HL Deb 22 April 1913 vol 14 cc238-51

Order of the Day for the House to be put into Committee, read.

Moved, That the House do now resolve itself into Committee.—(Lord Strachie.)

On Question Motion agreed to.

House in Committee accordingly.

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Restrictions on children and young persons going abroad for the purpose of performing for profit.

1.—(1) If any person causes or procures any child or [...]oung person, or, having the custody, charge, or care of any child or young person, allows such child or young person, to go out of the United Kingdom for the purpose of singing, playing, performing, or being exhibited, for profit, that person shall, unless, in the case of a young person, such a licence as is hereinafter mentioned has been granted, be guilty of an offence against this Act.

(2) A constable or any person authorised by a justice may take to a place of safety any child or young person in respect of whom there is reason to believe that an offence under this section has been or is about to be committed, and the provisions of section twenty of the Children Act, 1908, shall apply as if such an offence were an offence mentioned in the First Schedule to that Act.

(3) This section shall not apply in any case where it is proved that the child or young person was only temporarily resident in the United Kingdom.

THE MARQUESS OF SALISBURY

I move to delete from subsection (3) the words "only temporarily resident," and to insert the words "not domiciled." I have put this Amendment on the Paper in order to draw the attention of His Majesty's Government to the great difficulty of interpreting the words "only temporarily resident." I do not know whether the noble Lord in charge of the Bill will say that this is a phrase which has ever received judicial interpretation, but it is clear that the words are very ambiguous as they stand. It is easy to put any number of hard conundrums, if I may use that word, to the noble Lord in asking him how he would construe them. For example, take the case of a foreign child who has come to the United Kingdom and been with his parents for a year in the United Kingdom. The parents might not be intending to remain here. Is the child in that case living permanently or temporarily here? Take another case, that of a child who has been sent over to England to be educated. The parents may never have come to England at all, but the child may be in England for a long time, say five years. Would it be temporarily resident here or not? I think your Lordships will see that considerable difficulty may be found in interpreting the phrase. The guardian in England may be quite a different person from the parent, who may be abroad all the time. The child may be resident in England in charge of a guardian within the meaning of the Act—an English guardian. According to which is the child's position to be interpreted, according to the foreign parent or according to the English guardian? In point of fact, I do not think the Bill ought to attempt to deal with the case of bona fide foreign children resident in England, and therefore I have put down this Amendment to substitute the words "not domiciled" for the words "only temporarily resident." I do not pretend to be a lawyer and am not sure of the pitfalls this alteration may open, but at any rate "domicile" is a word which has a judicial meaning and can be interpreted. The other is a vague phrase and might be interpreted differently by every judicial authority under whose cognisance it came. I beg to move.

Amendment moved— Clause 1, page 1, line 21, leave out ("only temporarily resident") and insert ("not domiciled").—(The Marquess of Salisbury.)

THE PAYMASTER-GENERAL (LORD STRACHIE)

My Lords, no doubt the noble Marquess, before putting down the Amendment, carefully considered what would be the effect of making the change which he proposes. As far as I can see, the effect would be to a very large extent absolutely to destroy the Bill as regards the majority of children of aliens in this country. There are, as the noble Marquess is no doubt aware, two forms of domicile—that of origin and that of choice. The acquisition of a new domicile depends on the combination of residence and intention of remaining at that residence permanently. It has been held by the Courts in the case of Winans and the Attorney-General, in 1904, that to acquire a domicile of choice it must be shown that there was a "final and deliberate intention to abandon the domicile of origin and to acquire a domicile of choice"; and Mr. Justice Phillimore has defined "domicile" as "a residence at a particular place accompanied by positive or presumptive proof of an intention to remain there for an unlimited time." Therefore the insertion of the noble Marquess's Amendment would raise very great difficulties leading to many appeals to the Courts. On the other hand, if the words "only temporarily resident" remain, they seem to me to meet the cases which it is necessary to meet—namely, the cases of infant prodigies, children or young persons paying a short visit to this country. The Amendment would exempt the children of aliens to a large extent possibly. There is no exemption as regards the children of aliens under the Education Act, under the Factories Act, or under the Prevention of Cruelty to Children Act, 1904, and there seems to me no reason why alien children or young persons residing in England should not be protected. The law generally applies to any one residing in England, alien or not. The noble Marquess has asked me a question as to the case of children sent over here or being left here by their parents. I think in all those cases if the intention of the parents is that the children should remain here not for the purpose of performances but for being educated in this country, they should have the same protection as British children. I am advised that the words at present in the clause are the best possible words in the circumstances. They have been carefully considered at the Home Office, and there are no other words which we can see which better meet the difficulty. There must be certain discretion allowed in these cases, and I think we may be certain that the Police magistrate sitting at Bow-street Police Court would interpret the clause in a right and proper sense.

