§ 3.45 p.m.
§ House again in Committee.
§ LORD STONHAM
I think it was said, and said more than once, at an ealier stage of the discussions on this Bill that the Government had accepted, in this Bill, all the standstill or regressive suggestions made by the Ingleby Committee and had rejected all the progressive ones. Certainly the recommendation by the Ingleby Committee to raise the age of criminal responsibility from 8 years to 12 years was a progressive recommendation and is one which has been endorsed, I think, by everyone who has knowledge, either as magistrates or in other ways, 420 of young children. We have had the speech of my noble friend Lady Wootton of Abinger, speaking as a magistrate, with an intimate, wide and very great experience of dealing with children of this age; we have had the detailed speech of the noble Viscount, Lord Ingleby, who told us to-day that among the large majority of the Committee over which he presided who supported this recommendation was the head of the Children's Department of the Home Office; and, at an earlier stage in our discussions on this Bill, although I think not to-day, he mentioned that the police were also in favour of the increase in the age of responsibility to 12 years. So it is extraordinary that, in the face of that recommendation, in the teeth, as it were, of that very wide and deep experience, the Government should be insisting on the age of criminal responsibility remaining at 8 years.
I cannot speak as a magistrate, and I have not the experience which, again, the noble Viscount, Lord Ingleby, has, but I can speak as one who, over a period of years, has had a great deal of experience of these child delinquents between the ages of 8 and 12 years; and I find it almost impossible to believe that anyone who has had experience of that kind can support the retention of 8 years as the minimum age of criminal responsibility. My business life and most of my political life is spent in the East End of London. Now, we are talking about children of 8 years of age who, in our circles, are just leaving kindergarten and are just going to prep school. Your Lordships are asked, or may be asked, to vote for the suggestion that those little children of 8 years, if they perform delinquent acts, should be regarded as criminally responsible and should go through all the steps which my noble friend Lady Wootton of Abinger has described.
Over a period of about six years, at my factory in the East End of London we suffered, virtually every week, raids by young children. It was incredible to believe that they were young children. The factory is a strong place. It is true that it is one which they could attack at their leisure over the week-end, because it is behind a school and, therefore, is not visible from the road; but it was protected in every way that we and the police could possibly devise. We were concerned not so much because 421 of the thefts—they were the tiny things which would be of interest to a child, and there are not many of those in a factory. We were concerned for the mayhem they created, the destruction and damage and papers tossed about and that kind of thing. We were also very concerned because of the grave danger, physical danger, to the children. Indeed, I thought there could possibly be a fatality because they would break through iron reinforced glass—it is quite incredible to think that children do this. We would often find traces of blood, traces of damage to them.
This matter was naturally of such concern that, of course, we constantly pressed the police to do something about it and on numerous occasions these children were caught. Well, I was astounded sometimes to see these children because, after many of these incidents, some children were brought to me by the policemen. A policeman in plain clothes came with a child in either hand. "How old are you?"—"I am 8." "How old is he?"—" I am 7 and he is my big brother." I was reminded of that by what the noble Viscount said about the dividing line in answering the argument that possibly raising the age to 12 years would alter that dividing line. It is nonsense. The children under 7 years of ago who cannot be regarded as criminals at present are dealt with as in need of care and attention.
In looking at these children it was quite impossible for any ordinary person to suggest they were or should be regarded or treated as criminals in the way that the law now suggests. They were thieves. They had created a great deal of destruction and had done so continuously. But I can assure the Committee that the detectives who caught them—and it did not happen once, but many times—were never in favour of prosecution. They always said, "Let us go and talk with the parents." And when we are talking about criminal responsibility—that is where the criminal responsibility lies in many cases: in gross neglect and indifference of parents to what their children are doing. Sometimes they even encourage them.
We tried out the course suggested on numerous occasions, but always the police said it was no use. Then, since 422 we knew quite obviously the schools they came from, we tried to get the school teacher to talk to them and for a time there would be some improvement. Eventually the police said, "We have tried everything. It has gone on for a long time and now we must prosecute—if you will prosecute." We decided that we would. I know it was a responsible member of the staff who went to court. It took two or three days of his time and he came back and he said to me, "Please never ask me to do that again, because of the negative results and because of the feelings which are engendered in the mind of any ordinary adult when these children are treated as criminals and through the futility and utter absurdity of it." That is the whole thing, notwithstanding what my noble friend Lady Wootton of Abinger has said. If it really did any good at all to regard and treat them as criminals there might be something to it. But it is completely and utterly futile.
I have said this happened for several years. It does not happen now. It was cured in a very simple way. A local probation officer came to me and said, "Will you help us to have an adventure playground?" We started an adventure playground just over the wall, immediately adjacent to the factory, with no protection at all—for the same children. From that very day we had no further trouble. They would come round and ask for things, simple gifts of material they could use and employ. We had no further trouble at all. My noble friend Lady Wootton of Abinger spoke about the need for education of these children—little ruffians, unbelievably so. It is absolutely true we must find some kind of way of getting through to them. In this case it was done by this probation officer and one or two voluntary workers with some little assistance from me. And the trouble did not continue.
Let us assume that in every case we had not taken the policeman's advice and talked to the parents and school masters—not once but a dozen times. We would have prosecuted and many of these children would have had two or three convictions. They would have landed in approved schools. This is quite unnecessary, absolutely unnecessary. I know we suffered many times, but the way was found; and that way was not to treat 423 these children gas criminals. There is no question whatever but that the courts do contaminate, and no question at all that the way to deal with these very young children is outside the court altogether. Let us find out the real cause why they are acting in this way, whether it is because of their parents or some association. Let us get through to them and deal with them. But let us not invest their meaningless delinquencies—because they are in a sense meaningless to them in terms of crime—with the full majesty and panoply of the law. I think the whole weight of experience is on the side of this Amendment, and I hope that the Government will accept it.
§ BARONESS ELLIOT OF HARWOOD
I do not want to delay the Committee. I rise for only a few moments to support the speech made by the noble Viscount, Lord Ingleby, and as I do not always find myself on the same side as the noble Baroness, Lady Wootton of Abinger. I think almost everything that has been said covers the points which I feel are very strongly in favour of the Amendment. I hope most sincerely the Government will consider it, and consider it at this Committee stage of the Bill. I should very much have liked to see the break between criminal responsibility and no responsibility come at the point at which the children go from the primary school to the secondary school. But I realise that, as this is different within the United Kingdom—in England it is 11 plus, in Scotland 12—it may be difficult to say that it should be at that point because it may not always be at the same age. Therefore, the Amendment which specifies the age of 12, and the Ingleby Report which also specifies 12, is obviously the right age at which this reform should happen.
I think the noble Baroness, Lady Wootton of Abinger, is right when she says that at that age—the primary school age, between 8 and 11 or 8 and 12—it is the job of education to reform the child. Education and parents seem to me to be the two great influences on children's lives at that age, and I hope very much that we might consider this as an educational problem, as a problem of special treatment, if you like, and adopt some of the suggestions made 424 in the Ingleby Report which Lord Ingleby outlined and which would deal with the problem. But let us not continue with the very low age of 8 as the age of criminal responsibility.
I feel, too, as I have now worked a great many years on Committees of the Home Office, that in some strange way this is very out of keeping with the modern, generous and advanced point of view of both the Home Secretaries we have had in recent years, first Mr. Butler and now Mr. Brooke, both of them men with far-sighted, liberal ideas. Somehow this does not seem to be in key with the kind of reforms to which we have been accustomed in recent years. I feel that something may have happened here—somebody has forgotten about it or has not thought about it enough—because I am suite sure that the Home Secretary and the noble Earl, Lord Jellicoe, who speaks for the Home Office in your Lordships' House, are really concerned in treating juvenile delinquency and juvenile crime in an extremely advanced and wise manner and I think there would be far more opportunity for doing this in the case of small children, if this Amendment were adopted.
I do not want to delay your Lordships. Like other Members of your Lordships' House, I have had a lot of experience in these matters and I have been in touch with almost all the organisations concerned—children's officers, child care officers and probation officers—and every single one of them is most anxious that the age of criminal responsibility should be raised. I do beg the Government to be generous on this occasion, to think of this as something in keeping with the reforms to which we have been accustomed from them in recent years, and to accept the Amendment on the Order Paper.
§ LORD LINDGREN
Though I have been the chairman of a juvenile court for many years, this is the first time I have intervened on this Bill, mainly because I have been rather overawed by the theoretical knowledge of many of my colleagues on the laws that I have been administering, without that knowledge, for some considerable time. I wonder sometimes whether we have progressed. As I sit week after week as 425 chairman of this juvenile court, I recall that I did things much worse than many of the youngsters who come before me, and all that happened to me, as one of the little ruffians of London, was that the policeman used his cape on a certain part of my anatomy or his gloves round my ear and I would run off, doing the 100 yards in less than 10 seconds. It did not come to court.
But what has worried me in the juvenile court and why I am supporting to the full this Amendment is that, when youngsters with their parents come before the court, one finds it is the first time that the parents have ever been in court, let alone the youngsters. I tell the parents that they have the right to prompt the child in any question to any police officer who makes a statement. Neither the parent nor the child knows what to do. When it comes to a statement by the child, I try to explain the difference between giving evidence on oath and making a statement from where he stands and how he can be cross-questioned by the police if he gives evidence on oath. The youngster is bewildered and the parent generally tells him to go and give his evidence on oath, because everybody else—policemen and any witnesses—have given their evidence on oath.
When the youngster picks up the Bible, I generally ask if be knows what an oath means. He hesitates, and the best answer I ever get is his promise to tell the truth. More often than not I have said to the youngster "Just to make a statement", because I have been well satisfied that in the real sense of the word the youngster did not understand what giving evidence on oath meant. If we are to have charges against children who do not really understand what giving evidence on oath means, then I think we ought to raise the age to 12, the more so because a great many more charges are now being made by the police against youngsters than ever before, simply and solely because if a police officer to-day did to a youngster what a policeman did to me back in the 1910's, he would be charged by the parents with assault. I am not going to say that most of these charges ought never to be brought, but I do think that many of them are trivial in the real sense of the word. If the age is raised, then those who have to administer the Acts dealing with juvenile 426 crime will be much happier in their administration of the law.
§ 4.5 p.m.
§ LORD McNAIR
I wish to support the Amendment which has been moved by the noble Baroness, Lady Wootton of Abinger, though I should not be prepared to adopt every argument that she advanced in support of her Amendment. I wish to begin by making it quite clear what happens at present, as I understand it, though I am not able to speak with anything like the same experience as some of the noble Lords who have already addressed your Lordships.
As matters now stand, when the necessary facts constituting an offence and the knowledge of its wrongfulness are established in the case of a child between 8 and 14, that child is found guilty, but instead of being exposed to all the punishments available in the case of an infant over 14 or of an adult, the consideration of the child's welfare becomes the dominant factor. He is treated more nearly as a child requiring care or protection or a child beyond control, and any one of the following treatments may be applied to him. He may be placed on probation, committed to a fit person, sent to an approved school, detained in a remand home, or, if over 10, directed to report periodically at an attendance centre; or, in some cases, he may be fined a maximum of 40s. But the fact remains that he is found guilty of a criminal offence, though Clause 29 of the present Bill provides that if he commits an offence after attaining the age of 21, any offence of which he was found guilty under the age of 12 shall be disregarded for the purposes of any evidence relating to his previous convictions. But, until then, he carries a finding of "Guilty" on his record. I wish to emphasise that to-day the child in this age group of 8 to 12 can be found guilty of a criminal offence, though treated thereafter differently from a young person between 14 and 17 and quite differently from an adult.
The big question of principle before your Lordships is whether we are prepared to tolerate the conception that a child can be found guilty of a crime at so early an age as 8 to 12. My submission is that to do so is quite indefensible. We abandoned long ago the practice of treating children between 8 and 17 in 427 the same way as convicted adults, and we should now abandon the practice of prosecutinig children under the age of 12 and recording findings of "Guilty" against them. Certainly the facts must be judicially established by a juvenile court, because they form the necessary basis for the application by that court of one or more of the remedies at its disposal. But the finding of "Guilty", even though it will vanish from the records at the age of 21, is, in my opinion, bad for the child and cannot conduce to his correction and reformation. This child between the age of 8 and 12, on being found guilty of a criminal offence, becomes a young criminal. That fact may have one or more quite different effects, according to the character of the boy or his friends. On the one hand, it may make him a bit of a hero among his friends on the other, it may make him a bit of a rebel. or more of a rebel, against the society which convicts him of criminality for an act which he may know to be wrong but which is not wrong enough to make him a criminal at so early an age.
I can see no benefit whatever in a finding of guilty or in describing the proceedings as a prosecution. What really matters is the remedial treatment ordered by the court. If it is the duty of the court to record a finding of "Guilty", as it is now, it is exercising a criminal jurisdiction and the child is a young criminal. If, on the other hand, as the Ingleby Report proposes, the emphasis is laid on the remedial treatment, even though it may comprise minor sanctions for the parents and the child, then the court is exercising a civil jurisdiction somewhat akin to the jurisdiction of the Court of Chancery in the treatment of a ward, which is derived from the prerogative right of the Crown as parens patriæ to protect his interests. As matters stand now, in the case of a child between the age of 8 and 12 the object of the proceedings in the juvenile court is the criminal prosecution of the child and the finding of "Guilty". If this Amendment is adopted, the child's need for guidance and control will become the primary responsibility, and the parents responsibility will be made clear. The emphasis in the proceedings will shift and the offence will become evidence of the need of the application of one of the remedies 428 or sanctions which are, or should be, at the disposal of the court, and the main question will be: what shall we do with this boy?
There are some problems which it is sometimes easiest to understand by supposing that we are personally involved. Those of your Lordships who have sons or grandsons know vary well that a boy between the age of 8 and 12 is capable of doing anti-social and reprehensible things which are quite out of character and not due to any inherent wickedness: for instance, pilfering, setting fire to property and other wanton damage. When that occurs in the case of one of our sons or grandsons while he is at school, either a day school or, a boarding school, we count ourselves fortunate when a sensible headmaster can ascertain the facts and punish or admonish the boy in the manner best calculated to make him realise the error of his ways. Surely that is what we want, and what we should regard as more likely to make the boy a useful member of society than allowing him to be prosecuted and found guilty of a criminal offence. Applying that analogy to the present Bill, I would urge upon your Lordships that the criminal approach is misconceived and that the boy's wrongful act should be treated as a family problem, a domestic problem, and dealt with by a juvenile court without any criminal prosecution or a finding of "Guilty" being recorded against him.
I could not help feeling that some of your Lordships who have already spoken were rather hard on the juvenile courts. My experience of the juvenile courts is extremely limited, but many of your Lordship's know a great deal about them. I entirely agree with the noble Baroness, Lady Wootton of Abinger, upon the undesirability of children being herded together with the crowd outside the court. This is most undesirable and can easily be avoided by administrative action. With regard to the proceedings themselves, once guilt has been established in a good court it can take very much the form of a family consultation, with the aid of the parents and the schoolmaster, and it is perfectly clear that this is the main object of the proceedings. it is that very fact which, to my mind, is so inconsistent with the idea of a criminal 429 prosecution and the recording of a finding of "Guilty" which will hang around a child's neck until he attains the age of 21.
§ BARONESS ELLIOT OF HARWOOD
I will not detain the Committee for more than a minute, but I think that same noble Lords may be in the same difficulty as I am. I would support the Amendment of the noble Baroness, Lady Wootton of Abinger, if I were quite sure that the next Amendment in the name of the noble Viscount, Lord Ingleby, would also be included, but I would not support it without that. This is my difficulty. I entirely agree with what the noble Viscount, Lard Ingleby, has said, but he put up a case in connection with his Amendment, as well as this present Amendment, and spoke about the parents having to pay damages for what their children did. He has that particular scheme in mind, and I entirely agree with him in it. If it were the case that we were going to get the Ingleby Amendment after we had this Amendment, then I would certainly vote for this Amendment moved by the noble Lady, but I am very doubtful if I can do so without that assurance, and I cannot see how we can get the assurance. Nor do I know—and perhaps I can get this assurance—that those who vote for the Amendment of the noble Baroness, Lady Wootton of Abinger, will also vote for the Amendment of the noble Viscount, Lord Ingleby. Then I think we might get something clearer. Your Lordships will understand, as has already been said, that we all look upon this as a very serious subject. Now I think we have to face the fact of what we are actually voting for: are we voting for the entire scheme as drawn up by the noble Viscount, Lord Ingleby, or are we not?
§ BARONESS WOOTTON OF ABINGER
Perhaps I may deal with one point. The noble Lady is suggesting a process of barter which I think must be somewhat foreign to your Lordships' House House in Committee. But, leaving that on one side, surely the position is this. The pre- 430 sent Amendment .is to raise the age of criminal responsibility, and that is all. If this Amendment is carried, then it is open to the Committee to add or not to add the Amendment to be moved by the noble Viscount, Lord Ingleby. If this Amendment to raise the age is not carried, then I think I am right in saying that the noble Viscount's Amendment would not have very much meaning.
§ VISCOUNT INGLEBY
Perhaps I might say that unless we had some assurance from the Government in favour of the present Amendment, then I would not propose to move my Amendments, which follow on and are dependent upon the raising of the age of criminal responsibility.
§ BARONESS WOOTTON OF ABINGER
I think we are, in fact, of one mind. The noble Viscount's Amendment is consistent with a raising of the age, and doe's not have any meaning otherwise. But it is perfectly open for your Lordships to vote on this Amendment, and then to be perfectly free to take what line you wish on the second Amendment.
§ 4.20 p.m.
§ THE LORD CHANCELLOR
The noble Lady has given guidance to your Lordships as to what should happen should this matter come to a vote. I was hoping that perhaps, before some Members of your Lordships' Committee made up their minds upon this issue, they might perhaps think that what I propose to say to the Committee on this matter is not entirely without substance. The noble Lady began her speech by saying that if the Amendment were accepted her voice would be silenced. I am not sure whether that was meant as an inducement or as a threat, but whichever way it was I should be sorry if in fact that were to be the consequence.
§ THE LORD CHANCELLOR
I do not think the noble Lady added those important last three words when she spoke, but I am glad to have that assurance. So far as I am concerned, this is the first time that I have had the pleasure of speaking from this Box in your Lordships' House, and I hope that it will not be the last time, whatever happens to this Amendment.
431 The debate has indeed been an interesting one, and it is also an important one. There has been an endeavour, as I see it, to reconcile two things that are irreconcilable; that is, the noble Lady's proposal and the proposal put forward by my noble friend Lord Ingleby—Because they really are inconsistent. The whole of the noble Lady's case, if I understood it properly, was on the theme that children up to the age of 12 ought to be dealt with educationally, and not be brought before the courts. On the other hand, the theme of my noble friend Lord Ingleby is that they must be brought before the counts, but that we must have a new machinery for bringing them before the courts. The two do not seem to me to go very happily together.
I should like first to devote myself to the speech made by the noble Lady, and then turn to the proposals, which are quite different from the noble Lady's proposals, put forward by my noble friend Lord Ingleby. So far as the noble Lady's proposals are concerned, I think this is the second time that I have had the pleasure of hearing them put forward. In fact, I think it is the third time that she has raised them, and each time most persuasively and eloquently. She does not suggest that children over the age of eight cannot be guilty of what I might call criminal conduct. As I understand it, she argues two things: first, that criminal conduct should not constitute a criminal offence and, secondly, that the child should not be brought before the courts on account of that criminal conduct. She has said more than once—and she said it to-day—that we are unable to recognise that the training of children of school age in the way they should go is fundamentally an educational and not a penal matter. I entirely agree with her that the training of children in the way they should go is fundamentally an educational and not a penal matter, but I do not agree with her that recognition of that principle leads to the conclusion that children of between 8 and 12, guilty of criminal conduct, should not be punished on account of that conduct; should not be brought before the courts of this country on account of that conduct. Indeed, it is inherent in the proposals put forward by my noble friend Lord Ingleby that children of school age, guilty of criminal 432 conduct, should continue to be brought before the juvenile courts on account of that conduct.
I think I am right in saying, too, that the majority of the Ingleby Committee did not share the noble Lady's opinion that these young children of 8 to 12 should not be brought before the courts on account of that conduct. It is, indeed, an extremely difficult problem. I think we can all agree, whatever view we take, that it is only something in the nature of a last resort that a child should be brought before the juvenile courts on account of criminal conduct. Whatever view we take, I think we could agree upon that proposition if recourse to the courts is to be had at all. I was not in agreement with the noble Lord, Lord Stonham, when he spoke about the utter futility of proceedings before the juvenile court. That may be so in some cases. In some cases the proceedings of the court have failed to achieve their objective—and that does not apply only in juvenile courts. But I should not like to proceed upon an examination of this problem upon any such assumption.
