HC Deb 09 April 1913 vol 51 cc1271-80

(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 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 authorise 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 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 case at which his presence may be required.

Amendment proposed (8th April): In Sub-section (1), after the word "prisoner" ["the temporary discharge of the prisoner for such period"], to insert, the words "on licence." [Sir Alfred Cripps.]

Question again proposed, "That those words be there inserted." Debate resumed.

Lord ROBERT CECIL

When the Committee adjourned last night I had hardly concluded the point I wished to make in support of the Amendment of my hon. and learned Friend. He had moved an Amendment asking that the conditions on which a prisoner should be released, and consequently be liable to rearrest, should be part of the Statute, and not merely left to the discretion of the Minister. The Home Secretary replied by saying:— I have prepared a form of licence which it is proposed to use when this Bill becomes law. He then read out to the Committee the conditions which he proposes to insert in the licence at the outset. These conditions are printed in the OFFICIAL REPORT. The effect of them is in substance that the discharge is to be for a time, which may be extended if the prisoner submits himself or herself to medical examination, he or she having made application to that effect; and, secondly, that the prisoner has to notify any change of residence, and to abstain from any violation of the law. I venture to think that the conditions which the Home Secretary proposes are not at all satisfactory. I cannot, for instance, see the least advantage in requiring notification of any change of residence. It is perfectly notorious that none of these prisoners would make such notification. But that does not, of course, touch the merits of the Amendment. The real question is not whether the conditions proposed by t he Home Secretary are good or bad conditions; the question is whether they should be in the Statute or left to the discretion of the Home Secretary. The right hon. Gentleman says that he has similar powers in regard to sentences of penal servitude. I have had furnished to me the exact position of the law on penal servitude. In 1853 the first Penal Servitude Act was passed, and under it the conditions of release were entirely left to the discretion of the Home Secretary. In 1864 an Act was passed by which it was provided that the conditions should be themselves set out in that Statute, and that Statute only. In 1871 provision was made that the conditions might be modified, but if any modification was proposed, it was to be laid on the Table of the House. It is quite clear, therefore, that they were statutory conditions which could only be modified in a statutory way.

That is the condition of affairs at present. If you have statutory conditions which can be modified by laying proposals on the Table of the House, it is open to either House generally—I am not quite familiar with the particulars in this case—to pass an Address to the Crown objecting to the proposals, and then they cease to be operative. There is thus real control by Parliament in such cases, and that is very effective indeed. The argument which I was addressing to the Committee when the Debate was adjourned last night went rather further than that. I say that the case here is stronger for preserving the control of Parliament than the case under the Penal Servitude Acts. The licence under the Penal Servitude Acts is a mere provision entirely in favour of the prisoner. It allows the prisoner to be released because he or she has behaved well, and because, acting on the advice of the prison authorities, the Crown really in the exercise of its prerogative of clemency thinks that the sentence may be shortened on certain conditions. Here we have got an entirely different proposition. It is not by way of concession to the prisoner at all that he or she is to be released. The object of this Bill is not to make the term of imprisonment lighter for the prisoner. On the contrary, the object is to secure that if the prisoner has to he let out on account of ill-health, you should be able to rearrest him or her without any trial or proceedings before a Court. During the time he or she is out of prison on licence the sentence remains the original length, and the prisoner has got to serve that. According to the proposals of the Home Secretary the prisoner has to serve it all. He or she is to be released for a specific time, and at the end of that time is to go back to prison. This Bill is not to be in any way in favour of the prisoner, and I do not quarrel with it on that ground. It is a pure convenience or means of compelling prisoners to serve their sentences. I do say that to leave it entirely to the Home Secretary to say what conditions shall be imposed—to leave it not only to this Home Secretary, but any future Home Secretary who will be absolutely free from the control of Parliament if this Bill is passed—is bad legislation and utterly indefensible.

The right course is to put the conditions into this Bill before it leaves the House of Commons. However this House may have sunk in servility to the Ministry of the day, it is something a little bit better—not much perhaps—than the actual autocracy of the Ministry. We ought to insert in this Bill exactly what we propose to be the conditions, and then if the Minister should arrive at the conclusion that a change in those conditions is necessary, I should not be averse to a subsequent Clause being inserted to enable him to lay on the Table of the House his proposals for modification, and if they were not objected to in the forty days they would lie on the Table; I should not object to them. I should not mind that facility being given to the Minister if he considered it necessary. May I remind the Committee that in point of fact Ministers have changed statutory conditions, for they have powers to change the rules under the Prisons Act. There was a concession granted by the present First Lord of the Admiralty when Home Secretary in respect of prisoners not guilty of moral turpitude, but that has been very much modified by the present Home Secretary. It has been made very much less favourable to prisoners. That has been done behind Parliament, and without the power of Parliament to intervene. That shows how serious is the demand which is now made by the Home Secretary. I venture to hope that he will even at this last minute think it right to meet the critics in a matter of this kind which, after all, affects the liberty of the subject and ought to be one of the matters most closely and carefully guarded by this House.

