Lords Sitting of 25 January 1949

Preamble
The House met at half past two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers

  FEDERATION OF MALAYA
  2.34 p.m.
  LORD MANCROFT: My Lords, I beg to ask the Question which stands in my name on the Order Paper.
  [The Question was as follows:
  To ask His Majesty's Government whether they are aware of any proposals for the secession of Penang and Province Wellesley from the Federation of Malaya.]
  THE MINISTER OF STATE FOR COLONIAL AFFAIRS (THE EARL OF LISTOWEL): My Lords, His Majesty's Government are aware that a motion of secession was debated and carried by a public meeting held in Penang in December, and that a representative committee was appointed by the meeting to act upon the resolution. No representations on the subject, however, have yet been made to the Government of the Federation of Malaya.
  LORD MANCROFT: Arising out of that reply, for which I thank the noble Earl, can he say whether the movement is solely European in its support, or whether it has any Asiatic support?
  THE EARL OF LISTOWEL: The movement is not widespread or general, either in the island or on the mainland. I imagine, without of course having had an opportunity of referring to the authorities in Malaya, that its supporters, such as they are, are drawn from different races and communities.
  VISCOUNT ELIBANK: Arising out of that answer, will the noble Earl assure the House that if such representations are made by Penang, they will be carefully and fully considered by His Majesty's Government? Further, if such representations are made by Penang, will the Government consider the desirability of re-establishing the Straits Settlements Colony with a different Constitution?
  THE EARL OF LISTOWEL: I can assure the noble Viscount that if any such representations are made to His Majesty's Government they will be seriously considered, and that any constitutional changes that might be thought desirable would attract the attention of the Government at the same time.

ORGANISATION OF NATIONAL COAL BOARD
2.37 p.m.
LORD HAWKE: My Lords, I beg to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask His Majesty's Government when they propose to publish the full recommendations of the Burrows Committee appointed in May, 1948, to look into the organisation of the National Coal Board.]
LORD CHORLEY: The Committee was appointed by, and reported to, the National Coal Board and the question of publication was, therefore, one for the Board and not for His Majesty's Government. The main recommendations of the Burrows Committee, and the National Coal Board's views on them, were published in a statement issued by the Board on November 22, 1948.
LORD HAWKE: Since the main recommendations of the Burrows Committee have been so excellent as to warrant legislative action, why have His Majesty's Government not called for the publication of all the recommendations?
LORD CHORLEY: The noble Lord is no doubt familiar with the paper in which the statement by the National Coal Board on the Report of the Burrows Committee was issued. He will there see that a good deal of information put before the Committee was communicated to them on a confidential basis, and the reasons why that sort of information could not be set out were expressed in the introductory pages to the Report. I am quite sure that your Lordships will think that this is a very proper attitude.
LORD HAWKE: We have had the main recommendations. I am not asking for the publication of the evidence, but may we not have the rest of the recommendations?
LORD CHORLEY: I have pointed out to the noble Lord that this is a Report prepared for the National Coal Board. I have no doubt that those who are responsible will take into account what the noble Lord has suggested.
LORD LLEWELLIN: Does it not come to this: If the Report is published at all, why should we not have the whole Report? If we do not have the full Report, but only those parts of it which may appear to the National Coal Board to be a prop rather than a prod, then it is not much use relying on it.
LORD CHORLEY: I think the noble Lord will realise that a Committee of this kind must collect a great deal of material of a confidential nature and that, after all, they are responsible people who can judge as to what can be published without giving rise to a breach of confidence.
THE EARL OF SELKIRK: How can the recommendations be of a confidential nature? And if they affect the National Coal Board, surely they are a matter of public concern.

HARWICH HARBOUR BILL [H.L.]
Read 2a.
HUDDERSFIELD CORPORATION BILL [H.L.]
Read 2a.
SLOUGH CORPORATION BILL [H.L.]
Read 2a.
FALMOUTH DOCKS BILL [H.L.]
Read 2a, and referred to the Examiners.
HURST PARK RACE COURSE BILL [H.L.]
Read 2a, and referred to the Examiners.
WANDSWORTH AND DISTRICT GAS BILL [H.L.]
Read 2a, and referred to the Examiners.

CRIMINAL JUSTICE (SCOTLAND) BILL [H.L.]
2.43 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(Lord Morrison.)
On Question, Motion agreed to.
House in Committee accordingly:
[The EARL OF DROGHEDA in the Chair]
Clause 1:
Absolute discharge
1. Where

(a) a person is convicted on indictment of an offence (other than an offence the sentence for which is fixed by law); or

(b) a person is charged before a court of summary jurisdiction with an offence (other than an offence the sentence for which is fixed by law) and the court is satisfied that he committed the offence,

the court, if it is of opinion, having regard to the circumstances, including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order is not appropriate may, instead of sentencing him, and, in the case of a court of summary jurisdiction without proceeding to conviction, make an order discharging him absolutely.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved, in subsection (1) to omit "and, in the case of a court of summary jurisdiction without proceeding to conviction." The noble Earl said: Before I move this Amendment, I would, with your Lordships' permission, like to make two observations. First, I would like to thank the Secretary of State for Scotland for the opportunity which I have had of discussing with him certain Parts of the Bill, and for the opportunity of visiting some of the institutions under his control. I shall be grateful to the noble Lord, Lord Morrison, if he will convey my thanks to the Secretary of State for Scotland on that account.
The second observation I desire to make is this. Your Lordships will observe that on the outside of this Bill there appears the much maligned word "Scotland." It has become the practice, particularly on Committee stages, for noble Lords to avoid entering into the discussions on Scottish Bills unless they are in some way associated with Scotland. I hope that that practice will not continue because, if the discussion of these Bills is to be left to noble Lords associated with Scotland, it would be more convenient for them to be discussed in some place other than London. For that reason, if for no other, I suggest that this Bill is a matter of concern to the whole House. I would add, further, that in point of fact there is not a great deal of what I would describe as native genius in this Bill, because it has been freely plagiarised from the Home Office.

175
It is, therefore, very proper that noble Lords should here discuss it in detail. I would add that this Bill is not at all well known in Scotland at the present moment; it has hardly been discussed.
THE LORD PRIVY SEAL (VISCOUNT ADDISON): May I inquire what is the Motion to which the noble Earl is speaking?
THE EARL OF SELKIRK: I apologise to the Committee. I asked permission to make two observations. I have just completed making them, and am now about to move my first Amendment. It refers to Clause 1, in which is introduced a procedure which has not been known up to the present time—namely, absolute discharge. It lays down two procedures, one in the case of indictment, and the other in the case of summary jurisdiction. In the case of indictment, obviously, as in trials with a jury, there has to be conviction. In the case of summary jurisdiction, it is here suggested that there should be no conviction. At the moment I am rather doubtful as to the advisability of that course, and I would like to put one or two questions to the noble Lord opposite. First, is it clear that any records of absolute discharge will be recorded in the criminal statistics; that is to say, that those who are discharged will not simply cease to be regarded as part and parcel of the criminal statistics? Secondly, I would like to ask what record will be kept of persons who are absolutely discharged? I notice that under Clause 8 it is suggested that in summary cases the offence for which there has been an absolute discharge will constitute an aggravation, if at a subsequent date the offender comes before the court. I would like to know under what procedure these absolute discharges will, in fact, be recorded.
I would further like to ask this question. What have His Majesty's Government in mind when they use the word "expedient"? In what type of case is it considered inexpedient to grant without conviction, absolute discharge? Finally, I would like to ask this question. Your Lordships will observe that the court has to be satisfied that the offender committed the offence. What I would like to ask is: Is the onus of proof for such satisfaction exactly the
176
same as it would be in the case of conviction? There is a fairly well-established principle of law at the present time as to exactly what nature of proof is required for conviction and where the onus lies. Is it exactly the same in a case where, in the words of the Bill, "the Court is satisfied that he committed the offence"?
I say that particularly because anyone who has ever heard criminal cases knows that there are cases where a man is acquitted of the charge where the court are, in fact, satisfied that he committed the offence. It may well be that he is acquitted on a technical hitch. On the other hand, it may be that the prosecution have conducted their case badly and have not proved it beyond reasonable doubt. As it is, there is a new standard set up. The court have to be satisfied that the person committed the offence. Am I to take it that that is the same standard as would exist in the case of conviction? The Amendment I move is that both in the case of summary cases and on indictment, the same procedure shall be adopted—namely, that the court will proceed to conviction before sentencing the offender. I feel it is important that the same standard of proof should be required in both cases. I beg to move.
Amendment moved—
Page 2, line 9, leave out from ("him") to ("make") in line 10.—(The Earl of Selkirk.)
THE PARLIAMENTARY SECRETARY, MINISTRY OF WORKS (LORD MORRISON): I am obliged to the noble Earl for his kindly reference to the Secretary of State for Scotland, which I will certainly convey to him. If I am not out of order, I would also like to say that I welcome the noble Earl's invitation to noble Lords not of Scottish origin to join in Scottish debates. Since I have been a member of your Lordships' House I have not noticed any undue reluctance on the part of Scottish members to take part in English debates, and therefore I welcome the invitation that that should be reciprocated.
The noble Earl has asked me a great many questions, and I assume that he has spoken on this Amendment and also on the next one. I would point out that in the case of both types of order the words which the noble Earl proposes to delete reproduce the existing law in Scotland. The onus of proof, therefore, is

177
exactly the same as it was; there is no change. It is contrary to what is laid down in the English Criminal Justice Act, 1948. Therefore, it seems to me that I might well address the few observations I have to make to the simple point of why there is this difference between England and Scotland; why the change that was made in the English Act last year has not been made in regard to Scotland.
The answer to that is that, whereas in England strong pressure was brought to amend the law so as to require a court to convict before making a probation or discharge order, no such pressure has been applied in Scotland. On the contrary, representations have been made by the Scottish Central Probation Council and by the Association of Probation Officers that conviction should not precede the making of such orders; and the Scottish Advisory Council on the Treatment and Rehabilitation of Offenders share this view. It is considered by these bodies—and by the Government—that in Scotland, where a probationer has undergone his period on probation with credit, it is not right that he should be penalised by having a conviction recorded against him. But where he commits another offence at any time which is of a similar nature to the offence for which he was put on probation or discharged, it is right for the court and equitable for the offender for it to be known that such an offence had been previously committed. In the same way, it seems reasonable that only where a person has committed a further offence need the fact that he was previously the subject of an order of absolute discharge be referred to. In these circumstances, and particularly because of the importance of the views of these three important bodies in Scotland, I hope that the noble Earl may not desire to persist in his Amendment.
LORD SCHUSTER: It may be unwise to accept the invitation held out by the noble Earl, Lord Selkirk, and the noble Lord, Lord Morrison, to intervene in these matters, but the invitation has been given, and I feel bound to draw your Lordships' attention to what happened with regard to the English Act. There is no doubt that this particular change was made in the English Act for two reasons: one, because of the uncertainty to which the noble Earl referred, and the other because, in England at least—and I should have thought in Scotland also—
178
we do not like shams and make-believes. That is a perfectly plain and simple view. The man has been charged in a court of summary jurisdiction, and the court is satisfied that he has committed the offence with which he has been charged. It has been for a long time in England—until it was removed on the passing of the Act of last Session—the complaint that a sham existed which ought to be ended. With very few exceptions, practically all the people interested in the administration of criminal law in England were in favour of the change. Even responding to the noble Earl's invitation, I feel a little shy at lecturing the Scots about their own affairs, but I do not think they ought to deal with this matter as if there were no English experience—I will not say "to guide them," because we know that Scots are not easily guided by English experience, but at any rate to consider whether they are right in a matter of this sort, which raises a really important question of moral law.
THE EARL OF IDDESLEIGH: It is surely extremely unfortunate at this moment, when the subject of juvenile delinquency is so strongly before the nation, that any steps should be taken to minimise in the eyes of young people the gravity of committing an offence. I would beg His Majesty's Government to consider whether the abolition of the perfectly well understood term "conviction" is not a pandering to sentimentality which we would all deplore. There is one other point which I venture to mention. The criminal statistics are followed with the deepest interest, and in future we shall not be able to apply the same criterion to Scotland as we do to England. As an Englishman, I have no objection to Scotsmen having a greater reputation for virtue (and that will be reflected in the number of convictions in Scotland if this proposal goes forward), but I should doubt whether Scotland, which is proud of its virtue, wishes to take advantage of any such gap in the law.
LORD LLEWELLIN: I should have thought that this was a case where the law of the two countries ought to run in line. What is a court doing if it does not proceed to a conviction? It is merely telling the offender before the court: "You have not been convicted." It is saying, of course: "No conviction shall be recorded against you," because that is

179
a prelude to absolute discharge. The question is: What answer is this young man to give when he is asked: "Have you been previously convicted?" Is he to say: "Yes, I have, but it was not recorded against me?" That is a roundabout way of answering the question. If the man is told: "No conviction will be recorded against you," imagine his surprise the next time he comes up before a court and it is read out. It has been recorded against him, and that is the reason why it is read out to the court on a subsequent occasion. We had a long argument about this matter during the discussion on the English Bill, and, whatever representations these reputable bodies in Scotland have made about it, I should have thought it was important to have the law of the two countries in line on a simple but, indeed, important moral point such as the one we are now discussing.
THE LORD CHANCELLOR (VISCOUNT JOWITT): I have some right to take part in this debate because, though it is very often forgotten, and particularly by Scotsmen, I have the honour, by the Act of Union, to be Lord Chancellor not only of England but also of Scotland. In consequence, I am in some sense a Scottish Minister. I have the duty to sit occasionally to try and expound the Scottish law. I am glad that I always do so after argument by distinguished counsel, but I can say this to your Lordships: that I have come to have a most profound regard for the Scottish law. I should be sorry indeed to think that the Scottish law is a mere pale echo of the English system. It is a system of its own, dependent upon the native genius of the Scots, and it is a very fine system. That is a tribute from one reared in the Common Law.
With regard to this particular problem, I think we should realise this. First of all, be it understood that we are not altering the existing law: we are adhering to the law which is the law in Scotland to-day, and we are not proposing to alter the Scottish law merely because we enacted in a different sense in England. This is the Scottish law. The Scottish lawyers prefer this system, and everybody who has examined this question has asked us to adhere to the existing Scottish law. The problem, of course, is this. We do
180
not want to belittle these things or treat them lightly (and they will, of course, appear under criminal statistics), but whilst, on the one hand, we do not want to do that, I am sure we all agree that we do not want to hang round a young fellow's neck, as it were, the fact that on some occasion in his early life he has made some mistake. If he has made good, we all want to forget about his probation period. Therefore, the Scottish system is that a conviction is not recorded, although, of course, if the young man comes up again, charged with a similar offence, the previous offence is found recorded in the books, although not as a conviction. In such a case the earlier offence can be taken into consideration.
I would venture to advise your Lordships in this way: In that this has been for many years the Scottish system, in that it has recently been considered again, and in that Scotland does not want to alter the existing system, we had better not try to be too logical. I think the British people are never more ridiculous than when they are trying to be logical. It is better to take existing institutions and, if they are working well, adhere to them. In my opinion, this is a case in which we should adhere to the existing system. I should be sorry if we were to try to impose on Scotland a system which is English but which the Scottish people do not want and which might not work well.
LORD LLEWELLIN: I should like to ask the noble and learned Viscount one question, arising out of what he has said. He used the phrase "in the books," with respect to an offender, the entry being made even though there is not a conviction. Do I understand that nevertheless the offence would appear in the criminal statistics of Scotland as a conviction?
THE LORD CHANCELLOR: It will appear in the criminal statistics not as a conviction but as a statement that the person has been bound over, or whatever the action taken might be.
LORD LLEWELLIN: Would an offence—for example, that of housebreaking—appear under the heading of "housebreaking"? I understand that the offences are categorised.
THE LORD CHANCELLOR: It would not, I think, appear under the heading of any of these particular convictions, but simply under a heading "Persons bound over for housebreaking"—or whatever the offence might be.
VISCOUNT SIMON: Is it the case that if a person is bound over the court makes an order discharging him absolutely? I should have thought that discharging him absolutely would simply mean that he was discharged, and that would be the end of it.
THE EARL OF SELKIRK: I do not think such a man is bound over; I think he is discharged unconditionally. The use of the word "absolutely" means, as I understand it, that there is no binding over of any sort or kind. I am extremely glad to hear the noble and learned Viscount expressing the view that Scottish law should not be a pale echo of English law. I should not like to suggest that at the present time there is any unanimity of opinion about this Bill. It has been out only a few months, and many people who will have to administer it do not know its contents. However, in the circumstances I do not wish to press the matter, and I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2:
Probation
2.—(1) Where

(a) a person is convicted on indictment of an offence (other than an offence the sentence for which is fixed by law), or

(b) a person is charged before a court of summary jurisdiction with an offence (other than an offence the sentence for which is fixed by law) and the court is satisfied that he committed the offence,

the court, if it is of opinion, having regard to the circumstances, including the nature of the offence and the character of the offender, that it is expedient to do so, may, instead of sentencing him, and, in the case of a court of summary jurisdiction without proceeding to conviction, make a probation order, that is to say an order requiring the offender to be under supervision for a period to be specified in the order of not less than one nor more than three years.
(3) Any salaried probation officer nominated in pursuance of the last foregoing subsection shall be selected from among the salaried probation officers for the area named in the probation order.
(7) Before making a probation order, the court shall explain to the offender in ordinary language the effect of the order (including any additional requirements proposed to be inserted therein under subsection (5) or subsection (6) of this section or under the next following section) and that if he fails to comply therewith or commits another offence during the probation period he will be liable to be convicted of and sentenced for the original offence or if that offence was tried on indictment to be sentenced therefor, and the court shall not make the order unless the offender expresses his willingness to comply with the requirements thereof.
3.5 p.m.
THE EARL OF SELKIRK: The next Amendment is only a drafting one. The noble and learned Viscount may not like it, but it has been suggested to me that the paragraph would read more easily if it were accepted. I beg to move.
Amendment moved—
Page 2, line 26, leave out ("that is to say an order").—(The Earl of Selkirk.)
LORD MORRISON: If the noble Earl will look at the definition clause on page 48, he will find that the words "Probation Order" are defined in Clause 73 (1) as having the meaning assigned to them by Clause 2. The words are therefore necessary.
THE EARL OF SELKIRK: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
THE EARL OF LINDSAY THE EARL OF LINDSAY moved, in subsection (1) to substitute "probationer" for "offender." The noble Earl said: May I point out that this is the first of several Amendments, all of which I think are identical and concern the terms "offenders" and "probationers"? The point is that these two terms "offender" and "probationer" appear to be used indiscriminately for the same thing throughout the various clauses of the Bill. I could quote many examples of that. My endeavour is to secure some uniformity in the Bill. It would appear appropriate that a prisoner should be an offender before the granting of a probation order and afterwards becomes a probationer. This Amendment also brings the wording of the Bill into line with the English Act, in which the term "probationer" is used after the granting of a probation order. I beg to move.
Amendment moved—
Page 2, line 26, leave out ("offender") and insert ("probationer").—(The Earl of Lindsay.)
LORD MORRISON: The Government have no objection in principle to this Amendment, but there are other provisions in the Bill in which similar Amendments will be needed. If I accept this Amendment it will mean going through the Bill with a fine toothcomb to find other places in which the alteration might be needed. It might be better if the noble Lord would withdraw his Amendment, in order to avoid doing this in bits and pieces. I shall then be perfectly ready to give an undertaking to consider the matter again.
THE EARL OF SELKIRK: I am not sure whether the matter could be carried quite so far as the noble Lord suggests. It appears to me that before a probation order is made, a prisoner should be known as an "offender," and afterwards as a "probationer." If so, certain alterations would undoubtedly have to be made.
LORD MORRISON: What I intended to convey was that we should go through the Bill and, wherever we find the word "offender," substitute "probationer." We should look through the Bill to see whether the noble Earl in his Amendment had covered all the cases to which the change should apply, and then cover them in one piece, as it were, on the Report stage.
THE EARL OF LINDSAY: I thank the noble Lord for his answer. I agree that these Amendments do not cover all the points in question, and in view of what the noble Lord says I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD MORRISON: This is a drafting Amendment. I beg to move.
Amendment moved:
Page 2, line 38, after ("court") leave out ("having jurisdiction in that area") and insert ("being such a court as could have been named in any amendment of the order in accordance with the provisions of the Second Schedule to this Act").—(Lord Morrison.)
On Question, Amendment agreed to.
LORD POLWARTH LORD POLWARTH moved to omit subsection (3). The noble Lord said: I beg to move this Amendment which stands in my name. This is a comparatively small point, but we are often told that the Amendments which we suggest are liable to make a Bill too rigid in its
184
operation. I submit that this Amendment, if made, will in fact do the opposite, and make the Bill slightly less rigid. As this subsection stands, when a probation order is made in respect of an offender, it will have to commit him to the care of a probation officer on the roll of the area in which he is residing or is going to reside. That is a perfectly natural provision, but I submit that there are cases when it might be desirable for such an offender to be under the care of a probation officer for another area. Let us take, for example, two areas such as the City of Glasgow and the County of Lanark—large industrial areas with a fairly arbitrary boundary between them. It may be that the young person concerned has previously been on probation, and that a probation officer in one of these areas, who has had dealings with the offender or with his family on previous ocasions, knows the history of the case. It may have happened that the same person has since moved a short distance and may now be in an adjoining probation area. I feel that it should be possible in a case of this sort for the offender to be put under the probation officer for the other area. Of course, the court would naturally put him in the care of an officer for either his own area or one close to it. I submit that by leaving out this subsection we should make the Bill a little more flexible. I beg to move.
Amendment moved—
Page 2, line 41, leave out subsection (3).—(Lord Polwarth.)
LORD MORRISON: I was under the impression that the noble Lord was on another point. I thought that he was anxious to have an assurance that the court is not required to nominate a salaried officer in every case. I would point out to him that there is nothing in the Bill to prevent the court from nominating a voluntary officer where it considers it appropriate to do so. The noble Lord has developed another point. The subsection provides that any salaried probation officer nominated in a probation order is to be selected from among the salaried probation officers for the area named in the order. It seems clearly necessary that the probationer should be under the supervision of a probation officer for the area in which the probationer is to reside. If there were a probation