Now I should like to turn to say something about the extent of the problem. The noble Baroness, Lady Wootton of Abinger, touched upon that, too. She said on Second Reading [OFFICIAL REPORT, Vol. 244 (No. 10) col. 820] that it is only… a tiny minority of small children who are dealt with by the courts and who are sent to establishments; who are taken out of the control of their own homes …I quite accept that. But that again, in my respectful submission to the Committee, does not really conclude the matter. Because, while it is only a tiny minority of children who come before the courts, as the noble Lady knows the courts have other ways of dealing with them than by sending them to establishments or taking them out of the control of their own homes. A substantial number are fined—say, 12 per cent. Those fines, under Section 55, I think it is, of the Children and Young Persons Act, have to be borne by the parents unless the court is satisfied that the parents or guardian have not conduced to the commission of the offence by neglecting to exercise due care of the child or young person. I cannot help feeling that that power of bringing, where there has been 433 criminal conduct, the young person before the court, and the power to impose a fine which will ordinarily be borne by the parent is, indeed, a salutary process. Others—say, about 35 per cent.—are put on probation. If the noble Lady's Amendment is accepted and the age is raised to 12, as she suggests, it will be impossible for the courts to deal with youthful delinquents in either of those two, as I submit, salutary ways.
The noble Lady stressed to-day, and has stressed on previous occasions, the width and extent of our educational system: the existence of child guidance clinics; of residential schools for maladjusted children; of schools for the subnormal; of special remedial classes for the backward, and boarding schools under local authority boarding school arrangements. It is a long and (I think the noble Lady once used the adjective) formidable list of our educational establishments. I recognise that it may well be that some of those delinquent children who are now dealt with by the courts could be treated as educational or medical cases or found to be in need of care or control within the meaning of Clause 2. Some of them could be; but, I venture to suggest, not all of them. Indeed, we may be getting in these days into the danger of regarding a perfectly normal, naughty child as maladjusted, subnormal or backward, or in need of care and control. But I do not myself believe that the majority of those now sent by the courts to approved schools could, for instance, be fitted into ordinary boarding schools under the local authority organisation; and if they were fitted in I do not see how they could be kept there. I think there are bound to be a considerable number who now go to approved schools who could not be dealt with as the noble Baroness has suggested.
May I remind your Lordships that in 1961 the noble Lady said, with regard to children between 8 and 12, that:even if we did nothing about them at all but what their ordinary schools and their families do, we should probably diminish rather than increase juvenile delinquency by taking them out of the courts when they first come into delinquent milieu.I personally could not subscribe to her view, nor could the Ingleby Committee, that those between 8 and 12 who are guilty of what I hope I can call without 434 arousing any feelings criminal conduct—
§ LORD CHORLEY
The noble and learned Lord the Lord Chancellor keeps on talking about criminal conduct. Surely he would agree that it is for Parliament to decide what is criminal conduct, and if this Amendment is passed it will cease to be criminal conduct. At Common Law 7 was the age; and children not much more than 100 years ago, were actually executed for felonies at the age of 7; Which was a revolting thing. Surely this is just the same. The age was put up to 8 and now we say it should be put up to 12.
§ THE LORD CHANCELLOR
I do not think that relates to my argument except as an objection to my choice of phrase in using the words "criminal conduct". I hoped that I had made clear that I was trying to use a phrase which put in a very short two words a longer sentence, namely, that the acts done by a child were acts of a character and quality that in an adult would constitute criminal conduct rendering him guilty of a criminal offence. I thought I had made that plain to your Lordships. If I had not made it plain to the noble Lord, Lord Chorley, I would, of course, apologise to him.
May I come back to the argument I was putting forward to the noble Baroness, Lady Wootton of Abinger. She has said more than once—I think she said it again to-day; and she said it in 1961—that the moment a child between 8 and 12 enters a court waiting room the child is introduced to a delinquent community. I find that difficult to accept. I find that a difficult reasoning to accept for raising the age limit against crime. Court waiting rooms are not used only by accused persons; they are used by witnesses and all kinds of people; and it may be that what she is saying about them indicates that there should be a greater degree of supervision of what goes on in court waiting rooms than now exists; but it does not, as I see it, count as an argument in support of her main proposition. It ought to be borne in mind that if we accepted her Amendment there would still be cases of delinquents and other children using the court waiting rooms when they come there for proceedings in relation to care 435 and control. I find that argument of the noble Lady not easy to accept.
I must say that I share the view of the Ingleby Committee that really you cannot, and it would not be right to do so, just accept this Amendment and raise the age to 12, as the noble Lady provides, without providing some alternative machinery of the kind that the Ingleby Majority Report recommended. I should like to make it clear at this stage that the Government approach to this problem has been, at least I hope I am correct in saying, both sympathetic and practical. We do not take the view that it would be right to go as far as the noble Lady has suggested without providing for some alternative machinery, if a satisfactory alternative machinery can be designed or constructed.
I should like to turn now to Lord Ingleby's proposals which he debated before your Lordships to-day. I am afraid he started by causing me some alarm and apprehension by quoting passages I had uttered in another House in debates on another Bill; and, as your Lordships know and as the noble Viscount knows, that can sometimes be embarrassing.
§ THE LORD CHANCELLOR
I always endeavour to do so. But on this occasion, although one had the warning that what one had said was going to be quoted, I did not feel all that upset when I heard the passages he recited. He made it quite clear in the course of his speech that he could not accept the noble Lady's argument that these children should be left to be dealt with entirely by the educational process, and he emphasised that none supported that decision and it was the Committee's view that if a child was to be deprived of its liberty, sent to an approved school or something of that sort, it should be the decision of a court of law.
I should have thought that there was great force in that particular observation. But then, when one comes to examine the other proposals of my noble friend, there are, as I see it, great difficulties. Let us just consider them quite shortly. Your Lordships will see that in paragraph 86 of the Ingleby Report the Committee suggest, in relation to children under the 436 age of 12, that the definition in Section 61 (1) (a) should be amended so as to apply to a child who—and here I quote the words,while under the age of 12 years acts in a manner which would render a person over that age liable to be found guilty of an offence".That is a formidable provision, and I should like the Committee to consider for one moment what it in fact means. I thought myself, on reading it, that it meant what I was endeavouring to express by the use of the words "criminal conduct", but I am not sure, in the light of speeches made by my noble friend, whether he is really saying that that suggestion should apply only where a child has been guilty of such conduct as would, if he were an adult, render him liable to conviction of a criminal offence. I rather thought from what my noble friend said to-day that lie was suggesting that a lower standard should apply.
I feel a great difficulty about that. I think that it raises a very major issue. In the case of an adult you would have to prove the mens rea; you would have to prove intent. I think my noble friend has indicated on a previous occasion that he does not envisage that requirement in regard to a particular section. Indeed, what he said to-day rather indicates that: and if you are not going to have that requirement, just let us see What it means. It means that you will have a child deprived of its liberty on the ground of conduct which may be very similar to the conduct of the adult but which would not lead to the conviction of the adult. I must say I think that is rather a serious matter.
The noble Lady stressed to-day that one of the disadvantages of taking children before the juvenile court was that if the accused person was found not guilty then all the machinery of probation and all that could not be used; and she used the instance of the child taking the bicycle but not with a felonious intent. My noble friend suggested to-day, I think I am right in saying (or, at any rate, he has done on one occasion), that in relation to children brought before the juvenile courts under the procedure he envisages there should be a slightly different standard of proof from that required in a criminal case. He asserts that they must be proved to have acted in a manner which 437 would render a person lover that age liable to be found guilty of an offence. But if it is accepted that there should be a different burden of proof compared to that required for conviction of a criminal offence, let us examine where we are getting to. We are then accepting the proposition that on account of misconduct a child can be more readily and easily deprived of its liberty than an adult. I do not like that at all.
§ VISCOUNT INGLEBY
Will my noble friend allow me to intervene? My noble friend seems to have overlooked the fact that ever since the Children and Young Persons Act, 1933, was passed children can be, and have been, deprived of their liberty, under Section 62 of that Act, merely because they are in moral danger in their homes.
§ THE LORD CHANCELLOR
I quite agree: deprived of their liberty on that account, but not on the ground of misconduct. And what my noble friend is suggesting is that they should be deprived of their liberty on the ground of misconduct, on the ground that they have been guilty of acting in a manner which would render a person of 13 liable to be guilty of an offence. That is the argument. What I am saying is that it seems to me to be a serious thing to impose a lower burden of proof when the case is against a child of 12—to establish that he has acted in that manner—than would be required in the case of someone who is over 12. I do not think that this is merely a lawyers' point. It amounts to this. The argument has been put forward that really a tougher line would have to be adopted in relation to those under 12 than those over 12. That is a serious difficulty, I think. My noble friend says that he would like to get away from the conception of crime. But I do not think we are getting away from the conception of crime by adopting a formula such as that expressed in sub-paragraph (iii) of paragraph 86 on page 33 of his Committee's Report.
§ VISCOUNT INGLEBY
Will my noble and learned friend forgive me for interrupting again? He has quoted a number of times from part of a definition which we suggested might take the place of the existing definition, which appears in Section 61 of the Act of 1933. The part from which he 438 has quoted is only an alternative anyway, and it has been jettisoned by the Government in favour of what is now contained in Clause 2 of this Bill; and I myself said that I was perfectly satisfied with the drafting of the clause, which defines the child or young person in need of care or control.
§ THE LORD CHANCELLOR
I am not accepting for one moment that the same significance should be attached to "control" as to "discipline." But I am certainly not seeking to misrepresent the case put forward by my noble friend. I thought it was fundamental in the scheme he was advocating to-day that this new description should be inserted. If it is not, I do not see how that scheme is going to work with the noble Lady's Amendment. If the Amendment were accepted, how would this scheme graft on to it? As I see it, it would have the defects I have indicated. It may have advantages, because it may appear to some much better to find an establishment of guilt rather than a recording of guilt following upon that establishment. But if my noble friend's scheme for extending the powers is grafted on to the noble Lady's Amendment then this does seem to follow. Here I think I can pray in aid something the noble Baroness said in the course of Second Reading: that you are extending these powers to people to whom they do not apply at the present moment—namely, children under 8 years of age; and I am not sure that is very right.
The arguments on this question can be many and can proceed very far. I would say this quite frankly to your Lordships, if I may: I am not sure that either solution which has been put before the House to-day, either that of the noble Baroness or that of my noble friend, is really a correct solution of this very difficult problem. We all hate the idea of young children being brought before juvenile courts, whatever the reason for bringing them there, whether it is care or control; whether it is because they are in moral danger; whether it is because of the conduct of the parents, or whether it is on account of their own conduct. We should all like to see further developments on the lines indicated by the noble Lord, Lord Stonham, which might divert some of these young people from the downward 439 path which leads so often and so sadly to a prolonged criminal career. But what at the moment we have to consider is whether we retain as a last sanction, a last resort for the very bad cases of behaviour of those between 8 and 12, power to bring them to the court, with the court's power to send them to an approved school, with the court's power to fine the parents and the court's power of putting them on probation. At the moment I am not sure that there is any real alternative to these powers which has been put forward. Attendance at the attendance centre is net quite the same thing. I myself should feel it was very undesirable to take away from the court the existing power of imposing fines, fines which, as I indicated, have to be borne by the parents unless the parents are shown not to have had anything to do with the offence. The Ingleby Committee excludes the power to fine. But I should have thought that that was a very desirable power to have.
We can debate this matter for a great deal more time. I could develop a great many more criticisms of the proposals put forward by my noble friend. It would be very interesting, but it would take up your Lordships' time. I should like to assure my noble friend that we have given very careful examination to his proposals as they now stand. We have listened to what the noble Baroness has said; we are not unsympathetic to the ideas. But I must say that I do not think that a satisfactory solution has yet been found. If it comes to a Division I shall have to advise my friends to vote against the noble Lady's proposal. But I hope, even at this hour, that it will not come to a Division, because I should like an opportunity, with my friends, of consulting to see whether, without setting up an entirely new procedure such as my noble friend suggests, we could devise some means which would, at least to some extent, meet the wishes that have been expressed from all sides of the House.
I think I have been in this sense rather a lone voice pointing out the difficulties which I see, and I hope the noble Baroness will not take it amiss that I conclude my speech by saying that, while I do not think that we could go so far as she suggests, namely, to 440 raise the exclusion to 12, nor do I think we could accept my noble friend's proposals as they stand, at the same time I should like, with my colleagues, to see whether we can find a means of going some way to meet them.
§ LORD LINDGREN
Before the noble and learned Lord resumes his seat, may I point out that he has not dealt with the problem which faces many of us in juvenile courts where we have a juvenile who just does not know what "taking the oath" means. There may be a child on a criminal charge, and to deal with him on that charge when he cannot take the oath and cannot understand the oath is, I think, wrong.
§ THE LORD CHANCELLOR
I noted what the noble Lord said. I am sorry that I omitted to deal with that particular point in my reply, and I apologise to other noble Lords if I have not covered all the points in my reply. I took that point in mind. I agree that it is most undesirable that children should be mystified by taking the oath. There are provisions whereby they need not take the oath if they do not understand. But I will certainly give consideration to that point as well as to others.
§ 4.51 p.m.
§ VISCOUNT ALEXANDER OF HILLSBOROUGH
We have had a long and, I think, interesting debate this afternoon. Perhaps the most interesting thing is what was admitted by the noble and learned Lord towards the end of his speech: that practically every speech made, until we came to the one from the noble Baroness, Lady Horsbrugh, which was rather qualified, had been in favour of the Amendment. Of course the noble Viscount, Lord Ingleby, did not fail to pay attention to the further proposals which he had put upon the Marshalled List; but we had to point out that his proposals would not have any meaning unless the principle in the Amendment of my noble friend Lady Wootton of Abinger were first carried. Therefore, we come to a question of procedure.
I welcome the spirit which was displayed in the last few minutes of the speech of the noble and learned Lord, when he said that he thought that still further consideration might be given to this matter; but, of course, he did not 441 really promise further consideration towards accepting this Amendment in principle as moved by my noble friend, but would certainly be looking to find some alternative to the proposals of the noble Viscount, Lord Ingleby, with the whole of which the noble and learned Lord does not agree. In my view, it is first of all essential that we Mould get the view of the Committee with regard to the principle in my noble friend's Amendment. Then, after that has been established—and there alas been practically no real view expressed against it this afternoon in principle—we could proceed to consider (a) the proposals put by the noble Viscount, Lord Ingleby, or (b) any amended proposals that the Government feel they ought to put in respect of those proposals. would not say that I am wholly in disagreement with all Lord Ingleby's proposals, but that does not say that I would accept them all.
Every speaker who spoke on the principle of this Amendment to-day has been in favour of it. Let us get that principle established. When you talk about youngsters, aged from 10 to 11, who go to an approved school nowadays and you see the results on them of early treatment of this kind, it is essential, in my view, that we should first get established the principle of the Amendment; then we would heartily agree to considering still further checks upon the position That the Government might be able to arrive at on further consideration.
§ LORD OGMORE
I should like shortly to support most warmly the remarks that have just come from the noble Viscount the Leader of the Opposition. What I feel that we have to decide here is whether a child of under 12 should be treated as having criminal responsibility. How many of us can really say that that should be so? I do not think that any normal person could say that a child of 9 or 10, or of 8½ years of age, should have criminal responsibility. The noble and learned Lord, the Lord Chancellor, himself expressed some sympathy with that point of view. Then his reply to it was, to my mind, irrelevant. He said, "While I agree, I think there are difficulties about what you do with children between 8 and 12." That is surely nothing to do with the child; that is our responsibility. What we have to decide first of all is at what age there should be criminal responsibility; and then it is for 442 us to decide what we do about it. We cannot go on penalising the child because we cannot make up our minds; otherwise we should be imposing a load and an onus on the child because of our failure to perform our duty as Parliamentarians. Therefore I suggest to the Committee that we must strongly support the Amendment, for the reasons given by the noble Baroness and by the noble Viscount who has just spoken.
§ VISCOUNT INGLEBY
May I speak for one moment? I, too, like the noble Viscount the Leader of the Opposition, was disappointed both by the tone and the substance of my noble and learned friend's reply. I thought he made heavy weather of it. After all, the age of criminal responsibility was raised in 1933 from 7 to 8 without there being a great number of technical objections raised, and children up to the age of 8 from thence forward were treated as being in need of care and protection. If the age is now made 12, those under 12 should be treated a children in need of care and control. It is not a difficult matter, and although I should wish that it did not go to a Division, if it does, I shall feel obliged to vote for the Amendment.
§ VISCOUNT HAILSHAM
I think that the Committee should be fully aware of what exactly is involved here.
§ VISCOUNT HAILSHAM
I hope that the Committee will bear with me if I say a word here. I think that certainly the noble Lord, Lord Ogmore, has misunderstood entirely what was in my noble and learned friend's mind, and this is what disturbs me about the present situation. The noble Viscount who leads the Opposition says that the Committee should first of all decide upon the principle of the Amendment. It is precisely there that I am not sure that there is complete clarity at the moment. Of course, if the Committee want to decide that the Amendment without any alteration is, in all circumstances, right, then I can see at once the necessity for pushing the matter to a Division. But that is not what I understood the noble Viscount to mean; nor did I understand that from the speeches which have been made, in particular the speech of my noble friend Lord Ingleby. Of course, 443 the truth is that what is called the age of criminal responsibility is not a conception known in those words to English law; it is a Continental conception and not an English conception. The point is that we have to decide what particular types of treatment to apply to children of all ages. If this Amendment were carried in its present form—
§ BARONESS WOOTTON OF ABINGER
The noble and learned Viscount will forgive me if I interrupt him. We are not deciding anything at all in this Amendment about treatment. The Amendment says that in the principal Act the wordsIt shall be conclusively presumed that no child under the age of eight years can be guilty of any offenceshall be amended to substitute "twelve" for "eight". We are therefore moving an Amendment which says that no child under the age of 12 years can be guilty of any offence. It is nothing whatever to do with treatment. That can be dealt with at a later stage.
§ VISCOUNT HAILSHAM
If our rôles were reversed I should accuse the noble Baroness of taking a lawyer's point, because that is precisely what she has just done, and it is not, I submit, a particularly good one, because—and this is exactly what worries me in regard to what the noble Baroness has said—it does not seem to me to be really facing up to what is involved in the Amendment and what is the principle of it. If the Amendment is passed, as I understand it, the Committee will be deciding for a child who does acts which, apart from the age of the child, would be construed as criminal acts, that we could not now apply to that child fines, probation, approved school or sending into the care of a fit and proper person; but that if the same child were brought before the same court and accused of being (if this is the right term) in need of care and protection within the meaning of the earlier section of the Act, there could be applied to the same child, not the fine but all the other forms of treatment, such as supervision under a probation officer, sending away to an approved school, and sending it into the care of a fit and proper person. That seems to me to raise an anomaly.
444 All my noble and learned friend has said is that that being the true principle of the Amendment, would it not be better, as there will be at least three or four subsequent occasions when this particular matter can be discussed in Parliament, and at least two other occasions when it can be discussed before this House, to let us take this matter back—which we have offered to do—in the light of what has been said, and to discuss the matter again on Report? I can only tell the noble Lady—and I am sure she knows me too well to take offence on this in any way—that it would be easier to deal with it in that way, and I believe the ultimate result would be better if she did as I have asked her to do, rather than to force the matter to a division of opinion now when we are not really ready to propose a final solution. I am not by any means excluding the possibility that something along the lines of what she is suggesting, although not exactly the same, might be accepted. But it would he much more easy, quite frankly, to achieve that result if she allowed us to take this matter back, in the light of what has been said by this Committee, to our colleague, the Home Secretary, and to other colleagues in another place and to discuss the matter again at a later stage. If that does not commend itself to the noble Lady, of course we shall have to divide; but I hope that this matter is capable of reasonable agreement.
§ VISCOUNT ALEXANDER OF HILLSBOROUGH
I can see no reason, after the speech of the noble and learned Viscount, the Leader of the House, for changing what I said just now. We are in great sympathy with some part of the suggestions which have been made, if you first accept this principle—that is the point—a principle which has been upheld by the great majority of speakers in the debate this afternoon. I therefore will proceed to a Division on the basis of our Amendment.
§ VISCOUNT HAILSHAM
Would the noble Viscount say what this principle is? Must it be exactly what he says, and nothing else? Will he define the limits of what the principle involves?
