HC Deb 09 June 1969 vol 784 cc1126-37
Mr. Elystan Morgan

I beg to move, Amendment No. 52, in page 12, line 38, after 'decided', insert: 'whether and to what extent he exercises any power to give directions conferred on him by virtue of the preceding provisions of this subsection and to decide'. This Amendment restores the words which were deleted in Committee by Amendment No. 87. Before dealing with the merits of the matter it may be useful to state briefly the reasons why in this particular the Government have come to the conclusion that the right course is simply to put back the words taken out by the Standing Committee.

The words in question which it is proposed to restore make it, in my submission, very clear that it is for the supervisor to decide whether, when, and in what way he exercises his power to give directions under the supervision order. That Amendment—I am sure I carry hon. Gentlemen opposite with me in this—does not achieve its object of removing this discretion from the supervisor, but has only the effect of creating a very substantial ambiguity. Under Clause 12(2), as amended, the supervisor still has this discretion, but the narrower reference at the end of the subsection, to its being for him to decide the form of any directions, is, in my submission, confusing and might lead to argument as to what else he may decide. His substantial power is already set out at the beginning of Clause 12, and that was not removed by that Amendment. Thus the subsection, clearly, could not be left in its present form.

As a result of the debate in the Standing Committee the Opposition came to see that had their Amendment succeeded in removing from the supervisor discretion to decide anything but the form of the directions it would have gone too far. They eventually accepted that the supervisor must have some discretion as to the precise nature and timing of his directions, and that there was also sense in leaving him some discretion whether to require residence or participation for all the days authorised by the court or for a lesser number of days.

It is right to explain to the House why the Government were not really in a minority, even temporarily, when the Amendment was carried. A Government Member of the Committee was sitting at the time in another Committee—in the Grand Committee Room. When the Division was called he ran with very great speed up to the Committee Floor and only just failed to make his vote in time.

Mr. Carlisle

If the hon. Gentleman is going to make that point he should also remind us that at another meeting of the Committee he himself deliberately had to filibuster his own Bill until he could get his supporters there, and that he had to do that to avoid a vote when he was clearly in a minority.

Mr. Morgan

It is really a matter of opinion whether I was speaking at my natural rate and in my own pettifogging way, or whether I was filibustering; it is a matter on which the hon. Gentleman and I might not agree, but on this occasion it was clear that the absence of my hon. Friend was purely fortuitous. He wished to vote on the Amendment, but owing to a misunderstanding—

Mr. Deputy Speaker

Order. I do not think the Minister should pursue this matter too far. We are not discussing the Committee proceedings but the powers given by the court.

Mr. Morgan

I certainly accept your Ruling, Mr. Deputy Speaker, but I merely put it to the House that but for this contretemps there would have been a tied vote, and no doubt the wording of the Bill as introduced would have been preserved by the Chairman's casting vote to enable the issue to be further considered by the House. The Government Amendment to restore the words in question ensures that the House is not deprived of that opportunity.

At the end of the debate in Committee it seemed that what mainly worried the Opposition was the possibility that the supervisor would be able entirely to disregard the powers given to him by the court and issue no directions at all. The hon. Member for Chelsea (Mr. Worsley) and his hon. Friend the Member for Runcorn (Mr. Carlisle) contemplated the possibility of an extreme case in which the supervisor, imme- diately after the court proceedings, would say that he would not give any directions at all. I concede that that is a theoretical possibility, but the argument rests upon the unlikely supposition that there would ever be such a supervisor, and upon the proposition that the supervisor, whether a local authority or a probation officer, cannot be trusted to act responsibly, and I am sure that the picture the House has of supervisors and probation officers is not one that is in line with such a contention.

The boundaries within which the supervisor exercises his responsibility are set by the terms of the supervision order. Within those boundaries it is right that the supervisor should be regarded as a responsible person whose judgment as to the way in which he deals with a supervised person can and should be trusted. No responsible supervisor would simply disregard the wishes of the court and, before he had had an opportunity of gaining a closer knowledge of the child and his problems, announce his intention of giving no directions whatsoever. If there were any genuine grounds for thinking that local authorities and probation officers would behave in this irresponsible fashion, the whole basis of the supervision provisions of the Bill would be completely undermined, and this could not be cured by the amendment of one subsection of Clause 12.

