§ 5.2 p.m.
§ Consideration of amendments after Third Reading, resumed.
§ Clause 26 [Consents to be admissible in evidence]:
§ Lord Elton moved Amendments Nos. 33 to 35:
§ [Printed earlier: col. 1018.]
§ The noble Lord said: My Lords, with your Lordships' leave, I shall move Amendments Nos. 33, 34 and 35 en bloc.
§ On Question, amendments agreed to.
§ Schedule 1 [Minor and consequential amendments]:
§ Lord Elton moved Amendments Nos. 36 to 39:
§ [Printed earlier: col. 1030.]
§ The noble Lord said: My Lords, I have already spoken to Amendments Nos. 36, 37, 38 and 39. I beg to move them en bloc.
§ On Question, amendments agreed to.
§ Moved. That the Bill do now pass.—(Lord Elton.)
§ Lord Rawlinson of Ewell
My Lords, I was not sure whether my noble friend Lord Elton and the noble and learned Lord on the Opposition Front Bench had intended to speak straight away but perhaps they wish to fulfil their responsibilities after the common herd have spoken. I very much welcome the Bill, as, I think, do all noble Lords. It has long been my desire that there should be a service of this nature. During the time that I had responsibilities for prosecution policy, I should have much liked a service such as that to be established by the Bill. I should, however, like to say that it may impose on an Attorney-General considerably more parliamentary matters to deal with in another place. I wonder whether this has been thought about. I have perhaps exaggerated, but that is my feeling. He has the responsibility of appointing the director responsible for the service throughout the country. As a result, there may be more parliamentary work devolving upon the Attorney-General. I could be wrong, but it is perhaps a matter that should be borne in mind.
It is extraordinary, in my view, that we have in our system the criminal law as the responsibility of the Home Office while the civil law is the responsibility of my noble and learned friend the Lord Chancellor. No one could have conducted the progress of the Bill with greater efficiency and grace than my noble friend Lord Elton. But it is strange—is it not?—that we divide up matters of the law—the criminal law for the Home Office and civil law for the Lord Chancellor's Department. I have always wondered whether this was a sensible division. However, I digress in saying that from discussing the service provided for in the Bill.
It is important that the prosecuting service, the rules under which it is conducted and the fact that guidance is given to the prosecutors, should be clearly understood and appreciated. It is an important part of the administration of justice. That the service should remain independent is of great importance. It is also of immense importance that Ministers should not, in any 1046 shape or form, by any word unless asked for, give any comment or make any representation with regard to a prosecution. I read in The Times newspaper today that Ministers are saying that there is to be no prosecution in a particular case. Who are these Ministers? What right have they to say anything of the kind?
§ Lord Rawlinson of Ewell
It has been made perfectly clear to my satisfaction that in another case recently there was no political intervention whatever, and, as I have indicated publicly, no Director of Public Prosecutions with whom I have ever worked or whom I have known would have tolerated it for a moment. They would have resigned at once if there had been direct or indirect political intervention in a decision whether or not to prosecute.
We have to appreciate that this is an independent service, that it should be given the support of the general public, that there is a grave responsibility upon the prosecution and that it is in the interests of justice and the administration of justice that the guilty should be convicted just as much as that the innocent should be acquitted. Those prosecutions should be carried out fairly according to strict rules and according to the integrity of the service.
I believe that this service will—and, I hope, swiftly—gain a sense of morale and a sense of being a service so that it will be able to carry out its important functions independently bearing in mind always the supreme importance to the state of the proper administration of justice. I congratulate my noble friend on his excellent handling of the Bill, and I also congratulate the Government on introducing the measure.
§ 5.8 p.m.