§ VISCOUNT ALEXANDER OF HILLSBOROUGH
If we carry this Amendment, we will go on to consider other 445 proposals which are made—I put them in two categories: (a) those of the noble Viscount, Lord Ingleby; or (b) any further ones the Government want to put—so long as we have the principle.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 5.12 p.m.
§ VISCOUNT INGLEBY moved, after Clause 15, to insert the following new clause—
§ Attendance centres
§ " . In addition to the powers contained in subsection (1) of section 62 of the Children and Young Persons Act, 1933, the Juvenile Court shall have power to order a child found to be in need of care or control to attend an attendance centre in accordance with section 19 of the Criminal Justice Act, 1961, and to order his parent or guardian to nay compensation for loss or damage caused by such child up to a maximum sum of £100."
§ The noble Viscount said: Rather to my surprise I find myself in the position of moving the Amendment which stands446
§ Amendment; and we might be in favour of something else you might suggest. At this stage we are concerned with the principle.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided: Contents, 42; Not-Contents, 41.445
|Adrian, L.||Henderson, L.||Ogmore, L.|
|Alexander of Hillsborough, V.||Hughes, L.||Rea, L.|
|Auckland, L.||Iddesleigh, E.||Sainsbury, L.|
|Burden, L. [Teller.]||Ingleby, V.||St. Davids, V.|
|Burton of Coventry, B.||Kenswood, L.||Shackleton, L.|
|Champion, L.||Latham, L.||Shepherd, L.|
|Chorley, L.||Lawson, L.||Somers, L.|
|Crook, L.||Lindgren, L.||Stonham, L.|
|Douglas of Barloch, L.||Listowel, E.||Strang, L.|
|Douglas of Kirtleside, L.||Lucan, E. [Teller.]||Summerskill, B.|
|Elliot of Harwood, B.||McNair, L.||Williams, L.|
|Faringdon, L.||Merrivale, L.||Williams of Barnburgh, L.|
|Francis-Williams, L.||Meston, L.||Wootton of Abinger, B.|
|Greenhill, L.||Morrison of Lambeth, L.||Worcester, L. Bp.|
|Ailwyn, L.||Ferrers, E.||MacAndrew, L.|
|Ampthill, L.||Forster of Harraby, L.||Margesson, V.|
|Bessborough, E.||Fraser of Lonsdale, L.||Milverton, L.|
|Bethell, L.||Furness, V.||Molson, L.|
|Blackford, L.||Goschen, V. [Teller.]||Newall, L.|
|Bossom, L.||Guest, L.||Newton, L.|
|Brecon, L.||Hailsham, V. (L. President.)||St. Aldwyn, E. [Teller.]|
|Chesham, L.||Hastings, L.||St. Oswald, L.|
|Clwyd, L.||Hawke, L.||Sandford, L.|
|Conesford, L.||Horsbrugh, B.||Soulbury, V.|
|Crathorne, L.||Howard of Glossop, L.||Spens, L.|
|Denham, L.||Jellicoe, E.||Strathclyde, L.|
|Dilhorne, L. (L. Chancellor.)||Kilmarnock, L.||Teynham, L.|
|Dundee, E.||Lothian, M.|
§ in my name. I explained this Amendment to the Committee in speaking on the previous one, and the idea of this Amendment is to give to the juvenile court in these care or control cases additional powers which they do not possess at present. The powers which they do possess at present have been referred to two or three times this afternoon. They are set out at the top of page 86 of the Committee's Report and they are as follows: A child found to be in need of care or control under the future definition can be ordered to be sent to an approved school; he can be committed to the care of a fit person who is willing to undertake the care of him—and that is usually the local authority—his parents can be ordered447
§ to enter into a recognizance to exercise proper care and guardianship; or the child may be placed for a specified period under the supervision of a probation officer.
§ My Amendment follows two of the recommendations of the Ingleby Committee in that it provides also that the attendance centre order may be made against a child found to be in need of care or control, and that, as I say, is a very much smaller thing than the approved school order. It simply deprives a child of a specified number of Saturday afternoons off—if I may put it that way—where he is under the benevolent care of some admirable police officers who give him instruction of various kinds, and also give him what we used to call physical jerks. The attendance centre order, therefore, is quite a useful sanction for courts to possess, and I think, in the case of a child found to be in need of care or control, it will be a very useful addition to the range of powers which the juvenile court has.
§ The second power incorporated in the Amendment is to order the parents or guardians to pay compensation. The position about compensation under the present law is extremely obscure. It is thought that there is no power to order compensation to be paid where a child is found to be in need of care or protection, and I think that that is probably the position. There is certainly no power to order the parents to pay compensation where the child found to be in need of care or protection is under the age of 8 years. This new power was one we recommended as filling that gap, and as likely to bring home to parents their responsibility for keeping their children under control. It is only a power to the court; it need not be exercised. It will no doubt be exercised only where there is in the view of the court culpable negligence on the part of the parents, and it seems to me a very useful addition to the range of powers in this type of case.
§ I referred on the previous Amendment to a third power, the power to order punitive detention in a detention centre under Section 54 of the 1933 Act. I have not put that in, because it seems to me a somewhat disputable proposition and I felt that I was unlikely, if I 448 included that in my Amendment, to get the support of many noble Lords who sit opposite. I hope that some of them, at any rate, in view of the success their previous Amendment has had with the new clause which has just been moved into the Bill, will feel able to support the Amendment which I have put forward, which will complete the scheme which the Ingleby Committee recommended, backed by such an immense body of evidence and of public opinion. I beg to move.
After Clause 15 insert the said new clause.—(Viscount Ingleby.)
§ THE LORD CHANCELLOR
I think it might save the time of the Committee if I said something at this stage upon this particular Amendment. My noble friend has moved it persuasively, and obviously held out an olive branch in the hope that he would get a quid pro quo for the last Division. I should like to say, without saying it in any detail, that this Amendment is, of course, a new departure. My noble friend is seeking, by the effect of his Amendment, to provide for penal sanctions to be imposed on all those in need of care—
§ THE LORD CHANCELLOR
—all those in need of care or control. It is not limited to those between 8 and 12. This is a provision of general application which he wants inserted—namely, for the courts to have power to compel attendance at an attendance centre.
§ VISCOUNT INGLEBY
I really must protest against my noble friend's taking this sort of point. We passed the Criminal Justice Act last year, and in that we reduced the attendance centre age from 12 years to 10 years. Therefore, for my noble friend to suggest that I am now proposing that an attendance centre order under the Criminal Justice Act, 1961, which is referred to in my Amendment, is going to extend to children below the age of 8 is really completely misconstruing my Amendment. My Amendment would apply, so far as attendance centres are concerned, only to children between the ages of 12 and 10.
§ THE LORD CHANCELLOR
I am not so advised, but I do not need to 449 spend much more time on that. There is this particular point, which I again do not want to spend much time upon, and it is that apparently this penal power is to be exercised on proof of conduct which is not of the standard required were a criminal offence to be charged. All I would say to the Committee is this. In the light of the last Division, I am sure the Committee will appreciate that the position has to be reconsidered, and reconsidered not only in relation to the last Amendment and the effect of it but in relation to this Amendment, too.
I really could not advise the Committee to accept this Amendment as it now stands, which extends the power of imposing the penal sanction to far wider a field than that to which it has ever been applied before. It would make it possible to require the attendance at an attendance centre of a child requiring care and control who is the innocent victim of parental neglect. It is all very well to say that the courts would not use such a power, but I myself feel somewhat reluctant to give such a wide and general power to any court on the ground that the court would not find it necessary to use it.
I am sure my noble friend, if he comes to consider the matter, will realise that it is really quite impossible for me to say Chat we shall accept this Amendment at this present juncture. I can only repeat that, quite obviously, after what has happened on the last Amendment, the position has to be reconsidered; and I would ask my noble friend, if he is not too enthusiastic as a result of the last victory, to be good enough to consider withdrawing this Amendment so that we can—the two subjects are, as he has emphasised, associated—consider them together.
§ VISCOUNT INGLEBY
I think it is evident that the whole position will now have to be reviewed. I moved my Amendment as shortly as I could, merely to make its object clear to Members of the Committee; and, in view of what the noble and learned Lord the Lord Chancellor has said, I now beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 16 [Constitution and place of Sitting of Juvenile Courts]:
§ (2) In section 47 (2) of the principal Act (which relates to sittings of juvenile courts) for the words from "subject as hereinafter 450 provided" to "other courts are held" there shall be substituted the words "not sit in a room in which sittings of a court other than a juvenile court are held if a sitting of that other court has been or will be held there within an hour before or after the sitting of the juvenile court".
§ 5.22 p.m.
§ LORD STONHAM moved to leave out subsection (2). The noble Lord said: I beg to move Amendment No. 22. Subsection (2) would permit a sitting of a juvenile court to take place in the same room, of course in the same building, as an adult court, provided that the sittings of the adult court and of the juvenile court were separated by just one hour. Most enlightened authorities, particularly those who gave evidence before the Ingleby Committee, have recommended that juvenile courts should be held in adequate premises quite apart from other courts, and one does not need to use many arguments or a great deal of emphasis to show why that should be. As it stands, the clause would permit those two different courts, the adult court and the juvenile court, to be held in the same room if only an hour intervened. I would submit that, allowing for the late departure of people who have been concerned with the adult court and the early arrival of those who are going to be concerned with the juvenile court to follow it, quite obviously the two parties will at times get mixed up, and that is wholly undesirable.
§ The present clause is, in fact, less favourable in this matter than Section 47 of the principal Act, because that Act already requires juvenile courts to sit either in a different building or in a different room from that in which other courts are held, or on different days from those courts. It is extraordinary that in this particular clause we should have a less favourable situation than that. I think everyone will agree that it is desirable to secure the maximum separation in time, place and distance between the two different kinds of court; and I should therefore like to hear from the Government some explanation as to why, in this Bill, there should be this undesirable weakening of Section 47 of the principal Act. I submit that, in the interests of the children and of the families concerned, the Government should admit that an 451 error has been made, and should accept this Amendment. I beg to move.
Page 10, line 28, leave out subsection (2).—(Lord Stonham.)
THE MINISTER OF STATE, HOME OFFICE (EARL JELLICOE)
I am glad that we can now turn to the calmer waters of Clause 16. May I first respond to the noble Lord's invitation to explain the pedigree of this particular subsection of Clause 16? At present, under subsection (2) of Section 47 of the principal Act, a juvenile court is required to siteither in a different building or room from that in which sittings of courts other than juvenile courts are held, or on different days from those on which sittings of such other courts are held …This of course means that a juvenile court may not sit in the same room as another court on the same day, as the noble Lord has said. However, as the Ingleby Committee pointed out in paragraph 190 of their Report, this provision of itself does not necessarily secure that the juvenile court will be held in a room which suits its function. Nor does it secure that it is not held in the same building and at the same time as an adult court; that its ancillary accommodation is self-contained, and that it has a separate exit and entrance from that used by an adult court, which the Ingleby Committee recommended should be the case. I do not think that that is the sort of thing which one can achieve by Statute. It is rather the sort of thing which we seek to achieve with the co-operation of magistrates' court committees as new provision is made from time to time in the accommodation of the courts; and it is the sort of thing which is being provided for in the present court programme.
I should also point out that in some degree the present statutory restriction, which I think the noble Lord's Amendment would retain, makes it difficult to use the most suitable accommodation efficiently. For example, it precludes the use of an ordinary court room as a juvenile court in the morning and as an adult magistrates' court in the afternoon, even when there is no risk, so far as I can see, of contact between those attending, the juvenile court in the morning and those attending the adult court in the 452 afternoon, or when there is a lengthy interval between the sittings of the courts. That is why subsection (2) allows a juvenile court, a court of a different kind, to be held in the same room so long as there is an hour's interval between the two sittings. I am not saying that an hour is necessarily sacrosanct, but it seemed to those who drafted the Bill that an hour should provide for the effective decontamination (if that is the right word) of the court.
The noble Lord has suggested that to allow the present clause to remain in the Bill unamended would be a retrograde step, but I must point out that two expert Committees of inquiry, the Ingleby Committee and also the Aarvold Committee on Magistrates' Courts in London, concluded that there was no objection to the sharing of premises, provided that the persons attending the one set of courts, say the juvenile courts, could be separated from those attending the adult ones. That again comes out very clearly in paragraph 190 of the Ingleby Committee's Report. I will not trouble to read the passages to the noble Lord: he probably has them in mind. The clause as it stands is designed to ensure that there should be this effective separation, and I should have thought that it does, in fact, secure it. But, of course—and I now come back to what I was saying originally—this type of effective separation is, in the long term, better secured by really adequate and well-designed court premises; and that is now our object, following the advice of the Ingleby Committee and of the Aarvold Committee in this respect. But I cannot see why the provision for an hour's separation should be subject to the defects which the noble Lord sees in it.
§ BARONESS WOOTTON OF ABINGER
If the noble Earl were aware of the slummy condition in which some juvenile courts sit, I am sure he would be casting about everywhere to find better accommodation, and I hope we may take it that his defence of this clause is due simply to his desire to find more civilised accommodation. But there are two points to be considered—one temporal and the other geographical. The temporal point was dealt with by my noble friend when he said that, even with an 453 hour's gap between the sittings, there may well be an overlap. People will be coming out from the one court and others will be going into the next, and they will meet midway.
There is also the spatial or geographical point. The noble Earl pointed out that the Amendment would prevent a juvenile court from being held in a courtroom in the morning and a magistrates' court in the same room in the afternoon. The magistrates' courts have to be held in rooms which are, by definition, unsuitable for juvenile courts. A magistrates' court requires a dock. In a magistrate's court the magistrate practically always sits upon an elevated dais which removes him from the kind of intimate personal conduct which distinguishes the relationship in the juvenile court. And I cannot but agree with my noble friend that it would be an extremely retrograde step, in this day and age, to allow juvenile courts to be held in ordinary court rooms. I think the impact of this on many children and parents would be to suggest that we are doing away with juvenile courts altogether; and that instead we were now dealing with children only at separate times in a court indistinguishable from the magistrates' court.
I rise to assure the noble Lady that I am, of course, aware, and I hope she will expect me to be aware, that some of the court premises, particularly in London—but I grant that the same applies elsewhere—are quite inadequate. That is why I aim glad that real progress is being made with the programme in that respect. But we are not here to debate that: we are here to debate whether this hour provides a reasonable period. I Should have thought that it does. I should have thought that an hour allows time far those who have been attending one court to be well away from it before those coming into the next court arrive. I should not wish to quibble over the question of an hour, but I feel that the present provision that a court room must not be used for a juvenile court on the same day is, in fact, disadvantageous.
§ LORD STONHAM
I am beginning to wonder whether there is the slightest possibility at all that the Government are prepared to accept any Amendment on 454 the Order Paper, however reasonable or sound it is. With respect, the noble Earl has not dealt with the point at all. We are not dealing to-day with paragraph 190 of the Ingleby Report; nor, indeed, with the physical condition and layout of courts. We are dealing at this moment with subsection (2) of Clause 16, which will permit a court room to be used as an adult court up to I p.m. and as a juvenile court from 2 p.m. The noble Earl suggests that one hour should be enough, but he must surely be aware that court officials, or policemen who have the duty of ensuring that persons who are to appear before the court do appear on time, always tell them, quite properly, to come along a little earlier. It is perfectly obvious that there is going to be a whole crowd of young people with their parents assembling for the juvenile court at the time when people concerned in the adult court are coming out. That is the first point and it is unacceptable that the Government should maintain this position.
The second point is that Clause 47 of the principal Act already requires juvenile courts to sit in another building or another room: or, if the same room is used, on a different day. That provision was made for a totally understandable and desirable purpose. There is no reason why it should be weakened, and the noble Earl did not tell us why the Government have reached the decision they have done—or, if he did, it did not appear to me a sound reason. If the Government have done this as an indirect way of improving court rooms, or of providing more court rooms, I would say; if any change is desirable, why not wait until the provision of court accommodation is such that such a provision as this will do no harm? This really will not do. It is absolutely useless for us to come here and put forward suitable Amendments, with support of some of the greatest acknowledged authorities, and to be met with the kind of answers that we are now getting. I would say to the noble Earl that the Government must do better than that, and I would ask him at least to say that he will take this clause away and look at it again. It may be he will come back with something else, a different length of time; but as the clause now stands, it will not do at all.
I should like to make one point in reply to the noble Lord, Lord Stonham; that is, that I referred to the question of physical accommodation only in reply to the noble Lady. It was she who was criticising, and I think she is perfectly entitled to do so, so I know a certain amount, a little about juvenile court accommodation in London. But I have in fact already told the noble Lord the reason why this amendment of the existing procedure was introduced in the clause. It means that, even though other circumstances may make it both convenient and possible, it is impossible to use a court as a juvenile court in the afternoon when it has been used as an adult court in the morning. There might well be practical reasons for wishing to do so, provided that there is not the contamination which the noble Lord fears. If it is a question of spacing out the courts, if an hour is thought to be not sufficient, I am prepared to look again at the practical issues involved. I am quite prepared to give the noble Lord that assurance that I will do that, and I shall be glad to do it between now and the Report stage. I would add that in one respect he has done a little less than justice to what I have said, from this position on this Bill. Because I can well recall that during earlier proceedings on this Bill I have been glad to give an undertaking that I would look again at the points which the noble Lords opposite had made and come back with Amendments.
§ LORD CHAMPION
I am sorry to intervene at this late stage. I did not hear all the arguments for the Amendment, but I am more worried about providing a separate room for the juvenile court. It so happens that in the court in which I sit one finds the juveniles occupy the same corridor as the persons who are being charged in the other courts. We have three rooms that we can use for magistrates' courts, and one of these we use for a juvenile court. Although the room is entirely separate, the corridor approaching the court is used by juveniles and their parents and also by persons who are being charged with even considerable offences. That seems to me to be wrong, and I hope that, in the consideration which the noble Earl is going to give in this matter, 456 he will also consider this aspect of the problem, which I regard as of more importance than having a separate day for the juvenile court.
§ LORD STONHAM
I am most grateful to my noble friend, but he will appreciate that if there was a separate day for the juvenile court then there would not be a mix-up in the corridor. When I made the observations to which the noble Earl took some exception, I had in mind the fact that we had not yet had the pleasure of having an Amendment accepted, and I do not belittle the value of the assurances which he has given at various places. On the assurance that the noble Earl will take this back and look at it again, I ask leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 16 agreed to.
§ Clause 17 [Jurisdiction of magistrates' courts in certain cases involving children and young persons]:
§ 5.42 p.m.
LORD STONHAM moved to add to the clause:
( ) The provisions of section 35 of the principal Act shall have effect for the purposes of this section except that for references in that section to child or young person there shall be substituted references to a child or young person who is charged before the court and for references to the juvenile court there shall be substituted references to the magistrates' court.
§ The noble Lord said: The position at present is that when a magistrates' court which is not a juvenile court is considering a case involving children or young persons, under the arrangements which are prescribed in Clause 17 as it stands at present it is in effect acting as a juvenile court. Therefore, it ought to be required to use the same facilities for studying the social background of a case as a juvenile court is required to do. My Amendment aims at securing that this shall be so.
§ I think it would be wrong to extend the scope of the magistrates' courts in relation to children as the clause at present extends it, without also extending to them the facilities available to enable the magistrates to have full regard to the welfare of the children. The Amendment looks a little complicated, but I hope my explanation is much more 457 simple. I do not know whether the noble Earl will regard this as a recommendation or not, but the Amendment is in line with recommendation No. 55 of the Ingleby Committee, and on this occasion I hope that this is a hopeful sign. I beg to move.
Page 10, line 48, at end insert the said subsection.—(Lord Stonham.)
I think I should deal with the narrower point which the noble Lard has just made, because we are coming to the wider point on the next Amendment. As I understand it, Section 35 of the principal Act requires the local authority to be notified of proceedings taken in respect of a child under 17 and makes it their duty to provide the court with information about his home surroundings (unless that is dealt with by the probation service) and his school record, health and character. The noble Lord's Amendment seeks to apply this section to proceedings in which, in pursuance of Clause 17, a child under 17 is tried by a magistrates' court other than a juvenile court.
I can assure the noble Lord that his Amendment is, in fact, unnecessary. I am advised that Section 35 already quite clearly applies to such proceedings. If the noble Lord were to look at the first part of the section, he would see that the words make it clear that it applies whenevera child or young person is to be brought before … a justice or justices … in respect of an offence alleged to have been committed by him, …I think the noble Lord will find that the words up to the comma do bite where he wants them to bite, and the first sentence of Clause 17 specifically deals with the commission of offences.
