HC Deb 19 April 1973 vol 855 cc732-42

3.18 p.m.

Mr. Peter Archer (Rowley Regis and Tipton)

I suspect that one of the difficulties of this debate will be to isolate the question in issue from other matters which do not arise for debate today.

I say at once that I am concerned with the constitutional question. Constitutional questions do not arise in a vacuum; they arise out of flesh and blood situations. It is tempting to say that we cannot insulate a constitutional controversy from the merits of the disagre-ment which give rise to it. We all tend to invoke constitutional principles when they support the case which we are advancing for other reasons.

The whole point of constitutional practice is that it preserves particular ways of resolving arguments, irrespective of the content of the argument, irrespective of where political power lies, and irrespective of who, for the moment, is in government. It consists of the methods which have been found best to draw attention to what is in issue so that everyone is alerted to the question and everyone knows where to direct his arguments.

The Americans, with their written constitution, are perhaps more accustomed to continuing discussions on constitutional principles which are insulated from the particular political pressure which led to the argument Perhaps we are more pragmatic. Some might say we are less academic.

When, occasionally, we witness a flagrant disregard for constitutional principle—someone playing right outside the rules—that is the time for all good men to reach for their text books on constitutional thinking.

This question arises from the Children and Young Persons Act 1969. It was an Act which the hon. and learned Member the Minister of State, who was very much concerned will recollect arose from the intention to implement the White Paper "Children in Trouble". The purpose of that Act was stated on Second Reading by the then Home Secretary, my right hon. Friend the Member for Cardiff, South-East (Mr. Callaghan) in three propositions: First, as a matter of social philosophy, as well as a practical matter, to build on the family and on the parents, to try to ensure that they assume the major responsibility for the welfare, control, care and discipline of their children … Secondly, where the family and the parents cannot succeed without help, to provide effective support for those families through the social and other services which in such cases must supplement the efforts of the parents. Thirdly, by these means to keep out of the courts all those children who will benefit as much, or more, from other treatment as they will by going to court …"— [OFFICIAL REPORT, 11th March 1969; Vol 779, c. 1176.] The Act contains a number of provisions which have already ben implemented, which is not surprising since the Act is now four years old. It is possible that we should review the provisions which have been implemented already. It is perhaps elementary common sense to look at the proposals which, when they were first debated, seemed good ideas at the time. But those provisions do not concern us today. We are concerned principally with Sections 4, 5 and 7(1).

Section 4 raises the minimum age of criminal responsibility from 10 to 14. Section 5 provides that a young person accused of a criminal offence shall not be dealt with in the courts unless no other appropriate method of dealing with him is apparent. Section 7(1) raises the minimum age for borstal training from 15 to 17. Those provisions have not been implemented, although I understand that the Secretary of State has it in mind to raise the age of criminal responsibility to 17.

There are two other provisions which have not yet been implemented—Section 7(3) which proposes to phase out attendance centres and detention centres, and Section 23 dealing with children and young persons on remand. I understand that the implementation of those provisions awaits the necessary facilities and that it is proposed to implement them in due course.

The Minister of State, Home Office (Mr. Mark Carlisle) indicated dissent.

Mr. Archer

I see the hon. and learned Gentleman shaking his head. Apparently we are to be deprived even of that. In any event, I was aware that the first three provisions were not to be implemented.

Section 73(2) provides: This Act shall come into force on such day as the Secretary of State may by order appoint, and different days may be appointed under this subsection for different provisions of this Act … That is not an unusual provision in a statute. The purpose is to enable the Minister to defer implementaton until the necessary arrangements have been made. The operative word is "defer". The section itself states clearly that the Act shall come into force when the Minister directs. The Secretary of State is quite clear—some of us might say that he is blatantly clear—about the reason why he has not implemented these provisions—not that it has taken four years to make the necessary arrangements but that he has no intention of implementing them because he disagreed with what Parliament said.

The merits of these proposals are open to debate; they were debated on the Floor of the House and in Committee, and the hon. and learned Gentleman played a leading part in those debates. Parliament decided to include these provisions in the statute. The Secretary of State disagreed.

