Prosecution of Offences Bill [H.L.]

The Minister of State, Home Office (Lord Elton)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Lord Rawlinson of Ewell

I welcome this amendment and certainly look forward to hearing what my noble friend the Minister has to say in reply, because consistency in the principle of prosecution is tremendously important. Therefore, it is important that any advice given by the Director in relation to prosecution policies should be publicly well known. Having looked at this amendment and having heard what the noble Lord said I encourage my noble friend to include this in the report, if at all possible, which the Director will be making.

Lord Renton

One does realise the superficially good motive behind this amendment but one wonders why we pass laws. What are laws? Laws should be enforceable and there should be a sanction if they are not obeyed. I wonder what would happen if the instructions in this amendment were not carried out.

Lord Rawlinson of Ewell

Does my noble friend not agree, however, that there have been many examples in the past? For instance, the Director has given advice on such matters as sexual offences and on general policy. That is the kind of guidance given to the police that sometimes the Attorney-General has to answer 14 for in the House of Commons. Is it not good that it should be made public?

Lord Renton

I concede at once that, of course, in the past many so-called laws have been passed which have been merely administrative instructions by Parliament to Ministers—instructions which could perfectly well be made public and be firmly obeyed within the Government. However, sometimes we need to pause and think about the extent to which we legislate on purely administrative matters. It is for that reason only that I have a doubt as to whether we are going a little too far in that respect on this amendment.

Lord Elton

I wonder whether I may water and tend my noble friend's doubt until it grows a little. The noble Lord's amendment seeks to oblige the Director in his annual report to the Attorney-General to reproduce all policy guidelines of a general nature that he has promulgated to Crown prosecutors and all general advice given by the service to the police under the terms of Clause 3(2)(e).

We see the new service as being responsible not only for the prosecution of cases initially brought by the police, but also as a readily accessible source of advice to the police on all criminal matters. Clause 3(2)(e) is designed to allow the service to give such advice, and we expect that the police will regularly wish to take advantage of its provisions. They may, for example, wish to check with the service whether it considers prosecutions should be brought in particular circumstances; or, in a complex or difficult area of the law, which particular charges are appropriate in which situations. The new service may also advise the police on any matter that may lead to the bringing of a prosecution, such as the exercise by the police of powers of arrest, detention or search and seizure. The police will, I believe, come very quickly to regard the new service as an invaluable source of expertise on the law on these matters and on policy issues associated with prosecution.

Although in some cases the advice given may fall within the description covered by the amendment, there may be room for differing views whether it is really suitable for publication. Certainly one can imagine circumstances where it may not be, because of the implications for the prevention, investigation or detection of offences. Where such circumstances arise, it would be a great pity if the police were to feel inhibited from seeking the new service's advice because the confidentiality of it could not be guaranteed, or if the service were to be inhibited from giving advice of a general nature which revealed certain courses which might be pursued by defendants with greater impunity than others.

As regards matters of prosecution policy, we agree that it is in principle desirable for the Director's report to discuss any developments of significance or importance in the year to which the report relates. Guidelines of a general nature will, after all, be highly relevant to the discharge of his functions by the Director. But I am not sure the best course is to require every guideline of a general nature to be published. The aim of the report, which will be laid before this House and another place, is to give information about 15 the Director's, and the service's, performance of their functions. This will necessarily involve discussion of many important matters relating to how the service goes about its business, including its use of resources and—what is clearly a matter of concern to this House—policy on delegation of decision-taking to the local level. On this particular aspect, my right honourable friend the Attorney-General, in his recent White Paper, has said that any amendments to the distribution of work will be published in the annual report.

In short, I think that my noble friend Lord Renton, in his helpful intervention, is right to suggest that we are looking at what is properly an administrative, rather than a statutory, direction. I believe that it would be counter-productive to insist, as the amendment does, on the publication of all general policy guidelines and all policy advice to the police, regardless of their significance or the need in some circumstances for confidentiality. I do so for two reasons. The first is that it would tend to clutter up the report with detail which will obscure the main issues. That is not a principal objection, because that could be put into an appendix, I agree, but I think that the threat to confidentiality, allied with the question of how far down to detail legislation should go, should combine to persuade noble Lords that this is perhaps not a very helpful amendment.

Lord Rawlinson of Ewell

I find that difficult to appreciate. We are providing that there shall be a report by the Director to the Attorney-General on the discharge of his functions. That is provided for in the Bill, and that it shall be laid before Parliament. I understand that the purpose is that the Director should explain to the Attorney-General, who shall be answerable to Parliament, what has been happening in the field of prosecutions during the year.

If he is to make a proper report, is it not essential for him to be able to set out the guidelines he has given in the course of the year with regard to prosecutions? I accept that one cannot put in every single one. There may be certain confidential items which are not appropriate, but generally I should have thought that as a matter of principle it is wise that there should be before the Attorney-General and therefore before Parliament directions which are given with regard to prosecuting policy.

Lord Elton

We are for once on the familiar ground of "may" or "shall". The statute as it exists requires the Director to make the report, and he is perfectly at liberty to put in it what he wishes. The general purposes of the report are on the face of the Bill, and my noble friend has correctly described them. The amendment of the noble Lord, Lord Mishcon, goes further and says that the report not only may include a copy of any advice or guidelines and so on, but that it shall do so. That removes from the Director the ability to withhold from his report advice which may be of a general nature and which may point out to those who advise the criminal fraternity on their defence a very useful weakness in the law. Either in those circumstances the Director will be unable to mention them in the report or else he will be forced to 16 disclose them before Parliament. It seems to me that he should be left in the position of not having to display to the public and interested gaze weaknesses which may appear in our statutes and which may be of advantage to the criminal fraternity when trying to evade the results of their crimes.

This is a matter of detail—and I say this with great respect to my noble and learned friend Lord Rawlinson. It is a matter of detail only because the director can already declare these things, and I do not doubt already does declare these things, in his annual report, except where they are sensitive. I think that we should trust him to conceal matters which are as delicate as this rather than force him either not to discharge his duty by advising the police or to declare things contrary to the public interest.