THE MARQUESS OF SALISBURY

If the noble Lord tells me that he has referred the point specifically to his legal advisers and they approve of these words, then I am satisfied; but I was anxious that such words as these should not be inserted unless they had been carefully considered.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2:

Grant of licences.

2.—(1) A police magistrate may grant a licence in such form as the Secretary of State may prescribe, and subject to such restrictions and conditions as the police magistrate thinks fit, for any young person to go out of the United Kingdom for the purpose of singing, playing, performing, or being exhibited for profit, but no such licence shall be granted unless the police magistrate is satisfied—

  1. (a) that the application for the licence is made by or with the consent of the parent or guardian of the young person;
  2. (b) that the young person is going out of the United Kingdom in order to fulfil a particular engagement;
  3. (c) that the young person is fit for the purpose;
  4. (d) that proper provision has been made to secure the health, kind treatment, and adequate supervision of the young person whilst abroad and his return to the United Kingdom at the expiration or revocation of the licence;
  5. (e) that a copy of the contract of employment or other document, showing the terms and conditions of employment, drawn up in a language understood by the young person, has been furnished to the young person.

(2) A licence under this section shall not be granted for more than three months, but may be renewed by a police magistrate from time to time for a like period, but no such renewal shall be granted unless the police magistrate is satisfied by a report of a British consular officer or other trustworthy person that the conditions of the licence are being complied with.

(3) Where a person applies for a licence or the renewal of a licence under this section he shall at least seven days before making the application give notice thereof to the chief officer of the police for the district in which the young person resides or resided, and that officer may make a report in writing on the case to the police magistrate, or may appear or instruct some person to appear before the police magistrate hearing the application and show cause why the licence should not be granted or renewed, and the police magistrate shall not grant or renew the licence unless he is satisfied that notice has been properly so given.

(4) The police magistrate to whom application is made for the grant or renewal of a licence under this section shall, unless he is satisfied that under the circumstances it is unnecessary, require the applicant to give such security, either by entering into a recognisance with or without sureties or otherwise, as he may think fit for the observance of the restrictions and conditions contained in the licence, and the recognisance may be enforced in like manner as a recognisance for the doing of some matter or thing required to be done in a proceeding before a court of summary jurisdiction is enforceable.

(5) In any proceeding for enforcing a recognisance under this section, a report of any British consular officer, and any deposition made on oath before a British consular officer and authenticated by the signature of that officer respecting the observance or non-observance of any of the conditions or restrictions contained in a licence granted under this Act, shall, upon proof that the consular officer or deponent cannot be found in the United Kingdom, be admissible in evidence; and it shall not be necessary to prove the signature or official character of the person appearing to have signed any such report or deposition.

(6) Where a licence is granted under this section, the police magistrate shall send to the Secretary of State for transmission to the proper consular officer such particulars as the Secretary of State may by regulation prescribe, and every consular officer shall register the particulars so transmitted to him and perform such other duties in relation thereto as the Secretary of State may direct.

