§ (1) If the Secretary of State is satisfied that by reason of the condition of a prisoner's health it is undesirable to detain him in prison, but that, such condition of health being due in whole or in part to the prisoner's own conduct in prison, it is 1096 desirable that his release should be temporary and conditional only, the Secretary of State may, if he thinks fit, having regard to all the circumstances of the case, by order authorises the temporary discharge of the prisoner for such period and subject to such conditions as may be stated in the order.
§ (2) Any prisoner so discharged shall comply with any conditions stated in the order of temporary discharge and shall return to prison at the expiration of the period stated in the order, or of such extended period as may be fixed by any subsequent order of the Secretary of State, and if the prisoner fails so to comply or return he may be arrested without warrant and taken back to prison.
§ (3) Where a prisoner under sentence is discharged in pursuance of an order of temporary discharge the currency of the sentence shall be suspended from the day 1097 on which he is discharged from prison under the order to the day on which he is received back into prison, so that the former day shall be reckoned and the latter shall not be reckoned as part of the sentence.
§ (4) Where an order of temporary discharge is made in the case of a prisoner not under sentence, the order shall contain conditions requiring the attendance of the prisoner at any further proceedings on his ease at which his presence may be required.
§ Viscount WOLMERI beg to move, in Sub-section (1) to leave out the words "the Secretary of State" ["If the Secretary of State is satisfied"] and to insert instead thereof the words "a judge of the High Court."
The object of this Amendment is to take out of the power of the Secretary of State to decide whether this Bill shall apply to any prisoner in custody. I do not propose to take away the powers given by the Bill, but to transfer them to a judge of the High Court. I only propose that in the first instance a judge of the High Court, and not the Secretary of State, should decide whether this Bill should be applied to any given prisoner, and therefore, in the event of a judge deciding that the Bill was to be applied to the prisoner, the Secretary of State would carry out the provisions of the Bill in the manner provided in the Bill. It would be much better from every point of view that somebody who is in the independent position of a judge should have the responsibility of invoking this Bill if it becomes law. The position of the Home Secretary otherwise may conceivably be very invidious. This Bill does not apply only to suffragettes, but to everybody, and the Secretary of State in future may be in the position of being asked to release a political supporter or a political opponent, and pressure may be brought to bear upon him, for political reasons, that a prisoner should be given the privileges of this Act. It is much more desirable that that decision should be taken by some authority which would not be susceptible of political influence, and against whom no suspicion of political bias could possibly attach. Even as regards the present emergency of suffragettes, this Bill would place the Home Secretary in a very invidious position. The method which the campaign of militancy is following at present is to attack the persons of Cabinet Ministers. As long as militancy continues 1098 this method of political propaganda Cabinet Ministers will be always subject to attacks against their persons which will bring the perpetrators within the arm of the law, and the situation contemplated by this Bill is likely to arise in those cases. It would be very awkward for the Home Secretary to have to decide whether a prisoner who had been committing serious outrages against his person, or against his colleagues, and who had openly announced his intention of resuming those outrages the moment he was let out of prison, should or should not be let out of prison.
§ The CHAIRMAN (Mr. Whitley)I have had an opportunity of considering the Noble Lord's Amendment now, and I find that it would require a great deal more machinery, notice of which he has not either handed in or put upon the Paper. I understand that there is no machinery for converting a judge of the High Court into a prison authority. I do not think that this Amendment by itself could stand in the Bill, and I would like the Noble Lord to address himself to that point.
§ Viscount WOLMERAll I am proposing is that if a judge of the High Courts should declare that he is satisfied by reason of the condition of the prisoner's health that it would be undesirable to retain him in prison and so on, it does not appear that any machinery is required for that.
§ The CHAIRMANThere would be machinery required as regards the person who is to make the application and the procedure on the application. I am not aware of any existing machinery which can be used for that purpose.
§ Lord ROBERT CECILThere is no machinery to enable the Secretary of State to consider it. I do not see why it is more difficult to satisfy a judge of the High Court than it is to satisfy the Secretary of State. The application, I presume, would be an application at Chambers, or some application of that kind. There would be no difficulty more than there is at present when trying a prisoner for breach of prison discipline. If there is any difficulty it could be met in a moment by providing that there should be power to prescribe by rules. Whatever is machinery for the Secretary of State is machinery for a judge.
§ Mr. McKENNAThe Secretary of State is now the prison authority. All the machinery necessary to satisfy me is the 1099 machinery which I now have to use in order to advise on the exercise of the prerogative.
§ Lord ROBERT CECILThat may or may not be an argument against the Amendment that it would be inconvenient to substitute a judge as the prison authority, but it cannot be said to be out of order to substitute a judge, one public official for another. There is no machinery provided in this Bill for the satisfaction of the Secretary of State, and I do not see why it is more necessary to have machinery for the satisfaction of a judge, who is one kind of public official, than for the satisfaction of the Secretary of State, who is another.
§ Viscount WOLMERI designedly left the matter as free as possible because I did not want to put any impediment in the way of making application to a judge. I simply lay down that the judge should pronounce himself satisfied in accordance with the terms of the Bill.
§ The CHAIRMANThe point is that a judge is not a prison authority, and for a judge to be asked to give a certificate with regard to a prisoner's condition of health is surely quite a novel proposal. The proposal seems to me not reasonably complete enough to be put forward in Debate in Committee.
§ Lord HUGH CECILIt would read, "If a judge of the High Courts is satisfied," and so on. There is no question of order as to whether a judge should be satisfied. The only question of order is if this makes sense. This makes perfect sense. A judge can be satisfied as easily as a Secretary of State can be satisfied. A judge will have to decide what is to satisfy him. If he is satisfied he will have to intimate his satisfaction in any way he thinks proper. There is no necessity for any machinery. A judge can be satisfied as much as any other human being.
§ Sir ARTHUR MARKHAMIf the word "judge" were inserted, would not this, in cases where it was desirable that an order should be obtained, enable the prison authorities to make application to a judge just the same as is done by an application to the Home Secretary? I do not think that it would require rules for this purpose. I submit that all that would be necessary is that we should insert some Clause, if necessary, to provide that 1100 where application was made by the prison authorities, it should be made in Chambers to a judge.
§ The CHAIRMANThe point put by the Noble Lord the Member for the University of Oxford (Lord Hugh Cecil) is really a point of Order, because the Chair has to be satisfied that the Amendment is a reasonable one to put before the Committee. My difficulty is that you might in this way choose any individual or any functionary, and I think you want some more machinery to make it complete.
§ Viscount WOLMERIs not that a point of debate? The proposal I have made in this Amendment is one which appears to be perfectly comprehensible as it exists. If there is a drawback in the nature of that proposal is not that a matter for debate and further amendment in Committee? With all deference I venture to submit that this Amendment as it reads does express my meaning perfectly straightforwardly and comprehensibly, and can be understood by anybody.
§ Lord ROBERT CECILIt is quite true that the Home Secretary is the prison authority, whatever that may mean. I do not know what it means, though it is familiar to me as a term of law. It may have some meaning that I am not aware of, but if it has that meaning there must be some other Act which enables the Home Secretary to judge of these matters, but that Act is not imported into this Bill, and has nothing to do with it at all. I am aware of the Judicature Act under which the judge in Chambers decides matters of this kind, and that could be easily imported into this Act. There is no machinery in the Bill at all to satisfy the Home Secretary, and it is left entirely at large. I do not think it is very good drafting, and it would have been better to have put in the words, "in the manner provided by the Prisons Act." I must respectfully say that what is sauce for the Home Secretary's goose is sauce for the High Court gander.
§ The CHAIRMANI must confess that I have very considerable doubt in the matter, and as I have not had time to look into it fully I shall give the Noble Lord the benefit of that doubt.
§ Viscount WOLMERI am very grateful to you, Sir, and I had practically concluded my remarks when you called me to order. As to the details, if the Committee 1101 approve of the principle of my Amendment they can be settled afterwards. The only point I wish to make in this Amendment is that the person who has to decide this matter, if the Bill becomes an Act, ought to be a person who is not a politician, or responsible to this House; he ought to be an independent authority in the position of a judge, and one against whom no suspicion would lie, and upon whom no political pressure could be brought. It is for that reason I move my Amendment, and if the Home Secretary thinks that further regulations are necessary to give it proper force and make it work efficiently, I am perfectly willing that those regulations should be inserted. We contend here that the Home Secretary should not be put in the invidious position in which the Bill places him, of having to decide in the case of a person who may be a political supporter or political opponent; or the right hon. Gentleman himself personally, or his colleagues, might have been subjected to outrage, and therefore he should not be put in the position in which the Bill places him.
§ Mr. McKENNAI fully appreciate the point which the Noble Lord has put, and I am grateful to him for his desire to relieve me of a certain part of my responsibilities; but I would remind him that my responsibilities are already much more serious than apparently he has conceived. He has said quite truly that it is undesirable for any politician to have to decide whether a political supporter or politician should be given the privileges of this Act, and he thinks it is a pity that a politician, and not an independent authority, should be forced to give a decision whether this Act should be applied to a prisoner or not. Rightly or wrongly, there is upon me the responsibility at this moment of deciding this very question is much more important cases, in which I have to advise upon the exercise of the prerogative. I have the power to advise with regard to every prisoner in prison at this moment. The responsibility rests on the Home Secretary of advising the release of any prisoner, and I have that power already. All that is suggested now is that the Home Secretary should have the power, not merely of releasing a prisoner, but, in certain cases, of discharging the prisoner temporarily, where there is necessity for that decision arising from the prisoner's own acts. It would be really straining at a gnat and swallowing a camel to insist on applying to a judge 1102 before the Home Secretary could exercise such a minor responsibility, when he has now the responsibility of advising the exercise of the Royal prerogative with regard to every prisoner in gaol.
As the Home Secretary is now the authority, and has all the machinery and information already in his possession, and as he is—here I agree with the Noble Lord—responsible to Parliament for every act which he does, I really think the exercise of such a power as this ought to be placed in his hands, and ought not to be placed in the hands of the judge. This is not an ordinary exercise of judicial authority. The prisoner has been brought before the judge, and has been found guilty by the judge. That is the proper function for the judge to perform. But here we are only dealing with a question of prison discipline. All we are asking for is that the Secretary of State should have the power of dealing with prisoners who are refractory in a particular way. I think it would be very cumbersome to have to go before the judge, and in many cases it would defeat the whole object of the Bill where urgency is of extreme importance. The judge could only make an order on information supplied to him by the Home Secretary, and the order given would not affect the sentence, but would enable the prison discipline to be enforced by the Home Secretary, who is the prison authority. The Noble Lord admits that "prison authority" is a very well-known term and the Home Secretary is made the prison authority by particular Statutes. For these reasons I hope the Noble Lord will not press his Amendment.
§ Lord ROBERT CECILI do not think the Home Secretary quite appreciates the effect of his own Bill. If the Committee will look at the first. Sub-section of this Clause they will understand better what it does mean and does not mean. It says, "Where a prisoner ought to be released on account of his health." But when the bad condition of his health has been caused by his conduct, partly or altogether, then he may be released conditionally. The effect of this Sub-section is to put a fetter on the prisoner's right of release in consequence of his state of health. At the present moment it is conceded, or at any rate it is a matter of practice, that when it is dangerous to a prisoner to be kept in prison he must be released. I state with great confidence, it is his light, and 1103 surely there are a large number of cases in which quite apart from suffragettes, that has been done. What is proposed here is that where that condition has been caused by his own act then he is to be released not altogether but conditionally. The question that will come before the Home Secretary, admitting that the prisoner's health is in such condition that he ought to be released, is whether or not it was caused by his own conduct. That seems to me to be in the nature of charging the prisoner with the offence of causing an injury to his health by his own conduct, and that is a matter which seems to me primâ facie more fitted for the decision of the judge than of a Home Secretary. The real effect of the Clause seems to me to put a fetter on the release, and not to make it easier to release the prisoner, but to make it easier to release the prisoner conditionally instead of absolutely. That seems to me to be a matter eminently for judicial inquiry which ought to be determined on judicial grounds, and the question is whether the Home Secretary is on the whole the best person to exercise what is a judicial function.
