HC Deb 15 October 1969 vol 788 cc413-57

Lords Amendment No. 1: In page 1, line 19, at end insert: (aa) it is probable that the condition set out in the preceding paragraph will be satisfied in his case, having regard to the fact that the court or another court has found that that condition is or was satisfied in the case of another child or young person who is or was a member of the household to which he belongs; or

3.50 p.m.

The Secretary of State for the Home Department (Mr. James Callaghan)

I beg to move, That this House doth agree with the Lords in the said Amendment.

Mr. Speaker

It may assist the House if I suggest, as it has been put to me, that we take with this Amendment Lords Amendments Nos. 6, 7, 9, 16, 29, 30, 31, 32, 73, 94 and 97, all of which are linked. If there is no objection, that is what we shall do.

Mr. Callaghan

The Amendments deal with the point which has been put to us by some children's officers and others and is, in my view and that of another place, a very valuable addition to the Bill.

The law provides that where a child or young person who is a member of the same household as another child or young person against whom an offence has been committed, in relation to sexual offences paragraph (b) of Clause 1(2) covers the position. For example, if a sexual offence is committed against one girl in a household, another girl in the same household may be exposed to the same thing. But there is a gap. If one child has been ill-treated, it does not follow that other children in the house come within paragraph (a). We think that most would have done so, but there are situations where the treatment of one child is such that the risk to other children of the household is so great that it ought to be possible for the court to make an order in respect of them. The most vivid cases which come to mind are those which have become known as the "battered baby" cases where, if the parents are psychopathic, or one of them is, between long periods of relatively kind treatment there can be outbreaks, with one child suffering, and the same might happen to another child who might be injured or might even die.

The object of the new paragraph is to give the court power to make an order in such a case as a preventive measure. I believe that it would be possible to argue that these cases would mostly be caught, but we must make quite sure. That is why we accept the Amendment.

The other Amendments are consequential or are to ensure consistency of drafting.

Mr. Mark Carlisle (Runcorn)

We on this side of the House welcome the Amendment which was moved in another place. It is an important one. It brings the Bill into line with what is in existence in the present law on this matter. In principle, certainly it is right that courts should have the power, as a preventive measure, to take into care children of a family where it is believed that, as a result of the behaviour of the parents towards other children, they may themselves be in danger.

I want to express one matter of concern about the Amendment as it stands, and it relates to the next two Amendments with which I understand the House will be asked to disagree. Before the proposed Government Amendment could be invoked—in other words, before a sister or brother of the "battered baby" could be taken into care—one would first have to show that one member of the family was being ill-treated and that, as a result, he was in need of care and control. One would then have to show that another member of the family, although not at that time being ill treated, might be in the future. One would also have to show that he also was in need of care and control at that moment if the dual burden is to apply.

That puts a difficulty on the court. It is being asked to say that because child A has been ill-treated, it should say that there is a probability that that child may be ill-treated in the future and, therefore, should be taken into care. Any court can understand that. However, it will also have to be proved that child B is in need of care and control at that moment. If that child is being well looked after at that moment, it may be difficult to prove that there is any need for care and control.

I appreciate that it is too late in the passage of the Bill to consider any possible further Amendment, but I urge upon the right hon. Gentleman that it may be a difficult matter when it comes to interpret what are clearly intended to be useful preventive measures in this Amendment.

Question put and agreed to.

Lords Amendment No. 2: In page 2, line 2, leave out from beginning to "then" in line 4.

The Under-Secretary of State for the Home Department (Mr. Elystan Morgan)

I beg to move, That this House doth disagree with the Lords in the said Amendment.

Mr. Speaker

With this Amendment, I suggest that we take Lords Amendment No. 3, with which the Government also propose to disagree.

Mr. Elystan Morgan

This is the third time that these Amendments have been discussed in this House. Amendments in almost identical terms were moved in Standing Committee on 25th March and, as hon. Gentlemen opposite will remember, were negatived after a full morning's discussion. An Amendment in identical terms to the first Lords Amendment was then moved on Report on 9th June and again negatived on a vote after a very full debate.

The debate on the Amendments in another place followed very similar lines to that in this House, and no new arguments were advanced in favour of them. Therefore, the position remains that these Amendments are totally inconsistent with one of the basic principles of the two Bills. It is on that ground that the Government invite the House to disagree with them.

I have not such faith in my own advocacy as to believe that any hon. Members holding strong views on this matter will change them in the course of the debate. Nevertheless, although a lengthy debate is not called for, we all recognise that this is the most major point at issue that has arisen in the whole Bill. It is a case which has been pleaded with great sincerity on both sides. As I have suggested, the Government contend that to allow the Amendments would tear a rent in the whole fabric of the Bill.

The overwhelming force of the Government's reason for saying that these Amendments threaten the basic principle behind Part I of the Bill is proven by stressing an examination of this prinicple from three different standpoints. The first is that the words in question represent a statutory formulation of the aim of dealing with children in trouble outside the courts, so far as that is possible. Nearly all speakers in both Houses have claimed to support that aim.

This has been championed from the very first by the Magistrates' Association which, in its memorandum of 7th March of this year, said: We share the desire to keep children out of court as far as possible and to involve their parents in responsibility for their future good behaviour". On Report, the right hon. and learned Member for St. Marylebone (Mr. Hogg) said: Of course, no one on either side is saying that children ought to be prosecuted every time they commit offences. There is common ground between both sides on this".—[OFFICIAL REPORT, 9th June, 1969; Vol. 784, c. 1041.] Some people have used arguments implying that justice is not done or, at any rate, is not seen to be done unless it is done by a court of law. Obviously, such arguments, if carried to their logical conclusion, would mean all children in trouble or all children alleged to have broken the law being taken before a court. That would be totally at odds with the fundamental principles of the Bill. It is ironical that leading members of the party opposite who claim to support the aims of the Bill, although they disagree with the means by which it seeks to achieve them, are arguing in favour of a provision which clearly reflects an aim which is contrary to that of the Bill.

4.0 p.m.

As amended in the other place, Clause 1 sets out a comprehensive list of the different kinds of trouble into which a child can fall and clearly implies that every child who is thought to come within one of those six paragraphs should be brought before the juvenile court by the police, the local authority or, where appropriate, an authorised person, so that that court can decide what, if anything, needs to be done. The Clause, as so amended, would make it easier to bring a child before the court than has ever before been the case this century—easier than it was under the Children's Act of 1908, the Act of 1933 or the Children and Young Persons Act of 1963, and far easier than under this Bill in the state that it was in when it left this House.

The amended Clause will also make it easier to take a juvenile offender to court for care proceedings than it would be to prosecute a young person under Clause 3. I am sure that everyone would agree that that would be a monstrous thing to do. An outsider who made an objective comparison of the law as it stands and the amended law in Clause 1, 4 and 5 could not fail to conclude that, although Parliament had wished to restrict prosecution as a form of proceedings against juveniles, it had not wished to restrict the number of juveniles taken before the court. Having come to that conclusion, he would find that that was a howling inconsistency in the whole structure of the Bill.

If, however, we accept that children should be dealt with outside the courts wherever possible, the next issue is to decide what criterion should be used to draw the line between those two classes of case. The question arises, is the care or control test the right one or should another criterion be put forward? The critics have argued that this is not so and that decisions whether to take proceedings should be based on such matters as the seriousness of the offence, whether it is a first offence, and whether it was committed in company with others in respect of whom it has already been decided not to go to court. Clearly, all these matters would be relevant to the decisions.

In the Government's view, however, they should not be the only or the conclusive factors. If consideration were limited only to those matters, one would have no more than the superficial appearance of justice, for decisions on court proceedings would take into account only one aspect of the child's situation, namely, the offence and the circumstances immediately surrounding it. Real justice requires that all the child's circumstances should be taken into account. Slavish uniformity of system would bring not equality of justice, but only equality of misery.

Nearly everyone agrees that this should be done before an official decision is taken on the future of that child. The critics, however, do not want anyone other than the courts to do this. It seems to me, therefore, that the issue by now is quite simple. The critics want a system under which more children would be taken to court; the Government want a system under which fewer children would go to court. The critics favour proceedings which are not required to deal effectively with the situation of a child, because they think that discrimination between one child and another according to their respective circumstances will not otherwise be accepted as fair. The Government, on the contrary, believe that every child in trouble should receive true justice according to his own circumstances and to all those circumstances, and not according to a part of them.

We maintain that the totality of the individual circumstances of the child should be looked at and that scrutiny should not be confined to a part of the facts concerned. The ideal of true justice cannot be wholly secured unless the individual circumstances of the child are taken into account at all stages and are not deliberately disregarded until the child has already been taken before the court. The Government want to discriminate in favour of all children for whom court proceedings are not really necessary. The Amendment would discriminate against many of these children, in that they would have to go to court unnecessarily and contrary to the principles of the Bill.

The point has been put forcibly, by the right hon. and learned Member for St. Marylebone, that every consideration must be given to a joint offender who is proceeded against and the burning sense of injustice which he would feel if he knew that a joint perpetrator of that same act was not being proceeded against. He maintained that that child had certain rights. I put it to the House that the other child, the child in respect of whom it is not necessary to go to court, has rights also, and those rights should not be sacrificed in the interests of any outward superficiality.

