HC Deb 20 February 1962 vol 654 cc209-19

3.35 p.m.

Mr. Sydney Silverman (Nelson and Colne)

I beg to move, That leave be given to bring in a Bill to repeal the Justices of the Peace Act, 1361; to abolish all other jurisdictions to exercise the same or similar powers of preventive justice; and for purposes connected therewith. By common consent, the Justices of the Peace Act, 1361, is antiquated, obscure and oppressive. Although that is generally agreed to be so, the Act is put into operation very frequently. In 1958, according to a Home Office statement, no fewer than 5,831 cases were brought, and successfully brought, so that orders requiring entry into recognisances, or imprisonment in default, were made.

Whatever differences of view there may be in the House about many of the matters and courses which have given rise to proceedings under the Act, all will agree, I think, that, if it is necessary in the year 1958 to bring 6,000 cases of this kind they ought to be brought under a modern Statute which we have recently considered, into which we have introduced whatever safeguards are thought to be necessary, and which at least is not obscure.

There is not time, in a short speech, to go into many of the fascinating matters which lie behind this legislation, but I think that I should recall to the House the origin of it. In 1361, 600 years ago, the Act was brought in to deal with offenders, rioters, barrators and vagabonds. There is some dispute about what the Act enacted because, whereas the Norman French edition said that it was applicable to persons who were not of good repute, the English version recited that it was applicable to persons of good repute, the word "not" having somehow or other been omitted from the translation.

This of itself might have created some embarrassment in the courts, which, having the two versions before it, would not know whether the Act applied to criminals or to people who were not criminals, until Lord Goddard, then Lord Chief Justice, decided that it meant exactly the same whether the word "not" was in or was not, saying, at the same time, affirming a dictum of Lord Coke, that this was preventive jurisdiction and that, whatever objections there might have been to it, it must now be recognised as part of the law of the land. If it is part of the law of the land, I hope that the House will consent to repealing the law as it stands, even if it thinks it necessary to enact a modern Statute giving similar powers.

What is the proper application of the Act? There was a case in which it was invoked against Tom Mann in the days of the Hunger Marches. That was quite appropriate, because in 1361 there were a lot of returning soldiers from the Hundred Years' War. Pensions were rare. The Welfare State had not been thought of. Jobs were scarce. Unemployment pay was non-existent. Soldiers who had spent many years abroad came home to find little for them, and they were wandering abroad feeding themselves as they could. The Act was brought in in those circumstances to deal with those conditions.

The magistrate who tried Tom Mann said this: Neither defendant is charged before me with any offence, nor is it necessary to prove that they have been guilty of any offence. I have merely got to say whether or not there has been proved a condition of things, which makes it reasonably probable that the defendants in this case may be guilty of conduct which is calculated to provoke a breach of the peace … There are a lot of "mays" and "probables" in the whole of that statement. What is certain is that a person can be sent to prison without having committed any offence.

That has been applied to others as well as to Tom Mann. It was applied to George Lansbury—perhaps the most eloquent and persuasive pacifist that this House has ever contained. It is a little ironic that, if something had to be done to prevent Lansbury from speaking in favour of votes for women, the authorities had to rely on a 600-year-old Statute made to deal with marauding ex-soldiers.

Although there was no need to charge an offence, still less to prove one, nevertheless, people were called upon to enter into recognisances in circumstances in which there could possibly be imagined a possible hypothetical speculative danger to the peace at some future time. But in quite recent times it has been applied to cases in which it was not even contended that any breach of the peace was contemplated, was intended, had occurred, or was reasonably probable.

It has been applied to young persons, about whom we have recently legislated, that the courts have no power to inflict a sentence of imprisonment, unless no other conceivable course is open to them. Yet, following the recent protests against nuclear warfare, I know of one case, and the Joint Under-Secretary of State for the Home Department knows of very many more, in which people whose offence was to obstruct the highway—for which the maximum penalty is 40s.—were, at the end of the case, called upon under this antiquated and, I should have thought, obsolete power to enter into recognisance, although, quite obviously, the court knew that this would be so offensive to their consciences that they would refuse to do it. They were then sent to prison for long periods. They included young people between the ages of 17 and 21—people in respect of whom there is a statutory prohibition on commitment to prison unless no other course is open.

