HC Deb 20 January 1982 vol 16 cc294-307

Order for Second Reading read.

Mr. Speaker

I must tell the House that a large number of hon. Members wish to participate in this debate.

4.23 pm

The Secretary of State for the Home Department (Mr. William Whitelaw): I beg to move, That the Bill be now read a Second time.

This is a wide-ranging Bill, but most of its provisions relate in one way or another to the sentencing of offenders. Its primary purpose is to provide the courts with more flexible and effective powers for dealing with the diversity of offenders who come before him. This reflects the strategy with which the Government entered office and which we have pursued steadfastly.

In our election manifesto, we recognised the need for more flexible, more effective sentencing to take account of the need for tough sentences in appropriate cases and shorter custodial sentences in others; the importance of effective non-custodial sentences in which the courts have the fullest confidence; and the need; of victims of crime. I should make it clear that in our judgment "appropriate cases" means, in particular, those violent offences that are causing so much worry at the present time.

The Bill supports these aims. We have already carried out specific commitments, like the expansion of attendance centres and the experiment with tougher regimes in detention centres. The Bill gives us the opportunity to fulfil others.

In the last couple of years we have received a series of major reports. These have included the report of the Expenditure Committee, the May committee of inquiry the Home Affairs Select Committee and the all-party penal affairs group. We have set out our approach in our responses to these reports most recently in last month's debate on the prisons, and in our reply to the Home Affairs Committee's report on the prison service. I shall concentrate today on the contribution that the Bill itself makes to our wider strategy.

Part I of the Bill gives effect to the proposals that we published in our White Paper in October 1980, and makes long overdue changes in the sentencing structure for young offenders, those under 21. There is a great deal of public concern about criminal behaviour by young people. The Government share it. The courts in this country, and particularly the juvenile courts, carry out an immensely difficult task on our behalf. They must have a proper range of powers to enable them to do justice in the circumstances of each case, and to provide an apt response to public concern. They need flexibility. They do not have enough at present. We must have a sentencing structure which, while recognising that custody may be essential, secures that it be used only where necessary.

To achieve these aims, part I of the Bill abolishes imprisonment for young offenders, and with it the much resented restrictions that section 3 of the Criminal Justice Act 1961 placed on the passing of sentences of between six months and three years. It also abolishes the indeterminate sentences of borstal training. It replaces them with a more flexible structure of detention centre and youth custody sentences whose length is, within statutory limits, to be determined by the courts.

Our policy is clearly stated in clause 1 of the Bill. No court may impose any custodial sentence on a young offender unless it is satisfied that no other method of dealing with him is appropriate. By broadening and strenthening existing non-custodial provisions, part I will assist the courts to avoid a custodial sentence except where one is absolutely necessary.

Let me remind the House that at present, if a court dealing with a youth of 15 or 16 comes to the conclusion that his offence is so serious that a custodial sentence is unavoidable, it has to send him to a detention centre for at least three months, or to borstal, which normally results in eight or nine months in custody. What we propose is a clear statutory prohibition on custodial sentences on offenders under 21 unless there is no other appropriate way of dealing with them. Additionally, we propose that in such a case a court will be empowered to impose a sentence of no more than three weeks. This gives effect to our policy that young people should be locked up only when it is wholly unavoidable, and then for as short a time as possible.

Thus the new detention centre order provided by clause 2 will have a new minimum of three weeks. In place of borstal and imprisonment for the under-21s, clause 4 provides the courts with the power to impose a new sentence of youth custody for the precise period, over four months, which they consider necessary. This new structure means that it is for the courts, not the Executive, to decide for how long a person should be deprived of his liberty. And, for the first time, time spent in custody on remand will count towards both the major young offender sentences.

The courts should as far as possible know what type of regime the offenders that they sentence will undergo. Under clause 10 a young offender with a youth custody sentence of more than four months but not more than 18 months will be detained in a youth custody centre. That guarantees a training regime, and it applies to a wider effective sentence band than the present borstal sentence. We do not yet have sufficient young offender training accommodation to give this guarantee to all youth custody trainees, but we are providing a framework that places as much emphasis as possible on training. It offers a choice to the courts, and it preserves the distinctive regime of the detention centre.