§ Lord Elwyn-Jones
My Lords, before we say farewell to the Bill I should like to join with the noble and learned Lord, Lord Rawlinson, in thanking the Minister, Lord Elton, for his competence, care and courtesy in the conduct of the Bill. I was tempted to say that the Bill is like the curate's egg—good in parts. But that has been said so often about so many things that I wondered whether I should. There are certainly good elements in it. The most important of these—the noble and learned Lord, Lord Rawlinson has already referred to it—is the reform of the prosecution service in England and Wales by the creation of an independent prosecution service. Concern was expresssed in some parts of the House at an earlier stage of the Bill about the danger of over-centralisation. We were assured and re-assured by the noble Lord the Minister stating that when the new service is established there will be not less delegation of decision-taking to local level, but more. He also announced the proposal to lay an amendment to the regulations to give greater flexibility in allowing cases to be left at the local level in the run-up to the introduction of the new service. I am sure that those considerations will be very important.
Another beneficial aspect of the Bill was the important commitment of the Government to the introduction of a system of time limits in criminal proceedings. Your Lordships will remember that 1047 Clause 23 is an enabling clause on time limits in relation to preliminary stages of criminal proceedings. We endeavoured to turn and transform the clause into an actual scheme but, no doubt for good reasons, that was not accepted. However, we await with interest this important development which we think should hasten the bringing of proceedings to a conclusion and shorten the waiting time between arrest or summons and trial. Today's decision, which the House has approved with enthusiasm, to extend the power to award costs out of central funds to summary offences, has been generally welcomed.
On the debit side, I confess that on the eve of St. David's Day I was sad that, in my absence, the Government felt unable to support the proposal in regard to the importance of an adequate supply of Welsh speaking prosecutors in the Principality. I noticed upstairs the Welsh translation of the oath or the affirmation that witneses may take in the Welsh language. I should have thought that there might be a slight risk—but I shall not labour the fact—of someone enjoying that opportunity to say things in the Welsh language not wholly consonant with the purpose of the taking of the oath, but I may be doing an injustice to my fellow countrymen.
I come to the final matter which I wish to mention. First, in retrospect, I recall the fear with which we met the suggestion but, in the event, it was successfully destroyed by a large majority in your Lordships' House. I am referring to the proposal to give to the Attorney-General power to refer too lenient sentences to the Court of Appeal. I confess that I have been disturbed by reports—I cannot believe that there can be any word of truth in them—that it is the Government's intention to restore that monstrous provision in another place: a provision which is almost universally abhorred. I beg the Minister and the noble and learned Lord the Lord Chancellor to use their considerable influence and not to embark upon such folly for a second time. Apart from that, I share approval of much of the Bill and regret some of its omissions.
§ 5.13 p.m.
§ Lord Wigoder
My Lords, we on these Benches should also like to say that we regard this Bill as being of very considerable importance in the administration of our criminal law, and we do so primarily for two reasons. The first is that it serves to remove the police by one stage from the prosecution process and that can only enhance the confidence which the public feel, and ought to feel, about the independence and impartiality of the police. The second reason is that it will help to create a career structure in the prosecution service which will encourage people of real calibre to continue to come forward and support it.
There was only one matter of real controversy that arose during our proceedings; namely, the matter to which the noble and learned Lord, Lord Elwyn-Jones, referred—if one can refer to a matter as being controversial where one voice is raised in its favour and some 12 or 14 are raised against it. I suppose that if the voice is sufficiently stentorian then it does, indeed, become a matter of controversy.
I should like to add to what the noble and learned Lord, Lord Elwyn-Jones, said about it. Opinion in this 1048 House was almost unanimous. It was extremely strong and it is still very, very deeply held. If, unhappily, a proposal is brought forward in another place as regards such a non-political measure as this and it is sent back to us, then I have no doubt that opinion in this House will repeat itself in precisely the same way as on the first occasion. I would be sorry to think that there might be a conflict between the two Houses on an issue of this nature. If that conflict were to arise, it would not be the fault of your Lordships' House but the fault of those who chose to disregard a body of extremely well-informed opinion on a matter such as this.
Finally, I should like to say how grateful I am, as I know everyone else is, for the way in which the noble Lord, Lord Elton, has played his part in steering this Bill through your Lordships' House with, if I may say so, conspicuous ability, great care and above all great courtesy. The noble Lord is perhaps not quite unique on the Government Front Bench. However, it is fair to say that if he says in the course of a debate that he will write to a noble Lord, in due course a letter comes and it is a full and careful letter. We are all very grateful to the noble Lord for the consideration he has shown to all of us during the passage of this Bill.