If, as he said, he announced that he was not proposing to implement them in a Written Answer to a Question by my hon. Friend the Member for Portsmouth, West (Mr. Judd) on 26th January 1971, I confess that I did not notice that answer. It is a grim warning which demonstrates the necessity to read the OFFICIAL REPORT, including what I would term the small print. It came to my notice in a report, in The Times on 15th January this year, of a speech by the Secretary of State for Social Services to the Magistrates' Association stating that the Government had no intention of implementing Sections 1 and 7(1).

On 6th February this year I asked the Secretary of State for Social Services to place a copy of that speech in the Library of the House and, unlike some requests that I have made, I did it precisely because I wanted to read it. In a Written Answer he said that he had not spoken from a prepared text but he promised a full report in the Magistrate early in March. I awaited the March issue of the Magistrate and there, sure enough, was a report of the conference at which the hon. and learned Gentleman himself was present. A very interesting and informative report it was, but there was no word of what the Secretary of State had said about the matter of implementation.

I put down a further Question to the Secretary of State for Social Services asking what plans the Government had to implement the Act. That was transferred to the Home Department, and I make no complaint of that except that on occasion it would be pleasant to question a Minister about his own speech. I do not complain about the answer which I got. I certainly do not complain about the forthrightness of the hon. and learned Gentleman's answer.

To that same Question he read a prepared answer, which was innocuous but failed to deal with the major point. He rectified that deficiency in answer to one of my supplementaries. He was honest to the point of shamelessness. He said: The object of an implementation clause, as the hon. and learned Gentleman says, is to defer implementation. If, as happened in this case, one Parliament passes legislation but it falls to another Government to decide whether to implement it, they are entitled to decide which parts of the previous Parliament's legislation they will implement and which they will not."—[OFFICIAL REPORT, 29th March 1973; Vol. 853, c. 1519.] There we have it. Parliament included these provisions in the statute. Then there was a General Election and we had a Secretary of State disagreeing with what Parliament previously said. So he decided not to implement the statute. The hon. and learned Gentleman enunciates the right to do so as a constitutional principle.

I see at once that there are two possible views on each of these provisions. It is possible to argue persuasively for either view, as the hon. and learned Gentleman did. We had some interesting debates when the statute was being discussed. In fact, he immediately conceded that we did not always debate a lot on purely party lines. I acquired some limited notoriety for putting down rather more amendments than is usual for a Government back-bench Member. It is even possible that if Parliament were invited to do so, it would alter its mind particularly with some persuasion from the Government Whips.

It is quite wrong to take the House for granted and to dispense with the whole of the parliamentary process. I should have thought that even the Government's own supporters would agree with that. If the Government wish to debate these questions again, the proper place to debate them is in this House and in another place. It is a constitutional point but it is by no means academic.

The reason why the House is so jealous of its powers is not for the benefit of Members but for the benefit of the constituents whom they represent. These are ail questions on which the public can make representations to Members, and if they are not satisfied with our reactions they can call us to account at the next General Election. The debates in this House are a sounding board for public opinion which evokes a response from the public. That is why it is important that these issues should be debated publicly here.

I deliberately abstain from expressing any views on the merits of these proposals. I am concerned to protest at an abuse of a power which was entrusted to the Secretary of State for a quite different purpose. The Government can silence our arguments on the merits, but they cannot silence our protests. It is only right to add that this constitutional theory is clothed with flesh and blood, since children whose lives are at the crossroads are entitled at least to the benefit of public debate and a few hours of parliamentary time.

3.29 p.m.

The Minister of State, Home Office (Mr. Mark Carlisle)

May I have leave to speak again?

The hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) made a powerful speech in promoting into a major constitutional issue the answer which I gave him in response to his supplementary question a few weeks ago, when I said that the Government had no intention of implementing certain provisions of the Children and Young Persons Act. He was kind enough to say that he agreed that it was a constitutional principle which could be argued on both sides—

Mr. Peter Archer

I said that the merits of the proposals could be argued on both sides, not the constitutional principle.

Mr. Carlisle

I hope to show that even the constitutional principle which the hon. and learned Gentleman enunciated is open to question, although I note that in answering his future supplementary questions it would be as well for me to remember to be somewhat more polite than I was in showing the firmness and brusqueness which I evinced on that occasion.