I quite admit there is a good deal to be said on both sides, but everybody will agree that the Home Secretary is not a good judicial officer, whatever he may be as a prison authority. In many cases he has had no legal training at all, and I suppose in no case has he had any judicial training; and, therefore, as a judicial person I think everybody would agree that he is not a satisfactory person. It is for that reason that Parliament quite recently passed a Bill establishing the Appeal Court in order to relieve him of some of his judicial functions. That was one of the great reasons which was advanced by the Ministry of the day for that measure. The one argument which the Home Secretary advanced which impressed me was the question of urgency. I do see there is a difficulty there, but it might be that to get hold of a judge would take no longer than to get hold of the Home Secretary. The Home Secretary must remember that a judge has constantly to deal with very urgent applications, such as applications for injunctions where some immediate danger is threatened, and cases of that kind are dealt with in the course of an hour in appropriate instances. I should have thought myself there would not be much difficulty in invoking the judicial 1104 power in a proper manner, and to get a decision from a judge as quickly as from the Home Secretary. The Home Secretary is quite as likely to be away as a judge, and I think even more likely. Therefore, on the whole, I should have thought this was a good Amendment, but I do not know whether it is worth while putting the House to the trouble of a Division on a matter of that kind.
§ Sir A. MARKHAMI support this Amendment for the reason that in my opinion it is most undesirable that the Secretary of State should be the determining judge in matters of this kind. As the law stands to-day I understand that if a prisoner deliberately refused to take food and died without forcible feeding that in that case the Home Secretary would be liable to be tried by indictment, but that if he had forcibly fed the prisoner no responsibility rested on him. That is a most unsatisfactory position in which to place the Home Secretary. As the Mover of the Amendment pointed out, many outrages, particularly by militant suffragettes, are either on the person or houses or property of Ministers, and it seems to me to be wholly undesirable that the Home Secretary should have the power of determining the imprisonment for offences committed against one of his own colleagues. This Bill has been properly termed "The Cat and Mouse Bill." I entirely dissent from it, but in my opinion it is preferable to have a judge in place of the Secretary of State, as he will not be so likely to be influenced by the sloppy sentimentalism which is so apparent in this House, but which is not, in my opinion, apparent in the country. The country would much prefer that a judge of the High Court should have the deciding of this question, which, after all, is not one of administration, because it is a case of a deliberate attempt on the part of the prisoner to escape the punishment of the Court and sentence of the judge by a conspiracy entered into with the sole object of getting released from prison. Therefore I should have thought that the Home Secretary himself would have preferred that this question should have been removed from his decision, because in my opinion, the whole attitude is an impossible one, but as the House has given a Second Reading to the Bill, the only question is to strengthen it, and I believe it would be strengthened by the Amendment.
§ Mr. G. ROBERTSI desire to speak in opposition to the Amendment. I apprehend that the present prerogative of releasing prisoners in ill-health is in no way affected by this Bill, and that the Bill only applies to persons whose health suffers through direct conduct of their own. Such being the case it appears to me to be a question of facts and not of law, and a matter for a doctor rather than for a judge of the High Court to determine. Furthermore, I am of opinion that it is much more preferable that the administration of this matter when it becomes law, should be in the hands of the Home Secretary, because of the fact that this House is competent to criticise the right hon. Gentleman, whereas, of course, we have no opportunity whatever of passing any observations upon the conduct of the judges. Again, I think, that this proposal would be most unfair, perhaps even to the prisoners, because I can conceive that during the long vacation it would be extremely difficult, or quite impossible, to get a judge. The legal gentleman will help me in this matter.
§ Mr. HUME-WILLIAMSJudges are always accessible.
§ Viscount WOLMERAnd the Home Secretary is not.
§ Mr. G. ROBERTSI believe that the Home Secretary is always within reach, or that it is possible to get into communication with him. I certainly do not think that this is a matter that ought to be argued before a judge of the High Courts; it is essentially a question of administration upon matters of fact, and not upon points of legal determination. For the strong reason that it always remains in the competency of the House of Commons to criticise the action of the Home Secretary, I hope the Noble Lord will withdraw the Amendment.
§ Sir J. D. REESAs far as the argument that the Home Secretary is always available goes, it occurs to me that during one of the most important crises which have arisen since I have been a Member of Parliament, the Home Secretary was on the high seas, and the Secretary of State for War had to deal with the matter. I refer to the incident in Newport, Monmouthshire. A judge of the High Court, is, in the nature of things, always available to receive urgent applications in Chambers. Therefore there seems to be no argument in favour of the Home Secretary 1106 on that ground. Nevertheless, I hope the Government will not accept this Amendment. I cannot see that there would be any advantage in so serious a departure from procedure as the placing of a matter of prison discipline under the cognisance of a judge of the High Court. Having once passed sentence, the judge has no further concern with the prisoner. I understand that the Home Secretary has taken the opinion of the Law Officers, and has been told that he must endeavour to keep these prisoners alive. I am not sure how that stands; but the law was once laid down by the poet in the words:—
Thou shalt not kill, but need'st not striveOfficiously to keep alive.I believe that as regards these prisoners the Home Secretary is bound "officiously to keep alive," although possibly his intervention is too tardy and the prisoners are not allowed a fair chance to take food, which they probably would do in time. However that may be, the point here is simply whether the Home Secretary or a judge of the High Court is the proper authority to deal with a prisoner who hunger strikes. It is inconceivable to me that anybody who has had experience of prison management can for a moment contemplate taking a matter of this kind out of the hands of the Executive and putting it back into the hands of the Judiciary. It is not a judicial question.
§ Sir A. MARKHAMDoes it not arise from a conspiracy to defeat the sentence which the judge has awarded?
§ Sir J. D. REESI quite agree, but that does not make any difference as regards the proper authority to deal with it. It is a matter for the Executive. When once a judge has sentenced a prisoner he has no further concern with him or her. Take another aspect of the case, in which the hon. Baronet is particularly interested. I remember how stoutly he stood up—although unfortunately he afterwards gave way—against the proposal to increase the number of judges. I was entirely with him. But if judges are to manage prisons and prisoners as well as to sentence prisoners, there will be no end to their duties, and more and more judges will be required. I have not heard a single argument why this function should be discharged by anybody but the Home Secretary, who is responsible to Parliament for the exercise of the prerogative. As an executive official, the Home Secretary recommends the exercise of the prerogative, 1107 which is not subject to any rules or law. It seems to be incredible that it should be proposed that a judge should recommend the exercise of the Royal prerogative, and I hope my Noble Friend will not press this Amendment.
§ Mr. MUNROThe Amendment is based on two grounds: first, that of relieving the Home Secretary of an invidious duty, and, secondly, that a more efficient and appropriate official will be found in a judge of the High Court. So far as the first ground is concerned, the Home Secretary has indicated his entire willingness to discharge the duty, so that nothing more need be said on that. As far as the second ground is concerned, this being purely an administrative and not a judicial act, the main question being as to the state of the prisoner's health and whether it requires his or her release, I think that the duty can be more properly performed by the Home Secretary on report made to him than by a judge of the High Court. I do not think that any analogous function is performed at present by a High Court judge. The nearest analogy is provided by the Penal Servitude Acts, and there the Home Secretary is the person who exercises this discretion. I do not follow the Noble Lord as to the procedure which would be necessary. Is there to be evidence on both sides placed before the High Court judge? Are there to be counsel? Is there to be an appeal or is the judgment to be final? All these questions simply emphasise the necessity of embodying machinery in the Bill if effect is to be given to the proposal. On the question of urgency I agree with what has been said; but that again emphasises the necessity of setting un machinery to ensure that the matter should come before a Judge in Chambers, who should deal with it promptly. That again is unprovided for in any part of the Bill. Therefore I hope that this Amendment will not be accepted.
§ Viscount WOLMERI beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. HUME-WILLIAMSI beg to move in Sub-section (1) after the word "State" ["If the Secretary of State is satisfied"] to insert the words "or the governor of any prison authorised by the Secretary of State with reference to a particular prisoner."
1108 The object of this Amendment is to meet the question of urgency to which reference has already been made. It seems to me quite possible that, supposing a prisoner hunger-strikes, a period may and probably would arise when the condition of the prisoner, hitherto without danger, would suddenly become dangerous, owing, for instance, to the condition of the heart. That might occur at the week-end, when even the Home Secretary might be away, and by the time the Home Secretary had been found, an application made, and an order issued, the prisoner might be dead. Therefore what I suggest, is that under circumstances of that kind, where the report has already reached the Home Secretary to the effect that such a collapse might occur, he should have the power to authorise the governor of the prison to issue the order of release—safeguarding it by the subsequent Amendment. The governor of the prison should not have power to make such an order unless specifically authorised by the Home Secretary in reference to that particular prisoner. I think it is probable that the Home Secretary would more commonly adopt the form of forwarding to the governor directions that if he was satisfied during his (the Home Secretary's) absence that the conditions were such that it was desirable that an order should be made then and there, that the order should be made. If this Bill is to be made operative at all and to deal with urgent cases such as are contemplated, I think some such power will have to be given to the governor of the prison. The other part of the Amendment, which is one of perhaps rather larger importance, is this: As the Bill stands at present it reads:—
"If the Secretary of State is satisfied that by reason of the condition of a prisoner's health it is undesirable …"
The suggestion that I make, if accepted, would make the Bill read in this way:—
"If the Secretary of State is satisfied … that continued detention will endanger a prisoner's life, or seriously and permanently affect his health, and that it is therefore …"
Then the other parts of the Section would read on. It must be pointed out, as already stated by the Noble Lord who moved the last Amendment, that this is a Bill which, although introduced to meet the necessities of a particular class, is a Bill which deals with all prisoners of whatever class and whatever sex for all time. I confess to a dread that unless it is a 1109 little more accurately framed than at the present time that you will have, as we often have in our legislation, a Bill framed for one particular object utilised in years to come, when that object has been altogether forgotten, for a totally different…
§ The CHAIRMANThe hon. and learned Gentleman, I think, will be well advised to take the second Amendment on the Paper separately. It does not appear to be necessarily consequential on the first one. I can only put one question at a time. If he will allow me to put the first one and get that disposed of, then we can go on to the second one.
§ Mr. HUME-WILLIAMSI am very much obliged, and I entirely agree with what you say. I started my observations by pointing out to you and the Committee that probably owing to my bad drafting two entirely distinct Amendments have become mixed on the Paper. That means that I will defer any remarks on the second point, and as I have said what I had to say on the first, I beg to move.
§ 9.0 P.M.
§ Mr. McKENNAI fully appreciate the desire of the hon. and learned Member, but I do not think that the words are required in order to effect the object he has in mind. The words are equally objectionable on another ground. You are asking that any governor authorised by the Secretary of State should release a particular prisoner if he is satisfied, and so on. The hon. and learned Gentleman would be the first to recognise that these words would to a certain extent impose a duty upon the governor where the Secretary of State is responsible. The Secretary of State and the governor are placed as alternatives. The assumption, therefore, would be that there might be cases in which the Secretary of State would not be responsible. He might come to the House of Commons and say, "I authorised the governor in regard to that particular prisoner to be careful, and if he was satisfied to release him. I do not know the circumstances." It is desirable in every case that the Secretary of State should be responsible in this House with regard to the release of every prisoner. I hope my hon. and learned Friend will not press this Amendment. In practice the object is really met. In practice what would happen would be, supposing the case of a prisoner about whom there is anxiety, I would be fully apprised of the circumstances, and would authorise the 1110 governor to do what was desirable. But the authorisation would be mine and the responsibility would be mine, and I should have to answer to Parliament for the act of the governor. I do not think it is necessary, therefore, to introduce the governor here in order to effect the very proper object which the hon. Gentleman has in view.