Could I just add, as the noble Lord referred to the recommendation of the Ingleby Committee, that I am not certain whether it is the recommendation to be found in paragraph 294 or paragraph 271 of the Report, but in the latter they recommend that magistrates' courts other than juvenile courts should be under the same obligation as juvenile courts to obtain and consider reports on juvenile offenders with whom they have to deal. I can assure the noble Lord that if this 458 is what he has in mind, although I do not think it is, the Government fully accept this recommendation. It is not one which requires legislation. As the Committee themselves have pointed out, it can be done by amending the Magistrates' Courts Rules, and when this Bill becomes law this recommendation will find its place in the Rules. On the main argument which the noble Lord has made, I can assure him that what he is after is already provided for in Section 35 of the principal Act.
§ LORD STONHAM
I am most grateful to the noble Earl. On a quick reading of the section to which he refers, I agree with him that it appears to be covered. If not, I shall have to return to it again. Meanwhile, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ BARONESS WOOTTON OF ABINGER moved to leave out Clause 17. The noble Baroness said: My noble friend Lord Stonham, in the previous Amendment, has been aiming to improve Clause 17, and we are very glad to learn that, if the clause is to stand, apparently his improvement is already incorporated. But I should like to go a little further and get rid of Clause 17 altogether, whether improved or not improved. One of the things which shocks foreign visitors to this country, who are accustomed to proceedings dealing with children in their own lands, is that they can go into adult courts and sessions and there see a small child standing alongside an adult on a joint charge, or see him standing on a charge of aiding and abetting an adult.
§ When a young man of 18 goes out on a housebreaking excursion, he sometimes takes along his small brother. Small brothers are convenient because sometimes they can get through a hole that the principal actor finds too small. He takes his young brother along—at present, it can be a young brother of 8, but in view of the Amendment which has just been carried in future it will be a young brother of not less than 12—and a joint charge or, it may be, a charge of aiding and abetting is laid against the youngster and both are tried in the adult court. Visitors from many European countries in which this is impossible find this both surprising and shocking.459
This clause makes only a small extension in power. Many of us would like to contract this power and wish to resist very strongly even the smallest extension of it. The Ingleby Committee's recommendation, which is to be found in paragraph 175 of the Report, suggested that:
Where a child is charged with aiding or abetting an adult or is separately charged with what may be termed an 'allied' offence (for example, in a case in which there is a cross summons for assault, or a separate charge arising out of the same facts, where one of the defendants is over and the other under 17), the two cases have to be heard in separate courts even though the circumstances may be identical.
The Committee later said that
it must be a serious complication to have separate hearings in different courts based on substantially the same facts.
§ Doubtless this clause has been drafted to avoid these complications. But the Committee gave no hint of what the complications were, except that they have two sets of proceedings instead of one. I can think of one possible complication, and that is that the two courts may arrive at different verdicts. Well, they might be justified in that; and, in any case, if they did arrive at different verdicts, it would at least give a guarantee that one was in accordance with justice, a guarantee that we do not otherwise have. But the serious point, surely, is that we ought not to countenance any extension of the power to bring young children into the adult courts, remembering, as we must, that before proceeedings are taken in that adult court there must be, first of all, committal proceedings before the magistrates' court and subsequently a trial at sessions or assizes.
§ We have been arguing previously about the importance of keeping very small children out of the juvenile counts altogether, and certainly out of the reach of criminal proceedings; and we have been arguing about the importance of keeping the courts separate and in separate premises. All of these things go by the board if we are going to make even a small extension of the conditions in which a juvenile and an adult are tried together in an adult court. I beg to move.
Leave out Clause 17.—(Baroness Wootton of Abinger.)
Since the noble Lady's Amendment would strike out Clause 17 in its entirety, I hope that she and your Lordships will forgive me if I briefly explain its purpose. At present where two people, one under 17 and one 17 or over 17, are charged with related crimes, it is held best that they should be tried together. This principle is embodied in subsection (1) of Section 46 of the principal Act, which assigns to magistrates' courts other than juvenile courts the trial of two sorts of crime. The first is where a person under the age of 17 and a person of or over that age are jointly charged with the same offence. The second is where a person under the age of 17 is charged with an offence and a person of that age or over it is charged with aiding or abetting him.
The Ingleby Committee thought, as the noble Lady has quite fairly and rightly pointed out, that this principle should be preserved, and, indeed, they recommended that it should be extended to two further cases. These were, first, cases where a person of or over the age of 17 is charged with an offence and a person under that age is charged with aiding or abetting him—this is precisely the converse of the case which I have already mentioned; and secondly, cases where a person under the age of 17 and a person of 17 or over that age are charged with offences arising from substantially the same facts.
Clause 17, which the noble Lady would like totally struck out from the Bill, gives effect to this recommendation, and she herself has said that the extension proposed would add probably only a small number to the offenders who are tried in this particular way. The present principle, as I understand it, which is enshrined in Section 46 (1) of the principal Act, is based on the principle of fair play—namely, that it is fair to try together defendants accused of the same offence. That is the fundamental reason, be it right or wrong. If that principle is accepted, as it has been accepted in the principal Act for offences covered by that Act, surely it is not illogical to extend it to the present offences covered by this clause, which are, broadly speaking, on all fours with the existing offences. If it has been held to be fair play in one set of circumstances, surely it is equally fair play in much the same 461 circumstances covered by the existing clause.
Why is it held to be fair play? I think the noble Lady gave the first and probably the principal reason—namely, that courts can come to entirely different decisions on the two cases: they could let off one defendant and they could convict another. The noble Lady, with her tongue in her cheek, used the argument that there was rough justice here in that one court would be right and the other count would be wrong, but I do not think that is an argument which she would wish to sustain or push too far. The second possible reason is that the two courts would impose different sentences. They may, of course, wish to do so, in any event, because the juvenile court for reasons of age, and many other reasons, might wish to impose a quite different sentence from that which was thought appropriate by the adult court. But I am not certain that that would necessarily strike the defendants as fair. They might well think that the fact that they had got different treatment in the two courts was not due to differences in age but to differences in the fairness of the trial and the trial procedure to which they had been subject. If they are tried separately, we cannot take it as certain that the evidence of the partners in crime will necessarily be available in each court.
For these reasons, I suggest that the Government have been entirely reasonable in following the Ingleby Committee in this respect. But I would again remind noble Lords, first, that the safeguard which the noble Lord, Lord Stonham, was wishing to introduce by the Amendment he has just moved, and has not at this stage pressed, is, I am advised, already there. Secondly, I would remind your Lordships that a court, other than a juvenile court already has power under Section 56 of the principal Act to remit a juvenile offender, whom it has judged to be dealt with and sentenced by a juvenile court. We shall be dealing in a few minutes with the question of how hest that particular procedure can be applied, but I would remind noble Lords that that is the existing position. I would submit, in all the circumstances, that the clause is right as it stands.
§ BARONESS WOOTTON OF ABINGER
I am not very happy with the conception of fair play put forward by the noble Earl. It seems to me that it is less a conception of fair play than a desire that the courts should always, so to speak, arrive at unanimous or consistent decisions, or should appear to arrive at consistent decisions. There is no reason why on a joint charge both parties, or all the parties, should be found guilty. It is quite common on a joint charge for one party to be found guilty and another to be found not guilty, even though the facts on which the case is based are substantially the same. But the most important point about this is, first of all, that we want to keep the children out of the adult courts; and secondly, that if it is fair play to try charges that arise out of the same facts together, this is something which children find it difficult to understand.
If I had my way, I would do away with joint charges for children in almost all cases, because children do not understand the way in which a joint enterprise inculpates all parties. It is a very common thing for a child to appear in court. He has perhaps a previous finding of guilt, and you ask him what the previous case was about. You ask what he did, and his answer is, "I was with some boys who took some things". No doubt he was either keeping watch or on the fringes of the gang. Children do not understand joint charges. I think, therefore, the argument that fair play requires that joint charges should be tried together is far weaker when applied to children than to adults. Nor do I understand the noble Earl's suggestion that the evidence of the partners in the crime might not be available. Unless the prisoners have been executed, I should have thought it would be perfectly possible to make their evidence available. It could be made available even if they had been subjected to sentences of imprisonment. I see no obstacle, and perhaps the noble Earl can enlighten me on that point.
In the circumstances, since this is but a very small extension of the appearance of the child in the adult court, I will not press the Amendment at this stage, if your Lordships agree, and if perhaps the noble Earl would say that he would look at this point, particularly in view of the 463 drafting of Clause 17 (b), which seems to be extraordinarily vague:… An offence arising out of circumstances which are the same as or connected with those giving rise to an offence …That might mean practically anything as drafted. Will the noble Earl look at that again, and see whether he cannot manage to restrict this extension to the adult counts even further?
I shall, of course, be very willing to look at the specific point of the drafting of paragraph (b) to which the noble Lady has referred. But I am afraid I cannot give any undertaking to re-examine the main point, because it seems to me that if the noble Lady's fundamental point is right, she is not going about it in the right way. Surely, if the principle she has admitted is right, what we should be doing is considering whether or not to repeal Section 46 (1) of the principal Act, and not whether or not to extend in a minor degree this particular provision.
§ BARONESS WOOTTON OF ABINGER
I am grateful to the noble Earl for that suggestion, and I should like to withdraw the Amendment and have an opportunity of considering whether the right course would be to repeal Section 46 of the principal Act.
§ Amendment, by leave, withdrawn.
§ Clause 17 agreed to.
§ 6.4 p.m.
§ BARONESS WOOTTON OF ABINGER moved, after Clause 17, to insert the following new clause:
§ Remittance to juvenile courts
§ . Section 56 (1) of the principal Act shall be amended by substituting the word "shall" for the words "may, if it thinks fit,".
§ The noble Baroness said: The purpose of this Amendment is that when a child or young person has been dealt with in a court which is not a juvenile court, it shall be obligatory on that court to remit him for sentence to the juvenile court. This is one of the cases where there are several stages in which this goal may be approached. There is, first of all, the stage represented by the present wording of the principal Act. The principal Act says at the moment that a young person may be remitted to the juvenile court if the court—that is to say, the court which its trying him—thinks fit. The Ingleby 464 Committee recommended that he should be so remitted unless there were special reasons to the contrary. That is stage two.
§ My proposal is that we should not allow a getaway by special reasons. I think it is very important that children and young persons, if they are to be sentenced, should be sentenced by courts who are accustomed to dealing with them: who are cognisant, as many magistrates' courts are not, with the various methods of treatment that are available; who are experienced in dealing with children and young persons, and who know the atmosphere of the children's court. I also feel that special reasons are very slippery. We have special reasons in a good many Acts of Parliament, and special reasons are disposed to become not so special. I have in mind, for instance, that if a person drives his motor car while disqualified by court order, he must be sent to prison if he is convicted of that offence unless there are special reasons. Yet, of all the persons who are convicted in the magistrates' courts of that offence, one finds that special reasons are found in something in the region of 40 per cent. of the cases. I see no occasion to allow a getaway which might be freely used by some courts and prevent children from being dealt within the courts which are appropriate for them and which are specially provided for dealing with their case. I would therefore beg to move that this Amendment be accepted.
After Clause 17 to insert the said new clause.—(Baroness Wootton of Abinger.)
In moving her Amendment the noble Lady referred to the Ingleby Committee's views on this, and I think it is fair to say that the Ingleby Committee took the view that remission to the juvenile court should be the normal course. I should like to make it quite clear that the Government agree with that view. The noble Lady will note—if she has not already noted, although I suspect with her sharp eye she has—that paragraph 14, sub-paragraph (1), of Schedule 3 to the Bill provides for the deletion from Section 56 (1) of the principal Act the words "if it thinks fit". That is designed to make 465 it clear that it is the Government's view that remission should be the normal course.
We think it right to follow the Ingleby Committee here, save that we share the noble Lady's slight aversion to and distrust of the phrase "special reasons", which I am well aware has given difficulty of interpretation in road traffic legislation, for example, to which she referred. By the same token, we think it would be wrong to adopt the noble Lady's Amendment here. To adopt it would, I suggest, be opening ourselves to producing odd and possibly highly undesirable positions. For example, it would make it impossible, save, I think, in the case of homicide, to use the power conferred by Section 53 of the principal Act to impose on a juvenile found guilty of a serious offence in the adult court, a sentence of detention in such a place as the Secretary of State may direct. That provision has been amended by Section 2 of the Criminal Justice Act, 1961.
Could I take another example of the sort of difficulty to which I think acceptance of the noble Lady's Amendment would lead? Let us take the case where two youths, one aged 16 and the other aged 17, are convicted at quarter sessions of a joint offence. The court consider that Borstal training is the right sentence for both youths. But if we were to accept the noble Lady's Amendment, the court would necessarily have to remit the youth aged 16 to a juvenile court. But the juvenile court, if it concurred in the view that a sentence of Borstal training was indeed required, would then have to commit the youth back to quarter sessions so that sentence could be passed Meanwhile, the youth would languish in a remand centre or in prison. If I am right in thinking that this is the sort of consequence which could follow from acceptance of the noble Lady's Amendment—and I have not taken a fanciful example—I cannot believe that that is the sort of object which the movers of this Amendment have in mind.
Could I grant one .thing straight away to the noble Lady? It is not a point she made, but it may be in the back of her mind that the juvenile courts are more likely than other courts gat present to take into account reports from probation officers and from other sources about the young offenders with whom they have to deal. The noble Lady, who was such 466 a distinguished member of the Streatfeild Committee, knows that the Committee recommended that where practicable a probation officer should prepare a pretrial report on every defendant under the age of 30 appearing before a court of assize or quarter session; and, as the noble Lady knows from an Answer I gave her in this House only a few days ago, we hope to bring the Committee's recommendation in Part B of their Report into operation by next Easter. When those new arrangements are fully operative a court of assize or quarter sessions will thus normally have full information before it of any juvenile offender with whom it has to deal.
It is possible, of course that when the superior court decides that a remand is necessary for further inquiries to be made, then time can be saved in certain instances by remitting a case to a juvenile court. I should like just to inform noble Lords that we propose to draw the attention of the superior court to this point in the circulars we shall be issuing giving effect to Part B of the Streatfeild Report.
I hope that I have not too much embroidered in my reply to the noble Baroness's main point, but I thought that there might be this other consideration at the back of her mind. In saying that, I would add that I do not think I could possibly recommend to your Lordships acceptance of her Amendment, but I would again draw attention to the sort of consequences which I am advised could follow from its acceptance.
§ LORD SHEPHERD
I have listened very carefully to what the noble Earl has said, and it is quite obvious that in principle there is really not much that divides the noble Earl and my noble friend except perhaps the rather wider words that the noble Lady is asking the noble Earl to accept. I think it is again a question of words and, if the principle is accepted, I wonder whether the noble Earl, between now and the next stage, would consider whether we could have this provision: that in all cases the matter be remitted to a juvenile court but, if there are to be exceptions, for the exceptions to be placed in the Bill. I think that probably would meet the point of my noble friend. In other words, except within specified exceptions, all matters of punishment would be referred 467 to the appropriate court, the juvenile court.
I can, of course, reaffirm that it is the Government's view that remission should be the normal course. I would also reaffirm that, as we see it, acceptance of the Amendment as it stands would be open to certain clear and obvious disadvantages. Whether that point could be met by spelling out the disadvantageous exceptions as such, and whether drafting would permit that, I do not know. I am quite prepared to see whether that would be possible and, if possible, whether advantageous. But I would not wish to give any undertaking at this stage that I could come up with an Amendment, but I am certainly prepared to look at this point.
§ BARONESS WOOTTON OF ABINGER
The noble Earl suggested that he was embroidering upon what I have said and may I at once say that his embroidery is, as one would expect, very eloquent.
§ BARONESS WOOTTON OF ABINGER
I fully appreciate the difficulty raised by the type of case to which the noble Earl has referred, but the effect of his argument about these cases is really to drive me more towards the Ingleby recommendation than towards the Bill as it now stands, for it may be the Government's policy that cases should, apart from these very special instances, normally be remitted to the juvenile court, but it is not necessarily the policy of the court before whom these juveniles appear. It may be the Government's wish that it should be done, but there is no obligation to do it. I can see many a court which has a juvenile and an adult before it thinking that it might just as well sentence the pair of them, and sentencing the juvenile with very little understanding even of the range of sentences which are available.
I think the expression of the Government's wish in this House is by no means adequate to bring all the magistrates' courts and sessions of this country into line. So I hope that the noble Earl will look at it again and see whether there is any possibility of spelling out the exceptions or, if not, making it perfectly clear that the exceptions must be thoroughly exceptionable. As he has 468 been good enough to say that he will look at it again, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 18 [Assessors for recorder in appeals and committals from juvenile courts]:
§ 6.18 p.m.
LORD STONHAM moved, in subsection (2), to leave out "or no such member". The noble Lord said: I am sure the noble Earl will agree that I should discuss with this Amendment the next one, No. 27, which is on precisely the same point. Clause 18 provides that:
Where a court of quarter sessions…deals with a case on appeal from a juvenile court or wish the case of a person committed by a juvenile court to quarter sessions…the recorder shall, where practicable, be assisted by two members of a juvenile court panel, who shall sit with him and act as assessors.
That is a very desirable thing, which we all agree is necessary; and everyone, I am sure, approves that part of this clause. But then the clause goes on to say, in subsection (2) that
Where…only one such member"—
that is, one person with experience of a juvenile court—
or no such member is available the recorder shall sit either with that member or alone.
I am quite willing to accept that it is not at all times necessary for there to be two people with experience of juvenile courts to sit with the recorder, but I do insist that in all cases there should be at least one. Therefore, my two Amendments provide that if no person specially qualified to sit in juvenile courts is available to sit with the recorder as assessor and to advise him, then the recorder, without such assistance, should not be empowered to act at all.
§ Unless the Government accept this Amendment, a great deal of the value of this clause will be destroyed, because I can well imagine cases in courts where a recorder will say, "I am empowered to sit alone and I am going to sit alone." I think that would be most unfortunate, because we have gone to a very necessary amount of trouble to have persons specially qualified to sit in juvenile courts. The Government and we agree that in these two special cases referred to in the clause it is desirable that these assessors with their special knowledge 469 of the background of the kind of cases which the recorder has to consider, should be there to assist him. It therefore seems extraordinary that the Government should have drafted subsection (1) of this clause and should then proceed virtually to destroy it with subsection (2). I think the noble Marquess, Lord Lothian, is going to reply. I hope that he will be able to agree that the clause shall be amended so that in all cases there will be one assessor from the juvenile court sitting with the recorder, and that if no such member is available—though I imagine those circumstances would be very rare—then the recorder should not consider the case at all on that occasion. I beg to move.
Page 11, line 8, leave out ("or no such member").—(Lord Stonham.)
§ LORD FORSTER OF HARRABY
May I draw attention to the fact that if, in a case such as that which the noble Lord has instanced, a recorder, having no member of the juvenile court to sit with him, was unable to deal with the case at that time, it would surely involve holding the case over to the next quarter sessions? Would that be in the interests of the child concerned?
§ LORD STONHAM
It really means that if the recorder could sit and consider that case only when an assessor was present, and could not consider it without an assessor, I am sure that such a person would be found to sit with him. The only purpose of my Amendment is to ensure that none of these cases should be considered unless the recorder has the advantage of the presence of an assessor qualified to advise him on that particular point.
§ THE MARQUESS OF LOTHIAN
I was very glad to hear the noble Lord. Lord Stonham, say that he approved of the system of having the assessors, because the Government attach a great deal of importance to it. Like him, I would take the two Amendments together. I am afraid that I do not entirely agree with him in his Amendment. One reason, as my noble friend Lord Forster of Harraby has just pointed out, is that if, for one reason or another, no assessors were available it is very likely that the recorder would have to put off the case until the next sessions. I am prepared to 470 admit that the time lag might vary considerably, but it might be on occasion, I believe, a matter of some weeks. I cannot see that any appellant or offender would desire to be held up as long as that. I think he would much rather get the job over and done with.
§ BARONESS WOOTTON OF ABINGER
Has the noble Marquess had in mind the number of juvenile magistrates available throughout the country? I think he puts an unreal case.