Again, there is the question whether the care and control test, or something like it, if accepted as the right principle, should actually appear in the Bill. Of course, whatever arguments right hon. and hon. Gentlemen opposite put now about an alternative criterion, they are prevented from maintaining this as an alternative because of the stage which we have reached with the Bill. But, with regard to the care and control criterion, it is right to remember that we have had more than 35 years of legislation which does not contain any such provision, under which many juvenile offenders are not in practice prosecuted.

We know that this legislation does not operate satisfactorily, we know that the proportion of children taken to court varies enormously from one part of the country to another. I have given various statistics relating to various groups of offenders from time to time. We should remind ourselves of the recently published figures which showed that, for children under the age of 14, in respect of offences both indictable and non-indictable, the figure for cautions in the police area of Devon and Cornwall was 64.5 per cent., while that in the Metropolitan Police District was 1.1 per cent. Clause 1 proposes to rectify that situation by setting out in black and white the basis upon which the police and local authorities should decide in each case whether or not to take a child to court.

Parliament would be acting irresponsibly if it were to defeat the provision which does this, thus ducking the whole issue. Deletion of these words is consistent only with the view that all offenders, however young, should be taken before a court. There are those who sincerely take this view, but they have never stated clearly their acceptance of the inevitable consequences of putting it into effect. It would mean an increase of at least 30,000 a year in the number of cases brought before the juvenile courts. On that consideration and the other matters which I have mentioned. I must ask the House to disagree with the Lords in these Amendments.

Mr. Carlisle

This is the only controversial Amendment left to be discussed in the Bill. It is a subject which has led to a major division of opinion throughout the passage of the Bill. The Under-Secretary of State gave the impression that this division of opinion had been between the two sides of the House, but in fact it has been between hon. Members on both sides of the House and we debated it at length on Second Reading, in Committee and on Report, and it was debated at length in another place.

I must repeat on behalf of the Opposition what is still our firm view. We are moving from a position in which children under 14, rather than being brought before the court and prosecuted for an offence, are to be brought before the court under the care proceedings. Nevertheless we believe that the commission of an offence should in itself be sufficient on occasion to enable the child to be brought before the court without there having to be further proof of the fact that he is in need of care and attention.

In attempting to simplify the issue, the Under-Secretary of State over-stated his case. He said that any critic of this proposal must be taken to mean that he wanted more children brought before the courts. He said that any critic of this proposal must be saying that he does not believe in real justice in its totality.

May I remind the hon. Gentleman that among the critics of this proposal are not only such people as my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) and other hon. Members, and not only the Magistrates' Association but also the committee set up by the Home Office to consider the whole matter of the future of the courts in relation to young children—the Ingleby Committee, which was composed of men and women of high regard in this country, who took four years to reach their decision and who stated quite clearly that the argument which we have consistently put from this side of the House is the correct argument.

I do not believe that one can meet criticisms from a committee which went into this subject with such care as did the Ingleby Committee by saying that anybody who criticises wants to see more children brought before the courts. Clearly, that is not the case.

Mr. Elystan Morgan

As I remember it, I did not say that people who took that view wanted to see more children before the courts. I argued that the inevitable, inexorable logic was that if we made it easier for children to be brought before the courts than at any time in this century more children could, in fact, be so brought.

Mr. Carlisle

I am grateful to the Under-Secretary of State for stating that he was not suggesting that we wanted to see more children brought before the courts, but it is equally incorrect to argue that an inevitable consequence would be that more children would be brought before the courts. If that is the inevitable consequence, how is that a committee such as the Ingleby Committee made this recommendation when the Committee's function was to find ways of keeping children out of the courts?

4.15 p.m.

I will not make a long speech. It may be that I have spoken at too great a length on this matter in the past. I agree that I made a long speech about it in Standing Committee. But let me repeat that we believe that the suggestion put forward by the Government will lead to a sense of injustice among those who are brought before the courts. Consider the situation under the Government's proposals if two children are together caught on the same joint criminal escapade. There is a review of their home circumstances to consider whether, in the view of the local authority, those circumstances are satisfactory or not—and I have used the word "satisfactory" rather than "good" or "bad" throughout the arguments on the Bill because it is a more suitable description.

That review will decide whether of the two children, caught on the same escapade, one is taken before the court and the other is not, although it may well be that the one who is not taken before the court is the ringleader and that the one who is brought before the court was to a large extent led on by the other.

The Under-Secretary of State said that the logical conclusion of my argument is that all children must be dealt with equally before the courts. I have never said that, nor has anyone else who argues for the Amendment ever said it. We have accepted that the way in which a child is eventually dealt with by the courts depends on all sorts of circumstances. But we have always said that we shall build a great feeling of injustice into the minds of the children if they see themselves taken before the courts when their co-accused are not taken before the courts. They will think it unfair and their parents will think it unfair, and it is a feeling of injustice, as my right hon. and learned Friend once said, which will long outlast the feeling about or the effect of any sentence of treatment or punishment which may be imposed upon them at the time.

The seriousness of the Amendment has been slightly hidden by a remark made by Lord Stonham, who was then a Government spokesman. As reported in col. 810 of HANSARD of the House of Lords of 7th July, he said that it was true that over half the children brought before the courts at present for offences were children caught as joint offenders. In other words, over half the children already being brought before the courts are brought there not for what they themselves have done but for what they were caught doing while with other children.

Mr. Elystan Morgan

Has it occurred to the hon. Member that it may well be that half the children cautioned, too, may be joint offenders?

Mr. Carlisle

Of course, and I hope that there will be more cautioning and less taking to court. But I should be surprised to hear that it is the practice of the police force in any part of the country, having caught two children on a joint offence, to decide to caution one and to arrest the other. If the Under-Secretary of State has evidence that that is the case, I should be grateful to hear it, but I should be surprised.

The arguments on the subject have been canvassed and re-canvassed. I have attempted to see whether there is a new argument which might be put forward—an argument which has never before been put in the debate. With due humility, I believe that I have found one which is important. It is an example which has not before been given. It arises from the fact that the Government, in my opinion rightly, on Report agreed to a suggestion originally made by the Opposition in Committee about the payment of compensation.

In future, by Clause 3(6) courts will have power to order the parents of a child to pay compensation if that child is found guilty, if I may use that phrase, or if the offence condition is satisfied in respect of that child. Let me give the House an example of what may well happen. Three children go out and commit a certain amount of malicious damage, and they are caught. Inquiries are made into their backgrounds and it is decided by the local authority or the police that, as well as being able to prove the offence, in relation to one of the children it can also be shown that he is in need of care and control which he is unlikely to receive at home. But they do not believe that of the other two. Thus, one child is brought before the court and the other two are not. That, I claim, is the first injustice.

What happens, however, when the child comes before the court? The magistrates decide that the offence condition is satisfied. That, I claim, is the second injustice as against the other two children. But then, having decided that, the magistrates say, "We nevertheless reject the argument of the police or local authority that this child comes from an unsatisfactory home. We are not satisfied that this child is in need of care and control and, therefore, under the provisions of the Bill, we will not make an order."

Nevertheless, the child has committed damage and, under Clause 3(6), the magistrates may decide to make an order to the effect that the parents of the child must repay the damage to the tune of a maximum of £100. What is the position then? The parents of one child can have a compensation order made against them while the parents of the other two children, because that child is not, in the view of the police, in need of care and control, cannot. The Under-Secretary appears to be nodding in agreement and I take it that what I have described could be the effect of Clause 3(6). Indeed, I have given an accurate account of the legal position.

This argument has not yet been advanced and it shows clearly the effect that this provision could have. It shows the type of glaring injustice that may occur, particularly when one set of parents may feel that they have been fined £100 because a compensation order for that amount has been made against them because the authorities are satisfied that little Johnny committed an offence, whereas the parents of the other two children cannot have that feeling because such an order is not made against them.

Having given this new example, I will not repeat the other arguments which my hon. Friends and I have adduced. The Government's proposals blur the issue between right and wrong at a time when society is not anxious that issues of this kind should be blurred. I still believe that the second and third grounds of opposition which we have always put forward against the Government's proposals are valid, though I will not repeat them, particularly since they were ably summarised by Baroness Wootton in another place. She is not known as being a strong supporter of this side of the House. Nor is she well known as being one of those critics who want to bring more children before the courts. The whole tenor of her speech was the reverse, yet she supported the Amendment which Lord Jellicoe had moved.

The second ground which she gave was that the Clause, as drafted, would militate against children being brought to court speedily; and, in justice, if children are to be brought before the court, they must be brought as quickly as possible. The third ground—I weigh this ground far more importantly than the second, because the second is, to an extent, inevitable—was the stigmatisation of parents in the eyes of their children when those children are publicly before the court and when the parents are shown before their children to be unsatisfactory and unable to keep care and control of them.

I am not arguing, and I have never argued, that all children should be treated in the same way in the end. I am arguing that where two children commit similar offences, then, if it is decided to bring them before the court, the same should apply to both rather than merely to one. The arguments I am adducing are nowhere near as open to the type of over-simplified criticism which the Under-Secretary made. As I explained, they have the support not only of the Ingleby Committee but of all those involved in the administration of justice outside the House. Even at this last stage, I urge the Minister to think again on this issue.