Lord Wigoder

Given that the amendment of the noble Lord, Lord Mishcon, includes specifically the words, "of a general nature", can the noble Lord the Minister give us a hypothetical example of "advice or guidelines of a general nature" which it would not be in the public interest to publish?

Lord Elton

We are getting into detailed definitional language as to what is meant by "general". It may be generally applicable to the prosecution service that it has come to the notice of the legal advisers in a government department that there is a defect in a statute which, if it is exploited, will enable people to do things which were hitherto thought to be illegal. That is something which one would not wish to advertise but of which one would wish the prosecution service to be aware.

Lord Campbell of Alloway

Before my noble friend the Minister sits down, may I ask him this question? Following the line of my noble friend Lord Renton (which appeals to me), is not the problem here that the amendment is drafted in mandatory form and it could well, with the difficulties of definition of "general nature" to which the noble Lord, Lord Wigoder, has drawn the attention of your Lordships' Committee, and other confidential or adminstrative aspects, impinge to far too great a degree upon the administrative situation? But would it not be helpful if the amendment were accepted in permissive form? If the amendment were acceptable as "may", that would at least serve as a signpost. It would go some way to meet the spirit of the amendment of the noble Lord, Lord Mishcon, and might conceivably produce a fair solution.

Lord Simon of Glaisdale

I hope that the noble Lord the Minister will not succumb to the blandishments of the noble Lord, Lord Campbell. To put the provision in permissive form would just be cluttering up the statute book with a quite unnecessary piece of verbiage.

Lord Mishcon

I am most grateful to the noble Lord, Lord Campbell of Alloway, for endeavouring to help me, and to the noble and learned Lord, Lord Rawlinson, for actually helping me in regard to this amendment. Where the noble and learned Lord, Lord Simon, stands on the matter is left in some doubt after his (as usual) very direct and pointed intervention.

17 There are three considerations, if I may respectfully put them before the Committee. The first is the need for accountability, as emphasised in the Philips report. The second is that we are trying in this Bill to do something which is very valuable. We are endeavouring to get some sort of consistent policy in regard to what is done in prosecuting offences. Thirdly, the Director himself in the very useful memorandum that he gave to the Philips Commission (which is set out as Appendix No. 25 to that report) starts with these words: Of all the decisions which have to be made by those with responsibility for the conduct of criminal cases, by far the most important is the initial one as to whether or not a charge should be preferred". All that the amendment is saying is this—and with great respect to the noble Lord, Lord Campbell, there is no point in having a permissive clause in this Bill. The Director knows perfectly well that he himself would not be prosecuted if he put such a paragraph into his report to the Attorney-General.

Lord Elton

Can the noble Lord then explain what is the purpose of this amendment, as he has just said that the Attorney-General will be in a position in the report to make the statements that he is now urging him to make?

Lord Mishcon

I can answer that very simply. The answer is the following. The amendment would make it mandatory for the Director to report to the Attorney and for the Attorney, on receiving this report, to have it laid before Parliament. The whole burden of my amendment is that that should be mandatory. Of course if we did not put anything in the Bill, there would be nothing to stop the Director doing this or the Attorney-General laying something before Parliament, but there would be nothing telling him that he should do so. The burden of my amendment and the reasons for it are that Parliament ought to see that there is accountability. Parliament ought to know what the general guidelines are—and I am most grateful to noble Lords for the emphasis which was placed in this little debate on the fact that the amendment talks about general guidelines.

The Minister answers this amendment with only one defence, if I may say so. I do not believe that he regarded it as a difficult matter administratively. From that point of view, I do not think that he was taking the point of the noble Lord, Lord Renton, that this would in some way clutter up the administrative machinery of the Director's office or of the Attorney-General's office. The point that the Minister was taking was a perfectly fair one. It was that there would be examples where public policy might be involved.

The noble Lord, Lord Wigoder, asked a very direct question as to whether bearing in mind that the reference was to general guidelines, the Minister could think of any example. The noble Lord the Minister, as usual, refused to be caught out and delivered off the edge of his bat a ball that just about got past the slips. He said that there could be an example and he gave it. If the Minister had said that he accepted this amendment which we regard as so vital, so that Parliament would know and the people would know what are the general guidelines that are being put 18 forward here under this Bill; and if he had said: "except where considerations of public policy might be involved; and if you put that in the amendment, I accept it", then, with the usual graciousness shown from these Benches, I would at once have said that that is the sort of amendment that obviously is acceptable. I would leave it to the Attorney-General, with the greatest of confidence, and indeed to the Director, to be the true judge of what public policy might be involved in an absolute minima of cases. I invite the noble Lord the Minister, rather than—if he asks me to sit down, I willingly do so.

Lord Elton

I thought that the noble Lord was going to invite your Lordships to come to a decision on this and I did have something further to say before he did so. But he has not said what he was going to invite me to do, so I had better wait to hear what that is.

Lord Mishcon

I issue an open invitation in, I hope, the clearest possible way and without asking for any copper-bottomed undertaking. It is this. I invite the Minister to say that he accepts the spirit of the amendment. If at a later stage in the Bill an amendment could be brought forward which would except those very small cases that might arise where public policy was involved, I would not test the opinion of the Committee at this stage. If the Minister is not prepared to give that undertaking or that acceptance of the amendment, subject to that one proviso, then I must ask for the Committee's view.

Lord Renton

I wonder if the noble Lord could answer a question arising out of what he has said. Does he concede that the advice given by the Director to the police on criminal matters may include advice as to how to prepare the prosecution in cases of (shall we say?) terrorism, espionage, drug offences and all kinds of other matters on which it really is essential that there should be confidentiality? It seems to me that his amendment would require the advice given in such matters if it be of a general nature to be publicly revealed. That in itself would be wrong.

