HC Deb 30 November 1949 vol 470 cc1153-204

  1. (1) Except as provided by this section, corporal punishment shall not be inflicted in any prison or institution for which rules may be made under section fifty-three of this Act.
  2. (2) Rules made as aforesaid may authorise the infliction of corporal punishment for mutiny, incitement to mutiny, or gross personal violence to an officer of a prison or institution when committed by a male person serving a sentence of imprisonment, corrective training or preventive detention.
  3. (3) The rules shall not authorise the infliction of corporal punishment except by order of the visiting committee at which not less than three members are present; and no such order shall be made except after an inquiry in which the evidence is given on oath:
  4. Provided that the Secretary of State may, if he thinks fit, direct that the functions exercisable as aforesaid by the visiting committee shall be exercised by the sheriff or a stipendiary magistrate appointed in that behalf.
  5. (4) The punishment which may be inflicted under such an order as aforesaid shall not exceed—
    1. (a) in the case of a person appearing to the visiting committee or sheriff or stipendiary magistrate to be not less than twenty-one years of age, eighteen strokes of a cat-o'-nine-tails or birch rod; or
    2. (b) in the case of a person appearing to them or him to be under that age, twelve strokes of a birch rod;
  6. (5) Where an order for the infliction of corporal punishment has been given under this section, a copy of the notes of the evidence given at the inquiry, a copy of the order and a statement of the grounds on which it was made shall be given immediately to the Secretary of State; and the order shall be carried into effect only after confirmation by the Secretary of State, and, if the Secretary of State confirms the order with modifications, in accordance with the order as so modified.
  7. (6) A refusal by the Secretary of State to confirm such an order as aforesaid shall not prejudice any power to impose another punishment for the offence, for which the order was made.—[Colonel Gomme-Duncan.]

Brought up, and read the First time.

3.41 p.m.

Colonel Gomme-Duncan (Perth and Kinross, Perth)

I beg to move, "That the Clause be read a Second time."

This Clause is moved broadly for the purpose of restoring the system of corporal punishment in Scottish prisons for offences against prison officers. I know that we are much divided over corporal punishment as we are over the question of hanging, but I wish to make it perfectly clear that this corporal punishment is proposed only in cases of assault or violence against prison discipline within prison walls. It is not a question of reinstating corporal punishment for offences outwith a prison.

I know that people have strong feelings on this matter, but I would emphasise, as I have always tried to do on such subjects, that I am anxious to see our prison system and the punishments connected therewith put on a humane basis, and on a basis of reform as well as punishment. On that, I think, we are all to a man or woman agreed. The relationship on this occasion is not to the general public outside but to the prison staff as such. For the purpose of emphasising what I shall say I will, with permission, read extracts from a letter which I have received from the Secretary of the Prison Officers' Association of Scotland who are the people most concerned with this question. It says: To see a headline such as ' no corporal punishment in Scots jails' makes one wonder upon whose initiation such a step could have been designed. Then you go on to read that the measure to abolish corporal punishment in Scottish prisons has the backing of no less a person than the Secretary of State for Scotland. My Association opposed very strongly that part of the Scottish Criminal Justice Bill which is designed to remove corporal punishment from Scottish prisons. The fact it is something which is only conferred upon one Scottish prison "—

That is a reference to Peterhead which in itself was washed out when we were discussing the Bill earlier— and a measure which is seldom resorted to in Scotland is not in keeping with the more general views … and rather than have measures introduced for its removal"— This is of importance— my Association would welcome measures which would have the effect of giving wider scope to these powers. In Scottish prisons, as in the English ones, there exists that element of trouble makers who take sheer delight from inflicting grievous bodily injury not only upon their fellows but upon those who have charge of them. Any attempt to enforce even mild discipline is often met with torrents of abuse, and occasionally an unsuspecting officer is attacked in the performance of his duty, sometimes to his severe injury. Officers going to the assistance of a fellow officer in trouble … are under orders to exercise exceptional restraint "— We shall all agree with that, of course— with the result an outrageous prisoner need fear no bodily harm accruing to himself as a result of any completely thought out assault upon an officer or, for that matter, upon any of his fellows. Corporal punishment or the threat of it is the only true answer to a problem of this kind in prison and, as I have already said, rather than have it abolished, the scope for its infliction in Scottish prisons should be widened. He goes on to say—and I apologise for the length of this quotation, but it is clearly relevant to the case— At our Annual Conference two months ago the following res00000000olution found the full approval of the members of this Association: 'That in every case where a prison officer is seriously assaulted by a prisoner, the offender shall be flogged.' That resolution will appear as an item on the agenda of the Departmental Whitley Council meeting being held in Edinburgh on the 29th of this month. That was yesterday, and I have not been able to find out whether that came up or not, but I assume it did. I have no doubt but that reference will be made on that day to the recommendations of the Criminal Justice Bill as it applies to Scotland, and that much of what we shall have to say will go unheeded. My Executive Committee take very strong exception to the Clause in the Scottish Criminal Justice Bill designed to remove corporal punishment from Scottish prisons completely, and it is on the recommendation of our General Secretary that we make this earnest appeal for your support in not only having this type of punishment retained but of having the power of inflicting it more generally applied to the Scottish prison service. Neither I nor my hon. Friends propose to suggest for a moment—and this Clause does not suggest it—that there should be any increase but that it should be, as the Clause states, maintained as it used to be.

Having dealt with the attitude of those most concerned with this serious problem, it would be right if I reminded the House of what has already occurred here in connection with this matter when the English Bill was before the House, because it is relevant. Much as we like to have separate Bills for Scottish problems, this is clearly one problem. We are dealing with prison officers and prisoners within the prisons of Great Britain and it is not for either Scotland or England to say which has the greater thugs or which has the better type of prisoner. Broadly speaking, they are much the same; in fact, they are, as we know from experience, interchangeable on occasions.

The Cadogan Committee went into these questions carefully and, while it was much against corporal punishment outwith prisons, it made this recommendation: Corporal punishment in prison as a penalty for grave offences against prison discipline is recommended. The Home Secretary, who I am glad to see present—we appreciate his courtesy in coming here—stated on 27th November, 1947: We"— that is, the Government— share their view. That is, the view of the Cadogan Committee on this matter of corporal punishment. The Home Secretary was supported by my right hon. Friend the Member for North Leeds (Mr. Peake), who led for the Opposition on that occasion, who stated: I … support the Home Secretary's view."—[OFFICIAL REPORT, 27th November, 1947; Vol. 444, c. 2147, 2160.] At that time in the House we had agreement between the leaders at any rate, on both sides, and I think that on both sides probably the majority of their followers would have agreed with them.

Hon. Members

No.

Mr. Gallacher (Fife, West)

I am trying to follow the argument of the hon. and gallant Member, but I should like him to tell me what principle it is which says that there should be no corporal punishment for a brutal assault outside a prison but that there should be corporal punishment for a less brutal assault inside a prison. Is this corporal punishment to be remedial and, if so, why is it not used outside prisons? If it is not remedial, is it simply revenge?

Colonel Gomme-Duncan

I wished to make it quite clear, and I hoped that I had done so, that I realise that that position applied outside prisons. Indeed, corporal punishment has already been done away with in both countries. I wished, however, to confine my remarks to cases within prisons. The situation is entirely different, because within a prison the prisoner is already under punishment and there is very little else of a serious nature that can be done with him once he is there. Had he committed an offence outside he would have been popped inside, which in itself is a very serious punishment. The two things, therefore, are not quite on a line.

I should like to quote the Home Secretary again in what I believe to be very earnest and sincere words and given with the whole weight of Government authority. During the Committee stage of the English Criminal Justice Bill the right hon. Gentleman, referring particularly to the question of retaining corporal punishment for serious offences within prison walls, said: I implore the Committee to live in the world of reality in regard to these matters. Many prisoners—and this is especially true at present"— that was in 1948, and everybody agrees it is the same now— are men who easily resort to violence to get their own way. It is essential that the officers in the service should have as much protection as we can give them from assaults of the kind I have indicated. The right hon. Gentleman had previously quoted some dreadful cases from his own experience. He went on to say: I am certain that no Home Secretary gets any pleasure out of confirming a sentence of corporal punishment. I have no doubt that my predecessors, like myself, have never confirmed a sentence unless they have been fully convinced either that there was mutiny or incitement to mutiny, or that a gross personal assault had been committed on a prison officer. I say, and I am considering my words well, that at present no Secretary of State could be responsible for the conduct of the prisons of this country if these powers were withdrawn."—[OFFICIAL REPORT, Standing Committee A, 26th February, 1948; c. 1233.] Coming from the Home Secretary, those are very weighty and serious words, which cannot be ignored, particularly as we know the very sincere way in which the right hon. Gentleman has endeavoured to deal with all matters concerning prisons and the reforming of prisoners.

Those words are just as applicable in every respect to Scotland as they are to England, and I cannot see how we can possibly agree any longer to a system which, just south of the Border, allows a man to have corporal punishment inflicted upon him for an offence in prison while just north of the Border nothing of the kind is allowed. From the point of view of prison officers this state of affairs is having a most unfortunate effect.

I say that in all seriousness. Where the Scottish prison officers see their English friends being supported in this matter with all the weight of the Government behind them, they ask, "Why is that same Government not behind us in Scotland for the same purpose?"

It seems to me unanswerable in logic if nothing else, that where one place requires this to be done the other place should have it in, at least, the interests of and fairness to the officers concerned. This is not a matter of protecting the public, but is something quite different. It is a matter of protecting the men who actually have to do the job of looking after these sometimes very dangerous people.

I have made these remarks with all the emphasis at my command, and I hope that the Lord Advocate or whoever replies will, if he is not prepared to accept the precise wording of the Clause, be prepared to consider one which covers this issue, although the words I have used tally very closely with those of the English Act. If the right hon. and learned Gentleman is prepared to consider such a Clause, I hope that the House will agree and support him in doing so. If he is not prepared to consider it, I hope he will tell us in the clearest possible terms how the same Government can advocate one thing for the prison officers of one country and an entirely different thing for the same type of officer dealing with the same problem in the country north of the Border. I cannot put the matter more clearly than that, and I have done so with the greatest possible sense of urgency and sincerity.

Lord John Hope (Midlothian and Peebles, Northern)

I beg to second the Motion. It has been moved in such admirable terms by my hon. and gallant Friend, that there is little more I can add to his remarks. I hope that the Government will realise that if they reject the Clause they will be doing nothing less than refusing to follow the advice given to them by men who have no axe to grind in this matter, and whose unanimous opinion it is that, in order to do their job efficiently to protect the public, they must be given the powers contemplated in the Clause.

Mr. Rankin (Glasgow, Tradeston)

I hope that my right hon. Friend will reject the Clause. At the end of his speech the hon. and gallant Member for Perth and Kinross (Colonel Gomme-Duncan) employed a somewhat extraordinary argument. He indicated as one of the reasons why the Clause should be incorporated in the Bill that a different procedure is carried out within the prisons of England. It is astonishing that we should have the claim, which was made implicitly if not explicitly, that the law of Scotland should be brought into harmony with the law of England. No other interpretation can be applied to that part of the hon. and gallant Member's speech.

Colonel Gomme-Duncan

I am sure that the hon. Member does not wish to misrepresent me. I hoped I was making it clear that I was not referring to the law as such as being the thing which matters in this case, but rather the protection given to prison officers under both sets of laws.