Mr. Gordon Oakes (Bolton, West)

The hon. Member for Runcorn (Mr. Carlisle) said that opposition to the Bill came not only from hon. Gentlemen opposite, but from the Magistrates' Association and the Ingleby Committee. He failed to mention that most of those who deal with children in trouble—probation and children's officers; and not all magistrates take the view of their Association—support the Bill.

The Ingleby Committee sat nearly 15 years ago. There have been not one but two White Papers on this subject and, after each was published, every consideration was given to the issues involved. All outside bodies concerned with the matter were consulted, not once but twice. Even after the second White Paper was published, Amendments were made to the Bill, not only differing from the White Paper but taking into account all outside interests.

I regard that as being more important than the Magistrates' Association and the views of a Committee which sat 15 years ago. After all, we are dealing with the problem of children in trouble and those who must work in this sphere.

This seems to be an issue about which we are at complete variance. Indeed, I am surprised at the unanimity among hon. Gentlemen opposite, for there is not complete agreement on this subject elsewhere in the House, let alone among those who are concerned with the problem outside.

The hon. Member for Runcorn said that there was discrimination leading to a sense of injustice. The Bill is, to a large extent, enacting the present position, for there is discrimination now, before children come before the courts. There is discrimination by the police about whether there should be a prosecution. Part of the consideration which the police give is concerned not only with the offence but with the circumstances of the child, and they are right to do that.

Some hon. Gentlemen opposite and many of my hon. Friends frequently mouth praise of the juvenile liaison schemes. These schemes do a magnificent job not just in seeking to punish children, but to stop them from committing further offences. If the majority of children should go to court and if, in all cases, that is the correct procedure—that seems to be the view of hon. Gentlemen opposite—what merit is there in the juvenile liaison schemes?

My hon. Friend the Under-Secretary pointed out that in Devon and Cornwall the chances are about 2 to 1 that a juvenile who commits an offence will be cautioned. The chance in Lancashire, a part of the country in which the hon. Member for Runcorn and I practise, is about 50–50; about one child under 14 is cautioned for each one prosecuted. In the Metropolitan area, only 1 per cent. is cautioned. Thus, it is virtually 100 per cent. certain that if a child in the London area commits an offence, he will be brought before the court. There is, therefore, discrimination from the point of view of where a child lives, but I will not develop this argument further.

If hon. Gentlemen opposite could persuade me that, as a result of fewer children being cautioned in London and as a result of almost all children in the Metropolitan area being brought before the courts, there is less juvenile crime in London than in Devon and Cornwall or Lancashire, or that fewer juveniles who get into trouble in London subsequently turn out to be adult criminals, then I would believe there to be some merit in their argument. I am quite certain that the position would, if anything, be the very reverse.

4.30 p.m.

Mr. Carlisle

I am obliged to the hon. Gentleman for giving way, as he allows me to make one point that I wished to make earlier. Can we be told to what years these figures relate? I am told that they relate to 1967. The Home Secretary will agree that the police in the Metropolitan area now have a juvenile liaison scheme. They may be late in the day as compared with Lancashire, but we know that Lancashire leads the way in everything. That figure, however, is very much out of date if looked at in relation to the last year. In any case, would not the hon. Member agree that as the Metropolitan police force is the one force in the country over which the Home Secretary has control, he should do something about it?

Mr. Oakes

I am very impressed to hear the hon. Member for Runcorn (Mr. Carlisle), a Cheshire constituency, saying that Lancashire leads the country in everything, but he does not invalidate the argument. These are 1967 figures for all offences. They show that 64.5 per cent. of offenders under 14 were in London, and the percentages in Cornwall and Devon was 1.1. Other areas come in between. Bristol, at 24 per cent., was well down compared with the figure for Lancashire, which was 50.3 per cent. It does not invalidate my argument to say that London has only recently started a juvenile liaison scheme.

My argument is that if bringing children to court in nearly every instance is so effective in deterring crime why do we not see a big difference in the figures for London and for other parts of the country. As it is, they suggest that, if anything, the position would be worse, not because of this factor but because of other factors.

There is discrimination before the child ever gets into court at all, but let us look at the position when the child gets into court. When today a child goes to court there is discrimination which, according to hon. Gentlemen opposite, might lead to a sense of injustice in the child or in the parents of the child. Courts discriminate, and rightly. A juvenile court magistrate must take into account all the circumstances of the offender, including the home circumstances. Having taken that into account he then decides whether the child should go to an approved school, or be put on probation, or whether a conditional discharge is the satisfactory answer. The argument of the Bill, and my argument, is that where an absolute or conditional discharge is granted the case should never have gone to court at all.

Hon. Members opposite do not argue that because courts make this decision today it leads to a great sense of injustice. The Bill does not allow a bench of lay magistrates giving a few, though valuable, hours of their time to consider these matters and make a decision: it allows the decision to be made by a competent professional children's officer. The magistrates listen to reports, but they never actually go to the homes. They may see the parents, or one of the parents, in court, but they have no chance of a lengthy interview.

Who is the more competent to decide whether a child is in need of care and control—the lay magistrate reviewing for a few minutes the case before him or the childrens' officer who has visited the home, not once but many times, who has seen the parents and is aware of the general sense of discipline, and all the rest? This Bill is not something startlingly novel in this respect. It codifies something which now exists, whereas the likely effect of the Amendment would be to bring far more children to court.

The hon. Gentleman spoke of joint offenders and referred to the new point of compensation. There is, on the surface, some merit in his argument that might lead one to say that there might be a feeling of injustice, until one realises that the point he makes is a minor point in support of a sweeping Amendment sought by another place. I know of very few courts, and certainly very few juvenile courts, which order compensation at all. That is very rare. Therefore, a rather technical argument whether compensation could be granted under Clause 3 in a very small number of cases—a practice very rarely followed by the courts—is very puny, although I appreciate that the hon. Gentleman is scraping at the bottom of the barrel in an effort to find something new in support of the Amendment.

This is one of the most important Bills for the welfare of children passed in this Session of Parliament. It is a major landmark in trying to keep children out of trouble. My right hon. Friend has every right to be proud of it, and I hope that the House will decisively reject the Amendment.

Mr. Marcus Worsley (Chelsea)

This has been a curious week in the House. We had Home Office matters on Monday and Tuesday, and again today we find ourselves dealing with Home Office affairs. The Government Front Bench must be getting quite weary. We have heard the Home Secretary every day, but what a different Home Secretary. We had the right hon. Dr. Jekyll on Monday and the right hon. Mr. Hyde on Tuesday. I am not sure which face he will wear today in dealing with this important Amendment to a very important Bill.

I want to refer to the human relations side of the subject. As I see it, the Home Secretary has a chance, if he accepts the Amendment, to give the Bill a fair wind, which it will not get if the Amendment is rejected. No Bill which has gone through in the current Session, or which is likely to go through in the next Session, more needs a fair wind, by which I mean the broadest spectrum of agreement behind it.

I happily concede that the Home Secretary has met many of our points. By listening to what has been said from these benches and outside the House he has improved the Bill enormously as compared with its form when it came to the House, and even more enormously as compared with its form when he came to the Home Office. For that reason I hope that he will seriously consider meeting this final point. If he does so he will greatly encourage many of those who will have to administer the law as it will be. I realise that there are many who agree with the Bill as it originally stood, but I am sure that if the Amendment is made, the additional discretion which will be written in will satisfy those people, particularly magistrates, who are so concerned with the present position.

It should be made clear that if this Amendment were made no extra child need he brought to court. Both the Under-Secretary and the hon. Member for Bolton, West (Mr. Oakes) spoke as if the passing of this Amendment would mean that all sorts of children would have to be brought to court, but there is no word of truth in that. All that would happen would be that officers, whether of the police or the local authority, who have to take the decision would have a somewhat wider discretion. All we are seeking to do is to widen the discretion of those whose responsibility it is to bring children to court. Surely it is sense to say that the people who have this responsibility are worthy of this extra discretion.

Maybe the hon. Member for Bolton, West was right in saying that there was some scraping of the barrel in putting forward this argument, but the cases which come forward, exceptional as they may be, are cases which will be concerned with the working of the Act. Why not allow these people this extra discretion? The hon. Member asked who is more capable of taking a decision? He was referring to the children's officer, but in his speech he sought to narrow the decision-making capacity of the children's officer. He said in one sentence that they were capable of taking a decision and in the next that the decision should be taken from them.

Mr. Oakes

The point I made was that the children's officer is far more capable of making a competent decision through knowing all the facts than a bench of magistrates who also make a decision when the child comes before the court.

Mr. Worsley

The Amendment is about the circumstances under which a child comes before the court. The hon. Member is saying that children's officers are capable of making this decision, but he is also saying that if the child comes from a good home he cannot be brought to court. [An HON. MEMBER: "No."] I am grateful for any interruption which contradicts that, but I believe it is what the hon. Member suggested. If the Home Secretary can correct the impression, I shall be grateful.

I end as I began, by suggesting to the Home Secretary that it would help the working of the Bill if he were to accept this Amendment, if he changed his mind to allow this additional discretion. I can promise him that if cases are brought either by the police or children's officers which are wrongly brought the courts will deal with them and if the courts do not deal with them the courts of appeal will deal with them. In this way public opinion will be reflected. As I see it, there is no risk in allowing this alteration to the Bill, but it would help enormously to give a fair wind to an exceedingly important Measure.

4.45 p.m.

