Prosecution of Offences Bill [H.L.]

The Minister of State, Home Office (Lord Elton)

My Lords, may I ask the noble and learned Lord whether he intends to take Amendment No. 4 separately? I understood that this was to go with Amendments Nos. 1 and 2 and that Amendment No. 5 went with Amendment No. 6. I ask this for guidance.

Lord Elwyn-Jones

My Lords, I think Amendment No. 4 goes with Amendment No. 6, but it does not come in with Amendments Nos. 1, 2 and 5. It is purely a question of convenience, but I think that that would be a more practical arrangement than dealing with the points together.

The effect of Amendment No. 1 is to impose upon the Director of Public Prosecutions, who appoints the Crown prosecutors under Clause 1(1)(b) of the Bill, the duty also of consulting the Attorney-General. He might well do so in practice in any case, because the Attorney-General, after all, is in close touch with the Bar and in cases of direct concern to him he nominates counsel and knows them fairly well. The purpose of the amendment is to seek to enhance the status and significance of the office of the Crown prosecutor, and that would be added to if the Director were required to consult with the Attorney in making the appointment. I understand that this would bring the position comparable to that of procurator fiscals in Scotland.

The knowledge that the Attorney is consulted and involved in the appointment of Crown prosecutors will, we think, be helpful in enhancing his standing, and it is important that that should be done particularly vis-à-vis the chief constable in the given area because he is to exercise positions of great importance in the administration of justice.

The next two amendments, Amendments Nos. 2 and 5, follow the same pattern. Amendment No. 2 is consequential on Amendment No. 1. Amendment No. 5 deals with the dismissal of a Crown prosecutor. I would not expect, or hope, that to be a frequent 314 event. Here, again, the amendment proposes that a Crown prosecutor may only be dismissed from office by a joint decision of the Director and the Attorney-General. Here we come into the same problem or necessity as to identifying the importance and independence of the office of the Crown prosecutor, and, again, we feel his position would be enhanced if the Attorney-General was involved in the process and was consulted. I understand that in Scotland the Lord Advocate must sanction the dismissal of a procurator fiscal, and that is rather a higher protection than is provided in the clause as it stands. As I have said, it is not likely that the situation will arise often so it will not unduly add to the considerable burdens of the Attorney-General, but it is, we believe, a useful addition to the provisions regarding Crown prosecutors.

I am informed that the Prosecuting Solicitors Society is anxious to support these proposals. As I say, they will do something to identify and establish the important status of prosecuting officers in the scene that we are considering. I beg to move.

Lord Elton

My Lords, the aim of these amendments, as the noble and learned Lord has confirmed, is to enhance and safeguard the position of Crown prosecutors by associating the Attorney-General with their appointment and, should it occur, their dismissal. We entirely agree with the sponsors of the amendment about the importance of the Crown prosecutors to the new service. Under our proposals for maximum delegation they will carry heavy responsibilities. In particular, they will be responsible to the Director for supervising the operation of the service in their areas, and they will in fact be the linchpins of the new service. Their calibre will be vital to its success.

Under Clause 1 as drafted, they will be designated from among the legally qualified officers of the service. All those officers will, of course, have been appointed by the Director. The amendments graft on to the clause an arrangement for Crown prosecutors to be appointed by the Director after consultation with the Attorney-General. They also require a joint decision by the Attorney-General and the Director as a prerequisite to the dismissal of a Crown prosecutor. We need to be clear about the respective positions of the Director of Public Prosecutions, on the one hand, and the Attorney-General, on the other.

The Director is to be the statutory head of the service. He is to act under the superintendence of the Attorney—and the term "superintendence" is deliberately chosen to describe a particular kind of relationship. It is the relationship which the Director of Public Prosecutions now has with the Attorney-General, and it is different from the one normally obtaining in a Government department between the head of the department, the permanent secretary, and the Minister responsible for it. It is a looser relationship. As it implies, the Attorney-General has a general answerability in relation to the Director but he does not involve himself in everything that the Director does. It is for the Director to decide when, in addition to cases requiring the Attorney-General's consent, a decision is such that he must refer it to the Attorney-General. This may be a decision on a case or 315 a decision on some aspect of the operation of the Director's department; but the initiative in deciding what is appropriate for referral is the Director's, and not the Attorney-General's.

In establishing the new service the Government decided it was right to build on this relationship between the Attorney-General and the Director. It would serve to ensure that a proper balance could be struck between the need for accountability in respect of the prosecution function, on the one hand, and, on the other, the importance of safeguarding individual decisions from improper interference. Any provisions which might alter that relationship and risk disturbing this balance, therefore, need to be carefully examined; but the balance is important, and if we are to lose it we must ensure that the likely gains are worth the certain loss.

I have to say that I doubt whether involving the Attorney-General in the management of the new service in the way that the amendments propose would, in those terms, be worth doing if the only purpose is to underscore the important status of Crown prosecutors. I think it would be unwise to involve the Attorney-General at this level of decision. Why should decisions as to their appointment or dismissal alone of all the management decisions that the director has to take be singled out for the special attention of the Attorney-General? If the director cannot be trusted to take those decisions without this safeguard, he surely does not have any business to be head of the service at all.

I also noticed, as I am sure your Lordships have noted, that the amendments do not deal with the position of senior staff in the Director's own office, some of whom are likely to be of more senior rank in the Civil Service than the Crown prosecutors designated under Clause 1. Of course, those who are moving this amendment may think—as indeed do I—that for such staff the existing procedures (that is to say, the procedures for recruitment to the Civil Service, for promotion within it and for dismissal from it) provide sufficient guarantee of the fairness and impartiality of decisions in relation to individuals already. That seems to us to be entirely correct.

For recruitment, in general responsibility is placed on the Civil Service Commissioners to operate on the basis of fair and open competition. For promotion, departments must set up procedures to achieve the objectives of fairness and impartiality. For dismissal, in addition to the statutory protections contained in the Employment Protection (Consolidation) Act 1978, there are special safeguards against unfair dismissal, including the right of appeal to the independent Civil Service Appeal Board. So there are suitable safeguards at present. They are rather elaborate, and they will apply equally to members of the new service who are Crown prosecutors as to any other. If we add to them a requirement for the Attorney-General's involvement, I cannot see that we add anything of substance or use beyond what we already have.