For that reason, the Government, having considered this matter, came to this choice. Are we to retain the existing system, under which the courts make orders which are immediately enforceable and which cannot subsequently be varied except by the court itself, or are we, on the other hand, to have the system proposed by the Bill, under which the supervisor has discretion to decide what is best for the child within the limits of the authority given to him by the court? There is no practicable half-way house between those two, and if, as the Government believe, we are to have the second system, the supervisor must be given clear discretion, and must be trusted to exercise that discretion in a responsible way. The Government cannot, therefore, accept the Amendment, which rests on the implicit premise that such a trust would be misplaced.

Mr. Worsley

I find myself in some difficulty on this Amendment. To begin with, whereas the Under-Secretary went into considerable detail of the exact position in this Palace of his hon. Friend. I am unfortunately ruled out of order in discussing this. The question was debated on its merits in Committee and on its merits was decided, and I regret that the Government have come back to the House attempting to put these words back into the Bill. Perhaps we had a bit of luck, but we put down the Amendment on its merits, and we still believe that the Government are giving an extraordinary width of discretion to supervisors which cannot be justified.

It may be that the result of this Amendment will mean that other Amendments to the Clause will be necessary. But that is for the Government to do. The Government had a clear choice. Either they tidied up the Bill and followed the express desire of the Standing Committee, or they tried to do what they have done and put back this very wide discretion.

Like my hon. Friends, I feel that when a new structure of this sort is set up, it sould he one which does not bear the ridiculous possibilities that this con-

struction of words does. It is absurd to allow a supervisor wholly to ignore the decision of the court, and the hon. Gentleman accepts that that would be the case. He says that it is only a theoretical possibility and that such a supervisor is an unlikely person. Nevertheless, when a structure is set up, why not make it one which gives only a reasonable degree of flexibility, and not such a wide one?

We do not seek to leave no flexibility. We appreciate that a supervisor needs a degree of flexibility. But it derogates from the authority of the court if, when it makes a decision to put a young person under supervision, at the end of the day the supervisor can either ignore or radically modify the court's decision. This goes too far, and therefore we invite the House to follow the Standing Committee in this case and continue to leave out these words on the ground that they give far too wide a discretion to the supervisor.

Question put, That the Amendment be made:—

The House divided: Ayes 145. Noes 100.