Mr. Charles Mapp (Oldham, East)

I shall be consistent in saying that I have great reservations about the Bill as it is and possibly reservations about the Amendment which has come from another place. The House is in danger this afternoon by constantly using the word "children" for that is not what we are talking about. Are we to assume that the only young people involved are those under 14? If so, I would not make the speech I am about to make. If we are fair as parents——

Mr. Worsley

May I interrupt the hon. Member, as he invites interruption? As I understand the situation, children under 14 could be prosecuted in a criminal court.

Mr. Mapp

That is what I understand. I want to call the attention of the House—and, if it is not too late, the attention of the Home Secretary—to what I feel has been a lack of appreciation of the normal growth of children, infants and youths, the problem of growing up mentally and the various stages through which they pass. Those of us who have had the pleasure of being parents have seen in our lives the various phases through which boys and girls move. Only during the past few years have we changed the age of criminality from 8 to 10 and now, at one fell swoop, it is to go up to 14.

From all the statistics about crime among young people I have not been able to be told how many offences are committed by children under 10. If, because children are not brought to court when they are under 10, we believe that they do not get into trouble and commit offences before that age, we are under a great delusion.

From all that I have been able to gather from various police forces, there has been an increase of something like 12 per cent. to 15 per cent. in what would be regarded as offences by children under 10. This Bill, with practically no history to support the idea and only a hunch, raises the age from 10 to 14. I would have been happier had the age been advanced to 12 and beyond that age in four or five years' time.

In effect, we are saying that a boy under 17 will have this "do-gooder" treatment—I do not use the words unkindly—in respect of offences with which in many ways children's officers are incapable of dealing. Their development and dedication does not allow them to make decisions about boys of 14, 15, or 16 although really serious offences can be and are committed by boys of those ages. Fortunately, they are very rare.

I was pleased last week to visit six or seven youth community centres in my constituency. I am very proud of them. There hundreds of boys and girls of ages up to 17, 18, or 19 mix together in a largely uninhibited atmosphere. They enjoy arranging football matches, and so on. The fact remains that public opinion, certainly in Oldham—this has nothing whatever to do with party politics—is disturbed. People are worried about what should be done for boys of 15 or 16 who, if we are not careful, will fall foul of the law.

We are moving into a rather permissive form of society and this I regret very much. It is not necessarily connected with the processes of law. I share the view of the Home Secretary about the difficulties of permissive societies. In the long run discipline in our society should be applied only by the courts. The courts have valuable information from every quarter. I should like to feel optimism about this Clause and I hope that in the fullness of time I may be proved wrong.

There is a small but important element, particularly among boys and less so among girls, of 15, 16, or 17, for whom we are making it far too easy to capitalise not only on mischief but, later, on crime. I am not prepared to facilitate that. I want more experiment over a longer period. If, in three or four years' time, my fears were shown not to be justified, I would be the first to ask for this additional provision.

Mr. Philip Goodhart (Beckenham)

I am delighted that the hon. Member for Oldham, East (Mr. Mapp) has had an opportunity to intervene in this debate. He has had as much practical experience of matters that the Bill touches on as any hon. Member. We all know how it came to pass that he was excluded from the Standing Committee which dealt with the Bill in detail. I am delighted to have the opportunity to make this speech.

I also congratulate my hon. Friend the Member for Runcorn (Mr. Carlisle) for having taken part in our discussions and for producing a new argument in favour of the Amendment, which appears completely to have floored the Government. If they wish to speak on this point I shall happily give way, but I doubt whether that will happen. I hope that we shall have new answers to some of the old questions that have been put to Ministers in previous debates. We have yet to have a serious answer to the point made in Committee by the hon. Member for Cleveland (Mr. Tinn) and my hon. Friend the Member for Blackpool, North (Mr. Miscampbell)—and referred to again this afternoon by my hon. Friend the Member for Runcorn—about the effect of this new procedure on family relationships.

We know that when a juvenile offender comes before the court he probably appreciates that he is there not only because of what the police think he did but also because the relevant officers of the local authority have tried his parents and found them wanting. If he does not appreciate this fact when he appears in court he will appreciate it when he gets older. This must inevitably produce a strain on family relationships.

There is still the staff problem. The hon. Member for Bolton, West (Mr. Oakes) gave us a highly idealised picture of what happens when a children's department investigates a case. We would like to think that a children's officer had ample time to go into a house, to become a friend of all those concerned, to sit down at the table and have cups of tea, and to go back in the fullness of time in order to decide, without any pressure being applied, what should happen. We know that this does not happen. Even now there is an immense shortage of children's officers.

We know that if the new investigating procedures called for in the Bill—and especially this part of the Bill—go through the pressure on children's officers will almost double. Certainly that is the finding of the children's department in my local borough. They are just not going to be able to make the detailed investigation that was suggested by the hon. Member for Bolton, West. They will have to skimp it, because extra staff will not be provided in a hurry. Hasty decisions will have to be made.

That is why the remarks made in another place by Baroness Wootton are so relevant. She appreciated that with the pressures upon children's officers they would inevitably have to make hasty decisions—to go into a house, look around, see close carpeting and all the appearances and appliances of a middle-class home and say, "This is a good home. The child is getting the care and protection that it needs" and, at the other end of the social scale, to go into a house where, perhaps, the parents have given far more care and attention to their children than in the visibly middle-class home but where there is a smell of stale cabbage hanging around the walls, and cracked window panes, and say, automatically—simply because there is no time to go deeply into the case—"It looks as though the child is in need of care and protection".

I agree with Baroness Wootton that the scales will be weighted against the poor child. It is odd that we should see class legislation, as it were, coining from this Government.

5.0 p.m.

Mr. Oakes

Would the hon. Gentleman agree that a children's officer would be one of the first people to recognise the point that he is making, that there can be far more care, control, love and affection in a slum home than very often exists in a semi-detached middle-class "palace"?

Mr. Goodhart

How will the children's officer find out?

As I say, the burden on children's officers will be immensely increased by the Bill. Some research has been carried out in the recent past and it has been discovered that childrens' officers in one of the Greater London boroughs were able to devote 11 minutes a week to the average problem family under their care. Now the burden is to be increased.

I am aware that the number of children's officers will also be increased, but if one is to delve into the real family relationships and the real emotional ties and bonds in a family, one will need a great deal of time. I am arguing that that time will not be available, given the number of children's officers that we are likely to be able to recruit in the near future.

The Government have repeatedly made it plain that their main concern in all this is to keep the number of children who appear in court down to the smallest possible. I agree with that objective. But it seems to me that there is one more overriding objective, which is not just to keep children out of court but to keep them out of trouble, and I do not think that this part of the Bill contributes to that overriding objective.

Mr. David Lane (Cambridge)

It is a pity that at least on these two Amendments we look like repeating today, with the Home Secretary and his colleagues, the discord of yesterday, rather than resuming the total harmony of Monday.

We are on familiar ground. The arguments are finely balanced on this issue and, as we have seen today and previously, there are differences of opinion on both sides of the House. I felt this afternoon that the Under-Secretary was carried away by the exuberance of his own advocacy and, in fact, overstated his arguments and distorted the motives of some of us.

I am not going over all the ground. I should like merely to stress one or two points which I feel are particularly significant. During the months when this legislation has been before us, I have been impressed, in talking to those concerned in and around my own constituency, by the extent to which this double test or double standard which we are discussing today has struck and alarmed people. They are genuinely worried that this may unintentionally produce a new element of injustice.

I make no apology for returning to this at the very last stage. I do not think the Government's arguments during the passage of the Bill here and in another place have yet reassured these people and set this anxiety at rest. The Government have treated it far too lightly. I am glad that the other place has given us this last chance to air and argue the problem. I hope that it is not too late to ask the Government to think again, even now.

The main argument has centred on this question of injustice or discrimination. We all know that up to a point there are areas of discrimination in the existing procedure. Others with more experience than I have stressed this fact. This provision which the Government insist upon putting back into the Bill will surely increase the element of unfairness in an important respect, and I am surprised that nothing was said from the other side of the House to deal with the very impressive points made in another place by Baroness Wootton. Let us remember that it is injustice in children's eyes which is the most enduring kind of injustice.

If I may mention the other side of this coin, the Under-Secretary accused us—I think that I have his words right of—trying to put back a slavish uniformity of system into this legislation. As has been pointed out, much discretion would surely remain, and, although statistics have been quoted this afternoon about the operation of police practice over cautions, we should remind the Government that with the various police reforms one can look forward to a greater degree of standard practice among the police forces in different parts of the country.

May I mention two other points to which I do not think the Government have attached enough weight. One is the development of gang activity and gang violence. Figures were quoted by my hon. Friend the Member for Runcorn (Mr. Carlisle) which I need not repeat. I am sad that there has been an increase in this sort of activity even in my own civilised and largely law-abiding constituency, with a fresh example only this past week. This must be a factor of growing importance in our consideration.

The other point is the matter of speed and delay. By reverting to the original form of the Bill, I believe the Government are seriously risking greater delays at an important stage in possible proceedings and in dealing with possible offenders. If I may use the argument of my hon. Friend the Member for Beckenham (Mr. Goodhart) in a rather different context, the risk will be all the more because of the new burdens we are putting on children's officers by other, more admirable provisions of this Bill.