Having got this far in the argument, as I reflected on these amendments I returned to the proposals on the Marshalled List and studied them more closely. It then seemed to me more than likely that they had been put 316 down more to encourage me to repeat, as I have done, my emphasis of the important role that Crown prosecutors will have. I say that because I do not think that the noble and learned Lord would think it satisfactory for any other purpose to require the Director to consult the Attorney-General and yet to leave with him, as his amendment would, the sole duty of making the appointment. Nor do I think that he would actually be satisfied if the dismissal of a Crown prosecutor was to be at the joint decision of the Director and the Attorney-General. Given that it is the Director who is supervised and the Attorney who does the supervising, is not the product of what is proposed likely to be simply to transfer both decisions effectively from the Director to the Attorney-General? I do not think that that is what the noble and learned Lord would want or what your Lordships would want.

The noble and learned Lord has allied his arguments in a way slightly different from that which I quite wrongly expected. He may take me to task for leaving matters of substance out, and I shall try to answer him in detail if he does. But I think that your Lordships would rather that I sat down to see whether I have already succeeded in satisfying him.

Lord Mishcon

My Lords, if I may say so, I am afraid that the noble Lord the Minister has missed the substance of the argument behind these amendments. It is not a question of asking him to repeat the matters which he so clearly (as is his custom) brought to the attention of the House at previous stages of the Bill. There is a very clear intention behind these amendments, and the substantial point is this. Whatever the noble Lord may say to the House—and which this House obviously accepts readily—about the status of the Crown prosecutor, the fact of the matter is that only those of us who, in years hence, take the trouble, as many of us will, to look up his comments and speeches will have the benefit of those remarks. It is the public who will see the effect of this Bill.

3.45 p.m.

What these amendments seek to do is to carry into effect the very principle that the noble Lord has been keen to substantiate; and that is, not only the status of the Crown prosecutor, but his complete and absolute independence. His status in regard to the chief constable is very important, as is his status in regard to the Director of Public Prosecutions. I am afraid that the noble Lord made me extremely nervous when he pointed out that there might be senior officials underneath the DPP who would be senior, as I understood him to say, in status to the Crown prosecutor.

The whole purpose of this Bill is to see, and to let the public see, that the Crown prosecutor, obviously behaving under guidelines that will be laid down, one hopes in general terms for Parliament to see, will indeed be the person who has the sufficient and independent status of chief constable and Director of Public Prosecutions in order to see that his decisions about prosecutions are themselves independent.

There is no difficulty about this. If one were thinking in terms of a weighty administrative process where names had to be submitted and the Attorney-General 317 was bound under this amendment to interview the applicants, and so on, or to be personally present when the Crown prosecutor was dismissed—an event which one imagines might happen once in a millennium, if then—I could understand it. All that this asks for is that there should be consultation with the Attorney-General. It may be nominal consultation—and I am perfectly content to abide by those words—but it would be seen that the Attorney-General has given the imprimatur of his high office to an appointment which is an independent one and which shows the proper status that we who are behind the intent of this Bill want to see.

It is because I believe the noble Lord the Minister—and I say this with the utmost deference—really missed the substance of these amendments and thought that we were after a repetition of his previous statements that I ask him most earnestly to reconsider and to accept the amendments now before the House.

Lord Rawlinson of Ewell

My Lords, I do not share with the noble Lord his anxiety. It seems to me that the Crown prosecutor's independence is very clearly demonstrated, because it is demonstrated by the position of the Director of Public Prosecutions appointed by the Attorney-General. I do not share the anxiety that he has that it does not demonstrate the independence of the Crown prosecutor.

It is no use having nominal consultation. That is rather absurd, in my submission. I think that one has to consult and the Attorney-General then has to play a considerable part in deciding whether someone is to be appointed. Once one has appointed a Director of Public Prosecutions, it is far better that he should be sufficiently independent to be able to appoint his own staff and his own officers. From what I understand is clearly behind the ideas of the amendment, my belief is that the Minister is right, and I think it is far better to leave it as it is.

Lord Campbell of Alloway

My Lords, I find myself in some difficulty. With respect, I do not wholly share the view that has been expressed by my noble and learned friend Lord Rawlinson of Ewell about this matter. I think that it is unfortunate that these amendments have been grouped together because, as regards appointment, I am entirely in agreement with everything that my noble and learned friend Lord Rawlinson has said.

The Director acts under the superintendence of the Attorney-General, and there is no need whatever, as I see it, to involve the Attorney-General in matters of management. But as regards dismissal, I see a totally different problem. That is Amendment No. 5. All right, it may happen once in a millennium; but how important it is when it happens! I support the spirit of Amendment No. 5. I think that it warrants special attention. The dismissal of a Crown prosecutor warrants the attention of the Attorney as a safeguard to enhance and entrench independence. It is wrong, as I see it, to regard this as a mere question of rank, status or some sort of ladder of precedence. The Crown prosecutor is in a special position, and his dismissal is a matter of great importance. Although it happens rarely, as I have said, I think it warrants the 318 support the spirit of Amendment No. 5 but not of Amendments Nos. 1 and 2.

Lord Morris

My Lords, this amendment worries me for this very simple reason. The appointment and dismissal of the Crown prosecutors, indirectly by virtue of Amendment No. 1 and directly by virtue of Amendment No. 2, by bringing in the AttorneyGeneral—the Attorney-General is the appointee of the Government of the day—politicises, be it ever so slightly, the appointment and dismissal of the Crown prosecutors. I believe that that would be sad.

Lord Wilson of Langside

My Lords, I hesitate to intervene in this matter, more particularly because I did not hear the initial presentation of this amendment. Unfortunately I was detained outside the Chamber. But may I just ask the Minister if he has thought that it might be helpful—and I put it no higher—to consult with his noble and learned friend the Lord Advocate about this? That is because the Lord Advocate carries, or carried at one time, the responsibilities in relation to the procurators fiscal, who were in the same position, and I think had to approve their appointment. It is so long since I was concerned in the matter that I do not wish to pontificate, but I should have thought that the Lord Advocate might be able to give some helpful advice as to his situation which would be relevant to the context of this amendment.