I do not know whether any hon. Members at this moment consider that a young girl aged 17 years and 3 months, who sat down in the road outside a military station and was fined 40s.—the maximum—for that offence, was such a person that all the ingenuity, discretion and judicial nature of our courts were unable to find another method of dealing with her than to send her to prison for two months for refusing to enter into a recognisance—a refusal which she felt bound in conscience to make—not to commit an offence which would invoke a maximum penalty of a fine of 40s.

I wonder whether there is anyone who thinks that that was right. There are some distinguished people who, it would appear, do not think it was right, and I would like to adopt the argument of one distinguished personage who must have had people of this kind in mind when the statement was made. I quote from The Times of 27th December last: It is natural that the younger generation should lose patience with their elders, for their seeming failure to bring some order and security to the world, but things will not get any better if young people merely express themselves by indifference or by revulsion against what they regard as an out-of-date order of things. Angry words and accusations certainly don't do any good, however justified they may be. I wonder whether hon. Members recognise that quotation. It is from Her Gracious Majesty's Christmas address to the nation on Christmas Day. Surely we ought to look again at this way of dealing with generous, maybe impulsive youth doing their best to address their minds to what is admittedly a difficult situation. Surely we can do something better with them than send them to prison in circumstances where it is admitted that no offence has been committed or contemplated.

I hope that the hon. and learned Gentleman the Joint Under-Secretary of State will not mind my saying that I am sorry to see that he is the only representative of the Home Office present. I have no reason to question his good faith, and I do not. But his experience is very limited. I would have liked to see a senior member of the Department here. Not perhaps to answer—this is not the occasion for it—but to hear and consider what was said. I wonder whether the Home Secretary himself has ever brought his mind to bear on these matters.

It is extremely doubtful whether many of these recent—I do not say convictions, because they are not convictions—sentences of imprisonment were correctly inflicted at all. They were, in my opinion, an abuse of the Statute. No charge was made, no notice was given, no application was made by the prosecution. All that was done was to tack on this additional order so as to increase the statutory maximum penalty that the court could inflict for the offence charged. It may be that I am wrong, but I think that it will be recognised that there is strong reason to think that I may be right.

My Motion does not do very much. It really calls only for an examination. I hope I have said enough to persuade the House to give me leave to introduce the Bill.

3.49 p.m.

Mr. Ronald Bell (Buckinghamshire, South)

Profiting by the arguments which were deployed two years ago against his hon. Friend the Member for Oldham, West (Mr. Hale), the hon. Member for Nelson and Colne (Mr. S. Silverman) has broadened his front so as not to be outflanked by the common law. But his gain in logic is his loss in merit, because what he now proposes is to abolish altogether these powers of preventive binding over and to put nothing in their place.

At least the hon. Member for Oldham, West, facing the suggestion that he was abolishing a protection against undesirable activities, was bold enough to say this: My answer is… that if we repeal it the situation may remain very much the same because the courts have always assumed power, under the common Jaw, to bind over people appearing before them."—[OFFICIAL REPORT, 26th January, 1960; Vol. 616, c. 52.] This is a very much more drastic proposal than was brought forward by the hon. Member's hon. Friend the Member for Oldham, West; much more serious in its consequences. With the old Act alone as his target, the hon. Member for Oldham, West delighted the House with historical references which ranged through the centuries from Pontius Pilate to the French Revolution, from Poitiers and the Black Prince to George Lansbury and Sir Oswald Mosley. At the end, he rebuked us with the comment, "History is not funny". To the hon. Member for Nelson and Colne I would say today that history is not all serious, either. Of course, sometimes we can find, wrapped up in the way things are, that a great constitutional principle is at stake. There was the famous case of the Ship Money, but this desirable vigilance declines into perverse ingenuity when it detects outrage in ordinary convenient practice in the enforcement of the ordinary criminal law.