Surely we want any legislation that leaves this House—if I may repeat the words used by my right hon. Friend the Leader of the Opposition in another place and in another context last week—to be firm and fair. The Bill should do a lot of good. I hope it will improve the present system and I sincerely wish it well. But if the Government persist on this point at issue, the Bill will reach the Statute Book with an unfortunate blemish and with an important risk of extra injustice.

Yesterday, I hoped that the Government had used up their entire stock of obstinacy, but from today's signs they do not seem to have reached the end of their reserves. I am sorry about this and I regret that the Government have insisted on forcing their view upon the House in this respect.

Mr. Frederick Silvester (Walthamstow, West)

I got the impression when my hon. Friend the Member for Cambridge (Mr. Lane) was speaking just now that he felt that the difference between us was somewhat narrow and that we could all be accommodated. I think it is quite clear that the Government will not give way on this point. I think the difference between us is deep and fundamental. It is because of this that as the progress of this Bill has developed my antipathy towards this Clause as unamended has grown.

I think the difference lies in this way. I seek to maintain a distinction between a clear law and the use of Executive power—a subject to which I shall return in a minute—which I think this Bill, and this Clause in particular, blurs in a number of ways. Secondly it seeks to draw conclusions nationally and permanently from the practice of police forces operating provincially and temporarily of which we have inadequate information.

There is a distinction, a distinction which should be maintained, between a clear law and whatever we may do to temper the law in certain circumstances. The courts are the embodiment of our law, and they must be seen to administer it. On the other hand, it is standard practice, I think we all agree, for the law to be waived in certain circumstances, making way for parental control, police control or other means whereby we temper the law with some understanding of the circumstances. But we do not alter the law. This means that, in the last resort, anyone who breaks the law should know that he is liable to be brought before the court and be dealt with under the remedies available to the court.

What we are saying here is not, as the Under-Secretary of State implied, that we wish to bring everyone before the court. On the contrary. But for his part, the hon. Gentleman is reversing the argument. He is saying that only in very limited circumstances—and then, as far as I can understand, only after the executive arm has made its own investigations, without any crime having been proved—will the court be able to take action. He has the cart before the horse. It is a dangerous precedent. It should be resisted at this early and fairly minor stage, relating as it does at the moment only to people between the ages of 10 and 14.

The dangerous nature of the principle adumbrated by the Government showed itself clearly in the Under-Secretary's opening words when he used the curious phrase that, "We have in mind the rights of the boy whom it is not necessary to bring to the court". I have in mind the rights of the community which demand that people who break the law, clearly stated, shall know that, if it is the desire of the community, they shall be brought before the court. By the commission of an offence, the child ceases to have his right, though he be a child. The confusion apparent in what the Minister said underlies the Government's Clause. This is a dangerous time for such a change to be made. It is a change totally contrary to the underlying weight of public sentiment today.

I give a further illustration of the way in which the Minister's mind has gone fundamentally wrong on this matter. He spoke of the children's officer as, naturally, being an expert who would know better how to act in this situation. That is not true. The magistrate is less of an expert in some respects than is the children's officer—that is true—but the magistrate may have the advice of the children's officer, and the function of the magistrate is not to act as an expert but to act, drawing upon the advice of experts, in the public interest, which is something which the children's officer does not do and should not be empowered to do.

Now, one final point which makes the whole thing totally unacceptable. The case has not been proved. The reasons for the Clause unamended have not been established. Basically, what is said here is that we want to keep children out of court. Everything must bow to that objective. I do not object to keeping children out of court. It is clear that, under the present system, that occurs. But by what criteria are we to judge the matter? We are told that in the Metropolitan area one per cent. are kept out of court and that in Devon and Cornwall the proportion is 68 per cent. What is the right percentage? How are we to judge? What evidence is presented? What evidence do we have of the relevant crime rates in those areas? What period has passed since the figures were collected? Those are all facets of the information which are needed for an intelligent decision to be made. The Under-Secretary may be right. I do not know. He has presented no evidence on which the House can make a reasoned judgment, yet he asks us to make a broad and sweeping change in the fundamental basis of the operation of the law, and at a time when public sympathy is not with him.

For all those reasons, I regard the Clause unamended as extremely dangerous, and I hope that as many hon. Members as possible will vote for the Lords Amendment.

5.15 p.m.

Mr. Ted Leadbitter (The Hartlepools)

Sensing the difficulty here created by the Government's obduracy in refusing to change their mind, I intended not to intervene. Sometimes in the House one has the feeling that debate proceeds well, that arguments are nicely adduced and that our proceedings are enjoyable, but occasionally we like to feel that there is an end product. That we shall not lose the battle before we start.

I have, however, decided to intervene in order to press this matter upon the Government. They must be aware of the deep concern in the country, of the growing alarm not only in the Metropolis and large conurbations but in our ordinary urban areas and the small towns and villages. Wherever one looks in the United Kingdom today, there are people walking in fear, there are people unable to rest comfortably in their homes because of a feeling that there will be an interruption of their peace. There are parents, perhaps, anxious about their children, who are not satisfied that the disciplines of society are of a kind which they can regard as complementary to their objectives in bringing up their children as good citizens.

There is a weakness in authority. Too much time is spent in pontificating, in psuedo-psychology. Some people seem to have read their books on psychology from Freud downwards and come to the conclusion that it is better to be do-gooders than doers of the right thing. But the shrewd commonsense of the average man in the United Kingdom affords a better base from which to make the tests of social discipline than some of the theories of politicians, statesmen, magistrates and psychologists.

It is time someone raised his voice and called for a halt to the tendency towards appearing to be soft. It is time to stop indicating to the public at large that, if we cannot enforce the law, we had better not use it, or, as we have it under this Bill, if the question of enforcement has become an embarrassment, we should see whether we can opt out of it, as it were, through the medium of care and control legislation.

What does my hon. Friend mean by "care and control"?

Mr. Elystan Morgan

With respect, I put two points to my hon. Friend. First, does he appreciate that the concept of care and control is not being introduced here for the first time but we are reproducing what, in generality, appears in the 1963 Act? Second, there is no question of softness. Where under this subsection it is believed that a child or young person will not otherwise receive care and control, there is a positive exhortation to authority to deal with him in the way which is enabled by the Bill.

Mr. Leadbitter

Unfortunately, there is sometimes a weakness shown by hon. Members once they enter Ministries: they forget where they have come from and they tell the rest of us how to suck eggs. I will not wear that, either.

The courts do not afford the criteria here. One of the notable features of life today is that the courts are not doing their job. Magistrates' courts are not doing their job. Magistrates' courts are imposing nominal fines for thuggery, for vandalism and for theft which makes the law ridiculous. Why are they behaving in that way?—because they find difficulty in applying enforcement orders if they put upon persons found guilty fines which reflect the nature of the crimes committed.

The result is that throughout the Kingdom in Her Majesty's courts there are to be seen lazy louts, shirkers, people who neither work nor want but who are prepared to rob, and to smash old people's faces in. When they land up in the courts, the dear old magistrates impose a nominal fine, and then off they go, laughing at the police and the rest of the witnesses as they walk down the stairs.

If that is so, is it good legislation to say that we cannot deal with this problem, we cannot tackle it in a positive way and that we must therefore syphon off this group from the courts under the umbrella of care and control, sweeping it under the carpet? There is a good law in physics which says that one cannot get something out of nothing. We cannot gain an advantage from the present care and control system because, even before overloading children's officers and wardens of homes by this proposed method, these people are already overworked.

The House must not be kidded along to assume that because we are talking about extending the areas of care and control this extra capability for care and control is available. Having expounded that in the roughest way I can, and it was intended to be rough, I start my submission from the shrewd basis of the ordinary man who is pleading that authority should impose by legislation at least an attitude of firmness which will give us the social disciplines we require. We should not appear to be giving to the offender all the benefits of the doubt saying, "Look here, you have been a naughty boy, we will have to give you some care and control."

On the other hand, it is not a contest between the Government, who want to see less people in prison, and the critics, who want to see more. That is an unjust and unfair way to present this. Those of us who want social discipline do not want to see more people in prison, we want to see general punishments that can be applied in the courts. In other words, if someone robs a man or damages property by X amount, the punishment shall not only be a fine and the payment of the costs of the prosecution, but also a repayment of the loss or the full extent of that damage, irrespective of the means of a person and no matter how long it takes.

All this fiddle-faddle about people on £10 a week who cannot pay a fine in the court is tommy rot. What is the point of the law in such circumstances, when a wife who has been separated from her husband can obtain a maintenance order which, while it takes into account the means of the husband, is enforceable over a considerable period of time? I know that people can say that it does not work, but there is nothing perfect, nothing is final. That does not mean that we should abdicate from our duty and from the principle that a person who does wrong should repay to the full extent the damage he has caused.

If, on the other hand, my hon. Friend says that this is wrong, I would point out to him that if I commit a motoring offence, if I am caught speeding, my means are not examined when I go to court and I may be fined £25 or £35 and my licence endorsed or withdrawn. If I were not a Member of Parliament but merely a teacher, as I once was, and I committed the same offence I would receive the same kind of treatment. If I was not a teacher but a labourer and I committed the same offence, again I would get the same kind of treatment. If I did not speed but went down the High Street, hit an old man and took his wallet, I would he fined £5 because the bench would understand me. I would be in need of care, certainly not control.