Lord Elton

My Lords, with your Lordships' leave, I will be brief. I am grateful to noble friends who have supported me and I recognise the valiant efforts of those who have been less supportive. My answer, in fact, is to the noble Lord, Lord Mishcon, who suggested that I had missed the point of the amendment. The substantive point, he made abundantly clear. I addressed virtually the whole of my answer to it. When I came to the end of what I had to say about it, it appeared to me that I had demolished it. I therefore said that at that point I turned to other motivations to see whether perhaps what the noble Lord wanted was something else. I tried to supply that as well. I evidently failed. I apologise for that. But the fact remains as I stated it: that we believe that the Director General must be answerable for the service, and if he is answerable for the service then he must have control of it, and that means hiring and firing.

Lord Elwyn-Jones

My Lords, I do not wish to make too heavy weather of this, certainly not of Amendment No. 5, which, I respectfully agree with the noble Lord, Lord Campbell of Alloway, is probably the more important of the two. But with the conception that the noble Lord suggested, that the fact that an appointment was made by the Attorney-General politicised the matter, he is treading on very dangerous ground. I submit that it is quite incorrect—if he allows me to be blunt upon the matter. One of the matters that I think perhaps the noble Lord may overlook is that already the Attorney-General, in making appointments, is enmeshed in the prosecution process. After all, he appoints the key prosecutors at the Old Bailey. I have forgotten what they are called now.

Noble Lords

Treasury counsel.

Lord Elwyn-Jones

My Lords, Treasury counsel. They were sometimes called "Treasury devils" but Treasury counsel may be a more courteous name. The Attorney-General appoints them. They are extremely important, in that they have the responsibility of conducting the more serious cases at the Old Bailey on the nomination of the Attorney-General. Therefore, there is nothing politicising, abnormal, quaint or out of order, if I may say so, in what has been suggested.

On the general point—I certainly will not repeat it—the position of Crown prosecutors is this. They will be the key men on the prosecution side in each of the areas that will be set up. They are vitally important elements, or links, in the whole chain of responsibility for prosecution. Therefore the more we can build up their status and position the better.

With regard to the power of dismissal, that is a very considerable and important power. I should venture to think that the involvement of the Attorney-General in that matter is of very great importance. It again enhances the significance of the Crown prosecutor and strengthens his position vis-à-vis the existing authorities, some of whom may slightly resent the changes.

Therefore, while I certainly do not press Amendment No. 1, or Amendment No. 2, which is consequential upon it, I do feel that Amendment No. 5 is of sufficient importance to take soundings of the opinion of the House upon it.

The Lord Chancellor

My Lords, then what I propose to do is put Amendment No. 1. Is it your Lordships' pleasure that Amendment No. 1 be withdrawn?

Lord Denning

My Lords, I would support the amendment not only for the reason that it is unnecessary to have these clauses in the Bill but also because it is important that we emphasise in the Bill the independence and the impartiality of the Attorney-General under our constitution. What he does should not be subject to the consent of the Treasury or of any Government representative whatever. The position of the Attorney-General has been considered in our courts. There was the great case that your Lordships will remember when a union was going to stop all the mail to South Africa because it objected to apartheid. The Attorney-General of the day, although there was clearly a breach of the law, would take no steps to stop 322 that breach of the criminal law. It came to the Court of Appeal. We thought that someone else could do it. I was wrong, but this is what I said—

Noble Lords

Oh!

Lord Denning

My Lords, wrong according to the House of Lords. I said: What then does it all come to? If the contention of the Attorney-General is correct, it means that he is the final arbiter as to whether the law should be enforced or not. If he does not act himself or refuses to give his consent to his name being used, then the law will not be enforced". I said to the Attorney-General, quoting old Thomas Fuller: Be you never so high the law is above you". I was held to be wrong. The Attorney-General is the final arbiter in this land as to whether or not the law should be enforced in criminal matters. Indeed, in the House of Lords my noble and learned friend Lord Dilhorne, speaking of the Attorney-General, said: In the exercise of these powers he is not subject to direction by his Ministerial colleagues or to control and supervision by the court". If this is the position it is essential in our constitution and should be known, that he must be independent of any party or any influence by Ministers at all. He must be impartial and, I should like to add, he must be independent of ministerial pressure, the same as the police must be. Under the Bill we are to have the independent prosecution service. So the police must not bring pressure on the prosecution service as to whether or not to prosecute. The decision on the facts must be left to the prosecution service, to the Crown prosecutor and, in the last resort, to the Attorney-General.

Because of that position, I dislike seeing anything in this Bill which requires the Attorney-General or the Director of Public Prosecutions to obtain the consent of the Treasury. It is unnecessary, as my noble friend Lord Renton says. It is not only unnecessary: it also seems to me to contain just a hint of encroachment of his independence and impartiality. I support the amendment and hope that we can leave out these things altogether.

Lord Campbell of Alloway

My Lords, very briefly, I support my noble friend Lord Renton on this. This is not only unnecessary but it could work really ridiculous, unintended mischief. Let us consider subsection (2). Suppose the Director appoints the staff and he does not get the approval of the Treasury. Is the appointment valid? Suppose that under Clause 2(3) he pays the remuneration without the approval of the Treasury. What happens to the money? The whole thing works an unintended mischief. There is no real necessity for it, and we should do away with it.

Lord Boyd-Carpenter

My Lords, I hate to differ from my country neighbour, the noble and learned Lord, Lord Denning, and from my old friend and colleague Lord Renton, but I find this amendment not only unnecessary but, in the ultimate, somewhat harmful. I fully agree with what the noble and learned Lord, Lord Denning, said about the independence of the Attorney-General and of the police, but we are not concerned with that. We are concerned with the 323 charges that they will be able to impose on public funds. The noble and learned Lord, Lord Denning, calls in aid the argument about the police, but I should like to point out that neither the Metropolitan Police nor, through the local authorities, the country police are free from Treasury control on the amount that they may spend on recruitment and pay to the service; so the noble and learned Lord's analogy in relation to the police is really, with respect, against him.