The phrase "preventive justice" is one which we can make sound very sinister and full of dark portent if we wish to. I ask the House to look at the realities of this matter. For 600 years, England has been the powerhouse of freedom, proclaiming its example all round the world. The English people have lived peaceably with this Act, and with the common law which probably preceded it, and found them practicable, sensible and harmless. Our inheritance of freedoms to which the hon. Member referred has not been just a devotion to the cause of freedom alone, but our talent for combining freedom with order so that freedom survives and does not collapse in anarchy. All are equal before the law only if all equally submit to the law.

Of course, it is true that freedom depends, liberty depends, also, on the certainty of the law. Around this fixity of outline there are channels of freedom remaining open all through our ordinary lives. They can remain open only if they are not abused and exploited constantly by a tiny minority. The "Peeping-Tom"—not mentioned by the hon. Member—the writer of the anonymous letter, the person who uses the telephone or the post to harass people, or who just harasses people personally by following them and pestering them, all these persons raise problems which, after a certain point, cannot be ignored.

Then, we either have to elaborate a code of behaviour in the streets, in the home and garden because a "Peeping-Tom" often operates from there, in the use of the telephone, in the use of the post and in many other fields which now remain open, or else we have to have a mild residual procedure like the one under attack today.

Mr. Marcus Lipton (Brixton)

Mild?

Mr. Bell

I shall come to that.

It is applied only to the unbalanced minority. In reality it is not a penalty, but a mere giving of sureties for good behaviour not counted as a conviction yet raising a right of appeal to a superior court. It could not be less and might easily be much more. If it went it would have to be replaced by an elaborate prescription which the inhabitants of this country would find very tiresome indeed.

Then there is the numerically very large number of people, neighbours or members of the same family, quarrelling with each other to the point where one or more go to complain in the local police court. There were 5,000 in I960, two-thirds of all the people affected by this power. Is it not better for the magistrates to soothe these people down either before or after a trial rather than to find for one against the other on very unsatisfactory evidence and send them back to live with each other? In those cases, where, usually, very little has actually happened, tempers are working up to breaking point. The sensible verdict is, "Not guilty, but do not do it again", which is precisely what recognisances all round amounts to.

If, unhappily, one of the parties objects on principle to this sedative procedure, he can appeal to quarter sessions under the Act we passed in 1956. All this is the very small stuff which makes up the whole bulk of the operation of this power and, of course, no one goes to prison on a fancied question of principle. The contemporary heart of this problem is the political case. George Lansbury was not asked to give sureties of good behaviour because he was a pacifist, but because he was encouraging and inciting the Women's Suffrage Committee to a campaign of militancy which included putting bombs in pillar boxes and pranks of that kind, which the powers of law and order cannot allow.

Mr. S. Silverman

He did nothing of the sort.

Mr. Bell

Now it is the Committee of 100. Some of those who incite to and organise massive breaking of the law take part in the operation themselves and so become liable to direct prosecution. Some may not. I cannot see what sacred principle of liberty requires that they should remain uninhibited in organising the breakdown of law and order from behind the scenes. Nor do I see why, when one of these operations is announced in advance, and mass support is invited for known illegality, it should be necessary for the forces of law and order to stand by powerless until the damage is done.

Mr. S. Silverman

That is what they did.

Mr. Bell

The majority also has some rights. There is ample scope in this country for lawful demonstration and lawful protest. Why object, as the hon. Member did, to the imposition of imprisonment for refusal to be bound over when the offence itself perhaps would be punishable only by a small fine? When small fines are imposed on the members and supporters of the Committee of 100 they do their best to go to prison for non-payment. The last batch gave no names and addresses so that the fines would not be paid by relatives nor recovered by distress on goods, so that (they could be sure of going to prison for non-payment.

Does the hon. Member suggest that punishment by fine should be abolished? These people are going to prison for one reason, and one reason only. They want imprisonment, they want prosecution, they resent fines and they resent binding over, because their object is martyrdom.

Mr. Emrys Hughes (South Ayrshire)

Why give to to them then?

