Prosecution of Offences Bill [H.L.]

HL Deb 21 January 1985 vol 459 cc12-68

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 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—

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

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 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 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 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.

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.]

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 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.

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 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.

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 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 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 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 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—

1. (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
2. (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 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. 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 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 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 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 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 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 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.

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 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 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 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 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 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:—

1. (a) a solicitor; or
2. (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 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 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 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 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 moved Amendment No. 47:

Page 13, line 17, leave out ("indictable")

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 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 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 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 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. 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 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 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 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.

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 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 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 circumstances, I am delighted to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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 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 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 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 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, 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 moved Amendment No. 55:

Page 15, line 30, leave out from ("in") to end of line 31 and insert— ("favour of—

1. (a) a public authority; or
2. (b) a person acting—
1. (i) on behalf of a public authority; or
2. (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 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 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 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 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.

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 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.

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.