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Lord Meston moved, as an amendment to Amendment No. 212, Amendment No. 212A:

Line 32, at end insert--
("(6) The Director, when exercising his powers under this section--
(a) shall act in accordance with the general principle, and
(b) shall not act in any way which would be incompatible with the statutory objective,
established by section 17 of the Courts and Legal Services Act 1990.
(7) The Director shall only exercise his power to confer on members of the staff of the Crown Prosecution Service the powers and rights referred to in subsection (2)(a) and (b)(ii) above if and to the extent that the Crown Prosecution Service has qualification regulations and rules of conduct which have been approved pursuant to Part I (or, in respect of any alterations thereto, Part II) of Schedule 4 to the Courts and Legal Services Act 1990.
(8) For the purposes of this section, Parts I and II of Schedule 4 to the Courts and Legal Services Act 1990 shall apply as if the Crown Prosecution Service were--
(a) in the case of Part I, a body seeking designation as an authorised body; or
(b) in the case of Part II, an authorised body."").

The noble Lord said: The Royal Commission report which led to the introduction of the Crown Prosecution Service proposed that it should be set up in such a way as to recognise the importance of independent legal expertise in the decision to prosecute and to make the conduct of the prosecution the responsibility of someone who is legally qualified. That was the basis upon which the Prosecution of Offences Act 1985 was passed, setting up the CPS.

The first inroad into that came with the introduction of Section 7A of the 1985 Act through the Courts and Legal Services Act 1990. That was confined to bail applications, more limited than the new Section 7A which the Government now propose in their amendment. When the 1990 Act was in Committee on 29th January 1990 my noble friend Lord Hutchinson of Lullington argued powerfully against it. He said:

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He was supported by the noble Lord, Lord Mishcon, who stated the need for a professional person with professional experience and knowledge. Later in debate the Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, said that it was not the intention to allow unqualified staff to screen cases. He went on to say:

    "Provided that the person handling this kind of application is competent and adequately trained, and provided that the appropriate controls are there, it is clear that an unqualified person can provide the service that the courts require".--[Official Report, 5/2/90; col. 682.]

Now that it is intended to replace Section 7A with a new version allowing extended powers of delegation, it is, I suggest, even more important that the non-legal staff who may be given power to decide whether to institute or to continue criminal proceedings and to conduct proceedings other than trials in the magistrates' courts should have sufficient skill and experience and recorded, ascertainable training.

The decision whether to commence or to continue criminal proceedings involves considerable responsibility, with implications for defendants, victims and the courts. Uncontested criminal proceedings in the magistrates' courts are not necessarily trivial or straightforward. Even what seems routine to those who work in the courts is not routine to those before the courts, particularly for the first time. The liberty of the individual can be at risk. Decisions by prosecutors can require judgments about what is an acceptable plea and an acceptable basis for plea. The proposed new section gives no indication that there will be independent, professional judgment provided at any stage. There is nothing to indicate any level of legal professional supervision or monitoring. The new Section 7A(3) and (4) merely provides for instructions to be given which may be of general application.

The amendment which I move comes from the Bar Council. But, so as not to upset my noble friend Lord Thomas of Gresford, I emphasise that the concerns underlying it are not the preservation of professional positions. The Association of First Division Civil Servants has also expressed concern, pointing out that Amendment No. 212 has little connection with speeding up the criminal process but is a cost cutting measure. If it is to become reality, safeguards must be built in. Hence Amendment No. 212A seeks to make the exercise of the powers under the new Section 7A referable to the framework for legal services in this country, which provides for qualifications, training and enforceable rules of professional conduct. In other words, at the very least we should have some assurance of the competence, adequate training and appropriate controls mentioned by the then Lord Chancellor in 1990. I beg to move.

Lord Windlesham: It is fitting that these two amendments relate to a clause which raises for the first time the status and functions of the Crown Prosecution Service which are not otherwise covered by the Bill. I regret that there has been much criticism of the CPS in recent years, not all of it by any means well informed and some of it wide of the mark. That led to the establishment of a wide ranging review under a former

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Lord Justice of Appeal, Sir Iain Glidewell, which has yet to report. I am sure I am not alone in the House in paying tribute to the very distinguished public servant, Dame Barbara Mills, who serves as Director of Public Prosecutions.

We should not forget that experienced, fair minded and competent prosecutors, who are not associated with the investigative process prior to charging, are as essential to the proper working of the process of justice as are defence lawyers. At the same time it is reasonable to accept that in the interests of improving efficiency, minimising delays and controlling costs there is an argument for devolving some of the prosecution responsibilities and functions on to non-legally qualified staff. But I ask the Solicitor-General whether it is wise to do this before Glidewell has reported. I accept that there is a legislative window. Hence, presumably, the fact that this complete new clause arrives by way of an amendment to the Bill. But the issues are currently being subjected to careful and independent scrutiny, and I think it is unfortunate to act in advance of hearing what Sir Iain Glidewell has to say and the Government's response to whatever recommendations he may make.

The reservations expressed by the Association of First Division Civil Servants have already been referred to by the noble Lord, Lord Meston. The FDA argues that in the clause the Government are going further than the recommendations last year of the Narey report on reducing delay in the criminal justice system, to which the Solicitor-General has already referred. That inquiry, as its title implies, dealt with the issue of delay. Glidewell is looking at the operations, the structure and the working of the Crown Prosecution Service far more widely.

The FDA concerns can be summarised in a list of questions which I wish to put to the Solicitor-General. If he cannot manage to answer all of them without notice off-the-cuff, I should be grateful if he could write to me. Will the designated lay staff be suitably trained and qualified? Is enough time being allowed for this? Will they be members of a professional body external to the CPS? Will they be acting under the direction of a legally qualified crown prosecutor, as recommended by Narey? Will their responsibilities be restricted to guilty pleas in magistrates' courts? Will they be working at premises separate from police stations; and if not, does the Government consider that there would be a risk of their independent status being prejudiced?

Lord Ackner: As has just been said, it seems to me that the Government are pre-empting what the Glidewell Committee may decide; and more so since the FDA has made representations to that committee. One could well find that when the committee comes to provide its decision it has upheld the very submissions that have been made in this House. That would be most unfortunate.

I suspect that this suggestion is not designed essentially to deal with delay. It seems to me that it is a proposal that could well be directed principally towards saving money. If one sets out to do that in this type of situation, then one is running a serious risk of prejudicing the quality of the justice that results. I know

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that saving money has been a criticism directed at the CPS--certainly by the Bar--who have suggested that some of the unfortunate failures in prosecutions (and many have been referred to) have resulted from the CPS not being allowed, I expect, to pay appropriately for the services that it seeks to retain. The CPS has been the subject of considerable criticism and no doubt some of it is not justified. I know that criticism comes not only from the Bar, but also from the circuit Bench, which is much involved in work which is presented to it by the CPS.

I have already mentioned as regards another amendment that there exists a procedure for extending rights of audience. It may be that the Lord Chancellor does not like it, but the fact of the matter is that it exists. There is a statute which says that it is only through recourse to that procedure that rights of audience should be granted. I refer to Section 27 of the Courts and Legal Services Act 1990.

I support the amendment of the noble Lord, Lord Meston, because he seeks to make the necessary provision adaptable to the Director of Public Prosecutions so that an application can be made to the Lord Chancellor's Advisory Committee and the procedure then put in place. I support the amendment and I respectfully resist the amendment proposed by the Government.

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