4.0 p.m.

Mr. Rankin

Which, of course, is part and parcel of the law laid down in this Measure. I submit that if we bring Scottish practice into harmony with that of England on this particular treatment of criminals, there is no reason why we should stop at this one point. If the argument is applied until it reaches its logical conclusion, that is the position in which we are left. It seemed to me that it was an extraordinary argument in view of the statement made on Monday of this week, in which the party opposite, with reference to their programme for Scottish affairs, emphasised that there was a fundamental difference between law and tradition in Scotland and in England. I think that that argument in itself vitiates the whole case which has been put forward.

The hon. and gallant Gentleman also said that when a criminal is imprisoned and commits any of these offences, there is little else we can do other than flog him. There are a lot of other things we can do. We can take his head off. Why not?

Lieut-Colonel Sir Thomas Moore (Ayr Burghs)

Let him have the choice.

Mr. Rankin

Once we adopt this line of argument there is no end to it. There are lots of other things that can be done, such as getting rid of the offender altogether. That is the logical outcome of that attitude.

Lord John Hope

I think the hon. Gentleman will agree that there is less chance of a man getting out of prison if his head is taken off, than there is if he is flogged.

Mr. Rankin

It depends on where he carries his head. There are people who are supposed to carry their heads under their arms and in all sorts of strange positions. The man might take it out with him when he goes. I submit that this attitude lands the hon. and gallant Gentleman in an illogical position, because there are lots of other things that can be done to a person in prison.

My big objection to this Clause is that it destroys the whole purpose of the Bill, which is to adopt a remedial attitude towards the criminal whether he is in prison or out of prison. Are we going to differentiate between the type of offender who is kept out of prison and the type who is put into prison? I submit that the treatment envisaged in the Bill ought to apply not merely to the person who has offended and who is still outside, but also to the person who has earned a prison sentence because of the offence which he has committed. The prison wall ought not to be a barrier to our treatment of the criminal. If this Clause were to go through it would carry on all the bad old practices from which we are seeking to depart. I hope the Clause will be rejected.

Mr. W. J. Brown (Rugby)

This is a very difficult subject to discuss, because I imagine that all of us, on whichever side of the House we sit, and to whichever party we belong, do not like the idea of corporal punishment. I like it as little as any man in England, but if we are to be governed solely by our dislike of the idea of corporal punishment we shall reach the wrong decision here today. There are bigger issues involved than our personal likes and dislikes in this matter.

It is only a few months ago since we were discussing here the Criminal Justice Bill for England, in charge of which was the Home Secretary, who I see sitting on the Front Bench. In my view, the Home Secretary is as just and as humane a man as there is in the country. All his instincts are in favour of remedial and not punitive treatment in prisons. Hon. Members in every quarter of the House would recognise that. But when the right hon. Gentleman had to face the question what should be done to a man in prison who commits a murderous assault upon an officer, then that humane Home Secretary was bound to recognise that that problem could not be answered by a series of easy words.

Mr. Bramall (Bexley)

Would the hon. Gentleman say how it is that there are countries where corporal punishment is not retained as part of prison discipline? How do they manage? They have prisons.

Mr. Brown

I should like to know of a single country in this world where corporal punishment is not retained as part of prison discipline.

Mr. Emrys Hughes (South Ayrshire)

Sweden.

Mr. Brown

No, that is not so. Let us get our facts right.

The Lord Advocate (Mr. John Wheatley)

Since we are dealing with a Scottish Bill, perhaps I might remind the hon. Member that apart from one prison in Scotland, namely Peterhead, there has been no corporal punishment in the prisons of Scotland for almost 100 years.

Mr. Brown

I am much obliged to the right hon. and learned Gentleman. I thought the hon. Member for Bexley (Mr. Bramall) was referring to other countries apart from this country. I know of no country in the world outside the British Isles in which corporal punishment is not retained as part of the prison system. Let us be honest about that.

Mr. Emrys Hughes

What about Sweden?

Mr. Brown

My hon. Friend believes that Sweden is an exception. I deny that. However, we cannot very well argue that point in cross-talk.

The Lord Advocate said that Scotland has not had corporal punishment in its prisons for the past 100 years, except for one prison, Peterhead. He did not tell the House that Peterhead is the classic convict prison of Scotland. It is the one place, of all places, in Scotland, where the very worst, the most difficult, and dangerous type of prisoner is kept. And there they have retained corporal punishment. I suggest that we look at this as a practical proposition. I know something about the prison service in England and in Scotland.

I should like to quote one case. I have had in my room a prison officer who was a fine, strong, healthy, vigorous, full-blooded man. He was left in charge of 40 or 50 prisoners making mailbags. A prisoner engaged in that occupation seized the scissors with which the canvas was cut, and drove the end of those scissors into the man's head. As a result, that man, formerly a fine upstanding public servant, is now a moron, an idiot. The Home Secretary knows that case as well as I do, and I see he nods his head.

What are we going to do about that kind of case? Are we going to answer it with fine phrases about remedial treatment, or answer it by reference to what Scotland has or has not done in the last 100 years? That man whom I have described, and his colleagues, are the men upon whom we thrust the burden of looking after the social misfits, the social defectives of our society. Are we going to leave them with no protection? In this House there is more pity for the criminal than there is for the policeman and the warder who have to look after him.

Mr. Leslie Hale (Oldham)

The hon. Member talks about fine phrases and remedial treatment. Would he analyse it a little? Is he dismissing the whole modern science of psychiatry and psychology? Is he really saying that the man who administered that wound was normal at the time? Has he to be assessed in terms of wickedness, or should he not have had curative treatment before it happened?

Mr. Brown

I take the point which the hon. Gentleman has made. I agree very much with the sentiment which I heard mentioned by an hon. Member above the Gangway. In Glasgow only a few weeks ago I attended the Conference of the Scottish Prison Officers' Association. The hon. Gentleman above the Gangway uttered a sentiment with which I agreed, and which I will repeat—that we have to recognise that there is such a thing as wickedness in the world, and that all of it cannot be excused on the ground of harsh origins, childhood suffering etc. There is such a thing as evil in the world, and from time to time we as a nation have had to recognise that in international affairs, and have had to stand up to it. We have to recognise it also in internal affairs.

I ask the House to consider the situation. In the prisons today the population is roughly twice what it was in pre-war days. The prisons are badly understaffed; there is not a prison in Scotland except Barlinnie which is not understaffed, and that is a doubtful case; I know the figures. Prisoners are sleeping three in a cell, a thing which never happened in England or Scotland until after the recent war. The rule in pre-war days was one cell, one prisoner; we now have to accommodate three in a cell.

Mr. Carmichael (Glasgow, Bridgeton)

Will the hon. Member be good enough to name a prison in Scotland where there are three prisoners in one cell?

Mr. Brown

So far as I know that is the case in every prison in Scotland except Barlinnie. The Lord Advocate will answer me if he has better facts than I have. The Home Secretary knows it to be true.

The broad situation in England and Scotland is one of complete understaffing, about which I have made representations to the Home Secretary for years. It is a situation of gross overcrowding, and of greatly increased risks to the prison officers, and from time to time the most appalling cases of assault occur, and there is nothing that can be done that matters short of inflicting corporal punishment. The hon. Member for Tradeston (Mr. Rankin). who always contributes earnestly to our Debates, tried to kill the argument by driving it to its extreme. He said that there were other things that could be done, that we could cut a man's head off—

Mr. Rankin

That is the logical outcome of the argument.

Mr. Brown

I understood that to be the hon. Member's argument. Is his argument that because we do not want to resort to cutting a man's head off we must abdicate and conclude that there is nothing whatever that can be done? Is that the logic of his argument? If so, it seems that the argument is a ridiculous one.

Mr. Rankinrose —

Mr. Brown

No, I have given way enough. I do not think I have been unfair to the hon. Member.

I assert that no hon. Member of this House likes the idea of corporal punishment. We should all like a world in which men did the right thing without external compulsion because they were good men. But we have to recognise that we have not got that world, that evil is a fact in the world, and that we have to fight against it. I am charged by the Scottish prison officers, who know their job probably better than we do, to say that they ask of this House the same protection that this House has decided shall be given to English prison officers. Up to now I have never known Scotland content with less protection than England.

I do not understand why this Clause was not in the Bill to begin with. Human nature does not change at the Tweed, and the problem of handling bad men is not dissimilar in principle north of the Border from what it is south of the Border. If this House agrees, as it has done, that in the interests of the prison officer this kind of provision should be made in England, I see no ground in logic or reason why we should withhold a similar provision from Scotland. I hope that the new Clause will be accepted.

4.15 p.m.

Mr. Scollan (Renfrew, Western)

I rise to support the Bill as it stands, and to give my reasons for doing so. One is that, as everyone knows, to outlaw a person means that he cannot have the protection of the law by any means whatever, and that he is fair game for anyone to shoot, stab or kill in any way they desire. It appears to me that the hon. Member for Rugby (Mr. W. J. Brown) is putting the case that whenever a person goes into prison, he is outlawed; that he is to become an easy prey and to have inflicted on him a punishment which has been abolished in the ordinary courts.

What is the fundamental basis of the law at the moment? The Home Secretary—who nodded approval to the hon. Member for Rugby—himself said, standing at that Box, that we had long departed from corporal punishment. There is no judge in the land today who can impose corporal punishment for the very offence of which the hon. Member for Rugby complains and in respect of which he claims the right to speak on behalf of prison officers. I will give a case in point. Only last week a young thug sitting in a picture house in Greenock drew out a bicycle chain and hit a girl across the face, marking her for life, because she would not give him a cigarette. But the law of the land has abolished corporal punishment, and all that could be done to him was to put him in prison.

That is the law, based on the principle that we do not recognise corporal punishment. As soon as such a man goes into prison, where he has no bicycle chain, if he raises his fist and hits an officer in the prison he can then be given the flogging which he should have received before he went into prison. Do not make any mistake about my own opinion, which is that corporal punishment should in certain cases be inflicted before the offender goes to prison, not after.

Mr. W. J. Brown

Does not the hon. Member recognise that he is really stating a case for inflicting corporal punishment on the man who slashes a woman with a bicycle chain and not a case against inflicting corporal punishment on a prisoner who jabs a pair of scissors into a warder's head?

Mr. Scollan

I am glad to see that my argument has penetrated. I am stating that the criminal justice Measures in this country—the one which we have passed and the one which is before us—are based on the principle that it is wrong to sentence anyone to corporal punishment for an offence. That is the main point. The whole of our law is based upon the fact that corporal punishment shall not be imposed for any offence in this country.

This new Clause is brought forward with the claim that in special circumstances certain prison officers in charge of desperate men shall receive special protection—mark the word "protection"—against assault. If we admit that, then there is no case for denying the ordinary citizen such protection against criminal assault, if corporal punishment is protection. The whole of our law is based upon the fact that it does not protect, that all we get out of it is revenge.

Mr. Brownindicated dissent.

Mr. Scollan

The hon. Gentleman shakes his head, but is it logical to say that a governor of a prison can impose a sentence of corporal punishment on a prisoner for an assault in prison while a judge trying a case which is a hundred times worse cannot inflict corporal punishment on the person who commits a worse assault outside prison? The whole proposition is illogical. Either we admit corporal punishment into our criminal justice code for everybody, first timers as well as old lags, or we deny it. Up to the moment we have denied it in every prison in Scotland, except at Peterhead. I would remind the hon. Member for Rugby that Peterhead was a penal settlement which, in its early days, had a large number of Englishmen amongst its inmates.