I turn to the non-custodial provision in part I. Clauses 15 to 18 deal with attendance centres and they largely consolidate existing provisions, but they make some small changes that will be useful, especially at a time when we are continuing with our expansion of the attendance centre system. In particular, clause 16 will for the first time give the Crown court power to make an attendance centre order in cases tried before it.

Clauses 19 to 24 contain most of the extremely important provisions that we intend to make to strengthen the confidence of the courts in non-custodial sentences for the under-17s. Clause 19 strengthens the supervision order. Existing powers enable substantial action to be taken by the supervisors—either local authority social workers or probation officers. We believe that supervision can be an appropriate way of dealing with juveniles, even when they have committed quite serious offences. But the courts need to play a bigger part in the decision if they are to have confidence that a difficult youngster can be placed under supervision. Clause 19, therefore, gives the courts new powers under which they will be able, in consultation with the supervisor, to specify in the order itself what requirements the juvenile will be asked to comply with. There will, therefore, be discussion before the order is made between the bench and the supervisor about what is most appropriate for the offender, and the order itself will specify the activities in which the offender will participate.

Mr. Teddy Taylor (Southend, East)

Why has my right hon. Friend included the requirement that such conditions must be totally agreed to by the supervised person before the order can operate?

Mr. Robert Kilroy-Silk (Ormskirk)

The order will not work otherwise.

Mr. Whitelaw

The requirement is included because it is important for the workability of the whole provision. My hon. and learned Friend the Minister of State reminds me that it is also the principle of the probation order. That also is very important.

Under the provisions of clause 20, the local authorities will become responsible for the provision of facilities, in place of the children's regional planning committees. They in turn will be obliged to consult probation and after-care committees about the arrangements made. Facilities for the supervision of juveniles need better local co-ordination, and clause 20 will provide this. There is also provision in schedule 9 to enable the probation service, for the first time, to provide from its own resources facilities for juveniles under supervision.

The Bill also tackles a problem that emerged almost as soon as the Children and Young Persons Act 1969 came into force and that has caused difficulty ever since. It arises when a child is made subject to a care order because he has committed an offence and then commits a further serious offence for which he is again brought before the court in criminal proceedings. Other than simply renewing the care order, there is little that the court can do to mark its further disapproval of the new offence, except, if he is aged 14 or over, to pass a custodial sentence. But our intention is to reduce the need for custodial sentences for young people. In these circumstances, too, we feel that the right way to achieve this is to give the courts more confidence in using the alternatives available.

Clause 21, therefore, gives effect to our commitment to introduce a residential care order. It provides that where an offender in care commits a further offence the court can, if the circumstances make it desirable, add a condition to the care order for a fixed period of up to six months. The effect of this is that the local authority's discretion to place the child with a parent, guardian, relative or friend will not, for that period, be exercisable. In this way the court can ensure that the offender is not returned straight home, and that the removal from home will be seen, both by the public and by the offender himself, as a direct result of the commission of the further offence and the court appearance. This represents a significant addition to the various non-custodial disposals available, and it is a power for which the courts have been asking for a long time.

These changes to the supervision and care orders will impose additional financial burdens on the local authorities. It was made clear by my right hon. Friend the Secretary of State for Social Services some time ago that these provisions would be brought into effect only when the necessary additional resources were available. It is our intention to find those resources as soon as possible so that the local authorities can give effect to these new orders.

The Bill also provides, in schedule 10, for the extension of community service orders to 16-year-olds. They will be subject to the conditions that already apply to offenders aged 17 years and over, except that there will be a maximum of 120 hours instead of 240. Community service has already proved its value for the older age group. The number of orders made has continued to rise since its introduction, and the figures for 1980 show a proportionate increase in the use of community service for those convicted of indictable offences. Careful preparation will take place before community service is introduced for this age group, and I shall have to be satisfied that the arrangements are adequate.

I have often voiced our concern about the responsibilities of parents in relation to children who offend. There are at present rather complex provisions that enable the court to order parents or guardians in certain circumstances to pay fines, compensation or costs awarded against juveniles. We are convinced that the law can make a greater contribution. The changes made to these provisions in clauses 22 to 24 are therefore designed to strengthen and clarify the courts' powers.

The court must order that fines, compensation or costs awarded against a juvenile should be paid by his parents or guardian unless, in all the circumstances, the court thinks that it would be unreasonable to make them pay. The parents have a right to be heard and a right to appeal against the order.