(7) A licence granted under this section may be revoked by the police magistrate at any time if he is satisfied that any of the conditions on which the licence was granted are not being complied with.

LORD SHEFFIELD

I have an Amendment in subsection (3), to leave out the words "chief officer of the police" and insert "local education authority." This is the Amendment of which I gave notice in the few observations I made on the Second Reading of the Bill, and it bears upon a similar discussion which took place in 1903 when the Children (Employment) Bill was before the House of Commons. That Bill put the preliminary inquiries and regulations under the education authority of the district and not under the Police authority. In the Prevention of Cruelty to Children Act there had been special legislation for theatrical children, and they were put under the Police. When the Bill was debated in the House of Commons there was a very active discussion on the question of whether theatrical children, like other children, should be put under the education authority, or whether the existing law which placed them under the Police should remain. The whole force of the debate from the Liberal Benches at that time was against putting the children under the Police and in favour of putting them under the local education authority. Quite independent of Party, I think that is the better course, and that is why I have placed this Amendment on the Paper.

In the debate in the House of Commons to which I have referred there was a keen desire on both sides of the House that theatrical children should at the initial stage come under the education authority and not under the Police, but there was not much time, and the statement went forth that if this was insisted upon the Bill would be lost altogether, and many Members said that though they did not like the particular provision placing theatrical children under the Police they would agree to it rather than lose the Bill. The Grand Committee, by a considerable majority, I believe, determined that children licensed for the stage should be under the education authority, but there was a great deal of pressure brought by theatrical managers, who, I am told, were of opinion that they would get treated more indulgently under the Police than under the education authority, and therefore the whole of the efforts of the theatrical managers were in favour of remaining under the Police as in the case of the Prevention of Cruelty to Children Act. The Bill emerged from Grand Committee with a provision that the children should come under the education authority, but on Report in the other House the Government brought up an Amendment giving effect to the views of the theatrical managers and striking the children out of the Bill. I may mention that Sir John Gorst spoke very strongly in favour of the children being under the education authority and said it was undesirable that these children should be associated with the Police Court, and Mr. T. W. Russell said that the proposal to place them under the Police authority was the result of an outcry from theatrical managers.

I feel very strongly, as I said on the Second Reading, that the great mass of these applications will be perfectly honest and bona fide. We all know that in the case of families of acrobats, and so on, the children are brought up in the profession quite young. The majority of these people are quite respectable, and I do not, think that in these cases they should, in regard to the initial inquiries, be thrown into contact with the Police. It is not fair that the first thing that should happen should be a policeman coming to their house. I am sure that the education authority through their attendance officers have much better knowledge of these families, and can much better consider their character than the Police. I do not in the least object to the provision in the Bill that ultimately the licence should be granted by the Police magistrate. All I desire is that the preliminary information should be brought before the Police magistrate by persons who are in direct touch with these people and know the whole of the circumstances surrounding their life.

The education authority has cognisance of these children from the age of five up to fourteen. I hope, therefore, that your Lordships will agree with me that we ought not to perpetuate an exception which was only put into the Act of 1903 for the purpose of passing it at the fag end of a session, and because the Bill would have had to be dropped if the House of Commons had stuck to what I think the majority of them wished—namely, that the education authority and not the Police should be brought into the matter in the first instance. I do not know whether the noble Lord opposite (Lord Balfour of Burleigh) has read the Report of the Scottish Education Department. It contains glowing words pointing out how important it is that the education authorities should not only watch over these children during their early years, but should also watch over them after they have passed beyond the age of compulsory school attendance. It is the general opinion of all connected with education that the Police should only be brought in when it is necessary, and that the initial investigation should not be made by a Police officer. The point is a simple one, and I will not further elaborate it. I beg to move.

Amendment moved— Clause 2, page 2, lines 30 and 31, leave out ("chief officer of the police") and insert ("local education authority").—(Lord Sheffield.)