Mr. Brown

We have Scotsmen in English prisons, too.

Mr. Scollan

But they came down to England before they were criminals. The Englishmen came to Scotland after they were criminals. As a matter of fact, I have heard it said that the piers at Peterhead were built by English prisoners.

Mr. Brown

It sounds a typical Scottish transaction.

Mr. Scollan

The point I am making is that it is illogical to bring forward this Clause on a plea that it will give protection to prison officers while at the same time this House has time and again rejected the idea that it will give protection to the ordinary citizen.

Colonel Gomme-Duncan

Would not the hon. Member agree that the outside person is protected by having the man sent to prison, which is a big thing in itself? But with regard to the inside person, if I may so describe him, there is nothing more that can be done, apart from giving the offender a day or two on bread and water, which he will not mind in the slightest, except to inflict corporal punishment.

Mr. Scollan

Let us follow that up. Suppose a man is doing five years and he attacks a prison officer. The contention of the hon. and gallant Member is that if the man is flogged, that will prevent that soft of thing and protect the prison officer, but that if he is tried, as if he had committed an assault on a civilian, and given a further five years, that will not protect the prison officer. Obviously, we cannot have it both ways. If it does not protect the prison officer, it will not protect the civilian. If there is a murderous attack upon a civilian, the offender is sent to prison. If a prison officer is attacked, cannot the sentence be continued? Cannot the man be treated in the same fashion? Or are we to say that men serving prison sentences are outlaws and we can flog them or do whatever we like with them? The hon. and gallant Member must think again in this matter.

I am convinced that in a great many cases flogging would save the necessity for prisoners sleeping three in a cell. I think it would reduce the prison population very much. At the same time, so long as the people of this country have accepted as the moral code in our criminal justice Measures that flogging and corporal punishment shall be abolished, I accept that. It is completely illogical to bring forward a new Clause of this character. Obviously, what we should do is amend the whole law so that corporal punishment may be applied, irrespective of whether it is in prison or out of prison.

Mr. McFarlane (Glasgow, Camlachie)

I share with the hon. Member for Rugby (Mr. W. J. Brown) a complete reluctance to advance any argument which would mean an extension of corporal punishment. I share with the Lord Advocate pride in the fact that we have not had corporal punishment in Scotland for 100 years, other than at Peterhead Prison. But I would ask him if there exist in Scotland any figures or statistics comparable with those presented in the report of the Commissioners of Prisons for England in 1948. There we see that, especially in the local prisons, in contradistinction to the argument advanced by the hon. Member for Rugby that it was only in convict settlements that there was this increase in violence—

Mr. W. J. Brown

I did not say that. I distinguished between Peterhead and other Scottish prisons in the matter of corporal punishment by saying that Peterhead was the classical incarceration point for the convict prisoner in Scotland

Mr. McFarlane

I beg the hon. Member's pardon, but I thought he did argue that the existence of the corporal punishment penalty in Peterhead was justified because it was a convict settlement. On the contrary, in local prisons in England there has been a very large increase in offences of violence within the prisons and against the personnel of the prisons. In the convict settlements in England the figures are fairly static, but on the decline. In order to assist hon. Members such as myself to make up their minds in this important matter, I would ask the right hon. and learned Gentleman if he can tell us what increases there have been in Scotland in the number of offences with violence? Have there been some cases comparable with the cases outlined and detailed in appendix 5 of this report?

I think that hon. Members are in danger of thinking that what is being applied for here in this new Clause is wholesale corporal punishment. On the contrary, it is comparable to the death penalty; it is largely a deterrent. We do know that in England there have only been 12 cases during 1948 where corporal punishment was ordered in English prisons and three of these cases were not confirmed by the Home Secretary. I cannot share the opinion of the hon. Members for Tradeston (Mr. Rankin) and West Renfrew (Mr. Scollan). If they read the brief indictment given in appendix 5 of these particular cases, I think they will agree that there is a large measure of support for that ultimate sanction.

Mr. Rankin

I would warn the hon. Member that he had better be careful in case he destroys the argument put up by the hon. Member for Rugby (Mr. W. J. Brown).

Mr. Scollan

May I ask the hon. Member to bear in mind in regard to the cases he referred to in that appendix, that if they had been committed against civilians, a judge would have been totally unable to inflict corporal punishment. Why?

Mr. McFarlane

The point I was making here as a justification for the possibility of having corporal punishment as an ultimate sanction of prison discipline, is the protection that the effect of it would afford to the personnel of the prisons themselves.

Mr. Willis (Edinburgh, North)

Surely the argument that this offers a deterrent to protect prison officers is rather false, when, in point of fact, these attacks occur in convict prisons in spite of the fact that there is this sanction, and they are increasing?

Mr. McFarlane

That is a factor which had occurred to me, but I am assured by the hon. Member for Rugby (Mr. W. J. Brown) that the most dangerous elements are incarcerated in convict prisons and we find that there has been a considerable decline in the offences of violence. All I am asking is that the Lord Advocate should give us the facts as they appertain to Scotland. What cases have happened in Scottish prisons? Is it necessary? Does the discipline of Scottish prisons require this ultimate sanction and protection which has been afforded to the prison authorities in England?

Mr. Carmichael

I am very sorry about the discussion we have had today. It would be true to say that this Bill was introduced to improve the conditions of people in prisons, recognising that they are human beings, and that, because of the development of the times, we have found better ways of dealing with them. If we suggest introducing corporal punishment—it is not a case of introducing it at Peterhead—it is the extension of something which, according to the Lord Advocate, departed almost a 100 years ago. I could not understand the logic of the case put forward by my hon. Friend the Member for Western Renfrew (Mr. Scollan) that, although we accept the principle of flogging, we should stop it immediately, because Parliament prevents us from doing it in some other place. If the hon. Member could have the law amended so that he could punish people by flogging when they were tried in the courts, then he would have no objection to extending the system to the prisons.

4.30 p.m.

Mr. Scollan

Obviously the hon. Member could not follow the point. My point was that the law, not relating to prisoners, but to the whole population, does not recognise the right to inflict corporal punishment. Therefore, the same law should be extended to the man or woman in prison. They should be treated in the same way as the ordinary civilian, or the law should be changed completely to admit of corporal punishment for the civilian on his trial as well as for the prisoner.

Mr. Carmichael

If I stated the argument in different words, it leads exactly to the same point. The hon. Member does not like the idea of flogging in prison because people cannot be flogged before they go to prison. Let us take the illustration of the young man who used the bicycle chain. If the hon. Gentleman had had the power, he would have flogged him.

Mr. Scollan

Exactly.

Mr. Carmichael

That is the point. I aproach the problem from an entirely different angle. I oppose the idea of flogging. One must ask the question, "Have you made any attempt to study the person who commits an offence, and are you quite satisfied that he was in his sound mind when he did it?" The question I put is, "Could I do a thing of that kind?" Frankly, I could not use violence of the kind suggested. I think that that question should be asked on every occasion. Another point is whether we are getting the best type of people in the prison service today. I say that without wishing to be offensive in any way to the people who are prison officers.

Mr. W. J. Brown

The answer is "No." The pay will not allow it.

Mr. Carmichael

Therefore, it may well be that we are bringing people into prison who, on many occasions, may play some part in creating the situation in which a prisoner commits violence.

Lord William Scott (Roxburgh and Selkirk)

That is a most unworthy suggestion.

Mr. Carmichael

I have been asked to take the view, which I refuse to take, that always when there is a disturbance in a prison the blame rests exclusively on the prisoner. I do not accept that view. I have met people from all walks of life in the House of Commons who, if they had a little power by way of corporal punishment, would exercise it very rapidly indeed. I do not accept the view that the prisoner is always at fault. The environment of the prison may be irritating and that may cause a lot of trouble.

Mention has been made of three people in one cell. I know of an experiment that is being carried on in Scotland with three people in one cell. They are not there permanently but they meet socially. I do not say that they live in the same cell. That takes place at Perth, where the prisoners meet together for social studies of various kinds. The reason I make that point is that prisoners can meet together not necessarily because of overcrowding or because they wish to prepare some form of challenge to the prison authorities. I am surprised to find respectable people anxious to ensure that when a prisoner, who may not be very sound, commits violence he should be punished in the same way. They say that the man who commits violence is a bad person and should be punished by violence. It is always the case that respectable legislators or administrators want the same type of punishment to be handed out. I should have thought that the lesson to give to the wicked person would be that we do not want to follow in his footsteps.

I hope that the Lord Advocate will give us the facts. I think he will find from the records of any country where corporal punishment has been introduced that there has been an increase in violence. I should like to have statistics on corporal punishment from some parts of America. It would be found that corporal punishment does not prevent violence but increases it. I hope that this Bill, which is a good one, will not be destroyed by the inclusion of this Clause.

Mr. Hale

As a Sassenach, I have never before had the impertinence to intrude in a purely Scottish discussion. I do so today only because we are dealing with an ethical problem transcending national boundaries altogether. I want to put the point of view which I hold. The hon. Member for Rugby (Mr. W. J. Brown) put fairly, decently and with restraint, a view which I know many decent people hold. I do not suggest that my ethical conceptions in this matter are necessarily any more improving than anybody else's, but they are conceptions that I hold, it may be almost fanatically.

I accept what was said by the hon. Member for Bridgeton (Mr. Carmichael) that violence begets violence. Corporal punishment is not remedial and never has been remedial. I am very happy to think that there is at least one country in the Commonwealth which has abolished corporal punishment, and abolished it successfully, for many years. Surrounded as I am by Scotsmen, I do not want to be accused of undue adulation, but I should have thought that at least it was fair to say that the average Scot is a man of courage and strength and that temperamentally he is perhaps not unduly yielding. I should have thought that he might conceivably make as tough a prisoner as he does a soldier. If he can be handled, as he has been for 100 years, without corporal punishment, I see no reason why we should not continue without it. There is very much in the Scottish tradition for which I have had a profound respect for many years. For instance, I respect the system of education of which, after all, this is a fundamental part, because this is an ethical conception and it is important.

There was one point in the speech of the hon. Member for Rugby from which I dissent. He said that we must recognise—and I accept this—that there is wickedness in the world and that we must accept the social responsibility for it. That is what we are here for. It is for us, battling with this extraordinarily difficult problem—and it is a fantastically difficult problem—to struggle to evolve some method of dealing with the habitual criminal or the man who, whether it be for physical or mental reasons, is not amenable to ordinary discipline. It is an intensely difficult problem and it is one with which I am afraid we fail completely to grapple.

I should have thought that at least we recognised that the object of putting a man in prison is not to ensure that he keeps on going there for the rest of his life. The object should be the threefold object which Mr. Justice Stephen enumerated a century or so ago—to protect the innocent person, to enforce a system of justice, but at any rate to try to effect some sort of cure to see that it does not happen again. The' whole of our experience is that violence is never a cure. Indeed, the argument as put by the people who decently hold the view of the hon. Member for Rugby is not that it is going to cure the man who suffers from it, but that it may prevent somebody else from doing it.

I do not often talk in these terms, however profoundly I feel. If one is dealing with a human soul, with a human life to live, one must consider him from that point of view. It is our social duty to try to evolve some method of treatment that preserves his innate dignity and gives him a chance of redemption. I think that the way proposed in this Clause is the wrong way. I feel profoundly that it is the wrong way, and because I feel so profoundly that it is the wrong way I am here today to say that I shall be most happy to vote against this new Clause.