The law is becoming ridiculous. Neither my hon. Friend, the Chief Whip nor anyone else, will get me to support the Government's position here. Sometimes this House has to say to the Government in the strongest possible terms that they are not always right. I have experience in my own constituency, and my first duty is to my constituency. All the evidence I have tells me that on this count the Government are wrong. My constituency represents a good cross-section of the community of the United Kingdom, and I have come to the logical conclusion that the general public in the United Kingdom support the view I take.

There is nothing more stupid about a law or proposed legislation than evidence of inconsistency. If this Amendment is not accepted we shall have an inconsistent situation, of which I shall give an example. There are three boys, one of whom is the ringleader, who commits an offence. The ringleader comes from a good family, his parents can be shown as being people who will provide care and control. The second comes from a family in which the husband will not work, is a danger to society, but where the mother is an excellent mother. Such a boy would be brought before the court which would have to decide the nature of the care and control.

Then, the third boy's parents are separated, they have had no chance to make a home. Both are, perhaps, good parents, but because they have not raised money to buy a house or maybe because they are low down on the council house waiting list, they have not been able to make a home. Here are three boys committing the same offence, two of them submissive to the ringleader who can get off scot-free while the other two are major social problems. Yet the problems are not those which have been exacerbated by the boys, but by social conditions.

This may be a very small matter in the morass of legislation passed by this House, but it is a terribly important matter. If we have to rely on what might be called the dedicated work of laymen in our magistrates' courts it is most unfair and unjust to place upon these people the responsibility of making the choice presented to them by the Government's obduracy in not accepting this Amendment.

The White Paper "Children in Trouble" deals with offenders aged between 10 and 14 years. In that White Paper, Children in Trouble—Cmnd. 3601—it is stated: The commission of an offence by a child of this age"— that is, between 10 and 14 years of age— will cease to be, by itself, a sufficient ground for bringing him before a court. I have already referred to the fact that I was a teacher. I do not know how many times I have felt like saying to the Home Office in that capacity, and certainly to the magistrates' court, that this is the very age group where one has the most trouble, that this is the age group of the most important formative years and which is the apprenticeship to adult life.

5.30 p.m.

I say that it is not kind to young boys of 10 to 14 years to make the law so soft when they are in a state of bravado and commit an offence—I accept without the intention of breaking the law as such, because every boy of that age is a bit of a colt and it is the teacher's job to understand it. I would send out, as a teacher, poor citizens to the world if, when a boy committed an offence, I treated him kindly, if I merely stood him in the corner and said, "You are a naughty boy". I state quite frankly that I got a cane out in such a case and gave him two and he respected me for it because the law was quick, it was done without passion and it was forgotten.

There is some merit about punishment. My experience as a teacher has been that boys of this age, whenever they have gone to court, come back—as they will certainly do so under the new system, with all the difficulties which I have indicated—with a false sense of bravado. They are the heroes of the day in the school and are incited to more offences. I object to that because young boys should not be treated in this way, not even by the best-thinking minds or best attitudes in the Home Office. I am not criticising those in the Home Office who have produced the Bill because I know that they produced it for the best purposes, and it is, indeed, an enlightened and excellent Bill—except for this one difficulty.

A similar situation appears to apply in the case of the age group 14 to 17. For the sake of brevity, I shall not deal with that except to say that this large group of young men of that generation are the equivalent in terms of experience and development of men of 21 and 23 in my generation. It is in this group, too, that we have to apply some discipline.

I am sorry to have taken up more time than might have been expected, but it indicates that I have felt sorely about this. My hon. Friend the Under-Secretary of State knows that I have written to the Home Office on many occasions, but the merit of my taking up the time of the House is my belief that more discipline is good for young people. I believe that the vast majority of very young people who are good law-abiding citizens would accept better and more social disciplines in order that the fringe groups, the spoilers in our society, can be controlled.

I also believe that adult society not only has its duty to these young people, but that when people reach retirement and the "senior citizens" group, or when they are infirm or for any reason need to be defended by the community, it is wrong that the law should be such that it may encourage far more than necessary the youthful braggart, the spoiler, thug and thief to damage them, destroy their property and enter their homes. For that reason, I cannot support the Government.

Sir Douglas Glover (Ormskirk)

A very fine speech.

Mr. Percy Grieve (Solihull)

I arrived in the Chamber after four o'clock and normally would have hesitated to intervene in a debate whose opening speeches I had not heard. However, this is the last opportunity the House will have of considering the very important matters which have been brought to its attention by hon. Members on both sides in favour of the Lords Amendment and against Clause 1 as it originally stood.

I share the profound misgivings voiced on both sides as to the social consequences of taking children and young people not only out of the ambit of the courts but subjecting them to a wholly new procedure which will govern, not what is to be their treatment if it is found that they have committed an offence, but is whether they shall be brought to answer any offence at all.

Clause 1 as it stood reflected the confusion which the Government have manifested all along in this Bill between the factors which it is proper to consider in deciding whether someone shall be brought before a court, or brought for the truth to be ascertained as to whether or not he has committed an offence, and the factors which are right and proper to be considered when, his offence having been proved, it has to be decided what shall be done with him.

The truth is that, whatever the age, if a child or young person is to be morally responsible and is to know the difference between right and wrong, the only factor which should decide whether he shall be brought before a court or not is whether there is reason to believe that he has committed an offence and not whether, in addition, he is in need of care and control which he is otherwise unlikely to receive.

I shall not go into the point, because it has been covered so often, that it is manifestly unfair as between one child and another, between one person and another, that other factors shall be taken into consideration as to whether there is a prime facie case to answer or not, because it is, indeed, manifestly unfair, and that has been said on both sides again and again. But I am following the admirable speech of the hon. Member for The Hartlepools (Mr. Leadbitter), who spoke with profound knowledge of the young and of their reactions, acquired in a long career in teaching. The only factor which really should decide, when a child is an offender, whether or not he should be brought before the court, is whether there is evidence that he has committed an offence.

When one considers the effect of this legislation one sees the appalling results which will ensue if it is passed unamended. For instance, a thirteen-year old—because children mature earlier—is guilty of rape, or robbery with violence or burglary or making away with large quanties of property. These things are not unknown. The officer who has evidence of this has to ask himself not only whether he has evidence which will sustain the charge before the court, but whether the child is in need of care and control which he is unlikely to receive unless the court makes an order under this legislation. That is in the case of a serious offence. Whatever the age of those committing serious offences is a wholly irrelevant consideration.

This is a most relevant consideration, of course, and everyone would acknowledge that, when it comes to the determining what is to be done with a child or young person who has committed an offence, but to say that it is relevant to whether he should be amenable to the ordinary discipline of the courts and to take extraneous factors of that kind into account when making that decision is to deprive society of what in the last resort is its only protection against juvenile offenders—the power of the courts to deal with them and the power of the police to bring them before the courts.

I may be only reiterating what has been said again and again in speeches from both sides of the House, but it cannot sufficiently be reiterated, for it is a factor of the greatest importance. I view with profound misgivings the future in our country, a country where juvenile delinquency has been rising year after year and where the figures cited in our debates have been appalling, if Clause 1 is passed unamended.

In their legislation relating to the young, the Government have been trying to perform the difficult feat of the circus rider of riding two horses, but in this case it is the impossible feat of riding the two horses when they are going in opposite directions.

Much of the legislation which we have considered and passed in the present Session of Parliament has been based on the assumption that young people today are more mature, more understanding, more capable of serving society, more capable of earning their own livings, more capable of making decisions which affect them in the most fundamental and important respects in their everyday lives, that they are capable at the age of 18 of voting and of deciding who shall form the Government, capable of making wills at 18 and of marrying and of buying houses at 18.

Yet this legislation would take the same young people up to the age of 17 outside the ordinary system of the courts. Although it has been much improved in the course of our debates in that regard, nevertheless there is a fundamental contradiction between the philosophy which informs the Bill, good though some of it is—and I concede that at once—the philosophy which informs in particular Clause 1, and the philosophy which informed that legislation which we have passed and which gives the vote to young people of 18 and gives them the power to regulate their own affairs and to come of age and to be adult in all respects.

Society cannot have it both ways. If it he right that young people are maturing earlier and that they are capable of managing their own affairs and deciding and having a voice in the government of the country at the age of 18, it is wholly wrong to say that up to the age of 17 and certainly up to the age of 14, they are to be taken right outside the power of the ordinary law and be dealt with in accordance with these special provisions.

In these circumstances, I submit that their Lordships have made a most important improvement to Clause 1 which makes it much more acceptable. It means that children and young persons may be brought before a court whatever their home circumstances when there is evidence of their commission of an offence. The home circumstances would then be considered, as they should be, in considering what is to be done with the offender.

5.45 p.m.

Mr. W. F. Deedes (Ashford)

I apologise to the opening speakers in the debate for not having been present when they spoke.

I hope that the Under-Secretary is now impressed with the weight of opinion behind the Amendment and against the present sense of the Clause. Outside the House opinion right from the start, felt strongly on this matter, has not come from any one profession or any one branch of those interested in these things. In the House, as we have now discovered, it has not come from only one party.

In one sense the debate has opened a new approach, which is the time which the Government are choosing to do this thing in this way. Is it the right time? The Under-Secretary claimed that no new principle was at stake. He said that we were only extending something which had been made possible in an earlier Act. Some of the worst and silliest things Parliament has ever done have been done on exactly that principle—that somewhere in some earlier Act a precedent could be found. I beg the hon. Gentleman not to extend that argument too far.

