HC Deb 02 November 1976 vol 918 cc1316-25

The Lords have agreed to the amendment made by the Commons in page 15, leave out lines 5 and 6 and insert: '2. The defendant need not be granted bail if the court is satisfied, that it is probable that the defendant, if released on bail' with the following amendment: leave out 'it is probable' and insert 'there are substantial grounds for believing

9.0 p.m.

The Minister of State, Home Office (Mr. Brynmor John)

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

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)

With this we may discuss Lords Amendment No. 2 to the Commons amendment.

Mr. John

The first amendment goes back to the drafting of the Bill as it originally left this House and was started in another place. The formula was that the court, before refusing bail under Schedule 1, had to be satisfied that it was "probable" that the accused had done one of the acts set out in Schedule 1. In the other place, at the insistance of Lord Hailsham, a test was substituted that an unacceptable risk should be the criterion that magistrates should adopt.

We believed then, and we believe now, that this would be far too low a duty upon the magistrates and would in practice lead to no greater granting of bail despite the promise of bail contained in Clause 4. That is why, when this House previously considered the matter, the decision was to reintroduce the word "probable". When the matter went back to the other place, substantial doubts were cast upon this definition.

The Bill is an important one and, therefore, in the interests of getting it on to the statute book—and giving in statutory form a general right to bail for accused persons—it was felt that we should move towards a formula which would satisfy both sides. The agreement that I now seek from the House is to insert, instead of "it is probable", the words there are substantial grounds for believing". I would make two points. First, there is the presumption in Clause 4 of the right to bail. That is an important point. The second point is that the court must be satisfied that there are substantial grounds. I have heard many fears expressed as to what the courts will have to take into account, but I believe that the combination of the statutory right to bail—unless circumstances are to the contrary—and the need to be satisfied that there are substantial grounds will impose upon the courts a very high duty indeed before they will be able to refuse bail.

It may be argued that in percentage terms it may be a slightly lower duty. Nevertheless, I believe that it is still a substantial duty and will in practice mean that those who are entitled to bail will not be deprived of it. I think that the formula which has been devised, which received a rather grudging welcome from Lord Hailsham but a rather more warm welcome from Lord Wigoder, will commend itself to the House because it is something to which the other place has taken an objection perhaps rooted more in heat than in light. Nevertheless, it means that the duty upon the court is a high one if it is to refuse a person bail.

The second amendment is a modification to Part II of the Schedule 1 which relates to the granting of bail to defendants accused or convicted of an offence not punishable with imprisonment. The effect of Part II, as amended, is that such a defendant need not be granted bail if he has failed to surrender when granted bail on a previous occasion and the court believes, in view of that failure, that he will fail to surrender if released on bail on the present occasion. This was an amendment which was put down with consistency of wording.

I believe that the words now in the Bill do not undermine the principle of the Bill, and I commend them to the House.

Mr. Edward Gardner (South Fylde)

The presumption in favour of the grant of bail created by the Bill without proper safeguards would have left the public at severe risk from accused persons who took advantage of their continued freedom to commit more crimes. Originally, the only safeguard provided by the Government against that risk was a statutory formula so dangerously narrow and restricted that in most cases the court would have found it impossible to refuse bail and remand an accused person in custody. It would have been a weakness in the law that would have made the hair of judges and police, and, I suspect, the public, stand on end.

The alternative acceptable and workable formula provided by Lord Hailsham of St. Marylebone was substituted in another place but was rejected and replaced by the original form of words when the Bill came back to this House. Now, after further consideration by their Lordships, the Bill returns with a compromise formula to which we can give our approval and, indeed, welcome, if not with enthusiasm at least with a sense that there is now in the Bill a reliable and practical safeguards against the abuse of the general right to bail which will not disturb the basic principles of the Bill.

The Opposition, therefore, welcome the Government's decision to accept this compromise solution, which demonstrates once again the indispensable function of a revising Chamber which can improve and make acceptable what otherwise might prove to be defective legislation without being in any way provocative on a wholly non-party Bill. May I dare to hope that the Government will give an equally agreeable reception to amendments to Bills which are in future sent back from another place?

Mr. David Weitzman (Hackney, North and Stoke Newington)

The House will remember that in Committee and on Report we discussed and gave considerable thought to the words which should properly set out the position. The Minister of State moved the amendment in Committee, and the House, after discussion, accepted the words "unacceptable risk". We all had misgivings when the House of Commons accepted the substitution of those words. I fully appreciate and agree with the compromise that has been reached in the amendment before us but I want to draw attention to what I regard as a serious matter.

The House having passed the amendment, Lord Hailsham, in another place, actually accused the Minister of State of complete arrogance in daring to put back the original formula which the Lords had disapproved. He actually suggested that as the other place was the revising Chamber it simply was not good enough for what he called the "Jacks in office" in this House arrogantly to put back words which the Lords had deliberately changed. In other words, the noble Lord was saying that as the Lords had decided on a certain formula this House should not dare to alter it. I think it is right that the attention of the House should be drawn to this. I am sure that all hon. Members, including those on the Opposition Benches, will deprecate as strongly as possible any suggestion of that kind.