Mr. Emrys Hughes

I have been wondering why, if this new Clause is regarded as being so important, it has only just appeared on the Order Paper. We spent a considerable time in the Scottish Grand Committee considering these matters, and the hon. and gallant Gentleman the Member for Perth and Kinross, Perth (Colonel Gomme-Duncan) was there for quite a considerable time. Why was not this Clause brought forward then and discussed by the Committee? If it is so important to have this Clause in the Bill, I am surprised to find that the name of the Opposition spokesman who led the Opposition during the consideration of the Bill in the Grand Committee is not associated with the proposal now. I wonder whether that is due to the fact that the right hon. and gallant Member for the Scottish Universities (Lieut.-Colonel Elliot), who is a medical man, takes a rather wider view than do the hon. Gentlemen who put their names to this new Clause?

Before voting on the Clause, I should like the House to examine this matter much more carefully. I was interested in the illustration given by the hon Member for Rugby (Mr. W. J. Brown) concerning the prisoner who attacked the prison warder. I am sure that we all feel a great deal of sympathy with the warder who is attacked But this new Clause states that the prisoner can be flogged only if he commits certain offences, such as mutiny, incitement to mutiny or gross personal violence to an officer by a male person serving a sentence.

If we were engaged in making mail bags and this place was a prison, in which the hon. Member for Rugby and I were the convicts—[Interruption.] Well, sometimes this place does seem like a prison. If the hon. Member for Rugby was the convict who stabbed the warder with the scissors, he would be liable to be flogged, but, supposing that he stabbed another prisoner, there is nothing in this new Clause which would enable him to be flogged for it.

Colonel Gomme-Dancan

I shall be perfectly happy to accept an Amendment from the hon. Gentleman to cover the case of the prisoner who has been stabbed.

Mr. Hughes

That shows how little consideration and thought was given by the hon. and gallant Member to this new Clause before putting it on the Order Paper.

Mr. W. J. Brown

I am sorry to interrupt the perfectly fair argument which my hon. Friend is putting, but this dilemma occurred when the Criminal Justice Bill for England was being considered. We retained the power of corporal punishment in respect of attacks upon prison officers, but did not retain it in respect of assaults by one prisoner upon another. While we wanted to keep corporal punishment to a minimum, we did recognise the importance of protecting prison officers in their work.

Mr. Hughes

I submit that the case has gone. It is quite clear that the hon. Member for Rugby has come here making a special plea for the prison warder and prison officer. I do not see why he should bring in the Home Secretary and say that he produced these arguments.

Mr. McKinlay (Dumbartonshire)

What about visiting magistrates?

4.45 p.m.

Mr. Hughes

If a prisoner were to attack visiting magistrates with scissors, he would not be liable to be flogged. I am also surprised that the new Clause refers to male prisoners. We have seen from the Press recently that there has been trouble in the female prisons, for instance, at Holloway. If we want to protect a male warder, should we not also protect a female one, because female prisoners have scissors, too? If the hon. Member for Rugby were as logical as he so frequently claims to be, we should have a Clause advocating the cat-o'-ninetails for female prisoners over 21 and the birch rod for female prisoners under 21. I submit that this is special pleading on behalf of a particular trade union.

This is not the way to approach this Bill. We should not be here as Members of Parliament advocating the point of view of any trade union. I am surprised, if this is the point of view of the Prison Officers' Association in Scotland, that they should have chosen those four hon. Members to be associated with a trade union. We have here four hon. Gentlemen who never had any association with trade unionism at all; in fact, I am quite sure that the noble Lord does not know exactly to what he is committed in advocating the special claims of a trade union and he is in danger of becoming a syndicalist. This proposal is reactionary and completely out of place in our legislation in Scotland, and the more it is examined, the more it will be seen that it is a proposal which ought to be left entirely outside this Bill.

Mr. McGovern (Glasgow, Shettleston)

I should like to add to what has already been said by my hon. Friends the Members for South Ayrshire (Mr. Emrys Hughes) and Bridgeton (Mr. Carmichael) in regard to corporal punishment. As I see it, even though this proposal is made with a desire to protect the prison warders in the execution of their duty, it is forging a very dangerous weapon to be placed in the hands of the authorities.

The argument is not all in favour of the prison warder. I have had some experience and regret to state that this experience drove me to the conclusion that, in a few cases which were brought to my notice and which I closely investigated, men were set upon by prison warders. These men were without any weapons, but the case went all in favour of the prison warders. There was a case in Glasgow, as the right hon. and learned Gentleman will remember, in which a young man was imprisoned and the allegation was that he had thrown a boot at a warder and refused to take his food. Ultimately, four warders took this unarmed man, beat him in a most horrible fashion and got the prison doctor to certify that he was insane. On the same day, he was packed off to Gartloch Asylum and there certified insane. I saw the man in the asylum, and his body bore the most horrible mass of wounds and bruises that I have ever seen on any human being.

Therefore, I am satisfied that this weapon in the hands of the prison authorities is going to be an encouragement to use violence on the men. I do not say that this will be the case generally, but there will be exceptions in the cases of warders who may be antagonistic in their attitude to an individual, and, because of that, may even go to the length of inflicting violence. I am quite sure, from the history of this matter, that if the prison officers get away with this sectarian attitude which the hon. Member for Rugby is displaying in regard to this question, it will be unfortunate. I know that the hon. Member is a person of fairly humane views, but I think he has fogged his mind about the protection of the prison warders to an extreme degree, and that he does not see that it is a case that not only prison warders but the prisoners themselves should be protected.

I am opposed to this proposal, and during the Committee proceedings upstairs I once stated that almost the first knowledge I had of corporal punishment was received in the Chatham Dockyard Barracks. I once saw a man flogged for stealing from his mates, and as long as I live I shall never forget the scene. We saw him afterwards in the swimming pool, and his body was a horrible mass of weals as a result of the punishment he received when tied to the table in the barrack yard.

I am in favour of the utmost protection for the prison warder and for any person doing a job under the Crown in defence of law and order, but I think it is a most dangerous thing to encourage the idea that such people can, in extreme circumstances, inflict corporal punishment, sometimes simply because of their antagonism towards the prisoner. The prisoner has no opportunity of producing witnesses, and therefore we should be very careful in placing that protection in the hands of the prison warders. I hope that the Lord Advocate will resist any proposal of this kind.

Mr. W. J. Brown

Has the hon. Gentleman read the new Clause, because, it does not give power to the prison officer or even to the prison governor to inflict corporal punishment. Subsection (3) reads: The rules shall not authorise the infliction of corporal punishment except by order of the visiting committee at which not less than three members are present; and no such order shall be made except after an inquiry in which the evidence is given on oath. I do not think that the hon. Gentleman's remarks are correct.

Mr. McGovern

My answer is twofold. In the first place, I am against the principle of using violence on a prisoner, and, secondly, it is not a question of who is ultimately to decide. It is a question in some cases of the concoction of the evidence which is laid before the visiting committee. A case of violence being used by the prisoner against a warder may be made out when, in fact, the violence is of the most infinitesimal kind.

The Lord Advocate

I think we all appreciate the genuine and sincere motives underlying this new Clause. I think it was prompted by a desire to protect prison officers in the exercise of their administrative duties. I wish to approach the problem from that point of view. I can assure hon. and right hon. Members that if it were a case of the interests and the safety of prison officers being seriously imperilled by the absence of this Clause in the Bill, then it would be in the Bill.

Some play has been made of the fact that a corresponding Section is to be found in the Criminal Justice Act, 1948, and the hon. and gallant Gentleman who moved this Clause thought it was inevitable that because it was contained in the English code it should likewise have been placed in the Scottish code. He said that it was an exactly similar problem, and that there was no barrier between the two countries as far as this is concerned. I think that is a false approach to the problem because we must distinguish between academic justification for a thing and the practical necessity. There was a time when it was deemed in Scotland to be a practical necessity to hang people for sheep stealing, but in more enlightened times it was decided that such a punishment even as a deterrent was not necessary. It is perfectly true, of course, that more enlightened movements in Scotland have been followed in England.

Mr. Brendan Bracken (Bournemouth)

Better sign the Covenant.

The Lord

Advocate: It is not necessary to sign a covenant to do good things for Scotland.

Mr. McKinlay

And we do not need Churchill's permission either.

The Lord Advocate

What we have to consider here is whether this is a practical necessity having regard to conditions in Scotland, because we are dealing with Scotland, in circumstances that apply in Scotland. Accordingly, we should turn our minds to the terms of the new Clause to see to what extent it is desired to introduce this corporal punishment in prisons. The Clause proposes that such punishment should be confined to cases involving mutiny, incitement to mutiny, or gross personal violence to an officer of a prison … I think that the hon. and gallant Gentleman and those who spoke in favour of the Clause made a mistake in thinking that if we did not allow corporal punishment in prisons in respect of any such offence there was no method of properly dealing with a prisoner who committed that offence. If that were the case, I would agree with the hon. and gallant Gentleman and his hon. Friends. But it is not the case, because any person in prison who commits an offence—and we are principally concerned with the personal violence offence—is in no different position to a person who commits a similar offence outside. We are only dealing with serious and not trivial offences.

If such an offence took place, the matter would be referred to the Crown Office with a view to proceedings being taken. If those proceedings were taken in the ordinary criminal court, the court would be entitled, having regard to the evidence and if the person concerned were found guilty, to impose a sentence which would be superimposed on the existing sentence. We would treat the prisoner for the offence inside the prison in exactly the same way as we would treat a person guilty of committing such an offence outside the prison.

Lord John Hope

What the Lord Advocate has been saying was surely just as obvious to the prison officers as it is to him, but they were unanimous in rejecting anything short of flogging as being sufficient. He cannot override them like this.

The Lord Advocate

I am not sure that the prison officers fully appreciated the ramifications of this, but even if they were in favour of corporal punishment, that fact does not bind this House. I am going to deal with the prison officers before I sit down if the noble Lord will try to contain himself a little longer.

Lord John Hope

The Lord Advocate is treating the matter too lightly.

The Lord Advocate

If the noble Lord thinks it is treating the matter too lightly to bring persons who have committed an offence before the responsible criminal courts of our country and allow our courts to deal with them in a normal manner, then I have a different description for it.

Lord John Hope

I was simply attempting to make a relevant interjection because of the manner in which the right hon. and learned Gentleman was speaking.

The Lord Advocate

I hope that the House will appreciate that these people can be dealt with and that there is effective machinery for dealing with them, and that that is an answer to an otherwise very legitimate point raised by the hon. and gallant Gentleman. Since we have the alternative, we have to consider the question whether it is justifiable not only to retain the corporal punishment which we had in a Scottish prison hitherto, but to extend it to every prison in Scotland, because that is what is involved in this Clause.

My submission is that having regard to the history in Scotland, it is quite unnecessary for the protection of prison officers to introduce the proposal contained in this Clause. This is where the circumstances in England are quite irrelevant, because, as I understand from my right hon. Friend the Home Secretary, it was a much more serious problem in England. That is a deciding factor in determining whether a certain type of punishment should be retained or superseded. Often the very prevalence of an offence may justify the retention of a certain type of punishment, whereas, if it were becoming much less common, there would be a justification for its removal. That has been the attitude adopted throughout our criminal law.