I am bound to say that I am shocked that the noble and learned Lord, Lord Simon of Glaisdale, should have so far forgotten the struggles to control expenditure which he had, as a very good Financial Secretary to the Treasury, as to back this amendment. Perhaps that accounts for his absence today; perhaps he has had a fit of repentance and has therefore left the moving of this amendment to the less sensitive conscience of my noble friend Lord Renton. It is all very well for my noble friend Lord Renton to say, "Well, the Treasury has got it and, anyway, it is a matter for the House of Commons". My noble friend knows as well as anybody who has served in the House of Commons the limitations and defects of the control of that House over public expenditure, with the vast scale and infinite detail of public expenditure today and the appalling limitations of parliamentary time. My noble friend knows that.

It is all very well to say, "Oh, well, the Treasury is all right and it can easily control it without these provisions". It has been my job, as at one time it was that of the noble and learned Lord, Lord Simon of Glaisdale—it has been my job twice—to deal with public expenditure, and I can assure your Lordships that it is one of the most difficult tasks that can be imposed on any member of a government. You are "the abominable 'No' man"; you have to say "No" to colleagues' demands for expenditure. The whole pressure of Ministers and their departments is all for an increase in public spending. It does not need arguing. You have only to look over the history of the last 25 or 30 years to see the constant pressure to increase expenditure. It would seem to me to be utterly irresponsible deliberately to remove, as this amendment seeks to do, a provision which, in however modest a degree, supports the Treasury in its gallant and immensely difficult efforts to control public expenditure. The scales are weighted heavily against the Treasury.

I do not rate this provision, which is in many other statutes, unduly high, but it has some value. Your Lordships will also consider this. We have been told that it is in many other statutes. If it is removed from this Bill, will not the inference be that the control of the Treasury over these particular items is less, and is intended by Parliament to be less, than it is in other areas? We are concerned here with what is a particularly sensitive area of public expenditure: the recruitment and pay of staff. That is what the first amendment deals with. It does not need stressing that if one department of Government either goes in for large-scale recruiting or ups the pay of its staff out of line with the rest of the public service, you are going to generate very considerable pressures for increased public expenditure right across the board because of the whole argument of the relationship between the 324 remuneration of one public servant and that of another. The question of the relativities immediately arises.

4.15 p.m.

I do not want to make heavy weather of this. My noble friend moved the amendment in the most lighthearted and amiable way. But I think this amendment is a little more serious and a little more damaging than perhaps has been suggested so far. If it comes to a vote, my vote will be firmly for keeping in the control of the Treasury and so helping it in the immense and immensely important task it has in dealing with public expenditure.

Lord Elton

My Lords, the noble and learned Lord, Lord Simon of Glaisdale, was most persuasive at the Committee stage, and my noble friend Lord Renton has explained in part why this should be accepted by saying that in this respect he apparently is a gamekeeper turned poacher. I was indeed more than half inclined to agree with him then that references to the Treasury should be excised from the Bill. He has been quoted at sufficient length for me not to repeat the arguments he put forward. If I still believed that the formulae which are under siege by the noble and learned Lord, and now by my noble friend Lord Renton, were in fact redundant, I should be the first to support their removal. Like them, I hate seeing unnecessary words on the face of a statute.

However, I am reluctantly persuaded that the offending words are necessary. This has been so clearly explained by my noble friend Lord Boyd-Carpenter that I shall say less than I had intended to say. It is the essence of the argument that my noble friend Lord Renton seeks to put forward that, as a matter of practice, the Treasury will be brought in when decisions which affect expenditure are being taken, and therefore it is not necessary to say so on the face of the Bill. As my noble friend Lord Boyd-Carpenter so appositely and clearly stated, if you change what is written on the face of a Bill, dealing with a matter which has been dealt with for decades with the same formula, it is necessary for those interpreting the statute to find some reason for your having done so; and the only reason that this amendment would leave available to the critical reader would be that we thought it less important to control expenditure in this area and that the authority of the Treasury was in some way reduced and mitigated. That would be misleading.

I am strongly advised that the words: requiring the consent or approval of the Treasury", protect the authority of Treasury Ministers. It would be highly undesirable if, by departing from established convention in this Bill, we were to risk giving the impression that decisions in matters covered by it were only a matter for the Attorney-General, the Director or the Lord Chancellor, as the case might be, without reference at all to the Treasury. This is a matter of some importance. I understand how my noble friend feels about the deference which I sought to pay to the Commons, but this is a money matter and I think it is without doubt that the Commons must have the first say because it is the House which traditionally deals with Supply.

325 I wrote a letter at greater length, even, than the quotations by my noble friend Lord Renton might lead your Lordships to expect, which went into this all very thoroughly. It was placed in the Library. I think I have said enough from it to show how we on these Benches would expect our noble friends to resist any attempt to amend the Bill in this way.

Lord Renton

My Lords, in spite of my disagreement with my noble friend, I should like to thank him for the letter which he sent to the noble and learned Lord, Lord Simon, and for his generally open-minded approach to this matter. I should like to thank the noble and learned Lord, Lord Denning, for raising a question of principle which I did not raise when moving the amendment. My old friend Lord Boyd-Carpenter—he used that term, so rightly; I will not say how old—is a former Chief Secretary to the Treasury and therefore it was not surprising to hear him singing an old Treasury song. I was disappointed that my noble friend Lord Elton was so eager to join in the chorus of it. I think that their speeches entirely ignore the tremendous power that another place has over Ministers who are answerable to it—as are some Ministers before your Lordships—and who have control over regulations and public expenditure.

I hope that it will not go down on the record that I accept that the matter was approached by me in a light-hearted manner. I think that that was the view expressed by my noble friend Lord Boyd-Carpenter. There are some of us who feel very seriously that there is too much nonsense that by habit goes into Acts of Parliament, and this was an attempt to try to get rid of some of it. However, having given the matter a good airing, I beg leave to withdraw the amendment.

Lord Elton

My Lords, in recognising that the noble and learned Lord's epithets are entirely suitable for St. Valentine's Day, I cannot entirely follow him in his enthusiasm for the amendments. They are, if I may say so, entirely presentational and I am sure that the noble and learned Lord would accept that view, because we are concerned with the presentation of the service to the public.

The change that the noble and learned Lord proposes would not be a substantial change in the Bill. I would not suggest that we take strong exception to it, but we ought first to consider very carefully whether it would be a change for the better. We need to ask ourselves: what is the case for it, and what is the case against it?