Lord Rawlinson of Ewell

May I say that I myself am not so sure. I should have thought that prosecution was a public act and that, even if the person is accused of terrorism or whatever it is, the exact principle upon which a prosecution is brought should be known. I am not saying that about investigation. Matters of investigation, of course, should be secret. But prosecution is a public act with a presumption of innocence no matter what crime the person is accused of. Therefore, I should have thought that such directions are quite proper to be given.

Lord Mishcon

I could not have answered the noble Lord, Lord Renton, with half the eloquence and clarity that the noble and learned Lord, Lord Rawlinson, has used. I merely, with humility, adopt his words. But I add to them and say this. Again, I have made the offer (I hope, as I have said, very respectfully) to the noble Lord the Minister. If questions such as those that the noble Lord, Lord Renton, feels are matters of public policy can be excepted at the 19 direction of the Director and the Attorney-General—and one imagines that it would be the Attorney-General in this instance—then I am prepared to realise that the spirit of this amendment, which pleads for openness and accountability, has been accepted with the security of the state, as it were, properly protected. But if that is not a principle accepted by the Government, then, quite obviously, I must ask the Committee to express its view.

Lord Elton

I can tell the noble Lord that the spirit of his amendment is perfectly acceptable. That is that we wish the affairs of the Director and the prosecution service to be exposed to the public view by means of reports which will be scrutinised by Parliament. What I am not happy with is the way the noble Lord sets about it. He asked me not to be blandished by my noble friend and then he proceeds to try to blandish me a fortiori himself into accepting this with some minuscule amendment to be devised by the Government.

May I return to his earlier principal speech in which he said that the great thing was to have a mandatory requirement. "We must have openness and it must be mandatory", the noble Lord said. I would simply remind your Lordships that Clause 9 is mandatory. The Director is required to make his report; the Attorney-General is required to lay it before Parliament; it is to account for what has gone on under the Director's direction during the preceding year. We are talking about what should be in the report. The noble Lord was not clear about where the noble and learned Lord, Lord Simon of Glaisdale, was standing. To me it seemed fairly clear that what he was saying was that if it was made a permissive requirement, if it was "may" rather than "shall", it would add nothing to the Bill because the Director was already in a position to do what the noble Lord wished to put on the face of the Bill. Therefore, that compromise is denied us.

The noble Lord now wishes us to write into statute a direction to the Director of Public Prosecutions and the Attorney-General from which they shall have no escape except by statutory provision, which I think is unnecessary when we are all agreed, and the Government accept, that the purpose of the report is to be as open as possible. I should have thought that the undertaking of the Government and the reputation of the Law Officers of the Crown did not need to be reinforced in this way by statute. Therefore, I cannot offer the noble Lord the olive branch which he seeks.

Lord Campbell of Alloway

It looks as if we might conceivably divide on this. May I say that I totally accept the view expressed by the noble and learned Lord, Lord Simon of Glaisdale, that it would not really be "on" to have a permissive amendment because it would clutter up the Bill. Having said that, on a Division I would vote against a mandatory amendment.

Lord Mishcon

I am very sorry to hear that, but it does not stop in any way the forcefulness of the point and the importance of it. All of us have decided, and quite rightly so, that this is a completely non-political 20 Bill. All Members of the Committee are anxious that there should be a good Bill dealing with a most important branch of our justice and the administration of justice in this land. Parliament, if this amendment is not passed, will be relying upon the discretion of the Director and the Attorney-General as to whether or not they would report to Parliament.

I have the utmost admiration—and this is usually said in the course of a debate on any Bill—for the present Ministers. One expresses that in all parts of the Committee. Then one puts the fear of God into the minds of all Members of the Committee or House as to what sort of Minister might turn up. If you are speaking from these Benches you are thinking of a future Minister on the Benches opposite; and if you are speaking from the Government Benches you are thinking that one day there might be a certain type of Minister at present on the Opposition Benches. I say this. Pious words—and I do not mean this disrespectfully—are uttered by the Minister as to how much the Government want there to be frankness and so on and so forth. Of course, I accept that there has not been a franker Minister at the Home Office for a very long time than the noble Lord who deals with this debate. But I am not asking for frankness of this present Minister. I am asking for accountability so that somebody in Parliament in either House can raise the matter on this report and say that this policy ought to be debated; that it is wrong in regard to criminal offences.

I am only talking about matters of a general nature and, as I have said, if only the Minister had asked for the exception in regard to public policy, I would willingly have acceded to any such amendment. He is not prepared to do that; and that means that his one defence, which was that he was protecting public policy, goes, if I may say so dramatically, out of the window. It is obviously necessary to regard (as did the Philips Commission) the question of accountability on these matters as being so important that I have no alternative but to test the view of the Committee.

Lord Denning

I should like to say a few words. It seems to me that the Bill as it stands is sufficient. The Director must give a full and proper report. That is in the Bill as it stands. It is no use crossing "t's" and dotting "i's" in this way. That goes too far. He has to make a full and proper report. He must comply with the spirit of the Bill. There is no need for the amendment.

Lord Mishcon

I do regard it as necessary, if I may say so, to dot the "i's" and cross the "t's" in regard to this amendment.

Lord Simon of Glaisdale

I do not suppose that any of your Lordships would think that what is proposed in this amendment by way of consultation is other than reasonable. But it does seem to me that what the noble Lord, Lord Renton, said about the previous amendment applies with even stronger force to this one. I suppose I have known all the Attorneys-General since the war, and I cannot conceive of any one of them making regulations of this sort without having the consultations which the noble Lord, Lord Irving, proposes to make mandatory on them. He, with his long experience, I suspect has known them, too, equally well, and would not for a moment himself believe that regulations could be made by them without the sort of consultations which he enjoins.