Lord William Scott

Does the right hon. and learned Gentleman think that the English criminal is tougher than the Scottish criminal?

5.0 p.m.

The Lord Advocate

I am merely talking about the facts, and the facts are that the number of assaults on prison warders by prisoners in England is considerably higher than it is in Scotland—

Lord William Scott

In proportion?

The Lord Advocate

Yes. I wish to give the House the figures, because we should have the facts in this matter. We have had corporal punishment only in Peterhead in Scotland during the last 95 years; it did not exist in any other prison. In the last 21 years it has only been resorted to once at Peterhead, in 1934. Only once in 21 years was it necessary to resort to it. As I explained to the House, we have the alternative method of punishment, namely, if a person commits what is a criminal assault in prison he can be charged with that offence in our criminal courts.

I think the House would be enlightened to know what the record has been during the last 10 years. Between 1939 and 1949 there has been one case in court from Peterhead involving assault in which five convicts were charged. That was in 1943. From Edinburgh, there has been one case where prisoners were involved in assault. Three prisoners were involved and that was in 1945. In that case the men were untried prisoners. At Barlinnie there was one case of assault involving two prisoners, in 1948. That is the record. Surely that is not the problem which exercised the mind of the hon. Member for Rugby (Mr. W. J. Brown), who was dealing, I think, with circumstances in England, more than in Scotland.

Mr. W. J. Brown

I hate to interrupt, because I think the Lord Advocate is making a very fair, relevant and pertinent case. It is true I had the English situation in my mind, but he Will allow me to say that in the last two months I have taken counsel with the prison officers in Scotland in this matter at a conference at which the right hon. and gallant Member for Scottish Universities (Lieut.-Colonel Elliot) and I were present. They might be right, or wrong, but this is their strong view.

The Lord Advocate

The House might like to weigh the value of that view against the proven facts and circumstances. That background, of only one case in 21 years where corporal punishment was involved in Peterhead and only three cases in Scotland in the last 10 years involving 10 prisoners, of whom only six were convicted, indicates quite clearly that the size of the problem in Scotland is not so great as, apparently, it is in England.

Against that background we have to consider whether or not we should accept this new Clause, which would introduce corporal punishment into every prison in Scotland. In these circumstances, I do not think we would be justified, because I think the modern trend is to get away from corporal punishment, except in circumstances where it is necessary to retain it in the interest of the administration of justice and the safety of those who have to administer justice. I think we would be all at one in regard to that.

Having regard to the facts and as we are living in a world of reality, I think we are perfectly justified in not accepting this new Clause. I assure the hon. and gallant Member and his colleagues that—as no doubt they appreciate—this provision was not left out of the Scottish Bill without a great deal of thought. It was not an omission, but definite and decided policy. The hon. and gallant Member and all other hon. Members would like to think that we approach this matter purely from the point of view of Scottish conditions and Scottish circumstances and, having approached it from that point of view and given the relevant facts to support our attitude, there is not much to be said, except to address my mind to two points.

The first is the attitude of the prison officers, to which, naturally, the hon. Member for Rugby attached some weight. My first comment in regard to the prison officers is that, apparently, they raised this point at a conference two months ago. They directed their representations to my right hon. Friend on Friday of last week, the letter arriving on Saturday.

Their complaint originally was that until the matter was mooted on the Committee stage of this Bill downstairs they did not know anything about it.

This Bill has been right through another place and was very carefully scrutinised in another place. It had a great deal of publicity on Second Reading in the newspapers of Scotland and, if the prison officers were not aware of the fact that this was so until the Committee stage, they were rather late in bringing the matter to the notice of the right hon. and gallant Member for Scottish Universities and the hon. Member for Rugby. But, if they were late in bringing it to the notice of those hon. Members, I am afraid they were most late in bringing it to the notice of the Secretary of State, to whom they wrote at the end of last week.

Colonel Gomme-Duncan

I think that the experience of the right hon. and learned Gentleman and the experience of us all is that people outside who are affected by legislation here, have a habit of being very late in stating things they want done. But that they are late makes it no less important.

The Lord Advocate

I can understand individuals not knowing the contents of a Bill, but when there is an association dealing with these matters and a Bill of this nature comes along which is bound to have great repercussions as far as they are concerned, one would expect that notice would be given to the Minister in charge of the Bill earlier than the weekend before the Report stage is taken, when the Bill was initiated in another place and went through all stages in another place.

That is merely a comment in passing and would not affect the validity of their arguments, if their arguments are sound. I am not quite sure why they are supporting this proposed provision, and unanimously supporting it, because hitherto only prison officers in Peterhead have had what they described as the benefit of this protection. I do not know what is the interest of the prison officers in all the other prisons in Scotland, where they have never had it and where, apparently, they got on well without it.

On this aspect of the problem, they might wish to obtain some power such as this in order to make their existence, perhaps, a little easier if they felt there was an inherent fear in the mind of the prisoner even to go near a prison officer, let alone attack him. There is a natural feeling that they would like that protection. But we have to make up our minds, as we are the jury in this matter, as to whether the punishment sought to be imposed is justified in order to give that added peace of mind and protection.

That is the problem we have to pose to ourselves; is it justified. We have to answer the question in the light of our experience in Scotland and our experience says it is not necessary. These men are doing a good job and we want to pay tribute to them. They are, perhaps, not receiving an added measure of protection and security which, no doubt, they think they require, but which we do not think is desirable, having regard to the punishment which would be inflicted on the prisoner if we accepted it.

I wish to deal with certain points raised by the hon. Member for Rugby in case certain false impressions might go out, unwittingly, from this House in regard to prisons in Scotland. The prison officers may think that prisons are understaffed. I suppose that every employee of an hotel thinks the same, because if they had more the burdens on the staff would be correspondingly lighter. But my information is that, by and large, there is no understaffing in Scottish prisons. That may be a question of opinion. The people doing the work may think they would be better off with someone to help them, but my information, from those administering the prisons in Scotland, is that there is no understaffing, generally speaking, in Scotland.

Mr. W. J. Brown

I am sorry that these discrepancies of evidence should arise. At the very last meeting of the prison officers' Whitley Council the question of the staffs in Scotland was discussed and the most that the representative of Scotland would claim was that Barlinnie was not understaffed—it was the only prison in Scotland where they were applying the proper scales.

The Lord Advocate

I get my information from those responsible for running these places. I am afraid that experience in England has led to confusion with regard to cell accommodation so far as Scotland is concerned. It is quite wrong—and I want to say this emphatically—to suggest that there is anything in the nature of three convicts to a cell in Scotland. There is not. It is one convict to one cell in Scotland. In fact, we have at least one prison where we could give three cells to one prisoner; we could give the prisoner a bedroom, a drawing room and a dining room if he wanted it.

I do not think that the problem of under-staffing exists, but I would urge hon. Members to look at this from the point of view of whether we would be justified in extending this form of punishment in our Scottish prisons—because it is an extension—having regard to our background and having regard to the alternatives which are available for the punishment of those prisoners, inside the prison, who commit offences of this nature. I give the assurance that we who, quite as much as the hon. and gallant Member, are anxious to protect the interests of those who have to administer justice, are satisfied that this Clause is unnecessary.

Lord John Hope

I have listened to the most able arguments which the right hon. and learned Gentleman has advanced with great interest. One has to admit that his figures are extremely impressive. Has he any evidence, however, that there has or has not been any increase in a tendency towards insubordination and general nastiness on the part of prisoners in Scotland in the last year or two, apart from the actual instances of assault?

The Lord Advocate

My information is this: that so far as trivial offences are concerned, which are not covered at all by this Clause, there has been a slight increase, but so far as serious offences are concerned—and they would be covered by this Clause—there has been no appreciable increase at all. I am obliged to the noble Lord for raising that point.

Lieut-Colonel Elliot (Scottish Universities)

The House is discussing a difficult case this afternoon, and the difficulty is shown by the fact that the lines of demarcation have not followed on a party basis. There have been speakers, notably the hon. Member for Rugby (Mr. W. J. Brown)—who has made a strong case—who are not normally associated with those of us on this side.

The Joint Under-Secretary of State for Scotland (Mr. Thomas Eraser)

But he is.

Lieut-Colonel Elliot

I am trying to approach this from the point of view from which I am sure the House wishes to approach it—that it is a difficult social problem which we are discussing and that we are laying a task of great responsibility on certain people. I am sure that the House in general has discussed this matter not from a party point of view and I myself would wish to adhere to that.

Mr. Scollan

Since the right hon. and gallant Gentleman remarks that the matter has been discussed from a nonparty point of view, why does he take definite steps to dissociate his party from the hon. Member for Rugby (Mr. W. J. Brown)?

5.15 p.m.

Lieut-Colonel Elliot

The hon. Member for Western Renfrew (Mr. Scollan) sometimes makes most cogent and important interruptions in our Debates, but sometimes he is responsible for interruptions which make one think that either he has been asleep or that he has been like Baal of the prophets, wandering in some far country. At any rate, that makes it quite clear that the hon. Member for Western Renfrew wishes the matter to be discussed on a purely party basis, which I think would be a great pity.

Because there are two separate problems—the problem as to whether it is, under all circumstances, wrong to have corporal punishment in this country and the question as to whether we should or should not change the law of Scotland. The hon. Member for Oldham (Mr. Hale) was under a misapprehension: corporal punishment has not been abolished in Scotland for 100 years, it has been present in Scotland for 100 years. This Bill is the proposal to abolish it, not the proposal to introduce it. The onus is on those seeking to change the law, and the change is being made by this Bill.

Mr. Hale

If I am under a misapprehension I should like to be corrected. Is it not the position that it has been abolished for civil offences? It certainly has been used at only one prison for the last 95 years for prison offences and it was certainly not usable in other prisons.

The Lord Advocate

I should like to clear up this matter if I may. I think my hon. Friend the Member for Oldham (Mr. Hale) is wrong. We were not referring to punishments in respect of civil offences—those offences outside the prison. The position is that for almost 95 years there has been no corporal punishment in any prison in Scotland apart from Peterhead. So far as the other forms of corporal punishment are concerned, they were abolished by the Criminal Justice Act of 1948.

Lieut-Colonel Elliot

I was saying that corporal punishment has been the law in the prison in which the convicts were kept.

The Lord Advocate

No. I am very sorry for interrupting again; the right hon. and gallant Gentleman has had a most unfortunate experience in that he has been interrupted so much and I must apologise to him, but I must point out that convicts were not confined to Peterhead in recent years. Convicts were put into various prisons in Scotland, where they were previously all confined in Peterhead. They were spread amongst various prisons during the last few years.

Lieut-Colonel Elliot

I am most anxious not to cast a rather heavy slight upon the men in Peterhead by suggesting that they were the most incorrigible and the most extreme of the prisoners in Scotland. I think that is perhaps unnecessarily adding to the severity of their condemnation. I was understating the case, it is true, but Peterhead was where the convicts were kept for many years and where the most difficult cases—let me put it so—have been kept in recent years. Even so, undoubtedly we have been able, in Scotland, largely to dispense with the infliction of this punishment and that is a very great credit to all those concerned—a great credit to the prison officers, a great credit to the prison governors and, if I may say so, a great credit to the prison population that they have not shown themselves of the violent and intractable kind who would incur these punishments.