LORD STRACHIE

I think my noble friend is under a misapprehension as regards the scope of his Amendment. I would remind him that to children, to whom my noble friend was alluding in most of his speech, this clause does not apply, because no child can be moved out of the jurisdiction of this country with or without a licence. It applies only to young persons—namely, between the ages of fourteen and sixteen. These are not under the control of the education authority, and therefore I cannot see why the education authority should be brought into this at all. My noble friend seems to object to the Police making inquiries, and he spoke of bringing these young persons into contact with the police. It is not the young persons who are brought into contact with the Police; it is the parents. I submit that the Police are much more likely than the education authority to know about the parents and guardians, and whether they are people whose declarations can be accepted and whether they are likely to comply with the licence and fulfil its conditions. I cannot see what reason there can be for bringing the education authority into this matter. On the other hand, as I indicated on the Second Reading, the Home Office will be perfectly ready to undertake that the education authority shall be notified of the fact that a licence had been applied for, and no doubt the Police would be only too glad to avail themselves of any information which the local education authority could give them either as regards the young persons themselves or their parents or guardians.

LORD SHEFFIELD

I am afraid I failed to make myself clear to the noble Lord in charge of the Bill, though I hope that most of your Lordships who heard me did not think that I fell into the mistake of supposing that I was dealing with children. All my remarks were addressed to the case of young persons. The noble Lord now says that the Home Office are perfectly willing to consult with the local authorities in all cases. He did not go so far as that on the Second Reading, for when I asked him whether he was alluding only to the London County Council or whether notice would be given to all county councils he replied that he was referring to the London County Council only. The whole trend of public opinion is that the education authorities should be kept in touch with young persons after they have passed beyond the age of compulsory school attendance, and I cannot say that the noble Lord has adduced any arguments which would in the least lead me to withdraw my Amendment.

THE MARQUESS or SALISBURY

The case is a difficult one, and I think there is a great deal in what Lord Sheffield has said. No doubt, the education authority know more about the child than the Police, and also about the young person who has just ceased to be a child; but, on the other hand, I do not think the education authority know very much about the parent. I cannot conceive what this report of the official, whether it be a Police officer or an officer of the local education authority, is to be about unless it be the status of the applicants who come before the Courts, and the applicants are the parents and guardians and not the young persons. The question whether a young person was fit for the purpose proposed would probably be a medical question, and therefore I really do not know upon what the education authority could speak except as to the character of the young person, and the character of the young person apparently is not one of the questions to be considered. Therefore on the whole, while feeling the weight of the noble Lord's argument, I think the noble Lord in charge of the Bill is right.

LORD SHEFFIELD

The attendance officers of the local education authorities are thoroughly familiar with the character of the homes of these children. Some years ago on the Royal Commission on the Housing of the Poor some of the most important witnesses who were called were the officers of the School Board for London, who impressed the Commission with their intimate knowledge of the social conditions and mode of life of the working classes of London, and I think you would find the same in other towns.

On Question, Amendment negatived.

Clause 2 agreed to.

Clause 3:

Provisions as to existing cases.

3.—(1) Where, before the commencement of this Act, any person has caused or procured any child or young person, or, having the custody, charge, or care of any such child or young person, has allowed such child or young person to go out of the United Kingdom, and that child or young person is to the knowledge of that person singing, playing, performing, or being exhibited, for profit outside the United Kingdom, it shall be the duty of that person to take all steps in his power to secure the return of the child or young person to the United Kingdom unless he obtains a licence authorising the child or young person to remain out of the United Kingdom, which licence may be granted in the like manner and subject to the like conditions as the licence herein-before mentioned, and if the child or young person continues to sing, play, perform, or to be exhibited, for profit outside the United Kingdom, and no such licence is obtained, such first-mentioned person shall be guilty of an offence against this Act unless he proves that he has taken all such steps as aforesaid.

(2) This section shall not apply in any case where it is proved that the child or young person was only temporarily resident in the United Kingdom.