23 On the last amendment, the noble Lord, Lord Mishcon, tried to frighten us by saying, "Oh, but there might be quite a different sort of Minister in the future". I remember that sort of argument once being addressed to Mr. Justice Langton—the "thin end of the wedge". He said, in his mock stately way, "I am rarely impressed by forensic foreboding of indeterminate future disasters". I think that is what we would say to the noble Lord, Lord Mishcon. I do not believe that any member of your Lordships' House could possibly conceive of anybody holding the office of Attorney-General and not having the consultations which the noble Lord, Lord Irving, wishes to be made mandatory.

If that is so, I do with respect urge your Lordships not to add unnecessary words to the statute book. The noble Lord, Lord Irving, said it has been done before. Well, not all precedents are good precedents, and the fact that it has been done before indicates that it is high time we stopped doing it now.

Lord Renton

I would add briefly to the welcome intervention of the noble and learned Lord, Lord Simon of Glaisdale, by saying only this. I wonder whether it has occurred to the noble Lord, Lord Irving of Dartford—for whom I have such a respect, because I was born there—that in fact if we were to accept this amendment we would be enacting a dead letter. I say that because, under the amendment, although, it shall be the duty of the Attorney General, … to consult with respect to those regulations such bodies as appear to him to represent persons to be transferred", he may decide to consult nobody. He may decide that in his opinion it is not necessary to consult anybody, or some experience of a previous consultation may have got him nowhere; and so he decided not to consult.

Staff consultations are now the order of the day, in any event, and therefore of course one sympathises with the motive behind the amendment. But when it comes to considering whether we are going to enact an effective law which is enforceable if we pass this amendment, then an entirely different question arises.

Lord Rawlinson of Ewell

I should agree with what my noble friend has said in regard to the proposal in this amendment. I should like to look at some of the logic of what my noble and learned friend Lord Simon of Glaisdale has said and to consider the clause which it is sought to amend. What have we got in it? We have got a lot of verbiage which the Committee may think is not very necessary here. We have: The regulations may include provision for the determination of questions arising under them". Is that absolutely essential, or is that verbiage? We also have: The regulations may … make different provision with respect to staff employed in different areas". If we are only ever going to have in Acts of Parliament what is absolutely essential without having guidelines, as it were, put into Acts of Parliament, then all that must go. While I agree with the noble Lord in regard to this particular amendment to this clause, I do not think it is really quite wise to say that you should not give guidelines in Acts of Parliament, because this is exactly what the Minister will presumably be 24 supporting in Clause 10 of the Bill, which this amendment seeks to amend.

Lord Campbell of Alloway

I suppose there is no reason in principle why we should not have guidelines in an Act of Parliament, save this: that if they are mere guidelines of an advisory nature, wholly unenforceable by any process of judicial review, what really is the object of putting them in an Act of Parliament?

Lord Renton

Exactly.

Lord Campbell of Alloway

That is the position, with the utmost respect to the noble Lord, that I think arises in this case. I should therefore on those grounds oppose the amendment.

Lord Mishcon

The noble and learned Lord, Lord Simon, was not as fair as he usually is, because I brought it to the attention of the Committee, with a smile, that this question of foreboding as to future Ministers, while praising the present ones, was an old tradition of Parliament, and indeed was invoked whenever one was asking for something to be done which the present Minister said was bound to happen but which was not contained in an Act of Parliament in a mandatory form. But obviously I accept his words, coming from the source that they do, with due respect.

Having said that, of course it is necessary for Parliament not to take a traditional view as to how a Minister has behaved in the past or how it would pray he would behave in the future. That, in my respectful submission, is a recklessness which is not permitted to Parliament. Once one accepts that something ought to be done by a Minister, then Parliament should say so clearly in an Act; and the Minister is under no handicap because if he would have done it anyway it imposes no extra duty upon him. But just in case the odd occasions happens in this great democracy of ours, when the public decides to put into office a government who are not, it turns out, as respectful of all our traditions as we would hope they should be, at least let there be an Act of Parliament there which somebody will be bound to alter.

We have said that in debates on freedom of speech; we have said that in debates on human rights and whether or not those human rights are implanted in our law; and there is a very considerable body of opinion which says that if there is something that ought to be done by a Minister then put that in an Act of Parliament and do not rely just upon words which are uttered with great sincerity from a Government Front Bench but which, if they are not incorporated in an Act of Parliament, mean nothing.

What is the argument over this amendment? It is said any sensible Minister would do it. Of course the Attorney-General would do it. And so I say to myself, echoing part of the argument—not the whole of it—of the noble and learned Lord, Lord Rawlinson, there is enough that is put into Acts of Parliament that almost means nothing, but if you put something into an Act of Parliament, even if you think that it is possibly unnecessary, you are at least doing something in some circumstances. The circumstances here are that you are making it mandatory, not to listen to, not to obey, any representative organisation, but to consult.

25 In answer to the noble Lord, Lord Campbell, who says, "What effect would that have in law?—none at all", I say with great respect, especially knowing the source from which those words came, that of course it has meaning in law. There would be a judicial review in regard to those regulations. There would be a testing in court of the validity of those regulations if the Minister had in fact, if the Attorney-General had in fact, not consulted. Indeed, recently there has been a case before the courts about which most of your Lordships will know, where at least one tribunal held that a decision on a regulation was wrong because the necessary consultation had not taken place. Does the noble Lord wish to intervene?

Lord Campbell of Alloway

May I interrupt the noble Lord for a moment? If the Minister puts on affidavit the one sentence, "I did not consider it desirable to consult", then, with respect to the noble Lord, Lord Mishcon, that is the end of a judicial review proceeding.

Lord Edmund-Davies

It is surely a primary requirement of the drafting of parliamentary Bills that no unnecessary words should be put in. It has to be said that the Government stand on a somewhat fragile platform in relation to the respect that should be paid to that rule by their own drafting of subsections (2) and (3) of Clause 10. Therefore, as the noble and learned Lord, Lord Rawlinson of Ewell, has said, it is a wholly unnecessary requirement. The same can be said of the amendment which is here being urged: it is wholly unnecessary and therefore undesirable. I am quite sure, particularly in the light of the advancement of no cogent reason for this requirement, that the amendment should be rejected.