In all seriousness, I must remind the hon. and learned Gentleman that the Government have been attacked on three fronts in regard to the Act. There are those who say that we are wrong to decide not to implement certain provisions because we disagree with them. There are those who say that we have deferred bringing certain provisions into force because of local government reorganisation, and that this is killing the Act. Equally, there are those who say that we have implemented the Act prematurely and are, as a result, putting at risk its whole purpose. It seems, therefore, that, whatever decisions the Government have taken or will take about implementation, we are unlikely—I appreciate that this turns partly on the merits—to be free from controversy.

We have implemented those parts of the Act with which we agree and which were capable of immediate implementation. We have said further—I apologise if I looked a little hesitant when the hon. and learned Gentleman made his comment about detention centres—that there are certain other provisions of the Act which we propose to implement or which we shall probably implement at a stage when we are satisfied that resources and alternative methods are available.

In addition, there are certain provisions —I think that two fall into this category —which the Government do not propose to implement, that is, the raising of the age of prosecution to 14, although, as the hon. and learned Gentleman said, we have stated that we shall at some stage go to 12, and Section 5, which would impose limitations on the power of the police to prosecute between the ages of 14 and 17.

I reiterate what I said to the hon. and learned Gentleman at Question Time a few weeks ago. I see nothing constitutionally improper in a Government's taking office and deciding, when it falls to them to implement an Act passed by a previous administration of another party, that they will implement those parts of it with which they agree but not those with which they disagree.

The hon. and learned Gentleman may say—indeed, the hon. Member for Hitchen (Mrs. Shirley Williams) said it from her Front Bench—that, if that be the position, one ought, as a Government, to bring legislation before the House to repeal those parts of the Act which one decides not to implement. However, knowing how great is the constant pressure upon the parliamentary timetable and how many are the matters which hon. Members on both sides are anxious to debate, I wonder whether one would be well received in the House if one took part of the legislative timetable for the purpose of achieving an end which one could achieve by an administrative method, that is, merely by saying that one did not intend to implement a certain part of an Act.

The hon. and learned Gentleman's faith, or lack of faith, in the public opinion polls may be justified, but I feel that it does not do his confidence great credit if he is anxious that this Government should decide to repeal certain provisions of the Act rather than leave them on the statute book so that, after the next election, his party, if it won the election, would be free to implement them without having to pass fresh legislation through the House. His assessment of the chances of that happening may be accurate, but it scarcely shows great confidence in his party's ability in that situation.

As I say, on the constitutional issue I see no impropriety in our deciding that there are certain parts of the Act which we will not implement. It might have been argued that there was some indication to the contrary if the Government had in any way attempted to cover up their decisions. But, as the hon. and learned Gentleman was kind enough to say, I did not attempt to cover the matter up when he asked me a Question about it recently. He refered also to the occasion when my right hon. Friend the Secretary of State for Social Services made a public speech, and he referred to the Written Answer given in 1971.

In fairness to myself, I should add that the Government's decision on these matters was announced in a speech which I made to a social services conference in September 1970, within three months of the Government's coming into office. I said in that speech that it was not the Government's intention to raise the age of prosecution to 14, although we should at some stage go to 12, and I made clear that we would not implement Section 5. I do not for a moment suggest that the hon. and learned Gentleman ought to have seen it, but I must add that there was no attempt not to give publicity to that speech. Indeed, I think I am right in saying that that part of it which dealt with the Government's intentions regarding implementation was widely circulated to all those involved in the courts and the social services.

We took our decision at that time, and only now, two-and-a-half years later, has anyone in the Opposition party raised the constitutional issue.

Mr. Peter Archer

I do not suggest that the hon. and learned Gentleman concealed his intentions, but would it not have been constitutionally more proper to make the announcement in the House?

Mr. Carlisle

The announcement was made at a time when the House was not sitting. I do not take that as justification for doing it as we did, but it so happened that I had been invited, as the junior Minister responsible, to address a national conference of social workers on the Children and Young Persons Act and, since the decision had been taken, it seemed right to announce it in that way.

The decision could have been questioned at any time in the House. Indeed, I was almost surprised at that stage that no Questions were asked about what we had decided. I have always been a little surprised, indeed, that two-and-a-half years passed before anybody raised not the constitutional question but the merits of the decisions we had taken in refusing to implement certain provisions of the Act. It was always open to hon. Members to raise the matter in Parliament, as the hon. and learned Gentleman has done today.

