RELEASE OF PERSONS COMMITTED OR REMANDED IN CUSTODY (Hansard, 28 October 1980)

§ Mr. Hooley
I beg to move, in page 3, line 4, leave out subsection (2).
I suggest the deletion of his subsection because it is not clear to me why the Home Secretary should be given such sweeping powers to place on a person who is released under the provisions of subsection (1) absolutely any requirement he thinks fit.
I thought that we were living in the United Kingdom not the Republic of South Africa. This is the sort of draconian provision one expects in certain States but not in this country. We do not expect that a Secretary of State should have the unfettered power to require a citizen to do absolutely what he specifies.
What I find curious about this provision is that under subsection (1) the Secretary of State presumably has already determined that it is not against the public interest, or likely to cause any damage to the public, if the person concerned is released. There will have been a decision by the Home Secretary that whoever is dealt with in this fashion can be released. Presumably some inquires will have been made by an official to determine that such action will not cause any danger or serious harm to the public. I cannot understand why the Home Secretary should have these powers to require that person to do absolutely anything he specifies.
I should be interested to know why it is necessary for the Home Secretary to have the powers and what sort of conditions the Government have in mind to impose on someone who is released in these circumstances. Will he be told to report to the police every two hours, or two or three times a day? Will he be told to go to the labour exchange three or four times a day to see whether any jobs are available? Will he be told that he must live in a different town from his normal domicile or live within a mile or two of the prison from which he has been released?
What safeguards are envisaged in case the requirements imposed by the Home 418 Secretary are regarded by the prisoner, his family or his relatives as unreasonable or improper? Subsection (1) assumes that the release of a person is reasonable and it gives the Home Secretary power to decide on a release. I do not understand why it should be necessary for the Home Secretary to have wide, unfettered discretion, with no appeal, check or safeguard for the individuals involved, to tell prisoners what they must do when they are released.

§ Mr. Brittan
The answer to the hon. Member for Sheffield, Heeley (Mr. Hooley) is simple. In complaining about the potential conditions that would be imposed, the hon. Gentleman assumes that we are concerned with a person who is entitled to be at large and is at risk from the Home Secretary imposing unreasonable conditions. In that situation it would be important that there were strict limitations on the conditions that could be imposed, but we are talking about people who ought to be in custody. Courts will have decided that they should be in custody. A release by the Home Secretary will follow a decision by the courts that a person should he in custody.
In those circumstances, different considerations arise. The person will have no entitlement to his freedom. He will be freed not because he is entitled to freedom, but because the exigencies of the situation make it necessary. It is entirely reasonable that the Home Secretary should be able to impose conditions.
Broadly speaking, the conditions that are envisaged are the same sort as are imposed when bail is granted. For the reasons that I have given, it is unnecessary to specify them, but the conditions will be broadly comparable with those imposed on persons who are given bail.

§ Mr. English
One can understand the conditions of bail under the Bail Act. Why does the clause not simply state that such conditions will be imposed?

§ Mr. Brittan
It is reasonable that the Home Secretary should not be fettered in that way. Broadly speaking, those are the sort of conditions that will be applied, but there may be circumstances in which it is appropriate that others should be imposed. If a person regards the conditions as onerous, he will not have to accept the release by the Home 419 Secretary. That is not an unreasonable proposition when one is talking about a person who has no legal entitlement to bail. One is talking only about someone in respect of whom the court has specifically considered whether bail should be granted and has decided that it should not. One is saying that in those circumstances, none the less, the Home Secretary should be entitled to set him free—not because of the person concerned but because of the situation.

§ Mr. Budgen
Does not my hon. and learned Friend agree that if the prisoner is then released by order of the Home Secretary he has a legal right to be released?

§ Mr. Brittan
I am not sure how narrowly my hon. Friend is arguing that. It is right that if the prisoner is released he is lawfully released, and to that extent that is so, but it is not right to say that he has any right to be released. It is lawful for the Home Secretary to impose a condition, and I have indicated the general nature of the condition.

§ Mr. Budgen
I am sure that my hon. and learned Friend will agree, however, that once the Secretary of State has directed within the terms of subsection (1) the prisoner has a legal right to be released.

§ Mr. Brittan
I do not see my hon. Friend's point. The provision that we are talking about is: A person released under this section may be required by the Secretary of State to comply with such requirements as the Secretary of State thinks fit. No doubt before making any such direction the Secretary of State will consider whether to make such a condition, and, if he does, the condition then applies. It is as simple as that. I do not think that there is any mystery about it.