§ Sir A. MARKHAMThere is one very much stronger reason than that stated by the Home Secretary why this Amendment should not be accepted. It is stated that the Amendment would enable the prisoner to obtain a speedy release when the Home Secretary might be absent. That is a reason which is conclusive to my mind why the Amendment should not be accepted. If prisoners do not take their food, they should not have an opportunity of getting off earlier than they otherwise would. It is clearly undesirable in my opinion that they should have a further chance of escape. It is a simple question to my mind that where people deliberately enter into a conspiracy to defeat the law they should do so at their own risk. If they go on hunger strike, the law should be more stringent.
§ Sir J. D. REESI hope my hon. and learned Friend will not press this Amendment—for two reasons. The first is that it must be expected to some extent to reduce the responsibility of the Secretary of State which should be maintained to the utmost degree. He has great responsibility and is immediately responsible to Parliament. I will oppose any Amendment or change whatsoever which will relieve him in the slightest degree of any responsibility that is his. There is one other reason. I object to this or any power in this respect being given to the governors of gaols. Governors of gaols, contrary to what might be supposed, are really feeble and timid folk. They dread responsibility. Imagine the feelings of an ordinary governor of a gaol confronted by a Mrs. Pankhurst, with crowds of people about the country willing to commit abominable outrages to show their sympathy with her? I do not think it is quite fair, under these circumstances, to put upon the governor of a gaol any responsibility or any new function whatsoever under this Act. Let it all remain on the devoted head of the Secretary of State. To do him justice, though I have frequently complained of his leniency to what are miscalled political prisoners, I will say on the present occasion he has stuck to his guns, and I mean to support him.
§ Amendment put, and negatived.
§ Mr. HUME-WILLIAMSI beg to move in Sub-section (1) to leave out the words, "by reason of the condition of a prisoner's health," and to insert instead thereof the words, "continued detention will endanger a prisoner's life or seriously and permanently affect his health and that it is therefore."
I wish to point out that what I think is of great importance in this Bill is this. It deals with all prisoners for all time to come, and therefore it is a Bill which we are bound to consider in the interests of the community, and not only in reference to the particular contingency for which it is being passed. I suggest that the words of the Sub-section as they stand are altogether too wide. Just think of the power you are giving to the Secretary of State if this Bill passes in this form. He has merely to determine that the condition of a prisoner's health is such that it is undesirable to detain him any further in prison without any guide in the Bill as to what the condition of health is which the prisoner must have reached before his release. Without any standard to act upon he is to exercise his own unfettered discretion as to whether the condition of the prisoner's health is such that it is undesirable to detain him any further in prison. I suggest that is much too great a power to give to any officer with reference to prisoners who after all have broken the law and have been convicted, after trial, and have been sentenced by a judge. I propose to insert words which at any rate contain some limitation upon the powers of the Secretary of State, and which will confine them to cases in which he is satisfied—whether or not he is properly satisfied is a matter for his honour—that the continued detention will interfere with the prisoner's life or will seriously affect his health.
Let us see if these words are inserted the conditions that will arise. I do not lay great emphasis on the statement, but I repeat that it will be a great temptation to the Home Secretary, if political pressure is brought to bear on him, to come to this very easily arrived at conclusion, that the condition of a prisoner's health is such that it is undesirable to keep him further in prison. It might be that some future Government will be called into being which depends upon its remaining in office upon the support of some section of the House of Commons. It might be 1112 that at some future date the House of Commons is sufficiently wise or unwise to give votes to all sorts of women. At some future date there might be a suffragist party which will be able to bring pressure to bear upon the Home Secretary, and although one would not say so of this Home Secretary, there might be a Home Secretary who would yield to such pressure and who would come to the conclusion that the condition of a prisoner's health was such that it was undesirable to detain him any longer in prison. How are you to criticise him? He may say, "The powers of this Act are so wide that I arrived at the conclusion, after consulting the doctor, that it was unwise to detain the prisoner longer. The doctor may have given me no particular reasons that I could repeat to the House, but I am given discretion under the Act, and I exercised it." That is one of the drawbacks and one of the dangers that occurs to me. There are others. Supposing you get a Home Secretary, for instance, who has a fad with reference to contagious diseases, and some prisoner not necessarily a suffragist, some prisoner entirely apart from the present agitation, gets an infectious complaint of some sort. The Home Secretary will be able to say, "I think that prisoner ought to be discharged and sent to some public institution, or sent home to be nursed, and he ought to be taken out of the purview of the prison authorities altogether," and infirmaries and the various institutions provided for persons in prison may be entirely ignored by the Secretary of State, and under the wide terms of this Bill he may exercise any particular fad he may have at the time, and may release the prisoner suffering from an infectious complaint, or suffering from any kind of illness that he may think undesirable for the rest of the prison inhabitants.
But beyond that there is this further matter and I say this as one who, although sympathising to a great extent with the aims of the suffragists, very much deplores the recent methods which they have adopted. I think if you will leave the Bill in this form you will largely take away the deterrent effect, such as it is, that punishment now has. If a woman—and I am dealing now with this as a Bill proposed to meet this particulur emergency—contemplates committing an offence against the law by breaking windows, or committing arson, or any offence of that kind, there are, I venture to suggest, only two things in the punishment that will 1113 subsequently overtake her, that will have any fear for her at all. One is the possibly prolonged period of imprisonment and the consequent removal from the activities she has adopted, and the other is forcible feeding. If you are going to give such a wide discretion as this to the Home Secretary, it seems to me you are likely to stultify your act from beginning to end. What will happen? The woman will go into prison, starve herself for forty-eight hours, and just as she is reaching the time when forcible feeding is to be imposed, she will be released. As this Bill stands she is apparently to be released without any supervision. She is to be sent home for some period detailed in the Order, without any responsibility to report herself. Supposing the doctor says she will take a week to recover, she will go home for a week, and if I know anything of feminine character, she will recover after three days, and after three days she will start breaking windows and setting houses on fire, and she will not care twopence for the only deterrent the Bill now contains. When she comes back to prison she will starve herself for forty-eight hours again and again she will be released, and she will commit a few more crimes. I venture to suggest to the Home Secretary that this is a danger, and that in that respect the Bill requires to be strengthened. I do not think the words of the Amendment are sufficiently strong, and I have a subsequent Amendment to meet that, but they are a step in the right direction. It seems to me to be wrong to leave unfettered discretion to the Home Secretary to release anybody upon medical grounds when the condition of health is such as he thinks it is undesirable to detain them any longer, and, at any rate, you ought to limit his discretion to cases where real danger arises from keeping them longer in prison.
§ Mr. McKENNAI cannot help thinking that the hon. and learned Member has misconstrued the purpose of the first three lines of this Clause. His argument is that the Home Secretary ought never to have such unrestricted powers of release as are granted under this Bill. My answer is that the Home Secretary has got all those powers now.
§ Mr. HUME-WILLIAMSOn licence.
§ Mr. McKENNANo, I can release without any reasons and without any suggestion that the prisoner is in ill-health or has done anything. I have unrestricted 1114 power to advise the release of any prisoner, and this Bill gives me no powers in that direction in excess of what I possess. The hon. and learned Member's arguments are directed not against this Bill so much as against the present constitutional powers which the Home Secretary has of advising the exercise of the Royal prerogative. The hon. and learned Member suggests a limitation of the exercise of that prerogative, which he says should not be exercised unless the prisoner's life would be in danger.
§ Mr. HUME-WILLIAMSUnder the new procedure set up by this Bill.
§ Mr. McKENNABut the power is not confined to that.
§ Mr. HUME-WILLIAMSUnder my Amendment it is confined to the power to be exercised under this Bill.
§ Mr. McKENNAIf the Amendment of the hon. and learned Gentleman is adopted the Clause will read:—
"If the Secretary of State is satisfied that continued detention will endanger a prisoner's life, or seriously and permanently affect his health, and that it is therefore undesirable to detain the prisoner."
I do not agree with what was stated by the Noble Lord the Member for Hitchin (Lord Robert Cecil) that any prisoner has a right to be released on grounds of ill-health. The prerogative is not always exercised in the case of ill-health, because every case has to be considered on its merits, and the Home Secretary is responsible to Parliament in every case in which he exercises this prerogative. The power of advising the exercise of this prerogative is unlimited, but the control of that power lies in the House of Commons. I think the powers of the House of Commons in this matter are very considerable, because the Home Secretary knows that he is liable to criticism and censure for every act he undertakes, and I do not think there is any Minister who is so much subjected to criticism in this House as the Secretary of State for the Home Department. The hon. and learned Member opposite must remember that, having unrestricted power at the present time to advise release in all circumstances, this Amendment only proposes to restrict the power, not of release in case of illness, but in case of temporary discharge only, because the sentence remains effective, and the prisoner is under 1115 the same liability to complete the whole of the sentence. The Amendment would leave the Home Secretary perfectly free to release any prisoner in any circumstances. The hon. and learned Member says if the Home Secretary has the tremendous power of releasing any prisoner, and if you propose to discharge a prisoner temporarily when he would be liable to complete the whole of the sentence, then the discretion of the Secretary of State must be limited to cases where the prisoners' health is such that death is likely to ensue by continued detention.
§ Mr. HUME-WILLIAMSThe right hon. Gentleman knows that that power is very sparingly exercised because it involves a reversal of the decision of the Court, but this is a power which the right hon. Gentleman is likely to be exercising daily.
§ Mr. McKENNAOh, no. I look upon hunger strikes as of a very temporary nature, and I do not think I shall have to exercise this power very often after the Bill has passed. I think one of the effects of the Bill will be to shorten the life of hunger strikes.
§ Sir A. MARKHAMShorten the life of hunger strikers!
§ Mr. McKENNAI said no such thing. I said "strikes," and that is a very different matter. I do not wish to shorten the life of any hunger striker.
§ Sir A. MARKHAMI beg the right hon. Gentleman's pardon. I did not catch the word.
§ Mr. McKENNAI hope, after this explanation, the hon. and learned Member opposite will not think it necessary to press his Amendment. I understand that he is anxious to see the law enforced, and to see prisoners undergo their sentences. At the present time I cannot make these prisoners undergo their sentences without serious risk of death, and I want to have power to enable me to compel a prisoner to undergo the sentence, and I want that power in all cases in which the prisoner adopts the system of the hunger strike. At the present moment, although I have power to release, I cannot release a prisoner without a pardon, and I have to discharge them for good. I want the power of releasing a prisoner without a pardon with the sentence remaining alive. If the hon. and learned Member desires to 1116 see sentences enforced, clearly it is desirable that I should have this power without being forced to discharge the prisoner. When I am satisfied that a prisoner ought to be discharged, I shall have to exercise one or other of two powers. I must either discharge the prisoner under the exercise of the prerogative of mercy, or discharge her under this Bill. As I have unrestricted power of discharge under the prerogative of mercy, every restriction which the hon. Member imposes upon my power under this Bill forces me back upon the exercise of the prerogative of mercy, and really defeats the object which he has in view. I must adopt one or other of two courses, and by limiting me in one course he forces me to adopt the other which he does not wish me to adopt. I hope therefore he will not think it necessary to press his Amendment.