There is also a useful power under which parents or guardians can be bound over for up to three years to take proper care of the child and exercise proper control over him.

Mr. Douglas Hogg (Grantham)

I can clearly understand why parents or guardians of young persons who fail to comply with a fine order should be made to pay in default. In effect, they will be guarantors. But I am not so sure that I see why the parents or guardians should be primarily liable to pay the fine. My right hon. Friend might care to amplify that.

Mr. Whitelaw

I must return to the point that it must be reasonable in all the circumstances. That underlies the position. It helps to show the parents and guardians their particular responsibilities.

Mr. Arthur Lewis (Newham, North-West)

I am not opposed to what the right hon. Gentleman proposes, but I should like a further explanation. At present, millions of pounds of fines have not been paid, and will not be paid, by convicted adult criminals. The Home Office refuses to do anything about the matter, and refuses to give the figures. What will happen if parents join the list and also refuse to pay the fines of their children?

Mr. Whitelaw

If I was to start to get into an argument with the hon. Gentleman on these matters I might prolong my speech, which would not be the wish of the House. The Minister of State will seek to reply at the end of the debate to what the hon. Gentleman said—

Mr. Arthur Lewis

I knew there was no answer to that.

Mr. Whitelaw

—provided, of course, the hon. Gentleman is here at that time.

Mr. John Carlisle (Luton, West)

I am a little concerned about the certain circumstances in which the magistrates will not impose a fine upon the parents. How different is this Bill from previous Acts under which the magistrates had a get-out, as it were? They still have one under this Bill. I fail to see how there is any difference.

Mr. Whitelaw

This is to be argued during the passage of the Bill. It is simpler, and expressed in a clear way that emphasises the responsibility of the parents for their children.

Mr. Keith Best (Anglesey)

Would not my right hon. Friend accept that in this clause he is introducing a concept of vicarious responsibility of parents that has not existed before? Is he aware that this is the case?

Mr. Whitelaw

I hesitate ever to enter the lists with lawyers, but I am assured that a principle of this sort has been in operation since about 1933.

I will continue, I hope, from where I left off. If they enter into an undertaking of that kind, a recognisance can be set up to a maximum of £200. Clause 24 increases that to £500.

Taken together, then, the custodial and the non-custodial provisions for young offenders in the Bill represent a major and overdue change in the sentencing structure, a change that is designed to ensure that for violent and other dangerous offenders custodial—and, if necessary, long—sentences will always be available. 1 share fully the concern that has been expressed by many hon. Members about the level of violent crime in out society. This is something that we cannot and must not tolerate. The maximum sentences already provided by law for crimes of violence are very severe indeed.

As regards the type of sentence to be selected by the courts, I note that, for example, the Lord Chief Justice has made it clear that in all but wholly exceptional circumstances those who commit rape must expect an immediate custodial sentence. It is right that society should mark its horror of violent crime in this way. But at the same time the courts will be offered a more flexible range of non-custodial sentences for use where the justice of the case does not demand that the offender go into custody.

We had a full debate before Christmas in which I explained the Government's policy towards overcrowding in the prison population. I do not need to go over that ground again. As the House knows, we intend to bring section 47 of the Criminal Law Act 1977 into force before Easter, when the necessary preparations have been completed. The new power will enable the courts themselves, in cases where a sentence of immediate imprisonment of six months but not more than two years seems inevitable, to reduce if they see fit the period actually to be served in prison. Clause 25 extends the scope and flexibility of section 47 to enable the courts to make maximum use of the power.

We are convinced that section 47 will be used to reinforce the welcome movement that we have already seen towards shorter sentences. There is an important provision in clause 25(4) that will contribute to this.

Mr. Kilroy-Silk

Could the right hon. Gentleman tell the House what evidence he has that the introduction of a partially suspended sentence will reduce the prison population that is different from the evidence available to the then Minister of State when he spoke to the House in December 1979 and which was available to him when he wrote the review of parole in May last year, on both of which occasions it was said that the introduction of such a scheme would lead to an increase in the prison population?

Mr. Whitelaw

I did what I believe is right in a democratic system; I consulted widely all those concerned. The result of the consultations led me to believe that in the current climate of shorter sentences this would be the case. This is what those who impose the sentences, both judges and magistrates, believe. I have every reason to trust their judgment and I have done so. If it is to be said that I should not trust their judgment that would be a great mistake. I believe they will show that this power will work to the best advantage.