Whether this is the right time is a question of great importance. In the minds of many people this is flying in precisely the opposite direction to that in which a Department responsible for law and order and for setting an example should now be moving.

There are two things which trouble me about the Clause, and this is why I support the Lords Amendment. First, in effect we are shifting authority from the judiciary to the administration. The Home Office is doing this partly in the belief that it will thereby gain in expertise. That point was effectively dealt with by my hon. Friend the Member for Cambridge (Mr. Lane), and I leave it there.

The second matter is much more important. What is being sought is not to avoid the stigma of criminality, but to avoid the stigma of guilt, which is quite different. Whether the removal of a sense of guilt in a child is a wise action at this time is strongly disputed outside the House by those well qualified to judge.

The hon. Member for The Hartlepools (Mr. Leadbitter) talked about this being the group most in trouble now. I wonder whether anyone in the Home Office has looked at the analysis of criminal statistics for the Metropolitan area, those figures which, broken down into percentages, give the age groups of those most responsible not for petty but for serious offences. I cannot imagine anyone seriously analysing those figures and then coming here with his hand on his heart to support the present intentions of the Clause. It is because I feel that the Home Office approach is so unrealistic that I ask why it is so insensitive to expert opinion. Why is it being so obstinate about this Amendment?

With many excellent things in it the Bill will yet require tremendous good will from those required to operate it. It will take a long time to implement. It will be three or four years before we see most of the Bill in action, and it may be a couple of years before any of it starts to operate. The Under-Secretary knows the administrative and other difficulties which will require good will and, in a sense, the convinced minds of those who will make the Bill a success or otherwise. By being so obstinate about this one matter the Home Office is prejudicing the good will and the convinced minds that it must have, and that is why we so regret it.

Mr. Elystan Morgan

By leave of the House, I should like to deal with a few matters which have been raised and with which I have been specifically asked to deal.

My hon. Friend the Member for Oldham, East (Mr. Mapp), my hon. Friend the Member for The Hartlepools (Mr. Leadbitter) and one or two hon. Members opposite share the misconception that because Clause 1, before being amended in another place, deals as it does with the double test, all children and young persons up to the age of 17 will thereby be able to escape the possibility of criminal conviction unless the double test is satisfied.

In case there may be any lingering traces of that misconception, I would impress on the House that under these two Amendments we are talking about care proceedings for children and young persons. Under Clause 5 there is the question of the ordinary criminal prosecution for young persons. We should not assume that the dividing line is 14. It is true that the Bill makes it possible for any age up to 14 to become the dividing line between the categories of a child and the category of a young person. But under Clause 32 it is possible for the House to change that to any age between 10 and 14.

I have already given some indication in Committee that the first development would be to the age of 12. Then, unless it was felt that there was overwhelming evidence that it would be wrong, harmful and impracticable to move to another age, it would gradually be moved as resources permitted and as experience showed that it could be moved, up to the maximum age of 14. Therefore, what we are talking about is the prospect of that line being drawn at 12.

The hon. Member for Runcorn (Mr. Carlisle) managed to bring if not a new argument at least a new example into our discussions on the Bill, and I congratulate him on this. The example he gave under Clause 3(6) is valid. I have no doubt that a court would be entitled to act in that way. But I cannot conceive of an authority deciding to bring a case before the court in those circumstances. In other words, I cannot conceive of it bringing the third boy before the court to seek a compensation order.

Mr. Carlisle

I never suggested for a moment that it would bring him before the court to obtain a compensation order. What I said was that it would bring him before the court because it believed that it could prove both heads of the test. The court decides that he has committed the offence but is not in need of care and control and may then decide that his parents should pay compensation.

Mr. Elystan Morgan

I am most grateful to the hon. Gentleman for his explanation. That shows how narrow is the gap between us. The authority would not have brought the boy in the first place to obtain a compensation order. The court would pay particular heed to what the authority regarded as the appropriate order that should be made. Compensation orders, in any event, are made at present in only a very small percentage of cases—under 5 per cent. It is inconceivable in the circumstances that the court would make a compensation order.

Therefore, although the theoretical possibility of this wholly inconsistent set of circumstances being brought about still remains, I do not think that its practical possibility can be rated so high as to regard it as something which completely torpedoes this part of the Bill.

Mr. Carlisle

Why on earth does the hon. Gentleman suggest that in the circumstances I outlined it is inconceivable that the court would make an order for compensation? The court may think, very rightly, having regard to the views of society, that the parents of the child who has committed malicious damage should have a compensation order made against them. It is the hon. Gentleman who is being inconsistent, because the Home Office at this very time has a committee studying means whereby compensation orders should more widely be made by the courts. 'Therefore, to say that they are hardly ever made is utterly inconsistent with the argument that the Home Office is putting forward elsewhere.

Mr. Elystan Morgan

Well, there it is. I shall not elaborate on what I have already said, but it is surely inconsistent, because a study is made of the use of compensation orders in a wider compass, to rely on the argument that there is a real possibility of compensation orders being made in circumstances where they would be wholly inappropriate and inequitable.

The hon. Member for Beckenham (Mr Goodhart) voiced his doubts about the deleterious effect the provision could have on family relationships, with children taken to court regarding their very appearance in court as ipso facto an indictment of the competence and standing of their parents. But by this Bill we are doing away with the good parent test which appears in the current law, in Section 2(1)(a) of the Children and Young Persons Act, 1963.

Once again we have had raised the question of delay and the denial of swift justice. I am certain that the provision will not cause substantial extra delay in dealing with cases compared with the existing system. Those who have suggested this have disregarded the considerable experience which already exists of pre-trial enquiry and consultations under the present system. They have also disregarded the corollary of getting cases very quickly to court in the first instance, which is that the court is far more likely to adjourn for further inquiries before finally deciding what order to make. Therefore, it may well be that under the new procedures there would be a net saving of time in dealing with many cases.

But there is a far more important consideration here—the grave doubt whether the cry for swift justice can in any event be compatible with the main principles of the Bill. Dealing with children according to their needs and keeping them out of court if possible necessarily means making inquiries into each child's background and circumstances to discover his needs and whether they can be met without court proceedings. If we are not prepared to allow the relatively modest time required for this purpose before deciding whether court proceedings should not be taken, we might ac well abandon straight away any hope of achieving the aims of the Bill. It is perfectly possible for swiftness to be the very negation of justice.

The Report of the Ingleby Committee has been mentioned. Paragraph 86 recommended that an offence alone should remain a sufficient ground for court proceedings against a child under 12, but that the proceedings should be civil in nature. For non-offenders, the Committee proposed that there should be a double test similar to Clause 1(2). The basic difference between Clause 1(2) and the Ingleby recommendation, therefore, is that the Clause applies the care or control test to offenders as well. This is merely the logical conclusion of the Ingleby approach. The Committee expressly said that before any proceedings were instituted under its proposal there should be consultation between the police and local authorities to ensure that proceedings were based on the most appropriate grounds, and to eliminate proceedings where the matter could be adequately resolved without a court order. In other words, the Ingleby Committee recommended precisely what Clause 1(2) seeks to achieve. However, it did not propose any effective machinery for achieving it. Therefore, we can claim that what we are doing in the Bill is to bring about an effective manifestation of the Ingleby Report within the legislative framework.

6.0 p.m.

We have heard, as we have heard in all our debates on this matter, about the good and bad homes—or the satisfactory and the unsatisfactory homes, as they were described by the hon. Member for Runcorn. I shall try, for one last time, to put this in what I believe to be its proper perspective. I have no confidence that I shall succeed on this occasion when I have failed on so many other occasions. The test of the need for care and control is in no way synonymous with a person's home—whether it be good or bad, satisfactory or unsatisfactory, rich or poor. It deals only with the totality, the whole package, of a child's circumstances, past, present and future; his relationship with his family; and the whole atmosphere of his home, whether it be an atmosphere of love, discipline or respect. It deals with a number of considerations. The home is only one of them, and I am sure that I am not putting the case unfairly when I say that right hon. and hon. Members opposite have concentrated on one out of a dozen considerations, namely, the home. They have maintained that because this consideration is cribbed and confined, obviously it must be an unfair consideration to be used as a distinction between a case which should be taken to court and a case which should not be taken to court.

We have heard a powerful speech this afternoon from my hon. Friend the Member for The Hartlepools and a fervent speech from the hon. and learned Member for Solihull (Mr. Grieve), but with the greatest respect to them—and I appreciate their complete sincerity in this matter—they did not deal with the issue now before the House. The issue before us is not whether there should be a criterion additional to the considerations mentioned in subsection (1). Most right hon. and hon. Members opposite would accept that there should be criteria because they know full well that the alternative to having criteria is that the judgment as to whether a case should be brought before the courts—and, of course, they do not want cases to be brought before the courts unnecessarily—turns on all manner of ill-defined, unspoken prejudices or intuitive considerations, intuitive caprices. Therefore, the vast majority of hon. Members on both sides accept that there must be criteria.

The issue as I see it is this: should the criteria be limited to the type of offence, whether it occurred and when, or should they be all-embracing? The consideration as to whether a child or young person needs care and control is allembracing. The criteria are properly applied in an informal way nowadays in scores of thousands of cases. On this basis, I ask the House to reject the Amendment.