As I understand it, the noble and learned Lord is saying that the case is this. Those who are likely to transfer into the new service are thought to prefer the term "Crown advocate" to that of "prosecuting officer". Perhaps they believe that it sounds less partial or of higher status. I am not at all sure that the existing prosecuting solicitors as a group take that view, but I believe that the noble and learned Lord has a view on that matter.

In any case, some individuals no doubt do dislike the term "prosecuting officer". I think that there may be others who would dislike being called "Crown advocate". However, there are some incidental difficulties with the term "Crown advocate" itself. In the first place, it could be taken to imply that the principal function, if not the only function, of those so described is advocacy. It is true that providing advocates in the magistrates' courts will be one of the main functions of the new service but it does have other functions.

It will, perhaps first and foremost, be responsible for taking over the conduct of cases where the police have initiated a prosecution. As our debates in Committee made clear, that function will include a duty to consider whether to continue with the prosecution, as well as the other decisions which need to be taken once the case has come to court. Officers of the service will also exercise other functions now undertaken by the Director, including the giving of consent to prosecution for various offences. And the service will brief counsel to appear in the Crown Court. Therefore, they will not be simply a force of advocates.

To describe members of the service as "Crown advocates" may give a misleadingly narrow impression of what they will actually do. In fact, 327 whatever name we choose to apply to any officer of the service designated under Clause 1(3), some of them may not, as it happens, appear as advocates very often at all. That is my first reservation about the proposed new term.

My second reservation is its relationship to the title that we have decided to give to the senior member of staff who is responsible for supervising the operation of the service in an area. He is to be known as the "Crown Prosecutor". If we agree that the way in which the service is perceived and understood by all and sundry is important, then we have to ask ourselves whether it would be clear that the Crown advocate works under the supervision of the Crown Prosecutor. I do not think that it would be clear. At present, we have in the Bill three levels of authority marked out by three clearly related titles: the Director of Public Prosecutions; the Crown Prosecutor and prosecuting officer. The function of prosecution is explicit at each level. The amendment seeks to provide that it should remain explicit in the upper levels, but should not be referred to at all at the third.

I know that these are minor rather than major objections to the new suggested name. If it were clear that the new term had strong advantages over what is in the Bill, I dare say that they would not prove conclusive. But I doubt whether the new term does have such advantages. As I have said, the main claim for it seems to be that it avoids a connotation of partiality, of being identified with the prosecution. But if this were a substantive point, then presumably we should have to think again about the title "Crown Prosecutor" and, indeed, "Director of Public Prosecutions". I am not aware of any significant body of opinion that these terms are unsatisfactory and I would very much like to hear the views of others of your Lordships on this matter, if they are strong views, before concluding the matter. My view at the moment is that the case is not made out.

Lord Mishcon

My Lords, before the noble Lord the Minister sits down, may I ask him in all frankness whether he is himself pleased with the title of "prosecuting officer", and if he is not, whether, with the usual open-mindedness that he has just expressed, he would be prepared to consider the term to see whether a better title is available when we come to Third Reading? My noble and learned friend and I are not wedded to the title of "Crown advocate": we merely want to improve on what seems to be a bad title at the moment.

Lord Elton

My Lords, with your Lordships' leave, what I sought to say was that I did not wish to suggest that "prosecuting officer" was perfect. I was saying that, whatever its level, "Crown advocate" seemed to be misleading, and we should not be content with that. I do not find the term "prosecuting officer" objectionable; but of course I shall consider whether there are adequate reasons for thinking that something else might be better. I do not think that such an idea will spring into my mind of its own volition, so if the noble Lord or anyone else has ideas to canvas, I should be interested to hear them. In advance of that, I cannot undertake to bring forward an amendment at the Third Reading.

Lord Elwyn-Jones

My Lords, as the noble Lord has approached this matter sympathetically, and in the light of what has been said, I beg leave to withdraw the amendment.

The Lord Chancellor

My Lords, we now come to Amendment No. 5, to which I think the noble and learned Lord has spoken. He has indicated that he wishes to divide the House on it.

Lord Campbell of Alloway

My Lords, I supported the spirit of this amendment at Committee stage and I support the spirit of it today. There is an important point of principle involved here which brings into play the more enlightened approach, as some of us think, of Scots' law in this regard. But my noble friend the Minister gave a specific assurance, and I for my part am wholly content with the form of assurance that he gave. Perhaps this is where my noble friend Lady Faithfull and I do not totally agree.

I agree with the spirit of what she proposes, but I am wholly content that this should be implemented in accordance with the full undertaking given by my noble friend at Committee stage. It is more appropriate, is it not, that the implementation should be by 331 means of administrative rules and directions rather than that it should clutter up the body of a statute? Providing that that assurance is honoured—and I am sure that it will be—surely that is sufficient.

Lord Mishcon

My Lords, as I said at Committee stage, it will come as no surprise to anyone—certainly no-one who heard the speech of my noble and learned friend Lord Elwyn-Jones at Second Reading—that we support the whole spirit of this amendment. Therefore, I do not intend to make a long speech at Report stage. What I notice is that the noble Baroness, Lady Faithfull, has taken the trouble to set this amendment down in rather different wording in order to procure a more ready acceptance.

I find myself surprisingly often in agreement with the noble Lord, Lord Campbell of Alloway, but I am not sure that I read—and it may be that I have omitted to read something—the clear assurance which he said the noble Lord the Minister gave. I ventured to call for an assurance. I am reading from column 1097 of our proceedings at Committee stage on 17th January, and this is what I said: If the Government could give an assurance in regard to specialisation and the allotment of such cases to those who are the specialists within the service, one would hope that a suitable amendment could either come forward from the Government or from those of us who take this matter so seriously, as do those who sit on these Benches. This was really no political matter at all. Noble Lords from all sides of your Lordships' Committee spoke in favour of this. I remember the speeches made from the Alliance Benches, which obviously supported the spirit of the amendment.

There are two things I have to say. First, it may be that I am wrong about this but the only quotation that I can find from the noble Lord the Minister is at column 1103 of the same day: I am glad to tell your Lordships that the Director of Public Prosecutions is already seized of the point that special considerations apply to juvenile cases". if I may pause there for a moment, it would be most surprising if he were not— and does not dispute the need for prosecutors in juvenile court cases to be attuned to the special procedures and climate of the court". These are completely inoffensive words. If you analyse them, all that they amount to is, "Yes, in regard to this amendment the Director of Public Prosecutions knows perfectly well that juvenile cases often have to be treated rather differently, and one would hope that in juvenile cases there ought to be prosecutors who are attuned to the special procedures and climate of the juvenile court".