We are, therefore, debating a very narrow field. The Lord Advocate gave most interesting and important statistics as to the extreme narrowness of this field. He knows as well as I that it could be argued two ways; it could be argued to mean that the punishment was unnecessary or it could be argued by the advocates of the punishment that the existence of this power in reserve had, in fact, secured what all people desire—namely, that it was acting as a deterrent and that, consequently, the punishment was not being inflicted.

Mr. Hale

It was not in reserve.

Lieut-Colonel Elliot

Of course it was in reserve. The hon. Member for Oldham, who has preserved this security for the prison officers of his own land, should think twice before arguing too strongly about our country, where he is seeking to introduce this new proposal, which is not the law of the land in this very city where we are now sitting. This power was in reserve; the Lord Advocate said it was reserve. The Lord Advocate said there had been five people brought up in Peterhead in 1943, three at Peterhead in 1945 and one case at Barlinnie in 1948. These are cases which indicate clearly that powers to consider this matter were in existence. They have been very sparingly used. I therefore say again—and I hope this time that I carry the House with me—that we are arguing a narrow field.

Mr. McKinlay

Did I understand the Lord Advocate correctly? Did he say there were five cases of assault? I do not think he said these were cases of corporal punishment.

Lieut.-Colonel Elliot

He said there was a case of assault involving five men.

Mr. McKinlay

Not corporal punishment.

Lieut-Colonel Elliot

He was speaking of a case of assault in which—and I am under the correction of the Lord Advocate—it might have been possible for this penalty to have been used. This was in Peterhead. The Lord Advocate gave us two instances, one involving five men in 1943 and another involving three men in 1945—two instances in which assault took place. In the case of the five men, they were five, I think, who had been convicted, and in the case of the three men they were men who had not then been convicted. I did make a note of the figures, and I think I am correct in saying so. This merely reinforces the argument I am advancing to the House, that we are discussing here a narrow field.

We must then, I think, ask ourselves, Why has this issue come before us on this occasion? It has come before us admittedly on the representations of those who are servants of this House—the prison officers: servants of the Secretary of State, and so of this House. It is also true, as the Lord Advocate has said, that it is only at a very late stage of the progress of this Bill that we have had it brought to the House. However, that is, of course, unfortunately one of the features of our present life. There are so many things passing through that it is very difficult to keep track of them all. Although these representations were made only as late as last Saturday, yet it is the purpose of the successive stages of legislation in Parliament that attention at a late stage can be given to matters brought before the notice of Parliament in connection with the legislation.

Anybody could be confused in his mind about this matter. The hon. Member for South Ayrshire (Mr. Emrys Hughes), who has given a good deal of thought and attention to the matter, when the matter was under consideration in Committee, was himself confused in the matter, and if the hon. Member for South Ayrshire did not understand the import of this Bill I think it may be forgiven to certain prison officers that they, too, were confused in the matter. I will read what the hon. Member for South Ayrshire said in Grand Committee: I am not quite sure what the position is in Scottish prisons…. Then he went on to ask: Does this completely abolish corporal punishment in Scottish prisons? Have the authorities any power to order the infliction of corporal punishment upon prisoners who are guilty of offences against prison officials?"—[OFFICIAL REPORT, Scottish Standing Committee, 8th November, 1949; c. 126–7.] He was answered by the Secretary of State himself, who assured him that the purpose of abolishing corporal punishment was achieved by the Clause we were discussing—it is Clause 53 now—as it stood. I say that if the hon. Member for South Ayrshire is clouded in his view of the matter, then, I think, it may well be that prison officers, who have not the same opportunities of acquainting themselves with the progress of legislation in this House, may also have found themselves in some obscurity.

Mr. Emrys Hughes

I am rather clouded in knowing where the right hon. and gallant Gentleman stands in the matter.

Lieut-Colonel Elliot

Certainly the hon. Member need have no apprehension about that. I propose to make my position absolutely clear.

Mr. Hughes

Then why does not the name of the right hon. and gallant Gentleman appear on the new Clause?

Lieut.-Colonel Elliot

The hon. Member has no right whatever to catechise me on this or any other subject. I will certainly tell the House of Commons, and I will tell the hon. Member as a Member of the House of Commons. But I will also say it would be a strange House of Commons if Private Members were forbidden to put down new Clauses, or to put their names to them, without always seeking the sanction and approval of Front Benchers on one side or the other; and I think that on many occasions the hon. Member's position in Debate would have been very considerably curtailed if that had been so.

As I say, the prison officers have been late in making these representations. Admittedly so. But they have made these representations, and the argument which weighs very strongly with me is that they are representations from servants of ours, upon whom we have put a most difficult and most onerous duty—this duty of restraint.

Now, it is true that the infliction of corporal punishment—the statutory infliction of corporal punishment—is forbidden in other Scottish prisons. The hon. Member for Shettleston (Mr. McGovern) brought up a case to which I had to give a great deal of consideration when I was Secretary of State—to which both he and I gave a great deal of attention. It is not always the case that statutory prohibition of corporal punishment means that no violence of any kind is inflicted either by prisoners or by warders in the prisons. I remember well the case which he mentioned. I remember well it was a case of a man who admittedly had assaulted a prison officer; and afterwards prison warders went into his cell, finding the man with a heavy chamber pot in his hand, and starting to embark upon what the warders said was an aggressive attack, and which the hon. Member for Shettleston said was an unprovoked assault by the warders. However, at any rate, violence resulted undoubtedly.

Mr. McGovern

May I correct the right hon. and gallant Gentleman? I was not in a position to say what happened. I got the story from the prisoner, who was one man against four, and, therefore, I wanted the whole thing investigated from the prisoner's point of view, because he had no witnesses to prove anything, and had used no violence, but had only thrown the pot.

Lieut.-Colonel Elliot

I do not think any of us in this House would care to have a heavy chamber pot thrown at him by a figure as robust and powerful as that of the hon. Member for Shettleston, or indeed, any other Member of this House; or, if that did happen, would not think—very reasonably—that violence had been used. In such a case as that, the provisions of this Clause would come into effect, because this Clause does make very stringent provision as to inquiry, as to the taking of notes of evidence, and as to the submission of those grounds to the Secretary of State. If it had been possible for me to have had such evidence when I was considering the matter I should have been very much happier than I was considering it, as I was afterwards, merely on the statement of the various people concerned.

The hon. Member will remember that this man was, in fact, of unsound mind, because although he was then taken to an asylum and detained but afterwards released, he afterwards, if I remember aright, committed suicide. He was a man the unsoundness of whose mind was proved by his subsequent conduct. However, I only say it was a most difficult and troublesome case, and the fact that it was not a case where statutory provisions operated did not mean it was not a case in which violence occurred. Certainly violence did occur in that case.

Mr. Gallacher

Is the right hon. and gallant Gentleman arguing that a man in prison who is in such a sick mental condition that, when he comes out of prison, he commits suicide, should suffer corporal punishment?

Lieut-Colonel Elliot

No, certainly not. I am arguing that if such a case were subject to due course of inquiry and evidence, and came before the Secretary of State himself—and these are the provisions here—the danger of an unauthorised assault and beating up, might be diminished and not increased. That is the whole argument which my hon. and gallant Friend seemed to me to be bringing forward. It is an argument by the prison officers, saying that if this provision is altogether removed we may increase the chances of assault, and, naturally, in such circumstances, we increase the chances of reprisal.

Mr. Gallacher

We are all in favour of an inquiry, not of corporal punishment.

Lieut.-Colonel Elliot

The inquiry that is here laid down is an inquiry under which corporal punishment may be inflicted under certain safeguards; and that is the position which has been the case in one of the prisons of Scotland—the prison where those prisoners were for many years—for a great many years.

I come back to the fact that we in this House are now considering a petition from servants of this House, from prison officers; and I think we must give them the utmost possible attention.

Mr. Sydney Silverman (Nelson and Colne)

They are not servants of this House.

Lieut.-Colonel Elliot

The hon. Member is fond of these fine-drawn quibbles. They are not servants of the House in one sense, but they are in service under the Secretary of State, and the Secretary of State is responsible to this House, and to that extent, at least, they are servants of this House.

5.30 p.m.

Mr. Silverman

I wonder whether the right hon. and gallant Gentleman realises that on that argument every miner and every railway employee is a servant of the House of Commons? Surely we use the term "servant of the House of Commons" in a very special sense, as meaning those whom we in this House directly employ.

Lieut.-Colonel Elliot

The hon. Gentleman may always use language in that strict and quibbling fashion, but it is not the fashion in which it is used by everyone, and it is certainly not the fashion in which I, in the full knowledge of this House, am employing it just now.

On these servants of the State has been laid one of the most difficult and onerous of tasks. The task of keeping fellow mortals in restraint is one of the most difficult of tasks; and in some ways one of the most dangerous tasks to a man—I do not mean to his physical strength but to his soul—to put him in a position of authority of that kind over other men.

Mr. Silverman

And the right hon. and gallant Gentleman wants to increase their authority.

Lieut-Colonel Elliot

The hon. Gentleman, who has not listened to this Debate, might excuse us from the running fire of interruption, from which we know he cannot restrain himself when he is taking a prominent part in a Debate. I should have thought that when he was not taking part in the Debate he might have saved us from it.

We are now dealing with the question of whether this Clause should or should not be inserted in the Bill, and whether the principle of corporal punishment after due inquiry should or should not be rubbed out from the law of Scotland. That is really the problem to which we must now address ourselves, and we are asked by those upon whom the duty of administering the prisons falls not to rub it out from the law of Scotland I do not think that we can dismiss that claim altogether. I do not think it is fair on the servants of the State to ignore the representations they have made.

With all the will in the world to admit the strength of the arguments the Lord Advocate has advanced—and they are strong arguments—that this operates only in a small number of cases and over a limited field, I must point out that those upon whom we have put this duty have said that in this small number of cases and over that limited field they consider that these provisions have worked well in the past and should not be expunged from our Statute Book. I do not myself feel able to advise the House to ignore that plea. I now say to the House in general, and to the hon. Member for South Ayrshire in particular, that I shall vote for this Clause, and I shall support the plea of the prison officers of my country of Scotland that this particular protection should not be withdrawn from them.

The Secretary of State for Scotland (Mr. Woodburn)

I think that in his last remarks the right hon. and gallant Gentleman misled the House a little. This Clause would not keep the law as it stands today. The law as it stands today limits any possibility of corporal punishment to one prison in Scotland—to Peterhead.

Lieut.-Colonel Elliot

I was arguing the matter on the point of principle. If the Secretary of State will undertake even to look into this matter again, I shall be only to willing to counsel my hon. Friends to withdraw this Clause, and myself not to vote for it. If he will give that undertaking, I will do that now.

Mr. Woodburn

The point I was making was this. We are being asked, not to keep the law as it is, but after nearly 100 years to put back a law that has been abolished for all that time in every other prison in Scotland but Peterhead. Charles Reade would turn in his grave if he thought we were going back to his day in our ideas of punishment.

Now, we respect the prison officers, and I know their fears in this regard. I know the fears of those in Borstal when I suggested they should come out of uniform; that they should be the friends of the boys rather than their guardians. They are in my constituency and they saw me personally about that, and I had great difficulty in persuading them that it was a risk they ought to take, because it is prison psychology that if a prisoner fears violence and is restricted and turned into an animal, he behaves like an animal.