§ THE MARQUESS OF LOTHIAN
I quite accept the fact that there are juvenile magistrates available throughout the country, but it might on occasion be difficult to get someone. We also feel that it would be a rare case. I admit that there is a choice of evils here: neither solution seems to be perfect. But the Government take the view that the hardship caused by delay outweighs the disadvantage of allowing an appellant or an offender to be dealt with by the recorder without the assistance of a juvenile court magistrate. I would point out that we think this is not going to be a matter which will occur very often—indeed, I imagine that the only times it will happen is when an assessor is unavailable as a result of some emergency or illness. For those reasons I hope that the noble Lord will not feel that he must press this Amendment. As I say, I think it is a choice of evils, to a slight degree, but we feel that the advantage lies with the clause as it stands.
§ LORD STONHAM
I find this most extraordinary. I would remind the noble Marquess that subsection (4) of this same clause provides that …… the said justices shall be selected from the juvenile court panel for the borough …We are dealing with a borough court. It is the same borough. It will not be an enormous place. They will not have to bring people down from the North of England to try cases in London. It is the same borough. There will be a juvenile court panel in that borough. They will be natives, as it were. The recorder will be the imported person, the foreigner. All I am asking is that one native who is qualified to help in these juvenile matters shall be there to assist the foreign gentleman who comes in and who has not, by definition in this 471 clause, special experience in these matters. Subsection (1) uses the words, "where practicable". There is plenty of protection there. What we want to do is to make sure that somebody will take reasonable trouble to see that one assessor is there. At present, there is nothing in this clause to ensure that. But if this Bill, when it becomes an Act, lays down that the recorder must sit with at least one assessor, somebody will take the trouble to ensure that one is there. I think that is a most reasonable thing.
I just cannot understand why the Government, having approved subsection (1), as we all do, should then run the risk of destroying it by subsection (2). The noble Marquess said that he did not want me to press this Amendment. I am not going to press this one because there may be others later on which we shall have to do major battle. But I am going to ask him to look at this point again; otherwise we shall have to put down the Amendment at the next stage of the Bill. We are not going to leave this point, because we are convinced we are utterly reasonable in the matter and that it would be unreasonable to reject the Amendment. I would ask the noble Marquess to look at this again, and if he will indicate that he is ready to do so, I will ask your Lordships' leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 18 agreed to.
§ Clauses 19 and 20 agreed to.
§ Clause 21:
§ Children and young persons arrested and not released
§ 21.—(1) Where a person apparently under the age of seventeen has been arrested without warrant for an offence and is neither brought forthwith before a magistrates' court nor released in pursuance of section 32 of the principal Act, he shall be brought before a magistrates' court within seventy-two hours unless an officer of police of a rank not less than inspector certifies to a magistrates' court within that period that by reason of illness or accident the said person cannot be brought before the court.
§ 6.28 p.m.
§ The noble Baroness said: With the Committee's agreement, I should like to deal with Amendments Nos. 28 and 29 together. At an earlier stage in the Committee stage of this Bill the noble Earl, Lord Jellicoe, suggested, I think, that some of us were not aware of the difference between the conditions of the juvenile courts in London and those in the rest of the country; that we were seeking, as he suggested, to impose upon the juvenile courts a duty which they would not well be able to discharge because of the comparative infrequency of their meetings throughout the country. I think I did then tell the noble Earl that perhaps our horizons were a great deal wider than he had imagined, and I hope he will find in this Amendment evidence that that is true. The purpose of the proviso in my next Amendment, No. 29, is to see that when a person apparently under 17 has been arrested without warrant he shall within 72 hours be brought before, if possible, a juvenile court, though if no appropriate juvenile court is available within that time he may be brought before a magistrates' court. As the Bill now stands, there is no reference to a juvenile court. In a great many parts of the country there will not be a juvenile court that is sitting or can be convened within 72 hours. That is fully recognised, and that is the point of the proviso which is contained in Amendment No. 29. That we recognise.
§ What we are anxious to secure is that in places where juvenile courts are in more or less continuous session—as, for instance, in London and one or two other cities—the young person under the age of 17 shall be brought before the juvenile court and not before the magistrates' court. We do not want any consideration that the magistrates' court might be nearer or more convenient from the administrative point of view, to prevent a young person from being taken, where-ever it is possible and there is an available court, to the court before which it is appropriate for him to appear—namely, the juvenile court. But on those occasions—and we fully recognise that these may be the more frequent occasions—when there is not a juvenile court available within 72 hours, then a magistrates' court will do. But I do not want 473 there to be any excuse for using a magistrates' court if the young person could perfectly weal have been taken to a juvenile court. I beg to move.
Page 12, line 5, leave out ("magistrates'") and insert ("juvenile").—(Baroness Wootton of Abinger.)
In case some noble Lords are under a misconception here, may I make one matter connected with Clause 21 crystal clear straight away? I wish to make quite clear what the noble Baroness well knows, that the term "magistrates' court", which finds its place in Clause 21, of course embraces juvenile courts. The last thing we had in mind was any intention to exclude juvenile courts from this context.
That said, could I turn straight away to what the noble Baroness has said to her Amendment? I am not certain that the balance of advantage would always lie in following the noble Baroness's 72-hour period. I should point out that in this context a magistrates' court also includes a single justice with power to remand in custody. Where, for instance, a young offender is arrested on a Monday, say, and a juvenile court is to be held on the following Wednesday, which is well within the 72 hours period, might it not be better to bring him before the justice on the day of his arrest, in some circumstances, if that can be done straight away, without waiting until the Wednesday? The question for that justice will, as I understand it, be whether to grant bail or to remand in custody, usually until the next juvenile court. I do not think that is a question which need necessarily be left to the juvenile court. I would have thought that there was a lot to be said for having that simple question considered as quickly as possible.
I should be the first to agree that in many cases it is best that the young person concerned should, in the first instance, go before the juvenile court. If he can be brought straight before the juvenile court, which can deal with his case straight away, I am sure that there is clear advantage there. I do not think any of us would disagree with that for one moment. But I am not quite certain, with the hypothetical case which I have produced, that the balance of advantage 474 would lie in waiting for the juvenile court. I would have thought, when the issues are quite simple—to remand in custody or grant bail—that in certain cases it might be better for the young person concerned to be dealt with absolutely straight away, and not to wait up to this full 72-hour period.
§ BARONESS WOOTTON OF ABINGER
I appreciate the sympathy which the noble Earl has expressed with the purpose of this Amendment. I am not altogether convinced that to bring a young person before a single justice, perhaps within 48 hours, is more advantageous than keeping him for 72 hours and then bringing him before a juvenile court. The number of cases in which that justice is going to take the responsibility of releasing him is, I think, likely to be extremely few, especially in those cases where the justice is not himself familiar with the proceedings of juvenile courts or accustomed to dealing with juveniles.
I am indeed aware, as the noble Earl has suggested, that the phrase "magistrates' court" includes juvenile court. That is the reason why no consequential Amendment was proposed for subsection (2) of this clause. But I still feel that the advantage lies entirely on the side of bringing the young person before the court which, after all, is the type of court that is going to deal with him eventually, and bringing him there in all cases after arrest, as soon as possible when a court is available within the prescribed period of 72 hours. However, in view of the noble Earl's sympathy for the purpose of the Amendment, I am prepared to withdraw it and to wait to see whether he may not come forward with another proposal at a later stage. I beg leave to withdraw the Amendment.
I want there to be no misunderstanding. I am sympathetic to the main purpose lying behind this Amendment, but I do not wish it to be understood that I was necessarily undertaking to reconsider this point.
§ BARONESS WOOTTON OF ABINGER
That was not intended to be implied. I am merely living in hopes in respect of the noble Earl's sympathy.
§ Amendment, by leave, withdrawn.475
§ Clause 21 agreed to.
§ Clause 22 agreed to.
§ Clause 23:
§ Age limits for children sent to special reception centres
(3) After subsection (5B) of the said section 27 there shall be inserted the following subsection:—
(5C) Before exercising its powers under the proviso to subsection (1) of this section or under subsection (5A) of this section in relation to a child who has attained the age of twelve the court, unless to do so would in its opinion cause undue delay, shall permit the local authority providing the centre to make representations to the court as to the exercise of those powers and shall consider any representation so made.
§ 6.37 p.m.
LORD STONHAM moved, in subsection (3), to omit the proposed new subsection (5C) and to insert:
(5C) The Court shall not exercise its powers under the proviso to subsection (1) of this section or under subsection (5A) of this section in relation to a child who has attained the age of twelve without the consent of the local authority providing the centre.
§ The noble Lord said: I beg to move this Amendment. There is no objection to this clause as a whole; I think it is quite satisfactory. Neither is there any objection at all to the raising of the age to 15 years, or possibly 16 years when the school leaving age is raised. The purpose of the Amendment is to alter the relationship of the local authority to the court when committals are made to special reception centres. Under subsection (3) of the clause as it now stands, the local authority is allowed to make representations against a committal order, unless to have those representations would, in the opinion of the court, cause undue delay. The position now—and it is not only an administrative difficulty, as I shall try to explain—is that, due to the heavy demand for places in these reception centres, it is often the case that there is no available room. In fact, the general demand for places in reception centres set up under the Children Act, 1948, is much heavier than can in fact be met.
§ Here, in this clause, we are considering—and I have no objection to it at all—committing offenders up to the age 476 of 15 to these centres. The local authority will have to have regard not only to the question of whether there are places or not, and to overcrowding, but also to the welfare of other children there, many of whom will not have appeared before a court at all. It is not merely administrative convenience; it is mixing up older children, possibly, with younger children, some of whom are before the court on perhaps serious offences and others who have not been before a court at all. Therefore, I am putting forward this Amendment which, instead of leaving the local authority to make representations in a matter of this kind, would require the court to secure the consent of the local authority which is providing the reception centre.
§ I appreciate that it is a very difficult point to decide on whom to throw the onus of responsibility. You might argue that the magistrates in a juvenile court have to deal with the boy or girl somehow; that, with this power as it is in the clause as it stands, they have to push him or her on to someone else. One can understand the position of the magistrates in the juvenile court: they want to make the best possible decision for the child. But if the place is not there, then it may well not be the best decision for the child. On the other hand, if it is there then the local authority will gladly give consent.
§ It may well be that the local authority representative will be in court, or will certainly be on hand within, a short time, so that the answer could be obtained. But if subsection (3) gives the court, as it does, the authority, not in fact to make any representations to the local authority at all, but simply to say that the child must go to such-and-such a reception centre, then I think we are going to create difficulties all round—difficulties for the local authority, and, in unfortunate circumstances, not only for the child concerned, but also for other children. I appreciate that this is a very knotty one on which it would be foolish to be passionate either way, but I think that it is a point which merits the very careful consideration of the Government. For that reason, I beg to move.
Page 14, leave out lines 3 to 10, and insert the said new subsection.—(Lord Stonham.)
§ 6.42 p.m.
I am grateful to the noble Lord for the terms in which he has moved this Amendment; and I was also very glad to learn that he had no objection to the general principle underlying Clause 23. In order to make its pedigree even more respectable, perhaps I may mention that Clause 23 derives to some extent from representations made since the Ingleby Committee's Report was received by the local authority organisations. Their views were endorsed by my right honourable friend's Advisory Council on Child Care, and it was as the result of these twin representations, as it were, that the Government decided, contrary to the Ingleby Committee recommendation, to raise the upper limit for committal to a special reception centre. That is done by Clause 23, and the effect of subsection (3), as it stands, is that before remanding a child aged 12 or over to a special reception centre the court must (unless it would involve undue delay, which is the only qualification) allow the local authority who provide the centre to make representations. There is to be no shutting out of the local authority from the right to make representations.
The noble Lord's Amendment would go further and require the specific consent of the local authority. I confess that I, too, cannot feel particularly passionate about this Amendment. I myself am rather doubtful whether we should go as far as the noble Lord suggests. In the Government's view this is rather a matter on which, after the local authority have had full opportunity to state their views—and they would have full opportunity to do so—the ultimate decision should be left to the court.
I would emphasise, as I have already mentioned, that the clause as it stands has been framed in the light of advice we have received from the Advisory Council on Child Care, from the Association of Municipal Corporations, and, indeed, from the County Councils Association. There was also consultation with the London County Council. It was in fact the local authority associations who took the initiative with us over the clause as a whole, and we have received no representations from the associations as such urging that the local authorities should have a right of veto 478 here—although I understand that the London County Council view on this point may be different. Moreover, we specifically consulted my right honourable friend's Advisory Council on the particular point that is made in the noble Lord's Amendment, and having had the question put to them quite specifically, they felt that the consultation provided for was adequate. I should mention that the Advisory Council includes not only members of children's committees (and some very distinguished ones), but also children's officers. And the consultation provided for seemed to them to be reasonable and adequate.
I should also mention that there is a precedent for going as far as, but not not further than, the consultation provided for in the clause as it stands. I am advised that the right of consultation conferred by Clause 23 is precisely the same as the right the local authorities now have, under Section 76 of the principal Act, to make representations to the court about the committal of a child under 17 to their care. I have said that, like the noble Lord, I share his comparative lack of passion on this particular point. I feel that the balance inclines a little the other way, and that the consultation provided for should be adequate; and it is my understanding, as I have mentioned, that the local authority associations share that view. In the circumstances perhaps the noble Lord may not wish to press this particular Amendment, although I am sure he has many coming along later on which he will wish to insist.
§ LORD STONHAM
I am very glad to see that the noble Earl and I are so much in agreement on this point. There is only one thing I should make clear. He has mentioned his authorities, and I am not in a position to dispute what he says. But I should say, on behalf of the London County Council at least, that, while they support this clause in principle, they regard it as an essential element that the court should not be empowered to make such an order unless the local authority are willing to accept the child in the special reception centre. I think it only fair to make their position clear. I myself imagine that if the local authority were in the position of not having any places available they would take steps to keep the court informed all the time. 479 Therefore, I should have thought, the court would know in advance if the position as regards vacancies was likely to be extremely stringent, and would be unlikely to send a child in those circumstances. If they did so, then quite obviously the local authority would have to take steps to see that it did not go on, otherwise a dangerous situation would arise. I do not think it is necessary to pursue this particular discussion any further. If it is necessary to do so at a later stage, of course I will do so. Meanwhile, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 23 agreed to.
§ Clause 24 [Attendance at court of parents of child or young person brought before court]:
§ 6.50 p.m.
BARONESS WOOTTON OF ABINGER moved, in subsection (1) in the proposed new Section 34 (1) (a), to leave out "each of his parents and" and to substitute "his parent, or". The noble Baroness said: This is an Amendment of some importance and may I say at once that in moving it I have no wish to detract from the responsibility of parents for their children's misdeeds. The purpose of this Amendment is to remove the provision in the Bill that when a child or young person is brought before the court
each of his parents"—
which I presume means both of his parents—
and any legal guardian of his, shall, unless the court is satisfied that it would be unreasonable to require his attendance … be required to attend at the court".
That is to say, if the Bill becomes law as it stands both parents will, in the ordinary case, be required to attend the court. This is, I think, an Ingleby recommendation.
§ I am aware that there may be some obscurity in the drafting of the Amendment. In drafting the Amendment we have tried to follow Section 34 of the principal Act which is a little curious, since it is expressed in terms which seem to suggest that the child or young person has only one parent. This seems biologically improbable. It refers to summoning "his parent or guardian" in the singular. We have adopted as nearly as we can that language, in order to 480 provide that at least one parent shall be summoned to attend the court. Perhaps while I am on the point of drafting, I may point out that the drafting of Clause 24 is not entirely impeccable, since in subsection (1) (a) the masculine pronoun "his" is used twice to refer to two different persons, in one case to the child and in the other case to his parent. This might, I think, give rise to some confusion.
§ The substantial point in this Amendment is this. The court is to require the attendance of both parents unless it is satisfied that it would be unreasonable. How is the court to know whether it is unreasonable? In a very small number of cases the court may perceive that the offence is of a very trivial character. But I do not see how even that is going to be easily accomplished, since the court does not meet first of all to decide whether to summon the parents, and then on a second occasion to try the case. In nearly every case it is not apparent from what appears on the sheet whether the case is a grave one or a minor one. A term such as "larceny" would cover an enormous range of cases. This will mean that, since the court cannot meet at a sort of pre-court meeting to decide whether or not to summon the parents, both parents will have to be summoned in practically every case. Both parents will then arrive, and in many cases the presence of both parents is, frankly, quite unnecessary.
§ What will the court do? Perhaps when it sees that the case is not of great importance it will say that one parent can be excused. By that time the parent has very probably had to lose a day's work, and also, if it is a busy court, he may have had a long wait, a wait that may run into hours, before the case was called. The result of this will be that you will be having both parents summoned both for circumstances in which it is necessary and for circumstances in which it is quite unnecessary. You will be having them summoned as a matter of routine, and a great deal of time, valuable productive time, will be in effect wasted by both parents waiting in the waiting room until the case is called and coming to court for the hearing of the case. It seems to me that. particularly in National Productivity Year, this is a very odd proviso to suggest.481
§ After all, it is perfectly clear as the law now stands that, if the presence of both parents is necessary, and this appears in the course of the case, the case can be adjourned for both parents to be summoned. This is quite common practice. It is quite common practice for a case to be opened with only one parent present, for the case to be heard, but, before it is concluded and the young person is dealt with, the case is adjourned or the young person is remanded and the second parent is required to attend. Sometimes it is a case where it is important to have both parents present together. Sometimes it is a case in which perhaps the mother comes in the first instance, and the court has reason to think from the probation officer's report that the father is, so to speak, the nigger in the wood pile. The court may then remand the young person and say, "Before we decide what to do with this young person, we want to see his father". The father is then summoned.
§ This surely gives the court enough power to bring home parental responsibility sufficiently in all cases. It ensures that the case will not be heard unless at least one parent is present. But it does not involve the really rather ridiculous situation of both parents being Obligated to be present in cases in which there is often not the slightest necessity for this; when the homes are reasonably harmonious homes in which there is a good understanding between the parents and when the presence of one parent is perfectly sufficient to give confidence to the child and to give the court the kind of information that it requires. It is, therefore, simply for the purely practical reasons of how this is going to work out, and because I can see no way round the problem that both parents will be summoned as a matter of routine in virtually every case, with a great waste of time, that this Amendment has been proposed. I beg to move.
Page 14, line 16, leave out from beginning to ("any") and insert ("his parent, or").—(Baroness Wootton of Abinger.)
§ THE MARQUESS OF LOTHIAN
I am grateful to the noble Lady for pointing out some drafting errors, and I have no doubt that those will be considered in the proper quarters, She has argued in her usual most persuasive manner that 482 it should be sufficient that a child's parent, in the singular—either his father or his mother—should attend the court; not as the Bill says, that both his parents should attend. It is perfectly true, as the noble Lady pointed out, that this part of the Bill is taken from the Report of the Committee of the noble Viscount, Lord Ingleby, and I think it would be worth while reminding the Committee of what the Ingleby Committee had to say on this point, because it is the peg on which the Government have hung their views:parents should appreciate their responsibilities towards their children and one way to bring that home is to require their attendance at court when their child's case is being heard. We agree with many of our witnesses … that both parents should be required to attend unless the court is satisfied that the attendance of one may be dispensed with … Great value is to be derived from the presence of the child's fatherand the absence of the child's father is to be deplored. We on this side of the Committee very much take that as being a most reasonable point of view.
The noble Lady seemed to think there was a practical point about the difficulty of getting both parents to attend, and she raised the question of what the word "reasonable" meant—as so often is the case in these matters. I have always taken it that, if a court considers it is unreasonable to summon one of the parents, for instance, the father, it is doing so not necessarily because of the nature of the case, the gravity of the case, but because of the possibility, as she pointed out, of a man being away from work, losing a day's wages, and that kind of thing.
§ BARONESS WOOTTON OF ABINGER
I hope the noble Marquess will forgive me if I interrupt him, but will he please deal with the point of when the court makes this decision?
§ THE MARQUESS OF LOTHIAN
The noble Lady has asked me when the court makes the decision. The court must make the decision at the first moment that it can meet to consider the case at all. I am sure that she will agree.
§ BARONESS WOOTTON OF ABINGER
I am very sorry to interrupt the noble Marquess again, but the parent has to 483 be present at every stage of the proceedings, so he must be present when this decision is made.
§ THE MARQUESS OF LOTHIAN
But this is a permissive clause in the Bill. Section 34 (1) (a), mentioned in this clause, is permissive, as the noble Lady has pointed out. I am merely trying to say to her that the court is not necessarily empowered to ask that both parents should be there: it is purely a question of what is reasonable in the matter. For instance, it would cause enquiries to be made by the police. What I was trying to point out to the noble Lady was that when the court meets to consider Whether both parents should be required, It can at that stage instruct the police to find Out the circumstances—for instance, concerning the father at work. But if the noble Lady is still unhappy about this clause I am prepared to have another look at it. I do not want to undertake anything, or to promise that we can alter it in any way, because we attach the greatest importance to the recommendations of the Ingleby Committee on this point: that both parents (and, if possible, the father especially) should be summoned to attend the court.