In this country our whole approach to sentencing has been based on the principle that within the framework set by statute it is for judges and magistrates to impose the sentences they deem appropriate in each particular case. I pay tribute to the way in which our under-provisioned prison system has coped with the pressures that result. I believe that this Bill, by reinforcing the movement towards shorter sentences, will help to relieve them. But we must recognise that the stresses that can occur within the prison system are, of their nature, never predictable. Pressures could arise which made it necessary, as a last resort, to take drastic action to avert the breakdown of the system.

Clause 26, therefore, incorporates in permanent form provisions for the early release of prisoners on the lines of section 5 of the Imprisonment (Temporary Provisions) Act, which it supersedes. The use of the powers, if, indeed, it became necessary, would be subject to firm parliamentary control, with any order for early release requiring the approval of both Houses. These requirements are in subsections (7) and (8). The clause is thus subject to extensive safeguards. It would involve the release of prisoners who are due to become free within six months in any case; and categories of offender who have committed particularly serious offences could be excluded.

The Imprisonment (Temporary Provisions) Act also introduced a power to enable magistrates' courts to remand accused persons in their absence. I think that it is generally agreed that that provision, when it was in use during the industrial action in the prisons, worked well. Certainly, no evidence came to our notice that it caused disadvantage to defendants. Clause 42 and schedule 8 together amend the Magistrates' Courts Act 1980 to make such a power a permanent part of our law, as I foreshadowed in answer to a question by my hon. and learned Friend the Member for Burton (Mr. Lawrence) on 18 June last year. The provision does not apply to juveniles.

Remand hearings are very often short, with neither side making any application to the court other than that the case be adjourned and the defendant remanded. Where the defendant is remanded in custody, however, these weekly appearances in court are costly in terms of the police and prison manpower expended on escorting the prisoner to and in the court. A provision to remedy this was moved by my hon. Friend the Member for Chislehurst (Mr. Sims) during the passage of the Criminal Law Bill in 1977. It was because of their concern about the resource implications of this aspect of remand hearings that both the Select Committee on Home Affairs in its report on the prison service and the parliamentary all-party group have suggested that provision be made that is broadly similar to my present proposal.

Mr. Clinton Davis (Hackney, Central)

I am most grateful that the right hon. Gentleman is prepared so readily to give way. It is expected that it will be possible for an accused person not to have to appear for successive hearings. Does the right hon. Gentleman expect that in the interim it might be possible for the accused person to be represented? Given, I think, the Lord Chancellor's suggestion that unnecessary appearances by a lawyer might not be reimbursed, what is the position if the accused is represented under legal aid? If the accused's non-appearance is permitted under those circumstances, does it not follow that he is highly unlikely to be represented by a lawyer, particularly when that lawyer will not be reimbursed?

Mr. Whitelaw

I think that my next remarks will deal with the points that the hon. Gentleman has raised. If they do not, the Minister of State will supplement my remarks later.

Both groups of hon. Members would prefer to see only two successive remand hearings taking place in the defendant's absence. As the Government have explained in the recent White Paper, replying to the report of the Home Affairs Committee, we are more than ready to hear argument on this point, but it is reasonable to allow three successive remands without the defendant being present.

Fears have been expressed in some quarters that the rights of the accused will in some way be undermined by the proposals. I think that that was the point made by the hon. Member for Hackney, Central (Mr. Davis). But, as provided in paragraphs 3 and 4 of schedule 8, a hearing in the defendant's absence will be possible only if he is legally represented and gives his consent. It will be open to him, after giving his consent, to withdraw it at any time and so secure his production before the court. I therefore see no reason to fear that a defendant's rights will be diminished. I hope that the House will support these proposals under which, if a reasonable number of defendants elect to take advantage of the provision, some much-needed relief will be provided for the hard-pressed police and prison services.

The various provisions that make up the rest of the Bill reflect our commitment to strengthen the provision of alternatives to custody and to do more to meet the needs of victims of crime, who often feel forgotten. The probation service is the major agency for dealing with offenders in the community. In the debate on the prison service on 2 December I was able to inform the House that additional provision was planned for the service for 1982–83. We have all been encouraged by the increased use both of the probation order and of the community service order. If the probation service is to continue to respond to this challenge, it is right to allow greater responsibility at the local level. The Bill provides an opportunity to relax some of the controls over the service that are now exercised by central Government. These changes in clause 43 and schedule 9 have been agreed with the service organisations, and are intended to allow the service to operate more flexibly and to be better able to use new opportunities. There are also minor changes in court procedures in connection with probation orders and community service orders, which should simplify the current arrangements. The Bill makes provision for the transfer of community service orders between the various jurisdictions in the United Kingdom.