Mr. MUNRO

The question raised on this occasion is exceedingly simple in statement. I desire to say only a few words in regard to it, and chiefly in reply to the Noble Lord (Lord Robert Cecil), for I do not think he has been quite correctly informed as to the Penal Servitude Acts to which he referred. May I say, in the first instance, that if one can show that the Home Secretary at the present time possesses and exercises powers which are not only equal to but greater than those in this Bill, and uses those powers in circumstances which are analogous to those with which we are here dealing, then I should think it would be difficult for the House to refuse the powers he asks. I submit to the Committee that if they consider the condition of matters under the Penal Servitude Acts, they will see at once that the Home Secretary has powers which are not only equal to but greater than those he now asks the House to give him. In 1853 an Act was passed which empowered the Home Secretary to impose any conditions he thought proper upon a prisoner released under the Act. That law existed up to 1864, when another Act was passed in which there was a Schedule containing the conditions which might be appended to any licence the Home Secretary might grant. I ask the Committee to observe two things about the Act. In the first place, the Schedule was purely permissive and not imperative. In the second place, under that Statute the Home Secretary received express power to put any conditions he liked upon the licence of any prisoner he released, so that the position in 1864 was that the Home Secretary might, if he pleased, adopt the conditions set out in the Schedule, but he was entitled and empowered to append any conditions which he thought fit. So the law remained until 1871, when the Prevention of Crimes Act was passed.

8.0 P.M.

In that Act it was provided for the first time that, if the Home Secretary inserted conditions other than those in the Schedule of the previous Act, these conditions should be laid on the Table of the House. I would ask the Committee further to remember in regard to the Act of 1871 that there were statutory conditions imposed by it, which the Home secretary was directed to import into the licences which he granted, such as that the prisoner should report his residence and any intended change of residence. Even with regard to these statutory conditions in 1871, the Home Secretary was expressly empowered to remit them if he thought proper. Accordingly, at that date, not only had he power to impose such conditions as he thought proper, but he also had power, if he thought proper, to remit the statutory conditions which the Statute imposed. If that was the condition of matters with regard to penal servitude, the powers which the Home Secretary now seeks do not in any degree resemble or approach those which he enjoys in those entirely analogous circumstances. The circumstances are analogous. I differ from the Noble Lord who said that they were not. In each case the law is relaxed in favour of the prisoner. In one case the release is no doubt only temporary, and in the other it may be permanent; but if the Committee consider for a moment what the alternative is, it will see that I am justified in saying that in each case the prisoner benefits by the operation of the Home Secretary's discretion. The alternative in penal servitude is continued captivity. In this case it may be continued captivity plus forcible feeding or possibly death.

Keeping that in mind, can anyone say that the operation of this Statute would not be beneficial to the prisoner if the prisoner is released in the exercise of the Home Secretary's discretion? It is nothing to the point to say that the prisoner has to go back to serve the rest of his or her sentence. That is part of the original sentence. There is not only no increase of the penalty, but there is a remission of the penalty for the time, although not permanent, as in the case of a man released from penal servitude. If you compare the two cases, the comparison is entirely in favour of the case with which we are dealing. The conditions which the Home Secretary may append will be appended for a less time than in many cases of penal servitude, where these conditions may operate for ten, or fifteen, or twenty years, while under the provisions of this Act they would extend to a very much less period in nine cases out of ten. In addition, the Home Secretary has assured the House that the conditions will not be of a punitive nature. With regard to penal servitude, they may or may not be, according to his own discretion, but in this case he has fettered himself in this matter. Lastly, he has created a standard by which he is to be guided, and departure from which on the part of any of his successors would have to be justified in this House. The claim now made is really a small claim; and to refuse what the Home Secretary asks now, looking to the powers which he already enjoys, is really to strain at a gnat after having swallowed a camel.