§ LORD STONHAM
Before my noble friend accepts or rejects the overtures of the noble Marquess, could I point out to him that he mentioned that, under this clause, the court will decide whether one or two parents will have to be there. But before ever the court deals with many cases, the constable or the police officer, doing his duty, will have advised both parents of the court where the charge is to be dealt with. Therefore, under the clause as it now stands without Amendment, both of them will be there, in many cases, without any action on the part of the court at all.
§ BARONESS WOOTTON OF ABINGER
I think the noble Marquess is perhaps not entirely seized of the real practical difficulty. The parents are required to attend the court during all the stages of the proceedings, unless it is unreasonable. Now that must mean that the parents are summoned in the first instance. The count may then possibly decide, after they have been got there, that their attendance, or the attendance of one of them, is unreasonable, and 484 may let him go. But unless the court is to have a preliminary sitting in all cases (which would be improper, judicially speaking) there is no way that I can see round the difficulty that both parents will have to be summoned, in case they are required, because the court cannot otherwise be satisfied whether or not it is unreasonable. That is the difficulty. I think the noble Marquess sees that there may be a practical difficulty there, and if he will look at it again from an entirely practical point of view, I should be grateful.
I said at the beginning that this has nothing to do with any watering down of parental responsibility. I myself have been very much impressed in practice with the frequency with which both parents turn up; and I have also been impressed with the frequency with which courts look at the situation after the first stage of the proceedings and say, "Now it might be very important to get either the father or the mother here, or both here". Will the noble Marquess look at it again from an entirely practical point of view? I am sure he is seized of the difficulty. If I may take it that he is seized of the difficulty, I beg leave to withdraw the Amendment.
§ VISCOUNT INGLEBY
Before the noble Lady withdraws her Amendment, I should like to say that, whilst I differ from the noble Lady because I consider it an excellent thing that both parents should normally be required to attend, I think there is a difficulty in drafting here. I believe something might be done to make it possible, in trivial cases, for the court to have power to dispense in advance with the attendance of the second parent.
§ THE MARQUESS OF LOTHIAN
May I just say to the noble Lady that I am most grateful to her? Perhaps I misunderstood her, on the practical basis, to begin with, and I am certainly only too glad to have another look at this matter from that point of view.
§ Amendment, by leave, withdrawn.
§ Clause 24 agreed to.
§ Clauses 25 and 26 agreed to.485
§ Clause 27:
§ Form of oath for use in juvenile courts and by children and young persons in other courts
§ 27.—(1) Subject to subsection (2) of this section, in relation to any oath administered to and taken by any person before a juvenile court or administered to and taken by any child or young person before any other court, section 2 of the Oaths Act 1909 shall have effect as if the words "I promise before Almighty God" were set out in it instead of the words "I swear by Almighty God that".
§ (2) Where in any oath otherwise duly administered and taken either of the forms mentioned in this section is used instead of the other, the oath shall nevertheless be deemed to have been duly administered and taken.
§ 7.6 p.m.
§ THE EARL OF IDDESLEIGH moved to leave out Clause 27. The noble Earl said: We are up against the very formidable problem of persuading a rather frightened and bewildered child to tell the truth. Let me say at once that I realise that there is no trite solution to that problem, and let me say immediately that I quite recognise that the present procedure of administering an oath to a child is profoundly unsatisfactory. My Amendment may be criticised on the grounds that it would leave the present position unchanged, but I will not withdraw my Amendment unless I obtain an undertaking from the noble Earl, Lord Jellicoe, to co-operate in inserting a much better provision, the nature of which I shall indicate.
§ I did not feel equal myself to proposing a remedy for our present discontent. I feel that any such remedy would involve careful consultation with child psychologists and a great deal more thought and care than a private Peer could be expected to give. The ingleby Committee heard a great number of witnesses who disagreed with the present procedure and who proposed various substitutes for it, some wishing (and I have much sympathy with this view) to leave out the words "Almighty God" altogether. Other remedies were also proposed. The Ingleby Committee, on the whole, took a rather more conservative line in the matter than some of the witnesses.
§ I have four objections to the proposed new form of oath, and my first objection, which I put forward with the trepidation that becomes an unlearned Lord, is on legal grounds. "Promise" is a word with two definite legal meanings accord- 486 ing to whether it is a written promise, in which case it becomes a covenant, or whether it is a spoken promise—the lawyers call it a promise per parol—which is more like the promise under this Bill. If we pass this clause in its present form, the legal writers will have to rewrite their textbooks, because we are going, to give to a word in an Act of Parliament a new legal meaning. The learned authors of those textbooks will have to say that since 1963 the word "promise" has had three different meanings.
Even an unlearned Lord can look up a dictionary, and I have taken that trouble. In looking up the word "promise" in A Dictionary of English Law by the late Lord Jowitt, I found the following:
To have legal effect, a promise must either be under seal, when it forms part of a covenant, or must form part of a contract—that is, be made in consideration of something done or to be done by the promisee".
§ Here we have a promise which certainly does not form any part of a contract at all.
But it is not only the legal textbooks that will have to be re-written. We shall have to re-write the dictionary as well. I looked up the word "promise" in Murray's Oxford Dictionary, and I studied the numerous instances it gives of the use of the word "promise" in literature. There was not one single case in which a supernatural power was invoked to ratify a promise. I then looked up in the Shorter Oxford English Dictionary the definition of "oath" and I found the following:
An oath is a solemn appeal to God or to something sacred in witness that a statement is true or a promise binding.
I read that as meaning that if you invoke the supernatural or the sacred in support of a promise it ceases, by dictionary definition, to be a promise at all and becomes an oath. The phrase, "to promise before Almighty God" is just not English. If you are going to bring Almighty God into it, it becomes an oath and the word should be "swear". And I see some sardonic lexicographer of the future making some rather acid comments on the totally new sense given to the word "promise" by Parliament in its wisdom in the year 1963.
§ Thirdly, I have considered the matter from the point of view of child psychology; and let me say at once that here we are on much more dubious ground and on which I feel a good deal less confident. All the same, not very many years have elapsed since I was in the habit of listening to children talking among themselves. My recollection (and this could very easily be checked by the Home Secretary; he could invite the opinions of child psychologists or schoolmasters) is that the child uses the word "swear" in "I swear I won't tell", "Swear I'll give it back", and "Swear I won't hurt you', rather than "promise". It is perhaps relevant, at the same time, to recall that a child has its own form of oath which has come down, I imagine, in childhood's tradition from very ancient times. When a child wants to assure another child of its veracity, the child says, "Cross my heart", and sometimes adds, "Wish I die". That is, in all essential features, an oath. It is the invocation of a sacred sign in witness that a statement is true or a promise binding.
§ Children, then, use an oath even if they are not familiar with the word "oath". I ventured—I thought it as well to check whether that childish form of oath was still in use—to ask for the benefit of the experience of an intelligent little girl of 12. She told me that at her school children frequently crossed their hearts and that after they had crossed their hearts they felt bound to observe a very great accuracy and truthfulness. I then asked the child what she thought of the word "promise". I find it more difficult to convey her answer to your Lordships' Committee. She said, "Oh, a promise …" and then, not to put too fine a point on it, she made a face that left me in no doubt that she considered a promise an altogether less satisfactory form of asseveration. I think it is true that "promise" does not form part of a child's vocabulary or a child's thought. It is a word which grownups, and perhaps rather unwise grownups, have imposed on children. So they say: "Promise you won't get dirty", "Promise you won't bite your nails—promise, promise!" And the child 488 says, "I promise", but in fact is speaking our language and not his.
§ My fourth point must concern the religious aspect of the matter. I recognise that the formula used is "before God" and not "by God", but I feel that that is a distinction without a difference. I do not suppose that the noble Earl, Lord Jellicoe, and I will provide each other with theoretical discussion in the matter, but I can only say that, so far as I can see, the words "before God" and the words "by God" are just the same. Now I am very frightened of children committing perjury, and I am afraid that children only too often lie after taking an oath. I want to avoid that so far as it is possible. I want your Lordships to remember that fifty years ago I suppose we could assume that almost every child knew the Ten Commandments, probably by heart, and that the Ten Commandments had been very much impressed on the childish mind. I am not so confident that that is so to-day. In the past a child knew the Commandment: "Thou shalt not take the name of the Lord Thy God in vain", and a child might well be frightened of breaking that Commandment. I fear it is not the case to-day.
It seems to me that instead of changing the oath we should, quite simply, re-write the affirmation in a form suitable for use by children. I suppose that the child, like any other of Her Majesty's subjects, has the right, if he conscientiously desires, to make affirmation rather than an oath. We certainly ought not to impose an oath on a Quaker child. We ought not, I think, to permit a child from an agnostic home to take an oath. Those children ought to make an affirmation and not an oath; but, frankly, the present form of affirmation is totally unsuited to a child.
I solemnly and sincerely say and affirm …
These are not words a child can understand. My suggestion is that we re-write the affirmation in some form that a Child can understand, such as:
I know that it is wrong to tell lies and I will do my best to tell you the truth, the whole truth and nothing but the truth.
Some formula like that could easily be found and would, I believe, be useful not
only in the case of a Quaker or agnostic child witness but also in the case of other children who do not understand, or say they do not understand, the nature of an oath.
§ Further, I would allow more discretion to the court in the administration of an oath. I see no reason why a juvenile of 15 or 16 should not take the oath in the accustomed adult form, which would be precluded by this clause. I believe that the solution to the problem, so far as it is a solution, would be found to lie on the lines that I have ventured to suggest, and I hope I shall get a sympathetic reply from the noble Earl. I beg to move.
Leave out Clause 27.—(The Earl of Iddesleigh.)
During our Second Reading debate the noble Earl described the new form of oath for use in juvenile courts suggested in Clause 27 as "a dangerous little mouse". The noble Lady described it as "a ridiculous mouse".
Well, the Bill in the context of the oath. In any event, if Clause 27 is going to be described as a mouse, I prefer to describe it as a gentlemanly, sensible little mouse. I am grateful to the noble Earl not only for the sincere and sympathetic terms in which he has moved this Amendment, but also, and particularly, for the opportunity which he gave me of discussing it with him, because I think that without that opportunity I should have found myself hard pressed at this moment to answer some of the more recondite points which he has made.
As I understand it, his objection to the present Clause 27 is on four main grounds. The first is a legal objection. He has argued that the use of the word "promise" has no legal effect unless it forms part of a contract. That proposition may have sonic general truth, but I would urge on the noble Earl that it is not relevant in this context. So far as English law is concerned, this clause, if passed, will clearly make this one of the ways in which witnesses may be lawfully 490 sworn. A witness sworn in accordance with the new clause would be legally sworn for the purpose of the Perjury Act, 1911, so I do not think the oath provided here would be without the requisite legal force.
The noble Earl's second objection, I gather, is a philological one. Here I find his argument (I should like to read it) more difficult to follow. If he is arguing, as I thought he was, that it is appropriate to appeal to the Deity when swearing an oath, but not when promising, I should not have thought that that argument was necessarily valid. In any event, by his own yardstick of the Shorter Oxford English Dictionary, I should have thought that "promise" in our language has a perfectly clear-cut meaning. Using the synonyms for "promise" which the Shorter Oxford English Dictionary gives, the new oath would read:I undertake (or engage) before Almighty God to tell the truth, the whole truth and nothing but the truth.That seems clear-cut to me.
The noble Earl's third objection to the new formula is that it is not couched in language which a child would understand. I would grant straight away that it is extremely difficult to find a form of words equally suitable for children of all ages, and that for some children the new form proposed may not be easily comprehensible. But I would urge upon the noble Lord that it has not been adversely criticised by any of the professional bodies invited to comment on the Ingleby Committee's Report, and it has the concurrence of the Lord Chief Justice, who was consulted on this point. We think it should serve its purpose without being open to the objection to the present formula, to which the Ingleby Committee drew attention.
In all the circumstances, I feel that this is as about as good a formula as we could have. I should not think that it would be taken by the child as a sort of "Second Division" oath, suitable only for them, and less binding than the "First Division" oath sworn by an adult, because the new form of oath will also be used by adults giving evidence in juvenile courts. I would also submit that an oath derives at least a part of its solemnity from the circumstances in which it is administered, as well as from the actual 491 words. I am inclined to doubt that even where a child realises that the formal oath may be somewhat different from the oath normally sworn by adults, he will necessarily conclude that he is that much the less obliged to tell the whole truth.
The noble Earl also mentioned the matter of affirmation. He thought that if we were going to change the formula at all, we should change the formula of affirmation. As the noble Earl knows, it is already possible for a child to affirm, since Section 1 of the Oaths Act applies equally to children as it does to adults. Here, again, I should have thought that a child Who was mature enough to exercise his right to affirm on his own account rather than to take an oath should be mature enough to understand the force of the words in the standard affirmation. I gather that, in practice, very few children do choose to affirm instead of taking an oath, and where younger children choose to affirm possibly they do so under parental influence, in which case parents would explain the purpose of affirmation, which then in general would be clear to the child.
All in all, I prefer the formula which we have suggested in Clause 27, and I hope that, with the noble Lord's kind assistance, I have been able to persuade him at least part of the way that this formula, which of course closely follows the recommendation of the Ingleby Committee, is not a totally inappropriate one. Perhaps it may be possible (at least, I express the hope) that, alien though the new formula strikes the noble Earl's ear at this present hour on this particular day in 1962, with time he may bring himself to be reconciled to it.
§ THE EARL OF IDDESLEIGH
I am afraid I am far from reconciled to the present form of oath, if it is an oath. I still maintain that to "promise before Almighty God" is not English. If you are going to bring Almighty God into it, the only correct word to use is the word "swear". I remain dissatisfied with the suggestion that a child could possibly use the present conventional form of affirmation, or that, if the did manage to pronounce the words, he could possibly mean anything by them. I think it would be a good thing if far more children were encouraged to affirm rather 492 than take the oath. In general, I am quite unconvinced by the noble Earl's arguments. I will withdraw my Amendment, but on Report I shall probably move to delete the words "before Almighty God".
§ Amendment, by leave, withdrawn.
§ Clause 27 agreed to.
§ Clause 28 agreed to.
§ Clause 29 [Disregard in proceedings against adult of offences committed by him while under age of 12]:
§ BARONESS WOOTTON OF ABINGER
This Amendment is consequential on Amendment No. 20 which the Committee have already approved. I beg to move.
Leave out Clause 29.—(Baroness Wootton of Ahinger.)
May I just say that I entirely agree with the noble Lady, and I would advise noble Lords to accept this Amendment.
§ On Question, Amendment agreed to.
§ Clauses 30 to 31 agreed to.
§ Clause 32 [Hours of employment]:
§ 7.35 p.m.
§ LORD HAWKE moved to leave out Clause 32. The noble Lord said: My noble friend Lord Molson has had to leave to fulfil a long-standing engagement, and he has asked me to move this Amendment on his behalf. Clause 32 reduces the hours for employment of children below that in the Children and Young Persons Act, 1933, and my noble friend is rather puzzled as to what actuates the Government in this change. He has been unable to find anything in the Gowers Report which recommended such a change. This change would create quite a revolutionary situation in the newspaper delivery business, which is a favourite part-time occupation for small boys in the morning and sometimes in the evening. This apparently does not do any harm to their health, and, if one is to believe the biographies of famous men, often leads to great positions and affluence in later life. The local authorities under Section 18 of the Children and Young Persons Act, 1933, 493 already have power to make provisions altering the hours, and my noble friend would like enlightenment as to the Government's reason for altering the Act of 1933. I beg to move.
Leave out Clause 32.—(Lord Hawke.)
I think the Government thought it was desirable to take the opportunity of this Bill to rationalise and give statutory form to what is already the existing de facto position throughout most of the country. That is the main reason behind the clause. But since my noble friend has asked me what the reason behind the clause is, perhaps I may return the compliment and ask him what the reason behind the Amendment is, because it is not clear to me what the Amendment will effectively achieve. I will say why I feel that. The clause, as my noble friend has explained, amends the provisions of the principal Act so as to alter from 6 a.m. to 7 a.m. the earliest hour, and from 8 p.m. to 7 p.m. the latest hour, at which a child of compulsory school age may be employed in Great Britain. If this Amendment were pressed and accepted, it would still be illegal, as I understand it, to employ a child before 7 a.m. in any part of England or Wales or after 7 p.m. in virtually any county and, indeed, in most county boroughs.
Let me explain what the factual position at present is under the by-laws to which my noble friend referred. The intention, which will be met if the clause remains unamended, is to make in every area provision for a night interval of at least twelve hours for children. That is generally secured by the existing bylaws. I do not at this hour wish to take up too much of your Lordships' time, but perhaps I may cite the statistics here. In England and Wales, 3 in every 4 authorities allow employment before school (as a rule only for the delivery of milk or newspapers, as my noble friend mentioned) but none before 7 a.m. Three county councils and 8 county borough councils allow employment after 7 p.m. on schooldays; 5 county borough councils allow employment after 7 p.m. on Saturdays or during holidays; and only 3 authorities allow employment up to the present statutory limit of 8 p.m. In Scotland, as I understand it, the position is broadly similar, except that 6 of the 35 authorities permit employment 494 to start at 6.30 a.m., and 8 allow employment up to 8 p.m. The clause will therefore make the smallest practical difference in most places, and I should have thought it was a difference which, by and large, was valuable. The noble Lord mentioned the question of delivery of newspapers. I think the forms of occupation in which most school children are engaged are the delivery of newspapers or milk, and in agriculture. I would make it clear that no representations have ever been received from milk delivery interests against this particular clause, and they had notice a long time ago that it was our intention, when there was a chance of legislating, of doing so along these lines. The National Federation of Retail Newsagents, Booksellers and Stationers also indicated in 1955 their acceptance of these important restrictions which are now embodied in the clause. I would have thought that they are in the best position of all to speak for the newspaper interests in this context. As regards agriculture, the position is that employment after 7 p.m. is allowed in three counties only in England and Wales at present. But this concession is confined to school days only.
I would suggest that there are substantial advantages in getting this de facto position, which, broadly speaking, exists already throughout the country, formalised by Statute. I would also urge that there is a subsidiary advantage, but one Which I do not think we should ignore; that the new nestriotion, if agreed to, will comply with a minimum standard which is laid down fin International Labour Convention No. 79 of 1946, which regulates, or is intended to regulate, internationally night work by children and young persons in non-industrial employment. I do not think it would be altogether satisfactory if we allowed to pass by the chance which this Bill provides, and which this clause would give us, of, as it were, coming into line with an International Labour Convention which in fact was promulgated as long ago as 1946. I would, in all the circumstances, urge that the clause as drafted—I am not talking about drafting points, but broadly speaking—is reasonable.
I thank my noble friend for his very long and detailed explanation. I feel sure that much of 495 the information Which he gave the Committee was not known to my noble friend. He will, of course, consider the noble Earl's explanation and decide whether or not he wishes to carry it further. But I am sure we shall all be delighted to hear that the noble Earl is not nipping any potential millionaires in the bud by restricting their newspaper rounds at an early age. I beg leave to withdraw my Amendment.
§ LORD STONHAM
Before the noble Lord finally withdraws his Amendment, may I intervene to make it quite clear that we on this side of the Committee wholly support the Government in this clause as it now stands, and would be opposed to the Amendment? I am quite sure that the noble Lord, Lord Hawke, is right in saying that his noble friend was unaware of many of these facts, otherwise in all probability the Amendment would not have been tabled.
§ Amendment, by leave, withdrawn.
§ Clause 32 agreed to.
§ Clauses 33 and 34 agreed to.
§ Clause 35:
§ Restriction on persons under 16 taking part in public performances etc.
§ 35.—(1) Subject to the provisions of this section, a person under the age of sixteen shall not take part in a performance to which this section applies except under the authority of a licence granted by the local authority in whose area he resides or. if he does not reside in Great Britain, by the local authority in whose area the applicant or one of the applicants for the licence resides.
§ (4) The power to grant licences under this section shall be exercisable subject to such restrictions and conditions as the Secretary of State may by regulations made by statutory instrument prescribe and a local authority shall not grant a licence for a person to take part in a performance or series of performances unless they are satisfied that he is fit to do so, that proper provision has been made to secure his health and kind treatment and (in the case of a person of compulsory school age or, in Scotland, school age) that, having regard to such provision (if any) as has been or will be made therefor, his education will not suffer; but if they are so satisfied, in the case of an application duly made for a licence under this section which they have power to grant they shall not refuse to grant the licence.496
§ (7) Any statutory instrument made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
§ 7.45 p.m.