§ Sir F. BANBURYWhen I read the Amendment and listened to the greater part of the speech of my hon. Friend who supported it, I rather came to the conclusion that there was not very much in it, but after listening to the right hon. Gentleman I have changed my opinion altogether. I think his opposition to the Amendment was weak to the last degree. He said that he had the opportunity of advising His Majesty to exercise the power of the Crown to release a prisoner if he thought the prerogative of mercy ought to be exercised. That has got nothing whatever to do either with the Bill or with the Amendment. No one denies that the Home Secretary has the power to advise the Crown to exercise the immemorial right of the prerogative of mercy and to release a prisoner. The question before us has nothing whatever to do with the prerogative of mercy. It is whether or not we can arrive at an arrangement which will prevent certain misguided women from evading the sentence which the law has justly passed upon them. The Home Secretary's defence may be boiled down to this. At the present moment I have the power of advising the Crown to exercise the prerogative of mercy. That prerogative ought not to be exercised in this particular instance, but, unless I have some power of this sort, I shall be compelled to exercise the prerogative of mercy. That, so far as I could see, was the whole argument advanced against, the Amendment. The Amendment to my mind, as a layman, differs very little from the words of the Bill. I think I see the point, but I do not really know that there is very much in it.
§ Mr. HUME-WILLIAMSI am sorry if I did not bring the point home to the lay mind of the hon. Baronet. I suggest that the condition of health which the Home Secretary is to be entitled to take into consideration is that condition of health which has reached the point that it endangers the prisoner's life or will permanently affect her future health.
§ Sir F. BANBURYI am very much obliged to my hon. and learned Friend. I think there is something to be said for the Amendment, and, if he goes to a Division, I shall support him.
§ Sir A. MARKHAMI am really amazed at the reply of the Home Secretary. He says that this Bill is going to shorten the life of the hunger strike. He says that when he is armed with the provisions of this Bill, the good common sense of English women will put an end to the strike. If he thinks that, he must indeed be a Simple Simon. It is incredible to me that anyone with the most remote idea of common sense can believe that the immediate effect of this Bill will not be that women who to-day have not gone to prison will do so not by scores, but by hundreds. They will say, "We will see what is going to be done to us under this ridiculous cat-and-mouse Bill." The right hon. Gentleman's argument seemed to be this: "I am responsible to this House, and, if I do not release a prisoner early enough, the House will judge my action. Everybody knows that there is no judgment of the House of Commons to-day taken on any question. It is taken by the party Whips, quite irrespective of the merits of the question that may be before the House. My hon. Friends sitting on these benches are beginning to realise that now. The Mover of the Amendment said that a future Home Secretary might yield to political pressure, and he thought it desirable that there should be some words inserted in the Clause to make it quite clear that prisoners were not to be released if their health was merely in danger. I should have been inclined to have said that the Home Secretary has already yielded to pressure, not perhaps from the House where he has the party Whip behind him, but to the idea that the country is in favour of the proposals which he and the hon. Member for Nottingham, who is such a strong defender of them, now seek under this ridiculous Bill to make law. If I had my way I would hang anybody who was convicted of throwing a bomb or of being in 1118 possession of a bomb, whoever it was, whether their life was in danger or not, because the possession of bombs is in itself a crime against innocent people, and to let out prisoners who have committed a crime of that kind simply because they are in a poor state of health is to my mind perfectly outrageous. The argument of the right hon. Gentleman is a poor stick with which to beat the opponents of the Bill, but I suppose one must use the sticks available for the purpose. With regard to the aims of the suffragist to which the hon. Member referred…
§ The CHAIRMANI cannot upon this Amendment allow a speech against the Bill.
§ Sir A. MARKHAMI knew I was travelling somewhat wide of the Bill, but I was replying to an observation made by the hon. and learned Member who said he was a sympathiser with…
§ The CHAIRMANI must ask the hon. Member to keep to the Amendment.
§ Sir A. MARKHAMI knew I was out of order, but I wanted to take up as much time as I am legally entitled to as an opponent of the Bill. I hope hon. Gentlemen opposite will give the opponents of the measure some support in the various Amendments that they are going to move, so that we shall at any rate give the Government the trouble of marching round the Lobbies.
§ Mr. PETOI desire to call the attention of the Committee to one or two points in the speech of the Home Secretary to which no reference has been made. The right hon. Gentleman said there were only two courses open to him—that he had to act in the direction of using his power in regard to the exercise of the Royal prerogative, and to let a prisoner go without recall, or he had to adopt the alternative provided by the Bill. The right hon. Gentleman entirely left out of account a third course which is certainly within his power, and that is to let the law take its course. The earlier part of his speech was devoted to showing that such a Bill is wholly unnecessary because the Home Secretary already has such enormous powers. He appeared to argue that the powers he will get under this Bill are comparatively trivial, and he insisted that the Amendment of the hon. and learned Member was a limiting Amendment. But it is limiting 1119 merely in this sense, that it indicates the circumstances under which this third course is to be opened up to the Home Secretary. In his defence of the exact wards in the Bill the right hon. Gentleman put before the Committee an entire misstatement of the basic facts as they exist. He has now undoubtedly two courses open to him, and when this Bill becomes law he will have three, and he stated most emphatically that if he accepted the Amendment he would be doing something to limit one of the two courses which he maintained would still be open to him. That is not my view of the Amendment. He will either allow the law to run its course or he will exercise his power of the Royal prerogative and liberate the prisoner, or he will use the powers under this Bill.
If he adopts the last course, under what circumstances are the new powers to be brought into play? That is the whole point in the Amendment before the Committee, and surely we are entitled to argue that if this new procedure is necessary it should only be exercised under circumstances which show that the further detention of the prisoner would be dangerous to the life of that prisoner. Otherwise the existing law is good enough and there is no need for this Bill. It must only be in cases of positive danger to life that these powers should be exercised. I do not agree with this Bill at all. Like the hon. Baronet the Member for Mansfield (Sir A. Markham), I do not desire to see it become law. But one thing I see perfectly clearly, and that is that the exercise of these new powers to let out prisoners of this kind on ticket-of-leave whenever there is a hunger strike, lasting twenty-four or forty-eight hours, as the case may be, would involve an enormous expenditure of public money in connection with the police. I am therefore in favour of any Amendment which will limit these powers, so that this waste of public money in watching women whom it will be perfectly impossible to keep track of shall be limited to as few cases as possible, and the powers shall only be used in those cases where the hunger strike is carried to such a point as to be absolutely dangerous to life. On that ground I oppose the Bill entirely. I am more than ever of opinion that this Amendment ought to be carried because of the speech of the Home Secretary. Like the hon. Baronet the Member for the City of London, I was not very clear about the 1120 value of this particular Amendment until I heard the right hon. Gentleman's defence of the wording of the Bill. Having heard it, I am perfectly convinced not only on the general grounds, but because the Amendment would limit the operation of this Bill to real cases of difficulty where there might be some excuse for fresh legislation. I shall, therefore, strongly support the Amendment of my hon. and learned Friend.
Mr. CAWLEYI wish to point out the undesirability of pressing this Amendment to a Division. There are two reasons why the words are not so adequate as those contained in the Bill. It is not desirable to state to what condition of health a prisoner must be reduced before being let out. I think the words of the Bill, "By reason of the condition of a prisoner's health it is undesirable to retain him in prison," are about as full as one can possibly desire. There must be a certain amount of discretion in the hands of the person who is to exercise this power. You will have to put on him the duty of deciding if the prisoner's life is in danger or if his condition is such as to justify fears of serious permanent injury to health. My second point is that it is not continued detention that is going to endanger a prisoner's life; it is the action of the prisoner in starving himself, and detention might continue for ever if the prisoner would only take food. The words of the Amendment are not adequate, and, seeing that the words of the Bill leave a certain amount of latitude to the person who is to exercise the power of release, I submit that they are adequate and that it is hardly worth while pressing this Amendment to a Division.
§ Sir J. D. REESThe hon. Baronet (Sir F. Banbury) said there was very little in the Amendment. I think there is a great deal in it, and with what there is in it I heartily disagree. The effect of it, as it occurs to me, has not been stated to the Committee. I ask the Committee how this matter stands. My hon. and learned Friend (Mr. Hume-Williams) would give the Home Secretary power to release a prisoner whenever continued detention would seriously or permanently affect the prisoner's health. That would encourage the Home Secretary to let loose almost every prisoner in gaol, for there are very few prisoners whose health is not seriously or permanently affected. [HON. MEMBERS: "Oh, oh!"] No doubt there are hardened 1121 offenders in the minds of hon. Members, but there are others, and the majority suffer in health. If these words were inserted it would give the Home Secretary power to release prisoners habitually because they were likely to be injured by continued detention in gaol. That would be a serious matter in itself, and is sufficient to make it necessary to oppose the Amendment. The hon. Baronet said that the Home Secretary's speech had no connection with the Bill. I submit that it had. If his powers under this Bill are to be restricted as desired by these Amendments, he will have to fall back on his undoubted power to give an absolutely unconditional release. I believe he wants to be endowed with statutory power to deal with these particular people, and not to use his power of recommending unconditional release. For these reasons I suggest that it is extremely desirable that no support should be given to the Amendment.
§ Mr. KEIR HARDIEThere is one aspect of the question to which reference has not yet been made, which seems to be of moment, especially for the Home Secretary. The Bill as it stands proposes that the prisoners shall be conditionally released if the Home Secretary is satisfied that the condition of the prisoner's health renders that course necessary. The Amendment seeks to define more clearly the conditions under which the Home Secretary would be justified in taking that course. We are told that the reason why he insists upon forcing food upon the women who do not want to take it is that if the woman prisoner under these conditions were to die, he would be held responsible for the death. His argument was that the law imposed upon him the obligation of seeing that these women do not die, and that the Law Courts have held that he is bound to prevent prisoners dying from starvation, therefore forcible feeding is justified. The point I wish to put to him is this: the law at the present time on that point is very indefinite. Suppose this Bill becomes law, and the Home Secretary, owing to an error in judgment, keeps one of these prisoners so long in prison that she actually dies, what is then going to be his position?
§ Sir F. BANBURYHe will have done his duty.
§ Mr. KEIR HARDIEWould he not then become liable to be tried for homicide. [HON. MEMBERS: "No, no."]
§ The CHAIRMANI do not see that this arises on this Amendment. The question is a verbal one; whether one set of words should be inserted here or another.
§ Mr. KEIR HARDIEI am in the position of being opposed to both sets of words. I am putting the point that the Clause, as drafted or as amended, would actually put the Home Secretary in the position where an error of judgment might lead to his being tried for homicide. There is no such danger at the present moment. I ask him, before we decide upon the words in the Clause as it stands or upon the Amendment, whether he has considered that point, and whether he is prepared to take the risk?
§ The CHAIRMANI could not allow the Home Secretary to answer that question, because it would not be in order for him to do so.
§ Mr. BOOTHIf the Amendment goes to a Division, I think I must vote for it, but not because of anything that has happened during the discussion. I could not follow the speech of the hon. Member for the Heywood Division (Mr. H. T. Cawley), who judged the Amendment as applied solely to offending people. I understand the Home Secretary did the same. It is monstrously unjust to think this only applies to people who have to be forcibly fed. The hon. and learned Member who moved the Amendment said he had chiefly in mind that this would be a permanent Act, and would apply to all classes of the community, and to a totally different class of offenders to those we call suffragette offenders. I do not regard this Bill as of the slightest value as it is applied to suffragettes, but as it does apply to the general community these Amendments become important, particularly this one. I ask the Committee to forget the largely irrelevant matter of forcible feeding, which is not mentioned in the Bill, and to examine it as they would like it to apply to people guilty of other offences for the next generation or two generations. It seems to me a wrong thing, owing to temporary pressure—which to my mind is the result of weak administration—to put into our permanent criminal law Amendments of this kind. The only arguments brought forward have arisen upon this one issue. I submit that is misleading the Committee. I want to guard the ordinary average prisoner against unfair usage under this Bill, and I appeal to the House not to be 1123 misled by the Front Bench or by even some of my own fellow Liberals around me who will persist in arguing every Amendment solely as if it would apply to offending women. To me the larger question is much more important. I have an Amendment down which raises it in a clear manner when we come to the word "conduct," where I have given notice to substitute the word "misconduct," so as to see whether these arguments are really genuine or not.