§ Mr. English
The hon. and learned Gentleman said that we were dealing with the case of a person not entitled to bail, but where does the clause say that? It says: In the case of any person committed in custody for trial"— he may be on remand, in other words— or committed in custody to be sentenced or otherwise dealt with by the Crown Court, or remanded in custody by any court, the Secretary of State may direct". 420 It does not say that the person is someone not entitled to bail.

§ Mr. Brittan
The hon. Gentleman is not making one of his better points. Plainly, the person concerned may obtain bail at some future time, but at the time in question the very fact that he has been remanded in custody means that he has not been given bail.

§ Mr. English
The hon. and learned Gentleman said "not entitled".

§ Mr. Brittan
The person has not got bail; he is not entitled to it—

§ Mr. English
At that moment.

§ Mr. Brittan
Yes—at that particular moment. He may get it next time.

§ Mr. Andrew F. Bennett
The person may not have got bail, not because he is not entitled to it but because at that time he cannot raise the sureties for it. Surely that is different from the question whether he is someone to whom the courts would grant bail provided certain conditions can be met.

§ Mr. Brittan
I do not think that the hon. Gentleman is right. If sureties have been demanded and the person cannot provide them, he is not entitled to bail until he has provided them.

Mr. J. Enoch Powell
It may be for the convenience of the Committee and the abbreviation of these proceedings—supposing that to be desirable—if I phrase in the form of an intervention a point that I had hoped to put to the Minister later. A little while ago he seemed to say that it was at the option of the person concerned whether he would accept the onerous suggestion of release. The Minister said that if he does not like the conditions he need not be released. This is remarkable because, presumably, if the Secretary of State has directed that he should he released, he is released with no argument. In order, therefore, to fit the assertion of the Minister, we should have to assume that before the Secretary of State issues a direction he institutes an inquiry among likely candidates for release, setting out the conditions on which they might accept a direction. This is a most agreeable form of industrial relations. When both parties are satisfied with conditions under subsection (2) then, and only then, does the fiat of the Secretary 421 of State issue, and the man, having committed himself to be released, is released with no possibility of looking back and with no opportunity of hammering again on the doors of the police station saying that he did not understand the conditions, that he does not like them, and that he would like to come back in again. It is like Grimms' fairy tales.

§ Mr. Brittan
Where the right hon. Gentleman and I differ is that I am not sure which of Grimms' fairy tales he had in mind. That is no doubt a matter on which he will be able to enlighten us with his customary erudition. I do not think that there is any mystery. It is normal in the case of bail applications for conditions to be applied on a simple basis. They are conditions that are normally designed to make sure that the person answers to bail.

§ Mr. English
The right hon. Gentleman was not saying that.

§ Mr. Brittan
If the hon. Gentleman will allow me to answer the point, that will be more convenient for the Committee. If the Secretary of State regards the condition as being necessary, it may be a condition that he can simply impose or a condition that effectively requires the consent of the person on whom the condition is imposed. There is nothing unusual or strange about the situation. At the end of the day the Home Secretary will have to decide whether a person is to be released with those conditions or without those conditions, in exactly the same way as a court decides whether to grant bail.

§ Mr. Hooley
I am grateful to my hon. Friend the Member for Nottingham, West (Mr. English) for drawing attention to the point about bail. He has reminded me that subsection (3) states: that duty shall be enforceable, in accordance with section 6 of the Bail Act 1976 as if his release under this section were release on bail in criminal proceedings. I am not sufficiently familiar with the law to know what sorts of conditions are imposed or required under the Bail Act or any orders or directives made under the Act. Subsection (3) states explicitly as if his release under this section were release on bail in criminal proceedings". 422 Surely, there are already statutes and regulations covering that matter. I fail to see why the Home Secretary should be given sweeping and extra powers under subsection (2) to impose absolutely any conditions that he may think fit. It is clear from subsection (3) that the Minister is right in saying—I must apologise for not having picked up that point—that the Act does say that this is the kind of thing envisaged. If that is the case, under the provisions of subsection (3), I do not now understand what is the necessity for the sweeping powers, taken under subsection (2), which enable the Home Secretary to impose any conditions.
If the Bail Act or the regulations there under are defective or inappropriate, the Minister can perhaps say so. The Minister said that that was his intention. Under such circumstances I cannot understand why subsection (2) is required.