185
officer in his own area, I am afraid it would cause extraordinary difficulties if he were put under the control of a probation officer in another area.
LORD POLWARTH: With all respect to the noble Lord, I cannot see quite what the difficulties would be. I mentioned clearly the case which I gave, that it might be suitable for the man to be dealt with by a probation officer who had previous experience of the case. I cannot see that administrative reasons should debar that from taking place. I hope that the noble Lord will think about this, and if I withdraw the Amendment now I reserve the right to move it again, because I cannot see that it is a question of anything but administrative convenience. For the present, I will withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD POLWARTH LORD POLWARTH moved, in subsection (7) to omit "in ordinary language." The noble Lord said: I beg leave to move this Amendment, also, on behalf of the noble Earl, Lord Selkirk. This is another comparatively minor point. By now, the noble Lord, Lord Morrison, is becoming used to arguments on some of these questions of wording, but I would suggest that this is not entirely a question of words. Here again, obviously the intention of this subsection is that when an offender is put on probation he shall have the effect of it explained to him in such a manner that he can understand it, and not in a hastily gabbled stream of legal terminology. I suggest that the word "explain" by itself is adequate for the purpose. After all, "explain" means "make clear or intelligible." I have had it suggested to me by a member of the legal profession that if we put in the words "in ordinary language it is more likely to lead to complications than to simplify the matter. I agree that to make the law for the odd case is not a particularly good thing but take, for example, the case of a foreigner who is unable to speak the tongue of the country. Take also the rather extreme case of a deaf mute who appears before a court. You could not, by any stretch of the imagination, explain to either of those two "in ordinary language" the effect of the order. It might create rather a paradise for all the lawyers to argue about. I suggest that the word "explain" is quite sufficient by itself, and that the
186
words "in ordinary language" should be left out. I beg to move.
Amendment moved—
Page 3, line 24, leave out ("in ordinary language").—(Lord Polwarth.)
LORD MORRISON: I thought that the noble Lord would have welcomed these words "in ordinary language." I think that most people in Scotland will welcome them. I am sure the noble Lord does not want any person to be sentenced in language that is not understandable. If my memory serves me aright, the only reason why these words are included is that they are in the English Act. That is where I find myself in a particular difficulty in the position I am now occupying. I am first fired at because certain things are not in the English Act which should be in the English Act, and then I am tired at for the converse reason. As they say in language which is unknown in Scotland but which is well-known where I come from, the critics "have a bit on both ways."
VISCOUNT SWINTON: And the noble Lord only bets on a certainty !
LORD MORRISON: The words which it is proposed to omit are to make sure that an offender understands the meaning and obligations of a probation order, and that these orders are not explained to him in legal phraseology. Many of these offenders will be young people, and it is thought better to explain to them in ordinary understandable language. The noble Lord raises the question of a deaf mute or a foreigner. Perhaps he would be in favour of saying, instead of "in ordinary language," "in understandable language," which would mean by the deaf and dumb alphabet in the case of the deaf mute, and a foreign language in the case of the foreigner. Then, if we have "in understandable language," that again would cause serious difficulties. I think that the simple expression "in ordinary language" is suitable to the great majority of people. I hope the noble Lord will withdraw his Amendment.
LORD POLWARTH: I will not press the point, but I should have thought that the word "explain" meant "make plain or intelligible." However, as it is only a matter of three words, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD MORRISON: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 3, line 40, after ("institution") insert ("or place").—(Lord Morrison.)
On Question, Amendment agreed to.
Clause 2, as amended, agreed to.
Clause 3 [Probation orders requiring treatment for mental condition]:
THE EARL OF SELKIRK: I raise this question to ascertain whether Clause 3, which deals with mental defectives and persons of unsound mind, is in fact governed by Clause 2 in regard to the condition that the probationer or the offender should express his willingness. I beg to move.
Amendment moved—
Page 4, line 20, at end insert—
("(2) Before making a probation order under the last preceding subsection the court shall if it is satisfied that the probationer is capable of understanding its terms and of expressing his willingness to comply with the requirements thereof explain to him the effect of the order.")—(The Earl of Selkirk.)
THE LORD CHANCELLOR: That is so. The whole matter is governed by Clause 2, subsection (7), which we have been discussing, and no probation order can be made unless its meaning has been explained to the offender and he has expressed his willingness to comply with its requirements. The present clause deals only with the attachment to the order of conditions about mental treatment. The persons concerned are not persons of unsound mind or mental defectives, and if they are suitable subjects for a probation order they should be capable of understanding its effect.
THE EARL OF SELKIRK: I beg leave to withdraw my Amendment.
THE EARL OF PERTH: Before we leave this point, I would like to get this clear. Am I right in thinking that before the probation order is made the person concerned is to be called "the offender" and that afterwards he will be referred to as "the probationer"?
THE EARL OF SELKIRK: So far as I am aware, that is the Government's intention; but I do not know.
THE LORD CHANCELLOR: This point needs very carefully to be looked at. We cannot refer to a probationer at a
188
time prior to the order of probation having been made. At that time he must be called the "offender"; but thereafter we want to see whether we can use the word "probationer." We have to try to get this right all through the Bill.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clause 4 agreed to.
Clause 5 [Failure to comply with requirement of probation order]:
THE EARL OF SELKIRK: This manuscript Amendment deals with failure to comply with a probation order. In such cases a court may take one of three courses. The court can fine without altering the probation order; they can deal with the offender as they would have dealt with him in the first instance; or they can vary the probation order. We have already had a discussion on the subject of absolute discharge. The point of raising this Amendment—and I do so recognising that I have put it down only in manuscript, but I desired to have it on record—is this: it appears to me that when a man has been on absolute discharge, or when there has been a probation order, and he is then brought up for failing to comply with the requirements, it is inadequate to say that he can be dealt with as if he has an absolutely clean sheet. For that reason I suggest that instead of the words in subsection (2) (b):
"deal with the offender for the offence for which the probation order was made …"
the wording should be:
"sentence the offender for the offence for which the probation order was made in any manner in which the court could deal with him …"
I am moving this Amendment to keep it on record, and if the noble Lord is unable to reply to-day, I shall fully understand.
Amendment moved—
Page 7, line 6, leave out ("deal with") and insert ("sentence").—(The Earl of Selkirk.)
LORD MORRISON: I am afraid that I can make only a very brief reply. I was entirely unaware of the Amendment until a short time ago. The only answer I can give is that it appears, on a very cursory examination of the Amendment, that it would leave summary cases in the sheriff's court unaccounted for. I think it ought to be further considered. Perhaps the noble Earl would leave it at that.
THE EARL OF SELKIRK: I beg leave to withdraw.
Amendment, by leave, withdrawn.
THE EARL OF SELKIRK: The next Amendment deals with only a small point. This is the third way in which the person who has failed to comply with a probation order can be dealt with, and the Bill states that he may be given another probation order, but that it
"shall terminate not later than three years from the date of the probation order."
All I am asking is whether that refers to the original order, or whether that is the timing of the new probation order.
Amendment moved—
Page 7, line 10, after the second ("the") insert ("original").—(The Earl of Selkirk.)
LORD MORRISON: As the noble Earl has said, this is a very minor point. The only order, the requirements of which the court can vary, is the probation order in respect of which the probationer has been brought before it. Therefore, since that is the only order, it must of necessity be the original order, and need not be specified.
THE EARL OF SELKIRK: I beg leave to withdraw.
Amendment, by leave, withdrawn.
Clause 5 agreed to.
Clause 6 agreed to.
Clause 7:
Supplementary provisions as to probation and discharge
7.—(1) Without prejudice to the provisions of subsection (2) of section fifty-nine of the Children and Young Persons (Scotland) Act, 1937 (which enables a court to order the parent or guardian of a child or young person to give security for his good behaviour) any court may, on making a probation order under this Part of this Act, if it thinks it expedient for the purpose of the reformation of the offender, require the offender, or if the offender is a child, his parent or guardian, or if the offender is a young person, the offender or his parent or guardian to give security for the good behaviour of the offender.
THE EARL OF LINDSAY THE EARL OF LINDSAY moved, in subsection (1), to omit all words from and including "require" to the end of the subsection, and to insert:
"allow any person who consents to do so to give security for the good behaviour of the offender."
The noble Earl said: With your Lordships' permission, I beg leave to move
190
this Amendment on behalf of my noble friend Lord Buckinghamshire, who is not able to be here this afternoon. As the Bill stands at present, if the court requires a security for the good behaviour of a probationer, then the persons who can give that security are limited, if the probationer is a child, to the father or guardian, and, if the offender or probationer is a young person, to the person himself or to his father or guardian. With all respect, I do not see any particular reason for this. Circumstances may well arise whereby the guardian or parent is unable to be present, or is not in a position to give the security, and it seems to me that an uncle or cousin or a close friend of the family would be equally suitable. If by any chance the court feels that the person offering the security it not a suitable person, it has the discretion to refuse to receive security from that person. For that reason I do not see the real object of this limitation. My final argument will put the noble Lord in the difficult position to which he has just referred, that the wording of this Amendment will bring the Bill into line with the exact wording of the English Act. I beg to move.
Amendment moved—
Page 8, line 18, leave out from ("offender") to end of line 22 and insert the said new words.—(The Earl of Lindsay.)
LORD MORRISON: If I may, I will reply to the last sentence first. I think we might well leave this particular argument entirely alone now, and continue with the Bill on the basis that Scotland is entitled to the best Criminal Justice Bill that it can gel, irrespective of whether any specific point is in the English Act or not; otherwise I think our discussions will go on for a very long time. I am unable to agree with the noble Earl in his Amendment, which would have a twofold effect. In the first place, it takes away the power of the court under the present clause to require a parent or guardian of a young person who is put on probation to give security for his good behaviour. The noble Earl says it might not be convenient for a parent or a guardian to be present in court, but it will always be possible to adjourn the case for the attendance of the parent or guardian. I am sure the noble Earl would be the last person to wish to take away any parental responsibility. Parents ought

191
to be compelled to accept some responsibility for the behaviour of their children.
Secondly, the Amendment would give the court a new general power to allow any person, whether or not the parent or guardian, to give such security. It is felt to be right that in appropriate cases the parent or guardian, who has a legal responsibility for the child, should be put under a monetary obligation to discharge that responsibility properly. It is not thought right, however, that a person other than a parent or guardian should be subject to a monetary penalty if the offender gets into trouble. Such a person has no legal responsibility for the offender, and if he is allowed to give security for the offender's good behaviour, there seems to be a danger of conflict between him and the probation officer who has a statutory duty to supervise the probationer. I hope that the noble Earl will see that there are considerable difficulties in the way of adopting his Amendment, and that he will not press it.
VISCOUNT ELIBANK: Supposing a child is an orphan without a guardian; what is the position then?
LORD MORRISON: I do not know whether the noble Viscount has a specific case in mind. He has certainly raised a new point. I dare say that before such a person came before a court the police or probation officers would take some steps to find someone, if they could, who would accept some responsibility for the child.
THE EARL OF LINDSAY: I appreciate what the noble Lord has said in answer to this Amendment, and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved to add to the clause:
"(3) A court, on making a probation order or on discharging an offender absolutely under this Part of this Act, may, without prejudice to its power of awarding costs against him, order the offender to pay such damages for injury or compensation for loss as the court thinks reasonable; but, in the case of an order made by a court of summary jurisdiction, the damages and compensation together shall not exceed one hundred pounds or such greater sum as may be allowed by any enactment other than this section."
The noble Earl said: This is a subsection taken out of the English Act—
192
Clause 11 (2). It seems to me a fairly sensible subsection. The purpose of the subsection is to cause an offender to pay such damages for injury, or compensation for loss, as the court thinks reasonable. On the one hand that is fair to the injured party and, on the other hand, it will serve to instil into the offender a sense of responsibility for the damage which he has done to other people's property. I will not say any more in moving this Amendment. The arguments in its favour are well known to your Lordships. I beg to move.
Amendment moved—
Page 8, line 27, at end insert the said new subsection.—(The Earl of Selkirk.)
LORD MORRISON: In the first place think I ought to point out that this Amendment states that a court "may, without prejudice to its power of awarding costs" do certain things. I am advised that there is no power under Scottish criminal law to award costs against an offender. Therefore, that part of the Amendment would seem to be not in order. The principle of awarding damages or compensation in a criminal offence is foreign to Scottish criminal procedure. It is true that the power to do this in probation cases has existed in Scotland since 1907, but I am informed that even in probation cases it was an alien power which has seldom been exercised. It is regarded as objectionable because the view is firmly held in Scotland that the question of damages or compensation arising from criminal offences is a matter for the civil courts and not for the criminal courts.
LORD LLEWELLIN: Is it really so? Is it the fact that in no Scottish criminal case can any defendant be called upon to pay any costs and that in Scotland a person must go twice to law, if somebody is to be made to pay two or three or five pounds towards damage which he has committed? If that is so, Scotland must indeed be a lawyers' paradise.
LORD MORRISON: I am advised quite definitely that the principle of awarding damages or compensation in criminal cases is foreign to Scottish criminal procedure. And there is strong objection there to it. Claims for damage or compensation must be the subject of civil proceedings. If anybody wishes to claim damages they must take proceedings in a civil court.
LORD NORMAND: I should like to confirm what has been said from the Government Front Bench. There is a vital distinction in all Scottish procedure between criminal and civil liability, and the adoption of this Amendment would certainly require a great many consequential Amendments to allow appeals to be effectually dealt with.
THE EARL OF SELKIRK: In view of what has been said, I beg leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
Clause 7 agreed to.
Clause 8:
Effects of probation and discharge
8.—(1) Subject as hereinafter provided, a conviction on indictment of an offence for which an order is made under this Part of this Act placing the offender on probation or discharging him absolutely shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender for an offence of which the first mentioned offence constitutes an aggravation:
Provided that where an offender, being not less than seventeen years of age at the time of his conviction of an offence for which he is placed on probation as aforesaid, is subsequently sentenced under this Part of this Act for that offence, the provisions of this subsection shall cease to apply to the conviction.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved, in subsection (1) to delete "other than" and to insert:
"relating to an application by the offender to hold any office under the Crown or for any proceedings under the False Oaths (Scotland) Act. 1933, but shall be deemed to be a conviction for."
The noble Earl said: This is a rather more difficult matter. I would be glad to know what the Government intend to do under Clause 8. This clause deals with cases of indictment where conviction has taken place, and the Bill states that where an offender is placed on probation or is discharged absolutely, he shall be deemed not to have been convicted. The question is: When is a conviction not a conviction?
I wish to point out first, that this provision does not apply, apparently, in cases dealt with under summary jurisdiction and in which a man is put on probation. Suppose that a man is dealt with summarily, and is convicted and put on probation. That is a conviction and it does not come under Clause 8, as it appears from the
194
proviso that a person can be put on probation and it will not count as a conviction provided he is under 17 years of age. As I understand it, the idea is that it shall not count as a conviction except for the purposes of the probation order and for the purpose of the aggravation of a similar offence. By whom is it deemed not to be a conviction? If I may say so, with great respect, there is a very definite limit to what the Statute can do. If anyone, on being convicted, is asked whether he has had a conviction, is he entitled to say: "I have not had a conviction. I have a statutory authority for misrepresentation"? In other words, is this a Statute endeavouring to lay down canons of true speech, or, to put it another way, canons of morality? If it is, I think it will be ineffective.
I have suggested that the better course would be to say exactly what the effect of this clause is. I entirely agree it is desirable that, in official circles, there should be as little disability as the law permits. There should, of course, be permission to appeal where necessary. But I suggest that there is a danger here of penalising the conscientious and not penalising those who do not suffer from the same limits of conscience. In the circumstances, I feel it would be much better to restrict the use of the word "conviction" to a certain area to which the Statute has an absolute right to restrict it—that is to say, in appointments which affect the Government, on the one hand, and, on the other hand, in any return which has to be made. But to say that a man is entitled to tell a lie when he has been asked whether he has been convicted is to encourage people to make misrepresentations.
I beg to move.
Amendment moved—
Page 8, line 32, leave out ("other than") and insert the said new ords.—(The Earl of Selkirk.)
LORD MORRISON: The pendulum seems now to be swinging the other way again. This is a copy of Section 12 (1) of the English Act of last year; it is in precisely the same terms. The clause proceeds on the principle that where a probationer has undergone his period of probation with credit, he should not be prejudiced by the conviction. It accordingly provides the conviction is to be disregarded for all purposes except

195
the proceedings in which the order is made and any subsequent proceedings for a similar offence. The effect of the noble Earl's Amendment would seem to be that a conviction for an offence for which a probation order is made would be disregarded only in the two cases mentioned in the Amendment—namely, where an application is made by the offender to hold any office under the Crown or in any proceedings under the False Oaths (Scotland) Act—for instance, for making a false declaration for the purpose of registering as a person qualified by law to practice a vocation or calling. We see no special reason for selecting these specific purposes and I doubt whether the noble Earl wants that. I think he is only giving them as examples.
THE EARL OF SELKIRK: The noble Lord has not answered the first point I made. Why is it that a probationer who has been convicted by a summary court does not have the same advantage as the probationer convicted on indictment?
THE LORD CHANCELLOR: In a summary case there is no conviction when an offender is put on probation.
THE EARL OF SELKIRK: With great respect, there can be a conviction. It is entirely open to the court to decide whether or not it is expedient that there should be a conviction. There is nothing to stop the court from convicting.
THE LORD CHANCELLOR: If a court of summary jurisdiction in Scotland puts anybody on probation under this Bill, as I understand it there is no conviction.
THE EARL OF SELKIRK: I understood that that was the option of the court. May I ask the noble Lord what he considers to be the extent of the effect of this Bill? Does he consider that there is no limit? He is encouraging people to make false statements after they have been convicted. It seems to me that these official occasions to which I have referred are the only ones in which the Statute is entitled to say that a statement which is incorrect can be made.
LORD MORRISON: What I said was that a conviction is to be disregarded for all purposes except for the purpose for which the order is made and any subsequent proceedings for a similar offence. If the noble Earl suggests that we are en-
196
couraging anyone to make false statements, I feel sure that upon reflection he would not continue to make any such suggestion. We are not doing anything of the sort.
VISCOUNT SIMON: I am not sure if I followed the intervention of the noble and learned Viscount the Lord Chancellor just now. Probably it is my own fault. I am wandering in a strange land and therefore I am probably wrong. I had the impression from the end of Clause 1 that it would not be correct to say that a court of summary jurisdiction never proceed to conviction in these cases, but, on the contrary, there is a discretion resting in the court whether it should do so or not. The words are:
"…. the court, if it is of opinion … that it is inexpedient to inflict punishment and that a probation order is not appropriate may, instead of sentencing him, and, in the case of a court of summary jurisdiction proceeding to conviction, make an order discharging him absolutely."
I am very likely wrong, but I had the impression that the effect of that was that the court of summary jurisdiction in these cases did not necessarily proceed to conviction, but might do so or not, according to their opinion of the circumstances.
THE LORD CHANCELLOR: I did so understand but if the noble and learned Viscount complains that he is wandering in strange territory, so am I. If he will look at Clause 2, he will see that it says:
"…. the court, if it is of the opinion, having regard to the circumstances, including the nature of the offence and the character of the offender, that it is expedient to do so, may, instead of sentencing him, and, in the case of a court of summary jurisdiction without proceeding to conviction, make a probation order.…"
I understand that to mean that a court of summary jurisdiction can only make a probation order without proceeding to convict. That is my understanding of this Bill.
LORD NORMAND: I agree about Clause 2. My noble and learned friend, Lord Simon, was referring to Clause 1 and to the absolute discharge. Clause 2 refers, of course, to probation, but, with deference to the views of others, I should be inclined to think that the same construction applies to Clause 1 as to Clause 2 and, therefore, a court of summary jurisdiction would not be able

197
to make an order discharging a man absolutely except on the same terms as those upon which they could make an order for probation under Clause 2.
VISCOUNT SIMON: I think I was referring to the less important clause. What I am seeking to learn from my noble and learned friend who has just spoken is whether, if a court of summary jurisdiction in Scotland is going to make a probation order under Clause 2, it must not proceed to convict, or whether, on the other hand, the court of summary jurisdiction in Scotland could, if it thought proper, proceed to convict and yet make a probation order.
LORD NORMAND: No.
THE EARL OF SELKIRK: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 8 agreed to.
Clauses 9 to 11 agreed to.
3.48 p.m.
Clause 12 [Inspection of institutions for residence of probationers.]
THE EARL OF SELKIRK THE EARL OF SELKIRK moved to add to subsection (1):
"Provided that this subsection shall not confer on the Secretary of State any right to inspect a private dwelling save with the consent of its occupier."
The noble Earl said: Clause 12 gives the Secretary of State authority to inspect probation institutions. As it is contemplated that houses elsewhere should be used by probation institutions, I should like to know whether it is intended that the power of inspection would extend to private houses. I beg to move.
Amendment moved—
Page 10, line 29, at end insert the said words.—(The Earl of Selkirk.)
LORD MORRISON: I can tell the noble Earl definitely that there is no right to inspect private dwellings. Under the clause as it stands only institutions can be inspected. Where houses are being used as institutions they would be included.
THE EARL OF SELKIRK: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 12 agreed to.
Clauses 13 to 16 agreed to.
Clause 17:
Restriction on imprisonment
(2) No court shall impose imprisonment on a person under twenty-one years of age unless the court is of opinion that no other method of dealing with him is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain from a probation officer or otherwise and consider information about his circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition.
(3) Where a court of summary jurisdiction other than a sheriff court or a stipendiary magistrate's court imposes imprisonment on any such person as is mentioned in the last foregoing subsection, the court shall state the reason for its opinion that no other method of dealing with him is appropriate, and the reason shall be specified in the minutes required to be kept under section fifty-three of the Summary Jurisdiction (Scotland) Act, 1908.
LORD LLEWELLIN LORD LLEWELLIN moved, in subsection (3) to leave out "other than a sheriff court or a stipendiary magistrate's court." The noble Lord said: This is a matter which I mentioned in my speech on Second Reading. This clause restricts the way in which courts may sentence young offenders to imprisonment. Subsection (2) refers to persons under the age of 21, and I think that we are all of the opinion that if there is any other course a court can properly take in regard to a young person under 21—sending him to Borstal or binding him aver—the court ought to avoid sending him to prison. In consequence, except sending the Courts of Assize, or the Central Criminal Court in England, any other court which, for exceptional reasons, sends a young person under 21 to prison has to state the reasons in writing. That applies, under the English Act, to stipendiary magistrates, to all petty sessional courts and to courts of Quarter Session. In Scotland the stipendiary magistrates need not state in writing the reasons why they have, in exceptional circumstances, sent a young person to prison.
I have no experience of the Scottish courts, but I suppose human beings are human beings on whichever side of the Border they live, and there are no doubt good stipendiary magistrates and bad ones. Certainly, in my experience in England, have known some stipendiary magistrates who were much more inclined to send a young person to prison than any bench of lay magistrates would be.