§ Mr. RONALD M'NEILLI wish to give the reasons why I shall support the Amendment. It appears to me that some of the speeches we have heard have rather darkened counsel, and I think it is a very short point which is before us. A good deal of confusion appears to have been introduced by the Home Secretary himself when at an earlier stage he quite irrelevantly, as I thought, brought in the question of the exercise of the Royal prerogative upon the advice of the Home Secretary. That has, as far as I can see, nothing whatever to do with the matter. The short point before us seems to me to be this: The Home Office is asking for powers from Parliament for introducing a new method of prison regulation. That demand has been brought about on
§ account of the position taken up by the suffragettes, though it is quite true that the Bill is not by any means confined to these particular offenders. The whole question appears to me to be this: If these powers are to be granted to the Home Secretary of releasing prisoners from time to time, and temporarily bringing them back to complete their sentence, is that power to be given only in cases of serious illness, illness amounting to danger to life or permanent injury to health, or is it to be exercisable entirely at the discretion of the Home Secretary, so that it will be open to him to let a prisoner out if he or she has a cold in the head? If these powers are to be granted they ought to be limited, as this Amendment would limit them, to really serious cases where the further detention of the prisoner would result, owing to the prisoner's own action, in one of two things, either actually in the death of the prisoner or in serious and permanent injury to her health; and it is because I think the exercise of the powers ought to be so restricted that I shall support the Amendment.
§ Question put, "That the words proposed to be left out stand part of the Clause."
§ The Committee divided: Ayes, 216; Noes, 74.
1125| Division No. 36.] | AYES. | [9.58 p.m. |
| Abraham, William (Dublin, Harbour) | Collins, G. P. (Greenock) | Guest, Major Hon. C. H. C. (Pembroke) |
| Acland, Francis Dyke | Compton-Rickett, Rt. Hon. Sir J. | Guest, Hon. Frederick E. (Dorset, E.) |
| Adamson, William | Condon, Thomas Joseph | Gwynn, Stephen Lucius (Galway) |
| Addison, Dr. Christopher | Cornwall, Sir Edwin A. | Hackett, John |
| Adkins, Sir W. Ryland D. | Cotton, William Francis | Hall, Frederick (Normanton) |
| Agnew, Sir George William | Cowan, W. H. | Hancock, J. G. |
| Allen, Rt. Hon. Charles P. (Stroud) | Crooks, William | Harcourt, Robert V. (Montrose) |
| Armitage, Robert | Crumley, Patrick | Hardie, J. Keir |
| Arnold, Sydney | Davies, Ellis William (Eifion) | Harmsworth, Cecil (Luton, Beds) |
| Baker, Joseph A. (Finsbury, E.) | Dawes, J. A. | Harmsworth, R. L. (Caithness-shire) |
| Balfour, Sir Robert (Lanark) | Delany, William | Harvey, T. E. (Leeds, West) |
| Barnes, G. N. | Denman, Hon. R. D. | Harvey, W. E. (Derbyshire, N.E.) |
| Barran, Sir John N. (Hawick Burghs) | Devlin, Joseph | Havelock-Allen, Sir Henry |
| Beale, Sir William Phipson | Doris, William | Hayden, John Patrick |
| Beauchamp, Sir Edward | Duffy, William J. | Hayward, Evan |
| Beck, Arthur Cecil | Duncan. C. (Barrow-in-Furness) | Hazleton, Richard |
| Benn, W. W. (T. Hamlets, St. George) | Edwards, John Hugh (Glamorgan, Mid) | Henderson, Arthur (Durham) |
| Bentham, G. J. | Esmonde, Dr. John (Tipperary, N.) | Henry, Sir Charles |
| Black, Arthur W. | Esmonde, Sir Thomas (Wexford, N.) | Herbert, General Sir Ivor (Mon., S.) |
| Boland, John Pius | Esslemont, George Birnie | Higham, John Sharp |
| Bowerman, C. W. | Falconer, James | Hobhouse, Rt. Hon. Charles E. H. |
| Boyle, Daniel (Mayo, North) | Farrell, James Patrick | Hodge, John |
| Brace, William | Fenwick, Rt. Hon. Charles | Hogge, James Myles |
| Brady, Patrick Joseph | Ferens, Rt. Hon. Thomas Robinson | Holmes, Daniel Turner |
| Brocklehurst, W. B. | Ffrench, Peter | Horne, Charles Silvester (Ipswich) |
| Brunner, John F. L. | Field, William | Hudson, Walter |
| Bryce, J. Annan | Fitzgibbon, John | Isaacs, Rt. Hon. Sir Rufus |
| Buckmaster, Stanley O. | Flavin, Michael Joseph | John, Edward Thomas |
| Burt, Rt. Hon. Thomas | Furness, Stephen | Jones, Edgar (Merthyr Tydvil) |
| Carr-Gomm, H. W. | George, Rt. Hon. D. Lloyd | Jones, Henry Haydn (Merioneth) |
| Cawley, Harold T. (Lancs., Heywood) | Gill, A. H. | Jones, J. Towyn (Carmarthen, East) |
| Chancellor, Henry George | Gladstone, W. G. C. | Jones, Leif Stratten (Notts, Rushcliffe) |
| Chapple, Dr. William Allen | Glanville, H. J. | Jones, William (Carnarvonshire) |
| Clancy, John Joseph | Goldstone, Frank | Jones, W. S. Glyn- (Stepney) |
| Clough, William | Greig, Col. J. W. | Jowett, F. W. |
| Clynes, John R. | Griffith, Ellis J. | Joyce, Michael |
| Keating, Matthew | O'Donnell, Thomas | Smith, H. B. Lees (Northampton) |
| Kelly, Edward | O'Grady, James | Smyth, Thomas F. (Leitrim, S.) |
| Kennedy, Vincent Paul | O'Kelly, Edward P. (Wicklow, W.) | Snowden, Philip |
| Kilbride, Denis | O'Malley, William | Strauss, Edward A. (Southwark, West) |
| King, J. | O'Neill, Dr. Charles (Armagh, S.) | Sutherland, John E. |
| Lambert, Richard (Wilts, Cricklade) | O'Shaughnessy, P. J. | Taylor, John W. (Durham) |
| Lardner, James C. R. | O'Shee, James John | Taylor, Thomas (Bolton) |
| Lawson, Sir W. (Cumb'rld, Cocherm'th) | O'Sullivan, Timothy | Tennant, Harold John |
| Levy, Sir Maurice | Outhwaite, R. L. | Thomas, J. H. |
| Lundon, Thomas | Pearce, William (Limehouse) | Thorne, G. R. (Wolverhampton) |
| Lynch, A. A. | Pease, Rt. Hon. Joseph A. (Rotherham) | Thorne, William (West Ham) |
| McGhee, Richard | Phillips, John (Longford, South) | Toulmin, Sir George |
| MacNeill, J. G. Swift (Donegal, South) | Pollard, Sir George H. | Trevelyan, Charles Philips |
| Macpherson, James Ian | Price, C. E. (Edinburgh, Central) | Wadsworth, John |
| MacVeagh, Jeremiah | Pringle, William M. R. | Walsh, Stephen (Lanes, Ince) |
| M'Callum, Sir John M. | Raffan, Peter Wilson | Walters, Sir John Tudor |
| McKenna, Rt. Hon. Reginald | Rea, Walter Russell (Scarborough) | Walton, Sir Joseph |
| Manfield, Harry | Reddy, Michael | Ward, John (Stoke-upon-Trent) |
| Marshall, Arthur Harold | Redmond, John E. (Waterford) | Waring, Walter |
| Meagher, Michael | Redmond, William Archer (Tyrone, E.) | Warner, Sir Thomas Courtenay |
| Meehan, Francis E. (Leitrim, N.) | Richardson, Albion (Peckham) | Wason, John Cathcart (Orkney) |
| Middlebrook, William | Roberts, Charles H. (Lincoln) | Webb, H. |
| Millar, James Duncan | Robertson, J. M. (Tyneside) | White, J. Dundas (Glasgow, Tradeston) |
| Molloy, Michael | Robinson, Sidney | White, Patrick (Meath, North) |
| Molteno, Percy Alport | Roch, Walter F. (Pembroke) | Wiles, Thomas |
| Mooney, John J. | Roche, Augustine (Louth) | Williams, J. (Glamorgan) |
| Morton, Alpheus Cleophas | Roe, Sir Thomas | Williams, Llewelyn (Carmarthen) |
| Muldoon, John | Rowlands, James | Williams, P. (Middlesbrough) |
| Munro, R. | Rowntree, Arnold | Wilson, John (Durham, Mid) |
| Murphy, Martin J. | Samuel, Rt. Hon. H. L. (Cleveland) | Wilson, Rt. Hon. J. W. (Worcs., N.) |
| Needham, Christopher T. | Samuel, J. (Stockton-on-Tees) | Wilson, W. T. (Westhoughton) |
| Norman, Sir Henry | Scanlan, Thomas | Wing, Thomas |
| Nugent, Sir Walter Richard | Seely, Col. Rt. Hon. J. E. B. | Wood, Rt. Hon. T. McKinnon (Glas.) |
| O'Brien, Patrick (Kilkenny) | Sheehy, David | Young, William (Perthshire, E.) |
| O'Connor, John (Kildare, N.) | Shortt, Edward | |
| O'Connor, T. P. (Liverpool) | Simon, Rt. Mon. Sir John Allsebrook | TELLERS FOR THE AYES.—Mr. Illingworth and Mr. Gulland. |
| O'Doherty, Philip | Smith, Albert (Lanes, Clitheree) | |
| NOES. | ||
| Agg-Gardner, James Tynte | Cripps, Sir Charles Alfred | Pease, Herbert Pike (Darlington) |
| Banbury, Sir Frederick George | Dalrymple, Viscount | Perkins, Walter Frank |
| Baring, Sir Godfrey (Barnstaple) | Fell, Arthur | Peto, Basil Edward |
| Barlow, Montague (Salford, South) | Fetherstonhaugh, Godfrey | Pollock, Ernest Murray |
| Barnston, Harry | Gilmour, Captain John | Pretyman, Ernest George |
| Barrie, H. T. | Glazebrook, Capt. Philip K. | Rawlinson, John Frederick Peel |
| Bathurst, Charles (Wilts, Wilton) | Greene, Walter Raymond | Roberts, S. (Sheffield, Ecclesall) |
| Benn, Arthur Shirley (Plymouth) | Guinness, Hon. W.E. (Bury S. Edmunds) | Rutherford, Watson (L'pool, W. Derby) |
| Bigland, Alfred | Henderson, Major H. (Berkshire) | Sanders, Robert Arthur |
| Booth, Frederick Handel | Hibbert, Sir Henry F. | Smith, Harold (Warrington) |
| Boyton, James | Hope, Major J. A. (Midlothian) | Steel-Maitland, A. D. |
| Bridgeman, W. Clive | Kebty-Fletcher, J. R. | Strauss, Arthur (Paddington, North) |
| Burn, Colonel C. R. | Kinloch-Cooke, Sir Clement | Sykes, Mark (Hull, Central) |
| Butcher, John George | Lewisham, Viscount | Terrell, George (Wilts, N.W.) |
| Byles, Sir William Pollard | Locker-Lampson, O. (Ramsey) | Tryon, Captain George Clement |
| Campbell, Capt. Duncan F. (Ayr, N.) | McNeill, Ronald (Kent, St. Augustine's) | Weston, Colonel J. W. |
| Cassel, Felix | Magnus, Sir Philip | White, Major G. D. (Lancs, Southport) |
| Cave, George | Malcolm, Ian | Wills, Sir Gilbert |
| Cecil, Evelyn (Aston Manor) | Markham, Sir Arthur Basil | Wolmer, Viscount |
| Cecil, Lord Hugh (Oxford Univ.) | Mills, Hon. Charles Thomas | Wood, John (Stalybridge) |
| Cecil, Lord R. (Herts, Hitchin) | Mount, William Arthur | Wortley, Rt. Hon. C. B. Stuart- |
| Clay, Captain H. H. Spender | Newman, John R. P. | Yate, Col. C. E. |
| Cooper, Richard Ashmole | Norton-Griffiths, J. | |
| Craig, Captain James (Down, E.) | O'Neill, Hon. A. E. B. (Antrim, Mid) | TELLERS FOR THE NOES.—Mr. Hume-Williams and Mr. Grant. |
| Craik, Sir Henry | Orde-Powiett, Hon. W. G. A. | |
| Crichton-Stuart, Lord Ninian | Ormsby-Gore, Hon. William |
§ Mr. BOOTHI beg to move, in Subsection (1), to leave out the word "conduct" ["prisoner's own conduct in prison"], and to insert instead thereof the words "wilful misconduct."