§ Mr. English
My hon. Friend the Member for Sheffield, Heeley (Mr. Hooley) is right. Either the Minister has an appallingly bad brief or he has been reading that part of it which relates to clause 3(3). Everything is in subsection (3). It says: That duty shall be enforceable in accordance with section 6 of the Bail Act 1976". The Minister surely will admit that a subsection could have been written expressing exactly what he has said. He has said that the type of condition intended is that which can be imposed when people are released on bail under the Bail Act. If that is so, why on earth does not the subsection say so? Instead, it states: A person released under this section may be required by the Secretary of State to comply with such requirements as the Secretary of State thinks fit. In other words, the Government are saying " Provided that you beat your wife regularly we shall release you." or " Please go and buy 2 lb of butter at a particular grocer's every week."
What is the limitation of the clause? Why is it so widely drawn? It seems to be the product of a draftsman's slovenliness. It is easy to draw a wide clause to cover all possible cases. Whoever wrote the Minister's brief must have had in mind some of the cases that it was intended to cover. The provision is unnecessarily wide. The Minister has a 423 little time, since the Bill must go to the Lords. He should withdraw the clause until he can give an assurance that some limitations will be placed on it.

§ Mr. Budgen
I do not agree that subsection (2) is unnecessary because of subsection (3). Subsection (3) relates only to the duty to surrender into custody. A person on bail might have a number of other duties. For instance, he might be under a requirement to report to a police station at various times in the day or to notify the police of his address. Such requirements could be made under a more narrowly defined subsection (2).
I agree that subsection (2) is wide, and could lead to abuse. If it were drawn in a narrower form I should support that part only of clause 3 to which in principle I am opposed.

§ Mr. Brittan
My hon. Friend is right to say that subsection (3) has nothing to do with conditions but merely provides that the duty is enforceable in the courts under section 6 of the Bail Act 1976, which deals with the offence of absconding by a person released on bail. It imposes a duty to respond to the bail. The question of conditions is a separate matter. That is why it is necessary to have subsection (2) as well as subsection (3).
I concede that the clause is extremely wide. I have explained the way in which the Home Secretary will apply it. It is entirely legitimate, particularly when we are discussing emergency provisions that are in force for only one month, to indicate exactly what the Home Secretary proposes to do.

§ Mr. Budgen
The provisions can be renewed.

§ Mr. Brittan
Of course they can be renewed. At the end of a month the House will be in a position to judge how the power has been exercised. I have explained the difference between what is being done on this issue and on the question of bail where there is a legal entitlement.

§ Mr. Alexander W. Lyon
I beg to move, in page 4, line 2, to leave out he is delivered in due course of law 424 and insert he is brought before a court at the earliest opportunity after his arrest". The amendment is related to subsection (7) and to the power of a constable to arrest any person who has been released under the Secretary of State's authority under the clause in circumstances that the Committee may think deserve more probing than we can afford to give them tonight.
The relevant phrase in subsection (7) deserves a closer examination, and it is in a probing spirit that I move the amendment. Where the person is arrested by the officer on suspicion that he will not honour the conditions of bail that have been granted by the Secretary of State, the subsection says that he must be kept in custody in a prison until he is delivered in due course of law. I want to know what those words mean in terms of the law both as it stands and as it is amended by the Bill. The point that I have written into my amendment is that he should be brought before the court at the "earliest opportunity". I should have thought that that was more desirable than in due course of law. The "earliest opportunity" might be a little sooner, especially in the light of clause 2. It is therefore desirable that we insist that where the officer acts in this way to arrest a man who has already been released by the Secretary of State, that man should be brought before the court without delay.
I am caused to argue in that way by the width of subsection (6). The constable needs only to have "reasonable grounds" to believe that the accused is unlikely to respond to the conditions of his bail. It is difficult to see what limits exist in that. "Reasonable grounds" are the delimiting words, and they can mean anything according to the test that is applied by the court or, under a subjective analysis, by the officer. If a man has been released from custody under this executive bail and is then seen in the street by the officer who arrested him in the first place, that officer taking a different view of the merits of the situation from the Secretary of State, the officer may think that it is only right to take the man into 425 custody and shove him into a police cell.
That kind of cat-and-mouse game ought not to be played. The only way in which we can ensure that it does not, and that the power in subsection (6) is exercised sensibly, is by insisting that the man is brought before the court at the earliest opportunity, so that the court can determine perfectly clearly whether the officer exercised his power correctly in proper circumstances. I hope, therefore, that the Minister will be able to accept the amendment or, if he cannot, that he can assure me that my anxiety is unjustified.

