosecutions? I accept that one cannot put in every single one. There may be certain confidential items which are not appropriate, but generally I should have thought that as a matter of principle it is wise that there should be before the Attorney-General and therefore before Parliament directions which are given with regard to prosecuting policy.
Lord Elton: We are for once on the familiar ground of "may" or "shall". The statute as it exists requires the Director to make the report, and he is perfectly at liberty to put in it what he wishes. The general purposes of the report are on the face of the Bill, and my noble friend has correctly described them. The amendment of the noble Lord, Lord Mishcon, goes further and says that the report not only may include a copy of any advice or guidelines and so on, but that it shall do so. That removes from the Director the ability to withhold from his report advice which may be of a general nature and which may point out to those who advise the criminal fraternity on their defence a very useful weakness in the law. Either in those circumstances the Director will be unable to mention them in the report or else he will be forced to
16
disclose them before Parliament. It seems to me that he should be left in the position of not having to display to the public and interested gaze weaknesses which may appear in our statutes and which may be of advantage to the criminal fraternity when trying to evade the results of their crimes.
This is a matter of detail—and I say this with great respect to my noble and learned friend Lord Rawlinson. It is a matter of detail only because the director can already declare these things, and I do not doubt already does declare these things, in his annual report, except where they are sensitive. I think that we should trust him to conceal matters which are as delicate as this rather than force him either not to discharge his duty by advising the police or to declare things contrary to the public interest.
Lord Wigoder: Given that the amendment of the noble Lord, Lord Mishcon, includes specifically the words, "of a general nature", can the noble Lord the Minister give us a hypothetical example of "advice or guidelines of a general nature" which it would not be in the public interest to publish?
Lord Elton: We are getting into detailed definitional language as to what is meant by "general". It may be generally applicable to the prosecution service that it has come to the notice of the legal advisers in a government department that there is a defect in a statute which, if it is exploited, will enable people to do things which were hitherto thought to be illegal. That is something which one would not wish to advertise but of which one would wish the prosecution service to be aware.
Lord Campbell of Alloway: Before my noble friend the Minister sits down, may I ask him this question? Following the line of my noble friend Lord Renton (which appeals to me), is not the problem here that the amendment is drafted in mandatory form and it could well, with the difficulties of definition of "general nature" to which the noble Lord, Lord Wigoder, has drawn the attention of your Lordships' Committee, and other confidential or adminstrative aspects, impinge to far too great a degree upon the administrative situation? But would it not be helpful if the amendment were accepted in permissive form? If the amendment were acceptable as "may", that would at least serve as a signpost. It would go some way to meet the spirit of the amendment of the noble Lord, Lord Mishcon, and might conceivably produce a fair solution.
Lord Simon of Glaisdale: I hope that the noble Lord the Minister will not succumb to the blandishments of the noble Lord, Lord Campbell. To put the provision in permissive form would just be cluttering up the statute book with a quite unnecessary piece of verbiage.
Lord Mishcon: I am most grateful to the noble Lord, Lord Campbell of Alloway, for endeavouring to help me, and to the noble and learned Lord, Lord Rawlinson, for actually helping me in regard to this amendment. Where the noble and learned Lord, Lord Simon, stands on the matter is left in some doubt after his (as usual) very direct and pointed intervention.

17
There are three considerations, if I may respectfully put them before the Committee. The first is the need for accountability, as emphasised in the Philips report. The second is that we are trying in this Bill to do something which is very valuable. We are endeavouring to get some sort of consistent policy in regard to what is done in prosecuting offences. Thirdly, the Director himself in the very useful memorandum that he gave to the Philips Commission (which is set out as Appendix No. 25 to that report) starts with these words:
"Of all the decisions which have to be made by those with responsibility for the conduct of criminal cases, by far the most important is the initial one as to whether or not a charge should be preferred".
All that the amendment is saying is this—and with great respect to the noble Lord, Lord Campbell, there is no point in having a permissive clause in this Bill. The Director knows perfectly well that he himself would not be prosecuted if he put such a paragraph into his report to the Attorney-General.
Lord Elton: Can the noble Lord then explain what is the purpose of this amendment, as he has just said that the Attorney-General will be in a position in the report to make the statements that he is now urging him to make?
Lord Mishcon: I can answer that very simply. The answer is the following. The amendment would make it mandatory for the Director to report to the Attorney and for the Attorney, on receiving this report, to have it laid before Parliament. The whole burden of my amendment is that that should be mandatory. Of course if we did not put anything in the Bill, there would be nothing to stop the Director doing this or the Attorney-General laying something before Parliament, but there would be nothing telling him that he should do so. The burden of my amendment and the reasons for it are that Parliament ought to see that there is accountability. Parliament ought to know what the general guidelines are—and I am most grateful to noble Lords for the emphasis which was placed in this little debate on the fact that the amendment talks about general guidelines.
The Minister answers this amendment with only one defence, if I may say so. I do not believe that he regarded it as a difficult matter administratively. From that point of view, I do not think that he was taking the point of the noble Lord, Lord Renton, that this would in some way clutter up the administrative machinery of the Director's office or of the Attorney-General's office. The point that the Minister was taking was a perfectly fair one. It was that there would be examples where public policy might be involved.
The noble Lord, Lord Wigoder, asked a very direct question as to whether bearing in mind that the reference was to general guidelines, the Minister could think of any example. The noble Lord the Minister, as usual, refused to be caught out and delivered off the edge of his bat a ball that just about got past the slips. He said that there could be an example and he gave it. If the Minister had said that he accepted this amendment which we regard as so vital, so that Parliament would know and the people would know what are the general guidelines that are being put
18
forward here under this Bill; and if he had said: "except where considerations of public policy might be involved; and if you put that in the amendment, I accept it", then, with the usual graciousness shown from these Benches, I would at once have said that that is the sort of amendment that obviously is acceptable. I would leave it to the Attorney-General, with the greatest of confidence, and indeed to the Director, to be the true judge of what public policy might be involved in an absolute minima of cases. I invite the noble Lord the Minister, rather than—if he asks me to sit down, I willingly do so.
3.30 p.m.
Lord Elton: I thought that the noble Lord was going to invite your Lordships to come to a decision on this and I did have something further to say before he did so. But he has not said what he was going to invite me to do, so I had better wait to hear what that is.
Lord Mishcon: I issue an open invitation in, I hope, the clearest possible way and without asking for any copper-bottomed undertaking. It is this. I invite the Minister to say that he accepts the spirit of the amendment. If at a later stage in the Bill an amendment could be brought forward which would except those very small cases that might arise where public policy was involved, I would not test the opinion of the Committee at this stage. If the Minister is not prepared to give that undertaking or that acceptance of the amendment, subject to that one proviso, then I must ask for the Committee's view.
Lord Renton: I wonder if the noble Lord could answer a question arising out of what he has said. Does he concede that the advice given by the Director to the police on criminal matters may include advice as to how to prepare the prosecution in cases of (shall we say?) terrorism, espionage, drug offences and all kinds of other matters on which it really is essential that there should be confidentiality? It seems to me that his amendment would require the advice given in such matters if it be of a general nature to be publicly revealed. That in itself would be wrong.
Lord Rawlinson of Ewell: May I say that I myself am not so sure. I should have thought that prosecution was a public act and that, even if the person is accused of terrorism or whatever it is, the exact principle upon which a prosecution is brought should be known. I am not saying that about investigation. Matters of investigation, of course, should be secret. But prosecution is a public act with a presumption of innocence no matter what crime the person is accused of. Therefore, I should have thought that such directions are quite proper to be given.
Lord Mishcon: I could not have answered the noble Lord, Lord Renton, with half the eloquence and clarity that the noble and learned Lord, Lord Rawlinson, has used. I merely, with humility, adopt his words. But I add to them and say this. Again, I have made the offer (I hope, as I have said, very respectfully) to the noble Lord the Minister. If questions such as those that the noble Lord, Lord Renton, feels are matters of public policy can be excepted at the

19
direction of the Director and the Attorney-General—and one imagines that it would be the Attorney-General in this instance—then I am prepared to realise that the spirit of this amendment, which pleads for openness and accountability, has been accepted with the security of the state, as it were, properly protected. But if that is not a principle accepted by the Government, then, quite obviously, I must ask the Committee to express its view.
Lord Elton: I can tell the noble Lord that the spirit of his amendment is perfectly acceptable. That is that we wish the affairs of the Director and the prosecution service to be exposed to the public view by means of reports which will be scrutinised by Parliament. What I am not happy with is the way the noble Lord sets about it. He asked me not to be blandished by my noble friend and then he proceeds to try to blandish me a fortiori himself into accepting this with some minuscule amendment to be devised by the Government.
May I return to his earlier principal speech in which he said that the great thing was to have a mandatory requirement. "We must have openness and it must be mandatory", the noble Lord said. I would simply remind your Lordships that Clause 9 is mandatory. The Director is required to make his report; the Attorney-General is required to lay it before Parliament; it is to account for what has gone on under the Director's direction during the preceding year. We are talking about what should be in the report. The noble Lord was not clear about where the noble and learned Lord, Lord Simon of Glaisdale, was standing. To me it seemed fairly clear that what he was saying was that if it was made a permissive requirement, if it was "may" rather than "shall", it would add nothing to the Bill because the Director was already in a position to do what the noble Lord wished to put on the face of the Bill. Therefore, that compromise is denied us.
The noble Lord now wishes us to write into statute a direction to the Director of Public Prosecutions and the Attorney-General from which they shall have no escape except by statutory provision, which I think is unnecessary when we are all agreed, and the Government accept, that the purpose of the report is to be as open as possible. I should have thought that the undertaking of the Government and the reputation of the Law Officers of the Crown did not need to be reinforced in this way by statute. Therefore, I cannot offer the noble Lord the olive branch which he seeks.
Lord Campbell of Alloway: It looks as if we might conceivably divide on this. May I say that I totally accept the view expressed by the noble and learned Lord, Lord Simon of Glaisdale, that it would not really be "on" to have a permissive amendment because it would clutter up the Bill. Having said that, on a Division I would vote against a mandatory amendment.
Lord Mishcon: I am very sorry to hear that, but it does not stop in any way the forcefulness of the point and the importance of it. All of us have decided, and quite rightly so, that this is a completely non-political
20
Bill. All Members of the Committee are anxious that there should be a good Bill dealing with a most important branch of our justice and the administration of justice in this land. Parliament, if this amendment is not passed, will be relying upon the discretion of the Director and the Attorney-General as to whether or not they would report to Parliament.
I have the utmost admiration—and this is usually said in the course of a debate on any Bill—for the present Ministers. One expresses that in all parts of the Committee. Then one puts the fear of God into the minds of all Members of the Committee or House as to what sort of Minister might turn up. If you are speaking from these Benches you are thinking of a future Minister on the Benches opposite; and if you are speaking from the Government Benches you are thinking that one day there might be a certain type of Minister at present on the Opposition Benches. I say this. Pious words—and I do not mean this disrespectfully—are uttered by the Minister as to how much the Government want there to be frankness and so on and so forth. Of course, I accept that there has not been a franker Minister at the Home Office for a very long time than the noble Lord who deals with this debate. But I am not asking for frankness of this present Minister. I am asking for accountability so that somebody in Parliament in either House can raise the matter on this report and say that this policy ought to be debated; that it is wrong in regard to criminal offences.
I am only talking about matters of a general nature and, as I have said, if only the Minister had asked for the exception in regard to public policy, I would willingly have acceded to any such amendment. He is not prepared to do that; and that means that his one defence, which was that he was protecting public policy, goes, if I may say so dramatically, out of the window. It is obviously necessary to regard (as did the Philips Commission) the question of accountability on these matters as being so important that I have no alternative but to test the view of the Committee.
Lord Denning: I should like to say a few words. It seems to me that the Bill as it stands is sufficient. The Director must give a full and proper report. That is in the Bill as it stands. It is no use crossing "t's" and dotting "i's" in this way. That goes too far. He has to make a full and proper report. He must comply with the spirit of the Bill. There is no need for the amendment.
Lord Mishcon: I do regard it as necessary, if I may say so, to dot the "i's" and cross the "t's" in regard to this amendment.
3.40 p.m.
On Question, Whether the said Amendment (No. 36) shall be agreed to?
Their Lordships divided: Contents, 80; Not-Contents, 97.

DIVISION NO. 1

CONTENTS

Amherst, E.

Beswick, L.

Ardwick, L.

Birk, B.

Attlee, E.

Bottomley, L.

Aylestone, L.

Brockway, L.

Banks, L.

Bruce of Donington, L.

21

Burton of Coventry, B.

Llewelyn-Davies of Hastoe, B.

Caradon, L.

Lockwood, B.

Carmichael of Kelvingrove, L.

Longford, E.

Cledwyn of Penrhos, L.

Lovell-Davies, L.

Collison, L.

Mackie of Benshie, L.

Cooper of Stockton Heath, L.

McNair, L.

David, B. [Teller.]

Masham of Ilton, B.

Dean of Beswick, L.

Mayhew, L.

Diamond, L.

Mishcon, L.

Donnet of Balgay, L.

Molloy, L.

Elystan-Morgan, L.

Nicol, B.

Ennals, L.

Northfield, L.

Ewart-Biggs, B.

Oram, L.

Ezra, L.

Phillips, B.

Falkland, V.

Ponsonby of Shulbrede, L. [Teller.]

Fisher of Rednal, B.

Gaitskell, B.

Reilly, L.

Gallacher, L.

Ross of Marnock, L.

Galpern, L.

Sainsbury, L.

Gladwyn, L.

Seear, B.

Gormley, L.

Stallard, L.

Grimond, L.

Stewart of Fulham, L.

Hampton, L.

Stoddart of Swindon, L.

Hanworth, V.

Strabolgi, L.

Harris of Greenwich, L.

Strauss, L.

Hatch of Lusby, L.

Taylor of Blackburn, L.

Hayter, L.

Tordoff, L.

Howie of Troon, L.

Underhill, L.

Hutchinson of Lullington, L.

Wallace of Coslany, L.

Irving of Dartford, L.

White, B.

Jacques, L.

Wigoder, L.

Jenkins of Putney, L.

Willis, L.

Kearton, L.

Wilson of Rievaulx, L.

Kilmarnock, L.

Winterbottom, L.

Leatherland, L.

Wootton of Abinger, B.

Listowel, E.

NOT-CONTENTS

Alport, L.

Halsbury, E.

Ampthill, L.

Hardinge of Penshurst, L.

Auckland, L.

Harmar-Nicholls, L.

Avon, E.

Hylton-Foster, B.

Belhaven and Stenton, L.

Kaberry of Adel, L.

Beloff, L.

Killearn, L.

Belstead, L.

Kimberley, E.

Bessborough, E.

Kinloss, Ly.

Birmingham, Bp.

Kinnaird, L.

Boyd-Carpenter, L.

Long, V. [Teller.]

Brabazon of Tara, L.

Lovat, L.

Broxbourne, L.

Lucas of Chilworth, L.

Bruce-Gardyne, L.

Macleod of Borve, B.

Caithness, E.

Marley, L.

Cameron of Lochbroom, L.

Merrivale, L.

Campbell of Alloway, L.

Molson, L.

Campbell of Croy, L.

Moran, L.

Carnegy of Lour, B.

Morris, L.

Constantine of Stanmore, L.

Mottistone, L.

Cottesloe, L.

Mowbray and Stourton, L.

Cox, B.

Murton of Lindisfarne, L.

Croft, L.

Norfolk, D.

Cullen of Ashbourne, L.

Nugent of Guildford, L.

Daventry, V.

Orkney, E.

De Freyne, L.

Orr-Ewing, L.

Denham, L.

Pender, L.

Denning, L.

Peyton of Yeovil, L.

Drumalbyn, L.

Polwarth, L.

Dudley, B.

Porritt, L.

Duncan-Sandys, L.

Portland, D.

Ebbisham, L.

Reay, L.

Edmund-Davies, L.

Renton, L.

Effingham, E.

Rodney, L.

Ellenborough, L.

Saltoun, Ly.

Elles, B.

Selkirk, E.

Elliot of Harwood, B.

Simon of Glaisdale, L.

Elton, L.

Skelmersdale, L.

Faithfull, B.

Somers, L.

Fraser of Kilmorack, L.

Stamp, L.

Gainford, L.

Strathspey, L.

Glanusk, L.

Sudeley, L.

Hailsham of Saint Marylebone, L.

Suffield, L.

Swinton, E. [Teller.]

22

Terrington, L.

Vaux of Harrowden, L.

Teviot, L.

Vivian, L.

Thorneycroft, L.

Ward of Witley, V.

Trefgarne, L.

Westbury, L.

Trenchard, V.

Wilberforce, L.

Trumpington, B.

Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 9, as amended, agreed to.
3.48 p.m.
Clause 10 [Transfer of staff]:
[Amendment No. 37 not moved.]
Lord Irving of Dartford Lord Irving of Dartford moved Amendment No. 38:
Page 7, line 7, at end insert ("and it shall be the duty of the Attorney General, before he makes any regulations in pursuance of this subsection, to consult with respect to those regulations such bodies as appear to him to represent persons to be transferred by the regulations and to be concerned with the regulations and any other body which he considers it desirable to consult about those regulations.").
The noble Lord said: I stated at an earlier stage of the Bill that many NALGO members are employed in prosecuting solicitors' departments, in police civilian offices and in other parts of county councils. They are provided for, in terms of salaries and conditions, by the National Joint Council for Administrative, Professional and Technical Services. Indeed, NALGO constitutes a majority on that body.
Clause 10(1) will enable the Attorney-General to make regulations for:
"the transfer to the staff of the Director of such persons employed by any local or police authority wholly or mainly in connection with the discharge of prosecution functions".
However, the clause does not contain any national negotiating machinery to determine the salaries and conditions of staff employed by, or to be transferred to, the new prosecuting service.
NALGO considers that to ensure that there should be such machinery the Attorney-General should be required to consult such bodies as represent the staff concerned before making any regulations under the clause. The amendment is intended to achieve that effect. The amendment follows a number of well-precedented provisions in other legislation; for example, Section 18(2) of the National Health Service Reorganisation Act 1973. I beg to move.
Lord Simon of Glaisdale: I do not suppose that any of your Lordships would think that what is proposed in this amendment by way of consultation is other than reasonable. But it does seem to me that what the noble Lord, Lord Renton, said about the previous amendment applies with even stronger force to this one. I suppose I have known all the Attorneys-General since the war, and I cannot conceive of any one of them making regulations of this sort without having the consultations which the noble Lord, Lord Irving, proposes to make mandatory on them. He, with his long experience, I suspect has known them, too, equally well, and would not for a moment himself believe that regulations could be made by them without the sort of consultations which he enjoins.

23
On the last amendment, the noble Lord, Lord Mishcon, tried to frighten us by saying, "Oh, but there might be quite a different sort of Minister in the future". I remember that sort of argument once being addressed to Mr. Justice Langton—the "thin end of the wedge". He said, in his mock stately way, "I am rarely impressed by forensic foreboding of indeterminate future disasters". I think that is what we would say to the noble Lord, Lord Mishcon. I do not believe that any member of your Lordships' House could possibly conceive of anybody holding the office of Attorney-General and not having the consultations which the noble Lord, Lord Irving, wishes to be made mandatory.
If that is so, I do with respect urge your Lordships not to add unnecessary words to the statute book. The noble Lord, Lord Irving, said it has been done before. Well, not all precedents are good precedents, and the fact that it has been done before indicates that it is high time we stopped doing it now.
Lord Renton: I would add briefly to the welcome intervention of the noble and learned Lord, Lord Simon of Glaisdale, by saying only this. I wonder whether it has occurred to the noble Lord, Lord Irving of Dartford—for whom I have such a respect, because I was born there—that in fact if we were to accept this amendment we would be enacting a dead letter. I say that because, under the amendment, although,
"it shall be the duty of the Attorney General, … to consult with respect to those regulations such bodies as appear to him to represent persons to be transferred",
he may decide to consult nobody. He may decide that in his opinion it is not necessary to consult anybody, or some experience of a previous consultation may have got him nowhere; and so he decided not to consult.
Staff consultations are now the order of the day, in any event, and therefore of course one sympathises with the motive behind the amendment. But when it comes to considering whether we are going to enact an effective law which is enforceable if we pass this amendment, then an entirely different question arises.
Lord Rawlinson of Ewell: I should agree with what my noble friend has said in regard to the proposal in this amendment. I should like to look at some of the logic of what my noble and learned friend Lord Simon of Glaisdale has said and to consider the clause which it is sought to amend. What have we got in it? We have got a lot of verbiage which the Committee may think is not very necessary here. We have:
"The regulations may include provision for the determination of questions arising under them".
Is that absolutely essential, or is that verbiage? We also have:
"The regulations may … make different provision with respect to staff employed in different areas".
If we are only ever going to have in Acts of Parliament what is absolutely essential without having guidelines, as it were, put into Acts of Parliament, then all that must go. While I agree with the noble Lord in regard to this particular amendment to this clause, I do not think it is really quite wise to say that you should not give guidelines in Acts of Parliament, because this is exactly what the Minister will presumably be
24
supporting in Clause 10 of the Bill, which this amendment seeks to amend.
Lord Campbell of Alloway: I suppose there is no reason in principle why we should not have guidelines in an Act of Parliament, save this: that if they are mere guidelines of an advisory nature, wholly unenforceable by any process of judicial review, what really is the object of putting them in an Act of Parliament?
Lord Renton: Exactly.
Lord Campbell of Alloway: That is the position, with the utmost respect to the noble Lord, that I think arises in this case. I should therefore on those grounds oppose the amendment.
Lord Mishcon: The noble and learned Lord, Lord Simon, was not as fair as he usually is, because I brought it to the attention of the Committee, with a smile, that this question of foreboding as to future Ministers, while praising the present ones, was an old tradition of Parliament, and indeed was invoked whenever one was asking for something to be done which the present Minister said was bound to happen but which was not contained in an Act of Parliament in a mandatory form. But obviously I accept his words, coming from the source that they do, with due respect.
Having said that, of course it is necessary for Parliament not to take a traditional view as to how a Minister has behaved in the past or how it would pray he would behave in the future. That, in my respectful submission, is a recklessness which is not permitted to Parliament. Once one accepts that something ought to be done by a Minister, then Parliament should say so clearly in an Act; and the Minister is under no handicap because if he would have done it anyway it imposes no extra duty upon him. But just in case the odd occasions happens in this great democracy of ours, when the public decides to put into office a government who are not, it turns out, as respectful of all our traditions as we would hope they should be, at least let there be an Act of Parliament there which somebody will be bound to alter.
We have said that in debates on freedom of speech; we have said that in debates on human rights and whether or not those human rights are implanted in our law; and there is a very considerable body of opinion which says that if there is something that ought to be done by a Minister then put that in an Act of Parliament and do not rely just upon words which are uttered with great sincerity from a Government Front Bench but which, if they are not incorporated in an Act of Parliament, mean nothing.
What is the argument over this amendment? It is said any sensible Minister would do it. Of course the Attorney-General would do it. And so I say to myself, echoing part of the argument—not the whole of it—of the noble and learned Lord, Lord Rawlinson, there is enough that is put into Acts of Parliament that almost means nothing, but if you put something into an Act of Parliament, even if you think that it is possibly unnecessary, you are at least doing something in some circumstances. The circumstances here are that you are making it mandatory, not to listen to, not to obey, any representative organisation, but to consult.

