Criminal Justice and Immigration Bill

I gather that noble Lords received this letter this afternoon but have not had an opportunity to read it until an hour or two ago. I pay tribute to the amount of work that the noble and learned Baroness has put into this matter, with the obvious degree of thought that she has consecrated to it. The position of the Opposition, like that of the noble Lord, Lord Thomas of Gresford, is to welcome the fact that the Government have moved considerably on this issue, but to reserve our position at this stage so that we can reflect further on the contents of the letter and consult with the parties with whom we have initially been talking. I welcome government Amendment No. 116B, which will restrict the trial element to summary offences only. As the noble and learned Baroness says in her letter: "““This will remove the possibility … that the CPS might deploy a DCW to prosecute a trial involving a serious either-way offence before the magistrates’ court””." As the noble and learned Baroness knows, many of us feel that DCWs should not undertake trials when imprisonment may result. She is reluctant to go one step further than Amendment No. 116B and put that in the Bill. However, she has found an ingenious alternative approach by means of Section 7A(3) and (4) of the Prosecution of Offences Act 1985. She explains that this section of the Act places a statutory obligation on the Director of Public Prosecutions to issue general instructions that govern the nature of the type of hearing in which DCWs might be employed. If the director wishes at a later stage to change these instructions, the Attorney-General must be consulted and satisfied that any extension is justified. The noble and learned Baroness assures us that the initial instructions that will be given by the director will be that DCWs can be involved only in trials involving summary-only offences that are non-imprisonable. Although I salute the skill with which the noble and learned Baroness has woven this tapestry, I am hesitant about the operation of the mechanism. I do not think that consulting the Attorney-General—this is no disrespect to the noble and learned Baroness or any Attorney-General who might one day stand in her shoes—is a sufficient guarantee to your Lordships' House. I would like inserted into the 1985 Act an opportunity for Parliament to consider a change of the general instructions, probably by an affirmative resolution. The debate in your Lordships' House tonight has ranged widely. With one hesitation about two of the things that the noble Lord, Lord Borrie, said, I agree with everything that noble Lords have said. It is especially important to underline a point made exceedingly well by both the noble and learned Baroness, Lady Butler-Sloss, and my noble and learned friend Lord Mayhew of Twysden. In quite a lot of these cases, the defendant will not be legally represented. We need to be sure that the designated caseworkers understand that their duty is to the court, not, or not primarily, to the prosecution. The point was especially powerfully made by the noble and learned Baroness that independent line managers must understand that. They must understand that, whatever view the CPS takes about the desirability of winning, there is a duty on the person who conducts that litigation over and above that institutional target. We need to be confident that that is not only well understood but operationally effective. I note from the letter that negotiations are going on over the ILEX code of conduct; I wish them well. I am inclined to the view of the noble Lord, Lord Thomas of Gresford, that the ILEX qualification is the minimum necessary. I understand the noble and learned Baroness’s keenness to engage in providing for DCWs the new type of experience in magistrates' courts; but the desirability of developing the careers of DCWs cannot in itself be a key reason for doing what she seeks. I can see that it would have that effect, and I know that institutionally that effect is desirable; but I do not think that it can be the motive for making the change. It is a consequence of the change if there are other good reasons for making it. I therefore thank the noble and learned Baroness very much indeed for her letter. It was beautifully typed, and I have always admired her signature. I shall consider it intimately between now and Report, and I look forward to returning to these matters on that occasion.