Mr. Bell

I do not want to give it to them. I want to reserve power to make something else possible.

I thought that the hon. Member would expressly disdain any desire to help this campaign of civil disobedience. I thought that the help which he was giving to them would be inadvertent. But apparently that is not the case. By his proposal he is making it easier for them to carry on their activities.

I should like to explain to the House what they are. A year ago The Times reported that Lord Russell had said at a Press conference that the sit-down demonstrations outside the Ministry of Defence were only a dress rehearsal for future, more positive, manifestations of non-violent civil disobedience, adding: Other action we take may be such as the authorities cannot tolerate". The Rev. Michael Scott added that if, by their action, they held up work in establishments like Aldermaston the authorities would not be able to ignore them. Another member of the Committee said to the Press conference: We want to put the Government into such a position"—

Mr. G. A. Pargiter (Southall)

On a point of order. Is this a Ten Minutes Rule Bill?

Mr. Speaker

It is an application pursuant to the Standing Order.

Mr. Bell

I have spoken for nine minutes. The hon. Member for Nelson and Colne spoke for fifteen.

Another member of the Committee said: We want to put the Government into such a position that they either have to gaol thousands of people or abdicate". All sober and responsible people know that civil disobedience as a political manœuvre is fatal to free institutions. They do not want Government and Parliament to abdicate their responsibility for the peace and tranquility of the realm. Even if the hon. Member had a case on the broad merits, which I do not believe he has, even if it were expedient at some time to bring forward a modern Act to replace the old Act, I ask the House not to do it and not to allow it to be done at a time when such an action

could not fail to be construed as abject surrender to the open challenge of civil disobedience. I ask the House to refuse leave for the introduction of the Bill.

Question put, pursuant to Standing Order No. 12 (Motions for leave to bring in Bills and nomination of Select Committees at commencement of Public Business):—

The House divided; Ayes 73, Noes 240.