199
In order to try and ensure that this course is taken in the fewest possible cases, I believe it is right that the lower courts, of whomsoever they may consist, should give the reasons in writing. This will make them pay more attention to what they are doing than if they have not to state those reasons. For the sake of this reform, which we all want to see, I hope we shall ensure that any lower court, before sending a young person under 21 to prison, must put down the reasons in writing. This may, perhaps, give pause to a man who, on the spur of the moment, may do that which none of us wants to have done. We believe that probation, or a fine, or Borstal, is much better treatment for the young person, and we do not want to see that young person start a prison life below the age of 21. I beg to move.
Amendment moved—
Page 12, line 1, leave out from ("jurisdiction") to ("imposes") in line 2.—(Lord Llewellin.)
LORD MORRISON: I remember well the occasion when we were discussing the English Act, and the noble Lord opposite raised this point. I also remember that he included in his remarks a suggestion that a similar power should be given in the Scottish Bill.
LORD LLEWELLIN: I do not wish to interrupt the noble Lord, but it was on the Second Reading of this Bill.
LORD MORRISON: The noble Lord is quite right. I can assure him that his point has received very close consideration, but the difficulties of accepting it are found to be considerable. The sheriff and stipendiary magistrates' courts in Scotland (incidentally, there is only one stipendiary magistrate in Scotland—in Glasgow) can be distinguished from English courts of Quarter Session. The sentence in the Scottish courts is entirely at the discretion of the professional judge, whereas in courts of Quarter Session in England it is decided by the full bench of magistrates, who are for the most part laymen, although they are almost always presided over by an experienced lawyer. The sheriffs in Scotland are all fully-qualified advocates or solicitors, and I am sure they can be relied upon to exercise with proper discretion the duty placed upon them by this clause—namely, that of sending per-
200
sons under 21 to prison only in exceptional circumstances. Nothing would be gained, in the opinion of the Government, by requiring them to state publicly their reasons for imposing imprisonment in a particular case.
There is another objection which appears to me to be equally strong. The effect of the noble Lord's Amendment would be to require sheriffs to state their reasons for sending persons under 21 to prison under summary proceedings, but not in proceedings on indictment. This would be illogical. The considerations, in both cases would be similar, and in each the decision would rest with the sheriff alone. In view of the further consideration that has been given to the noble Lord's Second Reading speech on this Bill, it is regretted that the weight of the argument seems to be against accepting the Amendment.
VISCOUNT TEMPLEWOOD: I do not follow the noble Lord's argument. Our case is not to draw distinction between courts in which there are professional magistrates and lay courts; it is upon the simple issue as to whether special precautions should not be taken to avoid young people under 21 being sent to prison. The noble Lord has just pointed out the fact that these sheriff courts in Scotland are composed of lawyers. We all know that; but it does not in the least affect our case. We do not mind whether the courts are composed of lawyers, or whether they are composed of magistrates in petty sessional courts in England. Our case is that we think it is very had, except in exceptional cases, that young people under 21 should be sent to prison and that use should not be made of such alternatives as Borstal, approved schools, probation, and the rest; that in the special cases, whoever may be responsible for the court should have to give special reasons. I hope, therefore, in spite of what the noble Lord, Lord Morrison, has just said, that he will think again between now and Report stage. This is a point to which my noble friends and I attach great importance, and in the event of its being ultimately rejected I feel that we shall have to press it. I think I have made the point quite clear. We do not mind whether the courts are composed of lawyers or not. We object to the imprisonment of the young, except in very special circumstances.
LORD MORRISON: I at once assent to the noble Viscount's request to have the matter considered further, but he will understand clearly that I have no authority whatever to make any promise.
LORD LLEWELLIN: I am obliged to the noble Lord for that remark. Before withdrawing the Amendment now, I would like to make one or two points, in answer to the remarks of the noble Lord, Lord Morrison. First of all, when it is a question of law the lawyer is far better than the layman but when it is a question of sentence, I (who have spent some years practising in the law) doubt whether the lawyer is any better than the layman in deciding the appropriate sentence. That is where the common-sense layman comes in, with just as good and often a more humane, outlook than the lawyer. The second point is this. The stipendiaries in England are all trained lawyers, and in England they have to state their reasons if they send a person under 21 to prison. I do not suggest that all English precedents should apply to Scotland, but in this sort of case, in the interests of what we all want done in regard to young people in both countries, I feel that the English precedent might well be followed.
The third point is this. The Court of Quarter Session, unless it is sitting in committee as an appeal tribunal from the court of summary jurisdiction, is dealing with cases, of indictment. It does not seem to me—and this is where I am completely at one with my noble friend who has just spoken—that it matters whether a layman or a lawyer is concerned, whether the case is on summary jurisdiction or on indictment. The point is that every possible precaution should be taken before a young person under 21 is sent to prison, when there are Borstal and other training centres to which they could be sent which are more fitted to deal with people of that age.
I am obliged to the noble Lord for saying that he will look at it again, but unless we can have a talk and come to some agreement about it, I shall put down an Amendment on the Report stage. I shall not move to leave out "the sheriff on indictment" because I do not see why the sheriff should have a different process in this matter, whether it is on indictment or on summary jurisdiction. I am looking at it entirely from the point of
202
view of the great harm that has been done in the past by sending young people to prison. I believe this procedure of having to state reasons in writing will make people pause before they say that there are exceptional circumstances in a particular case.
THE LORD CHANCELLOR: I want to say that I disagree most profoundly with the observations which the noble Lord has just made. Of course, what is needed in order to determine what is an appropriate sentence is common sense. But does the noble Lord not think that His Majesty's Judges possess common sense? Is not the first quality of a Judge, which distinguishes him from his fellow man, that he has common sense in an uncommon degree? I would add that that Judge not only has that degree of common sense, but also learns from experience, as I hope we all do as we go through life. Although, as I have often said, I have a profound regard for the lay magistrate, yet I trust even more the common sense of our Judges, enlightened and sharpened as it is by experience and practice. Although I am glad to have this Amendment withdrawn for reconsideration, I desire to make it plain beyond any peradventure that I dissociate myself emphatically and entirely with the observations of the noble Lord.
LORD LLEWELLIN: I am not going to dissent from the remarks which the Lord Chancellor has made about the Judges, but we are not discussing the Judges—we are discussing here sheriffs and stipendiary magistrates. I am contrasting the position in which they are with the position of those who preside or sit at Quarter Sessions. It is quite true that there are a certain number of laymen in the Courts of Quarter Session, but I am glad to think that I am at one with the Lord Chancellor in that, in practically every case now, those courts are presided over by a lawyer who, knowing the law, will certainly lead his court not to send to prison a person under the age of 21. If, for exceptional reasons, it has to be done, then the magistrates must write down the reasons why they have done it. The same applies to every stipendiary magistrate who is appointed by the Home Secretary. The only people who need not give their reasons in writing are the stipendiaries, who are appointed by the Secretary of State for

203
Scotland. I am not objecting to this check, for instance, on myself, as a deputy-chairman of Quarter Sessions. I say that when we are advancing along the line of human treatment, and are trying to deter courts from sending to prison people under the age of 21, the more courts which have to take that little extra trouble in order to save a young person of 21 from going to prison, the better.
THE LORD CHANCELLOR: I was not meaning to controvert that proposition at all. I think the observation which the noble Lord made was that when it came to sentence the layman was better than the Judge.
LORD LLEWELLIN: No.
THE LORD CHANCELLOR: The noble Lord can read what he said, but that is the impression he left on my mind.
LORD LLEWELLIN: I was not as general as that. Of course, I was speaking without any notes, as one always does in this House, but what I said was that the layman was no less human than the Judge, and was just as likely to be as good in knowing how to sentence people as the trailed lawyer. I do not think I used the word "Judge"; I think I used the words "trained lawyer." I did not mean to use the word "Judge," and I did not mean to refer to the people who hold that position in the Courts of the King's Bench Division. That is the way I wish to put my point and the way I put it in my final words. I am very much obliged to the noble Lord, Lord Morrison, for saying that he will look at it again. If we do not secure any alteration from the Secretary of State for Scotland on this, I have every intention of putting it down again on the Report stage.
VISCOUNT ELIBANK: May I, as a Scotsman, intervene in this debate? I do not profess to know a great deal about law, but I have listened to what has been said by my noble friend Lord Llewellin, and I agree very heartily with what the Lord Chancellor has said about the advantage of having trained lawyers in comparison with lay magistrates. After all, this question has arisen largely because the lay magistrates have not always proved very admirable in their judgments or in the sentences which they have imposed. I think that is one of the principal
204
reasons why my noble friend Lord Templewood and others have taken up this question so fiercely (if I may so put it) this afternoon. We in Scotland have always been very proud of our sheriffs and the way they have done their work throughout the country, whether in town or in the rural districts. I for one deprecate that they should be hampered in carrying out those duties by imposing upon them restrictions for which, in my opinion, there is no necessity. I am not arguing the English question. So far as the English conditions are concerned, the restriction may be necessary, owing, possibly, to the existence of the system of lay magistrates. But I should be very sorry if this Amendment were passed in your Lordships' House. I should like to leave our sheriffs, who have done such good work in the past, with the same latitude of administration in the law in this respect as they have had in all others.
LORD LLEWELLIN: I disagree with my noble friend behind me. If the sheriffs were to have the same latitude, they could go on sending people under the age of 21 to prison without any "exceptional circumstances." I should deplore that, and that is why I disagree with my noble friend. The Bill already provides that there must be "exceptional circumstances." I do not think that the sheriffs will be in any way hampered in their work if they have to give reasons. After all, the Judge in the High Court often has to give reasons for his judgments and I do not think he feels hampered in his work because of it. Indeed, this noble House, sitting as the highest Court of Justice, always gives reasons for its decisions, and is not in the least hampered because it has to do so. On the undertaking given by the noble Lord, Lord Morrison, to look into this matter again, I now beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 17 agreed to.
Clause 18:
Detention in a detention centre
18.—(1) Where a court has power, or would but for the last foregoing section have power, to impose imprisonment on a person who is not less than fourteen but under twenty-one years of age, the court, if it has been notified by the Secretary of State that a detention centre is available for the reception from that court of persons of his class or description, may in lieu of imposing imprisonment order

205
him to be detained in a detention centre to be specified in the order for a term not exceeding three months:
Provided that if the maximum term of imprisonment which the court might, or might but for the last foregoing section, impose is less than three months, the term for which he is ordered to be detained as aforesaid shall be a term not exceeding that maximum term of imprisonment.
THE EARL OF SELKIRK THE EARL OF SELKIRK had given notice of an Amendment to delete the proviso to subsection (1) and to insert:
"Provided that—

(a) if the maximum term of imprisonment which the court might, or might but for the last foregoing section, impose is less than three months, the term for which he is ordered to be detained as aforesaid shall (except as provided by paragraph (c) of this proviso) be a term equal to that maximum term of imprisonment;

(b) if the maximum term of imprisonment aforesaid exceeds three months and the court is of opinion, having regard to any special circumstances, that a term of three months' detention would be insufficient, the term for which he is ordered to be detained as aforesaid shall be any term not exceeding six months or the maximum term of imprisonment aforesaid, whichever is the shorter; and

(c) if the offender is of compulsory school age and the court is of opinion that a term of detention of three months, or equal to the maximum term of imprisonment aforesaid, would be excessive, the term for which he is ordered to be detained as aforesaid may be any term of not less than one month and not more than three months or the maximum term of imprisonment aforesaid."

The noble Earl said "I beg leave to move the Amendment—not as printed, but leaving out paragraph (a), which is not necessary as the Bill is at present worded.
My reason for moving the Amendment is that this is the first time in the Bill that a detention centre is mentioned. I think it is quite clear that the detention centre originated from the Home Office, and not from the Scottish Office. It has, as it were, been taken over from the Home Office. But this clause has for some reason been printed in different terms; the conditions of a detention centre are to be different in Scotland from what they are in England. I have no objection to that, but I am asking whether there is some particular reason for it. One thing that became clear in the discussion on the English Criminal Justice Act was that little was known in regard to the manner
206
in which detention centres would be organised. I am now giving the noble Lord opposite an opportunity of showing that ideas have fertilised and have produced some more concrete picture of what is intended. All we know about the detention centre is: (a) that it is for children between 16 and 21 under suitable discipline; (b) that there will be a short sharp term of punishment; (c) that this is largely experimental; and (d) that the buildings will not be available for many years. That is the extent of our knowledge, at present. I should like to know whether there is any clear picture of what is the way in which a detention centre is intended to be run. I beg to move.
Amendment moved—
Page 12, line 33, leave out from beginning to end of line 37, and insert:
"Provided that—

(a) if the maximum term of imprisonment aforesaid exceeds three months and the court is of opinion, having regard to any special circumstances, that a term of three months' would be insufficient, the term for which he is ordered to be detained as aforesaid shall be any term not exceeding six months or the maximum term of imprisonment aforesaid, whichever is the shorter; and

(b) if the offender is of compulsory school age and the court is of opinion that a term of detention of three months or equal to the maximum term of Imprisonment aforesaid, would be excessive, the term for which he is ordered to be detained as aforesaid may be any term of not less than one month and not more than farce months or the maximum term of imprisonment aforesaid."—(The Earl of Selkirk.)

LORD MORRISON: I gladly respond to the invitation of the noble Earl to give such information as I possess with regard to detention centres, so that he may have a somewhat clearer picture of what is intended. The purpose of detention centres is that they shall be institutions for the detention of certain young offenders of under 21 years of age. Under the existing law, where a court wishes to impose a term of detention on offenders of 17 but under 21 years of age, the offender is sent to prison. And where the offender is 14 and under 17 years of age, and the court certifies that he is too unruly or depraved to be detained in a remand home, he is sent to prison. It is generally recognised that the short-term imprisonment of a young offender is actually harmful, and the only possible good effect of sentencing a young

207
offender to imprisonment for a short period is the deterrent effect on similar young persons who may be tempted to commit offences. The deterrent effect will remain the principal object of detention centres, where the régime will be strict but not harsh. What reformative influences can be brought to bear in a short period will be made full use of, and it is intended to make such provision as is possible for after-care of persons discharged from such centres.
The maximum period of detention which may be imposed is three months. This is for the purpose of making use of these centres in cases where the offender does not require prolonged residential training which is provided by approved schools and Borstal institutions. What is often required in such cases is a sharp and short punishment which will have the effect of bringing home to the offender the gravity of his offence, particularly in cases where he has been unaffected by a fine or a period of probation. Accordingly, this provision will enable courts to impose such punishment without subjecting the offender to the contaminating influence of a prison. The principle underlying the régime of a detention centre will be strict discipline and hard work. Special consideration will be given to staffing. The centre is not intended to be a prison or to be run on prison lines. The actual régime will require to be adjusted in the light of experience, but it is proposed to make it sufficiently deterrent to bring home to the offender the injudiciousness of attempting to flout the law.
It is intended, when circumstances permit, to establish one centre, on experimental lines, catering for boys of a particular age group, and in the light of experience gained further centres will be provided. It is not anticipated that more than four will be required, but this will depend on the use made of them by the courts. I hope that this information may be helpful to the noble Earl. I would only add, with regard to these Amendments, that the Scottish Advisory Council on Treatment and Rehabilitation of Offenders have recommended that in no case shall a term of detention and probation exceed three months. This recommendation was made on the grounds that the purpose of the sentence is to inflict, as I have already said, a short, sharp punish-
208
ment on an offender who does not require long-term training such as could be provided by committal to an approved school or to a Borstal institution, and that a maximum of three months in a detention centre is sufficient to achieve this purpose. In this matter the Government are not prepared to turn aside the recommendations of the Scottish Advisory Council.
VISCOUNT TEMPLEWOOD: We are much obliged to the noble Lord for the information he has given us. Hitherto we have had very little information about what is admittedly a rather risky experiment. The risk is that these short-term detention institutions may degenerate into small prisons for young people, and on that account it is very important that the Government, both here and in Scotland, should think carefully again about the details of the plan and should announce those details, and the objects which they have in mind, to the benches in England and to the sheriffs and magistrates in Scotland. At the present moment, there is a great deal of obscurity as to what is going to happen. I do not know when the plan is going to come into operation in England—I hope very soon. I should have been glad if the noble Lord could have told the House this afternoon when the first institution of this kind is to start in Scotland.
I know that in the past it has been rather the habit to say that this raises questions of building, and that nothing can happen for a great many years. I have never accepted that objection. I believe that for these institutions it would be perfectly possible to improvise, say, a disused camp. That they should be set up soon is important at this moment, when we have been reviewing our whole criminal system and when, in certain directions, we have been prohibiting forms of punishment that in the past were regarded as deterrent—for instance, corporal punishment and imprisonment for the young. It is most important to bring into operation these alternatives as soon as possible. Whilst we are grateful for what he has said this afternoon, I wonder whether the noble Lord could upon the Report stage give us a little information as to when these institutions will actually start in Scotland. I hope very much that he will be able to say, not that we are going to wait until the perfect moment, when we can have a wonderful new building with