That does not go anywhere near the assurance I was seeking, nor does it come up to the wording and spirit of this amendment. Obviously it will be for the noble Baroness, Lady Faithfull, to give her opinion upon this, but speaking from these Benches I see no earthly reason why a suitable amendment cannot be incorporated in the Bill in order to see that the spirit is there in appropriate wording.

The one objection (which I thought was a most formidable one) that the noble Lord the Minister 332 expressed last time was that he said, understandably, that in certain areas where the prosecutors available were rather thin on the ground—this might happen, indeed, quite often—the one person in the outfit who had the special experience and the special training may not be available that day because he was prosecuting in another court, or because he was ill, or because he was on holiday. If there were too much of a mandatory provision, presumably, to comply with the provisions of the Bill if it were amended, there might be an abortive prosecution or severe inconvenience caused to the court and to the defendant by the proceedings having to be adjourned. I thought that was a perfectly valid point.

That is overcome only if there is in the Bill a provision not to the effect that one hopes that the present Director is seized of the difference and so on, but a special provision, or at the very least an undertaking from the Minister, although personally I should not be as happy with that, solemn and sincere though that undertaking would be from the noble Lord the Minister. I am seeking at least an assurance that this would be taken on board, that there would be specialist training courses, or that there would be enlisted people who had this special experience. Without that undertaking we have nothing except a general statement of the kind I quoted. With it I should not be as happy as I would be if a suitable amendment were made to the Bill, so that the provision of this specialist training was provided for by statute.

Baroness Macleod of Bone

My Lords, I, too, supported the noble Baroness, Lady Faithful], at the Committee stage. I should like to do so again, for the reasons given by the noble Lord, Lord Mishcon. He quoted my noble friend the Minister when he said that specifically trained prosecution people might be thin on the ground, but from my fairly lengthy experience I believe that those juveniles who have committed crimes may also be thin on the ground. Thus I do not believe that that holds water. I support the amendment, though not the wording, because, like my noble friend, I stuck on the two words "reluctant" and "specific"; otherwise I support the amendment.

Lord Donaldson of Kingsbridge

My Lords, from these Benches we fully support the noble Baroness in what she is trying to do. We share some of the doubts about whether the phrasing or the drafting is correct. In particular, I should like to support the request of the noble Lord, Lord Mishcon, that we do not just leave it to the good will of the Minister, but that the Government provide us with a suitable amendment expressing the intention of the noble Baroness, but perhaps more accurately and clearly.

Lord Elton

My Lords, I am grateful to my noble friend for explaining the intentions behind her amendment and for prompting this short but interesting debate. We went into the question of the new service's arrangements for handling cases involving juveniles in some detail in Committee, but the subject is intrinsically extremely important and I do not regret returning to it at this stage of progress on the Bill.

333 As I said in Committee, we very much agree with the noble Baroness that when a juvenile is prosecuted the officer of the new service who is conducting the case should do so with due regard to the special procedure and climate of the juvenile court.

I am happy to repeat and clarify, which is I believe what noble Lords wish, the reassurance I then gave. It was that the Director of Public Prosecutions was fully seized of both the special considerations affecting juveniles and the implications for training and development of the new service. I gave that assurance at column 1103, at the point at which the noble Lord, Lord Mishcon, correctly quoted me. I wish also—as I sought to do two paragraphs later—to undertake on his behalf that in areas where there is sufficient juvenile court work to justify specialisation, whether whole time or part-time, officers of the new service will be both assigned and trained specially to deal with juvenile cases. I hope that that is sufficiently explicit.

I argued then that to place a requirement about specialisation on the face of the statute would unhelpfully trammel the Director in managing the new service, and that these were matters that were better dealt with administratively in the manner I have described. The same criticism applies to the amendment which my noble friend has brought forward today. It is one thing to establish, as one of the principles on which the new service would be managed, a recognition of the distinctive issues which arise in cases involving juveniles and to provide for them; but it is another to have within the statute a mandatory requirement that all prosecutions of juveniles must be handled by staff with particular experience and training. Would the defence be able to challenge the validity of the prosecution if that requirement were not met?—presumably it would; and how are the inexperienced to gain experience except by handling actual cases themselves?

I understand my noble friend's concern that the service should build up a corpus of expertise in juvenile work by seeing that that kind of work is not scattered indiscrimintely around the service but is handled by specific people who will add to the value of the training, which I have already said they will receive, a steadily growing volume of experience.

Management must respond to changing circumstances and change is something we cannot foresee. My real anxiety about amending the Bill in the general sense which my noble friend proposes is precisely that it is a Bill that we are amending. It can take as much as four years for even a very large and important matter to find parliamentary time for amendment, once it is enacted. What now looks like good management could quickly become out of date, for reasons that we cannot possibly foresee. We have had experience of this in the past, have we not? I believe my noble friend will recall the Mental Health Act 1959, which provided that various statutory functions relating to compulsory admission to hospitals should be carried out by what were termed mental welfare officers, appointed by local health authorities for the purpose. But after that, with the trend towards what is known as generic rather than specialised social workers, we found that very few social workers were designated as mental welfare 334 officers. Even those who were so designated sometimes lacked the expertise on the legislation required to perform their functions properly. As a result it was necessary to make provision in the Mental Health Act 1983—I believe that is about 14 years later—for the replacement of mental welfare officers by approved social workers. I think my noble friend took part in the debates on that when we took that legislation through Parliament. This illustrates exactly what I am saying—that what could be a strength now could become an albatross later. Therefore what is wanted is not something immutably in statute, or semi-immutably in statute, but something more flexible.

The terms in which we express an enduring and simple principle can be overtaken by changes in the context in which they are intended to operate and be rendered completely inappropriate. It would be a great pity if that were to happen in this case.

I know that my noble friend is concerned that an undertaking given by this Government cannot bind their successors and that she feels that binding it by statute means at least security until parliamentary time could be found by a successor for repeal. But I ask her to recall that it will be the Director, not the Government, who will run the service. We have an extremely satisfactory statement from the Director, which I have given, of the basis on which he intends to handle this matter, and the service does not necessarily change as do a government upon the holding of a general election.

