HC Deb 15 April 1948 vol 449 cc1264-73
Mr. Younger

I beg to move in page 41, line to leave out "such."

This Amendment, and the next Amendment to line 12, to leave out "as is expedient," are Amendments to the Subsection which lays down that rules are to be made by the Secretary of State to ensure that a person charged with an offence while under detention in prison or in a Borstal or other institution, shall be given a proper opportunity of presenting his case. As the Subsection was drafted, some misgiving was felt by some hon. Members that the words make such provision as is expedient might be used as an excuse for not making the rule at all. That was never the intention of the draftsmen when the Amendment was accepted, making "may" into "shall," and we now propose to omit the words "such g as is expedient," so that the rules must be, and will be made.

Mr. Emrys Hughes

I ask pardon for intruding into what has become largely a mutual admiration society of lawyers, but I would like some further enlightenment on the dropping of the word "such" and the phrase "as is expedient." Can it be that all the Law Officers have come to the conclusion to adopt the aphorism: Expediency is man's wisdom and doing right is God's"? I would like to know something more about these words, and I ask the Home Secretary if he has given further consideration to certain points brought up in Committee. Rules made under this Clause are to ensure that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case. What exactly does that mean? Under those rules a person can be prosecuted for offences against the rules of prison discipline. It may be that the prisoner will be charged under a regulation for making an assault on a prison officer. I would like to know what protection the prisoner is to have and what are to be his rights of defence. In Committee the hon. Member for South Belfast (Mr. Gage), and other hon. Members, asked about the legal representation of prisoners charged with an offence against prison regulations. I would like this point to be cleared up. Does the Clause mean that a prisoner who is charged with assaulting a warder is to be entitled to legal representation by a solicitor or by counsel? This is a very important point, especially owing to the fact that a Subsection in this Clause effects changes under which prisoners may be charged with—

Mr. Deputy-Speaker (Major Milner)

I gave the hon. Member for South Ayrshire (Mr. Emrys Hughes) a good deal of latitude, but he appears to be proceeding very wide of the Amendment now, and to be discussing the Clause or the Subsection as a whole. I can allow him to ask for an explanation of the Amendments, but I cannot allow him to go further. He must deal with the Amendments on the Order Paper.

Mr. Janner

On that point of Order, may I ask you to reconsider your decision, Sir, because the hon. Member for South Ayrshire (Mr. Emrys Hughes) is dealing with the question of a prisoner presenting his case, and, as I understand it, the severity of the penalties and the evidence may be considered at the time, and it is something of extreme importance in relation to the presenting of that case. I gathered that the point which my hon. Friend was seeking to make was that legal representation should be accorded to an individual who was charged with one of these offences. I ask you, Mr. Deputy-Speaker, to say that he is entitled to give the illustrations that he is at present giving?

8.30 p.m.

Mr. Deputy-Speaker

I cannot agree with the hon. Member. The two Amendments before the House are in order to make the Subsection read: Rules made under this Section shall make provision for ensuring … That is the only matter before the House. It is no doubt competent for the hon. Member to ask in what way that will improve the opportunity, but he is going much further than that.

Mr. Leslie Hale (Oldham)

Further to that point of Order. The wording of the Subsection is: —such provision as is expedient.… That clearly might mean legal representation, and I submit that my hon. Friend the Member for South Ayrshire (Mr. Emrys Hughes) is raising an important point, because the question of "such provision as is expedient" may be quite different from the question of provision. The former might clearly include legal representation, which may be of great importance to a person who is in prison, and who has no access to the law.

Mr. Ernrys Hughes

I submit that the two points of Order, which I much appreciate, emphasise the point which I wish 'to make. Although on the surface I may seem to be wandering slightly from the point I was making, the word "such" and the words "as is expedient," are relevant to the argument under discussion. In Committee we had a considerable 'amount of discussion, and I would like the Home Secretary to clear up the point. For example, if a prisoner is charged with an offence against a prison warder, he may be sentenced to be flogged. Such a case is brought before the visiting magistrates. I wish to ask whether the prisoner will be entitled to legal representation. It is a very important point for the man concerned. I have before me certain cases which the Home Secretary had under consideration and which were reported in this year's Prison Commissioners' Report. They add point to the argument I am making.

According to the Appendix to the Prison Commissioners' Report, there was a trial of prisoners before the authorities at Cardiff and they were sentenced to be birched or flogged. When the Home Secretary came to consider the cases, he decided to reduce the sentence in one case from 28 strokes of the birch to 12. I submit that if the prisoners had had the legal advice of my hon. Friends the Member for West Leicester (Mr. Janner) or the hon. Member for Oldham (Mr. Hale) they might not have been birched at all. I am not putting this matter from a legal point of view but from the point of view of the man who is in gaol, and the man who is always against the State machine and needs the assistance of legal luminaries to put his case properly; the illiterate, primitive man shut up in gaol, with all the apparatus of the law against him. I suggest that if he is entitled to have legal advice in a law court outside, it is more essential that he should be legally represented behind prison walls. The Home Secretary has admitted by his action in the case I have quoted that magistrates are not infallible, and in this case he reduced an inhumane sentence. I ask him to make it clear in this Clause that the prisoner behind prison walls will have legal representation when he is so vitally affected.