§ Mr. Stainton
I wish to supplement the remarks of the hon. Member for York (Mr. Lyon) by saying that it is slightly bewildering that the provisos, slender though they are, of Part II of the Bill do not extend to subsection (7). It is to that context that I wish the Minister to address his remarks.

§ Mr. Brittan
I shall explain the position relating to subsection (7). A person arrested in pursuance of subsection (6) is put back into the position that the court originally created, namely, of being arrested and in custody. There is no point in requiring that he be brought before the court at the first possible opportunity because the court decided some time previously that he should be in custody. It would have been the Home Secretary who released him, not the court.
The hon. Member for York (Mr. Lyon) raised a different point. It was not the point that I had expected; none the less, it requires to be dealt with. The hon. Member suggested that there should be some protection against a constable taking somebody into custody without reasonable grounds. The difficulty is that the court before which the prisoner was brought would not have the power to determine that issue. Under the Bill, or under any normal provision of law, it would not have that power. It would have to be tested in a different way. The amendment suggests that in the case of an arrest the position should be restored to exactly what it was when it was created by the court in the first place, and before the Home Secretary intervened.

§ Mr. Lyon
I find that explanation quite seriously disturbing. A man may come before a court in the present crisis and be remanded not for seven days, as would be usual, but for 28 days, to pass the period of the crisis. Because of his concern for congestion either at Brixton or a prison camp, the Home Secretary may release him after two days. If the man then walks around in Lambeth and a police officer sees him and says "I do not think you should be out; I shall arrest you and put you back into a police cell", according to the Minister he cannot appear in court before the 28 days because the court cannot question him. He is the subject of cat-and-mouse treatment.
I could not lay down any qualification on the power in subsection (6) because it is manifest that if a police officer saw the man boarding a boat for Canada when he was supposed to stay in Britain there would be reasonable cause for taking him into custody believing that he intended to break the conditions of his executive bail. If the police officer abuses his power by arresting him when he has been released on executive bail simply because he disagrees that it was reasonable to release him because he thinks that he is a serious criminal who should not be given bail, it is intolerable that the police officer should superimpose his judgment on that of the Home Secretary and that that should not be tested by a court at the earliest opportunity.
I ask the Minister to consider what the position would be. Of course the court would have the right to consider the matter. If the man were brought before the court immediately, the court said "We were not supposed to see him for 28 days, why is he here?", and the story came out, does the Minister seriously think that the magistrates would approve of the police officer's action and say "You must wait for the other 28 days"? The court would say "Not on your life. We release you on bail here and now. If the Secretary of State cannot keep you when we told him that he had to, we shall release you on bail on our conditions". That is surely the right way to look at this.
Such a person ought to be brought before the court at the earliest opportunity in order that the court can decide what should be done, recognising that if the 427 Secretary of State let him out there are difficulties about putting him back in again. Therefore, the court should decide the conditions and what ought to happen. I seriously ask the Minister to consider this point. Obviously, I cannot press it, but a real problem exists. It may be that before the Bill goes to the other place something could be done about providing some protection.

§ Mr. Stainton
I should like to press the Minister on the possibility of making subsection (7) subject to the very lean safeguards of clause 2, which would operate quite admirably in these circumstances. The court could then summon this prisoner if it wished to, and it could even proceed to adjust the situation by offering bail or fresh terms of custody. I cannot see why clause 2 should not apply.

§ Mr. Brittan
I am sorry, but I do not think that I understood the point when it was first put. I think that I do now. I think the answer is that clause 2 continues to apply, because the position then is just as if the person had been remanded in custody.
I should like to answer the further remarks of the hon. Member for York (Mr. Lyon), because I know that he has made a serious point. It really is not a question of the superimposition of the constable's view as being different from that of the Home Secretary. If a constable is doing that, he is really acting in bad faith. That is not what he is entitled to do at all. He is considering whether there are reasonable grounds for believing, for example, that the person is not likely to surrender himself into custody. That is quite a different matter from second-guessing the view of the Home Secretary.
Therefore, when we are talking about the application of the Home Secretary's release provisions. it would be quite inappropriate that a court that has had nothing to do with that decision should consider it. It has considered the ordinary question of bail and formed a different view.
The hon. Gentleman then asked about protection against the constable acting in bad faith and arresting a person when he purports to have reasonable grounds and does not. The answer is that such an arrest would be unlawful and would be challengable not before the magistrates' 428 court but in the way in which anyone unlawfully arrested may challenge an arrest.