I do not need to say very much in support of this Amendment, for fortunately my speech was made for me by the Home Secretary, the Under-Secretary, and the hon. Member for Gravesend (Sir G. Parker) on the Second Reading of the Bill. 1126 They proved my case, and therefore they will see that my Amendment is merely a drafting Amendment carrying out the purpose of those who introduced the measure. It is made necessary because the Clause as it stands does not apply to suffragists or to people who are forcibly fed at all. It refers to anyone suffering in health because of his own conduct. An elderly man might fall down accidentally, or hurt himself in some other way, but that would bring him within the scope of 1127 the Bill, for his ill-health would be due to his own conduct. It may easily be that in future a prisoner, for the purpose of drawing attention to his treatment—some ill-treatment or insufficiency of attention being paid to him, quite apart from any suffragist policy—might decide to take some step in order that the notice of the governor or someone might be called to the matter. These things have happened before. I hope they will never happen again. The words in the Sub-section at present, "the prisoner's own conduct," might refer to cases of accident, such as slipping on the floor and becoming unconscious, or the breaking of an arm, in order that an official should visit his cell and hear his complaint. When we remember that some of the gentlemen learned in the law have stated that we are legislating for all time, one can easily see that we should not allow the legislation for the temporary difficulty with which we are dealing to cover such cases. My Amendment can only be considered as a drafting Amendment by those who supported the Second Reading of the Bill. The speeches that were made on that occasion do not fit in with the Clause as it stands at all, but they would fit in with the Amendment I am now proposing. The hon. Member for Gravesend, in arguing the question, spoke as if we were dealing with people who were committing a fresh crime. I submit that they cannot commit a fresh crime in prison without being guilty of wilful misconduct. The Under-Secretary, answering an interruption of mine on this point, did not, I think, do me justice. The hon. Gentleman said:—
It is quite true that the sentence has not been extended by a moment as far as the period in prison is concerned, and although it, is quite tine that it is a hardship upon the prisoner that the sentence is divided into eight portions, still that is not a sentence inflicted by the judge upon the prisoner, but a sentence inflicted by the prisoner on herself or himself.I submit, therefore, that he had in contemplation wilful misconduct in prison. My interruption, "That is not in the Bill," was put down to "An hon. Member." I do not complain of that. The Under-Secretary went on to say:—I think that the hon. Member is so busy with other matters contemplating legislation of the future that he cannot devote the attention that is desirable to the legislation of the present."—[OFFICIAL REPORT, 2nd April, 1913, col. 454.]It was because I have studied the Bill that I meant to point out he was assuming that totally different words were in the Bill. He was assuming that Sub-section (1) ap- 1128 plied to a prisoner's wilful misconduct, and on that assumption he was correct in what he said. The Home Secretary, on the Second Reading of the measure, said:—.The power to grant a licence asked for in this Bill is not to reward misconduct, but to enable me to deal with bad conduct. Consequently it would not he proper in the case of such a licence, when the prisoner was let out of prison through misconduct, that the remaining period of the sentence should run out unless he committed some new offence. I propose that a person licensed out of prison on account of misconduct shall remain liable to serve the rest of his sentence."—[OFFICIAL, REPORT, 2nd April, 1913, col. 498.]Clearly the Home Secretary had in view that this Bill only applies to persons guilty of minsconduct, and I submit that, if that be so, he ought to accept my Amendment as an improvement. He also spoke in these terms:—I ask the House to give me power to meet a case such as that—to enable me to say to the prisoner, 'If through misconduct we cannot retain you any longer in prison, you shall be licensed out.'"—[OFFICIAL REPORT, 2nd April. 1913, col. 409.]Therefore, I submit that if the speeches were genuinely meant, and we must conclude that they were, and if the speeches which have been made to-day were meant to inform the House of the nature of the Bill, there should be no difficulty in accepting my Amendment which says that the ill-health must be owing to the prisoner's own wilful misconduct.
§ Mr. McKENNAI can assure my hon. Friend with some certainty, having had the advantage of the highest legal advice on the point, that the words of the Bill as they stand will not lead to any such consequences as those which he mentions. There is a legal maxim, I am informed, to the following effect: Proxima, non remota, causes spectetur—that the immediate and not the remote cause is to be regarded—and in the case of accidents such as my hon. Friend has referred to, the legal maxim would apply, because there the prisoner's conduct would not be the immediate but the remote cause, and consequently would not be regarded. As my hon. Friend has said, this is nothing more than a verbal Amendment, but it is a verbal Amendment which would not clarify or render the Bill better than it is now, but would add materially to the difficulty of administering it. It is always undesirable, where avoidable, to add epithets. If you put in the words "wilful misconduct" you have got to prove "wilful misconduct," and it is very undesirable to say that any particular kind of conduct is wilful misconduct. When dealing with the particular case of a person who is starving, be it man or woman, we recognise that it 1129 is conduct of some kind or another, but it is not at all necessary to show that the act of starvation itself is wilful misconduct. There are circumstances in which persons might claim that a refusal to take food was not wilful misconduct at all, and persons might claim that it was an act of heroism. Why should we in the enforcement of this Bill place ourselves under the necessity of having to prove wilful misconduct when all that we desire, or that the House, in accepting the Second Reading, thought it necessary that we should do was to regard the particular kind of conduct? On this matter I have obtained the best possible legal advice and…
§ Mr. McKENNAThe advice of the Attorney-General, and if the hon. and gallant Member desires I can send for the right hon. Gentleman to explain the matter. But as this Amendment is nothing more than a verbal Amendment, I trust that my hon. Friend will not press it.
§ Sir A. MARKHAMMay I draw the attention of my hon. Friend to the fact that the effect of his Amendment would be that the prisoner would not be able to be released from prison unless guilty of wilful misconduct? I rather think that we ought to have the opinion of the Law Officer of the Crown. The Secretary of State said that he would send for the Attorney-General if the hon. Member opposite desired to have the benefit of his advice on this important Amendment. Perhaps the hon. Member will reply at greater length to the arguments advanced by the Home Secretary, and we might have the advice of one of the Law Officers of the Crown in order to go more fully into the question.
Captain CRAIGThe right hon. Gentleman has just been giving us a lesson in how unnecessary it is to put in mere verbiage, or words qualifying the effect of this Sub-section. I wish to ask why the word "own" should be put in—"wholly or in part the prisoner's 'own' conduct." After what the right hon. Gentleman has been telling us it seems rather a remarkable word to use. Is it suggested that someone outside the prison may be mistaken for the prisoner dealt with by the Sub-section? If the right hon. Gentleman is not going to accept the Amendment of the hon. Member because it seems to add to the difficulty of construing the word "conduct" or "misconduct" of the prisoner, then 1130 his objection is equally applicable to the use of the word "own"—where the prisoner's "own" conduct in prison was spell that he found it necessary to release him. It is unnecessary to use the words "prisoner's own conduct," because the use of the word "own" seems to cast some doubt on the matter. I ask the right hon. Gentleman to explain why it is necessary to use the word "own." As the Government have shown how very ready they are to get out of a difficulty by any possible means, I would suggest to them that they ought to accept half the hon. Member's Amendment, and when it comes to a vote…
§ The CHAIRMANThe Amendment is already before the Committee, and we cannot go back on that.
Captain CRAIGIf you had not taken me up quite so quickly, Sir, I think you would have recognised that I am perfectly in order. If the Government vote "That the words stand part," and then vote to leave out the word "own," then when it comes to inserting the words proposed by the hon. Member, they could vote against them, and that I think would be the sensible way to deal with the matter.
§ Sir F. BANBURYAs I understood the Amendment put from the Chair, it was that the words "own conduct" be left out.
§ The CHAIRMANThe Amendment I have put from the Chair is to leave out the words "own conduct," and to insert the words "wilful misconduct."
§ Sir F. BANBURYThat is what I thought. It will be in order for me to move an Amendment to the Amendment, that is to say, to amend the proposed Amendment by leaving out the word "own."
§ Sir F. BANBURYBy leaving out "wilful mis."
§ The CHAIRMANI am afraid the hon. Baronet is a little mixed. He cannot propose to leave out the words until the words to be inserted become the substantive Question. They are not that yet; perhaps they may be so in a moment.
§ Mr. BOOTHI think I will simply ask leave to withdraw the Amendment. I think the Home Secretary was not justified in saying that I advocated a verbal 1131 Amendment. I never used any such phrase. I always remember what I have said. What I said was that if the Home Secretary's speech on Second Reading was correct then my Amendment was simply a drafting Amendment, but as the Home Secretary did not mean what he said on Second Reading, then, of course, my Amendment assumed rather larger proportions. In spite of that I will ask leave to withdraw. As to the verbiage I can only offer in explanation the company I have been keeping upstairs.
§ The CHAIRMANDo I understand the hon. Member to ask leave to withdraw?
§ Mr. BOOTHI ask leave to withdraw, but I have the right to speak whether I ask leave to withdraw or not.
§ Amendment, by leave, withdrawn.
§ Sir F. BANBURYI beg to move, in Sub-section (1), to leave out the word "own" ["prisoner's own conduct."]
§ The CHAIRMANI have rather serious doubts whether I ought to accept this, but if it is merely for the purpose of putting a question…
§ Sir F. BANBURYI do not propose to add anything as my hon. and gallant Friend has advanced the arguments.
§ The UNDER-SECRETARY of STATE for the HOME OFFICE (Mr. Ellis Griffith)This is a very serious Amendment. The word "own" is a word of emphasis here. For instance, if I saw the hon. Baronet carrying an umbrella I might say, "He has his umbrella," while if I had doubts I would say, "Is it his own umbrella." I see the hon. Baronet shakes his head—it would not be.
§ Sir F. BANBURYI did not do it.
§ Mr. ELLIS GRIFFITHThis makes no difference.
§ Mr. HAROLD SMITHWhy not accept the Amendment then?
§ Mr. ELLIS GRIFFITHThe burden of proof is on the one who desires change. That is the Conservative attitude, and it is our attitude on this Amendment.
§ Sir F. BANBURYMy hon. and gallant Friend has advanced the reason.