§ LORD STONHAM moved to add to subsection (1) "or has his place of business". The noble Lord said: I am most grateful to the noble Earl. I thought it was somewhat grim that we had reached the stage of the Bill marked "Entertainment", and our entertainment is to be denied us for a further period. In other words, we have reached the "fun and games" section of the Bill. Clause 35 places a restriction on persons under the age of 16 taking part in public performances, and we wholly support the clause in principle. The Amendment which I now move deals with the situation in the main of young performers who live outside the country, and who therefore cannot themselves apply for a licence from the local authority in the area in which they reside, because they do not reside in this country at all. The application is normally made by the person who is going to employ them, or someone on his behalf who makes an application to the local authority for a licence so that they shall perform.
§ So far as the London County Council are concerned, they have found that many applications for licences which are at present made by theatrical employers—because the 1933 Act does not specify, as we know it, the local authority from whom application should be made—for children coming to this country from abroad are automatically sent to the London County Council, because normally the applicant's place of business is in the London County area.
§ It is felt that this will unquestionably continue, even when this new provision becomes an Act of Parliament, unless this clause is amended in the manner in which I am suggesting, by having not only the words "his residence" but also "Or has his place of business". If those words are added, then the local authority, wherever the applicant had his place of business, would be empowered to grant the licence. Again this is not a major point. I think it is valid. It is an administrative point which has validity, and I trust that, if not now or not in this exact form, at some later stage it will prove acceptable to the Government. I beg to move.497
Page 18, line 16, at end insert' ("or has his place of business".)—(Lord Stonham.)
§ THE MARQUESS OF LOTHIAN
As the noble Lord pointed out, we have now come to the "fun and games" part of the Bill, and it seems quite appropriate that in this case I should be able to tell him, to start the ball rolling properly, that the Government entirely agree with this Amendment. They think it has a valid point, both in practice and in principle. I do not want to keep the Committee any longer; we are prepared to accept the Amendment.
§ On Question, Amendment agreed to.
LORD STONHAM moved, in subsection (4), after "kind treatment" to insert:
that adequate and proper provision has been made for the management and investment of his earnings,".
§ The noble Lord said: I am quite prepared to believe that this is a pretty controversial provision or suggestion, and one which will be very difficult to apply, but I think it is well worth discussing. We are all agreed on this principle of protecting young persons, children under 16 years of age who are engaged in theatrical performances, from exploitation. We are determined that they shall be properly licensed by a local authority, that provision shall be made to look after their health and their kind treatment, that they shall have proper teaching, and so on, and also, of course, that there shall be regulations laying down the conditions subject to which a licence should be granted. My Amendment suggests that the Government should at least give some guidance in this matter even if the particular Amendment is not acceptable—for example, what kind of conditions a local authority should be able to impose in granting a licence. They should be able to prescribe the hours of work and rest, welfare and education, and to insist on a medical examination by a doctor. And this is the point of the Amendment: that where a child earns high fees, they should be able to prescribe any neces- 498 sary safeguards to prevent the exploitation of the child.
§ I assume from the Bill that these matters will be dealt with by means of regulation, and the purpose of this Amendment, therefore, is to ask that the regulations will deal on behalf of the child with the investment of the child's earnings and so ensure that performing licences are not granted in any case where there is a danger of exploitation. I beg to move.
Page 19, line 11, at end insert ("that adequate and proper provision has been made for the management and investment of his earnings,").(Lord Stonham.)
§ 7.52 p.m.
I agree with the noble Lord that this is a controversial and, indeed, difficult subject. I would also agree that it is well worth discussing, and, I would go further than that and say that I am sure the object of the noble Lord's Amendment will command both support and sympathy. It is, as I understand his explanation, to enable local authorities, by one means or another—and I am grateful to him for saying that he was not attached to the particular wording of his Amendment—to protect a child from being exploited by an unscrupulous and mercenary parent or having his earnings squandered or mishandled by a stupid one. However, it seems to us that to achieve this object the Bill will have to go a good deal further than the noble Lord proposes. Indeed, we are not at all sure that the object which he has in mind and which has our sympathy could reasonably be achieved with any degree of certainty.
Could I explain—since I think the noble Lord has almost invited me to—the background of our thinking here? It may take a few minutes, but I think we have the time, since I gather that our first relief comes at 8 o'clock. Those of your Lordships who have refreshed your memories with what the Bateson Committee proposed in years gone past will recall that they thought that protection for a child performer's earnings could be provided in two ways. In most cases child performers did not earn a lot of money. For these, Bateson thought it would suffice if the amount of the earnings were stated in the application for a licence and the licensing authority could, 499 where they judged it right, encourage good management by insisting, as a condition of granting the licence, that a proportion of the earnings should be banked. This is found in paragraph 225 of the Bateson Committee Report. Some local authorities do this already, I understand, and they will also be able to continue to do that, if they judge it right, under the regulations to be made under the powers conferred by the clause. Those regulations will, of course, cover a wide variety of matters like hours of work and how many hours a child of a certain age should do in film work—the sort of matters to which Bateson gave a lot of attention.
Local authorities' responsibilities and powers in this matter of finance will be spelled out in the regulations, too, and in the Circular from the Home Office Which will doubtless accompany them. Those regulations could well deal with this existing practice of local authorities. The Bateson Committee recognise, however, that this would provide only a temporary safeguard and one which does not ensure that the earnings were wisely spent. It would seem doubtful whether these fairly light defences would amount, at least in many cases, to thatadequate and proper provision…for the management and investment of his earnings"—to quote the words of the noble Lord's Amendment—about which the local authority must be satisfied before granting a licence.
However, the Committee thought that no more vigorous control than that was called for where the earnings were small. The Government agree with this view in the case where earnings are small, and in support of that view I would merely point out that there is no control at present over how the money which a child earns in other kinds of employment outside the entertainment field is spent. I would, however, grant that there are a few children like the child "stars" of the films who earn large sums of money and offer much mare temptation to the unscrupulous parent, and, indeed, more scope for the foolish one. For children in this small class the Committee recommended, and I quote their words, thatsalaries earned in any period of twelve months over a certain amount"—500 £100 they suggested—should be paid into the County Court for administration as a trust fund on behalf of the childI should like to say straight away that at first sight this idea of introducing a specific safeguard as recommended by the Committee or the more general safeguard suggested by the noble Lord is attractive, provided it were limited to the cases where the earnings are substantial. However, the Committee's recommendation appeared to us to be unduly rigid. It would not suit, by any means, every case. Fortunately, there are many good and sensible parents who, if they were fortunate enough to have a child "star" in their family, would manage that child's financial affairs in a good and sensible way, probably giving them—if I dare venture the thought—more personal attention than a county court might.
The precaution proposed by the noble Lord is more general and might well sidestep that particular difficulty. That I would grant. Nevertheless, I think there are substantial difficulties in the way of adopting it. For example, before a licensing authority could be satisfied that proper provision was going to be made for the management and investment of the child's earnings in the employment for which the licence was to be issued, they would need to know a great deal more about the child's financial circumstances than what he was merely going to earn, if the licence was issued. They would really need to look at his financial situation as a whole: what other money he had earned, what he hoped to earn in the future, what income or expectations he had from other sources, how much should properly be spent on his education, training and recreation, and a whole host of other possible factors. This means that really to discharge their responsibility here the licensing authority would need to look with a much more inquisitorial eye at the family's financial affairs than I think many people would consider reasonable. Where the parent was well-disposed I think the information would be freely given, but those are just the cases where there is less need for a safeguard. Where the parent was not well disposed I think it might be only too easy to conceal the true situation if 501 that suited the parents' convenience. I do not wish to over-elaborate or to exaggerate these difficulties. They do not arise, of course, in the other matters with which this clause deals. These factors will emerge very clearly from the application, which will show what provision is being made for the education, or to which a medical certificate can be attached—for example, showing the child's health; there are ways of checking on the child's physical development and, indeed, on whether he is following what had been laid down.
But on the question of finance it will I suggest, he much more difficult satisfactorily to check whether the conditions that may have been suggested are in fact being followed. I suggest that the adoption of this Amendment might well land the licensing authorities in real practical difficulties. How would they decide, for example, whether the amount set aside for a young film star's education or living expenses or training was reasonable? How could they say that a particular way of investing the child's money proposed by the child's parents, on the best professional advice, was unsuitable? And how would they stand if, having insisted on some other form of investment, the child in the end proved to be less well off than if the parent had been allowed his or her own way in the first instance?
To sum up, we think that there will be, on the whole, few cases in which a child needs to be given protection of the kind proposed in the Amendment; that there would be great difficulty in putting the licensing authority in the way of exercising the kind of supervision which would be necessary, and that in any case this is not the sort of responsibility which the licensing authority should properly be expected to assume. All in all, therefore, and while I am sympathetic to the object behind this Amendment—and I hope the noble Lord wild take it from me that is not a mere form of words—we see very great practical difficulties in it, and I do not think I could advise your Lordship's to accept it.
§ LORD STONHAM
I hope that it will suit your Lordships' convenience if I reply briefly to the noble Earl before we get on with other matters. I am very 502 grateful indeed—and this is not a mere figment of speech either—to the noble Earl for the very careful way he has dealt with this Amendment, and I say at once that I shall in a moment or two ask your Lordships' leave to withdraw it—but with this understanding: that I personally, and I am quite sure others, want to study what the noble Earl has said. We do not brush off the difficulties, but having considered carefully what he has had to say we may well come back with some other Amendment, well knowing that there is a general desire to try to meet this point. I assure the noble Earl that local authorities, at least the local authority particularly concerned, the London County Council, do feel that this is a responsibility which should be placed on them. I am in a position to say that they would welcome an assurance that matters of this kind could be dealt with in the regulations relating to the investment of fees and earnings; and I may perhaps have a further word on that point with the noble Earl afterwards.
But what I and, I think, all of us are concerned with is to prevent exploitation of juveniles. I am not going to mention any names; it would not be fair. But this is not confined to film stars. There are 15-year-olds, and younger, who have earned, and are earning, very high fees indeed. In some cases it is well within my knowledge there is a regular system of exploitation by—I do not know what you call them: entrepreneurs, who take up these youngsters on spec, agree to pay them a weekly sum for what seems to be a considerable period, a year or maybe even two years, and then, apart from expenses, take all they earn. I will not do it now, but I could give the noble Earl many instances of that kind of thing. That situation continues for years afterwards, always assuming that the young person is a success. If he is not eventually a success, of course, he is thrown on the scrap heap. But it may well go on for years, and the person concerned gets only 30 per cent. Or, if he is very lucky, 40 per cent. of what he eventually earns, even as a great star. This is exploitation, and as the Government have taken the opportunity in this Bill to do many things that it has for a long time been necessary to do, particularly in the world of entertainment (I think it was in 1950 that the 503 Committee reported) it is about time we took such steps as are open to us in matters of this kind.
I know that this matter is difficult. I know that it would be totally undesirable to attempt to interfere unfairly or unduly with the rights of parents, or indeed with the children themselves. There can be too many interfering busybodies. But big earnings of this kind are suddenly thrust on child and parents who are totally unprepared for them, either by background training or upbringing. They do it in the world of entertainment, which: in many respects is totally different from the ordinary business world and. therefore, where there is need, so far as possible, for some form of protection of their investments. I think this has been a discussion of considerable value which will be, I am sure, studied. We may come back to it at a further stage. I am most grateful to the noble Earl and I ask your Lordships' leave to withdraw the Amendment.
§ VISCOUNT FURNESS
Before the noble Lord, Lord Stonham, withdraws his Amendment, I hope that he has not in mind, and will exclude from his strictures on exploitation, the legitimate stage. I do not believe that there is such exploitation in the legitimate theatre—and here I must declare an interest, in that I am a member of the Society of West End Theatre Managers. I hope that the noble Lord will make clear to your Lordships that his strictures on other branches of the entertainment industry do not apply to the legitimate theatre.
§ LORD STONHAM
I was not aware that I was levying strictures on any particular branch of entertainment. I simply said that it is within my knowledge, and I expect within the knowledge of other noble Lords, that there have been cases of exploitation within the world of entertainment. At a later stage, on another Amendment, I shall be discussing the various forms of entertainment, and I do not think I should anticipate what I am going to say then.
Before the noble Lord withdraws the Amendment, may I say that I am glad to accept the invitation to discuss this matter further with him or, indeed, with any other noble Lords 504 who are interested, and rightly interested; and I should be grateful for any further information on this question which noble Lords can put into my possession. I have noted what the noble Lord said about the attitude of the London County Council, and if he now sees fit to withdraw this Amendment I should like to reciprocate the spirit in which he is withdrawing it.
§ Amendment, by leave, withdrawn.
I think the table is now spread, and in view of that I beg to move that the Committee adjourn till nine o'clock.
§ Moved that the Committee do now adjourn.—(Earl Jellicoe.)
§ On Question, Motion agreed to
§ The Sitting was suspended at ten minutes past eight o'clock until nine o'clock.
LORD LINDGREN moved, in subsection (7), to leave out "annulment in pursuance of a resolution of either House" and insert "approval by affirmative resolution of both Houses". The noble Lord said: From the discussion which we have had on previous Amendments to this clause its vital importance will not be contested, though this Amendment has nothing to do with the material in the clause, except the question of the regulations and statutory instruments likely to emanate from the Minister. Subsection (7) states:
Any statutory instrument…shall be subject to annulment in pursuance of a resolution of either House of Parliament
Amendment No. 37, in the names of Lord Williamson, Lord Crook and myself, is to change that so that it refers to an Affirmative Resolution of both Houses of Parliament. In view of the importance of the material of the clause and of the regulations likely to be made, we take the view that Parliament ought to have the opportunity of making an Affirmative Resolution. This is a point which has often been raised in regard to all types of Bills, and it is a general control which we think Parliament, through both Houses, should have. I beg to move.
Page 19, line 34, leave out ("annulment in pursuance of a resolution of either House") and insert the said new words—(Lord Lindgren.)
I am sure that we all appreciate the brevity with which the noble Lord has moved his Amendment. What sort of matters will these regulations cover? I think it would help if I just quickly told your Lordships the sort of ground we think they will cover. For example, we feel that the sort of thing that we should provide for in the regulations are opportunities for the child's place of work to be approved by the local authority, who must be satisfied that suitable dressing rooms, lavatories and so on, are provided; and again, if, for example, a child has to spend the night away from home, that his lodgings are approved by the local authority, who should attach conditions as to a change of lodgings. Again, we feel that they should cover matters like the number of days and the total number of hours for which a child might he required to work in the entertainment field.
That said, I am sure we should all agree that the main purpose of delegating powers is to relieve Parliament, once matters of principle have been settled, of the need to scrutinise subordinate matters. If we were to make too many subordinate instruments the subject of Affirmative Resolution I think we should begin to lose the main purpose behind them. But I would also agree—and I know it is perfectly familiar to all noble Lords there this evening—that the choice between the two kinds of procedure for control by Parliament over delegated legislation is a difficult one. There are no hard and fast rules here. I think we could all state precedents one way or the other, But I should have thought that the sort of ground which these regulations would Cover will be dealing, not with matters of principle, but with matters of fact and of detail, Which, as I have suggested, are not unsuited to the Negative Resolution procedure. I agree that the regulations are important—I would not dissent from what the noble Lord, Lord Lindgren, has said—but I think they are not going to touch ion matters of principle but only on matters of fact, on questions of precise controls and, to some extent, on matters of detail.
I myself remember a year or so ago introducing from this Box the Housing Bill. That Act, as it is now, provided for the making of important regulations 506 far the management of houses in multiple occupancy. Those regulations have since been prescribed; they went into matters of great importance and detail, but I do not think (they were matters of principle. Those regulations were, of course, subject to the Negative Resolution procedure, and that was thought adequate by Parliament. These regulations will fall, to my mind at least, into the same sort of category. I would also suggest that they will cover much the same ground as the present rules which are made under the principal Act. Those rules, the Employment of Children in Entertainment Rules, 1933, are not even subject to the Negative Resolution procedure, but, so far as I know, this fact has not troubled Parliament. I believe that this is always a difficult matter of judgment, but it seems to me that the clause as it stands will already increase the degree of Parliamentary control in this field. I suggest that it does so adequately enough. It goes beyond anything Parliament has so far thought appropriate in this held. In view of that, I would suggest to your Lordships that the Negative Resolution procedure is probably sufficient.
§ LORD LINDGREN
I cannot say that I am greatly surprised at the reply which the noble Earl has given. It is a question, as he has stated, of delegated legislation. We are disappointed, because this is an important matter; it is one in which we are dealing with the lives and the well-being of children under 16 years of age. But, in view of the statement made by the noble Earl, and also in view of the hour of the evening, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 9.9 p.m.
LORD STONHAM moved, after subsection (7), to insert:
( ) On the extension of the compulsory school age (or, in Scotland, school age) to sixteen years, that is to say—
§ The noble Lord said: As the amended Education Act now stands, a child who reaches school-leaving age during the term cannot leave school until the end of the term in which he or she reaches that age. Under the Education Act, 1962, there will be a change, which means that after September, 1963, a child attaining school-leaving age during a term will be able to leave school only at the end of two terms, the spring and summer terms, and not the Christmas term. It is obviously a very important period in a child's school life, particularly if, as we contemplate, 16 will be the school leaving age. It will be a time of examinations and the culmination of school life—assuming that it is going to end at the age of 16 years. Therefore, particularly on this question of children who will be in entertainment, it is extremely important that the child should, like other children, complete its school career, and that extraneous and probably very transitory considerations should not be allowed to interfere with that child's future. It is for that reason that we feel that this Amendment is necessary.
§ It may well be that the noble Earl will think that it can be met by other means, but, as I see it now, without any explanation, this seems to me an omission, or perhaps it is a failure to look forward to the position which will be created under the current Education Act, the position which will exist in September, and after September, 1963. Therefore I hope that the Government can agree to this change. I beg to move.
Page 19, line 35, at end insert the said new subsection.—(Lord Stonham.)
The noble Lord always makes good points. I think on this occasion he has made an even better point than usual. As I see it, the Bill as drafted is defective in the respect to which he has drawn attention. I can assure the noble Lord without further ado that we accept his Amendment in principle. We should, however, like to look at the detailed drafting of this matter, as there may be some difficulties there, but I do not think I need trouble your Lordships, at this rather late hour for us, with those. If it would suit the noble Lord, I should be happy to dis 508 cuss with him the best way of putting this particular defect, to which he has rightly drawn attention, straight between now and Report stage.
THE EARL OF IDDLESLEIGH
Before the noble Lord, Lord Stonham, withdraws his Amendment, as I have no doubt he will, I rise to draw attention to the needs of the theatrical profession in respect of children of 15 and 16, because those needs have not received due consideration from your Lordships' House. The age of 16 in a child is extremely important for theatrical producers. They have to produce plays such as Peter Pan, and innumerable other plays in which children appear and play a significant rôle. There are not very many, but some boys and girls of 16 can play the part of a young child. For obvious reasons, there are very few boys and girls over that age who can, with any measure of conviction, play the part of a small child. Plays involving children have a rather special place in the theatrical world, and I am very anxious indeed that no unnecessary restrictions should be placed on the production of these plays. That must be borne in mind, as well as the interests of the children concerned. I think it may be necessary, on Report stage, to move some safeguarding Amendments so that, in duly regulated circumstances, children of 16 may be able to receive licences. I will not trouble your Lordships with an elaboration of this matter, but I ask your Lordships to bear in mind that theatrical interests are important and that some procedure allowing for exceptional cases may have to be produced.
§ LORD STONHAM
I am grateful to the noble Earl, Lord Iddesleigh, for his remarks, but, in the main, we have been dealing with licences for children up to the age of 16 years, and I rather feel that, on further study of the matter, his point will be covered. In any case I do not think it hinges on the particular point about education and staying on to the end of the term in which the child reaches school-leaving age. But certainly, although it is not really my part to study this, I shall be delighted to consider with the noble Earl, Lord Jellicoe, another form of words which will embody this principle on which we are both agreed. I am grateful to him for his kind remarks, and I would ask your 509 Lordships' leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 35 agreed to.
§ Clause 36 [Restriction on licences for performances by children under 13]:
LORD STONHAM moved, after subsection (1), to insert
( ) For the purposes of the foregoing subsection the expression 'acting' shall include singing, dancing and musical performances.