Question put, That this House doth disagree with the Lords in the said Amendment:—

The House divided: Ayes 146, Noes 120.

Division No. 350.] AYES [6.4 p.m.
Abse, Leo Butler, Mrs. Joyce (Wood Green) Evans, Gwynfor (C'marthen)
Allen, Scholefield Callaghan, Rt. Hn. James Evans, Ioan L. (Birm'h'm, Yardley)
Ashton, Joe (Bassetlaw) Carter-Jones, Lewis Fernyhough, E.
Atkins, Ronald (Preston, N.) Coleman, Donald Fitch, Alan (Wigan)
Atkinson, Norman (Tottenham) Concannon, J. D. Fletcher, Ted (Darlington)
Bagier, Gordon A. T. Conlan, Bernard Ford, Ben
Barnett, Joel Crossman, Rt. Hn. Richard Forrester, John
Beaney, Alan Davies, Ednyfed Hudson (Conway) Fowler, Gerry
Bence, Cyril Davies, G. Elfed (Rhondda, E.) Freeson, Reginald
Bennett, James (G'gow, Bridgeton) Davies, Rt. Hn. Harold (Leek) Garrett, W. E.
Bessell, Peter Dempsey, James Gray, Dr. Hugh (Yarmouth)
Bidwell, Sydney Dickens, James Gregory, Arnold
Blackburn, F. Dobson, Ray Grey, Charles (Durham)
Blenkinsop, Arthur Doig, Peter Griffiths, David (Rother Valley)
Boardman, H. (Leigh) Driberg, Tom Griffiths, Will (Exchange)
Booth, Albert Dunwoody, Mrs. Gwyneth (Exeter) Hamilton, William (Fife, W.)
Boyden, James Dunwoody, Dr. John (F'th & C'b'e) Hamling, William
Bray, Dr. Jeremy Edwards, William (Merioneth) Hannan, William
Brown, Hugh D. (G'gow, Provan) Ellis, John Harper, Joseph
Buchan, Norman English, Michael Harrison, Walter (Wakefield)
Buchanan, Richard (G'gow, Sp'burn) Evans, Fred (Caerphilly) Hobden, Dennis
Horner, John Manuel, Archie Robinson, Rt. Hn. Kenneth(St. P'c'as)
Houghton, Rt. Hn. Douglas Marks, Kenneth Roebuck, Roy
Howarth, Robert (Bolton, E.) Marquand, David Rose, Paul
Howie, W. Mellish, Rt. Hn. Robert Ross, Rt. Hn. William
Hunter, Adam Mendelson, John Rowlands, E.
Hynd, John Millan, Bruce Ryan, John
Irvine, Sir Arthur (Edge Hill) Miller, Dr. M. S. Shaw, Arnold (Ilford, S.)
Janner, Sir Barnett Milne, Edward (Blyth) Shore, Rt. Hn. Peter (Stepney)
Jones, J. Idwal (Wrexham) Molloy, William Short, Mrs. Renée (W'hampton, N.E.)
Jones, T. Alec (Rhondda, West) Morgan, Elystan (Cardiganshire) Silverman, Julius
Kelley, Richard Morris, Alfred (Wythenshawe) Slater, Joseph
Kerr, Dr. David (W'worth, Central) Morris, Charles R. (Openshaw) Spriggs, Leslie
Lawson, George Moyle, Roland Steele, Thomas (Dunbartonshire, W.)
Lee, Rt. Hn, Frederick (Newton) Norwood, Christopher Symonds, J. B.
Lewis, Ron (Carlisle) Orme, Stanley Tuck, Raphael
Lipton, Marcus Oswald, Thomas Wainwright, Edwin (Dearne Valley)
Lyons, Edward (Bradford, E.) Owen, Dr. David (Plymouth, S'tn) Walden, Brian (All Saints)
Mabon, Dr. J. Dickson Padley, Walter Wallace, George
McBride, Neil Pannell, Rt. Hn. Charles Watkins, Tudor (Brecon & Radnor)
McCann, John
Macdonald, A. H. Parkyn, Brian (Bedford) Wellbeloved, James
McGuire, Michael Peart, Rt. Hn. Fred Wilkins, W. A.
Mackenzie, Gregor (Rutherglen) Perry, Ernest G. (Battersea, S.) Williams, Alan Lee (Hornchurch)
Mackie, John Perry, George H. (Nottingham, S.) Woodburn, Rt. Hn. A.
Mackintosh, John P. Price, Thomas (Westhoughton) Woof, Robert
Maclennan, Robert Randall, Harry
McNamara, J. Kevin Rankin, John TELLERS FOR THE AYES:
MacPherson, Malcolm Rees, Merlyn Mr. Ernest Armstrong and
Mahon, Peter (Preston, S.) Roberts, Albert (Normanton) Mr. James Hamilton.
Mahon, Simon (Bootle) Robertson, John (Paisley)
Astor, John Hall-Davis, A. G. F. Percival, Ian
Atkins, Humphrey (M't'n & M'd'n) Harvey, Sir Arthur Vere Pink, R. Bonner
Baker, Kenneth (Acton) Heald, Rt. Hn. Sir Lionel Powell, Rt. Hn. J. Enoch
Beamish, Col. Sir Tufton Heath, Rt. Hn. Edward Prior, J. M. L.
Bell, Ronald Higgins, Terence L. Pym, Francis
Biffen, John Hill, J. E. B. Rhys Williams, Sir Brandon
Biggs-Davison, John Hogg, Rt. Hn. Quintin Ridley, Hn. Nicholas
Birch, Rt. Hn. Nigel Holland, Philip Royle, Anthony
Boardman, Tom (Leicester, S.W.) Hornby, Richard Russell, Sir Ronald
Body, Richard Hunt, John Scott, Nicholas
Bossom, Sir Clive Hutchison, Michael Clark Scott-Hopkins, James
Boyd-Carpenter, Rt. Hn. John Jennings, J. C. (Burton) Sharples, Richard
Boyle, Rt. Hn. Sir Edward Jopling, Michael Shaw, Michael (Sc'b'gh & Whitby)
Brinton Sir Tatton Joseph, Rt. Hn. Sir Keith Silvester, Frederick
Kimball, Marcus Sinclair, Sir George
Bromley-Davenport, Lt.-Col. Sir Walter King, Evelyn (Dorset, S.) Speed, Keith
Brown Sir Edward (Bath) Kitson, Timothy Steel, David (Roxburgh)
Bullus Sir Eric Knight, Mrs. Jill Stodart, Anthony
Campbell, B. (Oldham, W.) Lancaster, Col. C. G. Stoddart-Scott, Col. Sir M.
Campbell, Gordon (Moray & Nairn) Lane, David Taylor, Sir Charles (Eastbourne)
Carlisle, Mark Lloyd, Rt. Hn. Selwyn (Wirral) Taylor, Edward M.(G'gow, Cathcart)
Clark, Henry McAdden, Sir Stephen Temple, John M.
Clegg, Walter MacArthur, Ian Thatcher, Mrs. Margaret
Cooper-Key Sir Neill Macleod, Rt. Hn. Iain Thorpe, Rt. Hn. Jeremy
Cordle, John McMaster, Stanley Turton, Rt. Hn. R. H.
Dalkeith, Earl of McNair-Wilson, Michael Vickers, Dame Joan
Dance, James Maddan, Martin Wainwright, Richard (Colne Valley)
Davidson James (Aberdeenshire, W.) Mawby, Ray Wall, Patrick
Deedes, Rt. Hn. W. F. (Ashford) Maxwell-Hyslop, R. J. Walters, Dennis
Elliott, R.W.(N'c'tle-upon-Tyne, N.) Maydon, Lt.-Cmdr. S. L. C. Weatherill, Bernard
Errington, Sir Eric Monro, Hector Whitlock, William
Fisher, Nigel Montgomery, Fergus Wiggin, A. W.
Gilmour, Ian (Norfolk, C.) Morgan, Geraint (Denbigh) Williams, Donald (Dudley)
Glover, Sir Douglas Munro-Lucas-Tooth, Sir Hugh Wilson, Geoffrey (Truro)
Glyn, Sir Richard Murton, Oscar Winstanley, Dr, M. P.
Gower, Raymond Nabarro, Sir Gerald Worsley, Marcus
Grant, Anthony Neave, Airey Younger, Hn. George
Gresham Cooke, R. Onslow, Cranley
Grieve, Percy Orr-Ewing, Sir Ian TELLERS FOR THE NOES:
Griffiths, Eldon (Bury St. Edmunds) Osborn, John (Hallam) Mr. Jasper More and
Grimond, Rt. Hn. J. Page, Graham (Crosby) Mr. Reginald Eyre.
Gurden, Harold Page, John (Harrow, W.)

Subsequent Lords Amendment disagreed to.

Lords Amendment No. 4: In page 2, line 17, after "court" insert: may make orders in pursuance of paragraphs (c) and (d) of the preceding subsection but subject to that".

Mr. Elystan Morgan

I beg to move, That this House doth agree with the Lords in the said Amendment.

Mr. Speaker

With this Amendment, I suggest that we debate, if we are to debate, Lords Amendment No. 104.

Mr. Elystan Morgan

The Amendment enables a court to make a care order as well as a hospital order in care proceedings in respect of children and young persons.

Question put and agreed to.

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