25
In answer to the noble Lord, Lord Campbell, who says, "What effect would that have in law?—none at all", I say with great respect, especially knowing the source from which those words came, that of course it has meaning in law. There would be a judicial review in regard to those regulations. There would be a testing in court of the validity of those regulations if the Minister had in fact, if the Attorney-General had in fact, not consulted. Indeed, recently there has been a case before the courts about which most of your Lordships will know, where at least one tribunal held that a decision on a regulation was wrong because the necessary consultation had not taken place. Does the noble Lord wish to intervene?
4 p.m.
Lord Campbell of Alloway: May I interrupt the noble Lord for a moment? If the Minister puts on affidavit the one sentence, "I did not consider it desirable to consult", then, with respect to the noble Lord, Lord Mishcon, that is the end of a judicial review proceeding.
Lord Edmund-Davies: It is surely a primary requirement of the drafting of parliamentary Bills that no unnecessary words should be put in. It has to be said that the Government stand on a somewhat fragile platform in relation to the respect that should be paid to that rule by their own drafting of subsections (2) and (3) of Clause 10. Therefore, as the noble and learned Lord, Lord Rawlinson of Ewell, has said, it is a wholly unnecessary requirement. The same can be said of the amendment which is here being urged: it is wholly unnecessary and therefore undesirable. I am quite sure, particularly in the light of the advancement of no cogent reason for this requirement, that the amendment should be rejected.
Lord Howie of Troon: I should like to reflect for a brief moment on the comments of the noble Lord, Lord Campbell of Alloway. The noble Lord knows that I hold him in very high regard as a fellow Ayrshireman. He seemed to intimate that we should not have guidelines and things of that type. I must say that temperamentally I am greatly inclined to agree with him. On the other hand, let us reflect upon how things are actually done here and in the legislative process.
The noble Lord will recall the numerous enactments on indistrial relations which have passed through this House and the other place in the last two or three years. Sometimes they have been called industrial relations Acts and sometimes they have been called trade union Acts, but they all meant more or less the same thing. All of them—or if not all of them at any rate several of them—referred to codes of practice and things of that nature. Those codes of practice were not in themselves law, but they were matters which had to be taken into account in the process of law.
My recollection of the debates several years ago is unclear, but my inclination is to think that the noble Lord, Lord Campbell, tended rather to agree with the Government side on these matters to some extent at least more than I did. I think it right to say—although he may correct me—that he felt it reasonable that there should be codes of practice. If the noble Lord
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does not agree with that, then I withdraw the comment, but I hope that he will just let me finish what I have to say. His noble friend somehow felt that it would be appropriate to have codes of practice which were ancillary to the law but which had some relationship to it. Have we not a somewhat parallel situation? I yield to the noble Lord.
Lord Campbell of Alloway: I am grateful to the noble Lord for giving way. I must have expressed myself badly and I apologise to the Committee. I am not against guidelines; I am not against codes of practice—I think that they are absolutely essential. What I am against is cluttering up the body of a statute with them.
Lord Howie of Troon: The fault is clearly mine, but I think that that is a difference without a distinction, or a distinction without a difference—whichever it is.
Lord Elton: There is a danger that we shall become involved in an intensely interesting and rather long debate on the principles upon which all statutes ought to be drafted and, of course, that is something which we should always have under consideration. But in the context of this particular amendment I shall try to be fairly brief.
First, let me respond to the two limbs of what the noble Lord, Lord Mishcon, said. I found myself being suffused with the rosy glow of agreeable embarrassment when the noble Lord was saying nice things about Ministers on this Bench, only to find myself douched by cold water when he said that he was only saying those things as a matter of form because they were always said on these occasions. Nonetheless, I remain in good humour with him. However, I think that I should reassure the noble Lord on one aspect of this amendment because a lot of his argument reposed upon the danger that another set of faces, upon whom he would be forced by convention to shower equally agreeable compliments from those Benches opposite, might replace my own and those of my colleagues and they might be less well founded on that occasion than the noble Lord is kind enough to say that they are on this occasion.
The powers in Clause 10 will, of course, be used very soon and while he is a foolish Minister who guarantees that a general election will not be called before a particular date, I do not think that there is a danger of a very considerable change in the character of government before these powers are used. So we need not concern ourselves about the very distant future as regards the main provisions here.
The noble and learned Lord, Lord Edmund-Davies, struck on a very sensitive note so far as I am concerned because I subscribe strongly to the view that legislation should be expressed with absolute economy of language for a number of reasons, including clarity. But I am advised that without subsections (2) and (3), to which he referred, it would not be clear what matters were to be covered in the regulations, and the subsections will be relevant to determining whether any regulations are, in fact, intra vires. That is something which I would require to digest before I expanded upon it. But I think that perhaps it pours a little concrete into the platform upon which I am

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standing when I say that in my view the words which the noble Lord, Lord Irving of Dartford, proposes to insert in the Bill are superfluous and not needed.
The amendment seeks to ensure that there will be full consultations with representatives of those staff likely to transfer into the new service before the regulations governing their transfer are drawn up. If it is only a reassurance which the noble Lord wants on this point then I am indeed happy to give it him in full measure. I can tell him, what is more, that preliminary discussions are already taking place with the trade unions concerned, including the trade union with which he is concerned, and that these will naturally continue and develop as planning for the new service progresses.
In the White Paper outlining our proposals for the new service, as some of your Lordships will recall, we said:
"There will be full consultation with those affected on all the proposals, including arrangements for transfer of existing staffs of prosecuting solicitors' departments whose work will be taken over by the new service".
That promise has already been partially fulfilled. I say "partially", because obviously we can only discuss matters as we have proposals ready to put forward on them. Planning for the new service is a complex process. Decisions need to be made on numbers and grades of staff. Information is needed on their existing terms and conditions of service. The implications of one for the other need to be assessed in consultation, of course, with the staff representatives. The consultation which I have described is, therefore, likely to be a fairly protracted process.
As your Lordships know, we are taking advice on staffing levels and working procedures in the new service. Staff have given full co-operation to the consultants and some of their representatives have actually been members of the committee overseeing their work. In addition, staff and their representatives have had a number of opportunities to put their views to the consultants. I am sure that my right honourable friends the Attorney-General and the Home Secretary would wish me on their behalf to pay tribute to the contribution that staff have made in this way.
From what noble Lords have heard me say so far, they will realise that, like many who have spoken, I feel that what the noble Lord, Lord Irving, proposes is superfluous. I must also direct the noble Lord's attention to the fact that it is unfortunately—indeed, I might say wrongly—phrased in placing the obligation to consult, which is already being discharged, on the Attorney. I suggest that discussions on these matters are more appropriately carried out by the Director and his officials. As I think I have said before, the Attorney-General simply does not have the staff in his department to perform these functions. So, with noble and learned Lords, I think that what is asked for is not needed; that it is already in practice at present; and that in any case it is directed at the wrong officials.
Lord Mishcon: I promise not to weary the Committee, but I was just about to advance what I regarded as being the finest point in my speech when the noble Lord, Lord Campbell of Alloway, asked whether he could intervene. I sat down and the noble
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Lord, Lord Cambell, intervened and since then I have not had an opportunity to say another word. However, that may be a good thing, not only for the Committee but for the sake of this amendment, because it has given the noble Lord the Minister the opportunity to say something by way of the assured procedure, which I have no doubt my noble friend Lord Irving of Dartford has heard, and about which he may say a few words in a moment.
I rise only because I should not like it to be on the record that, as the noble Lord, Lord Campbell, said, where a Minister is directed to consult and his regulation made without such consultation is challenged, all that the Minister would have to do to satisfy any court would be to swear an affidavit to say that he saw no need to consult. I should hate that to go on the record as though I had yielded to that statement, respectfully, though I listened to it, because it came from the noble Lord, Lord Campbell of Alloway.
However, I say very strongly that if Parliament decides to issue a mandate that a Minister shall consult before he makes a regulation, if it is then proved that no such consultation took place, that regulation can be challenged—and I should have thought successfully—in the courts. Having uttered my own view, which may not amount in virtue or in strength to anything like the views expressed by other lawyers in this Committee, I sit down.
Lord Irving of Dartford: This demonstrates the danger of a layman entering into a debate in which some of the most distinguished lawyers in the country are taking part—I do not say that they have dominated it. I also am an enemy of the superfluous, but as a layman I should say that it would be difficult for people outside to understand why Parliament cannot be consistent. If Parliament creates a precedent, why should it not be consistent and continue that precedent? In our case we thought that was a reasonable action to take. However, having listened to the noble Lord, Lord Elton, and bearing in mind the drafting point, and above all having received the assurance that the noble Lord has given, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Irving of Dartford Lord Irving of Dartford moved Amendment No. 39:
Page 7, line 16, at end insert ("and it shall be the duty of the Attorney General to make provision for securing in the regulations that any new terms and conditions of employment of any person so transferred are such that—

(a) so long as he is engaged in duties reasonably comparable to the duties in which immediately before the transfer he was engaged in the employment from which the transfer was made, the scale of his remuneration and, taken as a whole, the other terms and conditions of his employment by that body are not less favourable to him than were, immediately before the transfer, those of the employment from which the transfer was made, and

(b) so long as he is engaged in duties not so comparable, the terms and conditions of his employment in the staff of the Director are not less favourable than as mentioned in the preceding paragraph.")

The noble Lord said: I hesitate to say it, but this subsection, which seeks to secure no detriment to the people being transferred, is also based on a

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precedent—the National Health Service Reorganisation Act 1973. But if the noble Lord the Minister could give me a similar assurance, I would be happy to withdraw the amendment.
Lord Elton: I am grateful to the noble Lord for again directing our attention to the interests of staff who will transfer to the new service. I think that there is little, if anything, between the noble Lord and the Government in the matter of objectives, but there are some differences of judgment over the best means by which to achieve them.
It is not our intention to disadvantage staff transferring to the new service. As I have said, our policy has been to proceed by way of full consultation; our aim is to take the staff affected along with us in the preparation and planning of the new service, as well as in the details of their own transfer to it. I can assure your Lordships that I fully appreciate the concern staff facing such a change feel over their future; and indeed who would not? We are doing our utmost to remove the uncertainty from which that concern, in large part, stems. But, as I and my colleagues have said before, we can move to complete certainty only as planning for the new service becomes more complete than it now is. The uncertainty is attributable to decisions yet to be taken, and those decisions will have to be taken in the light of information yet to be secured.
4.15 p.m.
At the level of generality of the terms of this amendment, however, we can give staff some of the reassurances that they seek. The effect of the Bill as drafted is, by virtue of the first part of subsection (5) of Clause 14, to preserve the rights which the staff concerned now have under the employment protection legislation. In practice, this means that on transfer staff must be given a suitable job, otherwise they may claim constructive dismissal before an industrial tribunal. In the event of successful claims, redundancy compensation must be paid. A suitable job in this context is one that is suitable in all its aspects, and these include both remuneration and terms and conditions of service.
When we decided to transfer as a group, we were well aware of the need of the new service for increased numbers of staff. It follows that we have no intention of creating redundancies, either directly or by the route of constructive dismissal. So we shall be attempting to give staff suitable jobs. Under the discipline of the employment protection legislation we shall therefore have to ensure that staff are not disadvantaged by the transfer. That in any event is what we would wish to do, even without the compulsion of that Act. The compulsion is clear.
With respect, the proposal in the amendment is a little less clear. However, I do not think that I need dwell on the provisions of the amendment itself as I think that I may have given the noble Lord the reassurances that he was seeking.
Lord Irving of Dartford: I am most grateful to the noble Lord for those reassurances and for the way in which he has spelt out protection for the staff.
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Therefore, I have pleasure in asking the Committee to allow me to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment, No. 40 not moved.]
Lord Irving of Dartford Lord Irving of Dartford moved Amendment No. 41:
Page 7, line 32, at end insert ("and, for the purposes of computing entitlement to redundancy payments, any earlier period of his employment with a local or police authority shall count as a period of Crown employment.")
The noble Lord said: Subsection (5) of Clause 10 provides that any person who has transferred to employment in the new prosecution service from a local or police authority shall be regarded as having been continuously employed in the service of the Crown from the date of the employment with the local or police authority by whom he was previously employed. NALGO welcomes the protection to be conferred by the subsection but feels that it does not go far enough because it does not apply the protection contained in the Redundancy (Local Government) Modification Order 1983, which allows employees to include all earlier service—that is, local government service—in computing an entitlement to redundancy. This amendment is intended to ensure the protection which is contained in the 1983 order. I hope that the noble Lords will be able to give me an assurance about that. I beg to move.
Lord Renton: This amendment is free from objections which were raised in regard to the first of the three amendments which the noble Lord, Lord Irving of Dartford, has moved. Indeed, in principle I have great sympathy with the method he proposes because it is quite clear that, if previous service of the kind mentioned in the amendment is to be taken into account, it should be stated in the statute. Subject to the technicalities of the matter—on which of course we must rely upon my noble friend to advise us—I should be glad to support the amendment.
Lord Wigoder: I hope that the Minister will regard this amendment with sympathy. It seems to me to refer to the points which I raised on Second Reading. Subsection (5)(a), as it is now worded, says:
"the period of his employment in the employment from which he is transferred shall count as a period of Crown employment".
On the face of it, this appears to refer to only one simple employment, whereas of course a person may be transferred who has had a series of Crown employments of this nature. Obviously that ought to be taken into account, and not merely the single last previous employment.
Lord Campbell of Alloway: I support this amendment. If I took it down correctly, my noble friend the Minister said on Amendment No. 39 that no employee was to be disadvantaged in any way on a transfer. The object of this amendment is to ensure that that should be so. In that spirit I wholly support him.
Lord Mishcon: It only requires me to say in one sentence that from these Benches we obviously support the amendment.
Lord Simon of Glaisdale: May I ask one question arising out of the intervention of the noble Lord, Lord Wigoder; namely, that it refers to employment in the singular whereas we may be concerned with a number of employments? Is it not a rule by virtue of the Interpretation Act that the singular includes the plural?
Lord Elton: The principal issue before your Lordships is whether, in the event of a member of a prosecuting solicitor's department being made redundant, his redundancy payments would be calculated by reference to the whole of his relevant service in local government, and not just to the period of his employment with the last employing authority. To put the issue into context it is important to remember that staff in prosecuting solicitors' departments from time to time move about from one authority to another. It has been a normal part of their career pattern that they would apply for a more senior job in another authority as a way of gaining promotion. Staff would be understandably and properly anxious if by virtue of making such moves their entitlement to redundancy payment was set back and, in effect, they had to start again. I think that is the concern of the noble Lord.
It is certainly our intention, as I have implied, not to disadvantage staff in this particular respect, if the noble Lord could bear with me. I undertook, when I wrote to the noble Lord, Lord Wigoder, on another occasion to ensure that previous periods of employment should count—as they do now for local government staff—for the purposes of calculating any redundancy payments. The relevant instrument is the Redundancy Payments (Local Government) (Modifications) Order 1983, S.I. 1983, No. 1160.
We believe that the question we are being asked will in the event be of academic significance because we are not expecting redundancies, as I said in speaking to an earlier amendment. However, I am happy to repeat my earlier assurance to the noble Lord, Lord Wigoder, that there is apparently some doubt over whether Clause 10(5) as drafted already achieves that result or whether it needs to be amended. I think the answer to that will go hand in hand with the answer to the question which the noble and learned Lord, Lord Simon of Glaisdale, asked me, and which I regret I cannot at the moment answer.
Lord Simon of Glaisdale: May I say that I asked my noble and learned friend Lord Denning before venturing to ask the noble Lord the Minister.
Lord Elton: I noticed the singular mark of deference and respect which one noble and learned Lord paid to the other, and seeing that it had the approval of both of them I treat it with the greater care myself. That is why I do not wish to spring to an unguarded answer. I shall write to both noble and learned Lords when I have the answer; and I suggest that for the time being the best course would be for me to consider further how the aim which we and the noble Lord, Lord Irving of Dartford, and others share may best be achieved. If an amendment proves to be necessary I shall try to bring it forward at the Report stage in this House.
Lord Irving of Dartford: I am grateful Lord for the assurance that he will look and come forward with another proposal relevant. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elton Lord Elton moved Amendment No. 42:
Page 7, line 38, after ("having") insert ("unreasonably").
The noble Lord said: I feel slightly bashful in moving this amendment in view of the names attached to it on the Marshalled List which were, I think, on the Marshalled List before mine. They arrived there through an administrative upset. I felt that having given an undertaking to put down an amendment in these terms I could not stand aside and allow the other noble Lords to make it appear that I had failed to honour the undertaking. That is why I have joined the queue and been rudely shouldered, I notice, to the head of it.
Your Lordships will recall that the noble Lord, Lord Wigoder, expressed concern about the effect of Clause 10(6) during our debate on Second Reading of the Bill. In one respect that concern, as I shall seek to explain, was unfounded, but not in another, which is, in fact, the subject of this amendment. Following our debate I took the opportunity of writing on 6th December to the noble Lord declaring our intention to meet this point. Again, some of your Lordships may have seen the letter because a copy was, in accordance with recent custom, placed in the Library.
Before discussing the amendment may I say how grateful I am to the noble Lords, Lord Irving of Dartford and Lord Graham of Edmonton, for bringing forward this amendment, which exactly gives effect to the reassurance I gave to the noble Lord, Lord Wigoder, when I wrote to him. Naturally, I am glad to put my name to it. May I reassure your Lordships for a start that Clause 10(6) does not remove rights under the employment protection legislation enjoyed by staff who are eligible for transfer. Those rights include access to an industrial tribunal where the terms offered on transfer are claimed to be unreasonable. If in such a case a tribunal held that the terms were unreasonable, the person affected would be entitled to compensation for redundancy. As I have said, the subsection does not derogate for any such entitlements.
What the subsection is intended to do is to preclude a person from receiving early payment of superannuation and compensation benefits—to which he would have been entitled on redundancy in certain circumstances—if he is transferred to the new service, or could reasonably be expected to transfer to the new service. It is necessary because of the way the regulations under the Superannuation Act 1972 are worded.
Regulations under the 1972 Act provide for the immediate payment of superannuation benefits for local government staff aged 50 or over, and for enhancement of those benefits by way of compensation, if the employing authority certifies that the person ceased to hold his employment by reason of redundancy. I am sure noble Lords would accept that it cannot be right for staff who transfer to the new service to be entitled to such payments (as well as their

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salaries in the new service) and Clause 10(6) rules out any possibility of local authorities certifying redundancy in a technical sense in order to enable such payments to be made.
The amendment ensures, however, that where a person is given terms and conditions which are unreasonable he is not thereby precluded from early superannuation benefits to which he would have been entitled but for Clause 10(6). This equally seems right. The noble Lord, Lord Wigoder, joined this queue and was left gracelessly at the tail of it. I apologise to him also for my having come out at the front, but we are in the happy position of all wishing to achieve the same object by the same means.
On Question, amendment agreed to.
On Question, Whether Clause 10, as amended, shall stand part of the Bill.
Lord Simon of Glaisdale: May I raise two small drafting points in the interest of economy of legislation? The first is on page 7, line 2, the opening words of the clause: "The Attorney-General may" make regulations relating to establishment, in effect, and he may do that only with the approval of the Treasury. That is the second time we have come across that particular incantation.
The noble Lord the Minister has promised to consider it, so I shall not say any more about it other than that if we are going to have a sort of mantra to soothe raw nerves in the Treasury, is it really the Treasury that we should be concerned with now? The Treasury was formerly responsible for establishment, but I thought that the duties had now been transferred to the Civil Service Department.
I do not ask the noble Lord merely to put the Civil Service Department in place of the Treasury, even though the point I have drawn to his attention may be right. I should like to see the whole of that phrase go out, as it is quite unecessary because it is taken care of by the normal procedure of the internal machinery of government.
4.30 p.m.
The second part of my comment concerns line 12 of that page, relating to the regulations under which the Attorney-General,
"may make different provision with respect to staff employed in different areas".
But that is subject to Clause 29(2), which says that:
"Any such regulations may make different provisions with respect to different cases or classes of case".
That is a time-honoured statutory formula. It is probably unnecessary, but as it is included will the noble Lord please explain why it does not cover lines 10 to 14 on page 7? One would have thought that different rules in respect of staff employed in different areas would clearly come within the phrase "different cases or classes of case". I do not ask the noble Lord to answer a drafting point off the cuff. I shall be quite contented if he will say that he will consider it.
Lord Elton: I shall happily consider what the noble and learned Lord has asked me. I shall add his comments at this stage to his comments at an earlier stage on the general principle of whether it is necessary
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to salve the rough edges of the Treasury. If there was such an unguent available to junior Ministers, they would use it, but I do not believe there is such a thing. I shall certainly take on board both the drafting points which the noble and learned Lord has made. As I have said, if we can remove superfluous words, we should be happy to do so. I have been given further material, but I think that to refer to it would waste your Lordships' time. I would rather give a final answer at a later stage.
Lord Wigoder: Leaving aside the drafting point of the noble and learned Lord, Lord Simon of Glaisdale, perhaps I may refer for a moment to Clause 10(2)(b), lines 13, 14 and 15 and the words,
"may make different provision with respect to staff employed in different areas".
I do so because, apart from a drafting matter, they are words which have given rise to a certain amount of anxiety among some of those who are assuming that they will be employed in due course by the new service.
When I raised this matter at Second Reading the noble Lord the Minister indicated that he would deal with it in due course. He has replied to me in writing and I think it is probably appropriate, particularly so far as the potential staff are concerned, that what the noble Lord has said should be given a wider circulation than it has received as a result of his letter to me. I find it entirely acceptable. The noble Lord said this about those words:
"our current intention was that the new service will be fully operational in England and Wales from October 1986 but in those areas covered by the metropolitan county councils the new service will be established earlier, on abolition of those councils in April 1986. This is in order to avoid two reorganisations of prosecution arrangements in those areas within a very short period. We will accordingly need to transfer staff into the new service at different times depending on the areas where they work and the formula used in Clause 10(2) will allow for this".
That was the noble Lord's explanation of the substance of the matter. For my part I found it entirely acceptable.
Lord Elton: I am most grateful to the noble Lord for putting on the record in an ingenious manner the letter which I wrote to him. It is an odd experience, not unlike listening to "Yesterday in Parliament", to hear somebody else's voice repeating one's words. I am most grateful to him.
Lord Mishcon: If it were "Yesterday in Parliament", judging from past experience, the proceedings of this House would be scarcely likely to have been reported. I think the noble Lord possibly meant "Today in Parliament".
Clause 10, as amended, agreed to.
Clause 11 [Staff commission]:
Lord Irving of Dartford Lord Irving of Dartford moved Amendment No. 43:
Page 8, line 6, after ("authorities") insert ("or persons employed by such authorities").
The noble Lord said: Clause 11 would require the Attorney-General to establish a staff commission to consider the effect of the transfer on staff and to advise the Attorney-General and the Director of Public

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Prosecutions on the arrangements necessary to safeguard the interests of staff. The clause would also require the Attorney-General to consult such bodies representing local police authorities as appeared to him to be concerned; that is, before establishing the commission. The Attorney-General should likewise be obliged to consult the bodies representing employees of local and police authorities. This amendment is intended to have that effect. I beg to move.
Lord Elton: I am most grateful to the noble Lord, Lord Irving of Dartford, for raising the important question of consultation with representatives of staff affected by the transfer provisions prior to the establishment of the staff commission. That is a narrower area of consultation than the one to which we addressed ourselves earlier. The commission is being established primarily as a means of providing my right honourable friend the Attorney-General with a source of independent and impartial advice on the effect of the transfer provisions of the Bill on staff affected by them. It is important, therefore, that it should be seen to be, as well that it should be, independent and accessible to the staff affected.
There is already a duty on the Attorney-General to consult such representatives of local and police authorities which currently employ staff affected by the transfer provisions as appear to him to be concerned. The requirement for consultation contained in the amendment tabled by the noble Lord naturally complements this duty and can only assist in achieving the objects for the staff commission which I have outlined. I am happy therefore not only to accept what the noble Lord proposes in his amendment, but, most unusually and agreeably, also to be able to accept it as drafted. I congratulate him.
Lord Irving of Dartford: I am most grateful to the noble Lord for his support.
On Question, amendment agreed to.
Clause 11, as amended, agreed to.
Clause 12 [Premises formerly used in connection with Director's new functions]:
On Question, Whether Clause 12 shall stand part of the Bill?
Baroness Macleod of Borve: Perhaps I may briefly take up a point on this very lengthy clause, which extends to 115 lines in the Bill. It is only because I am worried and should like the assurance of my noble friend the Minister that the premises which are to be occupied by the prosecution service shall in no way be seen to be part of either local authority premises or police authority premises. It is very important that as this is to be a completely independent service, it should be seen by the general public to be independent. From my knowledge the general public in a local borough are aware of the premises from which a service such as this operates. They feel that the service should not be connected with any other services. I ask my noble friend for his assurance on this point.
Lord Renton: I hope I shall not sound churlish if I say that I feel the draftsman has really made quite an unnecessarily large meal of this Clause 12. It covers over two and a half pages and goes into great detail, when I think that the detail it contains could perfectly well have been covered by some compendious general phrases. I do not wish to take up time pinpointing the detail but, for example, if subsection (2) had been very slightly amplified, it could have covered the whole of the quite long subsection (3). We heard earlier the noble and learned Lord, Lord Simon of Glaisdale, talk about cluttering up the statute book with unnecessary matters, and I really do think that a greater effort to be succinct in this clause would have been very acceptable.
Lord Elton: My noble friend Lady Macleod wishes to be assured that the premises occupied by the service will not be seen locally as part of the local authority premises or of the police premises. The general intention is that ultimately the Crown prosecution service should he housed separately from the police service, as a means of underlying the appearance as well as the reality of the independence of the two services. I fear it had not occurred to us earlier that some might wish to see the service accommodated entirely distinctly from the local authority as well, but I will certainly consider the points adduced by my noble friend in support of what she said and I will come back to her.
Notwithstanding that it is the general aim for the new service ultimately to be accommodated separately from the police, practical considerations dictate that that aim may take a little while to achieve, because to have new accommodation available immediately on implementation may not always be possible. Our intention is to move towards that as soon as practicable, within the constraints imposed by resources and the availability of suitable premises, but I assure my noble friend that the need to be distinct, and visibly distinct, from the police is clearly understood by the Government. The need to be distinct, and clearly distinct, from the local authority is something which I need to consider in the light of her remarks.
As to the strictures of my noble friend Lord Renton about the length of Clause 12, it is indeed a long clause. Like him, I do not wish to take up the Committee's time in defending the detail of it, although I think I should say, in fairness to the draftsman, that the transfer of property already in use—part-worn carpets, dented filing cabinets and so on, as well as everything else which constitutes the accommodation and equipment of the service—is exactly the sort of thing which can lead to endless argument and even—dare I say?—litigation. Therefore, I do understand the draftsman's erring on the side of precision, but I take the noble Lord's strictures to heart on the general principle that legislation should be as short as possible.
Lord Elystan-Morgan: We are grateful to the Minister for having, in suitably guarded language, assured the Committee that ultimately the prosecuting authority will in every area be operating from premises which are entirely separate and distinct from those occupied by the police.