The whole purpose of this Bill is to try to alter the atmosphere of prison, not only for the prisoners but for the warders, because as long as there is that former atmosphere between prisoners and warders there is apt to he violence on both sides. The proof of that is that for all that time in Scotland, when there was no violence possible from the point of view of corporal punishment, these offences have not taken place. It would have been possible for the right hon. and gallant Gentleman to have argued that the existence of the possibility of corporal punishment was a deterrent which prevented these offences from taking place, but since that possibility did not exist in any prison except Peterhead it must be proved beyond doubt that that deterrent has not been necessary in these prisons.

Colonel Gomme-Duncan

The right hon. Gentleman will recognise that because of the distribution of types of prisoners, the type that used to go only to Peterhead is now spread more widely, which makes the whole thing different in bringing the other prisons into it. At one time it was confined to Peterhead, but it is not now.

Mr. Woodburn

That argument would have weight had they been confined to Peterhead but, as the hon. and gallant Gentleman very well knows Perth Prison, which has been a convict prison for many years, has had not only people of that type but people of mental instability who have had previous records of violence, and even in that prison there has been no case such as would justify our reversing this procedure.

Colonel Gomme-Duncan

At that time the Perth Prison for ordinary criminals did not have long-sentence convicts. The criminal lunatic side of the prison is an entirely different thing, to which this Clause would never apply. There is no suggestion of flogging lunatics.

Mr. Woodburn

The point is that even in the ordinary convict prison at Perth, the convicts have been there for long sentences—just as long as those in Peterhead.

Colonel Gomme-Duncan

No.

Mr. Woodburn

Well, they have been there for quite long terms, and this problem has not arisen. I say it is sufficiently proved that, although that deterrent to violence has been removed violence has not taken place in these other prisons, and no evidence has been produced today to justify the plea that merely by removing it at Peterhead there will suddenly be an outbreak of violence there. We are being asked to reverse an humanitarian advance in our prison system, which has been there for 100 years. The right hon. and gallant Gentleman wants to take us right back to 100 years ago.

Colonel Gomme-Duncan

That is most unfair.

Mr. Woodburn

The atmosphere in prisons 100 years ago was quite different from the atmosphere today. I want to make it quite clear that tonight the House is not deciding between the law as it stands, on keeping corporal punishment at Peterhead alone or abolishing it altogether. What we are being asked to decide is whether or not to reverse what has been the position in Scotland for 100 years. I say that public sentiment and public feeling will regard that as a retrograde step. It would convey to the world that something is happening in Scotland which has made it quite a different country; that there is an outbreak of some kind of violence there requiring new and repressive measures. We are trying to get the world away from repressive measures, and that can only be done by trial and experiment.

Colonel Gomme Duncan

Tell that to the Home Secretary.

Mr. Woodburn

We have had the experiment, and the trial in Scotland is sufficient proof that this provision is not necessary in Scotland. We cannot judge for England. Tonight we are judging for Scotland, not England. I therefore beseech the House not to vote for this Clause, which takes us back 100 years and suggests that something has gone wrong with the population in Scotland, both inside and outside the prisons, requiring violent measures. Under the new Clause those who would decide whether violence shall be committed against a prisoner in the form of corporal punishment would be the visiting committee.

Commander Galbraith (Glasgow, Pollok)

The Secretary of State.

Mr. Woodburn

No, the visiting committee first of all.

Lieut.-Colonel Elliot

If the right hon. Gentleman looks at it, he will see that it is the Secretary of State.

Commander Galbraith

Subsection (6).

Mr. Woodburn

I was coming to that. The point is that the Secretary of State is an executive officer, just as the prison warder is. The Lord Advocate has pointed out that where violence takes place inside a prison, the prisoner is brought before the court, and the court tries him. What is also being advocated by the hon. and gallant Gentleman is that the trial should be by the Secretary of State, and that he should pass judgment and not the court of law. The Lord Advocate has pointed out that it is much wiser that the matter should be left to the court of law to decide, and that all such cases as are being discussed today should come before the magistrate or the sheriff and be dealt with by him. That is, we believe, the proper way to deal with this matter.

The sheriff has plenty of power to inflict salutary punishment on any prisoner who commits violence. If violence is committed by a convict in prison, it is apt to be reciprocal and cause violence on the part of the warders. If these things are done in hot blood, they are not done judicially, and therefore that is a reason why it should not be left to the prison authorities to deal with these matters and they should be dealt with by someone who is not himself interested in the incident. If the prison authorities judge these matters themselves, they are masters and judges in their own courts. Therefore, we think that these matters ought to come before an impartial tribunal in the form of a magistrate. We know that the people who are administering the prison naturally have the administrative point of view of maintaining discipline, but in a case of violence to such an extent that it requires corporal punishment, we think that such a case should come before the courts.

I ask the House not to accept the advice of the hon. and gallant Gentleman and not to put the law of Scotland back 100 years, but to allow us to be consistent by abolishing the last remnants of corporal punishment which exist in Peterhead. If events prove that we are wrong, we shall have no hesitation in asking the House of Commons for other powers. That would be our duty to the people carrying out our services in the country, and that is a matter which can only arise from experience. The experience so far is on the side of complete abolition, and I ask the House to support us in that view.

Mr. Gallacher

The right hon. Gentleman said that in cases of violence the people in the prison would be looked on as the judges and jury in their own cases. Does not that apply to lesser cases in prison, and will he not make arrangements to see that they do not become judge and jury in the lesser cases, and that the prisoner gets proper representation in those cases as well as in the more serious cases?

Mr. Woodburn

That point does not arise. As the hon. Gentleman knows, I have given instructions that the person charged lean call witnesses and is not bound to accept the decision, if he wishes to have other judgment.

5.45 p.m.

Mr. S. Silverman

I hope that the Mouse will forgive me if I so far break the custom of the House as to intervene in a Debate on a Bill which applies only to Scotland. I understand that the precedent has already been broken by some of my hon. Friends, but there has been no undertaking so far, that any right hon. Gentleman or hon. Gentleman will not make speeches about Lancashire unless he has his constituency in that part of the world.

Lieut-Colonel Elliot

We welcome any relevant intervention. We have had them already from the hon. Member for Rugby (Mr. W. J. Brown) and the hon. Member for Oldham (Mr. Hale). We are most grateful to them.

Mr. Silverman

I am much obliged. I wish to offer two very short comments. The first is to offer an apology to the right hon. and gallant Gentleman for seeming to intervene in his speech at the end of the Debate, most of which I did not hear. I want to assure him that the argument he was then using, as I am sure he appreciates, was not a new argument—the argument that we ought to do this thing not on its merits and not having regard to any of the rest of the discussion, but merely because the prison officials desire it. That argument was used elsewhere on another Bill. I think that it was the right hon. and learned Gentleman's main argument. I have never thought it to be a good argument; I think it is a very bad argument indeed.

My only other comment is that I am very surprised to see that there are Scottish Members who wish to reduce the Scottish civilisation to the English level. It is not merely that we would be going back 100 years in the history of Scotland; we would be going back to the present position in England, and I think that would be a very bad thing because the present position in England is very much less civilised than what the Bill proposes for Scotland, and if I were a Scottish Member I should like to retain my lead over English civilisation as long as possible.

I agree with my right hon. Friend when he said that this was a matter for Scotland, and we had no right to consider the affairs of England; but this is the House of Commons. It may be dealing with a Bill which applies only to Scotland, but it is the same House of Commons which considers all these matters, and I think it was a perfectly relevant interruption which was made by an hon. Member opposite, in the speech which we have just heard, when he said "Why do you not tell it to the Home Secretary?" I wish that my right hon. Friend would make the Home Secretary aware of the argument advanced with such force from the Government Front Bench, because it might induce him, even in the short time available to this Parliament, to have a one Clause non-controversial amending Bill to the English Criminal Justice Act—

Mr. Deputy-Speaker (Mr. Bowles)

The hon. Member is not addressing himself to the new Clause which is before the House. It is a question of whether this new Clause should be added to the Criminal Justice Bill for Scotland, and he cannot suggest anything in the nature of a new Act of Parliament for the whole country.

Mr. Gallacher

On a point of Order. A Scottish prisoner can, as a result of this Bill, be transferred to England, and an English prisoner can be transferred to Scotland.

Mr. Deputy-Speaker

That is not a point of Order. The question is whether this new Clause should be added to the Scottish Bill.

Mr. Gallacher

If a Scottish prisoner is transferred from Scotland to England, although he cannot suffer corporal punishment in Scotland, he can suffer corporal punishment in England, and so it is necessary to apply this to England.

Mr. Silverman

I recognise that it would be quite improper for me to develop an argument about English law on this Motion. I rose to oppose the new Clause, and I was merely saying that the same considerations which induce the House to add this Bill to the Scottish law, as I hope 'they will, ought to induce the Government to amend the English law accordingly.

Mr. McKinlay

I think that the logic of this new Clause lies on the Government side. I rise for the purpose of suggesting to my right hon. Friend that we should divide on the new Clause. In suggesting that, I wish to say a word in passing to the hon. Member for Nelson and Colne (Mr. S. Silverman). I ask him, please, never to treat Scotland as a parish, or refer to it as a county-of England.

Mr. S. Silverman

I have never done so.

Mr. McKinlay

My hon. Friend raised the question of exception being taken to Scottish Members talking on a Bill affect-

ing Lancashire. We are a nation, not a parish; and I welcome the observations of those learned in the law, no matter from which part of the United Kingdom they come. It is, however, too much when people try to be funny at the expense of the greatest legal structure in the United Kingdom, which is the law of Scotland, and we are not having any more of it.

Mr. Silverman

So far from being funny at the expense of Scotland, I paid the Scottish people, what I believed to be a very sincere compliment by saying how far they were in advance of English law on the subject matter of this Clause.

Question put, "That the Clause be read a Second time."

The House divided: Ayes. 100; Noes, 208.