Parts III and IV deal with fines. The significance of the fine is clear from the fact that in 1980 fines were imposed on over half the offenders sentenced for indictable offences in magistrates' courts. The great majority of those sentenced for summary offences are fined. To keep the use of the fine at these high proportions, we must ensure that the maxima for individual offences are not so undermined by inflation that they become no more than tokens, causing the courts to look to other, and perhaps less cost-effective, sanctions. Fine enforcement machinery must be as effective as possible.

Until now, the revision of maximum fines for summary offences has been a slow and piecemeal business. Criminal Justice Bills have brought some fines up to date, and others have been revised when there has been a Bill on the topic to which the offences relate. But a large number of fine maxima remain outdated, and the penalty structure for summary offences generally suffers from gross inconsistencies.

Part III of the Bill for England and part IV for Scotland lay the basis for a more rational and cohesive penalty structure. They introduce a standard scale of fines for summary offences and assimilate all maxima in Acts to that scale. The Bill takes over the fine level scale established by the Criminal Law Act 1977, updates to it all maximum fines for summary offences in Acts unaffected by that Act or subsequent Acts, and assimilates to the levels on the scale all summary maxima so that they may be altered by order. Some adjustment of the broad effect of these provisions in relation to particular penalties is carried out in parts III and IV and in schedules 1 to 7.

Clauses 37 and 38 make improvements in the law on fine enforcement procedures. Clause 37 gives effect to a proposal by the National Association for the Care and Resettlement of Offenders working party on fine default that a magistrates' court should be able to set a time when a person ordered to pay a sum by instalments should appear before it if at that time any instalment remains unpaid. It also gives a court power to vary the number, amount and timing of instalment payments of a fine. Clause 38 provides for the reciprocal execution with Northern Ireland of warrants of commitment to prison for fine defaulters.

The need to pay special attention to the victims of crime is an issue, as I have said, to which the Government attach the greatest importance. The Bill provides a timely opportunity to extend and to clarify, in the interests of the victims of crime, the general compensation power in section 35 of the Powers of Criminal Courts Act 1973. We consider it right that where an offender's means are limited and he cannot afford to pay both an appropriate fine and the appropriate compensation, the interests of the victim should prevail over the interests of the Crown and preference be given to the ordering of compensation. Moreover, if the court in a particular case sees fit to dispense with a fine completely, leaving the compensation order as the only sentence imposed, we think that it should be free to do so. That is already the situation in Scotland under the Criminal Justice (Scotland) Act 1980.

We also want to make it clear that the courts can order the compensation that they think appropriate in a particular case, without the precise value of the victim's loss necessarily having been agreed or proved. That will rectify the results of certain court cases, which have had restrictive effects on the use of the powers of the courts to make compensation orders. Clause 44 gives effect to those changes.

I firmly believe that the Bill offers Parliament the opportunity to enhance the ability of the courts to deal effectively and flexibly with the offenders—especially young offenders—who come before them, in a way that should preserve public confidence in the ability of the system to deal firmly and fairly with offenders. Its provisions reflect strong commitments on the part of the Government. It honours pledges entered into in our election manifesto. The Bill is being brought before the House at a time of increasing public and parliamentary concern about the process of sentencing offenders. Wider and more informed discussion of these issues is very much to be welcomed. It is in that spirit that I commend the Bill to the House.

4.59 pm
Mr. Roy Hattersley (Birmingham, Sparkbrook)

The Bill was published on 2 December and on that day we debated an Opposition motion concerning what we called the crisis in the prison service. The Home Secretary properly used his speech on 2 December to set out some of the proposals of what was then the Government's brand new Bill. He will not quarrel today with the contention that 2 December was at least a prelude to a major part of the debate today concerning part II.