Mr. HUME-WILLIAMS

I listened with the greatest attention to the extremely clear speech of the hon. Member (Mr. Munro), and I am authorised by the Noble Lord the Member for Hitchin (Lord Robert Cecil) to express his deep regret that he was obliged to leave to fulfil an important engagement, and was not able to have the advantage of hearing the speech of the hon. Member. The real question on this Amendment is: Is this House or the Home Secretary to settle what these conditions are to be? I do not entirely follow the arguments which have just been addressed to the House, or those of the Home Secretary. In practice there is no analogy at all between the licences granted by the Home Secretary to persons released from penal servitude and those which he will grant under this Bill. In practice, what happens in the case of penal servitude is this: There is in operation in the penal servitude settlement a system under which if a man behaves well for a certain time he accumulates a certain number of good marks, which, according to the prison rules, entitle him to discharge before the term of his imprisonment is fulfilled, and the only conditions it is ever sought to impose are that the released person is to report himself from time to time, and perhaps abstain from certain localities, but there are no conditions in the least analogous to these—that he is to abstain from committing offences in the future.

Mr. McKENNA

The words which the hon. Member is now quoting are from the Penal Servitude Licence.

Mr. HUME-WILLIAMS

But the licence as provided under this Bill is in totally different circumstances. This introduces an entirely new procedure. The whole success of this Bill, when it becomes an Act, and the question whether or not it is to fulfil the object which the Home Secretary has in view, depends on the conditions on which these people are going to be released. If they are properly framed and drafted and proper means are given to enforce them, it may be that he will be able to carry out the object of an Act—that is, to release and rearrest at the expiration of a short term. But the last thing, surely, which the Home Secretary would desire is that those whom he does release under this Act should utilise their absence from prison to recommit the very offences, or offences kindred to these offences, for which they have been sentenced; and it is quite obvious that whether or not that happens will depend upon the conditions inserted in the order under which they are released. That is a matter that ought to remain within the cognisance of this House of Commons. The terms of the discharge are no doubt the most important part of the whole Bill. As an illustration of what I would suggest ought to be part of the order I have an Amendment, which is lower down, and when we discuss it the Committee will see that it is a question that needs to be discussed in the House. I am suggesting that if you release people under conditions set out in the order you should have a procedure analogous to that existing under what we call the Probation Order at the present time.

There is already in existence a system under which men are released on certain terms, usually that they will abstain from drink or from associating with the criminal classes, and part of the system that makes that successful is that they are put under the supervision of an officer attached to the Court, a probation officer, and when they are let out under this Probation Order they know that if they do wrong it will be found out, because it is the duty of this expert attached to the Court to follow their movements, keep his eye upon them, and report to the Court; and if he reports that the conditions of the order are broken when they come up for sentence in the Court, and the knowledge that this supervision is being kept over them is a very powerful factor in leading them to obey the conditions imposed in the order of discharge. I am suggesting that some similar procedure may be adopted in this case. When my opportunity arises on the Amendment the Committee will come to a decision one way or another. I am only bringing it forward now as an illustration of the fact that the terms of this order should not be left to the discretion of the Home Secretary but submitted to the House of Commons. In my opinion, according to the insertion or non-insertion of that Amendment, depends whether the people released under these orders will or will not obey them, and consequently whether the orders will or will not be effective. That is a totally different condition of things from releasing people from penal servitude whom you do not seek to rearrest, who are not exceptional prisoners, and to whom you do not desire to extend exceptional treatment in any form. It is useless to say that the Home Secretary has already got these powers. If he had them he would not require to bring in this Bill. It is an entirely new procedure to introduce into our criminal law, not only for the specific purpose for which it is introduced at the present time, but for all time and for all classes, and therefore, if it is going to be made effective, the order should be subject to the discretion of the Home Secretary, operating under the control of the House of Commons, and that can only be done by accepting something in the terms of this Amendment.

Mr. M'CURDY

I would like information from the Home Secretary on one or two points. In the case of a convict sen- tenced to penal servitude and released on licence, I quite understand that the Home Secretary has discretion to impose the conditions on which he extends to the convict the favour of release upon licence. As a matter of practice, is the assent of the proposed licensee asked to those conditions?

Mr. McKENNA

No.

Mr. M'CURDY

Then in a case arising under this Act, say the case of a female who is being released on account of a hunger strike, is it proposed that any assent or undertaking on the part of the prisoner proposed to be released should be asked as a term of the discharge?

Mr. McKENNA

No.

Mr. M'CURDY

Then I want to ask a further question to make the situation clear. The hon. Member who has just sat down referred to the importance of the enforcement of such conditions as may be made by the Home Secretary. Am I right in this view, that the only sanction for the enforcement of any conditions laid down will be that upon breach of the conditions the temporary discharge comes to an end?

Mr. McKENNA

indicated assent.

Mr. M'CURDY

I am very much obliged to the right hon. Gentleman for making these points clear.

It being a Quarter-past Eight o'clock, further Proceeding was postponed, without Question put, in pursuance of Standing Order No. 4.

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