§ 5.15 p.m.
§ Lord Campbell of Alloway
My Lords, I ask your Lordships to permit a very brief intervention not just to welcome the Bill, which I do wholeheartedly, not just to pay a tribute to my noble friend Lord Elton for having an open mind, which I also do wholeheartedly, or to pay tribute to my noble and learned friend the Lord Chancellor; but to point out that in the course of this debate a certain injustice was exposed but the view was taken by my noble and learned friend the Lord Chancellor that it ought not to be dealt with in this Bill. In deference to that view, the matter was not pursued beyond the Committee stage.
However, where orders banning publication of material are made under the Contempt of Court Act 1981—and this is a matter of considerable importance to the media—there is no practice direction as to the hearing of representations of those affected by the order, before the order is made: there is no appellate procedure; there is no judicial review: there is no power of the Crown Court judge to order costs. The hope is that these defects will not for ever remain overlooked. That was really the main reason that I sought to trespass upon your Lordships' indulgence.
§ 5.18 p.m.
§ Baroness Phillips
My Lords, I should like to thank the Minister for piloting this Bill through your Lordships' House. I am bound to say that I surveyed it with a certain amount of cynicism because it seemed to me that to put the right of prosecution into a separate department was putting power into something newly instituted which could not always operate in the way in which the layman might want it to operate.
While we are on the subject of majorities and minorities, I point out that I think I am in a minority compared with others of your Lordships who have spoken in the Bill. I say that because I am not a Law Lord or learned in matters of law in the same way as 1049 others who have spoken and who therefore, if I may say so, have as much a vested interest as the farmers who speak on an agriculture Bill.
In my view, we must consider the independent prosecution service in relation to the fact that the citizen must have preserved the right—and I am glad that this point has been left unsaid because I assume that it is still the case—to institute a private prosecution if he is not happy with the decision of the Crown Prosecution Service. That is a very important right which must remain in our British law.
As I have listened to the debates on this Bill and to the speeches made on various points—for example, provision as to costs in criminal cases, the imposition of time limits and so on—I have called to mind the various letters that have been sent to me following the speech which I made during the passage of the Bill. I have received letters from ordinary people who are concerned that the offender in our society receives far more consideration—whether it be in Parliament or in the courts—than the victim.
Perhaps I may cite one poor lady. She is a woman of 83 who had been burgled, and the burglar had stolen £100 worth of goods and money. He was caught, prosecuted and finally found guilty. However, apparently this lady has no right to claim anything back. She said to me: "What about restitution?" We have spoken—and no one would disclaim this—about the time factor that can hang over an offender; we have dealt with the fact that he may have to come back again; and the fact that there is a limit to the amount of costs, and so on. But let us not forget that there are two sides to every criminal case. There is the offender and the person who has suffered. I hope that some legislation may come before us which will deal with some of the inadequacies of the law which seem to affect the people who have suffered.
I wish the Bill a fair passage. The noble Lord, Lord Wigoder, has mentioned the ratio of 1:14. It will not be the first time in my life that I have been in a minority of 1:14. I would only suggest that the clause be re-introduced in some form. I think there is a principle here that should be underlined. I just wanted to make these few remarks at this stage of the Bill.
§ 5.22 p.m.
§ Lord Renton
My Lords, I am glad that the noble Baroness has underlined the fact that the Bill preserves the right of private prosecution. The noble and learned Lord, Lord Simon of Glaisdale, who at this moment is attending a very important family christening elsewhere, has asked me to draw attention to some correspondence which he has had with my noble friend Lord Elton.
The position is that, although the right of private prosecution has been preserved by the Bill, it is a right which over the years has been steadily eroded by provisions made by Parliament that prosecution for this or that offence shall take place only with the consent of the Director of Public Prosecutions or sometimes with the consent of the Attorney-General. Indeed, there are cases in which not merely is consent required; as we well know, a very wide range of prosecutions are entirely in the hands of the Director of Public Prosecutions.