I do not propose to repeat what I said six weeks ago to justify the assertion I then made that our prisons are an affront to a civilised society and that their overcrowding is a threat to the maintenance of law and order. On part II and the issue of custodial sentences, which must dominate our consideration of the Bill, I simply repeat what I said before Christmas: we send too many people to prison in Britain, and many of those who must receive custodial sentences are imprisoned for far too long. The corollary of those two contentions is that we continue to neglect at our peril paying proper attention to non-custodial sentences.

I suspect that in general the Home Secretary agrees with all three particulars I have given. Yet, before Chistmas, he could not accept the Opposition's motion calling for action to reduce the prison population, and he gave two reasons why. First, he said that the prison population was beginning to fall and would continue to do so, and he gave some recent evidence for that. He said that the prospect of today's Bill was a justification for the contention that the fall was likely and perhaps even certain.

The second point was that he said that he could not directly reduce the numbers of people sentenced to imprisonment and the length of the sentences imposed."—[Official Report, 2 December 1981; Vols. 13/14, c. 286.] The Home Secretary's contention was clearly and obviously wrong. The size of the prison population is crucially affected by the length of sentences prescribed by law, the alternatives to prison that the law allows and provides, and also by the law's provisions on remand, parole and release. It is against the belief that the prison population should be reduced and that the Home Secretary can act to reduce it that we must judge the Bill.

There is no doubt that part II and in some ways part I will result in young offenders not being in forms of custody exclusively intended for their age groups, but will result in some of them becoming part of the prison population.

We must also judge the Bill against the limited criterion of its effect on the prison service and what is done about the gross overcrowding in the prisons. The Home Secretary has quoted the clauses on probation and fines which direct our attention to the alternatives to custodial sentences, but, by the Government's admission, most of the Bill is about custodial sentencing or residential care. Indeed, paragraphs 2 and 3 of the White Paper on young offenders—on which part I of the Bill was largely based—goes out of its way to state that, while imminent legislation will be concerned with custodial sentences and related matters, the Government attaches the greatest importance to the use—in appropriate circumstances—of alternatives to custody as well as shorter sentences. Some provisions included at the back of the Bill move in that direction. However, in our view, they do not move far or fast enough.

I propose to discuss not what I regard as the Bill's omissions but its contents, about which three things can be said. Some of the Bill's effects will be to reduce the length and extent of custodial sentences and some, I fear, will undoubtedly increase the number of persons detained in one sort of institution or another. However, numerically the most important section could reduce the number of persons in custodial sentences or increase it according to how the powers are used by the courts.

In Committee we intend to table amendments to ensure that the new sentences, techniques, attitudes and proposals are, whenever possible, used to reduce the prison population by reducing the numbers sentenced to custodial sentences and reducing the length of sentences when they are inevitably imposed. It will be on the Government's reception of the amendments made with that specific intention that we shall judge the Bill on Report. We certainly do not propose to divide against the Bill, as it contains good aspects on which we believe it is possible to build, but our continued support depends on the Government's co-operating with us when we make what we hope are entirely creative suggestions for ensuring that the new sentences and powers are used in the way that I believe the Home Secretary and the Government intend.

My comments refer largely, although not exclusively, to part II, but before I turn specifically to it I must tell the House of the Opposition's attitude to part I concerning the treatment of young offenders. I shall begin with the proposals concerning offenders under 17 years of age. The Children and Young Persons Act 1969 provided for the phasing-out of penal custody for children less than 17 years of age and that principle seems entirely right. We must, as far as we can, prevent the incarceration of children in institutions of any sort as a process of punishment. Yet the provisions of part I may result in the reverse of that process.

The retention of detention centres for male offenders aged between 14 and 17, the youth custody sentences and, particularly, the introduction of residential care orders, may combine to result in more 14 to 17-year-olds passing through some sort of compulsory detention than in the past. That is wholly undesirable, not least because we know about the effects of custody on that age group. In 1977, 76 per cent. of all youths leaving detention centres and 83 per cent. of all youths leaving borstal training were convicted again within two years. Those figures do little to convince us of the remedial effects of such institutions.

Residential care orders are not likely to provide much better results. They are a concession to the belief that the best thing to do with disturbed or difficult children is to lock them away. I know that there is no organisation concerned with difficult children that approves of or supports the residential care order notion. Indeed, the local authority directors of social services who will have to operate the scheme oppose it root and branch in principle and in practice, not least because, as they rightly said, the scheme will cause the diversion of the most needed and necessary resources from the general work of social welfare.