Lord Howie of Troon

I should like to reflect for a brief moment on the comments of the noble Lord, Lord Campbell of Alloway. The noble Lord knows that I hold him in very high regard as a fellow Ayrshireman. He seemed to intimate that we should not have guidelines and things of that type. I must say that temperamentally I am greatly inclined to agree with him. On the other hand, let us reflect upon how things are actually done here and in the legislative process.

The noble Lord will recall the numerous enactments on indistrial relations which have passed through this House and the other place in the last two or three years. Sometimes they have been called industrial relations Acts and sometimes they have been called trade union Acts, but they all meant more or less the same thing. All of them—or if not all of them at any rate several of them—referred to codes of practice and things of that nature. Those codes of practice were not in themselves law, but they were matters which had to be taken into account in the process of law.

My recollection of the debates several years ago is unclear, but my inclination is to think that the noble Lord, Lord Campbell, tended rather to agree with the Government side on these matters to some extent at least more than I did. I think it right to say—although he may correct me—that he felt it reasonable that there should be codes of practice. If the noble Lord 26 does not agree with that, then I withdraw the comment, but I hope that he will just let me finish what I have to say. His noble friend somehow felt that it would be appropriate to have codes of practice which were ancillary to the law but which had some relationship to it. Have we not a somewhat parallel situation? I yield to the noble Lord.

Lord Campbell of Alloway

I am grateful to the noble Lord for giving way. I must have expressed myself badly and I apologise to the Committee. I am not against guidelines; I am not against codes of practice—I think that they are absolutely essential. What I am against is cluttering up the body of a statute with them.

Lord Howie of Troon

The fault is clearly mine, but I think that that is a difference without a distinction, or a distinction without a difference—whichever it is.

Lord Elton

There is a danger that we shall become involved in an intensely interesting and rather long debate on the principles upon which all statutes ought to be drafted and, of course, that is something which we should always have under consideration. But in the context of this particular amendment I shall try to be fairly brief.

First, let me respond to the two limbs of what the noble Lord, Lord Mishcon, said. I found myself being suffused with the rosy glow of agreeable embarrassment when the noble Lord was saying nice things about Ministers on this Bench, only to find myself douched by cold water when he said that he was only saying those things as a matter of form because they were always said on these occasions. Nonetheless, I remain in good humour with him. However, I think that I should reassure the noble Lord on one aspect of this amendment because a lot of his argument reposed upon the danger that another set of faces, upon whom he would be forced by convention to shower equally agreeable compliments from those Benches opposite, might replace my own and those of my colleagues and they might be less well founded on that occasion than the noble Lord is kind enough to say that they are on this occasion.

The powers in Clause 10 will, of course, be used very soon and while he is a foolish Minister who guarantees that a general election will not be called before a particular date, I do not think that there is a danger of a very considerable change in the character of government before these powers are used. So we need not concern ourselves about the very distant future as regards the main provisions here.

The noble and learned Lord, Lord Edmund-Davies, struck on a very sensitive note so far as I am concerned because I subscribe strongly to the view that legislation should be expressed with absolute economy of language for a number of reasons, including clarity. But I am advised that without subsections (2) and (3), to which he referred, it would not be clear what matters were to be covered in the regulations, and the subsections will be relevant to determining whether any regulations are, in fact, intra vires. That is something which I would require to digest before I expanded upon it. But I think that perhaps it pours a little concrete into the platform upon which I am 27 standing when I say that in my view the words which the noble Lord, Lord Irving of Dartford, proposes to insert in the Bill are superfluous and not needed.

The amendment seeks to ensure that there will be full consultations with representatives of those staff likely to transfer into the new service before the regulations governing their transfer are drawn up. If it is only a reassurance which the noble Lord wants on this point then I am indeed happy to give it him in full measure. I can tell him, what is more, that preliminary discussions are already taking place with the trade unions concerned, including the trade union with which he is concerned, and that these will naturally continue and develop as planning for the new service progresses.

In the White Paper outlining our proposals for the new service, as some of your Lordships will recall, we said: There will be full consultation with those affected on all the proposals, including arrangements for transfer of existing staffs of prosecuting solicitors' departments whose work will be taken over by the new service". That promise has already been partially fulfilled. I say "partially", because obviously we can only discuss matters as we have proposals ready to put forward on them. Planning for the new service is a complex process. Decisions need to be made on numbers and grades of staff. Information is needed on their existing terms and conditions of service. The implications of one for the other need to be assessed in consultation, of course, with the staff representatives. The consultation which I have described is, therefore, likely to be a fairly protracted process.

As your Lordships know, we are taking advice on staffing levels and working procedures in the new service. Staff have given full co-operation to the consultants and some of their representatives have actually been members of the committee overseeing their work. In addition, staff and their representatives have had a number of opportunities to put their views to the consultants. I am sure that my right honourable friends the Attorney-General and the Home Secretary would wish me on their behalf to pay tribute to the contribution that staff have made in this way.

From what noble Lords have heard me say so far, they will realise that, like many who have spoken, I feel that what the noble Lord, Lord Irving, proposes is superfluous. I must also direct the noble Lord's attention to the fact that it is unfortunately—indeed, I might say wrongly—phrased in placing the obligation to consult, which is already being discharged, on the Attorney. I suggest that discussions on these matters are more appropriately carried out by the Director and his officials. As I think I have said before, the Attorney-General simply does not have the staff in his department to perform these functions. So, with noble and learned Lords, I think that what is asked for is not needed; that it is already in practice at present; and that in any case it is directed at the wrong officials.