Division No. 237.] AYES [12.14 am
Alldritt, Walter Evans, Fred (Caerphilly) Mackenzie, Cregor (Rutherglen)
Anderson, Donald Evans, Ioan L. (Birm'h'm, Yardley) Maclennan, Robert
Ashton, Joe (Bassetlaw) Fernyhough, E. MacMillan, Malcolm (Western Isles)
Atkins, Ronald (Preston, N.) Fitch, Alan (Wiggn) McMillan, Tom (Glasgow, C.)
Atkinson, Norman (Tottenham) Fletcher, Ted (Darlington) McNamara, J. Kevin
Bagier, Gordon A. T. Fowler, Gerry Mahon, Peter (Preston, S.)
Barnett, Joel Fraser, John (Norwood) Mallalieu, E. L. (Brigg)
Bidwell, Sydney Freeson, Reginald Mallalieu, J. P. W. (Huddersfield, E.)
Binns, John Gregory, Arnold Manuel, Archie
Booth, Albert Griffiths, Eddie (Brightside) Marks, Kenneth
Bray, Dr. Jeremy Hamilton, James (Bothwell) Mellish, Rt. Hn. Robert
Brooks, Edwin Hamling, William Mendelson, John
Broughton, Dr. A. D. D. Harrison, Walter (Wakefield) Millan, Bruce
Brown, Hugh D. (G'gow, Provan) Haseldine, Norman Milne, Edward (Blyth)
Brown, Bob (N'c'tle-upon-Tyne, W.) Herbison, Rt. Hn. Margaret Mitchell, R. C. (S'tn'pton, Test)
Brown, R. W. (Shoreditch & F'bury) Houghton, Rt. Hn. Douglas Molloy, William
Buchan, Norman Howell, Denis (Small Heath) Morgan, Elystan (Cardiganshire)
Buchanan, Richard (G'gow, Sp'burn) Howie, W. Morris, Alfred (Wythenehawe)
Callaghan, Rt. Hn. James Hoy, James Morris, Charles R. (Openshaw)
Carmichael, Neil Huckfield, Leslie Moyle, Roland
Coe, Denis Hughes, Roy (Newport) Newens, Stan
Coleman, Donald Hynd, John Ogden, Eric
Concannon, J. D. Jackson, Colin (B'h'se & Spenb'gh) Oram, Albert E.
Conlan, Bernard Jackson, Peter M. (High Peak) Orbach, Maurice
Crawshaw, Richard Johnson, James (K'ston-on-Hull, W.) Orme, Stanley
Dalyell, Tam Jones, T. Alec (Rhondda, West) Oswald, Thomas
Davidson, Arthur (Accrington) Kenyon, Clifford Palmer, Arthur
Davies, Dr. Ernest (Stratford) Lawson, George Parkyn, Brian (Bedford)
Davies, Ifor (Cower) Leadbitter, Ted Pavitt, Laurence
Dell, Edmund Lipton, Marcus Peart, Rt. Hn. Fred
Dempsey, James Loughlin, Charles Pentland, Norman
Diamond, Rt. Hn. John Luard, Evan Perry, Ernest G. (Battersea, S.)
Dobson, Ray Lyon, Alexander W. (York) Prentice, Rt. Hn. R. E.
Dunnett, Jack Lyons, Edward (Bradford, E.) Price, Christopher (Perry Barr)
Dunwoody, Dr. John (F'th & C'b'e) Mabon, Dr. J. Dickson Probert, Arthur
Eadie, Alex McBride, Neil Rees, Merlyn
Edwards, William (Merioneth) McCann, John Roberts, Albert (Normanton)
Ellis, John McGuirc, Michael Roberts, Gwilym (Bedfordshire, S.)
English, Michael Mackenzie, Alasdair (Ross & Crom'ty) Rodgers, William (Stockton)
Roebuck, Roy Taverne, Dick Watkins, Tudor (Brecon & Radnor)
Ross, Rt. Hn. William Thomas, Rt. Hn. George Wellbeloved, James
Rowlands, E. Thomson, Rt. Hn. George Whitlock, William
Ryan, John Tinn, James Williams, Alan Lee (Hornchurch)
Shaw, Arnold (Ilford, S.) Tuck, Raphael Wilson, William (Coventry, S.)
Sheldon, Robert Varley, Eric G. Woof, Robert
Short, Mrs. Renée (W'hampton, N. E.) Wainwright, Edwin (Dearne Valley)
Silkin, Rt. Hn. John (Deptford) Wainwright, Richard (Colne Valley) TELLERS FOR THE AYES:
Silverman, Julius Walker, Harold (Doncaster) Mr. Ernest Armstrong and
Slater, Joseph Wallace, George Mr. Joseph Harper.
Spriggs, Leslie Watkins, David (Consett)
Astor, John Harrison, Brian (Maldon) Pounder, Rafton
Atkins, Humphrey (M't'n & M'd'n) Harrison, Col. Sir Harwood (Eye) Prior, J. M. L.
Balniel, Lord Hastings, Stephen Pym, Francis
Bennett, Dr. Reginald (Gos. & Fhm) Hill, J. E. B. Ramsden, Rt. Hn. James
Berry, Hn. Anthony Holland, Philip Rees-Davies, W. R.
Biffen, John Hordem, Peter Rhys Williams, Sir Brandon
Biggs-Davison, John Hornby, Richard Ridley, Hn. Nicholas
Black, Sir Cyril Howell, David (Guildford) Rossi, Hugh (Hornsey)
Boardman, Tom (Leicester, S. W.) Hunt, John Russell, Sir Ronald
Boyle, Rt. Hn. Sir Edward Iremonger, T. L. Sharples, Richard
Brinton, Sir Tatton Jenkin, Patrick (Woodford) Shaw, Michael (Sc'b'gh & Whitby)
Brown, Sir Edward (Bath) Jopling, Michael Silvester, Frederick
Buck, Antony (Colchester) King, Evelyn (Dorset, S.) Sinclair, Sir George
Burden, F. A. Knight, Mrs. Jill
Campbell, B. (Oldham, W.) Lane, David Smith, John (London & W'minster)
Campbell, Gordon (Moray & Nairn) Legge-Bourke, Sir Harry Speed, Keith
Carlisle, Mark Longden, Gilbert Stainton, Keith
Clark, Henry MacArthur, Ian Stoddart-Scott, Col. Sir M.
Clegg, Walter McNair-Wilson, Michael Taylor, Frank (Moss Side)
Cunningham, Sir Knox McNair-Wilson, Patrick (New Forest) Temple, john M.
Dance, James Marten, Neil Turton, Rt. Hn. R. H.
Deedes, Rt. Hn. W. F. (Ashford) Maude, Angus Vaughan-Morgan, Rt. Hn. Sir John
Elliot, Capt. Walter (Carshalton) Mawby, Ray Waddington, David
Elliott, R. W. (N'c'tle-upon-Tyne, N.) Miscampbell, Norman Walker, Peter (Worcester)
Eyre, Reginald Monro, Hector Walters, Dennis
Fortescue, Tim Montgomery, Fergus Ward, Dame Irene
Glover, Sir Douglas More, Jasper Whitelaw, Rt. Hn. William
Gower, Raymond Morrison, Charles (Devizes) Wiggin, A. W.
Grant, Anthony Munro-Lueas-Tooth, Sir Hugh Wilson, Geoffrey (Truro)
Grant-Ferris, R. Murton, Oscar Woodnutt, Mark
Grieve, Percy Noble, Rt. Hn. Michael Worsley, Marcus
Griffiths, Eldon (Bury St. Edmunds) Onslow, Craoley
Hall, John (Wycombe) Page, Graham (Crosby) TELLERS FOR THE NOES:
Hamilton, Lord (Fermanagh) Percival, Ian Mr. Timothy Kitson and
Hamilton, Michael (Salisbury) Pink, R. Bonner Mr. Bernard Weatherill.
Mr. Miscampbell