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There remains, however, I think, some slight disquiet on account of the language used by the noble Lord the Minister. The term "ultimately" can mean either something which occurs in the next three, four or five years or, at its very worst, it can mean something that is in the "marcher country" of eternity. What I would wish to ask—and I am sure it is a matter which many Members will feel is of very considerable importance—is whether the Government have a programme in relation to this matter. Have they costed this development? Have they budgeted for it? Are they thinking in terms of three, five, seven or 10 years? I appreciate those may be difficult questions for the noble Lord the Minister to answer, but I am quite certain they are questions which go to the very root of this matter. If I may say so, the point raised by the noble Baroness, Lady Macleod, is all the more important bearing in mind that the Government, in relation to this matter, have opted for regional authorities which are co-terminous with the 43 police authorities of England and Wales. If that had not been done it might be that the danger would not be so great; but we regard it as utterly vital not only that the prosecuting authority in each area should be utterly separate and apart from the police but that it should manifestly be seen to be so.
4.45 p.m.
Baroness Macleod of Borve: I should like to try to assure my noble friend the Minister that my basic problem is really perhaps a political one, in that one does not want this service, which I think is going to help the course of justice enormously—I am enormously for this Bill—to be seen to be either near the police or near the local authority, which the people on the ground will see as being "political".
Lord Elton: I am grateful for the intervention of my noble friend. I am entirely seized of the importance of the very clear distinction which she wishes us to achieve, not only in legislation but also in bricks and mortar, between the Director's service on the one hand and the police service on the other.
As to implementation, the noble Lord, Lord Elystan-Morgan, asked me to give a series of declarations about the progress to be made. I think the principal and first stage to which I must refer will be the receipt of the consultants' report in the spring. Since the consultants will be recommending on the actual location of the offices and the number of the offices, until we have that report in the spring, I obviously cannot give him a budgeted figure as to what it will cost, but I can tell him that it is intended to establish in April of next year six areas in the areas covered by the metropolitan counties and the remainder in October of next year. I think that those are the ends of the bracket which the noble Lord wanted me to establish.
Lord Mishcon: Only so that the point which was made so well by the noble Baroness is completely covered, I should like to say that, as I heard the noble Lord the Minister (but I may be wrong), he did refer to the desirability of police premises not being occupied by the prosecuting authority. However, the noble Baroness—I thought very pointedly—also mentioned
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local authority buildings. If! may say so, I do not think the noble Lord the Minister dealt with that point; and if in his review of what has taken place on this debate he can include the point about local authority buildings, that would be helpful. It would obviously be most undesirable for the prosecuting authority to be associated with the local authority in this connection.
Lord Elton: I think that if the noble Lord will be kind enough to look at Hansard tomorrow morning he will find that I have already undertaken to look at this. I have not gone further than that, however, because it was not an idea I was previously seized of.
The Deputy Chairman of Committees (The Earl of Listowel): The Question is that Clause 12 stand part of the Bill—
Lord Elton: I am reminded, if the noble Lord the, Deputy Chairman of Committees will permit me, that Clause 12 places an upper limit of 10 years on the use of police or local authority premises for the purposes of the service. I am most obliged to the noble Lord for giving way. It is something which I should have recalled off my own bat.
Clause 12 agreed to.
Clause 13 [Control of certain fees and expenses etc. paid by the service.]
On Question, Whether Clause 13 shall stand part of the Bill?
Lord Hutchinson of Lullington: The point I should like to raise on this clause at the moment is that the clause is directed in the main to the level of fees to be paid to barristers having the conduct of prosecutions throughout England and Wales. The central control of those fees ultimately by the Treasury, to use the unguent phrase, affects most seriously the position of the Bar and has serious implications for members of the Bar and for its service to the public. At present, I think I can say that there is profound dissatisfaction in both branches of the profession at the level at which legal aid fees are being fixed and being held from year to year. So absurd have been the increases in fees over the past four or five years, as compared to the overhead expenses of practitioners, that very real hardship is now being caused to young barristers under 15 years in court. I am bound to point out, with the greatest respect to the noble and learned Lord the Lord Chancellor, that this is noticeably now beginning to affect the quality of the new intake to the Bar.
In addition, since civil servants with no experience of practice in the law have taken over the fixing of fees, the scales of remuneration which have been brought in, rewarding barristers simply on the hours of work and the quantity of paper involved in a case without any account being taken of their seniority, their experience, their degree of skill and judgment, and indeed the level of the fees outside the legal aid area, have become a matter of grave concern. I raise these matters because when, for instance, counsel appears before the—
Lord Elton: I wonder whether the noble Lord will be kind enough to give way. I intend no discourtesy, but on a careful reading of Clause 13 I cannot see that it actually deals with legal aid, which appears to be the point that the noble Lord is principally pressing. If he

39
wishes me to address myself to some other point within the clause I will happily do so; but I cannot properly start debating legal aid, as I understand it, within the terms of Clause 13.
Lord Hutchinson of Lullington: What I was trying to do was to draw a parallel and to point out the problems which have arisen from the control of legal aid fees in the department of the noble and learned Lord the Lord Chancellor, and therefore the relevance of that to the fact that now all prosecution fees will be under the control of the Attorney-General. Therefore I was going to suggest that the problems which have arisen in the one case might be taken into account when the Attorney-General comes to lay down the scales which are mentioned in Clause 13, governing the fees of counsel who appear for the prosecution in the future.
I was also going to ask the Minister whether any provision has been made for the review of these fees, whether there is some manner in which these fees can be reviewed on an appeal, such as an appeal to the taxing master, to an entirely independent body, so that they can be reviewed with a result which will bring confidence to the profession. At the same time, I should also like to ask the Minister whether the Attorney-General will allow a great degree of flexibiity in the rules which he lays down and in the scales which he lays down so that, within those scales, the Crown prosecutors around the country will be able to find a level of fees which are suitable to the particular case.
Lord Elystan-Morgan: May I, in following the noble Lord, Lord Hutchinson, declare an interest here as a practising member of the Bar and say how much I totally agree with the sentiments articulated by the noble Lord? I rise very briefly to make four points. I wish that I could have given notice to the noble Lord the Minister of these matters, but I am afraid they have been put together rather hastily.
The first matter is this. The side note to Clause 13 states
"Control of certain fees and expenses etc. paid by the Service".
At present, the fees of counsel for the prosecution are paid out of central funds after taxation by Crown court taxing officers. Are these central fund taxations to be abolished, and if so where is the authority in the Bill for that to be done? Secondly, the only other regulations governing fees paid to the Bar are the Legal Aid (Defence) Regulations. These however specifically refer to the regulations having to provide "fair and reasonable remuneration". Is the omission of any such reference to fair and reasonable remuneration in Clause 13 accidental or is it deliberate?
Thirdly, may I raise the question of briefing practice? Are Crown prosecutors to be given lists of counsel acceptable to the Director of Public Prosecutions from whom they must select, or is the matter to be left entirely to the discretion of each Crown prosecutor? Fourthly and lastly, will the regulations envisage, as at present, payment after the case or will they permit briefs to be marked in advance? I am sorry to raise such mercenary matters as those, but they are matters which are of very great concern to the Bar, particularly the junior Bar, and
40
they are matters which can affect the strength and independence of the Bar for many years to come.
Lord Mishcon: I should like to add only a few comments, if I may, disclosing an interest in the fact that I am a solicitor and therefore have the happy privilege of instructing counsel. I associate myself with everything that has been said and I rise only to add this point. One of the main troubles which has afflicted our criminal courts has been that both prosecuting and defence counsel on some occasions—and I accentuate the word "some"—have elongated trials beyond anything that is reasonable by virtue of their lack of experience, and I attribute no other motive to those unnecessary prolongations of proceedings. It is therefore vitally necessary—and indeed it is an economy in regard to the running of the prosecuting service and the administration of our courts—that competent and experienced counsel are encouraged and not discouraged to take on this work. I therefore hope for that reason alone—but there are others—that the noble Lord the Minister and those who are in charge of these matters will consider most carefully what has been said by the noble Lord, Lord Hutchinson, and by my noble friend Lord Elystan-Morgan.
Lord Simon of Glaisdale: I would not intervene to make this point were your Lordships not already considering whether the clause shall stand part. But once again—and I shall not do it again—I draw attention to the ridiculous phrase "with the approval of the Treasury". We have now had it twice this afternoon already, and perhaps when the noble Lord takes the matter up with the draftsman and the Treasury he will press them on whether the presence of these words is really necessary to prevent a demented Attorney-General issuing regulations which will throw the Government's economic policy off course.
Lord Campbell of Alloway: It is a matter of great importance to the Bar, and, as a practising member of the Bar—I declare an interest, of course—I wish to associate myself with everything that the noble Lord, Lord Mishcon, has said. It is not the first time that I have had the privilege of doing this but I do so, and I do so with a very real debt of gratitude as one member of the profession to another. I wish also to associate myself with what the noble Lord, Lord Elystan-Morgan, has said. It is of great importance and I would ask my noble friend the Minister to bear in mind that lists are not really the best way ahead. It is a wide discretion to pick the best from the Bar to do the appropriate case.
5 p.m.
Lord Elton: Much that has been put on the record will be for the consideration of my honourable and right honourable friends but I have a number of responses which I make to your Lordships this afternoon, even though my brief has not been marked for me in the sense in which a layman uses the term.
The noble and learned Lord, Lord Simon of Glaisdale, directs our attention once more to the Treasury, a body which Ministers are unlikely, as he points out, ever to forget. He may take it from me that

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I shall seek to discover whether every reference in the Bill that remains to be considered is necessary. It does occur to me—I do not want to prolong this and it is only a thought in passing—that if a Minister or a Secretary of State has a duty to do something and there is no Treasury consent required, it would be very difficult for the Secretary of State to plead in a court that he is absolved from the duty simply because he had not got the money to do it, because Parliament would have told him to do something and not told him to consider the availability of resources. But I do not wish to anticipate the advice I shall be given, and I can see noble and learned heads shaking somewhat impatiently at the layman's suggestion. So I hastily withdraw from that consideration and return to the safe position of giving advice, when I have got it, to the noble and learned Lord.
The noble Lord, Lord Hutchinson of Lullington, opened the discussion on the question of the level of fees to counsel. My right honourable friend the Attorney-General has, I can tell him, agreed in the light of representations from the Bar to establish machinery for the independent review of fees to counsel by the Crown prosecution service in all cases where the fee has not previously been agreed in advance. These are expected in fact not to be at all numerous. My right honourable friend also intends there to be flexibility in the scales of fees established by rule under Clause 13. The noble Lord, Lord Elystan-Morgan, was concerned at the omission from Clause 13 of the term,
"fair and reasonable remuneration".
With the establishment of independent machinery to review fees, it will be possible to ensure this point is covered. There will be consultations with the Bar on the details of the machinery to be established for this purpose.
The noble Lord, Lord Elystan-Morgan, also asked about the choice of counsel. I can assure him that early consultation on the nomination arrangements for counsel will take place with the Bar. The noble Lord also referred to brief fees. The marking of fees in advance is expected to occur in the overwhelming majority of cases.
The noble Lord further asked about the authority for the abolition of the provision of costs from public funds and taxation of fees in individual cases. Prosecutions for indictable offences are funded on a case by case basis by order made under the Costs in Criminal Cases Act 1973. This Act is repealed and subsection (6) of Clause 16 excludes the Crown prosecution service from obtaining orders under the Bill.
My noble friend Lord Campbell of Alloway directed my attention at a point and I much regret that I seem to have lost all trace of it.
Lord Campbell of Alloway: With great respect, it was not of very great importance because I was adopting with gratitude the point made by the noble Lords, Lord Mishcon and Lord Elystan-Morgan. The record will speak for itself and I would not wish to take the time of your Lordships' Committee.
Lord Elton: I am much obliged to the Committee. If I have satisfied all your Lordships, perhaps the clause may now be made to stand part of the Bill.
Clause 13 agreed to.
Clause 14 [Interpretation of Part I]:
Lord Elton Lord Elton moved Amendment No. 44:
Page 12, line 41, at end insert—
("(4A) For the purposes of section 5 of this Act, proceedings begun by summons issued under section 3 of the Obscene Publications Act 1959 (forfeiture of obscene articles) shall be taken to be criminal proceedings.").
The noble Lord said: It is our intention under this Bill to secure that the Director of Public Prosecutions shall be able to appoint either a solicitor in private practice or a solicitor or a barrister on the staff of a public authority to act as his agent as occasion serves or requires. That is, I think, an intention which is sensible—and generally welcome in the profession.
The power for the Director to do this is provided in Section 5 of the Bill. This enables him to:
"appoint a person who is not a prosecuting solicitor but who is:—

(a) a solicitor; or

(b) a hamster who is a member of the staff of a public authority;

to institute or take over the conduct of such criminal proceedings as the Director may assign him".
The key word there on page 5, line 11, is "criminal". The power can be exercised only in criminal cases. It' we wish any other kinds of case which the Director of Public Prosecutions can handle to be available for delegation by this means, we must, therefore, arrange for them to be dealt with as if they were criminal cases.
The list of cases which the Director can handle appears in subsection (2) of Clause 3 of the Bill. Your Lordships will see that paragraph (d) in that list refers to proceedings begun by summons issued under Section 3 of the Obscene Publications Act 1959. Those may not, strictly speaking, be criminal proceedings, but we do think that it should be possible for them to be handled by solicitors in private practice or solicitors or barristers on the staff of public authorities acting as agents for the Director and subject to his direction. It is, accordingly, necessary to specify them again in Clause 14 for treatment—for Clause 5 purposes—as if they were criminal proceedings. I hope I have made that clear. I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees: Before I call the next amendment, I must point out to the Committee that if this amendment is agreed to I cannot call Amendment No. 46.
Lord Irving of Dartford Lord Irving of Dartford moved Amendment No. 45:
Page 12, line 42, leave out subsection (5).
The noble Lord said: I move this amendment as a probing amendment. Subsection (5) of Clause 14 of the Bill refers to functions to be transferred to the Director of Public Prosecutions under the Employment Protection (Consolidation) Act 1978, although the subsection excludes the application of certain provisions of the Pensions (Increase) Act 1971. However, it is not clear to NALGO what the

43
subsection is intended to achieve although discussions between representatives of NALGO and of the Home Office indicate that the purpose of subsection (5) is to require local authorities to continue to deal with existing pensioners' superannuation payments. That requirement would seem to be covered by current obligations and subsection (5) would therefore be unnecessary for that purpose. However, if subsection (5) is intended to undermine index-linkage of future pension entitlement, NALGO feels that the subsection should in any event be deleted. I shall be glad to have the view of the noble Lord. I beg to move.
Lord Elton: I shall shortly be proposing an amendment, if this amendment is only a probing amendment, which will clarify that, for the purposes of the Pensions (Increase) Act 1971, the effect of Clause 14 (5) is simply to ensure that responsibility for meeting the costs of pensions increase of existing pensioners continues to rest with the last employing local authority (or police authority, as the case may be). As drafted, the subsection achieves this result. But I am aware that fears have been expressed that the clause goes wider than this and in some way lays open to modification the arrangements for index-linking of pensions of staff transferring to the new service. I am grateful to the noble Lord, Lord Irving of Dartford, for making that anxiety explicit. But it does not have that effect; nor is it intended to do so. It is to make that plain beyond a shadow of doubt that I propose to tighten up the reference to the 1971 Act. Should that amendment be acceptable to the Committee, as I hope it will be, the noble Lords in whose names this amendment stands may wish to consider whether it is necessary.
I should perhaps say that in reaching that judgment those noble Lords may wish to be aware that one effect of this amendment may be to place in jeopardy certain rights of staff transferring into the new service which were afforded by employment protection legislation; rights which the first part of subsection (5) ensures remain intact. I feel therefore that noble Lords would want that part of the Bill to remain as it is. I doubt very much whether putting those rights in jeopardy in that way is what noble Lords want; indeed, the noble Lord, Lord Irving, has said that it is not. I shall not delay your Lordships' Committee further because I believe that the noble Lord will find that what I have to say on the next amendment will answer his anxieties.
Lord Irving of Dartford: I am very grateful to the noble Lord for his reassurance and I look forward with interest to the next amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elton Lord Elton moved Amendment No. 46:
Page 13, line 4, leave out from ("of") to end of line 6 and insert ("paragraph 1(2) of Schedule 3 to the Pensions (Increase) Act 1971 (meaning of "last employing authority)" ").
The noble Lord said: Perhaps I may first explain that the passage of Clause 14(5) dealing with the Pensions (Increase) Act 1971 is not about the pension rights of staff transferring to the new service. It is, rather, a technical provision to avoid something
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happening as a result of the 1971 Act. If your Lordships will bear with me, I shall explain what that something is.
Existing pensioners who have been employed on prosecution functions which the Bill will transfer to the Director of Public Prosecutions will still receive their pensions from the same local or police authority as at present. By virtue of the Pensions (Increase) Act 1971 those authorities are also responsible for increasing the pensions they pay to their retired employees in order to take account of increases in the cost of living.
Because of other provisions of the 1971 Act, however, the responsibility for paying increases could, if it were not for Clause 14(5), transfer to the Crown. I am sure your Lordships will appreciate that that would have been inappropriate; any increases in the pensions of existing pensioners of local and police authorities should of course continue to be the responsibility of authorities and should not pass to the taxpayer.
To sum up, the intended effect of this part of Clause 14(5) is to leave where it is already the responsibility for meeting the cost of pension increases of existing pensioners. But although we believe the provision as drafted achieves that effect, we have been told—and the noble Lord has reminded us—that staff now engaged on prosecutions work are anxious that the provision may in some way threaten their current or future pension entitlements. In order to allay that understandable, if misplaced, anxiety we have brought forward this amendment, which ties in Clause 14(5) more closely to the provision in the 1971 Act which deals with liability for meeting the cost of pension increases. I hope that the noble Lord is reassured and I beg to move.
On Question, amendment agreed to.
On Question, Whether Clause 14, as amended, shall stand part of the Bill?
Lord Campbell of Alloway: I shall raise very briefly a formal point of drafting, as the sole surviving lawyer on these Back-Benches who can do so. I draw attention to the drafting question, which is of considerable importance to my noble friend Lord Renton; that Clause 14 should really be drafted as subsection (1) of Clause 1, in accordance with the way in which statutory instruments are drafted. It would be conducive to clarity. I make that point only in the general interest.
Lord Elton: I suspect that there may be more than one view on that issue, but I respect my noble friend's view and take account of it.
Clause 14, as amended, agreed to.
Clause 15 [Defence costs]:
5.15 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 47:
Page 13, line 17, leave out ("indictable")
The noble Lord said The noble Lord said: I understand that it is your Lordships' wish that we take with this amendment also Amendments Nos. 48 and 51.
Amendment No. 48: Page 13, line 22, leave out ("indictable").
Amendment No. 51: Page 13, line 36, leave out ("indictable").
I respectfully submit to the Committee that the effect of these amendments is something of immense importance, in relation to both practice and principle. The general effect of these amendments, if carried, will be to widen very considerably the discretion which does not exist now with regard to the granting of costs out of central funds to a successful defendant in relation to non-indictable offences. At the moment, as we know, such discretion does not exist and the only discretion that is vested in a court is to make an order for costs against the prosecution in a suitable case.
The effect of Amendment No. 47 would be that where a person has been charged with an offence but the prosecution have not proceeded no distinction would be drawn between indictable and non-indictable offences. Likewise, the effect of Amendment No. 48 would be that where a magistrates' court, as examining justices, is examining an indictable offence and decides not to commit the accused for trial, in those cases it would not apply for non-indictable offences that such a court would be seized of such an issue.
The effect of Amendment No. 51 relates to those cases where a Crown Court is sitting in an appellate capacity and has at the moment no power to grant costs, even to a successful appellant, where the offence is one that was non-indictable, and therefore is not allowed to grant costs in respect of either the hearing before the Crown Court or the court below.
Indictable offences in the main, by their very nature, cover by far the most serious range of grave offences known to criminal law. But in terms of mass, as we well know, some 97 per cent. of all criminal cases are heard by magistrates. In other words, something over 29 out of every 30 criminal cases are disposed of by magistrates. Many of those cases are of immense importance, not just to the people involved but also to the public at large.
When the Committee reflects for a moment on such offences as common assault, assaulting a police officer in the execution of his duty, obstructing a police officer in the execution of his duty, offences under Section 5 of the Public Order Act 1936, using threatening or insulting words or behaviour, and criminal damage under £200, the picture is very clear; there are tens of thousands or situations each year in the courts of England and Wales where people of good character find themselves in conflict with the law for the first time in their lives.
In many of these cases legal aid will not be granted because it may be that in the area in which the magistrates' court is situated a rather niggardly view is taken of legal aid. The Committee will know well how patchy and inconsistent can be the whole picture in relation to the granting of legal aid for summary trials. It is a matter which your Lordships have considered on many occasions over the past few years. Imagine then a man of good character, who has never been in any trouble before in his life, who suddenly finds himself facing a serious charge; perhaps common assault. It may arise from some mendacity that is wrapped up in a feud beween himself and a neighbour which has gone on for years. It may be that the neighbour is a person of extreme eccentricity, but the police decide to proceed on the face value of the statements which have
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been made. One can imagine dozens of different situations.
Legal aid is not granted. A person of modest means finds it necessary, in order to defend his honour and integrity, to instruct a solicitor, and, perhaps, even to brief counsel. He is successful, but in that situation the court has no power whatever to grant costs out of central funds. Of course, as I have already said, the court has the discretion to make an order against the prosecutor, but the court is entitled to do that only in those circumstances where it considers that there was no proper justification for bringing the prosecution, whereas on the face value of the statements in the case I have used as an example there would have been ample justification.
In my submission therefore in relation to Amendment No. 47, which deals with the generality of this situation, there are many hundreds, if not thousands, of cases where magistrates have felt that it would be entirely proper to have granted costs out of central funds, but where the law does not allow that freedom. It is in order to cure that anomaly that this group of amendments is put forward.
The case in relation to Amendment No. 51 concerns the situation where there has been a successful appeal brought from a magistrates' court decision to the Crown Court. There, hearing in mind the greater likelihood of the necessity to brief counsel, it may be that the costs are much greater than those for the average case in a magistrates' court. Therefore, the hardship is proportionately greater still. We say that where an innocent person has fought hard to establish his innocence, in addition to the trauma that is felt in the context of the jeopardy which surrounds him, it is utterly ironic if such a person has to find himself condemned in costs, as it were, in so far as his own legal expenses are concerned on a matter that came to court not on his initiative, but entirely by the machinery of other persons and other authorities.
The Law Society has campaigned hard and long on what it regards as a fundamental anomaly in our law. We are very proud indeed therefore to move these amendments and to tender them to the Committee as being utterly necessary to remove a fundamental injustice in our system of administration of justice. I beg to move.
Lord Campbell of Alloway: If we are speaking to Amendments Nos. 47, 48, and 51, I would say that I wholly support them. I ask my noble friend the Minister to take these amendments on board. They are designed to cure a serious anomaly. The power to order costs is discretionary, and this is a wholly permissive situation. On no showing—and I shall take no time about this—can the dichotomy beween indictable and non-indictable offences have any valid distinction on a basis of fairness or the due administration of justice. To cure this anomaly can only tend to bring the administration of justice in our country into better repute in the eyes of so many people who are affected by it.
Lord Denning: I just wish to say that in principle and in practice this amendment ought to be accepted. There is no reason whatever for distinguishing between indictable and non-indictable offences. We