Lord Mishcon

I promise not to weary the Committee, but I was just about to advance what I regarded as being the finest point in my speech when the noble Lord, Lord Campbell of Alloway, asked whether he could intervene. I sat down and the noble 28 Lord, Lord Cambell, intervened and since then I have not had an opportunity to say another word. However, that may be a good thing, not only for the Committee but for the sake of this amendment, because it has given the noble Lord the Minister the opportunity to say something by way of the assured procedure, which I have no doubt my noble friend Lord Irving of Dartford has heard, and about which he may say a few words in a moment.

I rise only because I should not like it to be on the record that, as the noble Lord, Lord Campbell, said, where a Minister is directed to consult and his regulation made without such consultation is challenged, all that the Minister would have to do to satisfy any court would be to swear an affidavit to say that he saw no need to consult. I should hate that to go on the record as though I had yielded to that statement, respectfully, though I listened to it, because it came from the noble Lord, Lord Campbell of Alloway.

However, I say very strongly that if Parliament decides to issue a mandate that a Minister shall consult before he makes a regulation, if it is then proved that no such consultation took place, that regulation can be challenged—and I should have thought successfully—in the courts. Having uttered my own view, which may not amount in virtue or in strength to anything like the views expressed by other lawyers in this Committee, I sit down.

Lord Irving of Dartford

This demonstrates the danger of a layman entering into a debate in which some of the most distinguished lawyers in the country are taking part—I do not say that they have dominated it. I also am an enemy of the superfluous, but as a layman I should say that it would be difficult for people outside to understand why Parliament cannot be consistent. If Parliament creates a precedent, why should it not be consistent and continue that precedent? In our case we thought that was a reasonable action to take. However, having listened to the noble Lord, Lord Elton, and bearing in mind the drafting point, and above all having received the assurance that the noble Lord has given, I beg leave to withdraw the amendment.

Lord Elton

I am grateful to the noble Lord for again directing our attention to the interests of staff who will transfer to the new service. I think that there is little, if anything, between the noble Lord and the Government in the matter of objectives, but there are some differences of judgment over the best means by which to achieve them.

It is not our intention to disadvantage staff transferring to the new service. As I have said, our policy has been to proceed by way of full consultation; our aim is to take the staff affected along with us in the preparation and planning of the new service, as well as in the details of their own transfer to it. I can assure your Lordships that I fully appreciate the concern staff facing such a change feel over their future; and indeed who would not? We are doing our utmost to remove the uncertainty from which that concern, in large part, stems. But, as I and my colleagues have said before, we can move to complete certainty only as planning for the new service becomes more complete than it now is. The uncertainty is attributable to decisions yet to be taken, and those decisions will have to be taken in the light of information yet to be secured.

Lord Irving of Dartford

I am most grateful to the noble Lord for those reassurances and for the way in which he has spelt out protection for the staff. 30 Therefore, I have pleasure in asking the Committee to allow me to withdraw the amendment.

Lord Renton

This amendment is free from objections which were raised in regard to the first of the three amendments which the noble Lord, Lord Irving of Dartford, has moved. Indeed, in principle I have great sympathy with the method he proposes because it is quite clear that, if previous service of the kind mentioned in the amendment is to be taken into account, it should be stated in the statute. Subject to the technicalities of the matter—on which of course we must rely upon my noble friend to advise us—I should be glad to support the amendment.

Lord Wigoder

I hope that the Minister will regard this amendment with sympathy. It seems to me to refer to the points which I raised on Second Reading. Subsection (5)(a), as it is now worded, says: the period of his employment in the employment from which he is transferred shall count as a period of Crown employment". On the face of it, this appears to refer to only one simple employment, whereas of course a person may be transferred who has had a series of Crown employments of this nature. Obviously that ought to be taken into account, and not merely the single last previous employment.

Lord Campbell of Alloway

I support this amendment. If I took it down correctly, my noble friend the Minister said on Amendment No. 39 that no employee was to be disadvantaged in any way on a transfer. The object of this amendment is to ensure that that should be so. In that spirit I wholly support him.

Lord Mishcon

It only requires me to say in one sentence that from these Benches we obviously support the amendment.

Lord Simon of Glaisdale

May I ask one question arising out of the intervention of the noble Lord, Lord Wigoder; namely, that it refers to employment in the singular whereas we may be concerned with a number of employments? Is it not a rule by virtue of the Interpretation Act that the singular includes the plural?

Lord Elton

The principal issue before your Lordships is whether, in the event of a member of a prosecuting solicitor's department being made redundant, his redundancy payments would be calculated by reference to the whole of his relevant service in local government, and not just to the period of his employment with the last employing authority. To put the issue into context it is important to remember that staff in prosecuting solicitors' departments from time to time move about from one authority to another. It has been a normal part of their career pattern that they would apply for a more senior job in another authority as a way of gaining promotion. Staff would be understandably and properly anxious if by virtue of making such moves their entitlement to redundancy payment was set back and, in effect, they had to start again. I think that is the concern of the noble Lord.

It is certainly our intention, as I have implied, not to disadvantage staff in this particular respect, if the noble Lord could bear with me. I undertook, when I wrote to the noble Lord, Lord Wigoder, on another occasion to ensure that previous periods of employment should count—as they do now for local government staff—for the purposes of calculating any redundancy payments. The relevant instrument is the Redundancy Payments (Local Government) (Modifications) Order 1983, S.I. 1983, No. 1160.

We believe that the question we are being asked will in the event be of academic significance because we are not expecting redundancies, as I said in speaking to an earlier amendment. However, I am happy to repeat my earlier assurance to the noble Lord, Lord Wigoder, that there is apparently some doubt over whether Clause 10(5) as drafted already achieves that result or whether it needs to be amended. I think the answer to that will go hand in hand with the answer to the question which the noble and learned Lord, Lord Simon of Glaisdale, asked me, and which I regret I cannot at the moment answer.

Lord Simon of Glaisdale

May I say that I asked my noble and learned friend Lord Denning before venturing to ask the noble Lord the Minister.