209
every sort of modern appliance, but that he will tell us that there is some camp, somewhere in Scotland, that can be brought into action at some time during the next three months. I have taken note of what the noble Lord has said about the difference between the Scottish and English procedure, but I do press once again the urgency of this question and the need for getting something started at once.
LORD MORRISON: May I briefly reply to the noble Viscount? Of course, it will be appreciated by him that this Bill is only in its Committee stage in your Lordships' House, and has still to go on its laborious way through another place (which means a Scottish Grand Committee), so that it will be some time before it reaches the Statute Book. However, I will make inquiries to see whether there is any further information which can be given to the noble Viscount on Report stage.
THE EARL OF SELKIRK: I am bound to confess that the noble Lord has not taken us much further than we were before. I do not want to add a great deal to this point, except to say that it is plain that no one has a clear idea of what these detention centres will amount to. I cannot help being disturbed by the remarks which have been made about the dangers of short-term sentences. We want to get a short, sharp penalty between the ages of 17 and 21. We cannot use pain; we do not want to use ridicule. I suggest that what the noble Lord proposes really amounts to boredom. I do not think that that is a very good way of doing it. May I suggest that he should endeavour to try physical extension? I believe that that is a more suitable way than any concentration or confinement in a limited sphere under strict discipline. I speak on this point in all humility, for I am not an authority on the matter, but I would like to suggest two forms of punishment which could be used. One is the use of camps on top of the Cairngorms in midwinter; the other I would suggest is sending boys to sea for a period of one month, where they would be under strict discipline and would have to shift for themselves under conditions of extreme severity. For a short term, it is impossible to teach a man anything in the way of mental development or character building, but
210
it is possible to teach him something in the physical sphere. That can only be done by extending him physically to the utmost limits.
I make these suggestions with great deference, for I do not pretend to be an authority on the subject, but the picture of strict discipline and hard work seems to me very closely approximating to a child's prison. No word which the noble Lord has used has sharply and clearly defined the distinction which exists between this and a child's prison or the existing Borstal. That, is not what is required. I support the noble Viscount, Lord Templewood, who has said that there should be some clear definition of what is intended to take place. I ask two questions which might be raised on Report stage; first, when is it intended to start these detention centres? Secondly, what is to happen in the meantime? Imprisonment for under 17 is abolished; Borstal does not start until 16. What is to happen to the boy of 15 for whom serious treatment is required? I ask that consideration should be given to these questions, and that an answer should be forthcoming on Report stage. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
4.27 p.m.
VISCOUNT TEMPLEWOOD VISCOUNT TEMPLEWOOD moved, after Clause 18 to insert the following new clause:
("Attendance at an attendance centre
—(1) Where a court of summary jurisdiction has power, or would but for section seventeen of this Act have power, to impose imprisonment on a person who is not less than twelve but under twenty-one, years of age, or to deal with any such person under section five of this Act for failure to comply with any of the requirements of a probation order, the court may, if it has been notified by the Secretary of State that an attendance centre is available for the reception from that court of persons of his class or description, order him to attend at such a centre, to be specified in the order, for such number of hours, not exceeding twelve in the aggregate, as may be so specified:
Provided that no such order shall be made in the case of a person who has been previously sentenced to imprisonment, Borstal training or detention in a detention centre, or has been ordered to be sent to an approved school.
(2) The times at which an offender is required to attend at an attendance centre by virtue of an order made under this section

211
shall be such as to avoid interference, so far as practicable with his school hours or working hours, and the first such time shall be specified in the order (being a time at which the centre is available for the attendance of the offender in accordance with the notification of the Secretary of State) and the subsequent times shall be fixed by the officer in charge of the centre, having regard to the offender's circumstances:
Provided that an offender shall not be required under this section to attend at an attendance centre on more than one occasion on any day, or for more than three hours on any occasion.
(3) The court by which an order has been made under subsection (1) of this section, or the Sheriff exercising his summary powers under section 11 of the Summary Jurisdiction (Scotland) Act, 1908, may, on the application of the offender or of the officer in charge of the attendance centre specified in the order—

(a) by order discharge the order; or

(b) by order vary the day or hour specified therein for the offender's first attendance at the centre;

and where the application is made by the said officer, the court or justice may deal with it without summoning the offender.
(4) Where an order is made under subsection (1) or subsection (3) of this section, the clerk to the justices shall deliver or send a copy of the order to the officer in charge of the attendance centre specified therein, and shall also deliver a copy to the offender or send a copy by registered post addressed to the offender's last or usual place of abode.
(5) Where a person has been ordered to attend at an attendance centre in default of the payment of any sum of money then:

(a) on payment of the whole sum to any person authorised to receive it, the order shall cease to have effect;

(b) on the payment of a part of the said sum as aforesaid, the total number of hours for which the offender is required to attend at the centre shall be reduced proportionately, that is to say by such number of complete hours as bears to the said total number the proportion most nearly approximating to, without exceeding, the proportion which the part paid bears to the said sum.

(6) Provision may be made by rules under Section fifty-one of the Summary Jurisdiction Act, 1908, as to the application of sums paid under the last foregoing subsection and for determining the persons authorised to receive such payments and the conditions under which such payments may be made.
(7) Where an order under subsection (1) of this section has been made and it appears on information to a justice acting for the area for which the court which made the order acts that the person in whose case the order was made:

(a) has failed without reasonable excuse to attend at the centre in accordance with the order; or

212

(b) while attending at the centre has committed a breach of the rules made under Section forty-nine of this Act which cannot be adequately dealt with under those rules;

the justice may issue a summons requiring the offender to appear at the place and time specified therein before a court of summary jurisdiction or may, if the information is in writing and on oath, issue a warrant for his arrest requiring him to be brought before such a court.
(8) If it is proved to the satisfaction of the court before which an offender appears or is brought under the last foregoing subsection that he has failed to attend as aforesaid, or has committed such a breach of rules as aforesaid, that court may revoke the order requiring his attendance at the attendance centre and deal with him in any manner in which he could have been dealt with by the court which made the order if the order had not been made.")
The noble Viscount said: I move this new clause, not because it contains one of the ideas in my original Bill in 1938, nor because it is in the English Bill—I fully admit that Scottish conditions may differ from English conditions, and that it does not follow that what we are to have in England should necessarily apply in Scotland. I move it rather upon the general grounds that, on the whole, the proposal for what are called attendance centres is a useful proposal. It is a cautious proposal. It is to be adopted only in suitable areas and in suitable cases. It is a proposal that, at any rate, makes an alternative punishment. One of the difficulties with all these questions is to find alternatives for the old penalties of our penal law. After a great deal of investigation, we came to the conclusion that, as a part of our penal system, it was useful to have a plan under which we could send the less serious offenders to a centre, the result of which would be that they would lose their half-holiday but would not have to go either to a prison or to a long-term of detention in a detention centre, an approved school or Borstal.
It will be remembered that the proposal was not originally included in the Criminal Justice Bill, but when that Bill came up for discussion I moved a clause similar to this, and it met with general approval from every side of the Committee. In particular, I remember that the Lord Chief Justice, who took an important part in our discussions, strongly supported it. That being so, and although I admit there may be differences between Scotland and England. I hope very much

213
that the proposal will be included in the Scottish Bill upon the lines of the English proposal—namely, that it is not obligatory, that it is an experiment, that it is an experiment to be started upon a very moderate scale, but that it is an experiment that may prove really useful in dealing with the difficult problem of juvenile delinquency. I imagine that the reason why it has not been included in the Scottish Bill is the fact that Scotland is less thickly populated than England, and that attendance centres of that kind would be difficult to organise in remote country districts. I admit that objection, but it is an objection against starting it over the whole of Scotland rather than starting it, let us say, in Edinburgh or Glasgow, where the conditions may be very like those in London or Liverpool. On that account I hope very much that the noble Lord will be able to tell the Committee that he is ready, upon these very cautious lines, to include this proposal in the Scottish Bill. I beg to move.
Amendment moved—
After Clause 18, insert the said new clause.—(Viscount Templewood.)
LORD MORRISON: If the noble Viscount will allow me to say so, I remember more clearly than anything else the discussion on this matter in the English Bill; there was no part of it which held my interest so much as this subject. I say that, not on behalf of the Scottish Office, but speaking entirely for myself. I can, however, tell him that the question whether provision for the use of attendance centres should be made in Scotland has been very carefully considered. It was considered when the Bill was being drafted and has received further consideration since. As a result, it has been decided that in Scottish conditions it could not be justified. As the noble Viscount has indicated, a large part of Scotland is of so rural a character and so sparsely populated that the practical difficulties of time and travel would be almost insurmountable and it would not be right to institute attendance centres in the more populous centres without doing so throughout the whole country.
It is presumably to meet this difficulty that the noble Viscount has in his new clause included a provision enabling the Secretary of State to arrange for the use of police stations or local authority build-
214
ings. I am advised., however, that it is doubtful whether the use of police stations and the employment of police staff is desirable and whether schools would be available in the evenings. Many police stations in Scotland have small accommodation which is already in full use, and young people ought not to be exposed to the risk of attendance at a place where they are liable to meet undesirable characters. Even if schools were available, it would be difficult to obtain the services of a person or persons who could supervise young offenders from twelve years of age upwards. Moreover, although the Amendment provides that a young offender who has previously been sentenced to imprisonment, Borstal, detention centre or approved school, may not be ordered to an attendance centre, the mixing together of offenders of different types and age groups might, in the opinion of the Scottish Department not be advisable. The Scottish Advisory Council on the Treatment and Rehabilitation of Offenders are strongly opposed to the establishment of attendance centres in Scotland.
Where a court wishes to impose a form of punishment, it has a variety of methods at its disposal; for example, a short period of detention in a remand home or detention centre. And where a court does not wish to interrupt the offender's schooling or employment, it may make a probation order with the inclusion of any specific requirements to suit the circumstances of the case. I can only add that although Scotland has a well deserved reputation for pioneering work as. I think the noble Viscount will admit, in this case Scotland is content to watch with friendly interest the progress with this proposal in England, and to keep an open mind as to whether it may at some future time be desirable to apply it to Scotland.
THE EARL OF SELKIRK: I have a fairly open mind on the subject of attendance centres, but when I heard the noble Lord's reply, I began to think there was something in them, because if that is the best argument which can be "cooked up" against them, the case is very thin indeed. In the first place, reference was made to the rural areas. Of course, the whole problem is one of an urban character. The question of juvenile delinquency in rural areas does not arise

215
to the same extent. Why there should not be a form of punishment which exists in Glasgow which does not exist in the Orkneys, I just do not see. What about the probation homes and probation hostels which we are already assisting to expand under this Bill? They are certainly available, and could be made available very easily in regard to the question of staff. No one wishes there to be a mixing of offenders, but what are you going to do in detention centres? What are you going to do in remand homes, and in remand centres? With great respect, if the noble Lord cannot put forward a better argument it seems that the case for the Amendment is completely overwhelming. I very much hope the noble Lord will think of some better answer, if he wishes to repel this argument, as I am sure the noble Viscount will again put down his Amendment on Report.
VISCOUNT TEMPLEWOOD: As I listened to the noble Lord's reply, I could not help thinking that he was sympathetic to my Amendment, and that he could not understand this very benighted attitude of friends over the Border. Let me say to him that every one of his arguments was equally applied to England. It was said, in effect, that it would be difficult to organise these schools in sparsely populated districts. His other remarks about alternative penalties are equally applicable to England, but, despite all the arguments, we came to the conclusion that it was wise to have this additional method. He ended his observations by saying that the representatives for Scotland were going to watch this experiment in England with sympathy; that they hoped it would succeed, presumably with a view to adopting it themselves at some time in the future. If that be so, surely it is a strong argument for putting this power into the Bill. It does not impose upon the Scottish authorities the need for starting these institutions at once; still less does it put upon them the need for starting these institutions all over the sparsely populated districts of Scotland. Therefore I hope, after this short debate, that the noble Lord (who, I am sure, really agrees with everything I am now saying) will put his views once again to the Scottish authorities, and when it
216
comes to the Report stage, at which we shall certainly press this proposal again, we shall find this power included in the Scottish Bill.
LORD MORRISON: I am sure the noble Viscount appreciates that I have no authority to go further than I have.
VISCOUNT TEMPLEWOOD: I will withdraw my Amendment.
Amendment, by leave, withdrawn.
4.39 p.m.
Clause 19:
Borstal training
19.—(1) Where a person who is not less than sixteen but under twenty-one years of age is convicted on indictment or is convicted summarily by a sheriff or a stipendiary magistrate of an offence punishable with imprisonment, and the court is satisfied having regard to his character and previous conduct, and to the circumstances of the offence, that it is expedient for his reformation and the prevention of crime that he should undergo a period of training in a Borstal institution, the court may, in lieu of any other sentence, pass a sentence of Borstal training.
LORD POLWARTH LORD POLWARTH moved, in subsection (1), to leave out "institution" and insert "Training Institution." The noble Lord said: I beg leave to move this Amendment which stands in my name and that of my noble friend, Lord Selkirk. We now come to the part of the Bill which deals with Borstal training. While I admit to having no particular experience of these institutions from any angle, I would like to make the suggestion contained in my Amendment, the object of which is to change the name to a "Borstal Training Institution." The name "Borstal" has become a household word in the English language, and it is a name that inevitably carries a certain odium with it. As your Lordships are aware, the name is simply that of the original convict prison where the system was first devised and experimented with, and it is only with the passing of time that it has come to be generally regarded as the equivalent of a sort of penal institution for bad boys and girls. That is entirely the wrong attitude to adopt towards it. The whole idea of Borstal is that it should be a place for training.
Those of your Lordships who still remember the Classics will be aware that there is a Greek word meaning "to sin"—perhaps I should say, in this connection, "to commit an offence"—but that

217
the original meaning of the word was "to miss the mark." And, after all, that is what has happened with the majority of the young people concerned in these cases: they have missed the mark. The cure for that is to teach them to hit the mark. Therefore the whole basis of Borstal is training. The noble Lord, Lord Morrison, referred earlier to the Report of the Advisory Council on the Treatment and Rehabilitation of Offenders. Your Lordships will probably be aware that one of the recommendations of this Report was that the name "Borstal" should be dropped and that some new name, such as, for example, "Approved Training Institution." should be substituted. I imagine that the idea behind that suggestion is to get rid of the stigma attaching to the name "Borstal." Now that might not be thought a wise course to adopt at the moment, for perhaps it is too soon to do so. But, in any case, the name "Borstal" will die hard, for it is so deeply ingrained in the language. I feel that we should endeavour to change the name of these institutions, so that emphasis is laid on training, and that for the time being each of these places should be described as a "Borstal Training Institution." I beg to move.
Amendment moved—
Page 13, line 21, leave out ("institution") and insert "Training Institution.)"—(Lord Polwarth.)
LORD MORRISON: While I am unable to accept the noble Lord's Amendment. I think I can give him a reply which will be fairly reassuring. I am speaking now, of course, for the Scottish Department, and they have considerable sympathy with the line which the noble Lord has taken; but they point out that the designation "Borstal institution" is well established now, and is employed in a number of Statutes and regulations. Its replacement would, therefore, involve many Amendments, not only in this Bill but in existing legislation, and would have but little practical effect. It would, perhaps, as the noble Lord says, be a beginning in the abolition of the word. The term "Borstal" is being continued in use in England and Wales, and would, therefore, continue to have currency, even if it ceased to have statutory authority, in Scotland. In fact, Borstal institutions are now, as the Advisory Council also recommended, given individual names. I
218
would like to direct the attention of the noble Lord to this point. Does he not think that perhaps the better way to accomplish what I am sure we both have in view would be to adopt the method which has already been started of giving each of these places individual names? For example, there are the Polmont Institution and the Cornton Vale Institution. These places are becoming known to an increasing extent by the house names, without the addition of the word "Borstal." This seems to me to be the course to encourage, rather than to embark on an awkward change in the name prescribed by Statute, which can be done only by making alterations in a number of Acts of Parliament.
THE EARL OF SELKIRK: With great respect, may I point out that to make the alteration now suggested to this Bill would not necessarily mean that there must be a change in every Act which has been passed which has reference to these institutions? The Committee will be aware that we have changed the term "lunatic "to "State mental patient" but we do not go back through all the Mental Deficiency Acts to change the term "lunatic" in each of them. Frankly, I am not very much impressed by the arguments which the noble Lord, Lord Morrison, has put forward on this subject. I should like to ask why he does not at least dignify the title of these places with a capital
letter? Why should not the word "Training" be included in their title? How is it intended that the general public should understand that these are training institutions rather than penal settlements, if they are not so described?
LORD MORRISON: I do not think that these are matters of great importance. There are a number of words which, as many of us in this Committee are old enough to remember, have come to be used as a form of ridicule after starting with some very good idea behind them. "Borstal," like other words before it, is now a term frequently heard on the music halls, and it forms the basis of many a stock joke by comedians. The term "lunatic" has been largely drooped. Lunatic asylums have become "mental institutions," and there is now something of a feeling against "institution" on the ground that it is a word with unpleasant associations. As I say, these words come along and then, as the years go by

219
although they started out quite all right, they come to be disliked. It was so, of course, with the Poor Law and other terms which have been gradually superseded. What I would endeavour to impress upon the noble Lord, I hope with some success (I know, of course, that I shall have none in the case of the noble Earl), is that the proper way to do what he desires is to start by having each of these institutions known by the name of the house, and then we might expect that gradually the word "Borstal" would disappear. That, I would suggest, would be a more effective way of accomplishing what he has in mind than the method which is embodied in this Amendment.
LORD POLWARTH: I do not intend to press this point, which, after all, is a fairly small one, but I must say, quite frankly, that the noble Lord's conservatism in this matter of the proposed alteration of the name astonishes me. I can only hope that, as he says, the house or place names of the particular establishments will become attached to them and that possibly the name "Borstal" will die out automatically. I should have thought that if that were the intention of the Government, it would have been much simpler to have accomplished it by putting what I have suggested into the Bill. In the circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 19 agreed to.
Clause 20:
Corrective training and preventive detention
(4) Before sentencing any offender to corrective training or preventive detention, the court shall consider any report or representations which may be made to the court by or on behalf of the Secretary of State on the offender's physical and mental condition and his suitability for such a sentence.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved in subsection (4) to leave out all words after "shall" and insert:
"call for and consider a report or representation which shall be presented by or on behalf of the Secretary of State showing whether the physical and mental condition of the offender render him suitable or unsuitable for such a sentence."
The noble Earl said: Clause 20 deals with the circumstances in which prisoners
220
are committed to corrective training or to preventive detention. This is, in fact, a fairly substantial change in the law. Formerly it was a jury question and it is now a matter for the court. The question I am raising in the Amendment is, what evidence should in fact be put in front of the court when they come to the decision that a man should be committed to prison for anything up to fourteen years? As matters stand, the court will have in front of them the man's previous criminal record. They are able to see from that what previous convictions he has had. But, it appears, they must then consider representations made by the Secretary of State. The purpose of the Amendment is to bring out what sort of recommendations the court requires when it is coming to a decision that a man should be subject to preventive detention or corrective training.
This is a serious matter of considerable importance. Is the report called for to be produced on the initiative of the court, or on the initiative of the prosecution? My Amendment suggests that it should be the initiative of the court. What is to be the nature of the report? Where the man has had a fairly long criminal record, what sort of information does the court require? As stated here, the information is on his physical and mental condition and the suitability for such a sentence. It is not quite clear if that is intended to be a plea in mitigation or a recommendation to the Secretary of State that he should have fourteen years' preventive detention. What is the intention of the representation? I will not add anything to what I have said except to say that I think this matter is important and I would like to hear clearly from the noble Lord what he thinks should be disclosed and the terms on which he thinks these representations should be made.
LORD REID: This is the first occasion on which I have elected to intervene in your Lordships' debates, and as a very recent member of your Lordships' House I would not venture to intervene now were it not for the fact that I have had some considerable experience of the difficulties of working the existing system for dealing with habitual criminality, as I was for a number of years responsible for prosecutions in Scotland. For forty years there has stood on the Statute Book a provision with regard to habitual

221
criminals, but in Scotland it has become practically a dead letter, because there are various practical difficulties about its operation. If this clause establishes, as I hope it will do, a workable and fair system of dealing with the habitual offender, I think it may well turn out to be the most important clause in the Bill. I have not ventured to intervene on the question of probation, because I claim no special opportunities of knowledge there; but here I think one has to try to avoid existing difficulties and yet be fair to offenders.
I do not propose to deal with this Amendment so far as it affects the first part of the clause, because I think what I have to say may come more effectively on the second part. That second part entitles a court, on a fourth conviction, to sentence a man to preventive detention for not less than five and not more than fourteen years, if the court is satisfied that that is expedient for the protection of the public. I would ask your Lordships to note that the ruling phrase here is whether it would be for the protection of the public. If the Judge thinks a case is suitable for operating this provision, after the jury have returned their verdict of guilty he must adjourn the case for further consideration in order that he may get a report. This Amendment deals with the nature of the report and the nature of the information which ought to be communicated to the Judge.
We in Scotland, perhaps more strictly even than in England, have always refused to allow facts to be put before a court at the conclusion of a case in circumstances where the accused may in any way be unfairly tried—where, for instance, he cannot cross-examine. It is bad enough to have a police officer giving an account of the movements of the accused after the case has come to a conclusion, but it is worse for that to be done by means of a report. I should not object to a report in the least, rather I should recommend it, if it dealt only with the physical and mental condition of a prisoner. That would be a proper circumstance to put before the court in the shape of a report; but if the report is to go beyond that, if it enters into the realm of error and gives facts and, still worse, opinions about his associates, his habits and his behaviour, that seems to
222
me a thing which ought not to be done by means of a report.
I am well aware that in the past reports in certain limited classes of case have given this kind of information. I do not think that practice ought to be extended beyond where it rests at present. I do not think it is very relevant that the court should know these things, if the main point which the court has to consider is the protection of the public. The court must not send a man to preventive detention if he is physically or mentally unable to hear it but, assuming that is all right, then, the protection of the public being the main and, indeed, at that stage the sole consideration, a report should not go beyond that limited field. I hope that the noble Lord who is to reply will be able to give some assurance that that is indeed the intention of the Government.
LORD MORRISON: I am certain I speak for all noble Lords present this afternoon when I say how much we welcome the valuable and most interesting contribution of the noble and learned Lord who has just made his first contribution to the deliberations of your Lordships' House. Since I was made to some extent responsible in your Lordships' House for Scottish affairs, I have always regretted that the Scottish Law Lords do not take part in our debates so often as one would like. I hope that the interesting speech made by the noble and learned Lord, Lord Reid, will be the precursor of many other speeches, which I am sure we shall listen to with the greatest interest because of his valuable experience and knowledge of these subjects.
May I make a fairly direct reply to the very important matter which the noble Earl has raised, as time is getting on? The Amendment would have three effects, and I would like to deal with each. First, it would require the court to call for a report; secondly, it would require the report to be presented to the court, and thirdly, it would restrict the report to the question whether the offender's physical and mental condition fits him for a sentence of corrective training or preventive detention. As regards the first, that it would require the court to call for a report. I am authorised to give an undertaking that tie drafting of the clause, and consequentially the drafting