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can trust the magistrates to deal with these matters fairly and to grant costs when it is proper to do so, or on appeal to the Crown Court.
Lord Edmund-Davies: I desire to identify myself with that view. It seems to me at the moment that no answer to the plea contained in the amendment could properly be resisted.
Lord Hutchinson of Lullington: I also support the amendment and would add that the Justices' Clerks' Society strongly supports the amendment in these words:
"A change in the law to allow costs to be paid out of central funds … in all cases would not only be welcomed but would also simplify the law on costs for those involved in court proceedings".
Perhaps I may also point out that on the question of compensating the prosecution, in Clause 18(1) it is made clear that when,
"any person is convicted of an offence before a magistrates' court"
or
"any person is convicted of an offence before the Crown Court; the court may make such order as to the costs to be paid by the accused to the prosecutor as it considers just and reasonable".
Therefore, there is no distinction whatever made when it comes to compensating the prosecution where a person has been convicted. Yet here we have the anomaly on the question of compensating an accused person who has been acquitted. It seems extraordinary that if charged with stealing a milk bottle, one can get costs, but if one is charged with assaulting the police or driving with an excess of alcohol, when the likelihood is that one will go to prison one is in serious jeopardy, there is no way of obtaining costs.
As regards appeals to the Crown Court. I make this point. An appeal to the Crown Court is of course an entire rehearing of the case which was before the magistrates. It may be that the appellant has been disbelieved on oath before the magistrates, and he may therefore take the case on appeal to the Crown Court and have a complete rehearing. The person will have to brief counsel and a solicitor and call all his witnesses, once again, before the Crown Court. He may take a point of law on which the justices have, he submits, made a complete mistake. If at the end of all that he is found to be completely justified and the case against him is not proved, and it is also found that the justices have made an important and serious mistake of law, the situation will be that he will not be able to get his costs from central funds. I earnestly ask the Government at last to set right this injustice.
Baroness Phillips: Sitting here this afternoon I have been wondering whether we are sitting in a judicial capacity or as a Committee which is making laws. We have had the advantage of listening to noble and learned Lords of varying ranks. They have used even the jargon of the courts and talked about "submissions". We are not submitting evidence, but are debating the framing of a Bill, an Act of Parliament.
I notice that in this particular debate there has been reference to magistrates. I am very proud to be a lay magistrate. I believe that possibly we deal with more cases than any other tier of court in this country. I have
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had a lot of material from the Magistrates' Association. I should have felt happier had I had some information on this particular group of amendments.
My noble friend on the Front Bench said that 70 per cent. of those people brought before courts are of previous good character. I am not quite sure what the relevance of that information is.
5.30 p.m.
Lord Elystan-Morgan: I think that my noble friend must have misheard me. I said that 97 per cent. of all criminal cases are disposed of by magistrates' courts. I then gave an example of a person of, let us say, good character who has been acquitted, has not been granted legal aid and has not been able to recover the cost of his representation.
Baroness Phillips: I think that when my noble friend reads Hansard tomorrow he may see that he made some reference to a percentage.
I would only suggest that the fact that a person is of previous good character, if he has then committed an act of violence, is hardly relevant in so far as the court is concerned. As I understood my training, the magistrate is there to consider whether the evidence supports the charge, and then one proceeds to deal with the nature of the offence.
I am concerned that we are so often listening to pleading from the professions. I should like to hear from some other disinterested party, if I may say so, on the question of costs. If one sits as a magistrate for any length of time, one has the rather wicked thought—which of course I dismiss instantly—that occasionally it is in the interests of counsel to prolong a case or to refer it to a higher court because they will receive greater fees. I am sure that that is quite untrue, but I should like that wicked thought once and for all to be taken out of the minds of many magistrates. I can assure my noble and learned friends that it occasionally occurs.
If there is no justification for bringing a case—and this refers to a statement made by one of the noble Lords who have spoken—I am not quite sure how it has reached the point of being before a court at all. I should want more examples than those that have been quoted. I should be glad to hear in the Committee today from someone who does not have a professional skill and professional knowledge of our courts not only on this but on many of the other amendments.
Lord Mishcon: I regret having to disappoint my noble friend in rising to deal with some of the remarks that she has made, as I am a member of the legal profession. It is possibly the first time that I have ever apologised for being a member of my profession. I feel that from this Front Bench at all events a view should be put, our having heard the remarks of the noble Baroness.
My noble friend Lord Elystan-Morgan made it perfectly clear that a great number of cases come before the magistrates' courts where there is an acquittal and where there ought to be this right. One would have thought this was self-evident, and I shall not make a long speech about it. It is enough that the matter has had the support of the two noble and

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learned Lords who have spoken, without my ruining the case. I want to say only this. There are many cases where a prosecution is perfectly properly brought, because the prosecution has to accept on their merits the statements of witnesses who have come forward to give statements. Subsequently in the proceedings, which the magistrates deal with with their customary fairness—and I am sure that the noble Baroness is one of those who deserves that description—they may find that on cross-examination the evidence of the witness for the prosecution is torn to pieces and shown to be completely inaccurate, and the defendant is thereupon acquitted. Is it not right that in a case of that kind the magistrates should have the right to award costs?
I add only a word or two to the examples that were given by my noble friend Lord Elystan-Morgan of summary cases which are now of great importance to defendants. Minor motoring offences have now been added to that list. If a minor motoring offence is charged and points are attached to it, it could very well be that disqualification results if the offence has been committed. If indeed the offence has not been committed and it is shown that it has not, again, is it not right that in such a case, where the defendant has had to defend himself with professional aid in order to avoid disqualification which might mean the loss of his livelihood, the magistrate should have that power?
The Lord Chancellor (Lord Hailsham of Saint Marylebone): I thought that the noble Baroness, Lady Phillips, brought a welcome note of reality into the discussion. The difficulty does not lie in the fact that all who have spoken, including myself, with her solitary but distinguished exception, are members of the legal profession. The real defect in this debate has been that we are all grandees, if I may be forgiven for incorporating all the speakers from my noble and learned friends on the Cross-Benches, through the Front Bench opposite, to the noble Lord, Lord Hutchinson of Lullington. We are all grandees, and I think that there was a note of unreality about the discussion of what goes on in summary cases and what can go on in summary cases.
Let us get it clear what we are talking about. In this group of amendments we are talking about the award to, in effect, acquitted defendants—there are the appellate cases, and so on—of costs out of central funds. Of course, the system has grown up to some extent anomalously but not, I think, quite in the way that it is described.
When I was first at the Bar (which was a little after the noble and learned Lord, Lord Denning, but before he became a judge; I remember him as A. T. Denning, QC), apart from the dock brief and the poor prisoner's defence, which were nugatory, on indictment you could not get your costs at all, effectively, if you were acquitted as a defendant. Indeed, the first murder trial that I was in was one which became very famous. It was called, "Brighton trunk murder No. 2", in which the then Norman Birkett, QC, made a brilliant tour-de-force and got his client off. I was being led for the prosecution by Jimmy Cassels, as we then knew him.
The way that they funded defences in murder cases in those days—and it shows how far we have travelled since then—was that they would put up the last story, as it was called, of the accused person to auction.
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When he was ultimately convicted, as the newspaper who made the successful bid hoped no doubt, that newspaper printed the last story. Thus the distinguished members of the Bar who defended alleged murderers were recompensed for their services. That was obviously wholly unsatisfactory, and, at last, we got to the stage in 1962, I think it was, but certainly many years afterwards, when people who defended alleged criminals on indictment were recompensed out of central funds (i.e., by the taxpayer) under criminal legal aid. It took a very, very long time to do it.
So far as concerns this clause, Clause 15, very largely it is a development of the status quo but not a very big development of the status quo; because what we have to remember in relation to indictable cases is that 90 per cent. of the cases which are tried on indictment are paid for out of legal aid. Therefore, they do not really come within the ambit of Clause 15 at all, because Clause 15 deals with that portion of the defence which is not covered by legal aid. It may be that in some cases, when millionaires are indicted, which is not very frequent, the whole of the costs of the defence will be dealt with by Clause 15. But Clause 15 provides that that portion of the costs which is not provided by legal aid shall be paid for out of central funds. That is the situation on indictment, which, as the noble Lord, Lord Elystan-Morgan, perfectly correctly stated, deals with the bulk of really serious crime.
This is where I thought that the noble Baroness really did us all a favour by intervening. When you are dealing with the summary cases, you are in fact dealing with a totally different world. It deals with 97 per cent. of criminal work if you number it case by case but three-quarters of the total are road traffic offences. Of the remainder, almost half relate to the Wireless Telegraphy Act, motor vehicle licences, drink-related offences, including drunk and disorderly, and people plying various trades in the street. That is the world which we are entering for the purposes of these amendments, which strike out the word "indictable" in the three cases. We are living (with great respect to my noble and learned friend Lord Denning) in a very different world.
If I may say this to the noble Lord, Lord Elystan-Morgan, and I think to the noble Lord, Lord Mishcon, who introduced the question of disqualification for licence, legal aid applies in all these cases, but subject to the Widgery criteria; in other words, that the case really has to be sufficiently important to justify legal aid. Of course, if any of the noble Lords who have spoken in this debate were charged with anything—but anything—I think that we should almost certainly, being who we are and what we are, employ solicitors and counsel. But the ordinary man in the street very often does not: he appears in person.
The noble Lord, Lord Mishcon, spoke—I think per incuriam; and I think that this was true of two or three noble Lords opposite—as if the magistrates had no power to award costs in these cases. That is quite wrong. They have power to award costs in these cases, and they ought to have power to award costs in these cases. But in fact they have power to award costs against the prosecution rather than costs to come out of central funds. In other words, it is the prosecuting

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authority who will have to pay in the case of an adverse order for costs in the magistrates' court, and, indeed, on appeal, I think I am right in saying, to the Crown Court from the magistrates' court. But it is the prosecuting authority which has to pay, and not central funds.
5.45 p.m.
It is quite true that it can be argued—I think that this is really what underlay the two speeches from the Cross-Benches, and it may very well be true—that magistrates either do not in practice, or will not, award costs to be paid by the prosecution as a matter of course (that is, when an acquitted defendant is awarded costs out of central funds as a matter of course, when it is not covered by legal aid on indictment) unless he has brought the prosecution upon himself or other circumstances exist under the practice direction in which the trial judge makes him pay them out of his own pocket for reasons which may be adequate. It may well be that guidelines of some sort might be given to magistrates to make them pursue a more consistent line throughout the country than they do at the moment by way of ordering costs to be paid by the prosecuting authority. I think it is probably fair to say—and I want to make every concession I can which is reasonable—that in a great number of cases, and perhaps in the majority, magistrates tend to make such an order only when the prosecution ought not to have been brought. I am not sure that that is not a subject for reflection.
But when you come to deal with the world of the magistrates' court, I believe, and those who advise me believe, that the right pocket out of which acquitted defendants ought to be paid, if they are to be paid by the public, is the prosecutor's, and not what is called central funds—subject in both cases to the overriding fact that in cases where reputation or liberty is in jeopardy they ought to be paid by legal aid, and are; and in cases where the defendant is under some disability which makes it necessary for him to be defended professionally rather than to appear in the dock and say what he has to say himself, or in cases where complicated questions of law arise, those, again, are legal aid cases.
What I am trying to say to the Committee is that this is not the simple open-and-shut affair which I think the grandees of the profession who have been speaking tend to make people think it is. It is much more like the world in which the noble Baroness, Lady Phillips, has been living as a magistrate. The case that I am trying to put forward is that it is right that magistrates should have power to order costs to the acquitted defendants, but it is probably right that in summary cases they should come out from the prosecution and not out of central funds. It may very well be that there is a case for a more generous type of treatment under that provision than is at present available.
I must say this also—and I hate to say it because I know what an awful bounder I shall appear to be. I believe that these amendments would cost central funds about £15 million net even if the power to revoke the legal aid (which is in one of them) was not there. I am bound to say to the Committee that I do not know where I should find the money. It is all very
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well of course when we are asked to spend 10 million here and 15 million there, or whatever, to be told, "Oh, well, it is quite a small sum. The thing is right in principle, so why not do it?" Of course, that is perfectly right so long as you are on the Opposition Benches or on the Cross-Benches. But if you are a member of the Government you are a member of a body which is constantly under pressure to spend more public money in every direction. As a member of the Cabinet I am just as much responsible for the cuts, if they are cuts, or for the reductions of expenditure, in education or health, or social services or what-not, as I am for my own, rather smaller budget.
I am bound to say to the Committee that, being under the constraints that I am, I should find it very difficult to justify the additional expenditure of, say, £15 million out of my budget and have to assume the responsibility of either finding that £15 million from some other source, which I do not think that I could do, or insisting on another colleague, with perhaps rather more justification for it, finding the £15 million out of his budget. That is, I think, a responsible attitude for a Minister to take. I remember that, when I was sitting where the noble and learned Lord, Lord Elwyn-Jones, is now sitting and bombarding him with various criticisms, the noble Lord, Lord Harris of Greenwich, who was then fighting for the Home Office, made almost exactly this speech about a number of similar matters. It is something that one has to take seriously.
What I am really trying to say is this. There may be a case for more generous treatment, under a practice direction, of costs to be paid by the prosecution where the prosecution fails either at first instance or on appeal to the Crown Court in summary cases. But the case for central funds is not wholly made out. As at present advised, that is the attitude that I would ask the Committee to take.
Lord Airedale: If you take the case that the noble Lord, Lord Mishcon, puts forward, where the prosecution is perfectly properly brought upon the evidence available to the prosecution before the case began and then the prosecution witnesses are torn to pieces in the course of the trial and it becomes obvious that the prosecution case has collapsed, is it not rather unfair that the order for costs should be said to be against the prosecution? It is reported in the local paper, and everyone supposes that the prosecution must have been at fault. But it was not at fault at all. Is it not much more sensible in such a case that the magistrates should be able to say that the costs shall come out of central funds?
The Lord Chancellor: I think that the broad answer to that is, "Frankly, no. Not necessarily". Like, I suppose, every professional Member who has spoken in the debate, I have taken part in dozens of cases, probably hundreds in the course of 50 years, where either civil or criminal cases have been perfectly properly brought but have broken down for just the kind of reason that the noble Lord has suggested; namely, that the witnesses did not come up to proof, were torn to pieces in cross-examination or something went wrong so that a vital element in the case failed. I am afraid that I take the broad attitude—limiting

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myself solely to non-legal aid summary cases, which is the sole field in which we are operating for the purpose of these amendments—of vae victis; it is the loser who pays.
Lord Mishcon: The noble and learned Lord is always powerful in his arguments, especially when he puts a figure on the cost of an amendment and makes all of us tremble at it. I wonder whether I may respectfully analyse what he has just said. I should like first to make my own previous remarks quite clear. There is of course a power available to magistrates to order costs in cases which are triable either way or triable on indictment and to make that order out of central funds. As the noble and learned Lord has most correctly said, we are not dealing with that type of case. What we are dealing with is the summary case. I am able to tell your Lordships that I am no grandee at all. I spent the first years of my professional life, if I may confide in the Committee, being called the Attorney-General for Lambeth—not a very grand place but one that I loved and the place of my birth. I recall cases in the magistrates courts that appeared much too difficult for me—it happened quite often—when I had the assistance of the noble Lord, Lord Hutchinson.
It is right that we now have legal aid. I can, however, tell your Lordships, as a practical fact, that it is extremely difficult to get legal aid in summary cases. I am sure that the noble and learned Lord knows, and would want the Committee to know, that there are many courts which will not grant legal aid unless, on conviction for the offence charged, there is possibly a prison sentence. If therefore it is merely a "fineable" offence, if I may so describe it, legal aid will not be granted.
We now come to the crunch. Magistrates, the noble and learned Lord says, can possibly be encouraged by more generous guidelines to award costs not against the central fund but against the prosecution. I am most grateful to the noble Lord, Lord Airedale, for highlighting the fact that, if one is to persuade magistrates to award costs against the prosecution, one has to prove, from every practical point of view, that the prosecution should never have been brought at all.
There are many cases where the prosecution acted perfectly correctly on the evidence that the prosecution had. Is it right that in cases where there is an acquittal—I ask each one of your Lordships to imagine yourself in the position of someone not possessed of a lot of worldly wealth—the person so acquitted has to rely on an application being made that the prosecution should never have been brought? I query, with great deference, the number of cases where such costs will be awarded, the magistrates not acting with a due sense of responsibility before they award costs out of central funds. Are we really to take for granted and on its face value what the noble and learned Lord has said; namely, that so many prosecutions are wrongly brought—this is the only way that the amendment could possibly succeed—that the noble and learned Lord the Lord Chancellor says that £5 million-worth of costs would have to be paid out if everyone who was wrongly prosecuted was compensated? I cannot believe that the courts, so admirably defended by my noble friend Lady Phillips, are acting in this irresponsible manner.
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The costs that would be awarded must be few and far between. I think we would find that the costs, at the end of the day, would be a very moderate sum indeed. The principle that this amendment underlines would be a much more valuable one that we should have endorsed than the amount of costs ultimately involved.
The Lord Chancellor: Everyone hearing those remarks will understand why the noble Lord, Lord Mishcon, was called the Attorney-General of Lambeth. The eloquence with which he has defended his position does him nothing but credit. It is true that I must take the responsibility for giving the figure of £15 million, and I do. However, I am hound to tell the noble Lord and the Committee that I did not do the sum myself, and that those who did do the sum are much more qualified than I am to give it. I should perhaps say to the noble Lord, Lord Airedale, and to the noble Lord, Lord Mishcon, in so far as motoring cases, in particular, are concerned—I belong to the AA or the RAC and probably both—the costs of one's defence are borne by those societies. And so they should be! Very often that is also the case if one is a member of a trade union or an employee. At any rate, suppose we leave it like this—that I will take the matter back and consider it. We can then return to it on Report in the light of such instructions as I may receive from my instructing solicitors. Perhaps we may now move on. We have had a very good debate.
6 p.m.
Lord Elwyn-Jones: Does that glimmer of light indicate that we may hope for good news hereafter from the noble and learned Lord? If so, of course we should not seek to obtain the view of the Committee on this matter, but if there is not even a glimmer, if it is only a shadow, then we shall have to divide. Perhaps he can enlighten us further.
The Lord Chancellor: My motto is dum Spiro spero: while I live there is hope. I certainly should not extinguish the glimmer in the noble and learned Lord's breast. I cannot give any higher indication as to the degree in which the brief candle may be allowed to shine in a naughty world, but certainly I am not excluding hope.
Lord Simon of Glaisdale: I wonder whether my noble and learned friend the Lord Chancellor can help me on this as well, because we are going to have to come to a decision either today or on Report stage. If there is a public prosecution service such as this Bill sets up, and costs are awarded against the prosecution, who ultimately pays those costs?
The Lord Chancellor: The prosecution service, and not just the straight central funds. It may sound rather absurd, and I quite sympathise with my noble and learned friend. It is rather an abstract proposition that it matters in Government out of which pocket you pay the taxpayers' money, but the fact is that it does.
Lord Simon of Glaisdale: Is it not purely an accountancy matter?
The Lord Chancellor: I think probably not; it is a question of accounting discipline, which is not quite purely an accounting matter. Perhaps we could leave it at that for the moment, while hope dawns eternal. I think we have explored this matter as far as we can go this evening.
Lord Elystan-Morgan: The noble and learned Lord the Lord Chancellor, in a most engaging and eloquent speech, has I think put forward all the arguments that could reasonably be articulated in favour of the proposition that there should be this distinction. He has lit a small candle. I think there is a proverb which comes out of the wisdom of the East somewhere which says, "It is better to light a small candle than to curse the darkness". Rather than curse the darkness and put this matter to the test today, we are prepared most certainly to accept the undertaking which has been given by the noble and learned Lord, and we look forward very much to a more benign result ultimately being achieved in this matter.
May I respectfully put these points to him, very briefly? We doubt whether the right question has been asked here. The question to be asked is whether there is a justification, against the background of the standards of justice enjoyed by this Kingdom, for drawing a distinction between reimbursement of costs on indictable offences and the non-reimbursement of costs, out of central funds, on summary offences. The justification, we suggest most humbly to the noble and learned Lord, does not turn upon legal aid. If anything, that strengthens the case for the amendments, because legal aid is so patchy in this realm and indeed is far more evenly distributed in relation to indictable offences.
The justification, we say, cannot again be drawn on the question of widening the powers of magistrates to grant costs against the prosecution, because it would be utterly unfair to do so. We doubt very much, with great respect, whether this could be done by any administrative direction. It would be necessary to pass positive and deliberate legislation in order to bring that about. Even if that were done, it would be so cribbed, cabined, and confined that it would never meet the case that we have sought to put forward.
In the circumstances, we ask the Lord Chancellor to consider this. Bearing in mind the standards which in relation to justice Britain has managed to show to the world as a shining beacon, if he comes to the conclusion that a case is made out, in justice and equity, for not drawing this distinction, then indeed one can say, although £15 million is a very substantial sum—and we do not believe that that sum would be frittered away; we do not believe that magistrates of the calibre of my noble friend Lady Phillips would be granting these in unmeritorious cases—that one would find it difficult to find an area where there can be a better investment in everything that Britain stands for. With the leave of the Committee, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 48 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 49:
Page 13, line 29, leave out from ("person") to ("or") in line 30 and insert ("is not tried for an offence for which he has been indicted or committed for trial:").
The noble and learned Lord said: I think this is purely a drafting amendment, or a technical amendment. Clause 15(2) sets out the circumstances in which the Crown Court may make a defendant's costs order. As at present drafted, it does not cover the situation of a defendant who is indicted on a voluntary bill but not subsequently tried. This amendment remedies that omission, and it is for that reason that it was put down. I beg to move it.
On Question, amendment agreed to.
The Deputy Chairman of Committees (Lord Renton): If Amendment No. 50 is agreed to, I cannot call Amendment No. 51.
Lord Elystan-Morgan Lord Elystan-Morgan had given notice of his intention to move Amendment No. 50:
Page 13, line 35, leave out subsection (3) and insert—
("(3) Where an appeal is brought to a Crown Court and is allowed in whole or part, the court may make a defendant's costs order in favour of the appellant.").
The noble Lord said: I believe that, with this amendment, the Committee wishes to deal with Amendments Nos. 52, 53, and 54 in a group.
Amendment No. 52: Page 14, line 3, at end insert ("or sentence").
Amendment No. 53: Page 14, line 22, at end insert—
("( ) In every case which by virtue of subsections (1) to (4) above a court may make a defendant's cost order, the court shall make such an order unless it appears to the court that there are good reasons for not doing so.").
Amendment No. 54: Page 14, line 41, at end insert—
("( ) Where a defendant's cost order is made in favour of a legally assisted person, the court shall, on the application of that person and his solicitor, revoke the legal aid order whereupon the assisted person shall be deemed never to have been an assisted person and the solicitor and counsel shall have no right to payment of remuneration from the legal aid fund or by the Lord Chancellor pursuant to section 37 of the Legal Aid Act 1974.").
The subject matter of this has already been covered in relation to the previous group of amendments and therefore, in the light of the generous undertaking that was given by the noble and learned Lord the Lord Chancellor—I am sorry; the point applies only to Amendment No. 50. I see no reason why Amendment No. 50 should be moved. It covers almost exactly the same ground as that covered by Amendment No. 51, but does so far more carefully and in greater detail.
[Amendment No. 50 not moved.]
The Deputy Chairman of Committees: Amendments Nos. 51 and 52 not moved.
Lord Mishcon: I am so sorry if there is some confusion, but I want to say a word about Amendment No. 52, which is a separate point. I therefore beg to move Amendment No. 52.
[Printed above.]
I am most grateful. Again, I can put this point very shortly. It is very infrequently that legal aid is granted where you are appealing against sentence. It is thought only to be just that where there is an appeal against sentence and the appellate court finds that something went badly wrong in the sentencing that took place in the lower court, the court should have the right to say, "This appeal was perfectly properly brought before us. The lower court erred, and costs should therefore be awarded". That is the purpose of this amendment.
Lord Hutchinson of Lullington: May I also support this amendment and give an example of how this arises, very shortly? Suppose you have been convicted in a substantial case of fraud, with a number of other accused people. It may well be that your part of the case is quite small, but because of the involvement of others the case may take, say, five, six, seven or eight weeks to be tried. You are eventually convicted and sentenced to 10 years' imprisonment or to an enormous fine. The appeal at the Court of Appeal may, from the very circumstances, take a very substantial time because it will involve the court going through the facts of the case as proved to see whether or not what you are saying, which is, "I played a very small part and I never ought to have been sentenced in this way", is true. That may involve an appellant in a very substantial sum of money. If the outcome of it all is that the Court of Appeal says, "This person should never have been sentenced to imprisonment", or, "should never have been fined this very substantial sum of money", it will be an enormous penalty to have to pay for the costs of putting the case before the Court of Appeal.
The Lord Chancellor: The noble Lord, Lord Mishcon, was of course quite right. Although this raises issues which are very similar to those which we have recently discussed, the point is a slightly different one because the amendment would have the same effect in respect of the Court of Appeal as the previous amendment had in respect of the Crown Court.
However, as I understand it, there is a difference. Already the Court of Appeal, without the amendment, would have the power to order costs out of central funds in respect of the successful appeal against conviction. The amendment would add the power in respect of sentence, and there the considerations are, of course, very different indeed. You are dealing ex hypothesi, where there is a so-called successful appeal against sentence, with somebody who has been found guilty of an offence. If, in fact, there is a substantial question regarding sentencing policy involved in the appeal, then quite clearly the case is covered by legal aid, if legal aid is available. A very high proportion—I should think enormously more than 90 per cent.—of such cases are so covered. The question arises only in the case of a sentence imposed on a person who is outside the bounds of legal aid or who for some reason is not granted it—and I must say that I have not yet found any cases which fall into that second class—or a case where for some reason there is a contribution which may be at stake to make up part of the costs which would otherwise be incurred by the legal aid fund.
However, what I ought to suggest—and I say this really without having acquired sufficient authority to say it—is that, having regard to the similarity of the points involved (although this is quite obviously a separate point) I ought to take the matter back on the same type of undertaking as I took back the other amendment.
Lord Mishcon: May the light burn even brighter as a result of two amendments being subjected to the noble and learned Lord's further consideration. In the
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circumstances, I am delighted to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 53:
[Printed earlier: col. 56.]
The noble Lord said: The case for this amendment is to write into statute what at the moment is the basis of a practice direction in relation to the payment of costs out of central funds. I am afraid that I do not have with me my copy of Archbold on Criminal Pleading and, therefore, I am unable to quote in detail the practice direction which I think is of the order of 1977 or 1978. At any rate, it is a most sensible practice direction. In fact, I have been happily corrected by the noble Lord, Lord Hutchinson; it goes back to 1973. The years are flitting by rather quicker than one thought.
The practice direction is the very apotheosis of common sense in that it lays down the following guidelines. The first is that the costs should always be granted unless there is a good reason to the contrary. It then gives examples of such good reasons, being aware of course that the canons of possibility are never closed. It gives the example of the case where the defendant has been the architect of his own downfall—where, for example, stolen property has been discovered on his premises. It may well be that he has a good and an innocent answer but has chosen to say nothing and, therefore, if the goods are of fairly recent origin, he has made a prima facie case against himself. Alternatively, there may be the case of a defendant who has lied to the police when they are making their investigations instead of telling the truth. One can think of many such examples.
6.15 p.m.
If I remember correctly, the second broad category is where a defendant has been acquitted on some charges and convicted on others. He may have been convicted on the verdict of the jury or on a plea, where the prosecution had agreed not to proceed on such charges. It would be absurd in such situations for him to be given costs for those matters upon which he has had a technical acquittal.
All that the amendment seeks to do—and most certainly we would not seek to press the Committee to a Division on the matter—is to write this into statute in a most general way. We do not feel that it would in any way unduly restrict any court. It is, indeed, in far more general terms than the practice direction of 1973 and would be giving courts a guideline without in any way restricting their broad discretion in the matter. On that basis I commend the amendment to the Committee. I beg to move.
Lord Campbell of Alloway: Very briefly, as this matter is covered by a practice direction already and as far as I am aware—and I shall be corrected by my noble and learned friend if I am wrong—is working in this regard satisfactorily, is there any reason for the amendment? Does it really add anything to the situation?
The Lord Chancellor: I think that my noble friend Lord Campbell of Alloway has almost taken the words