Lord Elton

I noticed the singular mark of deference and respect which one noble and learned Lord paid to the other, and seeing that it had the approval of both of them I treat it with the greater care myself. That is why I do not wish to spring to an unguarded answer. I shall write to both noble and learned Lords when I have the answer; and I suggest that for the time being the best course would be for me to consider further how the aim which we and the noble Lord, Lord Irving of Dartford, and others share may best be achieved. If an amendment proves to be necessary I shall try to bring it forward at the Report stage in this House.

Lord Irving of Dartford

I am grateful Lord for the assurance that he will look and come forward with another proposal relevant. I beg leave to withdraw the amendment.

Lord Simon of Glaisdale

May I raise two small drafting points in the interest of economy of legislation? The first is on page 7, line 2, the opening words of the clause: "The Attorney-General may" make regulations relating to establishment, in effect, and he may do that only with the approval of the Treasury. That is the second time we have come across that particular incantation.

The noble Lord the Minister has promised to consider it, so I shall not say any more about it other than that if we are going to have a sort of mantra to soothe raw nerves in the Treasury, is it really the Treasury that we should be concerned with now? The Treasury was formerly responsible for establishment, but I thought that the duties had now been transferred to the Civil Service Department.

I do not ask the noble Lord merely to put the Civil Service Department in place of the Treasury, even though the point I have drawn to his attention may be right. I should like to see the whole of that phrase go out, as it is quite unecessary because it is taken care of by the normal procedure of the internal machinery of government.

Lord Elton

I shall happily consider what the noble and learned Lord has asked me. I shall add his comments at this stage to his comments at an earlier stage on the general principle of whether it is necessary 34 to salve the rough edges of the Treasury. If there was such an unguent available to junior Ministers, they would use it, but I do not believe there is such a thing. I shall certainly take on board both the drafting points which the noble and learned Lord has made. As I have said, if we can remove superfluous words, we should be happy to do so. I have been given further material, but I think that to refer to it would waste your Lordships' time. I would rather give a final answer at a later stage.

Lord Wigoder

Leaving aside the drafting point of the noble and learned Lord, Lord Simon of Glaisdale, perhaps I may refer for a moment to Clause 10(2)(b), lines 13, 14 and 15 and the words, may make different provision with respect to staff employed in different areas". I do so because, apart from a drafting matter, they are words which have given rise to a certain amount of anxiety among some of those who are assuming that they will be employed in due course by the new service.

When I raised this matter at Second Reading the noble Lord the Minister indicated that he would deal with it in due course. He has replied to me in writing and I think it is probably appropriate, particularly so far as the potential staff are concerned, that what the noble Lord has said should be given a wider circulation than it has received as a result of his letter to me. I find it entirely acceptable. The noble Lord said this about those words: our current intention was that the new service will be fully operational in England and Wales from October 1986 but in those areas covered by the metropolitan county councils the new service will be established earlier, on abolition of those councils in April 1986. This is in order to avoid two reorganisations of prosecution arrangements in those areas within a very short period. We will accordingly need to transfer staff into the new service at different times depending on the areas where they work and the formula used in Clause 10(2) will allow for this". That was the noble Lord's explanation of the substance of the matter. For my part I found it entirely acceptable.

Lord Elton

I am most grateful to the noble Lord for putting on the record in an ingenious manner the letter which I wrote to him. It is an odd experience, not unlike listening to "Yesterday in Parliament", to hear somebody else's voice repeating one's words. I am most grateful to him.

Lord Mishcon

If it were "Yesterday in Parliament", judging from past experience, the proceedings of this House would be scarcely likely to have been reported. I think the noble Lord possibly meant "Today in Parliament".

Lord Elton

I am most grateful to the noble Lord, Lord Irving of Dartford, for raising the important question of consultation with representatives of staff affected by the transfer provisions prior to the establishment of the staff commission. That is a narrower area of consultation than the one to which we addressed ourselves earlier. The commission is being established primarily as a means of providing my right honourable friend the Attorney-General with a source of independent and impartial advice on the effect of the transfer provisions of the Bill on staff affected by them. It is important, therefore, that it should be seen to be, as well that it should be, independent and accessible to the staff affected.

There is already a duty on the Attorney-General to consult such representatives of local and police authorities which currently employ staff affected by the transfer provisions as appear to him to be concerned. The requirement for consultation contained in the amendment tabled by the noble Lord naturally complements this duty and can only assist in achieving the objects for the staff commission which I have outlined. I am happy therefore not only to accept what the noble Lord proposes in his amendment, but, most unusually and agreeably, also to be able to accept it as drafted. I congratulate him.

Lord Irving of Dartford

I am most grateful to the noble Lord for his support.

Baroness Macleod of Borve

Perhaps I may briefly take up a point on this very lengthy clause, which extends to 115 lines in the Bill. It is only because I am worried and should like the assurance of my noble friend the Minister that the premises which are to be occupied by the prosecution service shall in no way be seen to be part of either local authority premises or police authority premises. It is very important that as this is to be a completely independent service, it should be seen by the general public to be independent. From my knowledge the general public in a local borough are aware of the premises from which a service such as this operates. They feel that the service should not be connected with any other services. I ask my noble friend for his assurance on this point.

Lord Renton

I hope I shall not sound churlish if I say that I feel the draftsman has really made quite an unnecessarily large meal of this Clause 12. It covers over two and a half pages and goes into great detail, when I think that the detail it contains could perfectly well have been covered by some compendious general phrases. I do not wish to take up time pinpointing the detail but, for example, if subsection (2) had been very slightly amplified, it could have covered the whole of the quite long subsection (3). We heard earlier the noble and learned Lord, Lord Simon of Glaisdale, talk about cluttering up the statute book with unnecessary matters, and I really do think that a greater effort to be succinct in this clause would have been very acceptable.