Mr. Gage

I think that this matter was originally raised by my hon. and learned Friend the Member for Chester (Mr. Nield). The hon. Member is right in that the point that was in our minds was the question of legal representation. It appears to me that by these Amendments the matter has been broadened and that in fact our point has been achieved. The whole argument then was that if the words "as is expedient" were retained, it might be said that it is inexpedient to allow lawyers into places of this nature. It is easy for a governor to say that it is inexpedient to have a lawyer there. I think that case is completely met by omitting those words and putting the position plainly, as the Subsection now does, —provision for ensuring that a person who is charged with any offence … shall be given a proper opportunity of presenting his case. I hope I am not being presumptuous in saying that it would appear to any lawyer that if a person is to be given a proper opportunity to present his case, that can only mean one thing, that he shall be able to obtain legal representation. By the deletion of these words, "as is expedient" that has now been made possible, and I entirely agree with the Under-Secretary of State. I think that these Amendments precisely meet our point, and I shall support them.

Mr. Janner

I am rather surprised to hear the hon. Member for South Belfast (Mr. Gage) speak in the way he has done. The words do not seem to me to convey the definite point that a person who is charged with one of these offences shall be entitled to legal representation. After all, someone or other might come to the conclusion that he has been given a proper opportunity of presenting his case if he has been given a sheet of paper and a pencil and allowed to sit down and write out his case and then come before the particular tribunal that is to hear the case. This is an extremely important matter which does not allow of any question of ambiguity. In my view this Clause should be framed in such a way that there can be no question as to the right of the individual to be legally represented if he chooses to be so represented. We are not dealing here with a trivial matter. It may be that some of the cases which will be dealt with are not of such a grave nature as others, but this Subsection deals with a position which admits of a sentence of flogging. We should not deny in this regard a right which is allowed in other cases. This House ought not to allow any possibility of misunderstanding in this regard.

The position is even worse for an individual who is being charged within prison walls than it is for a person outside. After all, a person outside can choose if he wants a lawyer. There are circumstances under which he is given free legal aid. There is a court. The atmosphere is different. He may have friends in court. The whole surroundings, bad as they are in respect of any individual in an ordinary court, are infinitely worse when it comes to the position of a man undergoing detention, who has to rely on the good feelings of those who may have very severe feelings against him.

That being the case, I ask for an assurance from my right hon. Friend that he will incorporate in this Clause some words which will make it absolutely and abundantly clear that in no circumstances shall anybody be entitled to say that the words as they stand ultimately will mean that the person concerned is not entitled to have legal representation. I want that to be perfectly clear, so clear that not only we in this House shall have that assurance, but that no judge or person interpreting this Bill, when it becomes an Act, shall have any alternative but to give that interpretation.

Mr. Donovan (Leicester, East)

I raised this matter on the Second Reading. Under the Clause the person who is to be given a proper opportunity of presenting his case is the person who is charged. My experience on other statutes is that if a person claims he is entitled to be legally represented, then express provision is necessary for that purpose. I should be content with the assurance of the Home Secretary that legal representation will be permitted, but I do hope that such assurance will be forthcoming.

8.45 p.m.

Mr. Benson

This is a point with which I have been very much concerned for many years. I did succeed in carrying the Clause for a prisoner's friend against the Government in the 1939 Bill. The particular Subsection covers not merely the case of the serious offence which may involve flogging, but it also involves the most trivial offences. While I would not suggest the precluding of legal representation, if it were thought necessary, I do suggest that this is something entirely new in our prison system. We shall not get an effective method developed except by trial and error.

We cannot here possibly attempt to draft rules as to how an inquiry shall be carried out in a prison. We should have to turn the inquiry into a court of law with the whole paraphernalia of a court of law. As that is quite impracticable, we shall have to rely on the good sense and good will of the people administering the prisons, under the Home Secretary, to evolve some method of dealing with the problem raised in this Clause. I want the best possible method evolved by which the prisoner can put his case, but I do not want to tie the Home Secretary to any one form or method.

Mr. Janner

No one is asking for that. All that one is asking in this matter is that it should be permissible for the person concerned to be legally represented.

Mr. Benson

What does that mean? Does it mean that it would be permissible for every person to be legally represented, or permissible for the Home Secretary to grant the right if he thought fit?

Mr. Janner

Permissible that the person charged should have the right to be represented if he so desires.

Mr. Benson

I think that is quite impracticable. I do not know whether hon. Members know how many cases come up in the prison each day. It is quite customary for 10, 15 or 20 cases a day to be adjudicated upon by the governor. Any prisoner who wished to make trouble for the Home Secretary to give him legal representation could cause unlimited trouble. There is also the danger that if the trouble maker wished to make trouble by demanding legal representation, he might get more severe punishment.

Mr. Janner

I quite agree that for a trivial offence there should not be legal representation. I was thinking of a case where a person might be flogged, and there I think he ought to have legal representation.