THE MARQUESS OF SALISBURY

I desire to call attention to this clause. It is, as the noble Lord in charge of the Bill said on the Second Reading, a peculiar clause. I wonder whether the Government have thought carefully as to the working of it. I have, of course, great sympathy with their object. They are face to face with a great and admitted evil —the taking abroad of these children for purposes of a most deplorable kind. They are trying to stop it, and we are here to assist them to stop it. As far as the earlier clauses of the Bill are concerned, in the main outlines we are agreed. Then we come to Clause 3, and the Government seem to have said to themselves, "Cannot we do something for the children who have already been taken abroad it may be for purposes as deplorable as those we are contemplating in the future?" and with that fundamental object every one of your Lordships must be heartily in sympathy. But when you come to deal with ex post facto legislation it is nearly always found to be exceedingly difficult to work, and I should like the Government to tell us how they propose to work this clause.

Let us suppose that the parents of a young person have allowed the young person to go abroad, a young pianist, perhaps, or a young person who is to go upon what may be called the legitimate stage, against which not a word is to be spoken. The clause says that it shall be the duty of the person who has been responsible for the young person going abroad to take all steps in his power to secure the return of the child or young person to the United Kingdom. Now what are "all the steps in his power?" In what realm of legislation was there ever such a vague phrase as that? What does it mean? It cannot mean, for instance, that the parent or guardian is to commit a breach of contract in respect of the engagement of the child. I do not suppose it means that. But it might mean it, because it might be in the power of the parent to break the contract. I am speaking, of course, of a perfectly legitimate contract, and of perfectly legitimate employment of a young person in a respectable theatre abroad. There very often is in these contracts for theatrical engagements a penalty clause to the effect that if the contract is not carried out there is to be a certain payment of money. Do the Government mean that as soon as this Bill passes the parents or guardians are to voluntarily incur the penalties which a breach of the contract would involve, and to pay, say,£50 or£60 or£100 to the theatrical entrepreneur abroad in order to bring the child back? That would be in their power, and one would presume that under the terms of the clause they would be compelled to do it, unless, of course, they applied for a licence.

They might apply for a licence. What are the conditions which the Government lay down for the granting of a licence? The terms of Clause 3 are— which licence may be granted in the like manner and subject to the like conditions as the licence herein-before mentioned. I turn back to see what the conditions are. What is the first condition? It is that the application for the licence is made by or with the consent of the parent or guardian of the young person. I took the case before of a parent who had himself allowed the child to go abroad. It might not be the parent but a guardian who may be resident abroad, and it might be impossible to get at either the parent or the guardian when the child had gone abroad. The second condition is that the young person "is going out of the United Kingdom in order to fulfil a particular engagement." That condition is inapt, because the child is already out of the United Kingdom. You see what a hopeless mess you get into when you deal with ex post facto legislation. The next condition is that the young person "is fit for the purpose." How are you to ascertain that the child is fit for the purpose? He is, perhaps, in St. Petersburg, or in Australia, or at the Cape of Good Hope. I do not see how the Government intend to work this clause. There is no machinery; there is no method of getting it adopted. It is manifest that the Government have not thought the clause out.

The other conditions are that proper provision has been made to secure the health, kind treatment, and adequate supervision of the young person whilst abroad and his return to the United Kingdom at the expiration or revocation of the licence; and, last, that a copy of the contract of employment or other document showing the terms and conditions of employment has been furnished to the young person. There may not be a contract. When you are dealing with the future you can insist on a contract, and the magistrate may say that he will not issue a licence until a contract is produced which can be explained to the young person, but in the ex post facto case here dealt with there may not be a contract. Clause 3 applies to children as well as to young persons. What is the good of explaining the terms of a contract to a child? The provision is apt in regard to Clause 2 because you are dealing there only with young persons, but it is inapplicable in the case of a child who has already been sent abroad. This always happens when you deal with ex post facto legislation—you cannot fit it in and cannot work it.