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out of my mouth. As I understand it, the situation is that there are two current practice directions which would be affected by this amendment and each of them is to the same effect. The one concerning the higher courts was in 1981 and the other, reinforcing the same in regard to magistrates, contains similar guidance. The amendment proposes to write it into the statute.
There is no evidence, I think, that the practice directions have not been obeyed and there is no difference that I can discern between the effect of the practice directions and the amendment. The amendment gives the same wide discretion as the practice directions give and therefore adds nothing to existing practice. I would rather take the line of my noble friend Lord Campbell of Alloway, but I quite understand the way in which it is put and I am glad that we have had this short discussion.
Lord Denning: When the practice is accepted as being good, it is a mistake to put it into rigid words in a statute. Let the present practice stand.
Lord Elystan-Morgan: In the face of such overwhelming opinion from such distinguished quarters, there is nothing that I can do but wholeheartedly agree with it and, if not altogether in sackcloth and ashes, nevertheless say that in the circumstances we are perfectly prepared to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 54:
[Printed earlier: col. 56.]
The noble Lord said: Again, I think that I can put the point very briefly. The position is that, no doubt for reasons of administrative convenience, where someone is legally aided and he would be entitled to a defendant's cost order—that means that the order should be that his costs should be paid—those costs are not the burden of the central fund, but become the burden of the legal aid fund. Noble Lords may think that the noble and learned Lord, Lord Simon of Glaisdale, made a most helpful intervention when we were discussing another amendment by asking the question implicitly: "Please, is there any difference between the two? Are they not all coming out of the public funds? Is this merely a question of accountability?" or, as the noble and learned Lord the Lord Chancellor put it, "Is it merely a question of accounting discipline?"
There is a substantial point here. In this amendment we are saying that these costs should not be a burden upon the legal aid fund. I say that because there is a limit to what the public can conceive the legal aid fund ought to have by way of expenditure. Very often debates take place—some of them informed and some of them not informed—about the terrific cost of criminal legal aid. That is the aspect of legal aid with which we are dealing now. Surely it must be completely unjust that, when people are considering the figures charged to legal aid, they find that they are looking at figures which are not just or accurate as regards legal aid, because if a defendant's costs order
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falls upon the central fund, quite obviously it means that the legal aid fund will not be debited with those costs.
This has the added advantage that any contribution paid would be automatically repayable pursuant to Section 8(7) of the Legal Aid Act 1982, which means that very properly instead of being debited, the legal aid fund would be credited with the amount with which the central fund would be debited, because it had been found that the defendant was entitled to a defendant's costs order. I beg to move.
Lord Campbell of Alloway: I find some difficulty over this question of accounting discipline. It is extremely difficult for someone like myself with limited means of access to knowledge which one requires in order to debate, to say out of which fund, or even to discuss the merits out of which fund, money should come. I wonder whether, certainly to assist the uninformed like myself, my noble and learned friend the Lord Chancellor might conceivably be prepared to take this amendment on board for general consideration with the accounting disciplines as regards Amendments Nos. 47, 48 and 51, so that one could have a more general view of what is involved. Indeed, perhaps I may respectfully inquire whether such a course could conceivably commend itself to the noble Lord, Lord Mishcon.
The Lord Chancellor: I do not think that there is any question here of justice or injustice. I agree that there is a question of accountability in the sense in which the matter was raised a moment or two ago by my noble and learned friend Lord Simon of Glaisdale. But there is also a point of principle and a practical point. The point of principle is that legal aid is intended just as much for defendants who in the outcome are acquitted as for those who in the outcome are convicted. That is a point of principle of some importance and I think that this amendment runs counter to it, although I would be the first to agree that it is a question of from which Government pocket the money is to come.
Of course, under the practice directions, the court has ample power to order a refund at the conclusion of a case, and such an order is usually made unless the judge considers, among other things, that the defendant brought the prosecution on himself or that the other principles which we have been discussing apply. But it adds another wheel to the coach, and this is the practical point to which I wanted to advert.
The fact is that under the present system no further order is necessary in the ordinary case covered by legal aid whether the defendant is acquitted or convicted, because the sum of money is debited to the legal aid fund. But another step would be necessary if this is true, and where he was acquitted there would have to be a change of accountancy according to the result of the case. I believe that that must add minutely, but still perhaps significantly, to the total constraint on public funds because another step is involved.
Lord Simon of Glaisdale: So far as we discussed the earlier amendments, it seemed to me that it was purely a question of accountancy. The money had to come out of one or other pocket belonging to the taxpayer, and it did not seem to me to matter very much which

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pocket. However, the noble Lord, Lord Mishcon, made one point to which my noble and learned friend the Lord Chancellor did not advert but which may be crucial—namely, if the costs order is made in the way in which the noble Lord, Lord Mishcon, wishes, then the contribution that has to be made initially under the legal aid certificate is repaid to the accused. If that is right, it seems to me to be a substantial point of justice, pointing in favour of this amendment. I do not say that my noble and learned friend should accept it at the moment without further consideration; but if he is to consider it, perhaps he would bear in mind that point.
The Lord Chancellor: I shall bear that in mind but I ought to have pointed out (and perhaps I may be forgiven for doing so now) that, in addition to promising to bear it in mind, unfortunately I had two briefs on separate pieces of paper and I only delivered one. I must tell the Committee that, as drafted, the amendment appears to be technically defective. It does not deal with the situation where the defendant is in receipt of more than one legal aid order: for example, because he now has an order covering post-committal work which preceded a separate order for work in the magistrates' courts prior to committal, the amendment appears to act only on the existing order, and to remove any right of solicitor and counsel to payment under the Legal Aid Act in respect of the earlier work. The amendment appears to assume that every defendant's costs order is for the full amount of costs, whereas Clause 15 would allow the court to make partial orders. If the amendment were accepted, a defendant granted a partial order would lose all his legal aid but only recover from central funds the parts of his costs covered by the defendant's costs order.
I hope that everyone has understood that as well as I do. At any rate, I have at least delivered myself of my charge!
6.30 p.m.
Lord Mishcon: Woe betide counsel who receive two briefs upon precisely the same matter! We are making good progress and possibly the Committee would allow just one anecdote on a case of two briefs which I shall never forget professionally. One of the most persuasive advocates that the Bar ever had who subsequently graced the Woolsack was Sir William Jowett, as he then was. He had the habit, because of his brilliance, of reading a brief while the prosecution, if it was a criminal case, was summarising to the court the case for the prosecution—a somewhat worrying matter for the instructing solicitor. However, he recovered so brilliantly that one forgave him.
On one occasion I had the privilege of briefing him in what was a most important matter to my clients. There were two sets of defendants and I therefore procured from my colleague, with his full co-operation, a copy of the brief that he was delivering to his counsel, and I then delivered my own brief together with this copy brief to Sir Willian Jowett. Sir William Jowett was in the mood about which I have told your Lordships, which was that he intended to read my brief while the prosecution was in fact opening its case.
Prosecuting counsel thereupon got up and said that his learned friend, Sir William Jowett, was representing Defendant A. Immediately Sir William rose,
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having looked at the copy brief instead of the brief I had delivered to him and said, "I imagine this will not be the only occasion when I have to correct my learned friend. I am not appearing for this defendant at all, I am appearing for the other defendant". Of course my clients, who were sitting behind me, felt a little nervous at this stage, but I assure your Lordships that their nervousness was not necessary because, with his usual ability, he secured an acquittal.
That is my own story of two briefs being delivered. Having said, that, obviously I have to give consideration to what the noble and learned Lord has said on his second brief as to whether any amendment is necessary to seem a pro tantum, as it were, that there is a set-off, a compensation, or whatever it may be. If the noble and learned Lord will consider what has been said on this amendment, I too shall consider what he has said in regard to a possible alteration to this amendment, and we can both come back to it at Report stage. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15, as amended, agreed to.
Clause 16 [Prosecution costs]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 55:
Page 15, line 30, leave out from ("in") to end of line 31 and insert—
("favour of—

(a) a public authority; or

(b) a person acting—

(i) on behalf of a public authority; or

(ii) in his capacity as an official appointed by such an authority.")

The noble and learned Lord said: Under Clause 16 as drafted only private prosecutors will be able to seek orders that their costs be paid from public funds. Public authorities—the police, the central government departments, local authorities and other public bodies—will no longer be able to recover their costs from central funds. This amendment makes it clear that those public authority officials who can institute proceedings in their own right are in the same position as their employers and will also lose the ability to recover their costs from central funds. I think I can describe this as technical, but at any rate I have explained it and I beg to move.
On Question, amendment agreed to.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 56:
Page 16, line 17, leave out paragraph (c).
The noble and learned Lord said: The effect of paragraph (c) of Clause 16(6) is to exclude such bodies as local authorities from awards of costs out of central funds. The fear that has been expressed to us is that this may very well inhibit local authorities from bringing important prosecutions which only they can bring and which often indeed it is their duty to bring.
It is already the case that many local authorities are proving reluctant to prosecute in important matters like the Protection from Eviction Act 1977, which has been so important for the protection of tenants, and numerous public health Acts, trading standards, consumer protection, and planning legislation all

63
raising important matters of public policy and the requirement of intervention to protect the ordinary citizen.
If at a time when local government spending is being restricted there is no prospect of an award of costs out of central funds when such a prosecution is brought, there may well be pressure within local authorities to restrict prosecutions still further. That, we feel, would be contrary to the public interest. This apparently insignificant amendment therefore has important public and indeed private citizen implications. I beg to move.
The Lord Chancellor: I am happy to go some way to help the noble and learned Lord. Ministers are of course concerned to avoid significant additional burdens on local authorities, and it is recognised that the removal of provision of awards from central funds might result in some local authorities bearing a greater proportion of such expenditure than at present. But we are concerned to avoid such additional burdens.
The money at stake is relatively small even for a Government Minister; namely, something of the order of £1 million, and it is minute if set against local authority expenditure as a whole. However, now I am in my bountiful mood and I am pleased to say that we shall be making a transfer in 1986–87 and in future years to allow account to be taken in local authority current expenditure provision and in setting aggregate Exchequer grant and extra cost to local authorities.
I would ask the Committee to welcome this without accepting the words of the amendment, because we attach considerable importance to the principle that where one of the statutory duties is imposed on local and public authorities to enforce legislation in certain areas—particularly consumer protection, for example, and consumer safety—the principle should apply that the costs of public prosecution brought by a public authority should be borne by the public authority bringing the prosecution. I hope therefore that we have met the substance of the amendment by the promise that I have made, and I hope that it will not prove necessary to press the amendment.
Lord Elwyn-Jones: It is a great pleasure to see and hear the noble and learned Lord the Lord Chancellor in a bounteous mood. I am reminded of the practice of a certain Scottish Minister who had two graces before dinner. If the meal was modest he would say, "We thank Thee, Lord, for this, the least of all thy mercies". But if it was a good slap-up meal it would begin, "Oh, bountiful Jehovah". This time I think we are in the presence. It is a surprising role in view of earlier "meanie" observations about expenditure to find the noble and learned Lord in a bounteous role. We accept it with pleasure, and await the good things to come.
Amendment, by leave, withdrawn.
Clause 16, as amended, agreed to.
Clause 17 [Defence costs]:
Lord Mishcon Lord Mishcon moved Amendment No. 57:
Page 16, line 35, leave out from ("make") to end of line 37 and insert ("an order as to costs to be paid by the prosecutor to the accused of such amount as the court considers reasonably sufficient
64
to compensate the accused for any expenses properly incurred by him in the proceedings.").
The noble Lord said: With the Committee's permission, I propose to speak to Amendment No. 58 as well.
Page 16, line 39, at end insert ("if agreed between the parties and in any other case shall be determined in accordance with regulations made by the Lord Chancellor for the purposes of this section.").
The Committee will remember that we were dealing with the question of magistrates' courts, summary cases and the power of magistrates to award costs against the prosecutor. I shall not revert to the argument which took place as to whether that was the sole remedy which ought to be available. I am on a very different point.
Where a magistrates' court makes this order, under the wording of the present clause it will be noted that the court
"may make such order as to the costs to be paid by the prosecutor to the accused as it considers just and reasonable".
It is difficult enough for magistrates to award costs against a prosecutor; but I assure the Committee that where such an order is made and they are to be limited (and these words appear in the statute) to those which in the circumstances are "just and reasonable", and the court there and then has to fix them, it can be taken for granted that they certainly will not cover the full costs, and the bill of the defendant will not even be looked at. It is in those circumstances that the amendment is suggested by way of insertion of the words:
"an order as to costs to be paid by the prosecutor to the accused of such amount as the court considers reasonably sufficient to compensate the accused for any expenses properly incurred by him in the proceedings".
I beg to move.
Lord Campbell of Alloway: In principle I support this amendment because in practice it is time that the principle was altered. I agree that there is quite a different approach when a recorder has to consider making an order which is "just and reasonable". He does not look at any bills, address his mind to compensation or address his mind to expenses. Having heard the noble Lord, Lord Mishcon, I believe a recorder ought to do so. I would never have thought of this, unless it had been tabled as an amendment, because one becomes engrained in the practice that one has. With the greatest respect to the Committee, I think that this is a proper approach and warrants consideration.
Lord Hutchinson of Lullington: I too, should like to support the amendment, which uses the same words as are to be found in Clause 15(6). One cannot quite understand why, if those words are suitable there, they should not be suitable here. I am sure all practitioners would agree that if one had the words now in the clause, "just and reasonable", it is almost impossible to argue one way or the other as to what is "just and reasonable" if it is not in some way related to the expenses which have been incurred on the case. Surely this would be a much better approach. One thinks so often in court that the purpose of the power is to compensate the person acquitted for the money he has had to spend.

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Having said that, I should also like to ask under both these proposals—but particularly under Clause 17(3), where it would appear that there is no provision for any form of taxation in this calculation—how the justices in any form of complicated case could come to a just decision on the amount. Surely the amount ought to be settled by the proper officer of the court later, taking account of the bills and so on presented to him.
Incidentally, it appears that although the court may award costs against a prosecutor in the magistrates' court, curiously enough there does not seem to be any power under the Bill to award costs against the private prosecutor when the accused is charged with an indictable offence. Although private prosecutions seem to be encouraged in this Bill, surely the Government do not want to encourage them to the extent that, if they fail, no costs can be given against the prosecutor.
6.45 p.m.
The Lord Chancellor: The last point made by the noble Lord, Lord Hutchinson of Lullington, had escaped my notice and does not directly arise from this amendment. I will therefore take it on board and write a letter to him which will give the right answer instead of giving him the wrong answer that I should undoubtedly give if I attempted to give it now.
As regards the case itself, at the moment we have a system which is quick, cheap to administer and certain. That represents the life of the summary jurisdiction courts. It is not the kind of complicated procedure which we adopt in dealing with elaborate cases in the county or civil courts, in the High Court or on indictment in the criminal courts.
As drafted, the present words in the Bill on page 16, line 35, are:
"such … costs … as it considers just and reasonable".
Obviously, the ideal solution is that the costs would be agreed between the parties. However, if they cannot be agreed there must be a determination of some sort. In theory it is desirable in a perfect world that where a party has incurred costs and the other party is to pay, the party to be reimbursed should be recompensed exactly for his expenses—no more and no less. But there would be a cost in such precision which would have to be borne by somebody. There would be a cost to the defendant, who would have to justify his claim for costs in greater detail. That covers the case which the noble Lord, Lord Hutchinson of Lullington, made in the first of his two points—that which I did not promise to take away with me.
There would also be delay. I think it is neither necessary nor perhaps desirable to have the full rigmarole in these summary cases of an exact determination. In making its costs order under the existing practice, the court has to hear the views of both the defence and the prosecution, and under the Bill as drafted the court would continue to do so. Then the court would arrive at an amount which would be determined, and therefore undoubtedly to that extent would be arbitrary. I accept that, as those who practise in the magistrates' courts have known in the past. But it would be a just and reasonable determination. I submit to the Committee that this system, which is
66
quick, cheap to administer and certain, is probably in more cases than not in the interests of the parties. The question is whether one wants a razor to cut butter or (I hesitate to use the other familiar cliché) a steamhammer to break a nut.
Lord Mishcon: The argument of the noble and learned Lord, which I obviously treat respectfully, is that this is a quick, summary procedure. But I believe that we are anxious to have summary justice, not summary injustice. The practice of the courts—and I do not see that practice altering merely through the wording of this Bill—is not to listen to any argument as to why a certain sum should be awarded or why it should not be. An application is made for costs; there is an adjournment of the magistrates behind closed doors, with the clerk possibly assisting them from an administrative point of view, and possibly more helpfully even than that; and then the magistrates come out and say, "We have decided to award the sum of £20". There is no appeal against that; and there has been no proper inspection of the costs that are involved or of the items involved.
This just is not right; and merely to say, as the noble and learned Lord said most courteously, "This is a rough and ready way"—I am paraphrasing him; he did not use these words—"but it is quick and, therefore, an expeditious way of dealing with the matter", just is not good enough. This is not the sort of point on which one feels that it is necessary to divide the Committee. With the noble and learned Lord in such a reasonable mood as he is this evening, I am anxious to take advantage of it, and I wonder whether he would not consider this matter again, which would enable us possibly to come to some formula which is rather better than the one in the Bill. I hope he would agree that the formula I have suggested is the only reasonable alternative, but I would hate to press it if he could give an indication that he is prepared to look at it again.
The Lord Chancellor: I do not want to allow the candle of hope to burn very much in this case. Curiously enough, it has been a very long time since I appeared in a magistrates' court myself (in any capacity, may I add; I hope it may be a long time before I appear as a defendant). I rather question from my own recollection whether the noble Lord, Lord Mishcon, is being quite fair to magistrates in these cases. My recollection—it goes back many, many years, and, therefore, people may have become more slapdash in the interval—is that if I had won a case and said that I asked for costs, they would ask, "How much do you want, Mr. Hogg?" I would say, in those days, a fairly modest sum, because there was no inflation then. I would say, "We have had to call three witnesses; there has been a conference; there are counsel's fees and solicitors' instructions: I think I ought to ask for £25 or £35", or whatever it was. They would always knock something off, but I always realised that before I mentioned my sum; and on the whole I think that fairly good justice was done. It may have been rough, but I think it was probably cheaper to the parties over a period of time, or at any rate to the parties viewed as a class, than having taxation in these cases. I will not refuse to reflect about it, but I do not want to light this candle, which I lit on a previous occasion.
Lord Denning: May I say that my recollection goes back even further than that of the noble and learned Lord the Lord Chancellor. In my day the magistrates did just that. They would ask, "How much do you put your costs at?"; they would go and consider it; and then after a little while they would come back with quite a reasonable sum. They did it quite well then, and I hope that the practice will still continue.
Lord Campbell of Alloway: May I make this very short point? When I was addressing your Lordships I was in no way considering the question of taxation, or the desirability of it. I, for one, would never support the elaborate affair of taxation in circumstances such as these. I was concerned only with the principle of approach which was advocated by the amendment, which is new, which is different from the existing system and which, for the reasons given, seems to me to be a much better one.
Lord Mishcon: I am most grateful to the noble Lord, Lord Campbell. He has said what I was going to say, but has said it very much better. I am sorry that the noble and learned Lord the Lord Chancellor could not even allow a little flicker of flame to cheer me at this moment. I feel in the circumstances that this is a matter of principle, and I therefore ask for the opinion of the Committee to be taken.
6.54 p.m.
On Question, Whether the said Amendment (No. 57) shall be agreed to?
Their Lordships divided: Contents, 56; Not-Contents, 82.

DIVISION NO. 2

CONTENTS

Airedale, L.

Jeger, B.

Ardwick, L.

John-Mackie, L.

Attlee, E.

Kilbracken, L.

Beaumont of Whitley, L.

Kilmarnock, L.

Beswick, L.

Kinloss, Ly.

Birk, B.

Kirkhill, L.

Bottomley, L.

Lawrence, L.

Brockway, L.

Llewelyn-Davies of Hastoe, B.

Brooks of Tremorfa, L.

Lockwood, B.

Bruce of Donington, L.

Mackie of Benshie, L.

Carmichael of Kelvingrove, L.

McNair, L.

Cledwyn of Penrhos, L.

Mishcon, L.

Collison, L.

Munster, E.

David, B.

Nathan, L.

Dean of Beswick, L.

Nicol, B.

Denington, B.

Oram, L.

Diamond, L.

Pitt of Hampstead, L.

Donaldson of Kingsbridge, L.

Ponsonby of Shulbrede, L. [Teller.]

Elwyn-Jones, L.

Elystan-Morgan, L.

Rea, L.

Falkender, B.

Somers, L.

Gallacher, L.

Stewart of Fulham, L.

Galpern, L.

Stoddart of Swindon, L. [Teller.]

Gregson, L.

Grey, E.

Taylor of Gryfe, L.

Hampton, L.

Tordoff, L.

Houghton of Sowerby, L.

Underhill, L.

Hutchinson of Lullington, L.

Whaddon, L.

Jacques, L.

White, B.

NOT-CONTENTS

Airey of Abingdon, B.

Belhaven and Stenton, L.

Alexander of Tunis, E.

Bellwin, L.

Avon, E.

Beloff, L.

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Belstead, L.

Margadale, L.

Bessborough, E.

Marley, L.

Blake, L.

Maude of Stratford-upon-Avon, L.

Boyd-Carpenter, L.

Brabazon of Tara, L.

Merrivale, L.

Brougham and Vaux, L.

Monk Bretton, L.

Bruce-Gardyne, L.

Monson, L.

Carnegy of Lour, B.

Montgomery of Alamein, V

Cathcart, E.

Morris, L.

Coleraine, L.

Mottistone, L.

Colwyn, L.

Mountevans, L.

Constantine of Stanmore, L.

Mowbray and Stourton, L.

Cornwallis, L.

Murton of Lindisfarne, L.

Croft, L.

Newall, L.

Denham, L. [Teller.]

Norfolk, D.

Denning, L.