Mr. Deputy-Speaker

I must remind hon. Members that their remarks are getting extremely wide of the Amendments. The Amendments before the House are to leave out the words "such" and "as is expedient." Hon. Members are entitled only to discuss those matters which arise directly out of the omission or inclusion of those two phrases, and not the wider question.

Mr. Benson

While accepting your direction, Mr. Deputy-Speaker, on the question of legal representation I think that the most that the Home Secretary can say at the present moment is that he will not exclude the possibility of a prisoner having legal representation where the charge is a very serious one. That is a very different thing from giving the prisoner the right to have it, irrespective of the offence.

Mr. Ede

I want to confine my remarks to the Amendments. I regard the words which it is proposed to leave out as really meaning rules, made under this provision, which the Home Secretary thinks he can get away with. That is what I understand by" such … as is expedient." I have moved to leave out the words "such … as is expedient" in order to make it clear that rules made under this Clause shall make provisions for ensuring, not as much provision as is expedient, but as much provision as ought to satisfy reasonable people who have regard to all the circumstances of the case. I thought I had placed myself under a much more severe obligation by proposing to omit these words than by allowing the Clause to stand as originally drafted. I have placed myself under an obligation to consider the kind of case that has been raised here this afternoon. I promised that I was going to appoint a committee on prison punishment, and these rules will be among the things which will be referred to that committee for consideration. I hope to get some advice from the committee with regard to the way in which this matter should be framed.

With regard to the rules, it is quite clear that rules of the kind which I am now placing myself under an obligation to produce must deal in different ways with different degrees and circumstances surrounding particular offences. When we were considering this Clause, I gave the committee an account of what I was doing in order to ensure that, in the existing system, I should be assured, when I had to consider a recommendation for flogging, that the whole of what the person concerned wanted to ask had been recorded on the documents in front of me, and that what he had to say should be made known to me.

Since the Committee stage of the Bill, I have sent round a circular indicating that I shall send an officer to the prison on the occasions when a man is charged with an offence like mutiny, incitement to mutiny or gross personal violence, which might involve him in flogging, so that I can have the evidence in the case reported to me in a way that will enable me to reach a proper judgment on the matter. Let it not be forgotten that the person who orders flogging is not the prison governor, not a member of the visiting committee, but the Home Secretary in every case. That is why I want to be assured, as I am quite sure any hon. Member who had to discharge that duty would want to be assured, that I have the whole story in front of me, because it is very difficult indeed to judge on paper, in any event, and particularly on paper which does not disclose the whole of the way in which the inquiry was conducted. In such a case, it is impossible to reach a satisfactory conclusion.

That is the spirit in which I have been endeavouring to administer this particular difficult and repugnant part of my duties under the existing arrangements, and I ask the House to accept the fact that I am leaving out these words, which leave me an avenue of escape from doing what is right and leave me only a duty of doing what is expedient, as an indication that I am endeavouring in these matters to bring the administration of our prisons into line with the most enlightened opinion in the country.

Earl Winterton

I think it is only fair to say that the right hon. Gentleman has amply fulfilled the promise he gave to the Committee. While I do not in any way question the motives of those who have put the point of view of the prisoner, I must repeat in the House what I said in Committee, that we must have regard to fairness all round and remember that the warders are also men with a difficult job to do—I am glad to have the assenting nod of the right hon. Gentleman—and that it is difficult to get members of the prison service. We have to remember that warders and members of the public who have not committed crimes are just as important to protect as the prisoner. I consider that the right hon. Gentleman has given fair consideration to the case, and I would like to repeat, for the fifteenth time, the fact, which does not seem to be wholly accepted by hon. Gentlemen belonging to the Socialist Party, that, in my opinion, in this Amendment the right hon. Gentleman has gone a long way towards producing the fairest system—[Interruption.] It is no use the hon. Gentleman grumbling at me. I say it is the fairest system of penal treatment that there is in any country, and I deprecate the whole tendency of certain hon. Gentlemen who suggest that the prisoner is always in the right and the prison governor always in the wrong.

Mr. Janner

May I ask the noble Lord how he can possibly relate anything that has been said on this side of the House to the suggestion that warders or any other officials should not be properly protected? It is quite wrong for him to read that suggestion into any of the remarks we have made.

Earl Winterton

My short answer to that is that all the advocacy has been on the side of the convicted and never on the side of anybody else.

Mr. Emrys Hughes

May I ask a question of the Home Secretary, who has not been quite so explicit as I should like him to be? Will he tell us whether he accepts the interpretation of the hon. Member for South Belfast (Mr. Gage) that prisoners will be definitely entitled to legal representation?

Mr. Ede

I am not going to pre-judge the work of the committee which I have appointed, or to give them a lead; if I did that, I should be told that what the committee did was merely what I had asked them to do. I want to give them a complete opportunity to draft a set of rules which I can consider without having to give them the kind of lead that might, in certain circumstances, be regarded as circumscribing the range of their activities.

Amendment agreed to.

Further Amendment made: In line 12, leave out "as is expedient."—[Mr. Younger.]