§ Mr. ELLIS GRIFFITHI heard the speech, but I did not hear the reason. I hope the hon. and gallant Gentleman and 1132 the hon. Baronet will not press the Amendment.
§ Sir F. BANBURYWe will after that.
§ Mr. ELLIS GRIFFITHThere is no misapprehension as to the meaning of the words. If I may say so, perhaps we might leave this and pass to the more important Amendments.
§ Lord HUGH CECILThe Under-Secretary has really made a very powerful argument in favour of the Amendment. It is quite right to say, "His own umbrella," because there might be doubts about an umbrella; but it is silly to say, "His own conduct," as the conduct could only be that of the person concerned.
§ Mr. H. SMITHThe Under-Secretary said that the omission of the word "own" makes no difference, and added that the burden of proof was on those who desired to remove the word. The Under-Secretary is a lawyer, and I submit to him it is rudimentary knowledge to any lawyer that no word ought to be kept in an Act of Parliament unless it has a specific meaning. Surely it is invariably for those who put words in a Bill to justify the inclusion of the words. It is impossible to throw the burden of proof upon those who criticise them, when the words cannot be defended by those who are responsible for the Bill. I submit that the Under-Secretary has fully justified the Amendment, which I hope will be supported, because, by the admission of the hon. Gentleman himself, the word proposed to be left out has no importance.
§ Sir A. MARKHAMIt must be agreed that this word is superfluous; it merely makes the Bill longer than it need be. I object to Acts of Parliament containing unnecessary words. People who have to construe Statutes want them to be made as clear as possible. Therefore I think that this word should be omitted. The Under-Secretary has indirectly accused the hon. Baronet of "pinching" somebody's umbrella…
§ The CHAIRMANIf the Amendment is a serious one, I think it should be treated as such.
§ Sir A. MARKHAMThe Amendment is a serious one, as is every Amendment moved in the House of Commons, and if the hon. Baronet goes to a Division I shall support him.
§ Mr. HUME-WILLIAMSThere appear to be two words under criticism—"own" 1133 and "conduct." The word "own" is totally unnecessary, because it cannot be somebody else's conduct; and "conduct" really means "misconduct." Therefore both are wrong.
§ Question put, "That the word 'own' stand part of the Clause."
§ The Committee divided: Ayes, 225; Noes, 90.
1135| Division No. 37.] | AYES. | [10.33 p.m. |
| Abraham, William (Dublin, Harbour) | Gill, Alfred Henry | Norman, Sir Henry |
| Acland, Francis Dyke | Gladstone, W. G. C. | Nugent, Sir Walter Richard |
| Adamson, William | Goldstone, Frank | O'Brien, Patrick (Kilkenny) |
| Addison, Dr. Christopher | Greenwood, Granville G. (Peterborough) | O'Connor, John (Kildare, N.) |
| Adkins, Sir W. Ryland D. | Greig, Colonel James William | O'Connor, T. P. (Liverpool) |
| Agnew, Sir George William | Griffith, Ellis Jones | O'Doherty, Philip |
| Ainsworth, John Stirling | Guest, Major Hon. C. H. C. (Pembroke) | O'Donnell, Thomas |
| Allen, Rt. Hon. Charles P. (Stroud) | Gulland, John William | O'Grady, James |
| Armitage, Robert | Gwynn, Stephen Lucius (Galway) | O'Kelly, Edward P. (Wicklow, W.) |
| Arnold, Sydney | Hackett, John | O'Malley, William |
| Baker, H. T. (Accrington) | Hall, Frederick (Normanton) | O'Neill, Dr. Charles (Armagh, S.) |
| Baker, Joseph Allen (Finsbury, E.) | Hancock, John George | O'Shaughnessy, P. J. |
| Balfour, Sir Robert (Lanark) | Harcourt, Robert V. (Montrose) | O'Shee, James John |
| Baring, Sir Godfrey (Barnstaple) | Harmsworth, R. L. (Caithness-shire) | O'Sullivan, Timothy |
| Barnes, George N. | Harvey, T. E. (Leeds, West) | Outhwaite, R. L. |
| Barran, Sir John N. (Hawick B.) | Harvey, W. E. (Derbyshire, N.E.) | Pearce, William (Limehouse) |
| Beale, Sir William Phipson | Havelock-Allan, Sir Henry | Pease, Rt. Hon. Joseph A. (Rotherham) |
| Beauchamp, Sir Edward | Hayden, John Patrick | Phillips, John (Longford, S.) |
| Beck, Arthur Cecil | Hayward, Evan | Pollard, Sir George H. |
| Benn, W. W. (T. Hamlets, St. Geo.) | Hazleton, Richard | Price, C. E. (Edinburgh, Central) |
| Bentham, George Jackson | Henderson, Arthur (Durham) | Priestley, Sir Arthur (Grantham) |
| Black, Arthur W. | Henry, Sir Charles | Pringle, William M. R. |
| Boland, John Pius | Herbert, General Sir Ivor (Mon., S.) | Raffan, Peter Wilson |
| Booth, Frederick Handel | Higham, John Sharp | Raphael, Sir Herbert Henry |
| Bowerman, C. W. | Hobhouse, Rt. Hon. Charles E. H. | Rea, Walter Russell (Scarborough) |
| Boyle, Daniel (Mayo, North) | Hodge, John | Reddy, Michael |
| Brace, William | Hogge, James Myles | Redmond, John E. (Waterford) |
| Brady, Patrick Joseph | Holmes, Daniel Turner | Redmond, William Archer (Tyrone, E.) |
| Brocklehurst, W. B. | Horne, Charles Silvester (Ipswich) | Richardson, Albion (Peckham) |
| Brunner, John F. L. | Hudson, Walter | Roberts, Charles H. (Lincoln) |
| Buckmaster, Stanley O. | Illingworth, Percy H. | Roberts, George H. (Norwich) |
| Burt, Rt. Hon. Thomas | Isaacs, Rt. Hon. Sir Rufus | Robertson, John M. (Tyneside) |
| Byles, Sir William Pollard | Jardine, Sir J. (Roxburgh) | Robinson, Sidney |
| Carr-Gomm, H. W. | John, Edward Thomas | Roch, Walter F. (Pembroke) |
| Cawley, H. T. (Heywood) | Jones, Edgar R. (Merthyr Tydvil) | Roche, Augustine (Louth) |
| Chancellor, Henry George | Jones, Henry Haydn (Merioneth) | Roe, Sir Thomas |
| Chapple, Dr William Alien | Jones, J. Towyn (Carmarthen, East) | Rowlands, James |
| Clancy, John Joseph | Jones, Leif Stratten (Notts, Rushcliffe) | Rowntree, Arnold |
| Clough, William | Jones, William (Carnarvonshire) | Rutherford, Watson (L'pool, W. Derby) |
| Clynes, John R. | Jones, W. S. Glyn- (T. H'mts, Stepney) | Samuel, Rt. Hon. H. L. (Cleveland) |
| Collins, Godfrey P. (Greenock) | Jowett, Frederick William | Samuel, J. (Stockton-on-Tees) |
| Compton-Rickett, Rt. Hon. Sir J. | Joyce, Michael | Scanlan, Thomas |
| Condon, Thomas Joseph | Keating, Matthew | Seely, Col. Rt. Hon. J. E. B. |
| Cornwall, Sir Edwin A. | Kelly, Edward | Sheehy, David |
| Cotton, William Francis | Kennedy, Vincent Paul | Shortt, Edward |
| Craig, Herbert J. (Tynemouth) | Kilbride, Denis | Simon, Rt. Hon. Sir John Allsebrook |
| Crooks, William | King, Joseph | Smith, Albert (Lancs., Clitheroe) |
| Crumley, Patrick | Lambert, Richard (Wilts, Cricklade) | Smith, H. B. Lees (Northampton) |
| Davies, Ellis William (Elfion) | Lardner, James C. R. | Smyth, Thomas F. (Leitrim, S.) |
| Davies, Timothy (Lincs., Louth) | Lawson, Sir W. (Cumb'rld, Cockerm'th) | Strauss, Edward A. (Southwark, West) |
| Davies, Sir W. Howell (Bristol, S.) | Levy, Sir Maurice | Sutherland, John E. |
| Dawes, James Arthur | Lundon, Thomas | Sutton, John E. |
| Delany, William | Lynch, Arthur Alfred | Taylor, John W. (Durham) |
| Denman, Hon. Richard Douglas | McGhee, Richard | Taylor, Thomas (Bolton) |
| Devlin, Joseph | Maclean, Donald | Tennant, Harold John |
| Doris, William | MacNeill, J. G. Swift (Donegal, South) | Thomas, James Henry |
| Duffy, William J. | Macpherson, James Ian | Thorne, G. R. (Wolverhampton) |
| Duncan, C. (Barrow-in-Furness) | MacVeagh, Jeremiah | Toulmin, Sir George |
| Edwards, John Hugh (Glamorgan, Mid) | M'Callum, Sir John M. | Trevelyan, Charles Philips |
| Esmonde, Dr. John (Tipperary, N.) | McKenna, Rt. Hon. Reginald | Verney, Sir Harry |
| Esmonde, Sir Thomas (Wexford, N.) | Manfield, Harry | Wadsworth, John |
| Essex, Sir Richard Walter | Marshall, Arthur Harold | Walsh, Stephen (Lancs., Ince) |
| Esslemont, George Birnle | Meagher, Michael | Walters, Sir John Tudor |
| Falconer, James | Meehan, Francis E. (Leitrim, N.) | Ward, John (Stoke-upon-Trent) |
| Farrell, James Patrick | Middlebrook, William | Waring, Walter |
| Fenwick, Rt. Hon. Charles | Millar, James Duncan | Warner, Sir Thomas Courtenay |
| Ferens, Rt. Hon. Thomas Robinson | Malloy, Michael | Wason, John Cathcart (Orkney) |
| Ffrench, Peter | Molteno, Percy Alpert | White, J. Dundas (Glasgow, Tradeston) |
| Field, William | Mooney, John J. | White, Patrick (Meath, North) |
| Fitzgibbon, John | Morton, Alpheus Cleophas | Whitehouse, John Howard |
| Flavin, Michael Joseph | Muldoon, John | Wiles, Thomas |
| Furness Stephen | Munro, Robert | Williams, John (Glamorgan) |
| George, Rt. Hon D. Lloyd | Needham, Christopher T. | Williams, Llewelyn (Carmarthen) |
| Wilson, John (Durham, Mid) | Wing, Thomas | TELLERS FOR THE AYES.—Captain Guest and Mr. Webb. |
| Wilson, Rt. Hon. J. W. (Worcs, N.) | Wood, Rt. Hon. T. McKinnon (Glasgow) | |
| Wilson, W. T. (Westhoughton) | Young, William (Perth, East) | |
| NOES. | ||
| Agg-Gardner, James Tynte | Goldman, Charles Sydney | Ormsby-Gore, Hon. William |
| Baird, John Lawrence | Grant, James Augustus | Paget, Almeric Hugh |
| Baring, Maj. Hon. Guy V. (Winchester) | Greene, W. R. | Pease, Herbert Pike (Darlington) |
| Barlow, Montague (Salford, South) | Guinness, Hon. W. E. (Bury S. Edmunds) | Peel, Lieut.-Colonel R. F. |
| Barnston, Harry | Hall, D. B. (Isle of Wight) | Perkins, Walter Frank |
| Barrie, H. T. | Hambro, Angus Valdemar | Peto, Basil Edward |
| Bathurst, Charles (Wilts, Wilton) | Hardle, J. Keir | Pollock, Ernest Murray |
| Benn, Arthur Shirley (Plymouth) | Harrison-Broadley, H. B. | Pretyman, Ernest George |
| Bigland, Alfred | Henderson, Major H. (Berks, Abingdon) | Rawlinson, John Frederick Peel |
| Bird, Alfred | Hibbert, Sir Henry F. | Rees, Sir J. D. |
| Boyle, William (Norfolk, Mid) | Hope, Major J. A. (Midlothian) | Roberts, S. (Sheffield, Ecclesall) |
| Boyton, James | Hume-Williams, William Ellis | Sanders, Robert A. |
| Bridgeman, William Clive | Hunt, Rowland | Smith, Harold (Warrington) |
| Burn, Colonel C. R. | Joynson-Hicks, William | Snowden, Philip |
| Butcher, John George | Kebty-Fletcher, J. R. | Stanier, Beville |
| Campbell, Capt. Duncan F. (Ayr, N.) | Kinloch-Cooke, Sir Clement | Steel-Maitland, A. D. |
| Campbell, Rt. Hon. J. (Dublin Univ.) | Lewisham, Viscount | Sykes, Mark (Hull, Central) |
| Campion, W. R. | Locker-Lampoon, O. (Ramsey) | Terrell, George (Wilts, N.W.) |
| Cassel, Felix | Lyttelton, Hon. J. C. (Droitwich) | Terrell, Henry (Gloucester) |
| Cecil, Evelyn (Aston Manor) | M'Calmont, Major Robert C. A. | Walton, Sir Joseph |
| Cecil, Lord Hugh (Oxford University) | M'Neill, Ronald (Kent, St. Augustine's) | Warde, Col. C. E. (Kent, Mid) |
| Clay, Captain H. H. Spender | Magnus, Sir Philip | White, Major G. D. (Lancs., Southport) |
| Cooper, Richard Ashmole | Malcolm, Ian | Wills, Sir Gilbert |
| Craik, Sir Henry | Markham, Sir Arthur Basil | Wolmer, Viscount |
| Crichton-Stuart, Lord Ninian | Mason, James F. (Windsor) | Wood, John (Stalybridge) |
| Dalrymple, Viscount | Mills, Hon. Charles Thomas | Wortley, Rt. Hon. C. B. Stuart- |
| Fell, Arthur | Mount, William Arthur | Yate, Colonel C. E. |
| Fetherstonhaugh, Godfrey | Newman, John R. P. | |
| Gibbs, George Abraham | Norton-Griffiths, J. | TELLERS FOR THE NOES.—Sir F. Banbury and Captain Craig. |
| Gilmour, Captain John | O'Neill, Hon. A. E. B. (Antrim, Mid) | |
| Glazebrook, Captain Philip K. | Orde-Powlett, Hon. W. G. A. |
§ Sir ALFRED CRIPPSI beg to move, in Sub-section (1), after the word "prisoner" ["the temporary discharge of such prisoner for such period"], to insert the words "on licence."