If there has been a change in the political make-up of Parliament, and if the Government are satisfied in these circumstances that they have the support of the majority party in choosing not to implement certain provisions of an Act passed by the previous Administration when it falls to them to decide what to implement, I see nothing constitutionally improper in their announcing that there are certain provisions which they do not propose to implement.

Taking the matter more widely now, I turn to the provisions which we have not implemented for other reasons. We have not, as the hon. and learned Gentleman said, implemented the provision which would raise the age for borstal. The Government have no immediate intention of implementing that, but I should add that, apart from any question of principle, one of the specific reasons is that the previous Government referred the whole issue of what should happen to persons under 21 and the future of the borstal system to the Advisory Council on the Penal System, and we felt that it would be wrong to implement any part of the Act relating to the borstal system until we had received the advisory council's report.

Equally, because we were not satisfied that there was adequate secure provision for persons between 15 and 17 years of age, we would not be justified in implementing at that stage the borstal provision.

The hon. and learned Member was right in saying that we had announced that we were not going to implement the detention centre order provisions at that stage but that we said that consideration of their implementation would depend upon sufficient availability of adequate alternatives during the intermediate treatment schemes under the supervision order. The reason I looked slightly surprised at the hon. and learned Member was that I cannot at this moment see these sections being implemented in the near future, but he is right in saying that we have never said in principle that we would not do it. But we are absolutely determined that the courts should retain the power to make these orders until we are clearly satisfied that they have the powers they need—and I do not think that time has yet arrived.

I turn now to one other point raised by the hon. and learned Gentleman. He specifically referred to the fact that the third objective of the Act, as set out by the then Home Secretary, was to keep out of court all those children who would benefit as much by other methods as by being brought before a court. Whether or not we have implemented Section 4 or 5, there was never any real difference in the objective of both sides of the Committee stage of the Children and Young Persons Act. On the merits, so far as 10- and 11-year-olds are concerned, in 1968 those prosecuted, as distinct from those cautioned were 50 per cent. By 1971 the proportion prosecuted had fallen to 24 per cent. In the case of juvenile defendants in 1969 the number cautioned was 30.8 per cent.—this relates, of course, to defendants under 17—and in 1970 the figure was 36 per cent. In 1971 the number cautioned had risen to 50 per cent. So the decision not to implement sections 4 and 5 for what we think were clear reasons of principle has not in any way affected what was one of the aims of the Bill, namely, to get a wider use of cautioning and methods of dealing with young people outside of criminal courts.

That has happened. What we objected to in Section 5 was the straitjacket it would impose upon the police, rather than leaving matters of prosecution at their discretion. What we objected to in Section 4 was the double burden of proof requiring both committal of the offence and evidence that the individual was in need of care and attention which he would not otherwise receive. It was the view we took when in Opposition and the view we now take in Government that it was undesirable to raise to 12 years the age at which people could not be prosecuted, as such. The hon. and learned Member will know that we have implemented those parts of the Act which turn approved schools into community homes. We have implemented that part of the Act which abolishes the right to make an individual approved school order and requires the court to make a care order instead, and we have recently taken a further step in the implementation of the order by the Home Secretary requiring that all those under the age of 12 rather than 10 who have to be under supervision should be supervised by child care officers of the local authority rather than of the probation service.

Therefore, without saying more on the merits, because the hon. and learned Gentleman himself specifically kept off them, I reiterate that we believe we were right, as a Government, and entitled to implement the part of the Act which we had always supported and believed desirable. We have indicated that there are other sections of the Act which we support and which we will implement as resources become available. There is no ground for saying that we were not constitutionally justified in making it clear that there were certain aspects of the Act passed by a previous administration with which we do not agree, and with which I believe a vast majority of the magistracy do not agree—and which we made clear at an early stage we had no intention to implement.

That decision could have been challenged in the House, and to a degree it has been challenged by the hon. and learned Gentleman today. But I refute his suggestion that in coming to that decision and in saying that we were making use of the implementation clause so as not to implement certain aspects of the Act with which we did not agree we were in any way breaking any constitutional principle upon which the democracy of this country depends.