Mr. Robert Kilroy-Silk (Ormskirk)

I support my hon. and learned Friend, and go a little further than he did. As he said, the probability risk formula was debated in Committee and on Report, and on both occasions, on a Division, the probability risk was written into the Bill, despite attempts by hon. Members, who happened to be on the Opposition Benches, to change it.

It is surprising that the Minister who on these occasions, initiated the change and made a detailed and lengthy defence of the probability risk, should abjectly accept a botched-up compromise worked out not in the Lords but behind the scenes before it got there. It is surprising that he should almost turn a somersault and reject an important part, if not the core, of the Bill. The amendment goes to the core of the Bill and demands and deserves a more intensive debate than it has had either in the House or in another place.

Mr. Weitzman

Is my hon. Friend aware that there was a threat by Lord Hailsham that if this was not done we might not get the Bill at all. If that is so, I am sure that my hon. Friend the Minister of State acted properly.

Mr. Kilroy-Silk

My hon. and learned Friend is right. From the remarks in another place by Lord Hailsham it seems clear that he acted arrogantly and petulantly. I take exception to and feel resentment towards the noble Lord's re- marks about this House. It is right that this House should look at legislation that comes from the Lords. It is no good at all for Lord Hailsham to say, in a tantrum, that this House has no right to interfere in his legislation and draftsmanship. It is improper for him to say that it is sheer arrogance for us, "the Jacks in office", to change his wording. It is clear that he made a behind-the-scenes threat to kill the Bill unless the Government acceded to his requests and the amendments made by the Lords on a previous occasion.

It is disturbing that a non-elected person, speaking only for himself and what he called "informed opinion"—which, by implication, does not exist in this Chamber—should seek to legislate on his own and tell us what this House shall alter or revise in legislation that comes from the other place. It is deeply offensive to hon. Members and to the House as a body.

I want to ask the Minister about the cobbled-up compromise. He has admitted that there was a compromise, but it has not been discussed by the House and we have not had an opportunity substantially to change anything. With whom was the compromise conducted and concluded? What kind of behind-the-scenes manoeuvres went on to buy off the hostility and juvenile resentment of Lord Hailsham? Who was consulted on the redrafting of this crucial and important part of the Bill?

What does the amendment mean? What do the words, "substantial grounds for belief" mean in practice? Is that not as subjective a formula as that which we proffered previously. What criteria would the court have before it? What specific grounds would it consider in determining whether there were "substantial grounds for believing"? The House deserves a much more comprehensive answer from my hon. Friend than he has given so far.

9.15 p.m.

Mr. Ivan Lawrence (Burton)

Labour Members should not let their enthusiasm for the destruction of the House of Lords and their desire to find every opportunity to criticise the activities of noble Lords who participate in the deliberations of that House lead them into using this opportunity for an attack upon Lord Hailsham for what he said. If they do use the opportunity, they should not be allowed to get away with it.

Mr. Weitzman

Is the hon. Gentleman saying that if the House of Lords makes a decision we should not interfere with it? Those were the words of Lord Hailsham.

Mr. Lawrence

The hon. and learned Gentleman should not put words into my mouth. If he will do me the kindness of waiting to hear me develop my point, perhaps he will have less to say in interventions.

The House of Lords is a revising Chamber. It performs that function never so well as when it is concerned with legislation to do with the operation of our courts. That is because it is full of the most distinguished and successful practitioners in the law. Many of them are judges and some have risen to a distinguished pedestal in our judicial system. For example, Lord Hailsham has served in the office of Lord Chancellor with outstanding distinction.

That being so, in matters where that sort of expertise is available the advice which that House gives should be listened to by this House. Few of us have anything like that wealth of experience—even fewer among those Labour Members who have opposed the amendment, with the exception of the hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman), who has served the courts for many years with distinction.

In order to save time and to put this Chamber right, the House of Lords has made suggestions. I do not think that it matters very much just how irritating the form of words used may or may not be understood to be; the important thing is that the House of Lords sought to improve the Bill. The Minister now concedes that the improvement in the Bill introduced by the House of Lords is acceptable to the Government. If the Lords amendment had been accepted earlier, perhaps time would have been available for more debate on some of the other matters which have arisen in this House.

Mr. Eric S. Heffer (Liverpool, Walton)

Are we not right to be suspicious about the words of anyone who wants to denigrate and diminish the influence of this House? Is the hon. Gentleman aware that in addition to what he said in the House of Lords the noble Lord made a statement on television about wanting to see a constitutional system with a type of Supreme Court, where judges, rather than the House of Commons, would make the laws? I thought that that matter—the rights of this House—had been settled in the period of the English revolution. I hope that all hon. Members on both sides of the House will fight staunchly for the rights of this House against the Lords or anyone else.