I do not think that I need waste your Lordships' time by addressing myself to the other reservations I have regarding the amendment because several of your Lordships, and, indeed, my noble friend herself, have accepted the defect.

Lord Mishcon

My Lords, before the noble Lord adds to that remark may I, with the leave of the House, ask whether he is prepared to undertake that there will be issued to those who are appointing guidelines which would be along the lines of the amendment proposed by the noble Baroness? In other words, will guidelines be issued by the Home Secretary to the Director pointing out the advisability of people of this kind being appointed to this service, within the words of the Minister's assurance?

Lord Elton

My Lords, my brief says "guidance", but my advice is that they will be expressed in guidelines. If that is sufficient, I need say no more.

Baroness Faithfull

My Lords, I should like to thank all noble Lords from all Benches who have spoken in support of the spirit of this amendment. In the light of the reply given by my noble friend the Minister to the noble Lord, Lord Mishcon, that the point will be embodied in guidelines, at this stage I beg leave to withdraw the amendment.

Lord Rawlinson of Ewell

My Lords, always this House and the profession which the noble and learned Lord has adorned for so many years loves to hear him speak of Wales. I have heard him, not in this House, but on a great oral occasion at the American Bar Association burst into song, to the terror of the American Bar and to the great delight of those of us who were supporting him. I always wonder when he says that Welsh is the oldest European language. He says it with great authority but I am never really sure that that is an actual fact. However, it is now on the record.

When we come to look at this particular amendment, it is quite obvious that the Director of Public Prosecutions, if he has any sense—which he has—and his local directors who have any sense will ensure, if he wants to get any convictions, that there will be prosecutors with the ability to understand, if not at least to speak, Welsh when they are conducting prosecutions. Is it really necessary to make it mandatory? I should have thought it was more sensible to leave it to the good sense of those in charge 336 of prosecutions in Wales to make sure that they have adequate and sensible prosecutors. As I say, they will be those, for otherwise there are those asides between counsel and witnesses which are sometimes not understood by the mere English-speaking members of the Welsh Bar who cannot understand exactly what is happening. I should have thought it much more sensible to leave this to the good administration of the Director to make sure that he has the appropriate officers and not to make it mandatory, as is suggested with such patriotic fervour by the noble and learned Lord.

Lord Denning

My Lords, I hope that I have as much affection for the Welsh language as anyone. I have been on the Welsh circuit twice and I did not have to have an interpreter on any case except one and then the witness wanted time to answer the question, so we had an interpreter to turn it from Welsh into English. Seriously, can we make this provision in regard to prosecutors but not also in regard to judges or magistrates or defending counsel? Surely, as my noble and learned friend Lord Rawlinson says, we can leave it to good administration; and the Director or the Crown prosecutor in arranging these matters will certainly see that in any appropriate case there is a counsel or a solicitor who can speak the Welsh language. I should have thought that it could have been dealt with administratively without being put expressly in the statute.

Lord Hunt

My Lords, I have no idea whether I am voicing a view held by my colleagues on these Benches; but I feel moved to rise briefly to speak from my heart in support of this amendment just in case the noble and learned Lord who has moved it would have no other support except from me. I have the deepest affection and long connections with Wales. I have some knowledge of the language and it seems to me that this is a matter of some importance despite the difficulties.

Lord Prys-Davies

; My Lords, I wish to make one or two very brief comments in support of the amendment which has been so ably moved by my noble and learned friend Lord Elwyn-Jones. My noble and learned friend referred to the principle of equal validity of the two languages in the courts of Wales, a principle enshrined in the Welsh Language Act 1967. The noble and learned Lord the Lord Chancellor himself declared in your Lordships' House on 12th June 1973 that it had always been his intention—and here I quote the words of the noble and learned Lord the Lord Chancellor: to give full effect to the principle of equal validity both in spirit and in letter". Indeed, most Welsh people are very grateful to the noble and learned Lord the Lord Chancellor for the personal interest that he has shown in the implementation of the principle in the courts of Wales.

It was on his initiative that the noble and learned Lord, Lord Edmund-Davies, was invited to review the implementation of the 1967 Act in actual practice in the courts of the principality, and we are all grateful to the noble and learned Lord, Lord Edmund-Davies, for his report. The report contained about a dozen 337 recommendations, and one of them is very relevant in the context of this Bill. The noble and learned Lord, Lord Edmund-Davies, recommended: that, all other things being equal, the prosecuting authorities be encouraged to present their cases in Welsh when this course is sought by the accused". This recommendation was accepted and this has been the practice. We are asking in the amendment that the practice be preserved.

In those parts of Wales where the language is at its most polished and is habitually spoken by the majority of the people, it is not uncommon for trials in a magistrates' court to be held entirely in Welsh. In the corner of Wales from which I come, South-East Wales, which is more Anglicised and where the language is in a minority position, I have myself known cases in a magistrates' court to be conducted entirely in the Welsh language. We wish to preserve that position. It is important that that position should continue and it is therefore necessary that the new prosecuting service should be under a duty to provide for prosecutors who are able to conduct cases in the Welsh language. Otherwise, many people fear that the principle of equal validity enshrined in the 1967 Act will, in practice, be undermined and this will spark off a great deal of trouble.

I shall not go on any longer except to say this. There is a precedent for this kind of amendment which predates the 1967 Act. That precedent is to be found in the Administration of Justice (Miscellaneous Provisions) Act 1938, which provided for the appointment, when practicable, of Welsh-speaking chairmen or deputy chairmen of the quarter sessions in Wales and Monmouthshire. That being the position in 1938, we should certainly stand by that position in 1985 and I very much hope that the Government will find this amendment acceptable.

Lord Elton

My Lords, I am grateful to the noble and learned Lord for giving us an opportunity to discuss the important subject of the use of the Welsh language in court proceedings in Wales. The Government are well aware of the importance of the Welsh language in sustaining the culture of that country. One has only to read the distinguished and very appropriate names attached to this amendment to realise that the noble and learned Lord and the noble Lords supporting it have the well-being of the Principality very close to their hearts. They want the best for their people and they want it expressed in a way which respects and even supports this unique fascinating culture. As to its antiquity, I shall not enter the lists. They are Welsh and, rightly and properly, they want the best for Wales and that is something in which we entirely support them.