223
of Clause 19 (3) which deals with Borstal sentences, will be reconsidered before Report stage with a view to making it clear that the court shall obtain and consider a report in every case before sentencing an offender to corrective training, preventive detention or Borstal training.
As regards the second point, that it would require the report to be presented to the court, this part of the Amendment is probably intended to ensure the presence in the court of the prison governor who will normally prepare the report, so that he may be examined on its contents. It has not hitherto been the practice in the case of Borstal reports for the prison governor to appear before the court in person, and as reports are mainly factual, it is probably unnecessary in the majority of cases for the governor to appear. There seems no reason to doubt that if in any particular case a court did wish the person submitting the report to appear before it, arrangements would be made for his attendance. It has to be remembered that a copy of the report must be supplied to the offender or his solicitor under subsection (5).
The factual parts of the report will thus be open to challenge without the presence of the person making it, and there does not seem to be much danger of injustice or misunderstanding. If, however, the noble Earl feels keenly upon this point, I can also give him the assurance that the drafting of the clause will be further considered before the Report stage.
That brings me to the third point, that it would restrict the report to the question of whether the offender's physical and mental condition fits him for a sentence of corrective training or preventive detention. I am advised that it would be undesirable to restrict the report in this way. It ought if possible to include information about the offender's home circumstances, education, employment record, leisure activities and associates, and response to any methods of treatment applied by courts in the past. Information on these points is at present obtained for the purposes of Borstal reports by prison governors from education authorities, probation officers, and the police. It is valuable as enabling a court to have a full pic-
224
ture of the offender's antecedents and background before it decides whether either corrective training or preventive detention is appropriate to his case. I hope that that considered reply will satisfy the noble Earl.
THE EARL OF SELKIRK: I thank the noble Lord for what he has said. I would also like to say how much I appreciate the remarks of the noble and learned Lord, Lord Reid, on this Amendment. They are most valuable. May I say at once that I am keen about this point? I think it is important. The noble Lord will have noticed that I missed out the Borstal clause altogether (that appears on the previous page) for the reason that I do not think the Borstal clause is so important. I regard the Borstal clause as coming in an entirely different category. Here is a case where a man may be put into prison for fourteen years, not because of any crime he committed, but because of his record. What is the information which has to be given before a court, if such a sentence is to be imposed? With great respect to the noble Lord, those reports are not factual—at least, in so far as a comparison with Borstal exists. Anyone who has seen a Borstal report is fully aware of the words which frequently appear: "He associates with criminals." That will appear on the evidence of the police. With great respect to the noble Lord, that is not a fact; it is a matter of opinion. That is the sort of information which cannot be checked, and cannot be cross-examined.
I am not pretending for one moment that this is easy, but I do submit it is very important that the exact nature of this information should be put in front of the court. The noble Lord has suggested—and I think this is important—that arrangements could be made in certain circumstances for the attendance of an officer. If something of that kind could be inserted in the Bill, I should be grateful. I feel that there are occasions when the court would like to have a man in front of them to whom they could say: "Where did you get that information?" While it is obviously in the public interest that a sentence of preventive detention should be properly applied, it is equally important that it should not be misused. I am grateful for the noble Lord's promise

225
that he will examine the matter further, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 20 agreed to.
Clause 21 agreed to.
Clause 22:
Power to order the detention of persons of unsound mind
22.—(1) Where a person is charged summarily in the sheriff court with any act or omission constituting an offence punishable with imprisonment, and the court is satisfied that the person did the act or made the omission charged, and is satisfied on the evidence of two registered medical practitioners that the person is of unsound mind and is also satisfied that he is a proper person to be detained, the court shall
(a) order that he be removed to and received and detained in such mental hospital as may be named in the order; or,
(5) The foregoing provisions of this section shall, until the day appointed for the coming into force of Section fifty-eight of this Act, have effect with the substitution for any reference to a State Mental Hospital of a reference to the lunatic department of Perth Prison.
THE EARL OF SELKIRK THE EARL OF SELKIRK move in subsection (1) to omit "summarily." The noble Earl said: This is a very short point. I would like to know why the word "summarily" has been included in the first line of Clause 22. I move the Amendment merely in order to ascertain that information. I beg to move.
Amendment moved—
Page 16, line 16, leave out ("summarily").—(The Earl of Selkirk.)
LORD MORRISON: I am advised that there is already available a satisfactory procedure for dealing with persons who are insane who are charged on indictment in sheriff courts. Sheriff courts have power to commit a person so charged to a criminal lunatic asylum for detention during His Majesty's pleasure, either if the person is insane and unfit to plead, or if the jury find that he was insane when he committed the crime.
THE EARL OF SELKIRK: I am obliged to the noble Lord, and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE EARL OF SELKIRK: I move the next Amendment at the request of my noble friend Lord Clydesmuir. The noble Lord would like to know how the mental
226
hospital at Carstairs is progressing. It was used as a hospital during the war, and it is hoped that it has now been restored to its proper function of being a mental hospital. My noble friend would particularly like to know when the Firth Hospital, which is unsuitable in many ways for the purposes for which it is now used, is likely to be closed. I beg to move.
Amendment moved—
Page 17, line 17, at end insert ("and the Mental Hospital at Carstairs").—(The Earl of Selkirk.)
LORD MORRISON: I am not sure that I can fully satisfy the noble Earl. I thought that the Amendment had been put down under a misapprehension. The building at Carstairs was originally projected as a criminal lunatic asylum but, in fact, has never been so used. It is being used to accommodate the State Institution for Defectives. If the Car-stairs Institution were to be used for criminal lunatics, it would be a State mental hospital and the clause would automatically apply.
THE EARL OF SELKIRK: With great respect, I asked certain questions and that was really the point of putting down the Amendment. I was aware that the clause actually covered the point. Perhaps information could be gained and offered on the Report stage as to the progress made at Carstairs, and as to whether there is any chance of the Firth Hospital being closed. In the circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
5.7 p.m.
Clause 23:
Power to order the detention of mental defectives
23.—(1) Where it appears to the prosecutor in any court before which a person is charged with an offence that the person is a defective within the meaning of the Mental Deficiency (Scotland) Acts, 1913 and 1940, it shall be the duty of such prosecutor to bring before the court such evidence as may be available of the mental condition of such accused person.
(2) Where a person is charged in the High Court or the sheriff court with any offence and the court is satisfied that the person committed the offence, and is satisfied on the evidence of two registered medical practitioners one of whom shall be a medical practitioner approved for the purpose by the General

227
Board of Control for Scotland that the person is a defective within the meaning of the Mental Deficiency (Scotland) Acts, 1913 and 1940, the court may (in lieu of dealing with him in any other manner) order that he be removed to and received and detained in such institution for mental defectives as may be named in the order or that he be placed under guardianship.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved, in subsection (1) after "1940" to insert "or of unsound mind." The noble Earl said: I beg formally to move this Amendment. I desire to know why under Clause 23 the duty of investigating the mental condition of the accused falls on the prosecutor, but that in the event of the accused being mentally unsound no such duty falls upon the prosecutor. It appears to me that it would be reasonable for the prosecutor to make representations in both cases. I beg to move.
Amendment moved—
Page 17, line 21, after ("1940") insert ("or of unsound mind").—(The Earl of Selkirk.)
LORD MORRISON: I will reply, with equal brevity, that we are sympathetically inclined towards the Amendment. I am advised, however, that the point of this Amendment can best he secured by an Amendment, not to this clause, but to Clause 22. If the noble Earl would be good enough to withdraw his Amendment, the matter will be considered between now and the Report stage and an Amendment will then be put down to Clause 22.
THE EARL OF SELKIRK: I am obliged to the noble Lord, and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE EARL OF SELKIRK: I propose now to move three manuscript Amendments as follows:
Page 17, line 25, leave out ("charged") and insert ("convicted on indictment");
Page 17, line 26, leave out ("with any offence");
Page 17, line 26, leave out from the second ("court") to ("is") in line 27.
The noble Lord may not be in a position to answer my questions on these Amendments now, as I am submitting them in manuscript form. I am moving them for this reason. It seems to me rather curious that, in a High Court case or a Sheriff's Court case, where normally the trial will be by jury, it falls to the
228
court to be satisfied that the person committed the offence. It seems to me a little unreasonable that that should be the case, because obviously the court does not decide; it is purely a jury question. I am not clear as to how it is intended to work. I beg to move.
Amendment moved—
Page 17, line 25, leave out ("charged") and insert I ("convicted on indictment).— (The Earl of Selkirk.)
LORD MORRISON: It may be my fault, or it may be the fault of us both, but this is the first mention I have heard about these Amendments. I was not aware that they were going to be moved and, therefore, I take it that the noble Lord will be satisfied if the Amendments appear on the record.
LORD REID: Might I perhaps add one word, because it may be that this Amendment originated from a conversation which I had with my noble friend? It seems that the clause is very ill advised, if the intention is that the Judge should take the case out of the hands of the jury, expressing himself as satisfied that the person committed the offence and is a mental defective. It seems to me that once a case has been remitted to a jury, the jury are masters of the facts, and the facts should not be withdrawn from their purview. I can attach no other meaning to the clause as it stands than that the jury are not to decide the facts of the case. I cannot reconcile the words "the court is satisfied that the person committed the offence," when one sees that a few lines further down "the court" plainly means "the Judge" "—I cannot reconcile that with any other meaning than that the Judge must step in before the jury are asked to consider their verdict, and say: "I decide that the man committed the offence, but I decide that he was a mental defective." I think the proper procedure would be to let the case go to the jury for their finding on fact, and then, if the Judge is satisfied that the man is a mental defective, let him deal with him as such. Do not take the matter out of the hands of the jury half way through the case. Of course, this Amendment would have to be followed by a consequential Amendment dealing with summary cases, and I think the Bill as it stands is adequate for those summary cases.
THE EARL OF SELKIRK: I beg leave to withdraw the first Amendment. I will not move the other two at this stage.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clauses 24 to 31 agreed to.
5.15 p.m.
Clause 32 [Proof as to productions in proceedings on indictment]:
THE EARL OF SELKIRK THE EARL OF SELKIRK had given Notice of an Amendment in subsection (1) to omit "unless the accused" and insert "if the defence." The noble Earl said: This is a very technical point, and I recognise fully that the Bill is a considerable improvement upon what has gone before. It is obviously undesirable that the Crown should be compelled to go through complicated and lengthy proceedings which are not strictly necessary. I am advised that there are occasions when this proposal might give rise to certain delay and unfairness. On careful consideration, I am not at all convinced that my Amendment is in fact an improvement on the existing Bill. I say that quite frankly and, therefore, I am not proposing to press it at all. Unless the noble and learned Viscount wishes to say something, I propose not to move the Amendment.
Clause 32 agreed to.
Clauses 33 to 35 agreed to.
Clause 36:
Proceeding on indictments against bodies corporate
36.—(1) In any proceedings on indictment against a body corporate the indictment may be served by—

(a) delivery of a copy with notice to appear attached thereto at the registered office or, if there is no registered office, at the principal place of business of the body corporate; and

(b) delivery in Scotland of a copy of the indictment with notice to appear attached thereto to the secretary or any director or to any person in charge of any principal place of business of the body corporate.

Where a registered letter containing a copy of the indictment has been sent by post to the registered office or principal place of business of the body corporate, an acknowledgment or certificate of the delivery of the letter issued by the Postmaster-General in pursuance of regulations under the Post Office Act, 1908, shall be sufficient evidence of the delivery of the letter at the registered office or place of business on the day specified in such acknowledgment or certificate.
(2) In any such proceedings as aforesaid the body corporate may appear, and any plea or notice on behalf of the body may be tendered or given—
(a) in the High Court of Justiciary, by counsel or by a representative of the body corporate; and
LORD MORRISON: This Amendment is purely a drafting one. I beg to move.
Amendment moved—
Page 24, line 24, after ("copy") insert ("of the indictment").—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON LORD MORRISON moved in subsection (1) (a) to omit the word "and" and insert "or." The noble Lord said: This Amendment is proposed for the purpose of enabling proceedings to be taken in Scotland on indictment against companies which do not have a secretary or director resident in Scotland, or any principal place of business in Scotland. The effect of the Amendment is to make it sufficient for the indictment to be served either at the company's headquarters, wherever it may be, or alternatively upon the secretary or any director who may be resident in Scotland, or upon any person in charge of a principal place of business in Scotland. I beg to move.
Amendment moved—
Page 24, line 27, leave out ("and") and insert ("or").—(Lord Morrison)
LORD REID: I hope the noble Lord will reconsider this Amendment. I think it upsets a drafting which was rather carefully considered when the scheme was first introduced and I am afraid it may introduce a certain looseness. At present two things have to be done. The first is precise:
"(a) delivery of a copy with notice to appear attached thereto at the registered office or … at the principal place of business.…"
There can be no doubt about the registered office, and there can be little doubt, in most cases, about the principal place of business. The second requirement was introduced really as a safeguard to make certain that if by any chance the first miscarried the second copy would get to somebody who would take steps to see that the company's interests were not neglected. But if the second is to stand alone, then it is so indefinite that I am very much afraid there will be considerable contention as to whether the company has been properly convened.

231
For example at line 30, if this is to be alternative, a copy of the indictment may be delivered "to any person in charge of any principal place of business" and that is enough. I can understand a company or a multiple shop having many places of business, but "any principal place of business" must mean, I suppose, a branch which is not too small a branch. That is introducing something very vague into what ought to be a precise department of the law. Therefore, if embarrassment has been found in delivering these two copies—which I can hardly believe—and it is intended to make these two courses alternative, the drafting of paragraph (b) will have to be made much more precise.
THE EARL OF SELKIRK: There is not much for me to add, except to say that this Amendment will not do. It is not simply an Amendment of one word, but a considered alteration of policy, because the whole of this clause is taken verbatim from the Companies Act and a deliberate change is being made in the wording. The noble Lord has explained the difficulty of "any principal place of business." I do not know whether the Lord Chancellor would care to explain what "any principal place of business" means. I know of no legal definition of that phrase. I would add, further, that your Lordships will observe in subsection (4) that a corporate body can be tried in absentio. It is therefore all the more necessary that the service of the indictment should be sound: otherwise there is a chance of a miscarriage of justice, which I am sure would not be the intention of this Bill.
LORD MORRISON: I am much obliged to the two noble Lords for drawing attention to what they believe to be a defect; but if they will allow the Amendment to go I will give an assurance that it will be looked into very carefully again before the Report stage to see whether any alteration is required.
LORD SALTOUN: Would it not be better for the noble Lord to withdraw his Amendment now? To move an Amendment which he knows to be wrong, in the hope of finding a better one in the interval, would be unfortunate.
THE EARL OF SELKIRK: With great respect, I suggest that this Amendment should not stand at the present time.
232
Closer examination of paragraph (b) will show that it is wholly unsuitable as the basis for delivery of indictment. I suggest that it would be better to withdraw the Amendment.
LORD MORRISON: The Committee has proceeded so harmoniously that I will not interfere with that harmony, and therefore, in response to the noble Lords' requests, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved in subsection (2) (a), to delete "or by a representative of the body corporate." The noble Earl said: This is a short point. As I have said, this is a clause which is taken substantially out of the Companies Act. If it is intended that persons other than counsel or solicitors, as the case may be, shall be entitled to conduct a defence of a corporation, the wording is rather narrow. It is not clear whether it means that a representative may give a plea or a notice on behalf of the body, or whether in fact it involves conducting a full defence. I am moving this Amendment so that we may have an interpretation by His Majesty's Government of this clause.
Amendment moved—
Page 24, line 43, leave out from ("counsel") to ("and") in line 44.—(The Earl of Selkirk.)
LORD NORMAND: This clause has, I think, created a certain amount of apprehension about the intention of His Majesty's Government. For my own part, I should read the word "appear," which is a slightly ambiguous word, as meaning entering appearance—that is, answering a summons of the court. That, I think, must be its meaning in subsection (4); but if it goes beyond that, I think it is extremely objectionable, because it would allow persons other than counsel to appear and conduct a defence. I cannot believe that that is the intention of His Majesty's Government.
THE LORD CHANCELLOR: The intention of the Government is merely to allow the non-legal person to enter a plea. The principle, of course, is that any person has the right to appear for himself, and in the case of a company the analogy would be an officer of the company—possibly the secretary or a