1050 The presence of Clause 6, which deals with this right of private prosecution in the Bill, draws our attention to the fact that perhaps the time has come for us to take stock of exactly how far that right has been eroded in the ways I have mentioned. At an earlier stage the noble and learned Lord, Lord Simon of Glaisdale, referred to the need for a review of that and suggested that it should take place when the new service has been in operation for, say, five years. I am very glad to say that my noble friend Lord Elton has not only agreed that there should be such a review, but in effect has said: why should we wait five years? It would be better to have it much sooner. The noble and learned Lord has asked me to thank my noble friend for that view, which perhaps he would briefly be so kind as to endorse. I too should like to congratulate my noble friend and the Government.
Happily, this Bill has not given rise to party conflict, and, thanks to the way in which it has been handled by my noble friend and others concerned with him, I think we can say that the Bill is now largely an agreed measure. That is partly due to the great advantage which we have in your Lordships' House of being fairly free to carry amendments on Third Reading. Indeed, the amendments which we have had today were Government amendments which enable the Government to carry into the Bill various proposals which had been moved earlier on one side of the House or another. That is a great advantage which we have in this House.
Perhaps I may make a brief reference to the Welsh language. I should hate to be misunderstood in Wales because, I have many Welsh friends and have had such pleasant times in Wales. I emphatically concede the right of Welsh people to speak Welsh in their own country. I wish there to be no doubt whatever about that. I was doubtful whether the amendment moved today was really necessary or would achieve quite the object that its movers had in mind. However, we have received suitable undertakings from my noble friend Lord Elton that people who speak Welsh will have their rights respected when it comes to the administration of criminal justice in Wales, and I do not think that we need ask for more, especially bearing in mind the provisions of the Welsh Language Act.
That is all that I wish to say. Like other Members of your Lordships' House, having been briefed for the prosecution—by the DPP, by county prosecuting solicitors, by the old-fashioned type of police prosecuting solicitor, who was generally in private practice—indeed by almost every kind of solicitor, the fact that we shall have a unified service and a service which will be set up in the manner proposed in the Bill, cannot but be a great advantage to the cause of justice.
§ 5.26 p.m.
§ Lord Mishcon
My Lords, in rising to address your Lordships on the Motion that the Bill do now pass, I make two promises: first, to be brief, and, secondly, not to repeat the very useful observations that have been made by previous speakers. The only words that I shall repeat are my own words of gratitude to the noble Lord the Minister for the outstanding ability which he has shown in the conduct of this Bill through your Lordships' House.
1051 Before this Bill passes from our Chamber, perhaps just a few words of appreciation and memory may be expressed about Sir Cyril Philips and his Royal Commission on Criminal Procedure. It happens to be almost precisely three years since that report was published and I should like to quote—I promise that it will be only a couple of sentences—the recommendation in that report in the chapter headed "The Commission's proposed prosecution on system". As we leave this Bill, at all events for the moment, as it goes to another place, I should like to quote this sentence to your Lordships:We want to secure that after a clearly defined point during the preparation of a case for trial and during its presentation at trial someone with legal qualifications makes the variety of decisions necessary to ensure that only properly selected, prepared and presented cases come before the court for disposal; and to do that without diminishing the quality of police investigation and preliminary case preparation and without increasing delays".That is precisely the principle behind this Bill.
I wish to raise only two other matters before I sit down. In a way I am sorry that the noble Baroness, Lady Faithfull, is not here to participate in this debate on the Motion that the Bill do now pass. I only want to emphasise what we on these Benches were happy to say in support of the noble Baroness's plea for the special qualifications within this new prosecution service: that those who deal with juveniles should know something about juveniles and their problems. At the end of a debate, in answer to a question that I put to him from these Benches, the Minister was good enough to give an assurance that guidelines would be issued to the Director in order to ensure that staff with those qualifications would be employed so that the necessary care could be given to juvenile cases.