Their aim in tabling this amendment is to facilitate the use of the Welsh language in Welsh courts and we have no quarrel with that aim. This is a Government of all our people and the welfare and identity of Her Majesty's Welsh subjects are as much in trust to it as are the welfare and identity of her subjects in other parts of this United Kingdom. So let us look at the field to which these noble and Celtic Lords have turned our attention.

As your Lordships may be aware, Section 1 of the Welsh Language Act 1967 already provides that any 338 party to legal proceedings in Wales may speak Welsh if he wishes so to do. Section 2 of that Act also provides that forms for use in magistrates' courts in Wales should be available in Welsh. Such forms may, for example, contain a Welsh version on one side of the paper and an English one on the other. They are currently being revised and, we hope, improved, I mention that only to illustrate that in practice, as well as in law, there is no bar to legal proceedings being conducted in Welsh if one of the parties wishes it. And if, as may well be the case, another of the parties to the proceedings does not speak Welsh a translator must, under Section 1 of the Act, be provided for his benefit.

In those circumstances, what effect would the requirement proposed in the amendment for the Crown prosecutor in Wales to appoint Welsh-speaking prosecuting officers have? That requirement would be additional to the requirements in the Act that I recited. It is a requirement upon the appropriate Crown prosecutor to appoint Welsh-speaking prosecutors in the area described as "Wales and the County of Gwent". May I briefly in parenthesis, and with the greatest respect, remind noble Lords opposite about that description—because as an Englishman I make the intervention with the greatest deference and respect—that the whole of the county of Gwent is, as I understand it, in the principality of Wales. When Monmouthshire was on the map, the border marched through it and it was necessary to refer to Monmouthshire in the way that the noble and learned Lord has referred to Gwent. But that necessity no longer arises, because my fellow nationals lay no claim to a single yard of that beautiful county any more and, happily, the words are not needed.

5.15 p.m.

But I digress. The main point is that the amendment would require the Director and the Crown prosecutor to appoint Welsh-speaking prosecutors in Wales. That requirement appears to be qualified by the words at the end of the new clause "as may reasonably be required". There is some uncertainty as to the effect of what I take to be the saving clause. But if the words are effective, they will presumably mean that it will only be necessary to appoint as many Welsh-speaking prosecutors as experience proves to be required or as expectation suggests. It may be necessary to act in every case, or perhaps in most cases, where some of the parties or witnesses wish to speak Welsh. Whether or not the qualification is effective, it seems to us that, though we sympathise with the noble and learned Lords' intentions, we are in some difficulty when it comes to satisfying them in the way they suggest.

Let us look, first, at the requirement as if it were absolute, and then as if it were qualified in the way suggested. We must of course remember that, no less than noble Lords opposite, we want the best for Wales and that must mean procuring the best practitioners for Welsh law. Welshmen are indeed formidable in the law and I do not need to turn to history for the proof of that. I have only to point to the Benches opposite. But formidable Welsh lawyers are not necessarily formidable Welsh speakers. Indeed, speaking Welsh is in some respects I rather think, having made the attempt, more difficult than practising the law, and I hardly think that noble Lords would assert either that 339 all the best lawyers always speak fluent Welsh or that sufficient of the Welsh-speaking best will always be available and anxious to fill the posts that will become vacant.

If the requirement were unqualified, it therefore follows that the amendment which the noble Lords, who want the best for Wales, wish to put forward could result either in compelling the Welsh having to wait indefinitely for justice at the hands of an inadequately staffed service of experts, or actually requiring the Director and the Crown prosecutor for the time being to provide the Principality not with the best but with second best, and I am sure that noble Lords would not wish to place such an absolute requirement on the statute book.

I therefore take it that they would, in fact, wish to place a saving qualification upon it so let us turn to the last five words of the amendment. They mean that the new clause is intended to have the effect of obliging the Crown prosecutor to provide Welsh speakers only where it is likely that the case will be heard in Welsh; and, again, we are in a difficulty. First, it may be that there are simply not enough Welsh-speaking prosecuting officers to cover all the cases conducted or partly conducted in Welsh in a particular area. And, again, the requirement would have the effect of delaying or disrupting the criminal justice system in Wales, simply because a Welsh-speaking prosecuting officer could not be found, even though under the Welsh Language Act 1967 a translator would be available to the defendant and to any witness to testify in Welsh.

I should say that if it does have the effect of a let-out, if the saving clause means that the service can operate even if there is not a qualified Welsh speaker to operate it, then it seems to me that the force of the amendment is entirely lost, because the whole thing becomes discretionary upon the Crown prosecutor. If what noble Lords want today is an unequivocal statement that the Government stand by Sections 1 and 2 of the Welsh Language Act 1967, they can have it and they have it. If they want an undertaking that the ability to speak Welsh competently will be one of the characteristics considered and given importance in recruiting new members to the service in Wales, that also I can and do give. But I doubt whether noble Lords whose names are on the amendment would want to place on the statute book a requirement that must on occasion, and as drafted, result in Wales from time to time having to put up with less than the best.

Lord Elwyn-Jones

My Lords, we are of course grateful for that unequivocal commitment and statement of the noble Lord. After many long sessions with him on the devolution Bill, I know how sympathetic he personally is to the aspirations of the Welsh people. We are this year celebrating the millennium of the law of Hywel Dda introduced by that great Welsh prince in the tenth century. It was a law which was the law of Wales until the Welsh Tudors, I regret to say, put an end to it with the Act of Union. But the traditions of the Welsh language and the use of the Welsh language is a precious heritage to the Welsh people and is also—I was glad to note it in the noble Minister's speech—acknowledged and 340 respected by all the inhabitants of the island, which is right and proper.

The purpose of the remaining five words was really to give an illustration of the moderation and not the extremism in the proposals. Some interesting and important semantic points were raised sympathetically by the noble Lord. What I have it in mind to do, if my noble friend Lord Prys-Davies agrees with me, is to give further thought to the precise language of the clause and possibly re-introduce it at the next stage of the Bill. In those circumstances, I ask leave to withdraw the amendment.