233
director. It not infrequently happens that a company has committed some minor offence and does not wish to incur the expense of a solicitor or counsel; and this official would himself go and say, "I am very sorry we have done wrong," and plead guilty. That is all there is to it. We do not intend that this official of a company should conduct a full defence or anything of that sort, as if he were counsel or solicitor. If the word we have used has led to ambiguity or doubt, I will gladly have it looked into.
THE EARL OF SELKIRK: I thank the noble and learned Viscount for what he says, and I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 36, as amended, agreed to.
Clause 37 [Alteration of diet in indictment and in summary proceedings]:
LORD MORRISON: The purpose of this Amendment is to allow an accused person's solicitor to act for him in making an application to a court for the alteration of date of a trial. I beg to move.
Amendment moved—
Page 26, line 14, after ("parties") insert ("or their solicitors").—(Lord Morrison.)
On Question, Amendment agreed to.
Clause 37, as amended, agreed to.
5.28 p.m.
Clause 38:
Amendment of False Oaths (Scotland) Act, 1933
(2) Any proceedings under the Summary Jurisdiction (Scotland) Act, 1908, for an offence against the False Oaths (Scotland) Act, 1933, may, notwithstanding anything in the first mentioned Act, be commenced at any time within one year from the date of the commission of the offence or within three months from the date when evidence sufficient in the opinion of the Lord Advocate to justify the proceedings comes to his knowledge whichever period last expires, and for the purposes of this subsection a certificate by the Lord Advocate as to the date on which such evidence as aforesaid came to his knowledge shall be conclusive evidence thereof.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved, in subsection (2) to substitute "two years" for "one year." The noble Earl said: With your Lordships' permission, I should like to take the next two Amendments standing in my name. I think it is generally agreed that on summary proceedings it is desirable that there should be a time limit within which proceedings
234
should be commenced. Over and above the twelve months within which cases with which this clause is concerned are to be commenced, it is proposed that proceedings may be started within three months of information becoming available to the Lord Advocate. But one would have thought that a longer period might sometimes be required, and it strikes me as simpler and more straight-forward that a period of two years should be proposed. This would not leave any dubiety at all. I beg to move.
Amendment moved—
Page 26, line 24, leave out ("one year") and insert ("two years").—(The Earl of Selkirk.)
LORD REID: It is always a difficult matter to try to adjust the rights of persons who are charged summarily, it may be on evidence which is not very carefully sifted and not very well remembered. On the other hand, the public interest requires that persons who conceal their offences should be punished just as much as those who do not. I venture to suggest that there may be a middle way. I know there is a great deal of precedent for the second subsection of this clause, and on the whole I do not think it has worked badly. If the prosecution is in respect of a written misstatement, writing remains, and it may be quite just to prosecute after perhaps two or three years where the person has succeeded in concealing his misdeeds for so long as that. But in prosecutions in cases of an oral misstatement (now admitted in subsection (1) of this clause), witnesses' memories fade; and I would suggest to the noble and learned Viscount the Lord Chancellor that if he feels that he must retain subsection (2) for some purpose, he should exclude from its purview oral statements, and make twelve months an absolute limit for prosecution on an oral false statement. To prosecute on an oral statement not made on oath is a new departure. I believe the trouble is in respect of information given from birth certificates and the like which is not given on oath. It is a new departure, and I think that, if a twelve months' limit were attached to a prosecution of that character, we might perhaps safely allow an extension where the offence consisted of something written. I venture to ask the noble and learned Viscount the Lord Chancellor to look into this matter again, because I think the clause as it now stands may be rather too wide.
THE LORD CHANCELLOR: I will gladly look into this matter again. Naturally, I have great regard for what falls from the lips of the noble and learned Lord who is dealing with a topic which is familiar to him but which, of course, is not familiar to me. I may be quite wrong, but I state this, so that I may be corrected if I am wrong. I understand that the position is this. Under the False Oaths Act, at the present moment the law is that if you are going to prosecute summarily, you must prosecute within six months; but if, on the other hand, you decide to prosecute on indictment, which you can do if you like, then there is no time limit at all. The result, so I am informed, is this. Not infrequently, things come to the knowledge of the Lord Advocate more than six months after the offence has been committed, and he can get out of his difficulty by proceeding on indictment and not proceeding summarily, because on indictment there is no time limit at all. I do not see the point of that. If you are going to prosecute at all on indictment, as you can do to-day, whether it be in respect of an oral offence or a written offence, there is no time limit at all.
If that is to remain the law and is not to work an injustice, I do not for the moment see why we should not extend the principle in this way, to facilitate proceedings in the less serious cases being taken summarily. There is ample precedent for this, as the noble and learned Lord himself recorded. For instance, under the Unemployment Insurance Act of 1935, together with a large number of other Statutes, a Minister is there enabled to take proceedings within six months from the date when the commission of the offence first came to his knowledge. There are many other instances in which such provisions work well, so far as I know. Therefore, I should be sorry to give up this (as I think) rather useful alteration, approximating the summary to the indictment procedure. In view of the fact that the noble and learned Lord has called my attention to it, however, I most gladly give him the assurance that I will make it my personal duty to look into this matter and see whether the proposed scheme is satisfactory or unsatisfactory. If it is not satisfactory, I will come and tell him so.
LORD REID: I am most grateful to the noble and learned Viscount the Lord Chancellor for the undertaking which he has given. I think it is important that the difficulties which he has pointed out in the existing state of the law should be cleared up. I regret that it should go out from this Committee that any Lord Advocate has ever made use of the technicality open to him under the Act to prosecute upon indictment offences which should have been prosecuted, not upon indictment but upon summary procedure. According to my experience, that has never happened, and I do not think it is ever likely to happen.
THE EARL OF SELKIRK: I am grateful to the Lord Chancellor. I confess I should have thought that, in any case where there would be delay over a considerable period, it would be clearly desirable that the case should be proceeded with on indictment and not summarily. If there is to be a delay between the commission of the offence and the trial, indictment procedure rather than summary procedure will be the more desirable. I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 38 agreed to.
Clauses 39 to 41 agreed to.
Clause 42 [Previous convictions in summary proceedings]:
LORD MORRISON: The effect of this Amendment is to prescribe that the notice giving the previous convictions of the accused shall be laid before the Judge at the stage where the guilt of the accused has been established. This was the purpose of the original clause, so that the Amendment is of a drafting nature only. I beg to move.
Amendment moved—
Page 27, line 14, leave out ("prosecutor moves for sentence") and insert ("judge is satisfied that the charge is proved").—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON: This Amendment and the next are both drafting. I beg to move.
Amendment moved—
Page 27, line 22, leave out ("a copy of").—(Lord Morrison.)
On Question, Amendment agreed to.
Amendment moved—
Page 27, line 30, leave out ("a copy of").—(Lord Morrison.)
On Question, Amendment agreed to.
Clause 42, as amended, agreed to.
Clauses 43 and 44 agreed to.
Clause 45 [Amendment of Summary Jurisdiction (Scotland) Act, 1908]:
THE EARL OF SELKIRK THE EARL OF SELKIRK moved, in the proposed new Section 65 (1), after "taken" to insert "and to the other parties." The noble Earl said: This is a small point. Clause 45 deals with an amendment to procedure on appeal by way of a stated case. I am suggesting in line 16 that the two parties, besides intimating their adjustments to the draft stated case to the Judge, should intimate them to one another. The reason for that is that it is difficult to make an answer to a case of that sort, or to make adjustments which may be thought necessary, until the case of the other side has been heard. I suggest that this Amendment would in some way assist, facilitate and expedite the preparation of stated cases for this type of work. I beg to move.
Amendment moved—
Page 28, line 16, after ("taken") insert ("and to the other parties ").—(The Earl of Selkirk.)
LORD MORRISON: I am advised that there can be no objection to accepting this Amendment, which I am very pleased to do.
On Question, Amendment agreed to.
Clause 45, as amended, agreed to.
Clause 46:
Remand centres, detention centres and Borstal institutions
(5) The appropriation of a prison vested in the Secretary of State under the Prisons (Scotland) Act, 1877 for use as a remand centre, detention centre or Borstal institution shall not be deemed, for the purposes of section thirty-nine of that Act, to be a discontinuance of the prison.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved to omit subsection (5). The noble Earl said: I move the deletion of subsection (5) for the sole purpose of giving the noble Lord opposite (who, I am sure, is anxious to do so) the opportunity of explaining certain things to the House. We
238
have already had a discussion upon detention centres and Borstal institutions, but we have had no discussion upon remand centres. I am going to move my Amendment formally, because I think the House would like to know when the noble Lord intends to start the construction of remand centres, to which so much attention is paid. I beg to move.
Amendment moved—
Page 29, line 43, leave out subsection (5).—(The Earl of Selkirk.)
THE LORD CHANCELLOR: I am grateful to the noble Earl for moving this Amendment, as it allows me to offer an explanation upon this matter. I cannot give him any estimate of the time when we can start on the construction of remand centres. I cannot give an estimate even of the time when this Bill will go through and receive the Royal Assent. I cannot estimate to what extent, if any, building will be necessary. The noble Earl knows the difficulties about building in Scotland better than I do. All I can say is—and I mean this—that we are really going to do the best we can because we do realise the importance of this work. The Amendment here raises the question of the possibility of having, as a temporary expedient, to use a prison. I want to make it quite plain that we do not intend to establish a remand centre, or a detention centre, or a Borstal institution in any part of a building which is being used as a prison.
The primary purpose of remand centres and detention centres, and one of the chief advantages of a Borstal institution, is that young offenders committed to them have no contact with prison conditions. But if the new remand centres and detention centres are to be brought into operation reasonably quickly, and if the Borstal system is to be adapted and improved within reasonable time, it may be necessary to take over prison buildings to serve temporarily as one of those institutions. Adaptation would of course he required to remove the prison atmosphere, and I say quite frankly that this expedient would be a mere stopgap. I want it to be quite plain that we do not contemplate using for any of these purposes a building which is at the same time being used as a prison; but when we have our new and better remand centres or Borstal institutions, it may be possible then to dispense with that stopgap method and

239
to return that building to the use for which it was originally intended—namely, a prison. That is why we desire to retain subsection (5), which the noble Earl has moved to leave out.
I would agree with him if he were under the impression—an impression I want to remove—that we contemplate using a building being used as a prison at one and the same time for one of these other purposes. That is entirely opposed to our intention, and with that assurance I hope he will be satisfied with what we are contemplating. I hope we shall not have to use these prisons at all, but if we do we must first try to take away the prison atmosphere. It is absolutely cardinal, of course, that we must not use a building for these other purposes which at the same time is being used as a prison.
THE EARL OF SELKIRK: I thank the learned and noble Viscount for what he has said. I regret that there is absolutely no indication when these centres will be brought into being, because, with great respect, whatever the noble and learned Viscount contemplates, prisons are the only places which at the present time can be used for such purposes, and they will inevitably continue to be so used unless other steps are taken. I have no other remarks to make upon this matter, and I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 46 agreed to.
Clauses 47 and 48 agreed to.
5.43 p.m.
Clause 49 [Rules for the management of prisons, remand centres, detention centres and Borstal institutions]:
THE EARL OF SELKIRK THE EARL OF SELKIRK moved to add to subsection (2)
"and the standard of personal hygiene afforded to such persons."
The noble Earl said: Clause 49 lays down what the Secretary of State may make rules for, and included therein one finds the management of prisons, remand centres, detention centres and Borstal institutions, and also the classification, treatment, employment, discipline, and control of persons required to be detained therein. I am moving the addition of the
240
words "and the standard of personal hygiene afforded to such persons," for a very short and specific reason—namely, that it is a gloomy fact, and one which I believe is fairly widely recognised, that few, if indeed any, people ever benefit by being in prison. I suggest that there is one thing which possibly could be done in prison, and that is, the teaching of standards of hygiene, by which I mean personal hygiene. I want to make it clear that any prisons which I have visited have always been scrupulously clean so far as the stonework and masonry is concerned, but I would not say the same in regard to the clothing which is supplied to the prisoners, or the condition of the prisoners themselves. This matter is the responsibility (as it must be) of the administrative department of the Secretary of State, and I move this Amendment because I think it desirable that that responsibility should stand on the Statute. If the prisoners could be taught standards of personal hygiene, we would be taking a step forward which is not being taken in prison establishments at the present time. I beg to move.
Amendment moved—
Page 31, line 39, at end insert the said words.—(The Earl of Selkirk.)
LORD MORRISON: I think all of us would agree with what the noble Earl has said. The importance of providing proper facilities for hygiene in penal establishments is of course admitted, and everything possible is being done in the present difficult circumstances to improve the admittedly unsatisfactory conditions in many of the older prisons and institutions. It is intended to push on with the work of reconstructing the sanitary and other facilities as quickly as possible. This, however, is not a thing which it is necessary or desirable to deal with in rules under Clause 49. While the provision of proper facilities for personal hygiene is not a matter which requires the making of rules, it is right that there should be a power to make rules to ensure that prisoners and others have proper opportunities, and, indeed, are required to make use of these facilities, and that proper habits of personal hygiene are encouraged as a part of their normal training. This can, however, already be done under subsection (1), which empowers the Secretary of State to make rules for the treatment of persons detained in prison.

241
It is unnecessary, and would in fact be undesirable, to refer to personal hygiene specifically in the Bill; there are many other matters—for example, food, medical attention, training and recreation—which are of equal importance and which will, like hygiene, be covered by the rules which are to be made under subsection (1). I hope that that reply may be satisfactory to the noble Earl.
THE EARL OF SELKIRK: If I may say so, the reply is one of eminent self-satisfaction. I think the noble Lord has said that everything possible is being done. I do not for one moment accept that statement, and I regret very much that the Government will not accept an Amendment even of this character. I realise there may be difficulties in respect of the wording. I do not propose to press the matter any further, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 49 agreed to.
Clauses 50 to 55 agreed to.
Clause 56:
Transfers from prison to Borstal institution and vice versa
(2) If a person detained in a Borstal institution is reported to the Secretary of State by the visiting committee to be incorrigible, or to be exercising a bad influence on the other inmates of the institution, the Secretary of State may commute the unexpired part of the term for which the said person is then liable to be detained in a Borstal institution to such a term of imprisonment as the Secretary of State may determine, not exceeding the said unexpired part; and for the purpose of this Act the said person shall be treated as if he had been sentenced to imprisonment for that term.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved, in subsection (2), to leave out "incorrigible" and insert "unfit for Borstal training." The noble Earl said: This is a short point. Clause 56 empowers the Secretary of State to commute a sentence to Borstal to one of imprisonment. I take objection to that on principle. I take objection to the principle that the Executive should have power to remove a boy from a Borstal institution to prison. Apart from anything else, I consider that it lengthens his sentence. It is common knowledge that a Borstal sentence is invariably longer than a prison sentence for a similar offence—
LORD MORRISON: Will the noble Earl forgive my interrupting? He is speaking to his second Amendment. Has he overlooked the first Amendment to this clause in his name, to leave out the word "incorrigible" and to insert "unfit for Borstal training"?
THE EARL OF SELKIRK: I beg your Lordships' pardon. I intend to speak on these two Amendments together, if that is a suitable course. I move to leave out the word "incorrigible" because its use seems to be a doctrine of defeat. Although I move this Amendment on a question of principle, I have long since ceased to expect any principles to be accepted or readily responded to from the opposite Front Bench. But I do think there are practical reasons why this matter should be reconsidered, and I am going to ask the Committee to be good enough to look at the Explanatory Memorandum with which this Bill is prefaced. The Explanatory Memorandum states that:
"One of the main objects of the Bill is to provide for the abolition of imprisonment as a method of treatment For young offenders and to substitute alternative methods."
In the circumstances, it seems to me extraordinary that it should be reserved for the Secretary of State—admittedly on the advice of the Visiting Committee—to transfer someone from Borstal to prison—in other words, from a training establishment to a penal establishment.
I would ask your Lordships to look at Clause 17. You will find that it is there stated that
"No court shall impose imprisonment on a person under seventeen years of age."
That means that, in future, if anyone were ever to see in prison someone under seventeen years of age he would know at once that that person had been sent there by the Secretary of State. I think it is absurd for a clause of that nature to stand in a Bill of this, kind. I am quite prepared to acknowledge that there may be cases where it is almost impossible to deal with a boy, particularly at this time, at Borstal. But I would be prepared for this to be temporary until such time as a proper establishment can be erected, which would enable incorrigible or difficult cases to be put away. I would agree to that. But what is to happen if, by statutory rule or regulation, the age at which it is impossible

243
for a court to imprison is raised? The age may be raised to 21. When it is raised to 21, will the Secretary of State still have power to imprison, of his own volition, at the age of 16? I submit that this subsection is unnecessary, and that what is sought to be accomplished could be perfectly well done by means of reference to the Schedule. This is the procedure already adopted in respect of probation cases, and in cases of changes from a remand home to a remand centre. I beg to move.
Amendment moved—
Page 35, line 24, leave out ("incorrigible") and insert ("unfit for Borstal training").—(The Earl of Selkirk.)
LORD MORRISON: I am sorry that after three and a half hours on this Bill the noble Earl is showing some signs of reverting to the use of the kind of language which we are more accustomed to hear in another place than here. In consequence, it falls to me to heap coals of fire on his head and to show him that we on this side of the House—and my unfortunate self in particular—are anxious to do our best to help the noble Earl to improve this Bill. I commence that campaign by saying that I agree entirely with his objection to the word "incorrigible" in the English Act. It seems to me not a very appropriate word. On the other hand, the phrase which the noble Earl suggests in its place "unfit for Borstal training," might, I am advised, imply physical unfitness. If the noble Earl—and here again I am showing how anxious I am to be helpful—would agree to delete the word "incorrigible" and to substitute for his word "unfit" the word "unsuitable" I would be willing to accept that. I make the noble Earl that sporting offer.
THE EARL OF SELKIRK: I shall be very glad to accept from the noble Lord any Amendment of that nature.
LORD LLEWELLIN: Before we pass from this Amendment, had we better not see where this is leading us? I do not know whether Lord Morrison is going to accept the noble Earl's second Amendment or not. If he is not going to accept the second Amendment, this will mean that the Secretary of State will have power to impose a sentence of imprisonment when a boy is merely "unsuitable" for Borstal training. This gives him far
244
more power than if the boy has to be "incorrigible." If we are to retain the second part of this clause, I dislike the idea of changing the word "incorrigible" to "unsuitable" because, although a person may, be unsuitable for Borstal training, he may not be the right person, necessarily, to send to prison.
LORD MORRISON: I am sorry that the noble Lord, Lord Llewellin, when I was trying to make a peace pact with my noble friend from Scotland, should have interposed in order to try, if possible—again I keep on dropping into language which is not really Scottish—to "queer the pitch." I now come to the Amendment to which Lord Llewellin has referred, and this is the second occasion, I would ask him to note, on which I am trying to be helpful. I was going to say to the noble Earl, Lord Selkirk, that it might help to shorten the proceedings which have already been fairly prolonged, if I say at once that further consideration will be given before the Report stage to this Amendment. I do not make any promises of amendment. I will, however, give a very definite assurance, and I ask the noble Earl to give me an opportunity of ensuring that this Amendment shall be further considered before the Report stage. Even if the principle of the Amendment were acceptable now, I would point out that it does not make clear which court should review the cases at the instance of the Secretary of State, nor does it limit the powers of that court in any way. Perhaps the noble Earl will withdraw the Amendment now, on the assurance that I will bring this matter tip again at the Report stage.
LORD LLEWELLIN: The noble Lord, Lord Morrison, seems rather to be accusing me—I, too, use an expression which is not Scottish—of "throwing a spanner into the works." I was not attempting to do that at all. I was only pointing out—and I think it is only right to do so—that his proposal would very much increase the power of the Secretary of State to convert a Borstal training sentence into one of imprisonment if the word "unsuitable" were used instead of "incorrigible." It seems to me that it is only in incorrigible cases that it would be desired to send one of these young men to prison. As I say, I was not trying to "throw a spanner into the works." I was making a perfectly

245
serious objection to the widening of the power of the Secretary of State.
LORD MORRISON: I am very sorry if I misunderstood the noble Lord. It is always very difficult for a Scotsman to get an Englishman to see a joke.
THE EARL OF SELKIRK: I thank the noble Lord for the consideration which he has given, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 56 agreed to.
Clauses 57 to 59 agreed to.
Clause 60 [Treatment of persons transferred from prisons, etc., to institutions for mental defectives]:
LORD MORRISON LORD MORRISON moved to leave out subsection (4). The noble Lord said: This subsection is no longer necessary and I therefore beg to move the Amendment.
Amendment moved—
Page 38, line 12, leave out subsection (4).—(Lord Morrison.)
THE EARL OF SELKIRK: Can the noble Lord give us some explanation? Is there any particular reason why this change is being made?
LORD MORRISON: The explanation is that the intention of subsection (4) was to ensure that control over persons transferred from prisons would be maintained during the period of their sentences by an order of the Secretary of State made under Section 10 of the Mental Deficiency and Lunacy (Scotland) Act, 1913, to institutions for defectives. It is now considered, however, that this control will be fully maintained under the provisions of subsection (1) and (2) of the clause. There is no need to keep the sentence or order in force after the person's transfer to the institution for defectives if he may not be discharged from that institution without the Secretary of State's consent, as is provided in subsection (1), and may be returned to prison by order of the Secretary of State, as is provided in subsection (2). Moreover, subsection (4) conflicts with subsection (1). Subsection (1) contemplates that the Secretary of State may consent to the release of a person before this sentence has terminated, but
246
subsection (4) provides for the sentence remaining in full force until its expiry.
On Question, Amendment agreed to.
Clause 60, as amended, agreed to.
Clauses 61 to 66 agreed to.
Clause 67 [Application to supervision orders of certain provisions relating to probation]:
LORD MORRISON: This Amendment is drafting. I beg to move.
Amendment moved—
Page 43, line 26, after ("institution") insert ("or place").—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON: This Amendment is drafting. I beg to move.
Amendment moved—
Page 43, line 35, leave out from the second ("the") to ("is") in line 36 and insert ("person to whom the order relates").—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 43, line 36, leave out from ("that") to ("person") and insert ("that").—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON: This also is a drafting Amendment. I beg to move.
Amendment moved—
Page 43, line 38, leave out from ("the") to ("person").—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 43, line 38, after ("first") insert ("to whom the order relates ").—(Lord Morrison.)
On Question, Amendment agreed to.
Clause 67, as amended, agreed to.
Clauses 68 and 69 agreed to.
Clause 70 [Expenses and grants payable out of moneys provided by Parliament]:
THE EARL OF SELKIRK THE EARL OF SELKIRK moved, in subsection (3) (b), after the word "in" to insert "building." The noble Earl said: I am asking for an interpretation as to whether the powers proposed to be given by the Secretary of State to pay moneys towards the expenditure on probation homes and hospitals include

247
building or constructing. Does the word "establishing" include building and constructing? I beg to move.
Amendment moved—
Page 46, line 9, at end insert ("building").—(The Earl of Selkirk.)
LORD MORRISON: I am advised that that Amendment is unnecessary, because the clause enables contributions to be made for the purpose of establishing such premises. The word "establishing" clearly includes building, and a specific authority for building is not required.
THE EARL OF SELKIRK: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 70 shall stand part of the Bill?
THE EARL OF SELKIRK: I should like to raise the question, of which I gave the noble Lord notice, in regard to the training of probation officers. I under- stand there is a serious shortage of probation officers at the present time, and that something of the order of 100 to 120 offenders are probationed to one officer. I ask the noble Lord whether he will make a statement upon the manner in which officers are to be trained or encouraged to enter the service.
LORD MORRISON: I am glad to accept the invitation of the noble Earl, and to make a short statement on the training of probation officers. Clause 70 of the Criminal Justice (Scotland) Bill authorises the expenditure of money on the training of probation officers, either directly by the Secretary of State or through a body approved by the Secretary of State. Any such expenditure incurred would be shared by the State and the local authorities. The value of training, both for existing probation officers and candidates to the service, can hardly be overestimated. The probation method of dealing with offenders has been so successful in the past that probation officers are now called upon, not only to cope with a variety of different tasks but also to be responsible for the supervision of offenders of all types and age groups. This calls for an increased knowledge and skill from probation officers, and it is noteworthy that the probation officers themselves are the first to recognise the importance of training and are eager to see training courses established.
248
The training which it is hoped to provide is of two kinds: refresher courses for established probation officers, and a training course for candidates to the service. Most probation officers with long years of experience behind them are able to deal successfully with their multifarious duties, but it is highly important that they should be kept up to date in their methods, and abreast of the provisions and scope of new Acts of Parliament affecting their work. For this purpose refresher courses will be very valuable. The training of candidates for the service will take the form of a comprehensive course, in which both theory and practice will be included. They will thus be able to step into their work well qualified to undertake their duties efficiently. It will also be an opportunity for candidates to discover, during their course of training, whether they are fitted to be probation officers. There are problems special to Scotland connected with the training of candidates to the probation service. The service is not a large one and the number of vacancies each year is small. It is anticipated, however, that the Criminal Justice (Scotland) Bill will increase the use made of the method of probation for dealing with offenders, adults as well as juveniles, and will add, both in this and other ways, to the duties of probation officers. The need for a training scheme is consequently now more pressing than formerly.
THE EARL OF SELKIRK: While thanking the noble Lord for the well-rounded phrases in which he has answered my remarks, I would venture to say that although the value of training can hardly be overestimated, there is absolutely no training whatever taking place. It is all very well to use these phrases, but I would have thought it better to say where, how and who was to undertake this work. I suggest that a more definite statement should be made.
Clause 70 agreed to.
Clauses 71 and 72 agreed to.
6.9 p.m.
Clause 73 [Interpretation]:
LORD POLWARTH LORD POLWARTH moved to add to the clause:
"'Offence the sentence for which is fixed by law' means an offence for which the court is