Division No. 295.] AYES 15.50 p.m.
Amory, D. Heathcoat Gridley, Sir. A. Orr-Ewing, l. L.
Assheton, Rt. Hon. R. Grimston R. V. Ponsonby, Col. C. E.
Astor, Hon. M. Hannon, Sir. P. (Moseley) Poole, 0. B. S. (Oswestry)
Baldwin, A. E. Harden, J. R. E. Raikes, H. V.
Baxtar, A. B. Head, Brig. A. H. Roberts, P. G. (Ecclesall)
Beamish, Maj. T. V. H. Headlam, Lieut.-Col. Rt. Hon. Sir. C. Ropner, Col. L.
Bower, N. Hinchingbrooke, Viscount Ross, Sir R. D. (Londonderry)
Boyd-Carpenter, J. A. Hope, Lord J. Sanderson, Sir F.
Bracken, Rt. Hon. Brendan Jennings, R. Savory, Prof. D. L.
Bromley-Davenport, Lt.-Col. W. Keeling, E. H. Scott, Lord W.
Brown, W. J. (Rugby) Kerr, Sir J. Graham Smiles, Lt.-Col. Sir W.
Carson, E. Lancaster, Col. C. G. Smithers, Sir W.
Challen, C. Law, Rt. Hon. R. K. Snadden, W. M.
Clarke, Col. R. S. Legge-Bourke, Maj. E. A. H. Stanley, Rt. Hon. O.
Corbett, Lieut.-Col. U. (Ludlow) Lennox-Boyd, A. T. Stoddart-Scott, Col. M.
Crookshank, Capt. Rt. Hon. H. F. C. Linstead, H. N. Stuart, Rt. Hon. J. (Moray)
Crosthwaite-Eyre, Col. O. E. Low, A. R. W. Studholme, H. G.
Davidson, Viscountess Lyttelton, Rt. Hon. O. Sutcliffe, H.
Digby, S. Wingfield MacAndrew, Col. Sir C. Taylor, Vice-Adm. E. A. (P'dd't'n, S.)
Dodds-Parker, A. D. McCorquodale, Rt. Hon. M. S. Teeling, William
Drayson, G. B. Macdonald, Sir P. (I. of Wight) Thorneycroft, G. E. P. (Monmouth)
Drewe, C. McFarlane, C. S. Touche, G. C.
Duthie, W. S. Mackeson, Brig. H. R. Turton, R. H.
Eccles, D. M. McKie, J. H. (Galloway) Tweedsmuir, Lady
Eden, Rt. Hon. A. Maitland, Comdr. J. W. Wakefield, Sir W. W.
Elliot, Lieut.-Col. Rt. Hon. Walter Marples, A. E. Wheatley, Colonel M. J. (Dorset, E.)
Erroll, F. J. Marshall, 0. (Bodmin) White, Sir D. (Fareham)
Fletcher, W. (Bury) Mellor, Sir J. Williams, C (Torquay)
Fox, Sir G. Molson, A. H. E. Winterton, Rt. Hon. Earl
Fyfe, Rt. Hon. Sir D. P. M. Moore, Lt.-Col. Sir T. York, C.
Galbraith, Cmdr. T. D. (Pollok) Morrison, Rt. Hon. W. S. (Cirencester)
Gammans, L. D. Noble, Comdr. A. H. P. TELLERS FOR THE AYES:
George, Maj. Rt. Hon. G. Lloyd (P'ke) Nutting, Anthony Sir Arthur Young and
Glyn, Sir. R. Odey, G. W. Major Conant.
Gomme-Duncan, Col. A. O'Neill. Rt. Hon. Sir H.
NOES
Acland, Sir. Richard Barstow, P. G. Brown, T. J. (Ince)
Adams, Richard (Balham) Barton, C. Bruce, Maj. D. W. T.
Albu, A. H. Battley, J. R. Burden, T. W.
Allen, A. C. (Bosworth) Bechervaise, A. E. Byers, Frank
Allen, Scholefield (Crewe) Berry, H. Carmichael, James
Anderson, A. (Motherwell) Bing, G. H. C. Chamberlain, R. A.
Austin, H. Lewis Boardman, H. Champion, A. J.
Awbery, S. S. Bottomley, A. G. Chetwynd, G. R.
Ayles, W. H. Bowden, H. W. Cluse, W. S.
Ayrton Gould, Mrs. B. Braddock, Mrs. E. M. (L'pl. Exch'ge) Cobb, F. A.
Bacon, Miss A. Braddock, T. (Mitcham) Cocks, F. S.
Balfour, A. Bramall, E. A. Collindridge, F.
Colman, Miss G. M. Jeger, Dr. S. W. (St. Pancras, S.E.) Ridealgh, Mrs. M.
Corbet, Mrs. F. K. (Camb'well, N.W.) John, W. Roberts, W. (Cumberland, N.)
Corlett, Dr. J. Jones, D. T. (Hartlepool) Robinson, Kenneth (St. Pancras. N.)
Crossman, R. H. S. Jones, J. H. (Bolton) Rogers, G. H. R.
Cullen, Mrs. Keenan, W. Ross, William (Kilmarnock)
Daggar, G. Kendall, W. D. Royle, C.
Daines, P. Kenyon, C. Sargood, R.
Dalton, Rt. Hon. H. Key, Rt. Hon. C. W. Scollan, T.
Davies, Edward (Burslem) Kinghorn, Sqn.-Ldr. E. Scott-Elliot, W.
Davies, Ernest (Enfield) Kinley, J. Shackleton, E. A. A.
Davies, Harold (Leek) Kirby, B. V. Sharp, Granville
Davies, Haydn (St. Pancras, S.W.) Lang, G. Silverman, J. (Erdington)
Davies, R. J. (Westhoughton) Lavers, S. Silverman, S. S. (Nelson)
Davies, S. O. (Merthyr) Lee, F. (Hulme) Simmons, C. J.
Diamond, J. Leonard, W. Skeffington-Lodge, T. C.
Dobbie, W. 'Lewis, A. W. J. (Upton) Skinnard, F. W.
Dodds, N. N. Lewis, T. (Southampton) Smith, C. (Colchester)
Donovan, T. Lipson, D. L. Smith, H. N. (Nottingham, S.)
Dugdale, J. (W. Bromwich) Lipton, Lt.-Col. M. Smith, S. H. (Hull, S.W.)
Dumpleton, C. W. Logan, D. G. Snow, J. W.
Dye, S. McAdam, W. Sorensen, R. W.
Evans, John (Ogmore) McAllister, G. Soskice, Rt. Hon. Sir Frank
Farthing, W. J. McGhee, H. G. Sparks, J. A.
Fernyhough, E. McGovern, J. Stokes, R. R.
Field, Capt. W. J. Mack, J. D. Summerskill, Rt. Hon. Edith
Follick, M. McKay, J. (Wallsend) Sylvester, G. O.
Forman, J. C. McKinlay, A. S. Symonds, A. L.
Fraser, T. (Hamilton) McNeil, Rt. Hon. H. Taylor, Dr. S. (Barnet)
Gallacher, W. MacPherson, Malcolm (Stirling) Thomas, D. E. (Aberdare)
Ganley, Mrs. C. S. Mainwaring, W. H. Thorneycroft, Harry (Clayton)
George, Lady M. Lloyd (Anglesey) Mallalieu, E. L. (Brigg) Thurtle, Ernest
Gibbins, J. Mann, Mrs. J. Timmons, J.
Gilzean, A. Manning, Mrs. L. (Epping) Tolley, L.
Glanville, J. E. (Consett) Mathers, Rt. Hon. George Wallace, G. D. (Chislehurst)
Goodrich, H. E. Mellish, R. J. Wallace, H. W. (Walthamstow, E.)
Greenwood, A. W. J. (Heywood) Mitchison, G. R. Warbey, W. N.
Grenfell, D. R. Morgan, Dr. H. B. Webb, M (Bradford, C.)
Grey, C. F. Morris, P. (Swansea, W.) Weitzman, D.
Griffiths, W. D. (Moss Side) Mort, D. L. Wells, P. L. (Faversham)
Gruffydd, Prof. W. J. Murray, J. D. West, D. G.
Gunter, R. J. Naylor, T. E. Wheatley, Rt. Hon. John (Edinb'gh, E.)
Hale, Leslie Neal, H. (Claycross) White, H. (Derbyshire, N.E.)
Hall, Rt. Hon. Glenvil Nichol, Mrs. M. E. (Bradford, N.) Whiteley, Rt. Hon. W.
Hamilton, Lieut.-Col. R. Noel-Buxton, Lady Wilkes, L
Hardy, E. A. Oliver, G. H. Wilkins, W. A.
Harrison, J. Paling, Will T. (Dewsbury) Williams, D. J (Neath)
Haworth, J. Parker J. Williams, W. T. (Hammersmith, S.)
Hobson, C. R. Parkin, B. T. Williams, W. R. (Heston)
Holman, P. Paton, J. (Norwich) Willis, E.
Holmes, H. E. (Hemsworth) Pearson, A. Wills, Mrs E. A.
Hoy, J. Peart, T. F. Woodburn, Rt. Hon. A.
Hubbard, T. Poole, Cecil (Lichfield) Woods, G. S.
Hughes, Emrys (S. Ayr) Popplewell, E. Wyatt, W.
Hughes, H. D. (W'lverh'pton, W.) Porter, E. (Warrington) Young, Sir R. (Newlon)
Hynd, J. B. (Attercliffe) Porter, G. (Leeds) TELLERS FOR THE NOES:
Irvine, A. J. (Liverpool) Price, M. Philips Mr. Joseph Henderson and
Isaacs, Rt. Hon. G. A. Proctor, W. T. Mr. Hannan.
Janner, B. Randall, H. E.
Jeger, G. (Winchester) Ranger, J.

Bill read the Third time, and passed, with Amendments.

Mr. Deputy-Speaker (Major Milner)

The next Amendment is in page 16, line 1, standing in the name of the Secretary of State.

Sir T. Moore

On a point of Order. Before Mr. Speaker left the Chamber, I advised him that I wished to ask for his help and guidance in connection with the Amendment standing in my name, in page 14, line 26, to leave out "Borstal," and to insert "normal."

Mr. Deputy-Speaker

I can only say to the hon. and gallant Member that Mr. Speaker has not selected his Amendment.

Sir T. Moore

I agree, but Mr. Speaker assented to my request that I should raise

this matter for his or your guidance, Mr. Deputy-Speaker. Therefore, I am merely carrying out what Mr. Speaker gave me authority to do. I am raising this matter to give the Joint Under-Secretary of State an opportunity to deal with an undertaking given in the Committee stage, and also to ask you, Mr. Deputy-Speaker, for your assistance. The change of the word "Borstal" was discussed for a considerable time in Committee, and the Secretary of State, in response to the general feeling of Members of the Committee, agreed that he would try to find an alternative name before we came to this stage of the Bill. The night before last the right hon. Gentleman's secretary telephoned me to

say that the Minister had thrown his hand in, and could not find a name. I then suggested the name which appears on the Order Paper in my name—

6.0 p.m.

Mr. Deputy-Speaker

I am sorry but no question of Order seems to arise, because the matter is not available for discussion, as Mr. Speaker did not select the hon. and gallant Member's Amendment. The hon. and gallant Member also appears to be discussing the merits of the matter.

Sir T. Moore

No, Sir, you have misunderstood me. All I wanted was your guidance and assistance and perhaps your concurrence in the right hon. Gentleman making a statement, which would clarify the position, of his intentions in regard to the undertaking which he gave in Committee.

Mr. Deputy-Speaker

The hon. and gallant Member's Amendment has not been selected; and in my view no discussion can take place upon it now.

Sir T. Moore

Then will it be all right if I raise the matter on Third Reading?

Mr. Deputy-Speaker

That is a question for Mr. Speaker, but, as the hon. and gallant Member knows, on Third Reading it is only permissible to speak about the contents of the Bill as it then appears before the House.

Clause 21.— (CORRECTIVE TRAINING AND PREVENTIVE DETENTION.)

Mr. Woodburn

I beg to move, in page 16, line 1, after "released," to insert: in accordance with the provisions of the Fifth Schedule to this Act. This and following Amendments anticipate the Amendments which are to be moved to Clause 53, in lines 19 and 20. Their purpose is to enable prisoners undergoing corrective training and serving preventive detention, as well as those serving imprisonment and undergoing Borstal training, to be temporarily released in accordance with the rules made by the Secretary of State. They are in accordance with the new developments in our prison system. Where people are sent to corrective detention and show signs of being corrected, they ought to have an opportunity to go back to ordinary life and see how they fit in with normal society.

Amendment agreed to.

Further Amendments made: In page 16, line 20, after "released," insert: in accordance with the provisions of the Fifth Schedule to this Act.

In line 32, leave out "on licence."

In line 32, after "with," insert: rules made under subsection (6) of section fifty-three of this Act or.

In line 35, leave out "section fifty-three of this Act," and insert "that section."—[Mr. Woodburn.]