I beg to move Amendment No. 53, in page 13, line 14, at end insert: 'save that the period so specified shall begin forthwith if the court so orders'. The Amendment follows the previous one in dealing with the requirements of the supervision order. In this case it is much more limited. The supervisor decides the form of any directions which he wishes to give. The Amendment recognises that he is left with the freedom to decide how the directions and orders of the court are to be carried out but fetters him and prevents the possibility of his ignoring the court's wishes.

The Clause sets out the provisions which the supervisor may use to control the supervised person. Subsection (2)(a) allows the supervisor to send the person supervised to detention for 30 days. Subsection (2)(b)(ii) is the junior attendance centre provision. Subsection (2)(b)(iii) is the requirement for community work. The supervisor may use all these new and valuable provisions in his supervisory work.

It is apparent from the Clause that the supervisor can, if he wishes, ignore the court's desire that the supervision order should commence immediately. Though we believe that the supervisor should be given flexibility, we think that the court, if it has so decided, should be able to say that the order should commence immediately after it is made. We seek no more than that in this Amendment.

I believe there are two good reasons why this should be done. In the first place, it gives the power to the court, after it has made a full investigation of the case and all the circumstances, to say that it is important in this case that supervision should start immediately. This means that the consequences of the misdoing will follow immediately and not be delayed possibly for many months as would be possible under this Clause. Delay in these circumstances could blunt the impact on the person on whose behalf the supervision order is being made.