249
required to sentence the offender to death or imprisonment for life or to detention during His Majesty's pleasure;"
The noble Lord said: I beg to move this Amendment on behalf of my noble friends. The object is to include in the Interpretation clause a definition of the phrase which occurs in the earlier clauses of the Bill, "offence the sentence for which is fixed by law." This definition was put into the English Bill at the request of the noble and learned Lord, the Lord Chief Justice, who confessed that he did not understand the meaning of the phrase by itself. I have no wish to make this Bill uniform with the English Act, but unless the noble and learned Lords who are learned in the law of Scotland understand the phrase any better, it might be advisable to put this definition in the Bill.
Amendment moved—
Page 48, line 33, at end insert the said words.—(Lord Polwarth.)
THE LORD CHANCELLOR: The ordinary use of the words "detention during His Majesty's pleasure'" do not imply a sentence at all, because the person is of unsound mind and cannot be detained by virtue of a sentence, but is detained by virtue of a court order. The reason is that a person of unsound mind cannot be held responsible for his actions and convicted. The sentence which is fixed by law—with the solitary exception of detention during His Majesty's pleasure, which applies only in the very exceptional case of a murder by a juvenile—is the sentence of death. The advantage of keeping the Bill in this form—I do not think it is difficult to understand—is that if in the future a sentence is fixed by law, then this Bill will "bite" on it. If a definition is laid down (it could not be this definition), then it would not be appropriate in the event of the Legislature fixing a sentence hereafter. For those reasons, I think it is better in this case not to have the definition such as we have in the English Act.
THE EARL OF SELKIRK: I would like to ask the noble and learned Viscount why he feels it is better not to have the definition in this case, because some future sentence might be fixed by law whereas apparently that objection did not apply to the English Act. I should have thought it desirable, having put the definition in the English Act (I am not for
250
making this Bill homogeneous, or for making it conform entirely to the English Act), that it should be included in this Bill. If there was ambiguity in the one case, I should have thought that it would apply here also. I cannot quite see the Lord Chancellor's objection.
THE LORD CHANCELLOR: My Scottish advisers, who advise me about this Bill, tell me that they see no ambiguity about it relating to the law of Scotland. If there is an ambiguity in the English law (as it was said) then it is better to have the definition. But if there is no ambiguity, I see every reason against inserting the definition, for the reason I have given about a future sentence being fixed. It is obvious that this Amendment would not do, and if I am right in saying that there is no ambiguity, I do not think we ought to have a definition.
LORD POLWARTH: With the Lord Chancellor's assurance that there is no ambiguity, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 73 agreed to.
Clause 74 agreed to.
First and Second Schedules agreed to.
Third Schedule [Administrative provisions as to probation]:
THE EARL OF SELKIRK THE EARL OF SELKIRK moved to omit
"the expression 'sheriff' does not include sheriff substitute."
The noble Earl said: I move this Amendment to ascertain whether the definition of "sheriff" applies only to the Third Schedule, or whether it has a wider definition pertaining to other Schedules. I beg to move.
Amendment moved—
Page 57, leave out line 19.—(The Earl of Selkirk.)
LORD MORRISON: I am afraid I cannot answer the specific question of the noble Earl. I thought he was going to raise by this Amendment the question discussed in the last Scottish legal Bill, as to the difference between "sheriff" and "sheriff substitute." I am authorised only to say that the Amendment cannot be accepted, because under it the Secretary of State would be required to consult the

251
sheriff substitute in addition to the sheriff, which would be contrary to existing legislation. The sheriff is an ex-officio member of the probation committee, and the paragraph provides that he may nominate one or more of his sheriffs substitute as ex-officio members. Thus it is necessary to provide that the expression "sheriff" does not include sheriff substitute.
THE LORD CHANCELLOR: May I add that this applies only to this Schedule. The words "In this Schedule" appear at page 57, line 8.
THE EARL OF SELKIRK: I am grateful to the noble Lord. In the circumstances, I feel constrained to point out that the word "sheriff" clearly does not apply to the Second Schedule, where reference is made to "a sheriff court." The word "sheriff" is a very old word in Scotland, and has been used for 200 or 300 years. It seems to me very odd that it should have a different meaning in two successive Schedules. As the noble Lord, Lord Morrison, said, I have raised this matter before, and I do suggest that this word requires further examination. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Third Schedule agreed to.
Fourth Schedule:
Borstal Training
3. If the Secretary of State is satisfied that a person who is under supervision after his release from a Borstal institution under paragraph 1 of this Schedule has failed to comply with any requirement for the time being specified in the notice given to him under paragraph 2 of this Schedule, the Secretary of State may by order recall him to a Borstal institution; and thereupon he shall be liable to be detained in the Borstal institution until the expiration of three years from the date of his sentence, or the expiration of one year from the date of his being taken into custody under the order, whichever is the later, and, if at large, shall be deemed to be unlawfully at large:
Provided that—
(a) any such order shall, at the expiration of a period of three years from the date of the sentence, cease to have effect unless the person to whom it relates is then in custody thereunder; and
THE EARL OF SELKIRK THE EARL OF SELKIRK moved in paragraph 3 to leave out "later" and insert "earlier." The noble Earl said: My point here is quite a short one, and
252
it has reference to the next two Amendments. It deals with Borstal sentences. At the present time, as I understand, the sentence to Borstal has to be stereotyped to a sentence for three years, of which one year at least may be under supervision. It appears from line 38 that if a Borstal boy fails to comply with any requirement when under supervision, he may at any time be put back into Borstal for one of two periods: either for the period to the expiration of his term, or, alternatively, for a period of one year. I propose by this Amendment to leave out "later," which appears in the Bill, and to insert the word "earlier"; that is to say, the time for which he is sent back cannot be one year or the expiration of the period, whichever is the later, but one year or the expiration of the period, whichever is the earlier.
My next point is this. At the top of page 58 are the words:
"Provided that—
(a) any such order shall, at the expiration of a period of three years from the date of sentence, cease to have effect unless the person to whom it relates is then in custody thereunder;"
I suggest it is only when he is in custody that it should cease to have effect. If he is already out, it does not much matter; but if he is in custody, it is of some value that it should cease to have effect. The reason why I draw attention to it is this. It appears to me that if a boy who is under supervision for twelve months were to fail to comply with the requirements on the last day of that twelve months, theoretically he could remain in prison under this Bill for the rest of his life. I do deprecate this "cat and mouse" business I think it is unfortunate. I dare say it is true that it would never happen, but there is a good deal of "cat and mouse" business in this Bill; in fact, in the Fourth, Fifth, Sixth and Eighth Schedules there is a complete story in different ways of "cat and mouse" business. I suggest that in this case it would be much better to indicate quite shortly that this method must not be carried on, either above a certain age or for more than a certain number of times. I beg to move.
Amendment moved—
Page 58, line 2, leave out ("later") and insert ("earlier").—(The Earl of Selkirk.)
LORD MORRISON: I am sorry, but I am not in a position to make a statement which would be satisfactory to the

253
noble Earl. Perhaps he would be good enough to withdraw this Amendment and put it down again on the Report stage. He has very sound points about which I am not fully advised, and rather than waste the time of the House I would like an opportunity to look into the whole matter again.
THE EARL OF SELKIRK: I am obliged to the noble Lord. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved, in paragraph 4, to omit "or to penal servitude or detention in a Borstal institution." The noble Earl said: I think this is purely a drafting Amendment. There is reference to penal servitude, and two references to Borstal training or detention in Borstal. I am not clear that they are both necessary; I should have thought they could be omitted. I beg to move.
Amendment moved—
Page 58, line 16, leave out from ("Training") to ("his") in line 17.—(The Earl of Selkirk.)
LORD MORRISON: I am advised that the words which the noble Earl proposes to omit are required, because in the Isle of Man and the Channel Islands sentences of penal servitude and detention in a Borstal institution may still be passed, despite this Bill and the Criminal Justice Act, 1948. Perhaps I may also anticipate the noble Earl's next Amendment, where the same point arises. Even after the Criminal Justice Act, 1948, and the passage of this Bill, it will still be possible to impose sentences of penal servitude in the Channel Islands and the Isle of Man.
THE EARL OF SELKIRK: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Fourth Schedule agreed to.
Fifth and Sixth Schedules agreed to.
Seventh Schedule [Forms of notice to accused in criminal proceedings]:

FORM No. 3
A.B. Take notice that in the event of your being convicted of the charge of contravening (give reference to the section of Act or Order) in the complaint preferred against you at my instance it is intended to place before the Court the undernoted previous convictions and
254
you will be liable (in respect that the offence is a second (or third) offence) to the penalties set forth in the said section(s) (or in section of the said Act or, if preferred, the penalties may be shortly set forth).
List of previous convictions
THE EARL OF SELKIRK: Only a small point arises in this Amendment, but owing to the removal of previous sentences from the indictment it becomes of greater importance that the service of previous convictions, and the sentences which attend to them, should be clearly read out to the accused. In the Schedule as drafted it is permissive whether or not the full liabilities in view of the previous convictions are read out. My Amendment suggests that it should be mandatory to say exactly how long a sentence could be imposed by Statute in the circumstances. I think it is fair to an accused that that should be the case, and that he should know the seriousness of the offence with which he is being charged. I beg to move.
Amendment moved—
Page 62, line 8, leave out from the first ("in") to the second ("section").—(The Earl of Selkirk.)
LORD MORRISON: I am doubtful whether the very short reply I am about to give here will be acceptable to the noble Earl. I am advised that the object of this Amendment and the next is undesirable, because in some cases the list of penalties, including all the alternatives, would be very long, and in these cases it is thought sufficient to refer the accused person to the terms of the appropriate section.
LORD REID: I hope the Government will have another look at this. I realise that there may be cases where there would be difficulty in applying the precise terms of this Amendment. The noble Lord will know that we in Scotland have always prided ourselves on giving the accused very full notice, in one form or another, not only of the crime or offence with which he is charged but also of what may happen to him if he is convicted. I agree that under the existing system it is not perfect, and there are, perhaps, occasions when notice is not wholly adequate, but I am afraid that under the new system the notice will be very much less adequate than it is at present. I did not intervene on the question of whether it was a good

255
thing to withdraw previous convictions from the notice of the Judge until the man had been convicted. Personally, I would rather be inclined to think that it was a bad thing, but I do not hold a strong view. The effect of that is, of course, that nothing must be put in the complaint which indicates that the man has been convicted before, and if the penalty is specified and the Judge knows that what is specified is the penalty for the second or third offence, of course he puts two and two together and knows that the man was previously convicted. Therefore, no penalty must be specified in the complaint itself. I think we are entitled to ask that as much specification should now appear in the notice as has previously appeared in the complaint, and I am very doubtful whether that requirement is met. Perhaps the matter could be looked into, and we could see whether the present position does or does not prejudice the rights of the accused in comparison with the existing position.
THE EARL OF SELKIRK: I am grateful to the noble Lord, Lord Morrison, for apologising for his answer, and I readily accept his apology. I think the difficulties he raised are quite unreal, however. All we want to know is the major sentence which could be inflicted on a man. After what the noble and learned Lord, Lord Reid, has said. I hope the Government will reconsider this matter.
LORD MORRISON: I will gladly consult with those responsible for advising me before the Report stage.
THE EARL OF SELKIRK: I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Seventh Schedule agreed to.
Eighth Schedule [Release of young offenders from prison on licence]:
LORD MORRISON: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 63, line 3, leave out ("fifty-four") and insert ("fifty-two").—(Lord Morrison.)
On Question, Amendment agreed to.
Eighth Schedule, as amended, agreed 10.
Ninth Schedule agreed to.
Tenth Schedule [Consequential and minor amendments]:
LORD MORRISON: This Amendment is also drafting. I beg to move.
Amendment moved—
Page 66, line 40, at end insert ("in the complaint").—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON: This is a drafting Amendment to correct a wrong reference. I beg to move.
Amendment moved—
Page 66, line 44, leave out (('forty-four") and insert ("forty-two").—(Lord Morrison.)
On Question, Amendment agreed to.
Tenth Schedule, as amended, agreed to.
Eleventh Schedule [Enactments repealed]:
LORD MORRISON: This is another drafting Amendment. I beg to move.
Amendment moved—
Page 71, line 43, leave out lines 43 to 45.—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON: Section 72 of the 1860 Act provides for the removal from prisons to hospitals of prisoners suffering from infectious diseases, or in danger of their life. It is no longer required in view of the provisions of Clause 57 (2) (b). I beg to move.
Amendment moved—
Page 72, line 17, at end insert—

("23 & 24 Vict. c. 105.

The Prisons (Scotland) Act, 1860.

Sections seventy-two and seventy-three.")

—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON: This and the next Amendment are drafting Amendments to repair printer's errors. I beg to move.
Amendment moved—
Page 73, line 27, leave out ("section") and insert ("sections").—(Lord Morrison.)
On Question, Amendment agreed to.
Amendment moved—
Page 73, line 28, leave out from ("sixty-three") to ("of") and insert ("sixty-four and sixty-five.")—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON: This is a drafting Amendment. I beg to move.
Amendment moved—
Page 73, line 36, at end insert ("Schedule E so far as it relates to the probation of offenders.")—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON: This proviso is no longer required, in view of subsections (1) and (2) of Clause 60, which will replace it. I beg to move.
Amendment moved—
Page 73, line 41, at end insert: ("In section twenty-five, in subsection (2) the proviso.")—(Lord Morrison.)
On Question, Amendment agreed to.
LORD MORRISON: This repeal is incompetent, because corporal punishment, as a court penalty, is not being abolished by the Bill. I beg to move.
Amendment moved—
Page 74, line 3, third column, leave out lines 3 to 5.—(Lord Morrison.)
On Question, Amendment agreed to.
Eleventh Schedule, as amended, agreed to.
6.32 p.m.
THE EARL OF SELKIRK THE EARL OF SELKIRK moved, after the Eleventh Schedule, to insert the following new Schedule:

TWELFTH SCHEDULE CLAUSES OF CRIMINAL JUSTICE ACT, 1948, APPLICABLE TO SCOTLAND
Abolition of sentence of whipping.
2. No person shall be sentenced by a court to whipping; and so far as any enactment confers power on a court to pass a sentence of whipping it shall cease to have effect."
The noble Earl said: I am proposing to incorporate a Twelfth Schedule, the purpose of which is to show how Scottish criminal procedure is affected by the Criminal Justice Act of 1948—that is, of course, the English Criminal Justice Act. At the present time, the Scottish criminal code is an entirely separate and distinct entity, but when this Bill is passed it will be necessary for lawyers to penetrate into the various English Criminal Justice Acts and ascertain how they are affected by it and what they are to do in certain cases. I am sure your Lordships will agree that it would be much neater if all the clauses in the Criminal Justice Act which are applicable to Scotland were incorporated in the form of a Twelfth Schedule. I have put down only one clause, but my intention is that in fact all the clauses which are applicable should be included. If your Lordships will look at the English Act you will see the clauses which would be applicable.
I believe I am correct in saying that this procedure has a certain novelty. It has been objected that it would be difficult for Parliament to enact the same provisions twice. If that argument is advanced, I should like to quote two examples in reply. In the first place I should like to quote the National Insurance Act of 1946 and, in particular, Schedule 12, in which enactments are reprinted and amended. The second example I would quote is that of the India and Burma Act, the provisions of which were re-enacted in the Burma Act in precisely the same terms without repealing the first Act—at any rate, so I am informed. I suggest that it would be a valuable aid to this Bill from the Scottish point of view and that it would make available a large and wide variety of measures which are not now easily available. I do not refer in particular to such matters as the abolition of whipping; there are a great many small provisions which deal with the transfer of certain cases from England to Scotland. There are many such instances, in which one would be bound to look up the facts, for one could not possibly remember them. I suggest that it is most desirable and convenient that something of this nature should be put into this Bill. I beg to move.
Amendment moved—
After the Eleventh Schedule, insert the said new Schedule.—(The Earl of Selkirk.)
VISCOUNT SIMON: I hope I may be allowed to add a few words on this subject. Many of us take a great interest in improving the form of our Statutes, and indeed there have been some very important improvements of recent years. If I follow my noble friend rightly, he is making a suggestion which is not necessarily in every case to be confined to Scotland, and I think it is a suggestion which has great power of appeal. If, perhaps by buying it for a small sum, one could get a copy of one single Statute, containing partly in the body of the Statute and partly in the Schedule all the statutory provisions dealing with criminal laws that apply in Scotland, it would manifestly be a great advantage to the layman—and I think of considerable advantage to the skilled practitioner also. As it is, if one wants to ascertain what are the criminal justice provisions of Scotland, one has to go to at least two places: one is the Criminal Justice Act

259
which was passed last Session, many of the clauses of which apply north of the Tweed just as much as south of the Tweed. The other place to which one must refer is this Bill which we are now engaged in framing. It would be an advantage if the provisions were put into a single collection. I do not see why it would not be possible to do that, though I agree with my noble friend that to some extent it would be a novelty.
May I suggest an analogy which perhaps it is useful to consider?—and I naturally make the suggestion, if I may, to my noble and learned friend the Lord Chancellor in particular. He and I are quite familiar with this point. It often happens that in the Schedule to an Act of Parliament a Treaty is printed. That is because the Act is in some way implementing or carrying out a Treaty. It is quite a common thing, and I think it is often introduced by reference in the Preamble. But the Schedule is really an exhibit saying: "This is the Treaty." No one suggests that if there were another Schedule such as my noble friend is now proposing, its contents would be amendable, because they would simply be exhibiting statutory provisions, so far as they applied to the matter in hand. But I believe the ingenuity and the good sense of draftsmen may find some device; and my noble friend may be right when he says that there are actual precedents.
No doubt, if you are going to have a Schedule which contains so much of the Act of last year as applies to Scotland, you must have something in the body of the Bill which ties the Schedule to the Bill; you cannot simply have a Schedule without something which connects it with the Bill. But the draughtsmen may very well he able to devise something, whether it be a Preamble or a clause, which will do that. I am merely expressing a desire which we all share—that of making the form of our legislation as practical and useful as possible. It is a most inconvenient thing that people should have to look in two different places for a particular body of law, if it can be conveniently stated in one single document. I understand that that is the principle which my noble friend is urging. I do not suppose the matter can be disposed of immediately but I wish to express my view
260
that the suggestion is one which is worthy of careful consideration.
THE LORD CHANCELLOR: I agree that it is desirable to get the whole matter in one Act of Parliament. That is the function of consolidation; and that is why I am doing everything I can to press on with consolidation. The Parliamentary Counsel's Office is now engaged on nothing but consolidation. Sir Granville Ram presides over the work, and he is not to be taken off for the ordinary current work of drafting Bills. I do not think, however, that this would be a good idea at all. I think it would be an admirable thing if we had a Statute dealing with the criminal justice of Scotland, and that we should put in that Statute everything which bears upon it, from whatever source it comes, so that there is in one Statute—which can be bought—the whole of the criminal justice legislation of Scotland. I think that that is a most desirable thing to do—the same, of course, applying to England. But, as I say, I think it would not be a good plan to do it in this way. Incidentally, there is a political reason against it. I do not think it applies here, because I do not believe there is any political controversy about this now, but, if we were to do this habitually, we might have the whole controversy over again. I do not suppose that anybody is again going to argue the question of whipping but, technically, if you had something in the Bill providing for whipping, the whole thing could afterwards come up again. Therefore, I do not think it is the least likely, for political reasons, that it would be done.
By all means let us have consolidation if we can get our draftsmen to spare the time. We have now brought that down to a fine art, because the draftsman has to appear before the committee and he has to put his hand on his heart and say: "This simply reproduces the existing law"; and if there are doubts in the existing law, he has to say: "I have reproduced those doubts." If the committee are satisfied with that explanation, it involves no charge upon Parliamentary time, and it goes through very shortly. I confess that I am disturbed about the state of our Statute Book. There are a great number of cases in which we could improve on the Statute Book if we could have consolidation, but I do not believe that there is any short cut to consolida-