§ Mr. Lyon
I am sorry. I did not want to detain the Committee for so long. However, is it right that we should go through the procedure of the prerogative writ in order to determine mala fides in a police officer who may simply be "stroppy" and who takes a person into custody when he should not have done? Surely the whole purpose of going before the magistrates is that that matter could be ironed out very quickly and easily, in a commonsense forum, where the magistrates would say "Well, clearly we cannot adhere to our original order because the Secretary of State does not have room in the prison, but we ought to make different terms and conditions, because it is quite wrong that this man was rearrested". Surely something could be done before the Bill goes to the other place.

§ Mr. Budgen
I hope that the Minister will explain, in relation to both clauses 3 and 5, why the Government find it necessary to ask for each of these additional powers. It can be accepted that they now have powers under clause I that will lead to a substantial break in the monopoly powers exercised by those who supply the services that are given by prison officers. If they have those powers, why is it necessary for them to have the further powers that are set out in clause 3?
I understand why the Home Secretary and the Minister of State have said that they believe that those powers are necessary to their central objective, but the blanket way in which they have been recommended is an inadequate explanation to the Committee. Each power has the effect of relieving the prison population of a certain number of people.
The Committee may take the view that the granting of one of those powers is necessary in the special circumstances facing the prison service now. It does not follow that they are all necessary. I hope that the Minister will tell us, for 429 instance, how many places he can expect to be provided within the next two weeks under the powers included in clause 1, and then explain why it is necessary to ask for the powers set out in clause 3. He and my right hon. Friend the Home Secretary concede from the outset that the powers granted under clause 3 raise serious objections of principle.

§ Mr. Stainton
I wish to make three brief, largely drafting points.
Subsection (1) does not make clear whether there will he any public knowledge of the persons who are being released. It is desirable and important that that information should be available.
Under subsection (2) the Secretary of State will have the power to stipulate requirements. There is no requirement about how those provisions and conditions are to be intimated to the person concerned.
In subsection (3) I distinctly dislike the " notice in writing " that is to be given to the prisoner, on behalf of the Secretary of State at or after the time of his release. I propose that the words "or after" be deleted. Those words could lead to considerable confusion, despite, in certain circumstances, the complete innocence of the person concerned. It is simply playing safe from the Home Office standpoint in case the paper work falls behind.
I repeat that it would be desirable to place a duty on the Secretary of State under subsection (2) as to the communication of his requirements in writing to the affected party at the time of his release.

§ Mr. Brittan
I deal first with the comments of my hon. Friend the Member for Sudbury and Woodbridge (Mr. Stainton). I was first asked about "any public knowledge" of the people released. If my right hon. Friend had to exercise this power he would propose to make public the categories of offenders who were to be released. As was explained at an earlier stage, it would be a question of the release of categories, with the possibility of the police applying to the Home Secretary for an individual, 430 for particular reasons, not to be released although he comes within the category.
Secondly, there is not a specific provision in the Bill specifying how requirements have to be communicated, although there is clearly, by implication, a provision that makes it necessary for the requirements to be communicated.
I see the force of what my hon. Friend said. I think that it would be desirable and, I suspect, invariably the practice, for the requirements to be communicated in writing where such requirements are imposed, but I concede that it does not appear on the face of the Bill and is not actually a legislative obligation imposed upon the Secretary of State.
Thirdly, my hon. Friend asks why it is necessary for it to be possible for the person who is released to be told not only at the time but also afterwards where he has to turn up, as it were. It is necessary to provide that the released person may be informed of the arrangements for his surrender to custody after he has been released because the time and place of the next hearing of his case may not always be known at the date of his release. It is for that reason alone.
My hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) asked whether it was necessary for this power to be taken. The answer is that my right hon. Friend thinks that it is necessary, because at present we have 3,500 people in police cells, and that is a wholly unsatisfactory situation because, as many hon. Members have pointed out, police cells are not suitable for prolonged incarceration.
As to the relief provided by clause 1, as my right hon. Friend indicated, Frank-land prison will be available as from Thursday morning to take a maximum of 900 people. I have already indicated that the only alternatives at present envisaged are Army camps. Although those are being investigated and explored, I am not in a position to say that specific Army camps are now available. In that situation it seems to me that, subject to the close supervision of the House of Commons that is provided for in effect by the Bill, it is both necessary and reasonable for my right hon. Friend to 431 be given the powers specified in the clause.