Division No. 92.] AYES [4.2 p.m.
Abse, Leo Hughes, Emrys (S. Ayrshire) Owen, Will
Allaun, Frank (Salford, E.) Hughes, Hector (Aberdeen, N.) Pargiter, G. A.
Allen, Scholefield (Crewe) Hunter, A. E. Parker, John
Awbery, Stan Hynd, H. (Accrington) Pavitt, Laurence
Baxter, William (Stirlingshire, W.) Jones, Rt. Hn. A. Creech (Wakefield) Plummer, Sir Leslie
Bennett, J. (Glasgow, Bridgeton) Kelley, Richard Probert, Arthur
Bowles, Frank Kenyon, Clifford Rankin, John
Brockway, A. Fenner Lee, Frederick (Newton) Reynolds, G. W.
Brown, Thomas (Ince) Lee, Miss Jennie (Cannock) Robinson, Kenneth (St. Pancras, N.)
Cliffe, Michael Lewis, Arthur (West Ham, N.) Shinwell, Rt. Hon. E.
Cullen, Mrs. Alice Lipton, Marcus Silverman, Sydney (Nelson)
Davies, Harold (Leek) Loughlin, Charles Slater, Mrs. Harriet (Stoke, N.)
Ede, Rt. Hon. C. McKay, John (Wallsend) Smith, Ellis (Stoke, S.)
Edwards, Robert (Bilston) Mackie, John (Enfield, East) Snow, Julian
Evans, Albert Mallalieu, J. P. W. (Huddersfield, E.) Sorensen, R. W.
Finch, Harold Marsh, Richard Stonehouse, John
Foot, Dingle (Ipswich) Mellish, R. J. Stones, William
Forman, J. C. Milne, Edward Stross, Dr. Barnett (Stoke-on-Trent, C.)
Gourlay, Harry Mitchison, G. R. Swingler, Stephen
Griffiths, David (Rother Valley) Monslow, Walter Taylor, Bernard (Mansfield)
Hall, Rt. Hn. Glenvil (Colne Valley) Morris, John Warbey, William
Hamilton, William (West Fife) Mulley, Frederick Wilkins, W. A.
Hart, Mrs. Judith Noel-Baker, Rt. Hn. Philip (Derby, S.) Williams, LI. (Abertillery)
Holt, Arthur Oram, A. E.
Howell, Denis (Small Heath) Oswald, Thomas TELLERS FOR THE AYES:
Mr. Hale and Mr. M. Foot.
NOES
Agnew, Sir Peter Churchill, Rt. Hon. Sir Winston Fraser, Ian (Plymouth, Sutton)
Aitken, W. T. Clark, Henry (Antrim, N.) Galbraith, Hon. T. G. D.
Allason, James Clark, William (Nottingham, S.) Gammans, Lady
Arbuthnot, John Clarke, Brig. Terence (Portsmth, W.) Gibson-Watt, David
Barber, Anthony Cleaver, Leonard Gilmour, Sir John
Barlow, Sir John Cole, Norman Glover, Sir Douglas
Barter, John Collard, Richard Glyn, Dr. Alan (Clapham)
Batsford, Brian Cordeaux, Lt.-Col. J. K. Glyn, Sir Richard (Dorset, N.)
Bevins, Rt. Hon Reginald Costain, A. P. Godber, J. B.
Biffen, John Coulson, Michael Goodhart, Philip
Biggs-Davison, John Courtney, Cdr, Anthony Gower, Raymond
Bishop, F. P. Craddock, Sir Beresford Grant-Ferris, Wg. Cdr. R.
Black, Sir Cyril Crosthwaite-Eyre, Col. Sir Oliver Green, Alan
Bossom, Clive Cunningham, Knox Gurden, Harold
Bourne-Arton, A. Curran, Charles Hamilton, Michael (Wellingborough)
Boyd-Carpenter, Rt. Hon. J. Dalkeith, Earl of Harris, Frederic (Croydon, N. W.)
Boyle, Sir Edward Dance, James Harris, Reader (Heston)
Braine, Edward d'Avigdor-Goldsmid, Sir Henry Harrison, Brian (Maldon)
Brewis, John de Ferrantl, Basil Harrison, Col. Sir Harwood (Eye)
Brooke, Rt. Hon. Henry Digby, Simon Wingfield Harvey, Sir Arthur Vere (Macclesf'd)
Brooman-White, R. Donaldson, Cmdr. C. E. M. Hastings, Stephen
Brown, Alan (Tottenham) Drayson, G. B. Hay, John
Browne, Percy (Torrington) Duncan, Sir James Heald, Rt. Hon. Sir Lionel
Bryan, Paul Eccles, Rt. Hon. Sir David Hendry, Forbes
Bullard, Denys Eden, John Hiley, Joseph
Bullus, Wing Commander Eric Elliot, Capt. Walter (Carshalton) Hill, Dr. Rt. Hon. Charles (Luton)
Burden, F. A. Elliott, R. W. (Nwcastle-upon-Tyne, N.) Hill, Mrs. Eveline (Wythenshawe)