Mr. Lawrence

The hon. Gentleman misunderstands the point made by Lord Hailsham in his Dimbleby Lectures when dealing with the problem of an elective dictatorship. He was suggesting not that the judges should make the law but that they should interpret the law according to the wishes of the majority of people in our society.

Mr. Heffer

That is the same thing.

Mr. Lawrence

It is nothing like the same thing. Although I accept, and indeed appreciate, the compromise concession made by the Minister, I believe that the public will be misled if they feel that this Bill makes a substantial contribution to the system of criminal justice. Nothing in the Bill will make it more likely that people will be released on bail who might not otherwise have been released.

If only the Government had devoted more attention to what else could have been done to improve the penal system, particularly in improving the working of the Children and Young Persons Act 1969 in accordance with the recommendations of the Sub-Committee of the Select Committee on Expenditure set up to consider its ineffectiveness, the cause of penal reform and justice would have been much better served and the time devoted to this Bill would have been better used.

Mr. John

With the leave of the House, may I point out that the hon. Member for Burton (Mr. Lawrence) delivered himself of an amazing series of misunderstanding statements about the Bill. He said that nobody wanted the Bill, that it would not change anything and that what was needed was criminal law reform. He thought that we should have devoted our attention to other matters. He ignored the fact that a working party on bail procedures recommended these measures and that that body was composed of academics as well as of distinguished practitioners in the law. Furthermore, the hon. Member said that if we had accepted the earlier formula it would have saved a great deal of time. No doubt it would, but the earlier formula involving the concept of unacceptable risk is nowhere near as strong as the formula now in the Bill.

My hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) drew a sharp distinction between the words "probable" and "substantial". I hope to convince him that the division is not as great as he thinks and that the test in the Bill is a strong one.

I did not pay a great deal of attention to the words of Lord Hailsham, save perhaps where he expressed his views on the constitutional place of the House of Commons. If his words are to be taken as being the only constitutional doctrine, I would disagree with them. I believe that Lord Hailsham was profoundly wrong and that he did a great disservice to those who served on the Standing Committee when he drew attention to the care with which we canvassed these matters. We may disagree with the noble Lord, but when the occasion arises that imputations are made against the good faith and good sense of members of a Commons Committee it is surely a legitimate matter for criticism.

The hon. and learned Member for South Fylde (Mr. Gardner) said that the formula as it left the Commons was defective. I disagree. My hon. Friend the Member for Ormskirk said that we must have regard to the parliamentary situation. Again, I agree that we should be foolish to ignore the realities of the parliamentary situation. I can tell my hon. Friend that the consultations about the formula put forward by the Government in the other place were between members of the Government, among others my noble Friend the Lord Chancellor.

Thirdly, my hon. Friend asks what the phrase substantial grounds for believing means. He asks what criteria would be adopted by the court. When he talks of a subjective test, it is true to say that almost every test is subjective. Even the word "probable" would mean that the test which the court made on the word "probable" would be subjective. There would be a subjective test of the words substantial grounds for believing". The words mean, first, that the court has to be satisfied, not with speculation, not with a convenient "get-out" for denying a person bail, but that there are substantial grounds for believing that a person will, for example, fail to surrender to bail or will commit another offence. That is more than mere speculation. It is more than ordinary chance. There is a strong duty upon the court. If that has not been understood by those who have read previous debates, I am happy to emphasise it tonight.

The criteria are those which will be built up in practice. There are no criteria laid down in the Bill, except in Schedule 1, which suggests the type of thing which might entitle a court to deny bail to an accused person.

Clause 4 of the Bill, like so many other clauses bearing that number in other legislation, enshrines an important principle, namely, the right of an accused person to bail. That right can be taken away only if the high degree of responsibility which falls upon the court under Schedule 1 is discharged.

What I had to bear in mind was that, if the word "probable" was objectionable, no amour propre on my part—I accept that I believed that "probable" was a good word—should be allowed to stand in the way of the Bill becoming law. The formula now in the Bill lays an onus on the court which it will find intelligible but which will not allow it to evade its responsibilities to grant bail as a right. That onus will permit the court to refuse bail only when there are substantial gounds for believing that the accused will either not surrender to his bail or will commit another crime.

Mr. John Ryman (Blyth)

Will my hon. Friend deal with this practical problem which, I anticipate, may well arise? Since the granting or refusal of bail is always a discretionary matter, and since the courts when refusing bail do not normally deliver any form of judgment but simply say that the application is refused, how will a person or his legal representative making application and invoking the proposed section know whether the court has followed the suggested formula? When submissions are made on the lines of Clause 4, how will a court, in granting or refusing an application, discharge the duty laid upon it?

Mr. John

If my hon. Friend examines the Bill, he will see that, for the first time, written records of such bail applications and the reasons for decisions are to be made. The difficulty he sees will not arise.

I commend this proposition to the House, not in any spirit of what has been described as abject acceptance but believing that we have been reasonable in saying that what we are wedded to is the principle and not necessarily the word. We have upheld the principle, and I hope that the House will do the same.

Question put and agreed to.

Lords Amendment No. 2 to the Commons amendment agreed to.