Orkney, E.

Drumalbyn, L.

Pender, L.

Elles, B.

Polwarth, L.

Elton, L.

Portland, D.

Faithfull, B.

Reay, L.

Fortescue, E.

Renton, L.

Glanusk, L.

Renwick, L.

Glenarthur, L.

Rodney, L.

Greenway, L.

Saltoun, Ly.

Grimston of Westbury, L.

Sharpies, B.

Hailsham of Saint Marylebone, L.

Simon of Glaisdale, L.

Skelmersdale, L.

Halsbury, E.

Stanley of Alderley, L.

Harmar-Nicholls, L.

Sudeley, L.

Hood, V.

Suffield, L.

Hylton-Foster, B.

Swansea, L.

Inglewood, L.

Swinfen, L.

Ingrow, L.

Swinton, E. [Teller.]

Lindsey and Abingdon, E.

Tranmire, L.

Long, V.

Trefgarne, L.

Lucas of Chilworth, L.

Trumpington, B.

Lyell, L.

Vaux of Harrowden, L.

McAlpine of Moffat, L.

Windlesham, L.

Macleod of Borve, L.

Young of Graffham, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.2 p.m.
[Amendment No. 58 not moved.]
The Deputy Chairman of Committees: The Question is that Clause 17 stand part. As many as are of that opinion will say Content—
Lord Simon of Glaisdale: May I—
Lord Denham: I wonder whether the noble and learned Lord, Lord Simon, will help me. If he has a long point to raise on this point perhaps it would be better to take it after the adjournment; but if it is a short one we could take it now.
Lord Simon of Glaisdale: My question is very short. It depends on my noble and learned friend's answer whether it takes time. Perhaps we should take the matter after the adjournment.
Lord Denham: In moving that the House do now resume, I should tell your Lordships for your convenience that we will not resume this Committee stage before eight o'clock. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Regional Development Grant (Prescribed Percentage, Amount and Limit) Order 1984
7.4 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth)The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth) rose to move, That the order laid before the House on 28th November 1984 be approved. [7th Report from the Joint Committee.]
The noble Lord said: My Lords, your Lordships will recall that I explained the key features of the Government's new regional industrial policy on 28th November, when I repeated the Statement on the subject made in another place by my honourable friend the Minister of State for Industry. I should now like to explain in more detail the Prescribed Percentage, Amount and Limit Order.
The House will be aware that Section 5 of the Co-operative Development Agency and Industrial Development Act provided that on the first occasion only that the rate of capital grant, the amount of job grant and the limit on capital grant are set by order, the order comes into force without needing an affirmative resolution before it is made, but will lapse after 40 days unless it is approved by affirmative resolution. The reason for this was to ensure that all the orders relating to the new regional development grant scheme came into force on the same day and with effect from the announcement. The result of this is that the order before us this evening came into force on 29th November, but it will lapse after tomorrow unless this House signifies its approval of it.
I explained in our earlier debates on the Co-operative Development Agency and Industrial Development Act the Government's reasons for changing the regional development grant scheme in the way embodied in that Act. In order for the scheme to work, certain key features have to be set by statutory instrument. The percentage rate of capital grant is set by this order at 15 per cent. This is the same rate as in the case of development areas under the old RDG scheme. As the assisted areas order no longer provides for there to be a separate category of special development area, there is no special rate of regional development grant for such areas as there was in the past.
In arriving at the rate of capital grant for the regional development grant scheme, which we intend to continue to be as automatic and predictable as possible, we needed to avoid on the one hand setting too high a rate of grant—which of course would benefit those who would undertake the investment in any case—and, on the other hand, setting a, rate of grant which is too low, so that it is in general not to be taken into account by companies at an early stage of investment decisions.
We also announced in the White Paper which was published in December 1983 that we would make provision for a limit to be set on capital grant under the new scheme, and that the limit would be calculated by reference to net new jobs created. Article 5 of the order sets that limit at £10,000.
In arriving at the figure of £ 10,000, the Government considered that too high a figure would involve wasteful expenditure. On the other hand, a lower
70
figure would adversely affect the predictability of regional development grant and so undermine its effectiveness. We consider that a grant per job limit of £10,000 would not in practice have the effect of restricting grant in the case of the majority of projects of large undertakings which create jobs, since it will bite only on projects where the investment is more than £65,000 for each job created; that is, above average capital intensity for projects which create jobs. Many projects will therefore not be affected by the limit, but where it does bite it will have the effect of reducing what in our view has been excessive expenditure.
We said in the White Paper of December 1983 that the limit would not normally be applied to small firms. The order has the effect that a small firm project involving capital expenditure of £500,000 or less is not affected at all by the limit. For expenditure in excess of £500,000, the limit will apply; but I stress that this will be only on expenditure above that level. In all cases, small firms spending more than £500,000 on a project will receive as a minimum 15 per cent. of the first £500,000. This provision will, we expect, completely exempt over 90 per cent. of small firms projects from the grant per job limit.
Article 5 of the order also states that the limit on capital grant in the case of a project of a large undertaking which does not provide jobs is £500. The reason for this is that without some such limit we would be required to pay at a 15 per cent. rate on projects which did not create jobs. The policy will not normally be to approve projects of large undertakings where they are not expected to involve net job creation, but if such a case were approved, then we think that only a small amount of grant would be appropriate, since no jobs are being created. We consider that £500 is a reasonable figure for any such case.
One of the features of the new regional development grant scheme is that grant is calulated by reference both to eligible capital expenditure (subject to the limit, if applicable), and also to the number of net new jobs created, and grant is paid on whichever basis is the more favourable to the applicant. The House will recall that we have introduced the concept of a job grant to reduce the bias against labour intensive projects inherent in the previous scheme. The order sets the job grant at £3,000. The European Commission communication on regional aid states that in the case of development areas in Great Britain the maximum amount of grant denominated by reference to new jobs created is 5,000 European units of account per job, which was about £3,150 when last notified by the Commission. The last rate was notified by the Commission in January 1984.
A materially higher figure for a grant based on new jobs created would involve therefore a breach of our obligation to the European Community. The grant level could not be set at the EC ceiling because currency fluctuations of course affect the relationship between EUAs and sterling. It was therefore necessary to allow some head room.
It is the Government's view that the rates of capital and job grant, together with the limit specified in the order, provide a sufficient incentive for both capital and labour intensive projects and go some way to

71
ending the bias in favour of capital. The scheme retains a high degree of predictability, and of course regional development grant will continue to be automatically payable. At the same time we believe we have curbed the worst excesses of previous policies which led to large sums being paid where there was little justification for so doing. The end result is, we believe, a scheme which will be cost-effective in achieving its policy intentions, thereby freeing resources which can be used for the benefit of the country as a whole. I commend the order to the House.
Moved, That the order laid before the House on 28th November 1984 be approved. [7th Report from the Joint Committee.]—(Lord Lucas of Chilworth.)
Lord Bruce of Donington: My Lords, the House will be grateful to the noble Lord for having given a brief statement of the working and implications of this particular order which, as he correctly pointed out, illuminates the relevant portions of the Act of 1982, as amended by the Act of 1984, which we recently discussed. Now that we have had further information, and now that we have had in front of us the maps and the various intentions of the Government, it also affords us the opportunity to review the implications of the whole scheme.
Before I proceed to the implications from our standpoint on this side of the House, I should like to ask the noble Lord a question, which he need not answer just now but which I would hope in his reply he will be able to answer authoritatively. In the course of his remarks the noble Lord said that the advantage of the scheme as now proposed was the high degree of predictability. I am not quite sure whether that was predictability in the minds of those who made application for the grant, or predictability from the Government's standpoint. I would hope that before a scheme of this kind was put together, before a radical departure, which this purports to be, from the previous scheme of regional development grants, the implications would have been studied very carefully and calculations would have been made.
The noble Lord has produced his ideas (expressed in two alternatives) about the relationship of the grants to jobs actually created. We know quite well from the speech of his right honourable friend Mr. Tebbit in another place only two or three days ago that the financial limits are fixed somewhere around £600 million, and in 1985–86 they are hoped not to exceed £500 million on regional development.
The question I have to ask the noble Lord is this. On the basis of the scheme laid before the House and on the basis of the financial limits that the Government have already set themselves, how many jobs do they predict are going to be created? How many? The estimates quite clearly will vary. There will be between two and perhaps several assumptions on the basis that some grants are determined by reference to the £3,000 per job created, and others on the basis of the £10,000 to which the noble Lord referred. But the Government must have had some idea in their mind as to how jobs would be created in the United Kingdom if the scheme were followed.
The noble Lord will hardly need reminding that since his Government came to office unemployment
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in the United Kingdom has increased by 2 million, and that that is even after doctoring the figures at one stage by removing people from the register. Under the Government's scheme on regional development expenditure in the year 1980–81 was £716 million. The figures differ slightly (but only marginally) according to which document one reads—the document published by the Department of Trade and Industry or the document published by the Department of Employment. But the differences are marginal. If inflation were to be taken into account, it would need nearly £1,000 million spent during the next year, on the basis of the expenditure of 1980–81, to stand still. Yet by 1985–86, under this scheme, in real terms the Government propose to expend a half of that amount. So, expressed in cash expenditure in real terms, we are halving the amount while at the same time unemployment has doubled during that period.
The noble Lord is of course on a point when he says that the way we are doing it now is a much better way of doing it; that we intend to make economies; and that we do not believe that the old scheme was a good scheme in that money was paid where no jobs were created. It was stated in the debate in another place that multinationals may have taken advantage of the large capital grants available without the employment effects being discernible. I do not concede that that is necessarily the case, because it is very difficult to determine what employment is created.
There are always the secondary effects. For example, one can have a very large company settling in a special development area and, without employing many more people, receiving subventions on quite a large scale. But its output may have increased considerably. Its demands on subordinate sections of industry may have increased considerably. Its effect on the environment in which it was established may have improved considerably. And even though employment directly within the firm may not have increased by anything like the amount anticipated in the application originally submitted by the company, the effects on the immediate area may have been very considerable and the multiplier effect in terms of subcontractors in the same locality or generally may have been beneficial. It is not always safe to say that, by relating the extra employment directly to the grantee itself, one is of necessity doing the right thing. That is far from proven.
After all, before the publication of the White Paper in December 1983, this zippy, efficient, enthusiastic and enterprising Government had been in office for four years. Is it to be assumed that throughout those four years the Government tolerated such inefficiency in expenditure on the regional front? That may well be so. If the noble Lord is prepred to say, "Mea culpa, mea culpa. We were all wrong and four years later we found that out", then I am prepared to accept that. But, frankly, I do not believe that that is the case.
I believe that the reason why the scheme has been oriented in the way it has—specifically linking the expenditure to actual job creation—is so that the amount thus spent can be restricted by the EEC. Thus, when the Government are reproached for being too niggardly and too mean, they can immediately shelter behind the EEC requirements and say, "Now that we have decided to make the whole regional development

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scheme specifically job-related, there is nothing more we can do about. It is really not our fault". I do not think that will wash.
I hope that the figures which the noble Lord will provide about the extra jobs created as a result of this new scheme can be compared with what has happened in the year ending 31st March 1984 under the administration of the Government. Indeed, the Department of Trade and Industry has been kind enough to publish the Industrial Development Act report to 31st March 1984. At Appendix 7, I find that the new jobs created in Great Britain, and anticipated on the basis of the offers and payments made up until that time, numbered some 36,888. This is very good indeed, but one must remember that unemployment is steadily rising now.
The new jobs created number 36,888 and correspond, strangely enough, with the decrease in unemployment during that short period—a figure of 36,800. So, oddly enough, if one looks at this matter in its arithmetical totality, one could say that the jobs created through the regional development fund in the year to March 1984 were responsible for the decrease in unemployment. Perhaps the mathematical part is, as it most certainly is, entirely fortuitous But what does it indicate? It indicates that with all the expenditure of money in the year ending 31st March 1984, we were still marking time. We were not really reducing the total volume of unemployment at all.
The Government have in this scheme not only fixed these particular rates (and I believe that my reasoning is right when I say that they like to be under the shelter of the EEC regulations which say that they cannot do any more) but they also in their White Paper and in debates on the Act itself indicated that they were going to be fairer to the service industries. In other words, they were going to shift the emphasis away from manufacturing industry and on to the service industries. I believe that this is a complete disaster. The service industries have shown themselves so far to be very well able to look after themselves and to function very much better if manufacturing industry begins to recover.
On previous occasions I have told your Lordships—but this does not seem to have sunk in with the Government—that one of the reasons why the industrial products of the United Kingdom are not so competitive as they ought to be is because of our massive under-investment in manufacturing industry ever since the year 1950. I have frequently given figures which have not been challenged by the Government's Front Bench. I should have thought that, after going over them three or four times, the penny might have dropped and a stage been reached where the Government might have challenged me. But in general, since the war, we have invested (expressed as a percentage of the gross national product) to a level of 60 per cent. lower than in Japan; 40 per cent. lower than in Germany; and 30 per cent. lower than in France.
Fortunately, the figures can now be verified and do not rely on my say-so, which the Government can challenge. The OECD working report No. 17, published only 10 days ago, reveals the latest per capita figures. It expresses them in dollars after all
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adjustments for exchange rates, and after all other adjustments needed to make the figures comparable—as the noble Lord will see. The latest figures show that, in respect of machines and equipment we are investing per capita at a rate 47 per cent. below the level in Japan; 23 per cent. below that in France; 30 per cent. below that in Germany; and 47 per cent. below the figure operating in the United States.
In those circumstances, there can be no excuse for the Government not to take a more active part in securing investment in manufacturing industry in the United Kingdom—no excuse whatever. The party opposite have claimed for a long time that, left to private enterprise, private enterprise would do the trick. The former Prime Minister, Mr. Heath, found that, on the contrary, no matter what inducements to capital were offered, it still would not invest because the labour rates in the United Kingdom compared with those in Germany and elsewhere were very much lower and it therefore paid to employ British labour at lower wage rates than to go for capital investment.
There is nothing in the existing proposals. They do not go as far as inviting state investment in manufacturing industry even though that was envisaged in the coalition White Paper which, we are given to understand, is securely held in the Prime Minister's handbag wherever she goes. That most certainly envisaged it. We are not asking to go as far as that, because that would be anathema to the party opposite, particularly on top of its U-turn last week over the exchange rate; we know it could not stomach it.
There can be no excuse for not devoting at least double the amount of expenditure that is projected to regional development aid because during the years the noble Lord's party has been in office there have arisen new distressed areas. The West Midlands was not a distressed area when the noble Lord's party came into office. It is now. The fate of the distressed areas, particularly in the manufacturing areas, has progressively worsened and the areas have even doubled since the noble Lord's party came into office. Therefore, we are entitled to ask that, at the minimum, the expenditure should be increased.
The Government have placed a further restriction on expenditure on regional development, in the same way as they did shortly after they came into office in June 1979, when they had a moratorium on regional development grant payments for four months; and that continued way into 1982. I observe Mr. Tebbit's latest announcement, made in another place on 17th January, that the Government are to have another moratorium. Mr. Tebbit was kind enough to explain that the regions will not lose the money. No, it means that payment will be postponed. The impertinence of laying proposals of this kind, and in the original Act, before both Houses is so great as to be almost feasible. How a Government dare make proposals of this kind with unemployment at its present level, passeth all imagination.
It is not as though the moneys available in the economic sense are not there. It would have been quite easy, for example, to have devoted at any rate part of the amount realised by the sale of public assets to this

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purpose in the year that has just passed. About £2,000 million has been raised by the sale of public assets, mostly at prices considerably below their value, as we well know. According to Mr. Tebbit's recent announcement, the Government expect to raise a further £2,000 million to £2,500 million in the forthcoming financial year. The Government are busy flogging off the nation's assets. Why cannot they have the decency, not to say the honour, instead of treating that cash capital realisation as income in their hands—no doubt shortly to be devoted to the relief of the richer sections of the community—to devote at least £500 million of that money to extra assistance to investment in manufacturing industry, particularly in the regions?
Here we have the contrast. On the one hand, the Government in their general economic policy outlook—for example, in the field of energy—throw up their hands and dig in their heels (with guts, no doubt, as the Prime Minister would put it) about the closure of uneconomic pits. But they do not do that when they come to the closing of uneconomic banks such as Johnson Matthey. They pump £100 million into that bank with the greatest alacrity. There is, apparently, a difference in the Government's moral approach towards the desirability of saving an uneconomic bank and saving whole communities on the basis of their concept of what is an uneconomic pit.
I do not for one moment expect that the Government will change their mind; but in the meantime they ought to be aware of the current trend and measure the figures that the noble Lord will, I trust, be able to give me in his reply as to the expected jobs—genuine jobs, I hope, from the noble Lord's standpoint, and I have his definition before me of what constitutes a genuine job—that will be created in the next year as a result of the application of those policies. Broad estimates will do. The officials' box can undoubtedly supply the noble Lord with broad parameters of the expectations that we should anticipate with so much relish.
In the meantime, as the noble Lord will note from The Times of 11th January, 5,750 jobs were lost in three days. He will be noting, I take it, from the Financial Times of 11th January that the number of fourth quarter business failures is the highest since 1966. Again, he will note from The Times of 19th January that so generous are the Government towards small firms that they are going to cut ECGD cover. Then, perhaps—concerning another place and not this House—he will note The Times report of 18th January about jobless trends still rising in Tory seats; thus again sending those same ominous shudders that have been evident in another place through the Benches of restive Tory MPs who are now beginning to worry about their political skins.
The Government are, of course, in trouble about this because they delude themselves. The Government do not believe that there is a recession. For the past four years we have been hearing about nothing but the recession as though it was some god-sent hurricane on the face of the earth, and that the recession has certainly been there; indeed, that the state of United States and world trade has been based upon this recession. Therefore, imagine what we are to think
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about Her Majesty's Government when, on 17th January 1985, according to a report in the Financial Times, the noble Lord, Lord Young, Minister Without Portfolio, announced to a seminar in London that it was a myth to suggest that Britain was still in recession. A statement of that kind is of the degree of stupidity with which I debited the noble and learned Lord the Lord Chancellor when he made the equally ridiculous and silly statement that there was no gap between rich and poor in this country.
The whole structure of this order, based as it is upon the Act itself, shows that the Government do not learn; but, more than that, in terms of the people of the country as a whole, particularly those in the distressed areas, it shows that the Government do not care.
7.40 p.m.
Lord Taylor of Gryfe: My Lords, the conventions of the House provide that on these occasions we cannot or do not vote against the order. However, the terms of the order are such that I am sorely tempted to defy the conventions, but I will not do so. As the Minister said, we have been over this ground before and the statement which was made tonight is consistent with the original statement and the justification. To that extent we are not going to vote against the order but we are permitted to express our regret and deplore the content of this statement.
In my view, in a sense we are attending the last rites of an effective regional policy. It is appropriate to that occasion that we express our sincere regrets in a mood of great sadness. I am sorry that the television lights are not here tonight. I can think of no other experience that would create more enthusiasm for the Scottish nationalists than the content of this paper and the discussion that we are going to have.
I notice that the noble Lord, Lord Polwarth, is in his place. I hope that he will be tempted to contribute in the light of his experience as a financier and industrialist concerned with the welfare of our native country. Even before the full implications of this order are felt, if one turns to the annual report of the Industrial Development Board for last year, one sees that the total amount of regional aid spent by the Government in this country has been cut by one third—before this order.
Regional aid to Scotland was cut by 50 per cent. last year. I am not making a specific case for Scotland. I am using Scotland because it is within my experience and because it is typical of what will happen in other areas. Scotland will suffer even more under the new provisions. If one looks at the map, the total amount of money to be spent on regional aid will be more widely spread. The order provides that more than £300 million will be taken out of regional aid in this year, and the total amount to be spent will be spread over a much larger area. It means that the effect of regional aid will be substantially diminished in areas of great need, and that is happening in a period of high unemployment.
There is an assumption that the old system has not worked and therefore it must be replaced. May I say that in the light of my personal experience that is not justified? We are carrying a cross in regional aid for Sullom Voe. I agree that Sullom Voe was the

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development of a large oil port—the biggest in Europe—and the companies that developed it collected their appropriate grant which at that time was 22 per cent. in a special development area. It is now reduced to 15 per cent. Because we had that anomaly of building an oil terminal at Sullom Voe, that is no justification for revising the whole structure of regional aid.
Is regional aid working? I can speak only from my experience. When the last Conservative Government were in operation I was invited by them to assist in the development of inward investment as a non-paid consultant. The present Secretary of State for Scotland and I travelled the highways and byways of Europe, talking to companies, influencing boards and arranging lunches and presentations in which we demonstrated to them that if they invested in our part of the world the incentives were at least as attractive as those in Southern Ireland or many other parts of the world. As a result, we had a substantial flow of inward investment, and it is working and changing the face of our economy.
The old industries are dying and we must get the new industries in, but I am not sure that we shall attract them on the basis of this reduced package. Say what one likes, the boys—the finance directors and the board-room—make their calculations of what assistance they will get for inward investment. If we direct regional policy specifically at labour-intensive industries, I am not sure that we shall attract the high technology industries which are not necessarily labour-intensive but on which the growth of our GNP depends. The success of this country depends on producing more wealth. But if we simply insist that high technology industries can be discouraged under this scheme, the necessary change in the face of Scotland and of other areas where we have declining traditional industries will not be generated.
Like the noble Lord, Lord Bruce of Donington, I find it difficult to measure the magic figure of the amount of money per job created. On my doorstep is a very large factory being built by Hoffman Laroche, the Swiss chemical company. It is a very big investment and would not come within these terms. I know because I was lobbying on that investment to get it to Scotland, and it was touch and go at the last moment. However, we got it. What has happened? McAlpine—and I am sorry that the noble Lord, Lord McAlpine, is not here—is building that vast industrial complex, and as a contractor is creating jobs. There is 30 per cent. unemployment in the area. That in turn is changing. Local shopkeepers and other local suppliers are all part of the revived industrial complex. But the specific project would not necessarily have qualified under the provisions of this legislation.
I suggest to the Minister that he should keep an eye on the impact of this. I seriously believe that it is sad for our country that we are departing from what has been a successful scheme of regional aid in a period when we require investment and we require to do something about massive unemployment. The Prime Minister in fact said during her last election campaign:
"We are committed to the maintenance of a strong and effective regional policy".
I suggest that the statement tonight is not consistent with that expression of view.
Lord Polwarth: My Lords, since we have exhausted more than three-quarters of the customary dinner hour reserved for this kind of business, I have no intention of following the noble Lord, Lord Bruce of Donington, in such a wide-ranging review of the economy, which, with the greatest respect to him, I think he rather wasted on the small handful of us here in the House today. I suggest that he might have done better to reserve it for the bright lights of next Wednesday; although, for all I know, he may be going to give us an equal performance on that occasion.
I shall speak very briefly, having been concerned for a number of years in regional development at a time when a lot of it was a matter of private enterprise pushing Government to get on and do something about it. Things have changed a lot since those days. I have seen a variety of regional development policies in that time. They nearly always have been changed too soon, before industry became fully used to knowing what they were going to get. At the same time there are times when they must be changed.
We always regret it when funds are reduced for the support of some cause in which we deeply believe—and I deeply believe in regional development. I am not one of those who say that regional development money has been wasted. I have seen the results in Scotland too well to believe that. It has done very great things for that country of mine. I would simply say that there is no doubt that in its more recent forms, as others have said, regional development policy has spent large sums of money on projects which would have come into being whether or not it had been spent—not merely Sullom Voe, but many other oil-related projects in Scotland. I should not be saying this because we welcomed them; but they would have gone there because they could have gone nowhere else.
I think the great strength of regional development policy is not just related to numbers of jobs. I agree that you have to have a criterion of some kind by which you judge it, and that the number of jobs is probably the main one to which you relate it; but its main objective is to cause the growth of industry which otherwise would have gone, not necessarily to another part of this country but, probably, to another country altogether. I think that in this we have had quite considerable success. I am sorry that the total funds have been reduced. At the same time, I believe that, with the new arrangements and the saving of the unnecessary grants, the policy proposed now can have a continuing successful impact. I should like to think simply that the Government would keep an open mind as to the figures that are included in this order, review them regularly and not regard them as a target for all time; and that they will reconsider the question of support for the service industries.
Here I find myself with the noble Lord, Lord Bruce of Donington. We are all for the service industries, but, as he has said, most of them seem able to get along pretty well without assistance and many of them will inevitably follow the industry which they serve. Our major problem at the moment is to try to staunch the drain on the base of our manufacturing industry and hence our exporting industry—a subject to which noble Lords are giving attention in our Select Committee at the present time.