Lord Elton

My noble friend Lady Macleod wishes to be assured that the premises occupied by the service will not be seen locally as part of the local authority premises or of the police premises. The general intention is that ultimately the Crown prosecution service should he housed separately from the police service, as a means of underlying the appearance as well as the reality of the independence of the two services. I fear it had not occurred to us earlier that some might wish to see the service accommodated entirely distinctly from the local authority as well, but I will certainly consider the points adduced by my noble friend in support of what she said and I will come back to her.

Notwithstanding that it is the general aim for the new service ultimately to be accommodated separately from the police, practical considerations dictate that that aim may take a little while to achieve, because to have new accommodation available immediately on implementation may not always be possible. Our intention is to move towards that as soon as practicable, within the constraints imposed by resources and the availability of suitable premises, but I assure my noble friend that the need to be distinct, and visibly distinct, from the police is clearly understood by the Government. The need to be distinct, and clearly distinct, from the local authority is something which I need to consider in the light of her remarks.

As to the strictures of my noble friend Lord Renton about the length of Clause 12, it is indeed a long clause. Like him, I do not wish to take up the Committee's time in defending the detail of it, although I think I should say, in fairness to the draftsman, that the transfer of property already in use—part-worn carpets, dented filing cabinets and so on, as well as everything else which constitutes the accommodation and equipment of the service—is exactly the sort of thing which can lead to endless argument and even—dare I say?—litigation. Therefore, I do understand the draftsman's erring on the side of precision, but I take the noble Lord's strictures to heart on the general principle that legislation should be as short as possible.

Lord Elystan-Morgan

We are grateful to the Minister for having, in suitably guarded language, assured the Committee that ultimately the prosecuting authority will in every area be operating from premises which are entirely separate and distinct from those occupied by the police.

37 There remains, however, I think, some slight disquiet on account of the language used by the noble Lord the Minister. The term "ultimately" can mean either something which occurs in the next three, four or five years or, at its very worst, it can mean something that is in the "marcher country" of eternity. What I would wish to ask—and I am sure it is a matter which many Members will feel is of very considerable importance—is whether the Government have a programme in relation to this matter. Have they costed this development? Have they budgeted for it? Are they thinking in terms of three, five, seven or 10 years? I appreciate those may be difficult questions for the noble Lord the Minister to answer, but I am quite certain they are questions which go to the very root of this matter. If I may say so, the point raised by the noble Baroness, Lady Macleod, is all the more important bearing in mind that the Government, in relation to this matter, have opted for regional authorities which are co-terminous with the 43 police authorities of England and Wales. If that had not been done it might be that the danger would not be so great; but we regard it as utterly vital not only that the prosecuting authority in each area should be utterly separate and apart from the police but that it should manifestly be seen to be so.

Baroness Macleod of Borve

I should like to try to assure my noble friend the Minister that my basic problem is really perhaps a political one, in that one does not want this service, which I think is going to help the course of justice enormously—I am enormously for this Bill—to be seen to be either near the police or near the local authority, which the people on the ground will see as being "political".

Lord Elton

I am grateful for the intervention of my noble friend. I am entirely seized of the importance of the very clear distinction which she wishes us to achieve, not only in legislation but also in bricks and mortar, between the Director's service on the one hand and the police service on the other.

As to implementation, the noble Lord, Lord Elystan-Morgan, asked me to give a series of declarations about the progress to be made. I think the principal and first stage to which I must refer will be the receipt of the consultants' report in the spring. Since the consultants will be recommending on the actual location of the offices and the number of the offices, until we have that report in the spring, I obviously cannot give him a budgeted figure as to what it will cost, but I can tell him that it is intended to establish in April of next year six areas in the areas covered by the metropolitan counties and the remainder in October of next year. I think that those are the ends of the bracket which the noble Lord wanted me to establish.

Lord Mishcon

Only so that the point which was made so well by the noble Baroness is completely covered, I should like to say that, as I heard the noble Lord the Minister (but I may be wrong), he did refer to the desirability of police premises not being occupied by the prosecuting authority. However, the noble Baroness—I thought very pointedly—also mentioned 38 local authority buildings. If! may say so, I do not think the noble Lord the Minister dealt with that point; and if in his review of what has taken place on this debate he can include the point about local authority buildings, that would be helpful. It would obviously be most undesirable for the prosecuting authority to be associated with the local authority in this connection.

Lord Elton

I think that if the noble Lord will be kind enough to look at Hansard tomorrow morning he will find that I have already undertaken to look at this. I have not gone further than that, however, because it was not an idea I was previously seized of.

The Deputy Chairman of Committees (The Earl of Listowel)

The Question is that Clause 12 stand part of the Bill—

Lord Elton

I am reminded, if the noble Lord the, Deputy Chairman of Committees will permit me, that Clause 12 places an upper limit of 10 years on the use of police or local authority premises for the purposes of the service. I am most obliged to the noble Lord for giving way. It is something which I should have recalled off my own bat.

Lord Hutchinson of Lullington

The point I should like to raise on this clause at the moment is that the clause is directed in the main to the level of fees to be paid to barristers having the conduct of prosecutions throughout England and Wales. The central control of those fees ultimately by the Treasury, to use the unguent phrase, affects most seriously the position of the Bar and has serious implications for members of the Bar and for its service to the public. At present, I think I can say that there is profound dissatisfaction in both branches of the profession at the level at which legal aid fees are being fixed and being held from year to year. So absurd have been the increases in fees over the past four or five years, as compared to the overhead expenses of practitioners, that very real hardship is now being caused to young barristers under 15 years in court. I am bound to point out, with the greatest respect to the noble and learned Lord the Lord Chancellor, that this is noticeably now beginning to affect the quality of the new intake to the Bar.

In addition, since civil servants with no experience of practice in the law have taken over the fixing of fees, the scales of remuneration which have been brought in, rewarding barristers simply on the hours of work and the quantity of paper involved in a case without any account being taken of their seniority, their experience, their degree of skill and judgment, and indeed the level of the fees outside the legal aid area, have become a matter of grave concern. I raise these matters because when, for instance, counsel appears before the—