I turn to my very last point. In the course of our proceedings we have endeavoured to emphasise what the Bill is meant to do, which is to ensure that in the public eye there is a clear differentiation between the police with their powers of investigation and the prosecuting service that we are setting up. In order that the public should see that, we emphasised the need that the new service should not be located in police buildings. The noble Lord the Minister dealt frankly with the difficulty that there might be in implementing that policy immediately. From these Benches I would urge him to see that as soon as possible it is apparent that the new prosecution service will not be located in police buildings, and where they have to be for the moment they cease to be as soon as possible.
§ 5.31 p.m.
§ Lord Simon of Glaisdale
My Lords, anything of substance that I had to say has been, I understand, kindly said by the noble Lord, Lord Renton. However, having escaped from the bawling in the Crypt to the quiet of your Lordships' Chamber, perhaps I may be allowed to pay a tribute to the way that the debates on this Bill have been conducted. It would obviously be invidious and presumptuous to single out all noble Lords who have contributed, not least because so many of them are personal friends and in many cases of very long standing. But I would wish to be allowed to pay a tribute to the noble Lord, Lord Elton, for the way he has piloted this Bill through your Lordships' House.
1052 It was a predecessor of his at the Home Office who, on arriving there, called the staff together and said, "My task is to prevent your governing this country so well that an infuriated populace will hang you from the lamposts in Whitehall". The noble Lord, Lord Elton, such is his ease of manner, his mastery of the material and his invariable courtesy has always managed to get your Lordships—and, as I have pointed out before, your Lordships' House in its composition is the best reflection there is of political society at large—to accept the Home Office measures without any inclination to any lamposts. He has had your Lordships eating out of his hand, however unpalatable the fare might be.
I hope I may also mention my noble and learned friend the Lord Chancellor. At Committee stage when we came to the late, unlamented Clause 22 I begged my noble and learned friend not to press it in view of the universal hostility that had arisen both professionally and among lay opinion. I am glad that the noble and learned Lord did not yield to my blandishment because otherwise your Lordships would have been deprived of what seems to me, with respect, to have been one of the greatest debating efforts in the whole of our political history. It must have put your Lordships in mind of what we read of Charles James Fox and the Elder Pitt. That the clause was nevertheless so condignly defeated was certainly not due to any lack of effort, energy, or intellectual power on the part of my noble and learned friend. All that remains for me to say is to wish this Bill well, and once again to express gratitude to the Ministers and to others of your Lordships.
§ 5.35 p.m.
§ Lord Elton
My Lords, this Bill started its life in your Lordships' House, although the noble Lord, Lord Mishcon, properly pointed out its more distant parentage and the great credit which that reflects on the Philips Commission. It also has some time to spend in Parliament yet, and I do not think therefore that it is a proper occasion for me to give a complete review of its intended virtues and of its fortunes so far.
I shall merely say that I believe it will lead to the more efficient management of the prosecution of offences: that, thanks to your Lordships' careful attention, it will achieve our aim of a good balance between national oversight and consistency and local direction; and that it will also ensure not only that there is a proper distance kept between those who investigate crime and apprehend criminals on the one hand, and those who prosecute them on the other, but also that this will be seen to be the case. That is, as noble Lords opposite have already pointed out, of great importance.
In matters like this the reality of what is done is of course of the greatest importance; but appearances are important too. Justice must not only be done, it must be seen to be done. The changes which your Lordships have brought about in the nomenclature of the service are therefore also of more than superficial importance.
To the extent that it is the lay public which have to judge the effectiveness of these and other changes, the contributions of those of your Lordships who, like me, are laymen in matters of law have been a welcome and valuable element. Those who my noble and learned 1053 friend the Lord Chancellor earlier called "legal grandees", and of whom I, as a layman, am properly respectful, have also left their mark on the Bill. With some of their handiwork the Government are, I must make clear, a great deal less than content. However, the extent of that discontent, and any decisions which flow from it about the power of referral of apparently over-lenient sentences to the Court of Appeal, will be made clear when the Bill falls to be discussed in another place.