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All I would say is that I do not take as gloomy a view of the proposals put forward in this order and under this measure as do some other noble Lords. I believe that they can still have a considerable effect; but I ask the Government to watch them closely, to watch the results, and to be ready to review them from time to time as necessary.
7.55 p.m.
Lord Lucas of Chilworth: My Lords, perhaps I may start by thanking the noble Lords, Lord Bruce of Donington and Lord Taylor of Gryfe, and my noble friend Lord Polwarth, for their contributions to this rather short debate this evening. I would endorse very much what my noble friend Lord Polwarth said in the early part of his remarks in consideration of what the noble Lord, Lord Bruce of Donington, had to say. I am going to resist (as he will not be surprised to hear, and neither, I think, will the House be surprised to hear) following the noble Lord down a number of the paths, avenues, waterways, riverways and quotes from innumerable newspapers that he tacitly invited me to do.
Let me start by saying that, as on all other occasions when I have taken part in debates on regional policy, I have been at some pains to stress that the current policy that we have debated and of which this order is part is a radical departure. It is a departure in that it concentrates its grant-making process on the creation of jobs, not to the total exclusion of, but certainly in preference to, that of capital-only projects. This must be a good thing. Noble Lords will recall that the regional policies that have been followed for the past two decades, if not three, have failed to achieve their objectives.
I am not suggesting for one moment that the policy being put before your Lordships in these last few months will necessarily be any better. But it certainly cannot be worse, and we believe quite sincerely that it is better. That there is a lower sum of money is not as germane to that argument in principle as some noble Lords would make out. The object is to make that lesser amount of money that is being made available a good deal more effective than the thousands upon thousands of pounds that we have thrown at the problem in previous years. Certainly, this Government are not in that business. I think that that probably contains all the remarks I would wish to make on the general principle.
Lord Molloy: My Lords, I am grateful to the noble Lord for giving way. Is he really trying to convince us that the policies which produced three-quarters of a million to one million unemployed are not as good as the policies which are producing between 4 million and 5 million unemployed? In other words, why is he in favour of massive unemployment?
Lord Lucas of Chilworth: My Lords, I could not possibly persuade the noble Lord, Lord Molloy, of anything on which he does not wish to be persuaded. In fact, he has turned the argument completely round the wrong way to suit his own particular question. I am resisting the temptation to debate that with him.
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The noble Lord, Lord Bruce, asked a number of questions. One of the suggestions he made was that we were hiding beneath the EEC requirements. He will know full well because he was a member of the European Parliament, and he will recall from his own knowledge, that those requirements were introduced long before this Government took office. He will also remember, as will the noble Lord, Lord Molloy, that regional policy has been subject to extensive reviews and that the White Paper that presaged this policy was the result of nearly two years' work.
The noble Lord, Lord Bruce, asked in a variety of ways specifically whether I would tell him the expected number of jobs that are going to be created under the new regional development grants scheme. He knew full well when he asked his question that it was virtually rhetorical. I cannot tell him: nor, indeed, could he tell me, were he standing on this side of the House. It is far too early to say. The answer depends absolutely and entirely upon how companies react to the new incentives to create employment in the assisted areas. Let me say that all the indications are that the present Government's policies have shown quite decisively, through the provisional 1984 figures, that not only is profitability up but productivity is up and investment in our manufacturing industries is also at a higher level than it has been for some time. That cannot be a bad thing. I am equally optimistic that the regional policies will have some further effect upon this.
The noble Lord, Lord Taylor, and my noble friend Lord Polwarth, spoke about the service sector. The Government's policies are certainly being changed in modest areas to try to ensure that the differentiation that has existed between the manufacturing and the service industries is not maintained. We know that both the manufacturing and the service industries have great job creative potential. Both make significant contributions to the economic wealth and wellbeing of the country. The qualifying activities order reduces that discrimination.
The noble Lord, Lord Taylor, spoke about the inward investment opportunities. I do not hold the same views as those expressed by the noble Lord when we discussed this matter in November. I have attended, with my honourable friend the Minister of State, discussions with people who have made inquiries about inward investment opportunities. I am encouraged that there are those who see inward investment opportunities in this country. That we have changed the basis of regional development grant to one more closely allied to job creation does not prevent other companies seeking support through regional selective assistance policies that apply to both areas. There is no denial of that.
I would ask the noble Lord, Lord Taylor, what he wants. Does he want great capital projects, such as the one he quoted, or does he want projects utilising taxpayers' money, not Government money, designed to help the creation of jobs? I suggest that he might say that he would like both, but that perhaps he cannot have both.
Lord Taylor of Gryfe: My Lords, I am sorry to interrupt, but the noble Lord has invited me to comment. The taxpayers' money is also used for

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unemployment benefit and social security payments. I prefer taxpayers' money to be used to encourage investment in productivity, rather than to have it dissipated in unemployment relief.
Lord Lucas of Chilworth: My Lords, I do not think that anyone would quarrel with that. My question, perhaps a rhetorical one, was rather more narrowly drawn. The noble Lord, Lord Taylor, said that if the convention did not apply, he might seek to change the course of events this evening. He said, however, that he was sorry. I give the noble Lord, as I give my noble friend Lord Polwarth, the asurance that we shall certainly continue to monitor the regional policies. We shall also monitor the effectiveness of the policies. As soon as an assessment can be made, it will be made. But the House will recognise that some little time has to elapse before we can make a proper assessment.
We are confident that the policies as outlined in the Act that we discussed earlier are the right policies. We are sure that changing the old regional policy to one more allied to job creation and the figures that we have set to this are, on balance, the right way forward. I commend the Motion.
On Question, Motion agreed to.

Prosecution of Offences Bill [H.L.]
8.5 p.m.
House again in Committee.
Clause 17 [Defence costs]:
On Question, Whether Clause 17 shall stand part of the Bill?
Lord Simon of Glaisdale: I have two more points. The first is purely a personal request. My noble and learned friend the Lord Chancellor promised to write to the noble Lord, Lord Hutchinson, on what related, I think, in some respects, to private prosecutions. Unfortunately, that is a subject on which the noble Lord, Lord Hutchinson, and myself do not see eye to eye. So would my noble and learned friend be kind enough to send me a copy of his letter? I know that it will be available in the Library, but it would be a personal convenience if he could meet my request.
The other point that I wish to raise on Clause 17 concerns the meaning of subsection (3), which deals with a legally assisted person. It says that the legal aid order shall be disregarded in determining the amount of costs. That could mean, I think, that the party is legally aided. I do not think that it does mean that, because of the tense. According to the wording, the order "is made". However, if it does mean that, it could perhaps be more explicitly worded; or it can mean, can it not, the amount of the certificate, the amount demanded of the applicant in respect of which the legal aid certificate is granted? Again, if that is what it means, it could be much more understandably drafted. But it is also then, to some extent, bound up with a point that was raised by the noble Lord, Lord Mishcon, and by myself in consequence, about which my noble and learned friend the Lord Chancellor
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undertook to give more thought; or, of course, it may mean something quite different, which I have not grasped at all. I would be grateful if my noble and learned friend could explain the subsection.
The Lord Chancellor: In response to my noble and learned friend on the Cross-Benches, I shall, of course, arrange for a copy of any letter which I may write to the noble Lord, Lord Hutchinson of Lullington, to be sent to the noble and learned Lord as well as have it put in the Library or anywhere else that we may think it right to put it. In response to his second question, what has to be disregarded is not the fact that the legally assisted person is legally assisted. It is the order that is to be disregarded in determining the amount of the costs. I had thought that this was possibly plain. If what I am now about to say is wrong or inconclusive, I shall try to supplement it by letter; but it is, I think, clear, once one appreciates that what is to be disregarded is the amount of costs in the legally aided order and not the fact that the man is legally aided. All else, I think, follows from that.
Subsection (3) provides that the costs payable by the prosecutor to a legally-assisted defendant are not to be reduced in amount to take account of the fact that the defendant is legally aided. Thus the costs payable by the prosecutor may include expenses which will be borne out of legal aid, which can then be used to reimburse the legal aid fund for the costs expended on the defendant's behalf. A prosecutor of a legally-assisted defendant will not benefit by being ordered to pay a lower amount of costs by reason of the existence of the legal-aid order. The Lord Chancellor is given power under Clause 20, subsections (2) and (3), to make regulations providing for the recovery of sums paid out under a legal aid order from costs orders made against a legally-assisted defendant's opponent. That is the best answer that I can give for the present. If it should prove either inadequate or mistaken, I shall try to correct it or supplement it.
Lord Simon of Glaisdale: I am quite sure that it is not inadequate. What is inadequate, I am afraid, is my understanding of it. As I understand it, a legal aid order is made and a certificate is then granted, sometimes subject to a contribution. I can well understand that the contribution is to be disregarded; that was the point the noble Lord, Lord Mishcon, raised. I can understand that the fact there has been a legal aid order shall be disregarded, but if it means that the full costs of the legally-assisted person are to be paid by the prosecutor I cannot see, as at present advised, and although my noble and learned friend has explained it, why that should not be said in that form.
The Lord Chancellor: I think that is a question of draftsmanship, about which I should have to take advice. However, those who are listening or who will read elsewhere what I may have said will cause me to write to my noble and learned friend.
Lord Simon of Glaisdale: I certainly cannot ask more than that my noble and learned friend should consider the draftsmanship, before the next stage of this Bill. Otherwise, I am very content.
Lord Elystan-Morgan: There are two matters which I should be grateful if I might raise on the Question whether Clause 17 shall stand part of the Bill. The first is whether there is any power—it seems to me there is not—in a Crown Court to order costs against the prosecution. If I am right in that—I shall gladly be corrected if I am wrong—then it means that a very substantial sanction which exists at the present moment in relation to the prosecution has been removed.
The other matter is something which arises under Clause 18, but it seems there that a court would not have the right to deprive the prosecution of costs where a person in fact has been convicted. It may very well be that the prosecution have carried on with a matter where the judge has already given a clear indication that he regards it as a mean prosecution and where nowadays the thinly-veiled threat of not allowing costs—prosecutors have to apply for costs, irrespective of the issue—would be sufficient. That, again, is a substantial matter. I mention that in relation to Clause 18, although we have not reached it, in the context of my question in relation to the Question whether Clause 17 shall stand part. Is it the case, as I understand it to be, that the Crown Court does not have this authority?
8.15 p.m.
The Lord Chancellor: Again, I am not absolutely sure that I am completely in touch with the precise question which the noble Lord is asking. The situation envisaged by Clause 17 arises where an offence, a summary offence, is laid but not proceeded with, or is dismissed. Then the court may make such an order as to costs to be paid by the prosecutor to the accused as it considers just and reasonable. The amount must be specified in the order, and in arriving at the order, which includes the amount, the legal aid order shall be disregarded in determining the amount of his costs, which I suppose means that he pays what is not included in the legal aid order. I shall of course review what I have said in the light of any advice that I may receive.
The situation envisaged in Clause 18 consists of a state of affairs, in subsection (1), in regard to any one of three situations. All of them result in a payment by the accused to the prosecutor; that is the reverse situation. The amount of that order will be such as is just or reasonable. Subsection (2) gives the right which arises in the Court of Appeal where either the Court of Appeal dismisses an appeal or an application for appeal under Part I of the Criminal Appeal Act 1968, or the court or the House of Lords dismisses an application by the accused for leave to appeal. Those are costs to be paid by the accused to such person as may be named in the order. The amount will be specified in the order, but they are specified as those which it considers just and reasonable. That is the best I can do ex improviso. I shall do better if I find that I have fallen short in any way.
Clause 17 agreed to.
Clause 18 [Prosecution costs]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 59:
Page 17, line 33, leave out ("under the age of seventeen").
The noble and learned Lord said: Clause 18(5) provides:
"Where any person under the age of seventeen is convicted of an offence before a magistrates' court, the amount of any costs ordered to be paid by the accused under this section shall not exceed the amount of any fine imposed on him".
That seems a reasonable and sensible provision. But should not what is good for those under the age of 17 who are convicted of an offence apply also, at any rate in principle, to those of any other age above the age of 17? Why limit this protection to the young offender? Is there not a danger, which already exists, that sometimes the addition of a substantial order for costs is, so to speak, added as an additional penalty? If the purpose of the Bench is to punish by way of financial sanction, why not make that clear in the amount of fine imposed?
Is the tendency to make the award of costs a supplementary penalty for minor offences right? I quite understand that there may be cases where the offence itself may not be very grave but the expense involved in bringing the proceedings may for one reason or another be considerable. There may be such exceptional cases for which provision could perhaps be made in the Bill.
But on the face of it and in principle we submit that it is reasonable that the sensible provison of Clause 18(5) should apply generally in the case of persons convicted of offences before a magistrates' court. I beg to move.
Lord Denning: I hope that your Lordships will not accept this amendment. I remember dozens of cases where the magistrates' courts and other courts have not been able to impose as large a fine as they thought they ought because the statute did not specify enough. Therefore—quite rightly to my mind—they ordered the defendant not only to pay the penalty but to pay the costs and to pay the costs because he had wrongly disputed the case. It seems to me that there is complete justice in imposing the penalty as set down and in making the defendant pay the costs if need be, even if they come to more than the fine. I see nothing whatever wrong with the clause as it stands.
Lord Campbell of Alloway: I respectfully suggest that this is a useful sentencing option which is properly used—there is no evidence that it has been abused. It is useful in particular because it brings home to the accused who has been found guilty the fact that he has done wrong and that he has got to pay for it in the costs of the administrative proceedings. I can find no fault with the Bill in this regard.
Lord Hutchinson of Lullington: If I may say so, I take a very different view. I must say that I was astonished to hear the noble and learned Lord, Lord Denning, say that he could see nothing wrong—and I am fairly nervous about putting this forward—in there being a fairly trivial offence which did not carry a fine greater than so much, but as regards which it would be perfectly proper, having fined the defendent so much, to say, "Well, we think he really ought to be punished a bit more than that and so we shall impose a substantial sum of costs". Surely that raises the matter of principle that, if in fact the fine which it is proper to

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impose in relation to an offence is so much, it must be wrong (must it not?) to get round the principle which establishes that that fine is proper for that offence, by adding some unacceptable sum which is really an extra fine which the statute or the merits of the case have not justified.
I must say that I find it very surprising that the noble Lord, Lord Campbell, who sits as a Recorder, should also take the view that it is perfectly proper to impose a fine of £50 which suits the situation and then say, "But I think you had better pay £250 costs", thereby making a fine of £300, which, in fact, is not justifiable. I should have thought, with the greatest of respect, that if this is right for those under 17, then it is right for everybody, because it is a question or principle that is involved. I should have thought that this is a very healthy amendment to have in the Bill.
Over and over again one's experience is that the court may take something of a dislike to the accused or may take the view, "Well, he is very lucky in fact that he was only charged under such and such a section. If the prosecution had appreciated the full matter they would have charged him under another section, which would have justified a bigger fine. But we do not have to worry about that. We shall impose the proper fine under the lesser section and then top it up with costs". In my submission, that is not being judicial. If this amendment were put into the Bill it would remove that temptation which one often sees dangled before the tribunal.
Lord Simon of Glaisdale: I presume to agree with my noble and learned friend Lord Denning and the noble Lord, Lord Campbell. The question as regards a fine is not only, "What is the amount appropriate to the offence?", but also, "What do the means of the accused merit by way of fine?" If he has to pay a large amount by way of costs, that is quite legitimately a matter that the court may take into account in mitigating the fine in order, in the circumstances envisaged, to bring the fine below the amount of costs. I hope that my noble and learned friend will not accept the amendment.
The Lord Chancellor: The short answer to this amendment is that it is unnecessary for the reason given by my noble and learned friend Lord Simon of Glaisdale. But there is a little more to it than that, because I think that particularly the noble Lord, Lord Hutchinson, has muddled himself a bit as to what this is about. There are three types of monetary payment which can be ordered by a summary court against a defendant who is convicted. One is compensation to the victim; another is the costs which have been incurred to bring the case to trial, which may be more or less according to the course which the case has taken at the hearing; and another is the fine—if that is thought to be the appropriate penalty—to be inflicted for what the defendant has done. The court has to consider the ability of the defendant to pay, and that is the point which has been made by my noble and learned friend Lord Simon of Glaisdale.
In taking account of what the defendant can afford to pay, we have to take into account both the other factors, because they affect his means and his ability to pay. The statute law requires that if you are going to
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impose a fine you have to consider the question of compensation before you consider the amount of the fine. That is provided by the 1981 Act. I am very glad that that particular provision was brought on to the statute book because ever since 1948, both in Opposition and in Government, I have been fighting the battle that compensation for the victim should come first, because it has a much better reformative and moral effect than any other monetary payment you can order a convicted defendant to pay. Fortunately that is now embodied in statute and fortunately, at last, after much striving and travail, I have got the Government to give a commencement for that statute and it is now in force.
I see no reason at all why costs should not be considered first rather than second. I should have thought that the fact that the defendant has caused the public to be put to expense is secondary only to the fact that he has caused damage to a potential victim. I think that that is the next factor to be considered. Finally, if those two together are not enough, then some kind of penalty has to be inflicted by way of fine, if a fine is the appropriate type of penalty. My own view, for what it is worth, is that the fine might be reduced very well because of the fact that compensation has been ordered or that the costs have been considerable, because they must affect the ability of the defendant to pay. You must not charge the defendant more than he can pay because, in effect, you would be making him subject to penalties of a different kind from those which you intended to inflict. You get at it from the oppposite end from that which is proposed in the amendment; you get at it by looking at the total, global, sum he has to pay in a perfect world, and if you find that the total amount is too much for him, you have to alleviate it somewhere. I would alleviate it in the amount of the fine, because I think that the other two factors have a much more moral effect than the amount of the fine. However, in the end, the total effect is bound to be the same.
The idea that you would add to the fine by imposing an exorbitant amount of costs would, I think, be inviting the Divisional Court to subject the magistrates to a judicial review. Therefore, the short answer I give is the answer given by my noble and learned friend Lord Simon of Glaisdale and, I think, by my noble and learned friend Lord Denning; the longer answer I give is that upon which I have sought to expatiate.
8.30 p.m.
Lord Elwyn-Jones: I am grateful to the Committee for giving careful consideration to this matter. We are moving in rather curious waters—if "curious" is the proper word to use in relation to waters—in that Parliament determines the amount of penalty that should be imposed for a specific crime. We are told that that is mere shadow-boxing. The real financial penalty to the pocket of the offender will lie not in the fine aspect, but in the costs. So the schedule of offences and penalties is rather more misleading—we must forget about the amount of the penalty. So often it is alleged and complained that costs awarded are excessive. I suppose that the prosecution costs that are imposed are capable of being taxed.

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Therefore, with great respect, I do not think that it is quite as black and white an issue as has been indicated in the discussion. I entirely agree with the noble and learned Lord the Lord Chancellor that consideration number one should be compensation, and perhaps even now, after the urgings of the noble and learned Lord and his predecessor and others, there is a tendency too often to overlook the element of compensation. But looking around me at experienced magistrates who are present, I do not suppose that they offend in that regard. I believe it is idle to think that that element covers the matters of concern.
I raise this matter because I think it is proper that these questions should be raised. I certainly do not propose to go either to the stake or to the Division Lobby over them. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 60:
Page 17, line 38, after ("the") insert ("reasonable").
The noble and learned Lord said: This is by way of a probing amendment which I move with a certain amount of hesitation. It is claimed that the cost of preparing transcripts is very high. Whether or not that is so in practice, I should have thought that perhaps there has been greater concern about the difficulty of producing transcripts in time. I know that that is a problem that has caused a great deal of worry in the Court of Appeal. In some cases the hearing of appeals has had to be considerably delayed because of the mere difficulty of getting hold of the transcripts.
However, in addition, perhaps we can be assured that the cost of transcripts is a matter which is looked at from time to time. It is very important that the putative appellant should, at the very least, have the opportunity to obtain a transcript at a price not ruinous to himself. It may be that the state of play is not too bad. I am not pressing this as a positive allegation, but if the noble and learned Lord has information on it, perhaps we could be told about it. I beg to move.
The Lord Chancellor: Probing or not, this amendment is clearly right and I am very happy to accept it. I am grateful to the noble and learned Lord for proposing it.
On Question, amendment agreed to.
On Question, Whether Clause 18, as amended, shall stand part of the Bill?
Lord Hutchinson of Lullington: I should like to ask for some guidance on this clause because here we are dealing with the Crown Court and the Court of Appeal in relation to costs and not with the magistrates' court. In subsection (2) the words:
"as it considers just and reasonable".
are similar to those in subsection (3), where it says:
"The amount to be paid by the accused … shall be specified in the order".
Hitherto, the order which is normally made in these circumstances has used the phrase:
"shall pay an amount not exceeding £X towards the costs of the prosecution".
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Also, in the Costs in Criminal Cases Act 1973 one has the words:
"the amount to be ascertained by the appropriate officer of the Court".
I just seek guidance as to how it is envisaged that the amount of these costs will be assessed. We are not talking about an immediate assessment, as we are in the magistrates' courts. Clause 18(3) would seem to imply no taxation whatever.
The Lord Chancellor: The noble Lord is not quite right in saying that we are not concerned with magistrates' courts. Clause 18(1) clearly envisages a magistrates' court. Clause 18 as a whole enables a magistrates' court and a Crown Court to order a convicted defendant to pay just and reasonable costs—which the clause requires the court to specify in the order—to the prosecutor. The amount is contained in Clause 18(3) in the terms which I have just set out.
Subsection (1) sets out the circumstances in which the court may make an order for the convicted defendant to pay costs to the prosecutor on conviction in a magistrates' court or where the Crown Court dismisses an appeal against conviction or against the sentence imposed on conviction. Subsection (2) enables the Court of Appeal, in dismissing an appeal or an application for leave to appeal to the House of Lords, to order that the accused pays costs to the person named in the court's order. Again, the amount is such as it considers just and reasonable. The House of Lords will not be able to make an order against the accused where his appeal is dismissed.
In these circumstances it is accepted that the accused, by reason of the fact that he was granted leave to appeal, was justified in making the appeal, and so even though he was unsuccessful, he should not be made to pay prosecution costs. The Divisional Court of the Queen's Bench Division has separate powers under Order 62 of the Rules of the Supreme Court to order the payment of costs between parties to the proceedings, including criminal proceedings, and it has not been thought necessary to duplicate those powers in Clause 18. Subsection (3)—and I think that this answers the question put by the noble Lord, Lord Hutchinson of Lullington—requires the court, in making an order under this clause, to specify the amount. There will not, therefore, be any taxation or determination of the amount payable to the prosecutor.
Then, subsections (4), (5) and (6) repeat equivalent provisions found already in the Costs in Criminal Cases Act 1973. I think that is the best I can do at the moment. I think it answers the question that the noble Lord, Lord Hutchinson, asked me.
Clause 18, as amended, agreed to.
Clause 19 [Provision for orders as to costs in other circumstances]:
Lord Mishcon Lord Mishcon moved Amendment No. 61:
Page 18, line 7, leave out first ("to") and insert ("in the conduct of").
The noble Lord said: The Committee are invited to look with some care and, indeed, I would say, anxiety