The Secretary of State, when dealing with these provisions, promised to provide resources as soon as possible. We all know that "as soon as possible" is often a very long time. It seems tragic, at a time when the social service departments of local authorities are dealing with more and more families and children in desperate need, and in view of the limited resources of local authority budgets, that money might be diverted to what I regard as a generally undesirable practice. However, I am even more concerned about the potential results of what is proposed for detention centres.

I am deeply sceptical about the very concept of the short sharp shock. In so far as the new detention centre proposals are intended to facilitate such a regime, they are more the product of party politics than of careful penal research. That is probably common ground on both sides of the House. I prefer the approach that was proposed by the Labour Government in a Green Paper. They proposed one system of youth imprisonment and the same humane, educative and rehabilitative treatment for all offenders.

Clause 2(5)(b)(i), (ii), (iii) and clause 3 seem in one sense to be an improvement on what has previously been proposed for detention centres because the maximum sentence will be reduced from six months to four months and the minimum sentence that may be imposed will be reduced from three months to three weeks. Clause 2(1)(b)(i) provides that such a sentence may be imposed by the courts when they consider that the only appropriate method of dealing with him"— that is the sentenced person, and this provision applies only to males— is to pass a custodial sentence". In describing the clause, the Home Secretary referred to it as a statutory prohibition, which seemed in the best use of the term to be strong language. He said that it meant that those in this category could be locked up only when it was absolutely necessary. That was a categorical description of the meaning of the clause.

I am sure that all those who have had Bills drafted for them will be aware of the virtues of including clauses that rely on the judgment of the person who will operate them, the person who will do something which in his or her judgment is right. That is the sort of clause that appears in the Bill as clause 2(1)(b)(i). It is when the courts decide that a custodial sentence is the appropriate sentence to be passed that such sentences are allowed. That allows the courts to send young men to detention centres unfettered by legislative guidance. It amounts to them making up their own minds with nobody being able to challenge them.

As a result, two things may arise from the new shorter detention sentences. First, young men who are likely to benefit from detention centre regimes may receive a shorter sharp shock. I suppose that that is the logic of the White Paper, which provided that the deterrent effect of such a sentence is likely to diminish after the first few weeks. If the courts choose to use their powers in that way—I put it in the vernacular by describing it as a shorter sharp shock—some benefit will accrue. The young man will discover the salutary effects and he will perhaps return to sin no more.

Mr. Best

When did the right hon. Gentleman come to the conclusion that there was something arcane in giving to the courts the power not to send a young person to prison unless they were satisfied that it was the appropriate way of dealing with him? He knows that that is the way in which the courts have been dealing with young offenders for a long time. Where has been his opposition to that in the past?

Mr. Hattersley

That is not quite how the courts have been dealing with young offenders. The courts have had prohibitions placed on their behaviour, part of which they have resented and part of which have been cleared up by the Bill. As I understand it, the Bill is supposed to be a general improvement. I am suggesting further improvements which implement what I understand the Home Secretary wants.

If the intention of the detention order is that persons who would have received a short sharp shock are now to receive a shorter one, there is much to be said for what is proposed. However, if young men who previously would have received non-custodial sentences will now go to detention centres because the judges will say "Three weeks is not long in these men's lives" or "After all, 22 days may do them some good"—I paraphrase what the judges might say, but I accept that their language is more elegant than mine—the net result will be more young men passing through detention centres. That will be the result if a judge sends a young man to a detention centre for three weeks when he would not have dreamt of sending him to such an institution for three months. That will be wholly wrong.

Are these provisions to be operated so that the same number of young men go to detention centres for shorter periods or are they to be operated in the way that was suggested in The Daily Telegraph of 4 December, which will lead to more young men going to detention centres? The second operation of the provisions would be undesirable not least because of the record of what happens to them when they leave the detention centres.

Mr. Percy Grieve (Solihull)

Does the right hon. Gentleman appreciate that a period in a detention centre may now be a very short one and that the Bill abolishes detention centre sentences of six months which formerly prevailed? I always thought that it was a mistake to send anyone to a centre for six months. I put it to the right hon. Gentleman that there may be many who will be in detention centres for far shorter periods.