Butcher, Sir Herbert Emmett, Hon. Mrs. Evelyn Hill, J. E. B. (S. Norfolk)
Campbell, Gordon (Moray & Nairn) Errington, Sir Eric Hirst, Geoffrey
Carr, Compton (Barons Court) Erroll, Rt. Hon. F. J. Hobson, John
Carr, Robert (Mitcham) Farey-Jones, F. W. Hocking, Philip N.
Cary, Sir Robert Farr, John Holland, Philip
Channon, H. P. G. Finlay, Graeme Hollingworth, John
Chataway, Christopher Fisher, Nigel Hope, Rt. Hon. Lord John
Chichester-Clark, R. Fletcher-Cooke, Charles Hopkins, Alan
Hornby, R. P. Mathew, Robert (Honiton) Smith, Dudley (Br'ntf'd & Chiswick)
Hughes-Young, Michael Matthews, Gordon (Meriden) Smithers, Peter
Hulbert, Sir Norman Mawby, Ray Smyth, Brig Sir John (Norwood)
Hutchison, Michael Clark Maxwell-Hyslop, R. J. Spearman, Sir Alexander
Irvine, Bryant Godman (Rye) Maydon, Lt.-Comdr. S. L. C. Stanley, Hon. Richard
James, David Mills, Stratton Stodart, J. A.
Jenkins, Robert (Dulwich) Moore, Sir Thomas (Ayr) Stoddart-Scott, Col. Sir Malcolm
Jennings, J. C. More, Jasper (Ludlow) Storey, Sir Samuel
Johnson, Dr. Donald (Carlisle) Morgan, William Studholme, Sir Henry
Johnson, Eric (Blackley) Morrison, John Talbot, John E.
Johnson Smith, Geoffrey Nabarro, Gerald Taylor, Sir Charles (Eastbourne)
Kerby, Capt. Henry Nicholson, Sir Godfrey Taylor, Edwin (Bolton, E.)
Kerr, Sir Hamilton Nugent, Rt. Hon. Sir Richard Taylor, Frank (M'ch'st'r, Moss Side)
Kershaw, Anthony Oakshott, Sir Hendrie Teeling, Sir William
Kimball, Marcus Orr-Ewing, C. Ian Temple, John M.
Kirk, Peter Page, John (Harrow, West) Thomas, Leslie (Canterbury)
Lagden, Godfrey Pannell, Norman (Kirkdale) Thomas, Peter (Conway)
Lancaster, Col. C. G. Pearson, Frank (Clitheroe) Thompson, Kenneth (Walton)
Leather, E. H. C. Peel, John Thompson, Richard (Croydon, S.)
Leavey, J. A. Peyton, John Thornton, Kemsley, Sir Colin
Leburn, Gilmour Pickthorn, Sir Kenneth Touche, Rt. Hon. Sir Gordon
Legge-Bourke, Sir Harry Pike, Miss Mervyn Turner, Colin
Lewis, Kenneth (Rutland) Pilkington, Sir Richard Turton, Rt. Hon. R. H.
Lilley, F. J. P. Pitt, Miss Edith Tweedsmuir, Lady
Lindsay, Sir Martin Pott, Percivall Van Straubenzee, W. R.
Linstead, Sir Hugh Price, David (Eastleigh) Vaughan-Morgan, Rt. Hon. Sir John
Litchfield, Capt. John Prior, J. M. L. Vickers, Miss Joan
Lloyd, Rt. Hn. Geoffrey (Sut'nC'dfield) Proudfoot, Wilfred Vosper, Rt. Hon. Dennis
Longbottom, Charles Pym, Francis Wakefield, Edward (Derbyshire, W.)
Loveys, Walter H. Ramsden, James Wakefield, Sir Wavell (St. M'lebone)
Lucas-Tooth, Sir Hugh Rawlinson, Peter Walker, Peter
MacArthur, Ian Redmayne, Rt. Hon. Martin Wall, Patrick
McLaren, Martin Rees, Hugh Ward, Dame Irene
McLaughlin, Mrs. Patricia Renton, David Webster, David
Maclay, Rt. Hon. John Ridley, Hon. Nicholas Wells, John (Maidstone)
Maclean, SirFitzroy (Bute&N. Ayrs.) Ridsdale, Julian Whitelaw, William
MacLeod, Rt. Hn. Iain (Enfield, W.) Rippon, Geoffrey Wills, Sir Gerald (Bridgwater)
McMaster, Stanley R. Robson Brown, Sir William Wilson, Geoffrey (Truro)
Macpherson, Niall (Dumfries) Roots, William Wolrige-Gordon, Patrick
Maddan, Martin Ropner, Col. Sir Leonard Woodhouse, C. M.
Maginnis, John E. Royle, Anthony (Richmond, Surrey) Woodnutt, Mark
Maitland, Sir John Russell, Ronald Woollam, John
Markham, Major Sir Frank Scott-Hopkins, James Worsley, Marcus
Marples, Rt. Hon. Ernest Seymour, Leslie
Marshall, Douglas Sharples, Richard TELLERS FOR THE NOES:
Marten, Neil Shaw, M. Mr. Ronald Bell and
Mr. Graham Page.