Lastly, we believe that there is a real fear that the relationship with the supervisor may be prejudiced if too much discretion is left in his hands. If the supervisor has to make up his mind whether or not the directions of the court are to be carried out immediately, and it is known to the person to be supervised that the supervisor has got that discretion, it is inevitable that pressure and pleas will be put to him, and that there will he delay.

The very fact that the supervisor has got to make that decision, and can be seen to make that decision, will, I believe, make the relationship between the supervisor and the supervised a difficult one.

Mr. Elystan Morgan

The hon. Member for Blackpool, North (Mr. Miscampbell) said that it would be ideal if the order could take effect immediately after the misdoing. I hope he will have the patience to wait for the person to be taken before the court in the first instance. I hope that is a formality which he will concede. But I think, with respect, that the movers of this Amendment have tended to think of a supervision order as being nothing more than a carbon copy of the present detention centre order, and that is a very great fallacy.

It is true that a detention centre order made under the present law takes effect at once. The young person is taken to the detention centre straight from the court, no matter what his circumstances may be. This is part of the sharp, salutary lesson which a detention centre order is meant to give to him. In the Government's view this is not an appropriate way of dealing with young people who do not need to be removed from home for a long period. It is particularly inappropriate in the case of schoolchildren whose education may be suddenly interrupted, perhaps at a vital time, with long-term results quite disproportionate to the offence which they committed. Moreover, there is a practical difficulty. If the court is to be in a position to order that the period shall commence forthwith, and the young person is to be taken to the place direct from the court, the court would have, in practice, to select the place, unless it is to be left to the supervisor in the course of a couple of hours or so to find the most suitable place.

The Government remain of the opinion that the best method of dealing with this question is to give the supervisor discretion. If the information before the court has shown that the period of residence ought to start very soon, there is no reason to think that the supervisor would not arrange accordingly. Summary removal, however, to any place where an immediate vacancy can be found, and without the parents and the child having time to collect their wits, or the child his belongings, would be alien to the aims of a supervision order. It is unconstructive, and may be damaging.

If the period of residence is to do any real good, time should be allowed for the necessary preparations. These are likely to take at least a day or two even if everyone agrees that the period of residence ought to start as soon as possible.

12.30 a.m.

Mr. Worsley

If the hon. Gentleman had been speaking to another Amendment he would have made an absolutely unanswerable case. He has been speaking to the Amendment as if it did not have at the end of it the five words if the court so orders. He has been speaking as if there was no discretion to the court whether or not it made the period run straight away. But this is not the Amendment which is before the House. The Amendment seeks to give the court the power, if it so wishes, to make the period run forthwith.

The hon. Gentleman surely made the case for us when he said that in the case of the detention centre at present the period does begin straight away. Surely he will accept that there will be cases in future which will be strictly parallel to the case of the detention centre today, when it will be necessary for the young person to be taken direct from the court. Therefore, it would be in the interests of the proper working of supervision orders in those cases if the court had the power when it so wished to make this order.

The hon. Gentleman has not made a case against our Amendment but against another Amendment which we have not put down. Our Amendment seeks to give the court the discretion, the flexibility—a word which is so often used but so rarely put into effect—to decide whether the period should run forthwith. Therefore, on reflection, does not the hon. Gentleman think that it would be reasonable, if a court felt that the order should come into operation at once, that it should have the power so to declare?

Amendment negatived.

Mr. Elystan Morgan

I beg to move Amendment No. 56, in page 14, line 15, leave out 'but such'.

Mr. Speaker

With this Amendment can be taken Amendments No. 57 and No. 59.

Mr. Morgan

Subsection (4) of Clause 16 enables the court to include in a supervision order a requirement that the supervised person shall submit to treatment for a mental condition. This provision is similar to the existing law on probation orders and supervision orders.