Mr. Hattersley

If the hon. and learned Gentleman will cast his mind back a full two or three minutes, he will recall that I said that that was the alternative. If the result is that young people are sent for this form of training and improvement for brief periods, I shall welcome the provisions despite my reservations about the concept of detention centres. The hon. and learned Gentleman must agree with me that within the powers of the Bill it will be possible for the courts to say "As we can send young men to these centres for brief periods of three weeks or a little more, we shall send them there for that period when prior to the enactment of the Bill we would not have dreamt of sending them to the centres for two or three months." That seems to be a mistake. That is what was described by The Daily Telegraph, which sometimes speaks for those on the Conservative Back Benches, as the intention of the clause.

That is not the intention—I give the Government credit for this without a moment's hesitation—of paragraph 3 of the White Paper. That paragraph makes it clear that the preferable of the two options that I have described is what the Government intend and propose. To facilitate the Government's wish, we propose to table an amendment—assuming the Bill is given a Second Reading, we shall be able to do it tonight— which incorporates the idea that the shorter sentence will be imposed only when there is no other reasonable alternative. I hope that that will limit the number of potential detainees in detention centres.

The ambiguity of the way in which the provision may be implemented is mirrored in part II, where in one important particular there is the option for the courts to apply a new proposal in two distinct ways, one of which might be of benefit and one of which would be of great detriment. Before dealing with part II, I have more to say about the section on young offenders. I ask the Minister of State to answer some specific questions if he catches the eye of the Chair at a later stage.

I generally support the idea of one youth custody sentence as in a sense a move towards the single sentencing policy that was embodied in the Green Paper. I am in favour of the amalgamation of prison and borstal and the introduction of determinate sentences. I am obviously in favour, as are all my right hon. and hon. Friends, of remand time counting against sentences. However, a number of questions need to be asked.

Paragraph 19 of the White Paper, on which this section of the Bill is based, reads: all young adult offenders receiving short to medium term sentences of youth custody will be guaranteed a place in a training establishment. Obviously we support that, but what will happen to young adults who are sentenced to four months or less and ale judged unsuitable for detention centres? Are we to assume, as I fear they will, and as did 185 offenders last year, that they will go with adults into the debilitating, dispiriting and undermining regimes of our old prisons? What will happen to young adults who receive sentences longer than 18 months? The White Paper is specific about that category, or as specific as White Papers ever are. It states that places in training establishments, so far as vacancies permit, will be provided for them. However, it states that no individual, that is, an individual over 18, can be guaranteed such a place.

I hope that the Minister of State will tell us that the Government are taking steps to match the resources to the aspiration of providing training for all those people. It is intolerable that a young man sentenced to more than 18 months should be sent to a prison where there are three in a cell locked up for 23 hours a day and provided with no rehabilitative services. I hope that the Minister of State will tell us how the aspiration of the White Paper is to be made a reality.

The resources that might be made available for that necessary training could be obtained more easily if money were not spent in the prison service on the unnecessary imprisonment of men and women who should not be there in the first place. Keeping men and women in prison is an expensive business. I said on 2 December that in our view there were many things that could be better done with the money.

It is in that spirit that I turn to part II. I shall begin with clause 26. The Home Secretary said nothing about it other than acknowledging its existence. I do not complain about that because in such a discursive Bill Front Bench speeches are bound to be discursive. He will understand why I want to pursue the idea of clause 26 in a little more detail than he did.

Clause 26 allows the Home Secretary to grant early release to persons of any class specified in the order, that is necessary to bring about their release. The Home Secretary is entitled to grant early release if he is satisfied that such a step is necessary to make the best use of the places available in places for detention. He is limited only by his own judgment, apart from two requirements. One is that no early release is possible for men and women serving life sentences. None of us would disagree with that. The other is that release can be granted only within six months of normal release dates.

Such power has been at the Secretary of State's disposal for almost two years. We need to know, if we are to take this part of the Bill seriously, the circumstances in which he envisages using that power. It has been stated by the Home Office that early release will be granted if there were such an outbreak of widespread violence that the prisons became intolerably overcrowded. I tremble for the Home Secretary who goes to the 1922 Committee saying that Britain is now so violent that we must start letting people out of prison early. That is a perverse proposal.

My answer to the question is simple. The Secretary of State should use that power immediately. The people on whom he should use the power are those who should not have been in prison in the first place—those who are there for soliciting, vagrancy, drunkenness and fine or maintenance defaults. Those are the circumstances in which I should like to see clause 26 used. The time to use it is now. I fear that the Home Secretary will not agree with me.