I am not going to ask your Lordships to reject the clause, but I do wish the Government either to explain now or to think out between this and the next stage what they really mean by Clause 3, and unless they can show that it is a workable clause I do not think the mere fact that it is in the nature of what the noble Lord in charge of the Bill described in introducing it last session as a "pious opinion" is a ground for a reasonable Assembly like your Lordships passing it into law.

LORD SHEFFIELD

I think there is a great deal of force in what the noble Marquess has just said, especially when you consider that this Bill is to deal also with aliens. You can very well deal with your own subjects, but a difficulty arises when you come to the case of aliens. Though the young person may be an alien and the alien parents may take the child abroad, you put a sort of criminal obligation on these alien parents to bring back the child to England and get a licence. I think there will be very serious international complications if you legislate in this way for aliens who owe no allegiance to this country and in respect of acts which they do outside this country. A foreign opera singer would have a perfect right to take his son or daughter of fifteen out of this country for the purpose of entering a chorus, but you are by this clause practically saying that the parent must bring the lad back and get a licence or he will be subject to a penalty on his return to England. I hope that between this and the Report stage we shall have some information as to how the difficulties which the noble Marquess has raised and also the difficulties in respect of aliens are to be met. I would also ask the noble Lord in charge of the Bill to insert an Amendment on Report carrying out his promise giving the right to be heard to all county councils.

LORD STRACHIE

The noble Marquess asked what the Government meant by this clause, but he has himself supplied the answer. He said that the feeling of most people would be, "Cannot something be done for the children who are already abroad?" That is the whole meaning and origin of this clause. It seemed rather hard that nothing should be done for children and young persons who are already out of the country. I am very much in sympathy with the noble Marquess's objection to retrospective legislation, and I said so when the Bill was before your Lordships last session. But may I remind the noble Marquess that the clause says it shall be the duty of the person to take these steps to return the child or young person "unless he obtains a licence authorising the child or young person to remain." The cases mentioned by the noble Marquess were cases where, I take it, there would be no difficulty at all in getting a licence. I admit, however, that there are enormous difficulties, and if the noble Marquess and my noble friend behind me had pressed that the clause should be withdrawn I should have been inclined to accept an Amendment to that effect. We quite see the difficulties, but I am sure noble Lords will agree in the desire, if possible, to protect children already abroad and give them some of the benefits which children in this country will receive under this Bill. If the House desires, I will undertake between now and the Report stage to consider whether we can make any alteration in the clause which will meet the very valid objections that have been raised by the noble Marquess and by my noble friend.

THE MARQUESS OF SALISBURY

I shall be very glad if the noble Lord will consider the point. The difficulty is this, that even if a person wishes to comply with the clause and applies for a licence the conditions of the licence are not apt to his application, so that the provision would not work even if he asked for a licence.

LORD STRACHIE

I think that point might be met by the regulations to be made by the Home Secretary under the Bill, but we will look into it. I have been reminded by my noble friend beside me that there will be no Report stage of this Bill, no Amendment having been made. Therefore any alteration which it may be thought desirable to make in this clause can be made on Third Reading.

THE MARQUESS OF SALISBURY

We can meet that point by striking the clause out now, and then the noble Lord will have a Report stage.

LORD STRACHIE

I think it would be better that whatever is done should be done on the Third Reading.

THE MARQUESS OF SALISBURY

But in that case the noble Lord would be in a difficulty if there was necessity for a subsequent adjustment. I think it would be better to strike the clause out now so as to have a Report stage.

LORD STRACHIE

If the noble Marquess presses that Amendment, I will agree to it.

THE MARQUESS OF SALISBURY

I do.

Amendment moved— To omit Clause 3."—(The Marquess of Salisbury.)

On Question, Amendment agreed to.

Remaining Clauses agreed to.

The Report of Amendment to be received on Tuesday next, and Bill to be printed as amended. (No. 27.)