Having expressed those careful words, I would pick up the words of the noble Lord, Lord Wigoder, and remind him that the noble Baroness, Lady Phillips, joined her powerful voice to that of my noble and learned friend who did not speak on his own on a matter which has the interest of lawyers and non-lawyers outside this House. Incidentally, may I be forgiven for not responding to each individual bouquet of compliments given to me during your Lordships' debate on the Bill do now pass. I do not think I deserve the degree of compliments I have been paid, and possibly I come furthest from deserving those paid by the noble and learned Lord, Lord Simon of Glaisdale. I am deeply honoured to have them for my mantelpiece, and I should like to say that I regard all your Lordships as having been constructive and helpful on all occasions—except when misled!—in the progress of this Bill through the House.
Reverting to my noble and learned friend Lord Rawlinson, who also made kind remarks, I am not sure which newspaper he reads, but the question of whether or not a prosecution is to be made in the case he refers to is for the Attorney-General, and I know that he would never be swayed by political considerations in the party-political sense of the word, and that is what matters.
§ Lord Rawlinson of Ewell
My Lords, it was no reflection at all of course upon my right honourable friend the present Attorney-General. I was just saying that it is reported in The Times newspaper that Ministers were saying that there was going to be no prosecution. I was pointing out that it is not the business of Ministers to say that. It must have been a very foolish report, or it must have been some Ministers—and I do not think it could have been—who were not doing what they ought to do.
§ Lord Elton
My Lords, my noble friend and I are saying the same thing. The decision is for the Attorney-General, who will conduct himself entirely properly.
Noble and learned Lords and others have also been careful and constructive critics of the detailed drafting of the Bill and have helpfully directed our attention to a number of matters and the Bill has benefited from their close attention. Your Lordships obvious concerns have also enabled me to give explanations and undertakings about a number of matters touching the interests of those whose employment will be affected by the new legislation and our own intentions as to the way in which we expect the powers in the Bill, when enacted, to be employed as regards, for example, the treatment of juveniles to whom the noble Lord, Lord Mishcon, drew attention.
1054 My noble friend Lord Renton referred to an undertaking which I gave to the noble and learned Lord, Lord Simon of Glaisdale, and I am happy to put it on the record that we accept the case for a review, once the new service has settled down, of the provisions requiring the consent of a Law Officer or the Director of Public Prosecutions to the bringing of proceedings for certain offences. My noble friend may slightly have misinterpreted what I said, because he implied that I undertook that we would have the review in fewer than five years: I hope we shall. What my undertaking was intended to do was to show that if the amendment which the noble and learned Lord had on the Marshalled List was incorporated in the Bill we should not be free to hold the review in less than five years. We hope and expect to have it in fewer than five years and the Bill in its present form will permit that.
§ Lord Simon of Glaisdale
My Lords, I was very remiss in not thanking the noble Lord for giving the assurance that he did, which he has repeated, quite correctly, in the form that he gave it. The letter is available if anyone wishes to see it. I can only express my gratitude.
§ Lord Elton
My Lords, there is nothing remiss in somebody who manages not only to attend the christening of a junior member of the family, but also to have his gratitude expressed indirectly and in person as well. I am most grateful.
My noble friend Lord Campbell of Alloway referred to an exchange which he had with my noble and learned friend. I understand that my noble and learned friend has already written to him to assure him that all aspects of his concerns are receiving careful consideration at the present time. Many of your Lordships have contributed generously to all this work, not only the spokesmen fo the various parties but individuals in all parts of the House. I am most grateful for the good and constructive spirit in which those contributions have been made. I said at the beginning that I feel a slight frisson of apprehension when the noble Lord, Lord Mishcon, in particular, refers to any Bill as not being a political Bill because I know the occasion is one when he feels himself freer than usual to woo the support of people who normally sit behind me and vote with me. I was not altogether mistaken in that apprehension on this occasion.
I honestly believe that we have made this Bill a better Bill as a result of the work of this House and that all sides and all levels of contribution have been constructive. There are many ways in which this Bill is now different, which it would not have been if it had not been for the initiative of Back-Benchers as well as Front-Benchers. I have spoken for far too long. That is partly because I am slightly overcome by the undeserved degree of gratitude and respect I have been paid and I am doing my best to return it as it is due. I beg to move.
§ On Question, Bill passed, and sent to the Commons.