The object of the Amendment is that the prisoner shall be released upon licence, and that the licence should state the terms on which the release is granted, and accordingly in a later Amendment I propose to apply a Schedule with the terms specified in it. If the Home Secretary states that he intends to set forth the conditions, and that it should not merely be dependent upon his discretion, that would meet the object I have in bringing forward this Amendment. I raised this question on the Second Reading of the Bill, and I will for the moment content myself by asking the Home Secretary what he intends to do.
§ Mr. McKENNAThe hon. and learned Member did raise this question on Second Reading in a very forcible speech, and I observed he was supported at the time in the views he expressed on both sides of the House, and therefore, in anticipation of an Amendment being placed upon the Paper, I have prepared a form of licence which it is proposed to use when this Bill becomes law. In order that the Committee may be fully apprised what the condi- 1136 tions are that we have in view as the conditions upon which a prisoner should be temporarily discharged, I will read them to the House; they are extremely short:—
(1) The prisoner shall return to the above-mentioned prison on the …day of … 19 …;That is to say, the days are prescribed.(2) The period of temporary discharge granted by this Order may, if the Secretary of State thinks fit, be extended on a representation by the prisoner that the state of her health renders her unfit to return to prison. If such representation be made, the prisoner shall submit herself, if so required, for medical examination by the Medical Officer of the above-mentioned prison, or other registered medical practitioner appointed by the Secretary of State.I have drawn this up in the particular form of licence I am likely to have to issue immediately. The second condition is one enabling an extension to be made at the request of the prisoner, and it does not give the Home Secretary power to extend the period. I think that meets the argument that the Home Secretary would have power to keep the period of imprisonment always open…
§ Sir P. MAGNUSWhy Is it limited to women?
§ Mr. McKENNAIt is not limited to women, but I am reading the licence in the precise form I propose to issue it.
(3) The prisoner shall notify to the Commissioner of Police of the Metropolis the place of residence to which she goes on her discharge. She shall not change her residence without giving one clear day's previous notice 1137 in writing to the Commissioner, specifying the residence to which she is going, and she shall not be temporarily absent from her residence for more than twelve hours without giving a like notice.
§ Lord HUGH CECILWhat happens if she does not do so?
§ Mr. McKENNAThat condition is simply to enable the police to have notice of where she is living.
(4) She shall abstain from any violation of the law.That may not be obeyed. Those are the conditions, and the only conditions which we propose to insert in the licence, and I think the Committee will agree that limiting the licence to those terms gets rid of a great deal of the opposition raised on the Second Reading. Now I turn to the conditions actually included in the Schedule of the hon. and learned Member.
§ The CHAIRMANI think it refers to a later Amendment of the hon. and learned Member.
§ Sir A. CRIPPSIt is true that it is in a sense a later Amendment, but these Amendments really all hang together, and all depend upon the principle which I tried to lay down—that they should be allowed to leave the prison on licence.
§ The CHAIRMANOn the understanding that the other Amendment is to be treated as consequential to this one, the discussion may proceed.
§ Mr. McKENNAThe hon. Member has introduced the licence, and, consequently, I understood him to mean that he wished to raise the conditions of the licence. The Committee will observe that these conditions are not punitive. They are issued under the conditions of temporary release, and do not add to the punishment of the offender. The offender remains liable to undergo imprisonment for the whole term, but when the prisoner is out of prison I do not add any new punishment. The whole of these conditions are strictly limited to all that is necessary to enforce the order of release, and secure that the prisoner will be brought back or that the Commissioner will be informed where the prisoner is in order that she may be brought back at the expiration of the terms of release. Now the Noble Lord says, "Supposing the prisoner does not conform to the conditions?" Very well, then the licence is ipso facto cancelled. The prisoner is liable to be brought back to prison at once before the expiration of the period of temporary discharge; the prisoner has to go straight back to prison.
§ Mr. SNOWDENWe are where we started.
§ Mr. McKENNAOh, no, not quite.
§ Mr. H. SMITHWill you forcibly feed her?
§ Mr. McKENNAI hope not.
§ Mr. H. SMITHWill you, if necessary?
§ Mr. McKENNAIf it were necessary to feed a prisoner forcibly, of course I should do so. I am not deprived under this Bill of the power of forcibly feeding her, but I should only exercise that power where it was necessary to do so. I should in the first instance rely upon the power to discharge temporarily, and I am bound to say, after some examination of the facts that I think the power would be effective.
§ Lord HUGH CECILSupposing the prisoner were still in a state of collapse?
§ Mr. McKENNAIf the prisoner were still in a state of collapse, she could not escape, and, if she were in a healthy condition and able to escape, the police would know where she was taken in the first instance, and the particular house which she might not leave as a place of residence except after notice.
§ Mr. SNOWDENPolice picketting the house!
§ Mr. McKENNAIt is quite possible. I want to enforce the law, and I am not alarmed by any statement that the police will be picketting the house. I shall do my utmost to enforce the law. I want, if I can, to enforce it without forcible feeding, and without undergoing the risk of somebody else's life, a risk which certain hon. Gentlemen are so anxious that I should vicariously take, but I shall by picketting the house if necessary be able to watch a prisoner and secure that she is brought to prison, and, should it ultimately be necessary, I may have to forcibly feed her. I shall endeavour to use the powers under this Bill to avoid forcible feeding. Those are the conditions, and I hope the hon. and learned Gentleman will think that they are adequate without being unduly drastic.
§ Sir A. CRIPPSDoes the right hon. Gentleman mean to put those conditions in the Statute? Are they to be statutory conditions? That was my view.
§ Mr. McKENNAI recognise that, but I hope the hon. and learned Gentleman will not press me to put them in the Statute. After all, the whole enforcement of this Act will depend upon the discretion of the Home Secretary; the Home Secretary will throughout be responsible to Parliament for the enforcement of this Act. Having stated what the conditions are, I think it would be undesirable to put them in the Act of Parliament, because that would not give the Home Secretary any reasonable latitude in particular cases, but they remain on record. They will be printed in the OFFICIAL REPORT, and the Home Secretary will have to answer to Parliament and explain the reason if in any case he departs from those conditions. I think that it would be undesirable to bind him down to hard-and-fast conditions. In the parallel case of penal servitude, while there are certain statutory conditions inserted in the Act, there is also a general power given to the Home Secretary to put in any conditions he pleases, with this limitation, that he is to lay them on the Table of the House. But there is no restriction of his power.
§ Sir A. CRIPPSIn particular cases he can do away with statutory conditions, but he cannot introduce others.
§ Mr. McKENNAYes he may, but he must lay them on the Table. His own power of release is unlimited as regards conditions. He can put in any condition he pleases, and the hon. and learned Gentleman may possibly see shortly some novel conditions in the case of particular prisoners laid on the Table. I would ask the House not to restrict powers by putting the conditions into the Act, but to accept the statement I have made that they will appear in print. I will, if necessary, circulate them as a Parliamentary Paper, and any variation from them would be the immediate occasion for calling upon the Home Secretary to justify the change. It is undesirable to restrict him to hard and fast conditions.
§ 11.0 P.M.
§ Lord ROBERT CECILI wondered very much why the Government determined to keep this Bill in the House instead of sending it to a Committee upstairs, but after the speech of the Home Secretary I am no longer in doubt, because if such a speech had been delivered in a Grand Committee the Government would have been instantly beaten. What is the issue between my hon. and learned 1140 Friend and the Home Secretary. It is whether the conditions shall be left entirely to the judgment of the Home Secretary without any control by Parliament whatever, or whether they shall be inserted in the Act of Parliament, I cannot think as stated in that way there can be the least doubt that conditions of this kind affecting the liberty of the subject ought to be in the Act of Parliament. The Home Secretary says they will be in the OFFICIAL REPORT. So they will be. But the Home Secretary may leave office to-morrow—it is well to look facts in the face—and his successor would not be bound by anything he said this evening. There would not be the slightest control by this House, or the slightest reason for this House to suppose that the conditions the Home Secretary has laid down would be enforced. I ask the House for once to exercise its own judgment. It is perfectly clear that if we are to give these very novel and, I think, very serious powers to the Government of the day to release prisoners conditionally and allow them to be rearrested when the Home Secretary likes, we ought to know the conditions upon which they are to be released, and they ought to form part of the Act of Parliament. That seems obviously to be the right course, and I feel confident that if the House uses its own judgment it will agree that the conditions should be inserted in the Act of Parliament. The Home Secretary says that that would fetter unduly his discretion. That is what I desire to do. I do not think that the Home Secretary should have unfettered discretion to impose any conditions he or his successor may choose in a very serious matter such as this. The House of Commons has a right to be informed authoritatively what these conditions shall be and they should not be changed without the assent of the House. It is quite true that in the Penal Servitude Act the only control put upon the Home Secretary is that he must present to Parliament any changes that he makes. That may be so, but the licence under that Act is a pure remission and a pure gift to the prisoner. It is not imposing really any new form of punishment.
It being Eleven of the clock, the Chairman left the Chair to make his Report to the House.
Committee to sit again To-morrow (Wednesday). Report Progress.