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at the provisions of Clause 19 of this Bill. Because we regard it with some concern, I am going to read Clause 19(1) carefully:
"The Lord Chancellor may by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by, or on behalf of, another party to the proceedings, to make an order as to the payment of those costs".
Subsection (2) refers to the permissive right of the Lord Chancellor to,
"allow the making of … an order at any time during the proceedings";
to,
"(b) make provision as to the account to be taken … of any other order as to costs";
and to,
"(c) make provision as to the account to be taken of any such order in the making of any other order as to costs",
and
"(d) … provisions similar to those in section 18(4) and (5) of this Act".
What does that mean as at present drafted? It means, as I see it, that the clause could permit regulations to he made which penalise a defendant who, for example, refused to make a statement when the police wanted him to make a statement. It might be argued that he, the defendant, a party to the proceedings, had, in the view of the court, put the other party to unnecessary costs, or had delayed the proceedings, and that in those circumstances he ought to have a costs order made against him. Indeed, the words "on behalf of might even cover a legal adviser to a defendant who told the defendant that he had the legal right to remain silent and not to help in his own prosecution, or indeed it might be the prosecution of another defendant party to the same proceedings.
This is something which must be looked at with anxiety. Therefore, the amendment proposes first of all that the words "in the conduct of" should be inserted in page 18, line 7, leaving out the first "to". That would ensure that the regulations could not be applied to matters which pre-date the commencement of proceedings as defined by analogy with Clause 14(2), because as at present drafted they could be applied to acts or omissions carried out prior to the commencement of proceedings.
8.45 p.m.
Now the second amendment, No. 62:
Amendment No. 62: Page 18, line 8, at end insert ("provided that the regulations shall not empower any court to make such an order against any person who is acquitted or whose appeal against conviction is allowed.")
The second amendment provides:
"that the regulations shall not empower any court to make such an order against any person who is acquitted or whose appeal against conviction is allowed".
That would ensure, for its part, that only those found guilty were penalised in this way. I hope your Lordships will agree with me that there can be no argument for penalising the innocent, whether the acquittal is based on merit or, indeed, on a technicality.
The other matter I should like the noble and learned Lord the Lord Chancellor to deal with in regard to this
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amendment is that these regulations carry with them a threat of something which could be quite inimical to the concepts that we have in regard to a defendant. Here, again, I hope that I shall not bring to his feet the noble and learned Lord, Lord Simon of Glaisdale, if I say once more that quite obviously one can have complete confidence in the noble and learned Lord the Lord Chancellor not to make regulations which we would regard as unjust, but these are powers given to the Lord Chancellor in an Act of Parliament which can obviously endure for many years.
I would hope that because of the seriousness of this power there would be the fullest possible consultation with the Law Society and the Bar before any regulations are made, be it within the scope of the present Bill if unamended—and that would be, a fortiori, my wish and submission—or even with the amendment. I would hope that the noble and learned Lord could give an assurance that there would be the closest consultation with the Bar and the Law Society, who obviously are concerned with the wording of the Bill as it at present stands. I beg to move.
The Lord Chancellor: So far as concerns consultation, which is really independent of the terms of either of the two amendments to which the noble Lord has spoken, it is certainly my policy to consult both with the Law Society and with the Senate on any matters in which they are legitimately interested. I certainly shall, subject to anything that I may be told that I have said out of place, give the assurance that the noble Lord, Lord Mishcon, requires. Of course these regulations will have to be considered in conjunction with the profession and the judiciary and the ordinary parties with whom consultation is made.
If I may speak first to Amendment No. 61, this is an unnecessary amendment and makes no difference to the meaning of the clause as drafted. The only effect of it, so I understand, is that the unnecessary or improper act of omission for which a party is being penalised occurs within the proceedings and not outside them, but that is already the case under the clause as drafted and is not added to by the addition of the words "in the conduct of".
The use of the word "costs" in the context of the clause can only be interpreted as limiting the power to award costs to cases where the improper act or omission occurred in the proceedings. Costs can only be in the proceedings. I think that the fear that the costs provision could be used in such a way as to defeat the right of silence, as it is called, or any other substantive right of the defendant, is not one which would bear examination. I shall of course take further counsel with the draftsmen to make sure that I am right in what I have said, but that is the advice which I have received and that I believe to be the case.
The position as regards the second of the two amendments, Amendment No. 62, is somewhat different. The clause in the Bill enables a court, and is intended to enable a court, to exercise greater control over the parties appearing before it and to mark its displeasure at the unreasonable behaviour of one party regardless of the result of the case. The discretion might be exercised, for example, where one party has caused unnecessary expense by requiring an adjournment when they should have been able to proceed. The

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civil courts already possess such powers where costs are awarded, as the noble Lord will be well aware. People work out costs as a result of unreasonable behaviour regardless of the result of the case. Amendment No. 62 would strike at the very heart of this intention. The fact that a defendant is acquitted does not in itself mean that at some stage he could not have acted in an unnecessary or improper way which has put the other party to unnecessary expense. I do not see why such conduct should not be penalised regardless of the outcome of the case and I therefore ask the noble Lord not to press Amendment No. 62.
For these reasons I am anxious to consult the profession and the judiciary over any regulations that I may make. I am sure that these are innocent of any evil intent. If they have by any chance a side effect which may be evil in effect or consequence, I will ask the draftsman to look at it in the light of what the noble Lord, Lord Mishcon has said.
Amendment No. 62 is, as it stands, objectionable because the intention of the clause is to prevent people from wasting the other side's money irrespective of the result. An innocent defendant can do that as well as a guilty defendant on occasion and very often does. I hope I have answered the two cases which were put forward by the noble Lord, Lord Mishcon.
Lord Airedale: I see that in Clause 29 it says:
"Any power to make regulations under this Act shall be exercisable by statutory instrument subject to annulment".
I should have thought that there was a good case for saying that the regulations being envisaged here (which seem to me to be breaking new ground under the criminal law) ought to be subject to the affirmative procedure.
The Lord Chancellor: I take note of what the noble Lord, Lord Airedale, has said. I do not think so. We want to confine the affirmative procedure to matters of greater consequence than this, but I take note and will consider it.
Lord Hutchinson of Lullington: I wonder whether I may press the noble and learned Lord the Lord Chancellor further. Is he prepared to look at these words again, because the regulations will give these courts power to make this order? They read:
"one party … has incurred costs as a result of an unnecessary or improper … or omission by … another party".
Unnecessary to what? What on earth does "unnecessary" mean in that context?
The noble and learned Lord has two or three times used the words "unreasonable behaviour" of another party. I can quite understand unreasonable behaviour being something upon which the court could quite easily adjudicate. But the court has to adjudicate on whether someone has done something unnecessarily in the proceedings, or has omitted to do something. The trouble is that, human nature being what it is, many defendants are people who are irresponsible to a degree. They may not understand exactly what they ought to do or ought not to do. It seems to me to be dangerous to give powers of such enormous breadth as this, which will allow it to be said that a person has
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behaved in a way in which the court may think unnecessary in all the circumstances—then there would be a long argument about what was meant by "unnecessary"—or has omitted to do something which a sensible person would have done.
The other matter is a point which has been raised already on what is the situation when the defendant or the party in question has been given legal advice which has led to some unnecessary waste of time. For instance, he may have been advised to call two or three witnesses, who, having been called, may have given evidence which had nothing to do with the point. The court will not have seen their original proofs not will it understand why they were called. The court may take the view that it has been a total waste of time and that it was unnecessary to call those three witnesses, though they would have been called on legal advice.
The Lord Chancellor: I should have thought that the word "unnecessary" was easier to construe than "unreasonable". "Unnecessary" means unnecessary to the conduct of the proceedings and to the result achieved.
As regards legal advice, if I were advised to do something which deprived me of costs, I should have something to say to my solicitor and to my counsel which I do not think they would like to hear.
Lord Elwyn-Jones: I wonder whether the Lord Chancellor would have another look at Amendment No. 62. It seems a hardship that a person who has been acquitted, or whose appeal against conviction has been allowed, should be subject to regulations which empower a court to order him nevertheless to pay costs. This could be a great hardship for a person of limited means. Will the noble and learned Lord not reconsider this to see whether in some way it cannot be limited or modified so that hardship may not be imposed on a wholly innocent person against whom ineffective and perhaps wholly wrong and unjustified proceedings have been brought?
The Lord Chancellor: I think that for once the noble and learned Lord has not appreciated the policy behind the clause. It is that, irrespective of the result of the proceedings, unreasonable behaviour should be penalised in the costs. That may not depend on the result of the pleadings at all. A person who is acquitted may be guilty of unreasonable behaviour, adding to the costs unnecessarily, just as much as a person who is convicted may have spent not a penny more than is necessary.
As I said, Amendment No. 62 strikes at the heart of the policy behind the clause. If there is any improvement in the draftmanship which can be considered, I shall gladly consider it. But if it is a question of policy then I must stand firm.
Lord Mishcon: I first thank the noble and learned Lord for the promise which I should have expected of him, that there would be the fullest consultation with the Senate and the Law Society in relation to any regulations which it may be thought should be brought forward under the provisions of the clause. I know that

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the Law Society was extremely anxious to have such consultations and it will be grateful to the noble and learned Lord.
I ought to emphasise that there is concern about these powers. I should like to pay tribute, as do my noble friends, to Justice, which brought this amendment forward and which expressed concern at the present wording of the clause. Indeed Justice is an organisation of which the country can be proud in the way in which it endeavours to see, with a completely objective view, that legislation of this kind does not go without the closest possible attention. This has been shown in this instance.
9 p.m.
I did not quite understand, if the noble and learned Lord will forgive me for saying so, his answer to my noble and learned friend. The policy, we were told, is that if a defendant acts in an unnecessary way—I will not quote all the words that are used in this clause—he can he mulcted in costs even though he be acquitted. I thought that the noble and learned Lord the Lord Chancellor was likening this case to the situation in civil proceedings. These are not civil proceedings. A defendant decides in civil proceedings that it is his wish to defend them. In a criminal case the defendant stands there as the defendant at the instance either of a private prosecution or, under the provisions of this Bill, at the instance of the Prosecutor's office. He has not walked into that court as a volunteer. The whole conduct of his proceedings is one forced upon him as a result of charges being brought. If he is acquitted of those charges, for him to be mulcted in some costs—being, as I repeat, not the volunteer by way of appearance in court—merely because he or somebody on his behalf has done something which the court may assume is unnecessary or unpopular or has taken some time, seems to me to be a most dangerous precedent.
I am not going to use that argument when the noble and learned Lord talks about an adjournment which is a waste of everybody's time and which presumably, in the instance which he quoted, has been caused as a result of the unreasonable behaviour of the defendant. In those circumstances, the court has power already without any regulation, as I understand it, to grant the adjournment but to say that because people have been inconvenienced as a result there should be some order in regard to costs. Indeed there are instances where professional brethren of mine have been mulcted in the costs because it is deemed to be their conduct or their omission which has led to the necessary adjournment. So we need no regulations from that point of view.
The noble and learned Lord was good enough to say that he felt the instances that had been given and the fears that had been expressed were, in his view, unnecessary only because regulations would not be made except in the most just instances but that the wording that had been used—though he proffered no opinion as to the words at the moment, except that they seemed all right to him—would be looked at in order that these dangers which I have tried to point out, as has my noble and learned friend, should be obviated. I think it is only right that an opportunity of that kind should be given to the noble and learned
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Lord in answer to his courteous offer; and on that understanding I crave the leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 62 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 63:
Page 18, line 34, leave out ("20") and insert ("30").
The noble and learned Lord said: This is a purely drafting amendment to correct a mistake. I beg to move.
On Question, amendment agreed to.
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 64:
Page 18, line 41, at end insert—
("( ) The Lord Chancellor shall by regulations make provision empowering magistrates' courts, the Crown Court and the Court of Appeal to make an order for payment of costs and expenses out of central funds in favour of any person who in the opinion of the court has reasonably incurred such costs and expenses by virtue of any order or direction sought or made against such person under section 4(2) or 11 of the Contempt of Court Act 1981.").
The noble Lord said: This amendment is designed to fill a gap in our procedural law. The financial consequences are minimal. The object is simple. It is to enable journalists and other representatives of the media who challenge reporting restrictions imposed by the court which has the conduct of a criminal trial, be it a magistrates' court or a Crown Court, to receive their costs and expenses out of central funds in appropriate cases.
The hope is that your Lordships' Committee will be able to support the principle of this amendment. The position at present is that reporting restrictions may be imposed by the court under the Act without having heard representations on behalf of any journalist or other representative of the media. Any challenge to the rectitude of such order or direction may only be mounted in the court which has the conduct of the trial in the form of an application to revoke the order. By judicial decision, the Divisional Court, on judicial review, has no jurisdiction to quash, reverse or vary any such order: nor indeed has the Court of Appeal, Criminal Division, which derives its powers from statute. This is of course entirely right and proper because it would be intolerable if the conduct of criminal trials were to be held up with applications for adjournments to challenge such orders and directions.
However, the situation is that in a number of cases journalists have succeeded in their applications to have the reporting restrictions revoked. One such case which comes to mind was the Nottingham Crown Court case. There, as your Lordships may remember, the judge imposed an indefinite ban on reporting the Rampton Hospital trials; but after having heard legal argument on behalf of the journalists, he revoked his order and wished to compensate the journalists for their costs out of central funds. In this case the costs were substantial. I do not have the figure: the noble Lord, Lord Ardwick, has it but he is not in the Chamber at this moment. However, the costs were substantial.
The judge wanted to do that and he thanked the journalists and their counsel for the assistance that was given. One has to bear in mind that there is a quite a lot of authority on the two sections, some of which was handed down by the noble and learned Lord, Lord Denning. I am more glad than ever to see him in his place because he has the authority to know that what I am saying in detail is true.
In those circumstances, the judge said to his clerk, "These people ought to have their costs out of central funds". The clerk looked it up and found that there is just no power under which any costs could be given. It does not arise under any of the statutes. I suggest to your Lordships' Committee that a situation such as this is really rather shocking; it certainly is not right, it certainly is not proper, it certainly is not satisfactory, and assuredly it is not fair.
Reporting restrictions are the exception rather than the rule. One must look at this in perspective. It is a little problem in one way, but a large one in another way. If restrictions are imposed, they are very seldom challenged. It is only the rare borderline case which is susceptible to reasonable challenge and indeed, I hope your Lordships will think, ought to be challenged in the interests of maintaining open justice and the freedom of the press. In this, those who raise a successful challenge not only advance a private commercial interest, but also perform a service within the general domain of the public interest and the maintenance and freedom of the press. As I have sought to suggest, it is not only unfortunate but also unjust that no provision may be made for their costs.
On drafting—as usual, I accept sole responsibility for it—I agree that, inevitably, the amendment is defective. The reference in the drafting of the amendment to the Court of Appeal is made only to seek to cover the situation where substantive proceedings reach that court either on appeal against conviction or sentence, or both, so as to enable that court in those circumstances to entertain a costs and expenses order under this amendment. It is appreciated, as I have said, that the powers of the Court of Appeal derive from statute and if this causes any difficulty, the Court of Appeal could, of course, be excised from the drafting of the amendment. I stand by the simple principle that the court which makes and revokes such order should also have the discretion to make orders for payment of costs out of central funds in appropriate cases. Save perhaps that its provisions are mandatory and not permissive, this amendment in no way conflicts with the spirit or principle of Part II of the Bill.
In conclusion, it is appreciated that Section 4(2) of the Contempt of Court Act 1981, relating to postponement of any report of proceedings or part of proceedings if prejudicial to the administration of justice, and Section 11, relating to directions prohibiting a name or any other matter in connection with the proceedings being published, apply both to civil and criminal proceedings. It is also appreciated that these provisions in the Contempt of Court Act follow in the wake of the report of the Philips Commission on contempt of court. It is also
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appreciated that the amendment deals only with criminal proceedings and not civil proceedings. But as the Bill is concerned only with criminal proceedings and as it is, according to my information, only in criminal proceedings that this injustice arises, it is raised in this Bill. Of course, the amendment being related wholly to criminal proceedings, it lies within the general intendment of the Bill.
When my noble and learned friend the Lord Chancellor comes to reply, if he would care to indicate the following, it would be greatly appreciated: whether it is recognised that there is this element of injustice for journalists and other representatives of the media as regards costs and expenses, and as regards orders and directions sought or made under these statutory provisions. If that is recognised, what, if anything, is proposed to be done about it? If nothing is proposed to be done about it, what is the objection in principle to this amendment? I beg to move.
Lord Denning: I remember the case to which my noble friend refers. It was a case from Horsham and some defendants in the case were said to have been guilty of smuggling, or of drug offences, or of something of that kind. They did not want their names reported in a newspaper, so they applied to the magistrates under the new Contempt of Court Act saying, "Don't let the reporters get our names. We do not want our names in the newspapers. Everyone in Sussex will know about it." The prosecution did not make any real objection and so the magistrate made the order prohibiting newspaper reporting of the case.
There was no one to appeal against the order. It was affecting only the newspaper reporters themselves. The reporter asked, "What am Ito do about it?" He got in touch with the National Union of Journalists, which managed to get some funds to take the case to the Court of Appeal. It involved a most important point on the construction of the new Act, on which I may say there was, unfortunately, a difference of opinion in the Court of Appeal. I was on the wrong side, I expect—I do not know. At all events, the long and short of it was that we quashed the order which prohibited reporting.
We did the right thing and allowed it to be reported. But the important thing is that the National Union of Journalists and the journalists themselves were put to very considerable expense in elucidating a point of law on the Contempt of Court Act. The same occurred in the Nottinghamshire case before the judge himself. In order to allow proper reporting, the newspapers or their reporters had to take it up at their own expense. If they have to take it up at their own expense, they should, in the public interest, be allowed their costs out of central funds. I would support the amendment in principle.
9.15 p.m.
Lord Elystan-Morgan: The prohibition on the reporting of matters in our courts is a truly exceptional provision. There are justifications for it in proper cases but nevertheless it is a situation which raises many difficult and complex questions. As indeed the noble Lord, Lord Campbell of Alloway, and the noble and learned Lord, Lord Denning, have pointed out, it is

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very much in the public interest that these matters should be fully argued in court. We on these benches feel that there should be the discretion in the court in a proper case where it sees fit to allow costs out of central funds.
The Lord Chancellor: The amendment as it is drafted—I hope that this is the last I shall say on this point—would apply both to civil and criminal proceedings. This would cause great difficulties in the civil courts since the civil courts have no facilities for making payments out of central funds, even when such payments are justified in civil cases. To that extent, the amendment must be condemned as defective.
It would, for instance, have applied recently—although, in fact, it did not apply because another set of procedures was followed—to the Baby Cotton case, under Section 11 of the Contempt of Court Act. I must say to my noble and learned friend Lord Denning that Section 4 of the Contempt of Court Act did not purport to, and I believe did not, extend the law that has existed for very many years. This of course does not affect the merits underlying the amendment but it does affect the amendment itself.
I do not like the reference—I am now getting rid of a certain amount of peripheral questions—to magistrates' courts. I am not at all convinced that there is any proven need for magistrates' courts to have the power to lift their own restrictions in committal cases, which are the common ones. I should have thought that they have already the power to prevent reporting because that is the general rule. They have to lift the reporting restrictions before there can be any reporting. Therefore I should have thought that when one is talking about crime, one should confine oneself to the Crown Court. By the time it has reached the Court of Appeal, I think the matter will have solved itself
There are cases where one is concerned that the court should have put on in the Crown Court stage of the actual trial a restriction which was unnecessary. I think that that has been largely got rid of by a decision of the Court of Appeal because, although the Court of Appeal, on the merits of the case—I cannot remember offhand the name of the case—said that the restriction should not have been imposed, it had to say, on the letter of the law, (it went up by way of judicial review) that there was no locus standi in the applicant's case and therefore it was technically dismissed. But I believe that the courts, in the Crown Court, will follow that decision as if it was an effective decision of the courts of law.
I can quite see that an individual journalist ought not to put himself to expense in this matter, but I believe that newspapers in themselves, and perhaps the National Union of Journalists in itself, should use their own discretion as to whether and when an application of this kind is justified, and should be prepared to undertake it in the public interest.
Myself, I am more curious and concerned about the case of an independent third party. I do not want to mention names, but one name immediately springs to mind; that of an individual whose name was traduced in an Old Bailey case within the past 12 months. In the
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events which happened, the court, in order to save the reputation of this individual, slapped on an order forbidding publication of his name. In the events, again, which happened, this name was so very well known to everybody that the person concerned had to incur very heavy expenses, both in order to watch the proceedings while those completely unfounded allegations were made, and ultimately to apply to the trial judge himself to remove the restriction which had been placed by the trial judge, with the very best of motives, on the publication of the individual's own name.
That situation poses a question. It was the subject of a leading article in The Times. It raises questions about where the costs ought to lie and how they should be apportioned. I am not happy about the suggestion that there should be a general power regulated by the Lord Chancellor to pay these costs. In a recent case called Crook—rather inappositely for a criminal case—Lord Justice Watkins laid down certain rules, which are the ordinary practice at the present time. He said:
"The proper procedure for laying before the court any matter going to such a question as the publication of the name of a witness or any other matter relating to the trial is for counsel for the prosecution or, in appropriate circumstances, for the defendant, to make representations on behalf of the person who wishes the court to hear them. Generally speaking, save where the matter of concern affects the defence, counsel for the prosection should give to the court his best and disinterested assistance where a matter of this kind has to be resolved. In so doing he will doubtless have uppermost in his mind the deep public concern which is undoubtedly felt for the freedom of the press which should not, save where it is imperative, be interfered with".
That would, in the ordinary course, provide an avenue for the newspapers, without any cost to themselves, to ventilate the question as to the propriety of an order. No cost would be incurred by them. I need hardly say that it would be entirely improper for prosecution or defence counsel to accept a fee for arguing that case in the interests of anyone, except either the interests of justice or the interests of his client.
There is no obvious reason why central funds should pay for an application of this kind, and if there were such a power, it would have to be the case that an unsuccessful application, successfully resisted by either the prosecution or the defence, might have to be met with a penal order as to costs on the other side. I do not think that this point has been fully considered.
I think that there are aspects of this matter to be discussed, but at the moment I do not feel able to accept the amendment. The process suggested by Lord Justice Watkins will, at any rate, deal with the great run of cases before the Crown Court. As I say, I do not think the magistrates' courts or the Court of Appeal arise in relation to this matter. I would rather consider that the great corporations whose interests are involved can quite easily undertake this burden if they feel they are not adequately represented by the prosecution, or by the defence who may wish to remove the restriction themselves.
Obviously one has probably not reached the end of this road. I do not want to be too dogmatic about these matters. The amendment as drafted is not acceptable to the Government, but I should like to give the matter

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a little more thought and to have an opportunity for further discussion. I have very much in mind the case which I have not mentioned by name and which I think is very much present in the minds of noble Lords. I should like to consider whether something more can be done than I have said so far. In that rather irenic spirit I hope the amendment will not be pressed at this stage.
Lord Campbell of Alloway: I am very grateful to my noble and learned friend the Lord Chancellor for the great measure of thought he has given to the underlying problem of injustice which is behind this amendment and, as one would expect, to the entirely original treatment which he was able to give to the problem. In particular, his development of the problem to include the injustice to the third party is something which obviously will require further consideration.
I accept everything that has been said by way of criticism of the drafting. I expected that; I am quite incapable of drafting anything in a reasonable way. The draft was merely to produce a principle and to serve as a vehicle.
I do not fully understand why this should not be a matter for regulations, but since my noble and learned friend says that it is not a matter for regulations, I accept that and I shall have to consider how to grapple with the injustice without having regulations. At the moment I am unable to see how that is possible. However, I am most grateful to my noble and learned friend the Lord Chancellor for saying that there are many aspects to be discussed and for the fact that he has not turned down out of hand the basic underlying problem. I shall, of course, read Hansard with very great care and beg to bring this matter back on Report, if so advised. I renew my gratitude for the open way in which my noble and learned friend has dealt with the underlying problem. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19, as amended, agreed to.
Clause 20 [Regulations]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 65:
Page 20, line 21, leave out ("for the payment of costs").
The noble and learned Lord said: This is a drafting amendment and it makes clear that a costs order means an order made under Part II for payment to be made out of central funds or by a party to the proceedings. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 66:
Page 20, line 22, at end insert—
("for a payment to be made—

(a) out of central funds, or

(b) by a party to proceedings.").

The noble and learned Lord said: This amendment should have gone with Amendment No. 65. I beg to move.
On Question, amendment agreed to.
Clause 20, as amended, agreed to.
Clause 21 [Interpretation, etc.]:
9.30 p.m.
Lord Elystan-Morgan Lord Elystan-Morgan moved Amendment No. 67:
Page 20, line 38, leave out ("any person") and insert ("the defendant (whether he gives evidence or not) and any other person").
The noble Lord said: The effect of this amendment, if it were accepted by the Committee, would be to widen the definition of "witness" in the interpretation clause, Clause 21(1). It is there defined in the following terms:
" 'witness' means any person properly attending to give evidence, whether or not he gives evidence or is called at the instance of one of the parties or of the court, but does not include a person attending as a witness to character only unless the court has certified that the interests of justice required his attendance".
The amendment would include the defendant himself within the definition, whether or not he gives evidence.
As the Committee will appreciate, the personal costs of the defendant in a protracted hearing can sometimes be enormous but are likely to be substantial even in the average run-of-the-mill case. He may well have to have somebody to look after his business; holidays may have to be cancelled. Indeed, one can imagine a dozen different headings of substantial expense for the defendant. We therefore say that in those circumstances it would be just and equitable to widen the definition of "witness". I beg to move.
The Lord Chancellor: At present regulations provide that when a central funds order is made a defendant may recover his fares and subsistence as if he were a witness; but a defendant is not for some reason entitled to recover his loss of earnings. I sympathise with the intention of this amendment. It would allow defendants awarded costs from central funds to claim loss of earnings, but I should have to look more closely than I have already done at the cost implications. Strictly speaking, the amendment is unnecessary. As it stands at the moment, the Bill enables the Lord Chancellor to make the regulations which could allow such payments. I therefore invite the Committee, on my undertaking to consider the matter further, not to press the amendment.
Lord Elystan-Morgan: In the light of that generous undertaking, there is no question of pressing the amendment. We are grateful to the noble and learned Lord the Lord Chancellor for his undertaking. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 agreed to.
Lord Denham: I think that it is the general agreement of your Lordships that this is the point at which we should adjourn the Committee stage. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Leicestershire Bill [H.L.]
The Chairman of Committees reported, That pursuant to the terms of the Motion agreed to by the House this day, the following Lords together with the Chairman of Committees had been appointed members of the Select Committee for the consideration of the unopposed provisions in the Bill:

Murton of Lindisfarne, L.

Wells-Pestell, L.

House adjourned at twenty-six minutes before ten o'clock.