261
tion. I do not think that this method is at all useful. Here you are picking out one particular topic, which was dealt with by the Act of 1948, but you are leaving out a whole mass of other topics. That will only make confusion worse confounded. I advise your Lordships not to try this device now but to do everything possible, both now and at all times, to support and assist me in trying to get authority to build up a really considerable branch of the Parliamentary Draftsmen's Office so that we may from time to time tackle more fully than we are doing today—although we are doing a great deal to-day—this problem of consolidation. I am sure that that is the right way of doing it. I am sure that this is the wrong way.
VISCOUNT SIMON: I should like to add one word on this. Naturally, anything falling from the Lord Chancellor on this subject needs to be carefully considered. I confess that I am a little sorry that it was thought well to dismiss this suggestion off-hand in this way, because I still hold the view that it is worthy of a little mature consideration. I am very familiar with the importance of consolidation. We are all glad that the Lord Chancellor is so energetic about it. But how many years will it be before it is possible for a man, when he buys the Criminal Justice (Scotland) Act, to acquire information on the statutory provisions relating to criminal justice in Scotland? As to the argument that if you have it in a Schedule it is necessarily open to amendment, may I respectfully suggest to the Lord Chancellor that that is not necessarily so? If, for example, there is a Preamble which says "Whereas the sections of the Criminal Justice Act. 1948, set out in the Schedule are the enacted law as it applies to Scotland," then the Schedule becomes an exhibit. It does not become a piece of legislation which can be challenged for its dubiety.
I am extremely familiar with those cases where there is a Treaty in a Schedule, and many people may think that the Treaty can be improved. It is no good improving it, because the Schedule is not a new piece of legislation: it is a convenient exhibit of what a particular set of provisions in fact is. I thought that that was the idea at the back of the noble Earl's suggestion. I do not want for a moment to argue this further. I can only say that I could
262
have hoped that the matter might be considered at some time because, although I am sure that consolidation is a most valuable thing, it is also for practical reasons a process which takes a good deal of time. I am afraid there will be a great deal of our law consolidated before we ever see the consolidation of that branch of the law a portion of which is to be contained in this Statute.
THE LORD CHANCELLOR: I do not know why the noble and learned Viscount says that. I consolidated the Companies Act within a few months—almost weeks. I do not make any promise that I can do this, but Scotland has had a very fair share of consolidation already. I do not at all see why this should take an indefinite time. For the rest, the noble and learned Viscount says that we might give it mature consideration. This Amendment was down, and I have given it mature consideration. I have discussed it with my advisers and it is after that mature consideration that I am bound to tell your Lordships that I do not think that this is a useful suggestion.
LORD LLEWELLIN: May I refer the noble and learned Viscount the Lord Chancellor to what we did in another Bill?—a Bill which was not enacting in the Bill itself but by mere administrative action—I believe it was a Scottish Bill. I do not know whether the noble Lord, Lord Morrison, was dealing with Scottish affairs in that case, but it was during the present Parliament. In that case, the Stationery Office, for the convenience of people in Scotland, actually issued an edition with terms from the English Bill in the Scottish Bill. It does not need the assent, of Parliament for that to be done; it is merely administrative. It is what the Stationery Office do to meet the difficulty of practitioners and others having to refer to more Statutes than one. Perhaps the noble and learned Viscount could look into that.
THE LORD CHANCELLOR: Yes, but to my mind the objection is this. You pick out some particular thing—
THE EARL OF SELKIRK: That is exactly what I am intending to do. That is exactly the argument that I propose in the circumstances. I do not want to nut down a long list of about ten clauses. In point of fact, this provides a complete

263
illustration of what I have in mind. There are about ten clauses. My idea was that all those clauses should be included so that they could be readily referred to by a Scots lawyer who was in fact dealing with an English case. There may be something in the English Act about the case to which the Scots lawyer wishes to refer. My contention is that this proposal is entirely in the interests of the efficient conduct of justice, and that is why it should be adopted. There is no intention of picking out one topic. It embraces all aspects applicable to Scotland. It is useful. It may be impossible constitutionally, but it is useful.
THE LORD CHANCELLOR: Useful if it is accurate, but to get it accurate is a complicated business. That is what the draftsman does when he prepares a Consolidation Bill. It is wrong to think that a Consolidation Bill is a mere matter of scissors and paste. It needs a highly skilled person to do it and to rearrange it. I do not think it is useful to pick out from the English Act a lot of provisions and insert them here. It would be had. I am quite certain that consolidation is the proper way to tackle this problem.
THE EARL OF SELKIRK: Is the noble and learned Viscount aware that there are certain clauses in the English Act which are specifically laid down as applying to Scotland? It is not a question of picking out here and there. My proposal is that these Acts in extenso shall all be available to the Scots lawyer in his own Act of Parliament. To say that that is not useful is to talk nonsense. It would be extremely useful. If that is unconstitutionally impossible, I appreciate it, but those Acts should be included in the actual Bill itself.
THE LORD CHANCELLOR: I am afraid the noble Earl and I have different ideas on what is nonsense.
THE EARL OF SELKIRK: I beg leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
House resumed.

COLONIAL NAVAL DEFENCE BILL [H.L.]
6.50 p.m.
House in Committee (according to Order).
House resmued.
Bill reported without amendment.
THE EARL OF LISTOWEL: My Lords, I beg to move that the report be now received.
Moved, That the report be now received.—(The Earl of Listowel.)
LORD TEYNHAM: My Lords, I want to make one or two observations on subsection (6) of Clause 1 of this Bill. Subsection (6) enables a Colony to exercise the powers under the Act, although the approval of His Majesty in Council may not have been given. As the clause is now drawn, I suggest that it is possible to conceive of cases where approval of a scheme on which a Colony had embarked in accordance with the Bill might be withheld, and of course considerable difficulty might arise in those circumstances. I understand that it is usual in practice for a Colony to submit its legislation in draft form, and therefore, so far as I can see, there is no reason why His Majesty's Government should not be in a position to signify their approval or disapproval within a day of the scheme being passed by the Colony concerned. Therefore I can see no reason for the wording of subsection (6). In fact, I suggest that there is no need for the words "approval need not be given before the power is exercised," because under the practice which I have just mentioned in regard to Colonial draft legislation, no delay in approval or disapproval, so far as I can see, should occur, and the words of the clause as drafted might merely put a premium on delay on the part of Whitehall. I suggest that if His Majesty's Government wished to make Colonial legislation under this Bill subject to disallowance only, it would be better to draft the Bill accordingly. Perhaps the noble Earl in charge of the Bill would like to deal with this point, and perhaps he will consider it at a later stage of the Bill.
THE EARL OF LISTOWEL: My Lords, I will gladly explain to the noble Lord the purport of subsection (6) of Clause 1 of the Bill. I am not quite sure whether he may not have misunderstood its significance. The object of this subsection is to change the procedure laid down in the 1931 Act. Under the existing procedure a Colonial Legislature has to pass two Bills to get the powers it requires to organise an efficient naval force. Under the new procedure, as it would be if this subsection were

265
approved and incorporated in the Bill, a Colonial Legislature can get all the powers it needs in one Bill.
LORD LLEWELLIN: Would the noble Earl tell us what the two Bills are?
THE EARL OF LISTOWEL: May I illustrate what I mean? The first Bill would authorise the Colonial Legislature to raise a naval force—to build or buy ships to recruit personnel, to equip the ships. The second Bill would be required to enable the Colonial Government to apply disciplinary regulations used in the Royal Navy to its naval force and to make the personnel of the naval force eligible as members of the Royal Naval Reserve, for matters of the kind which affect us. The reason for the procedure of having an Order in Council to approve the type of thing which a Colonial Legislature would have to do in order to follow up the raising of an active force, is because such an enactment would affect us here. For instance, the eligibility of the personnel of a Colonial naval force to be on the Royal Naval Reserve affects us. Therefore, the Bill cannot become operative in the ordinary way without sanction by Order in Council here. The object of this little subsection is merely to enable sanction to be given after the Bill has been passed in the Colonial Legislature instead of before.
Up till now a great deal of official time, energy and ingenuity has been wasted on account of this particular procedure, which has made it necessary to pass two Bills before any Colony could have a small naval force. The new procedure will enable powers to be given in one Bill and the sanction will be made retrospective by Order in Council here. I can assure the noble Lord that sanction will not be withheld unless there is some very strong ground for doing so. I think one can assume that a Colony will not in any of its measures for raising a naval force, do anything as a general rule that would attract strong objection from the Government here.
LORD LLEWELLIN: My Lords, we are certainly obliged to the noble Earl,
266
because this is not an easy clause to understand. In spite of what he has said, however, are the right words "before the power is exercised"? The noble Earl told us that something may affect us—for instance, that they would not become members of the Royal Naval Volunteer Reserve without our prior consent. Surely, "notwithstanding anything in the principal Act that approval need not be given before the power is exercised" are not the right words. Is not the purport of the noble Earl's speech that the legislation can be passed first and the authority be given afterwards, but not before the power is exercised? The noble Earl realises the distinction there?
THE EARL OF LISTOWEL: I will gladly look into that point; it is a drafting matter. But I think the noble Lord will agree that it is the legislation which gives the power, and the power is in fact set out in Section 2 of the 1931 Act. It is those powers with which we are dealing. I will gladly look at the point and see if I can get a better drafting of the words.
LORD LLEWELLIN: I thought it was the power under the Act that they were passing. But perhaps the noble Earl will look into the matter.
THE EARL OF LISTOWEL: This refers to the 1931 Act, which lays down in Section 2 the power which a Colonial Legislature may exercise, subject to sanction by Order in Council; and of course that is an Act that is already operative.
LORD LLEWELLIN: If the clause were to read "before the power of the 1931 Act is exercised," I think we should all have understood it. But perhaps before the Report stage the noble Earl will see whether there are any other words which can be inserted.
THE EARL OF LISTOWEL: There will not be any separate Report stage, but I will gladly look into it before Third Reading.
On Question, Motion agreed to.

PENSIONS APPEAL TRIBUNALS BILL
7.0 p.m.
Order of the Day for the House to be put into Committee read.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly:
[The EARL OF DROGHEDA in the Chair.]
Clause 1:
Extension of Act to claims arising otherwise than out of war service
1.—(1) For the words "war service" wherever those words occur in Section one of the Pensions Appeal Tribunals Act, 1943, as in force at the date of the passing of this Act, there shall be substituted the words "any relevant service," and for the definition in Section twelve of that Act of the expression "war service" there shall be substituted the following definition—
"'relevant service' in relation to any claim made under any such Royal Warrant, Order in Council or Order of His Majesty as is referred to in Section one of this Act means any service which, under that Royal Warrant, Order in Council or Order, is relevant for the purposes of that claim."
(2) No appeal shall lie under the said Section one from the rejection of a claim in connection with service before the third day of September, nineteen hundred and thirty-nine, and references in that Act to the claims referred to in the said Section one shall not be deemed to include references to any such claim.
LORD BELSTEAD LORD BELSTEAD moved to leave out subsection (2). The noble Lord said: I beg to move the Amendment which stands in my name. Subsection (2), which I wish to delete, deprives all men who came out of any of the three Services before September 3, 1939, of the right to appeal against rejection of a claim for pension. In case these matters may not be in the forefront of your Lordships' minds, may I say that before the 1914–18 war men had no right of appeal. In that war the administration of pensions was taken over by the Ministry of Pensions. After that war in 1921, the administration of pensions went back to the Service Departments, and was no longer the concern of the Ministry of Pensions. Very large numbers of men who came out of the Services between 1922 and 1939 have had no right of appeal, and, therefore, it is argued against me—with a certain amount of reasonableness, I admit—that this Bill
268
does not deprive these men of anything they had before. That is true. But it is just because this uncontroversial Bill, as the Lord Chancellor called it during the debate on Second Reading, is such a good Bill, and is so beneficial, that it seems extraordinarily hard that these men should be deprived of their advantage.
The position with regard to men in the recent war is that, by the Act of 1943, they were given their Appeal Tribunals. That system has worked exceedingly well. As the noble and learned Viscount the Lord Chancellor, and the noble and learned Viscount, Lord Simon, said on Second Reading, these tribunals have done splendid work; and they are continuing to do it. The present Bill is designed to extend now, and perhaps for all time, to men coming out of the fighting Services in time of peace, a right to appeal to an independent tribunal, provided, of course, that the cause of their discharge from the Services is attributable to, or arising out of, their military service. It is said that men who came out in 1922–1939 were looked after—that is to say, they had their right to appeal to the heads of the three Services. That may be so technically, but it produces some very unfortunate results.
I have had brought to my notice, for example, the case of a man living in Ipswich, whom I have seen personally. This, shortly, is the man's record. He enlisted in 1933 in the Royal Air Force. He was a particularly fine, strong, healthy specimen of manhood. As proof of this, I may tell your Lordships that immediately on being enlisted he was trained to take part in the physical training display at Olympia that same summer. And he did take part in that display. He continued to serve, and in 1935 he had, not a routine but a very special extra board, as the result of which he was passed for foreign service and went to India. He was sent to the North-West Frontier, where he contracted sand-fly fever. He was very ill for months. Eventually, he was invalided home to England. He was boarded at Southampton and discharged from the Service after a few months. Here was a man who, as I say, was perfectly fit and healthy when he enlisted, but the only reply he has been able to obtain from his appropriate Service Department since his discharge was contained in one of many letters. It stated

269
that "Any civilian in India might have contracted the complaint." That is true, in isolation, by itself. Any civilian might have contracted the complaint. But this particular man, if he had continued to live in Ipswich and to work there—or wherever he was at the time of his enlistment—would not have caught it. If he had not been taken to India on service, employed in India in the Service and there contracted a very serious disease which caused him to be discharged a few months afterwards, he would have had no complaint.
I do not want to labour the point. I want to make it clear, while we are on this clause, that men who were discharged between 1922 and 1939 without right of appeal to a Tribunal still have a lingering and an abiding grievance, and that grievance is very much increased by the fact that this excellent Bill will now give, let us say, the right of appeal to a young man who may have had only a few weeks or a few months of service—a man who may never have gone away from the depôt in his county, or may never have been away from Clapham Junction. If he is discharged from one of the Services he has a right of appeal. But these other men, who may have served five, ten or fifteen years between the two wars, and may even have been engaged in hostilities in Ireland, Palestine, or on the North-West Frontier, have no right of appeal at all. I feel that I am right in pressing this claim which has been pressed in another place (it was also mentioned on the Second Reading), but so far unsuccessfully. It seems to me a just claim and a fair claim. I feel that these men have a very reasonable grievance. I hope, also, that either as an alternative or in addition to this, I may have some assurance that, if these men are to remain dependent upon the Service Departments, they will have very serious consideration for some ex gratia payment or treatment. I beg to move.
Amendment moved—
Page 1, line 17, leave out subsection (2).—(Lord Belstead.)
THE LORD CHANCELLOR: I really cannot see that the noble Lord can establish his proposition that these men are being deprived of their advantage.
LORD BELSTEAD: I hate to contradict the noble and learned Viscount, but I rather thought that that was exactly
270
what I distinguished, against. I said that the Bill does not deprive them of anything they had before.
THE LORD CHANCELLOR: We will see who is right to-morrow. I wrote down, at the time, the phrase: "deprived of their advantage." Whether the noble Lord said it or not, he clearly did not mean it. It is the fact that these men are not being deprived of any advantage at all.
LORD LLEWELLIN: That is what the noble Lord said.
THE LORD CHANCELLOR: I may be mistaken. I am venturing to suggest that we might look at Hansard tomorrow. At any rate, whether the noble Lord said it or not, we are agreed that these men are not being deprived of any advantage at all, the fact being that, of course, they had a wholly different code from the code which was administered during the war.
Let us take one illustration, which, I think, is right. Under the present code, of course, a man has a right of pension, either if his injury is "attributable to," or "aggravated by." Under the old code, which applied between the wars, there was no pension in respect of aggravation—none at all. Without dealing with a specific or particular case, I can imagine it being said: "This did hot really 'arise out of' or was not 'attributable to' the man's war service, except in the wide sense that the war service took him to India. The man might have been run down by a bus in London, but that, of course, could not be attributable to war service as such." Of course, there was no question of aggravation. I was pleased to see that in another place it was stated that the three Service Ministers, and the Services generally, had taken very great pains in administering that scheme as well as was humanly possible. I believe that they administered that scheme with complete fairness. I am sure that at any rate they tried to do so. That was the position. It does really seem to me that this is an absolutely impossible plan.
Let us consider the position of these men. The last man to be discharged under this scheme would have been discharged in September, 1939, a matter of ten years ago, and the first man would have been discharged in 1921, some

271
twenty-eight years ago. To try and decide these cases by a judicial procedure—because that is what the Tribunals are carrying out; and carrying out with very great skill—in the case where a man was discharged fifteen years ago (to take an average period of time), seems to me to be an impossible proposition. This proposal calls upon the Tribunals to carry out something which, with the best will in the world, they cannot perform and which they have not been performing. The object of this Bill is something very different. I am not saying this Amendment is not within the scope of the Bill, which seeks to amend the Act, but the object of the Bill is to continue for the future that which has been in operation during the period of this war. That is all. There is this difference, that in those days a man who joined up knew perfectly well the terms of contract under which he joined. He was a volunteer and, although I do not want to press the idea, he did agree to join up for a penny a day.
A new situation has now arisen. We have had this new system with Tribunals during the war. We are now to have conscripts; people are bound to go, whether they like it or not, and we are now proposing to say that we shall continue into the future the same provisions as we had during the war. That being so, I am afraid I cannot say more than I said in answer to the noble and learned Viscount, Lord Simon, the other day—that if a Service Minister discovers any injustice, I am sure he will find ways and means of putting it right. But in saying that, I must not be thought to mean that Service Ministers are going to embark upon a review of everything they have done, and which, on the whole, they have performed very well. We all agree that these people are not being deprived of their advantages. It is now proposed that they should have conferred upon them an advantage they have never had before. I believe the circumstances are such as to make it quite impossible for the Tribunals to carry out that task, in view of the lapse of time.
I sympathise with the noble Lord. I well understand the reasons which have caused him to put this Amendment forward, but I am bound to say—and I say it with some regret—that we cannot extend to these people this system with
272
its new and different code. We must try to maintain the object of this Bill. It is merely a Bill to carry the scheme forward into the peace which will some day come. I hope that some day there will be an Order in Council fixing the end of the war; and when that happens we shall not go back to the system of 1921, but shall continue with the existing one. To include these people would completely alter the Bill. I am sorry to say that I cannot hold out any hope to the noble Lord about being able to do it.
VISCOUNT BRIDGEMAN: I am certain that what the noble and learned Viscount the Lord Chancellor has just said has a great deal of truth in it, and though the idea that we should adopt the noble Lord's Amendment is attractive I have a shrewd idea that the administrative arguments are all against it. I am told that the documentation is an insuperable problem, and for that reason alone I do not believe we can include these people under this Bill. That is not quite the whole story, however. In this Bill, we are among other things giving statutory force to what is sometimes called the Denning judgment—"Fit for service, fit for pension." Though it is perfectly true, as the noble and learned Viscount said, that these men contracted for a penny a day, and for certain pension terms—although they probably did not know what they were—it is not reasonable that the volunteer should be treated worse than directed men, when both are in at the same time.
It is a matter of the policy of the Service Departments. I am certain that it is not a good plan for the Service Departments to treat these disability cases more strictly than they have to, because of the effect on recruiting, particularly when we are asking every man to join the Forces voluntarily. It comes to this: that if we agree, as perhaps we shall in a moment, that Clause 1 (2) remains part of the Bill, it ought to be accompanied with a serious plea to the Service Departments not to be backward or "stingy" in dealing with any applications to review cases which may have been decided originally under what I might call pre-Denning conditions, and which could now perhaps be dealt with more generously under the principles which have been embodied in this Bill. I put that to the noble and learned

273
Viscount. I do not think it is an unreasonable thing to ask the Service Departments.
THE LORD CHANCELLOR: I certainly hope that the Service Departments, in administering the scheme, will do so in a generous manner, so far as they can without departing from the terms of the scheme. I think it to be the fact that that is what they have done. Certainly tributes were paid to them in another place, and it was said that they had done their best to administer the scheme in a generous way. I will gladly convey to the Departments the representations which have been made. It is my desire that, so far as they properly can, they should administer the scheme generously. But that is a different matter altogether from this Amendment. I am afraid I should not be honest if I were to pretend there was any chance of my getting authority to accept this Amendment. I am afraid I must resist it.
LORD BELSTEAD: In asking leave to withdraw my Amendment, I should like to thank the noble and learned Viscount for making his considered and explanatory reply instead of merely turning it down. On the point of conscripts, I think that since this new Army of peace time will consist of volunteers as well as conscripts, it is not merely conscripts alone who have to be considered.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Remaining clauses agreed to.
House resumed. Bill reported without amendment.

BUSINESS OF THE HOUSE
LORD AMMON: My Lords, before the House adjourns, would your Lordships permit me to say that the Committee stage of the Coast Protection Bill will be taken on Thursday next, after the Milk (Special Designations) Bill? Your Lordships will be asked to sit until the completion of the Committee stage.

MID-NORTHAMPTONSHIRE WATER BOARD ORDER, 1948
Report from the Committee of Selection, That the following Lords be proposed to the House to form the Committee to join with the Committee of the House of Commons for the Consideration of the said Order—namely,

L. Belstead,

L. Rea,

L. Darwen:

agreed to; and the said Lords appointed accordingly.
Ordered, That such Committee have power to agree with the Committee of the House of Commons in the appointment of a Chairman.
House adjourned at twenty-three minutes past seven o'clock.