The probation law, which is contained in Section 4 of the Criminal Justices Act, 1948, provides that a court shall not make a probation order containing such a requirement unless it is satisfied that arrangements have been made for the treatment intended to be specified in the order, and, if the offender is to be treated as a resident patient, for his reception. The present law on supervision orders does not contain such a provision.

It is highly desirable that courts should satisfy themselves about the arrangements for treatment, and for reception in the case of a resident patient, before including a mental treatment requirement in a supervision order. The second Amendment so provides, and is in similar terms to the provision in Section 4 of the Criminal Justice Act, 1948. The first and third Amendments—that is, Amendments 56 and 59—are consequential drafting Amendments.

Amendment agreed to.

Further Amendment made: No. 57, in page 14, line 16, after 'order', insert: 'in pursuance of the preceding subsection—

  1. (a) in any case unless the court is satisfied that arrangements have been or can be made for the treatment in question and, in 1136 the case of treatment as a resident patient, for the reception of the patient;
  2. (b) in the case of an order made or'.—[Mr. Elysian Morgan.]

Mr. Callaghan

I beg to move Amendment No. 58, in page 14, line 16, leave out 'young person' and insert: 'person who has attained the age of fourteen'.

Mr. Speaker

With this Amendment can be taken Amendment No. 68.

Mr. Callaghan

These are technical Amendments. Their object is to preserve the existing law. In both places, namely in Clause 12(4) and Clause 16(5), the Bill requires the consent of the person supervised, if he is a young person, to the provision of a supervision order dealing with submission to treatment for a mental condition, but the existing law requires consent where the person has attained the age of 14. We do not wish to alter that, and therefore we wish to insert the age of 14 in order to maintain the existing law.

A mendtnent agreed to.

Further Amendment made: No. 59, in page 14, line 17, after 'and', insert 'a requirement so included'.—[Mr. Elystan Morgan.]

Mr. Deedes

I beg to move Amendment No. 60, in page 14, line 18, at end insert: (5) Where an order is made under subsection (4) of this section an application to a mental health review tribunal may be made in respect of the supervised person, either by the supervised person or by his nearest relative, as if a hospital order or guardianship order had been made in respect of him for the purposes of subsection (4) of section 63 of the Mental Health Act 1959. This is a mental health point. I think the Amendment is reasonably self-explanatory. As the Under-Secretary has pointed out, subsection (4) enables the court to specify mental treatment for a supervised person up to 18. Under paragraph (c) this may include a hospital or mental nursing home under the Mental Health Act, 1959. The British Medical Association is concerned as to whether a person so confined will have the benefit of the review procedure established by the Mental Health Act, 1959. This Amendment would safeguard that point. Perhaps the Under-Secretary can give us the assurance we seek, or accept the Amendment.

Mr. Elystan Morgan

This Amendment would enable an application to be made to a mental health review tribunal by a supervised person, or his nearest relative, where a supervision order contains a requirement that the child or young person shall submit to treatment for a mental condition. Such a requirement cannot be included in an order unless the supervised person is under 14 or he consents. The provision in subsection (4) is exactly the same as the present provisions in Section 4 of the Criminal Justice Act, 1948, on probation orders and in the First Schedule to the Children and Young Persons Act, 1963, in relation to supervision orders. No right to apply to a mental health review tribunal has been found necessary in relation to these provisions.

There is nothing to prevent a child or young person from walking out of the hospital or mental nursing home or failing to attend the out-patient clinic. If he does so he cannot be apprehended and taken back as in the case of a hospital order. Parental rights are not overridden, as in the case of a guardianship order. All that can happen, as in the case of failure to comply with any other requirement in a supervision order, is that a supervises can again take the child or young person before the court. The court could then make a care order, but it is unlikely to do so to enforce treatment for a mental condition on an unwilling child, bearing in mind that before inserting such a requirement in a supervision order the court has to be satisfied that his mental condition is not such as to warrant his detention under a hospital order.

I therefore ask the right hon. Gentleman and his hon. Friends to consider that this Amendment is not necessary and not to press it.

Mr. Deedes

In view of that explanation, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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