The noble Lord said: I always believe in pressing my luck, and I hope now to complete the hat-trick by securing the acceptance of this Amendment, or an assurance that something like it will be embodied in the Bill. As will be quite obvious to the Committee, the main purpose of this Amendment is to obtain a definition of the word "acting", because it might be assumed—indeed, I should myself assume it—that the word "acting" means performing in a nonmusical play. If I am right in that assumption, it would seem to be creating quite an absurd anomaly that, for example, a child under 13 of exceptional musical ability would be prevented from obtaining a licence whereas a child of 6 years of age who for example, takes part in one of those deplorable T.V. advertisements, and who assures her mother that her skin is so soft because she is using one particular kind of detergent instead of another, would be able to obtain a licence to enable her to take part in such a performance. In my submission, those little children, child actors, who take part in these advertisements that we see on television are certainly in need of protection, and should be protected.
§ At the same time, although I am moving a great many Amendments relative to the entertainment sections of this Bill. I have no desire at all (and I believe this is what the noble Earl, Lord Iddesleigh, had in mind) to preclude from proper, legitimate and controlled employment other child performers who delight us and who should, in proper circumstances, be encouraged. For example, as the clause now stands the whole host of juvenile pantomime performers (the children in Peter Pan, and all the Christmas pantomimes which for a quarter or half a century have delighted our 510 children) and the hosts of young performers, the singers and amateur children who come from dancing academies in the suburbs, are not, I would submit, subject to correction by the noble Earl, acting in the sense of this clause. They come on in little ballets and performances of that kind. They are juvenile dancers and not, I would submit, actors. The noble Earl may produce the Shorter Oxford English Dictionary to prove that I am absolutely wrong; but even if he does I shall not be really convinced. Many magistrates who will consider cases of this kind, or local authorities who will license these children, may not have the same version of the dictionary as the noble Earl. Therefore I submit that some such explanation as I have put in this Amendment should be included in the Bill.
§ I am quite prepared for the noble Earl to say that when we begin to define things, specifying singing, dancing and musical performances, we may thereby be excluding something else that ought to be included. We are always up against this difficulty when defining something at some length, and I am quite prepared to be corrected on that. But I submit that the expression "acting"—and only that word in the Bill—is not sufficient for the purpose we have in mind. We are all virtually agreed on the conditions for licensing by local authorities and I hope that we shall be agreed that provided we are satisfied about those conditions, we should not exclude young people from employment, from providing enjoyment for others, and even possibly of a future career starting as juvenile performers.
§ For these reasons I ask the noble Earl either to accept this Amendment in principle or to say that he will look into the matter and produce an improved form of words to embody the point that I have made. I assure the Committee that this is quite a serious point, though I had it on the authority of a noble Lord who has honoured me with his friendship that when he read this Amendment he was inclined to regard it as a sort of comic Amendment. It looked rather funny that we should have to define this point. I say this to assure your Lordships that it is necessary to define this; and I hope that, before we part with this Bill we shall define it. I beg to move.511
Page 19, line 40, at end insert—
("( ) For the purposes of the foregoing subsection the expression 'acting' shall include singing, dancing and musical performances")—(Lord Stonham.)
This is not a simple matter, I am afraid, and the noble Lord's Amendment touches on what is, in fact, a real difficulty. I must, therefore, even at this hour, give a little background. The Bateson Committee, as your Lordships will recall, thought that two categories of children should be distinguished among those employed in the entertainment field. On the one hand, there are those who play parts which can be played only by children, and, secondly, there are those who play parts which can equally well be taken by adults. The Committee thought that it was wrong to allow children in the second category to be employed, if they were two years below the statutory minimum age for employment in general—that is to say, two years below school-leaving age.
I should make it clear that it was children in this category to whom the Committee applied the phrase of children engaged on "troupe work". When I read the Bateson Report, I was surprised to see this phrase used in this context. I must confess I have always thought of a "trooper" in rather different terms. But perhaps we should leave that. In any event, the Government fully support the Bateson Committee's view that the statutory minimum age for employment should bite at those children doing the sort of work—chorus routines, for example—which an adult could equally well do.
On the other hand, the Committee thought that it would be against the interests of art generally if films and plays had to omit any part for a young child or have it played by someone who was obviously older than the part required. The Committee, therefore, recommended thatThe licensing authority should be able to licence a child of any age to take part in a play, if satisfied that the child is required for the artistic representation of the part and that the safeguards will fully assure the child's welfare and can be made effective".The Government also support the Committee in this view. None of us would wish to deprive the stage of Lady Macbeth's legitimate children.
512 The present position is that a licence may not be granted in any circumstances for a child in England or Wales until he is 12 years old and in Scotland until he is 13. So, in giving effect to the Bateson Committee's recommendation, Clause 36 allows, for the first time, a licence to be granted to a child under 12 in England and Wales. So far, I think we are all agreed. However, Clause 36 also imposes a new restriction on children between 12 and 13 in England and Wales—and eventually on those between 13 and 14 in Great Britain—by restricting the engagements for which they may be licensed to acting. But that added restriction applies only to that particular year group.
It is true that a child whose talent lies in singing, dancing or playing a musical instrument will not be able to get a licence until he reaches the minimum age laid down by the clause, although there are certain exemptions, like charity performances and certain other performances, in which children may be able to take part. We are sorry that there should be this limitation. It may mean that a potential Mozart, if we have one in this country, would not be able to perform at the Festival Hall until he was the required age of 13 or 14, as the case may be. But we have not been able to think of a way of avoiding this, if we are to give effect to the Bateson Committee's other recommendation, which we think is right, that children under 13 should not be licensed to take part in troupe work. If it were possible to find a way of prohibiting this troupe work, without also ruling out talented young dancers or singers or musicians, to whom the noble Lord has referred, the Government would be only too willing to find it. But although this has been our intention, we have met with very considerable difficulties, purely of a drafting nature. The real trouble, as we see it, is that if we include dancing and singing with acting in this clause, as the noble Lord suggests, we shall open the door to groups of young people under 13 for performing in the sort of troupe or chorus work that the Bateson Committee regarded as a mere substitute for adult labour, and which we should wish to prohibit under the age of 13. I should make it clear that as long as a child under 13 is taking 513 an individual part in a play or other dramatic performance it can be licensed. Despite its drawbacks, Clause 36 would avoid that particular difficulty.
To sum up, we sympathise with the noble Lord's object and we should like to find a means of achieving it if we could do so without harm to the main purpose of the clause. However, for the reasons I have given, at the moment we have been unable to find a formula. If we can find a formula which will allow for the artistic performance and also at the same time mean that troupe work in the sense employed by Bateson is cut out for children under 13, we shall be glad to do so. At the moment we have not found a way.
§ LORD STONHAM
I am grateful to the noble Earl for his frankness, but, while I do not blame him personally, I feel that he has given a deplorable answer to this problem. He frankly announces that the Government are sorry that there should be this limitation, and they very much regret that this may stultify or nullify a future Mozart, but, nevertheless, there is nothing they can do about it because of something the Bateson Committee said in regard to troupers under 13. I will say at once that we shall look at this closely, and if the Government cannot do it, then we will put our own suggestion down on the Report stage.
When you think that a child of 5 or 6, a little tiny toddler, will be permitted under this clause as it now stands, without amendment, to have his or her face made up, to be rehearsed and made to stand in front of cameras for a soap flakes advertisement, or something of the sort—Scene 1, Take Seven, that kind of thing—but that equally nice, or even nicer, little girls of 12 cannot take part in a performance of Toad of Toad Hall under the very strict supervision of wardrobe mistresses, mammas and papas, simply because of this provision or the inability of the Government to find a form to meet this position, it just does not bear thinking about. Almost the only distinction I have in life is that I live about 50 yards from Yehudi Menuhin. This clause as it now stands would have gravely handicapped his early career, because he would not have been able to perform in public.
514 Really, this is a confession of failure such as we seldom hear in this House, and it is not possible to consider it. The one difficulty which I see is that if my Amendment were accepted as it stands there would be the possibility (this is a sort of hypothesis, and I do not admit the possibility) that we should get the kind of shoddy little troupes touring about the country with children in choruses which could be composed of adults, and sometimes are, quite deplorably. But the noble Earl said that they had decided that the statutory minimum age should bite on youngsters of that sort and that kind of exploitation so as to prevent it.
I should have thought that the many safeguards which we have all agreed should be embodied in the Bill would also bite on the licensing of those young people so that they could not be employed and exploited in that way. It seems to me—and anyone who looks at commercial television will, I am sure, agree with this—that the clause as it now stands permits and approves exploitation of little children, but prevents the proper and desirable employment of young people of talent in music, dancing and in other forms of entertainment in which it is desirable they should be employed.
Your Lordships may have heard—if you have not, you are one of the few—the record of a boy's voice, pure inimitable, ageless, singing Oh, for the Wings of a Dove—a boy from the Temple Choir. He made that record, which has sold well over 1 million copies, when he was a child. That boy, Lough, is now a man of over 50. That is music, singing, and he would not have been allowed to perform in this way with the clause as it now stands. We are not going to allow this clause to go away from us with such nonsense in it. If it is merely a case of finding a form of words, then we will find a form of words. That is another matter Which I should like to discuss with the noble Earl.
I think there is something more than that. I think that in the way in which the clause is now drafted, and in the use of this single word "acting", the Government have not given sufficient thought to this. They have rather been pursuing, as it were, the easy way, which is often the most difficult way. I hope, therefore, that the noble Earl will say, at least 515 so far as he is concerned, that he agrees that the word "acting" as it stands at present is not satisfactory. It does not embody what we all want to do. We should make a joint effort so that between now and the Report stage we shall find a form of words which not only will be generally acceptable but will permit the kind of performances we all think would be legitimate and proper to be given in the interests of children.
I should like briefly to reply to that. I think the noble Lord has brushed aside rather cavalierly the arguments which are to be found in the Bateson Committee Report. I would also draw attention to the fact that this young man could have recorded that gramophone record because he might very well have been exempt under subsection (3) of Clause 35 of the Bill as it now stands. Finally, I would point out that this particular difficulty, about which the noble Lord is making rather heavy weather, is a difficulty which applies only to one year group. It is a difficulty—and I admit it—but it is one which already applies under the present law to all children under the age of 12. We are merely extending the difficulty, in so far as we are extending it, by raising that limit from 12 to 13. Nevertheless, I made it plain to begin with that I was quite prepared to have a look at this particular clause because there is a difficulty here. If we can find, either separately or together, a way of getting round it I, for one, should be very glad.
§ LORD CONESFORD
May I put one point to my noble friend? He said that there might be an exception under subsection (3); but would it be a performance within subsection (2)? I should have thought that the noble Lord opposite was wrong, even on that ground.
I think the noble Lord opposite is wrong, but I always require notice of noble Lords opposite being wrong.
§ LORD STONHAM
In view of the assurance now being repeated by the 516 noble Earl, I beg leave to withdraw the Amendment but will return to it again.
§ Amendment, by leave, withdrawn.
§ Clause 36 agreed to.
§ 9.42 p.m.
§ LORD STONHAM moved, after Clause 36 to insert the following new clause.
§ ".—(1) Subject to the next following subsection nothing in subsection (1) of section 18 of the Children and Young Persons Act 1933 (which places restrictions on the employment of children) shall prohibit the employment of persons under the age of thirteen if that employment is for the modelling of children's clothes or for photographic or television advertising purposes.
§ (2) The power of a local authority to make byelaws contained in subsection (2) of section 18 of the Act of 1933, shall include a power to make byelaws for securing the health, kind treatment and education of persons referred to in the foregoing subsection."
§ The noble Lord said: Section 18 of the Children's and Young Persons Act, 1933, us subsequently amended, prohibits the employment of children under 13 years of age, but the law in this respect, as we all know, is being disregarded and it is very difficult to enforce its provisions. For example, a number of children are being employed as models to display children's clothing; others are being employed in quite substantial numbers as photographic models and, as I mentioned during the earlier discussion, for taking part in television films for advertising purposes; and, as I think we are all agreed, in some cases in undesirable conditions.
§ Some time ago I raised the question of rehearsal rooms for television performances, and subsequently, at the invitation both of the B.B.C. and commercial television, I visited a number of these rehearsal roams. Some of them were good and I think there has been some improvement in that matter; but some of them are far from good, and the conditions under which these child performers are required to act in films for advertising purposes often leave very much to be desired. I am not saying that there are not legitimate trade purposes which justify the employment of children as photographic models and for purposes of that kind. I do not think anyone would disagree that that is necessary, and you cannot have adults taking the place of little children for 517 purposes of that kind. Indeed. there is no objection to this practice providing it is properly regulated, and the whole purpose of this proposed new clause is to enable the local authorities to make by-laws for the proper regulation of this type of employment, so as to retain control over it. I think that the purpose of the Amendment is quite clear, and I believe, too, that in view of what I have said about it it would generally, in principle at least, meet your Lordships' wishes. I do not say that the suggested wording of the new clause is necessarily ideal, but I hope that if it cannot be accepted in its entirety, at least the Government will accept it in principle. I beg to move.
After Clause 36, insert the said new clause.—(Lord Stonham.)
§ THE MARQUESS OF LOTHIAN
I should like first of all to express my sympathy with the aims of the noble Lord in moving this Amendment. As I understand the situation at the moment, Section 18(1) of the principal Act and Section 28 of the principal Scottish Act prohibit a child from being employed till he reaches the age of 13, to be raised to 14 when the school leaving age goes up. The only permitted exceptions are (a) where local authority by-laws allow it, for instance when the child is employed by a parent on horticultural work or something like that; and (b) a child employed under authority of the licence agreement under the provisions for licensing to take part in entertainment which come under Clause 35 of this Bill, or in cases where the child is exempted from the need for such licence. As I understand it, the noble Lord's new clause is intended to allow a third exception: that is, a child employed for the modelling of clothes for photographic or television advertising purposes.
I should like to point out, first of all, that the noble Lord's Amendment does not appear to extend to Scotland. I do not know whether this was by accident or design; perhaps he would like to enlighten us at the end. Secondly, I think I should stress that many children who are employed for what the new clause describes as photographic or television performances will be taking part in a performance to which Clause 35 already applies; that is to say, a performance 518 which comes under subsection (2), paragraphs (c) and (d), which refer to broadcast performances and any performance recorded by whatever means for use in broadcast or film intended for public exhibition. These children will have to satisfy the conditions of Clause 36, but if a licence is granted they will not need the relaxation granted by the noble Lord's new clause. Therefore, I presume this is intended mainly for children who are going to be employed as models for still photographs to be used as advertisements.
What is worrying the Government somewhat is that we are finding it hard to understand quite why the noble Lord has selected this particular category of child under 13 for exemption from the protection so long conferred by Section 8 of the principal Act. In other words, it seems hard to understand why children who pose for a commercial photographer should be exempted but those who pose for a commercial artist should not. If it is permissible, for instance, for a child to be employed where the object is to produce an advertisement, why not Where the object is to produce a technical picture or, for that matter, pure art? In other words, it seems to me the line is being drawn too finely. The noble Lord's new clause quite rightly aims at ensuring that the right conditions are forthcoming for any child licensed under this subsection. I am advised that the local authority in making the by-laws as he suggests could not deal adequately with the case of individual children, but only with general categories defined by such criteria as age, occupation or sex, and that therefore this subsection could not possibly perform the task which I am sure the noble Lord wishes it to perform.
Another point is that we are not certain that the present law really hampers the advertising of such things as clothes, food and sweets intended specially for children, and means that they are not, and cannot be, adequately advertised. I should also like to say, on Section 18 of the principal Act, which has been in force for a long time, that little representation on this subject has come to the notice of the Home Office, but such as has, has on the whole been all against the use of young people as models. Therefore, while we sympathise with the intention of the Amendment, we feel that there is possibly not sufficient 519 reason on artistic, economic or general grounds why this particular form of employment should be singled out for special treatment, and possibly the noble Lord would care to think about it again. I hope, therefore, that he will not press his Amendment.
§ LORD STONHAM
As a matter of principle, I do not want young people employed in this way at all; but as a matter of actual fact and practice I know that they are so employed, and I am rather astonished to hear from the noble Marquess that lie or his Department have little evidence that they are so employed. We need only the evidence of our eyes. Pick up virtually any magazine which deals with clothing or domestic consumer goods which have some effect on children, or look at almost any television advertisement, and you will find young people are employed in this way.
I do not know whether, by "evidence", the noble Marquess means representations that have been made by local authorities or by others. If that is a deficiency, then I would assure him that the London County Council, which is a not inconsiderable local authority, is extremely concerned about this particular matter. Therefore, the reason for this proposed new clause is not, as it were, to create or acknowledge a new, class of children's employment, but to admit that it exists and to find some way of regulating the conditions of that employment. That is its sole purpose.
In almost his first words, I think that the noble Marquess said that he has some sympathy with the idea which lies behind it. Therefore this appears to be another of those matters where we are in sympathy with regard to the objective, but where the exact form which I put forward for meeting it does not meet with the Government's approval. I agree that on this occasion the noble Marquess has said enough to indicate why, and to give me serious thoughts about the efficacy of this method of doing it. Therefore, I gladly accept his advice to read again to-morrow with great care what he has said, in the hope that we can come forward with a more satisfactory method of meeting the difficulty. With that, I would ask your Lordships' leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 37 [Supplementary provisions as to licences under section 35]:
§ 9.55 p.m.
LORD STONHAM moved, after subsection (4), to insert
( ) The holder of such a licence shall at least seven days before the person named in the licence takes part in a performance to which it relates, furnish to the local authority within whose area the performance is to take place particulars of the licence and such other information as may be prescribed by regulations.
The noble Lord said: I think the noble Earl will agree that I should discuss with this Amendment No. 42. Clause 37 provides that
Where a local authority grant…a licence authorising a person to take part in a performance in the area of another local authority they shall send to that other authority such particulars as the Secretary of State may by regulations made by statutory instrument prescribe.…
The clause further provides for the revision or revocation of the licence by that local authority, and that in that event they shall inform the other local authority if the licence relates to a performance in their area. There is in the Children and Young Persons Act, 1933, in Section 22 (which is repealed by the present Bill), a provision requiring the holder of a licence, at least seven days before the person named in the licence takes part in a performance, to furnish to the local authority within whose area the performance takes place a notice enabling that authority to be satisfied that any conditions in the licence are being observed. In this connection the local authority in whose area the entertainment is to take place are to satisfy themselves, among other things, that the performers have a proper medical examination; that the educational arrangements are satisfactory, and also that the credentials of the person in charge of the performer are satisfactory.
§ The Amendment I am now moving requires the holder of the licence at least seven days before the performance to give to the local authority in whose area a performance is to take place particulars of the licence and such other details as may be required. It is a necessary provision to enable a local authority who have not themselves 521 granted the particular licence to have the knowledge that a young person who has a licence is going to perform in their area, and to make sure that the terms and conditions of a licence—a licence which they themselves have not granted—are carried out. The second Amendment, which goes with it, is to provide a penalty if the provisions of the first Amendment which I have moved are infringed. This again seems a reasonable and necessary safeguard for the young person concerned, and I hope that it will command the sympathy of the Government. I beg to move.
Page 20, line 29, at end insert the said subsection.—(Lord Stonham.)
§ THE MARQUESS OF LOTHIAN
The noble Lord's Amendment would reenact Section 22 (4) of the principal Act, which imposes on the holder of a licence the duty to give information to the local authority in whose area the performance is to take place; in other words, the enforcing authority. But subsection (3) of Clause 37 already lays that responsibility upon the local authority that issues the licence, and the Government do not feel that there is any need for both provisions. We take the view that it is on the whole better that the responsibility should be upon the licensing authority. That should encourage both licensing and enforcing authorities to make better arrangements for consultation and co-operation, which was a point upon which the Bateson Committee laid some emphasis.
There is one other complication if this Amendment is carried, and it is this. For instance, if the person whom the noble Lord wishes to be responsible for notifying the enforcing authority should fail to do so or forget to do so, he would, as I am advised, be in danger of being prosecuted even though the enforcing authority had already full particulars of the licence from the licensing authority. That seems to be rather an absurd situation. I do not know whether it would happen very often, but there would be a danger if he were also responsible. For those reasons, I feel that I cannot accept the Amendment, and I hope the noble Lord may see fit to withdraw it, because we really think it is not adding anything much to the Bill as it is. We think it is unnecessary.
§ LORD STONHAM
I certainly do not want to add anything that is unnecessary to the Bill. I will have to look at that point. I was not quite clear on one point which the noble Marquess made just at the end of his remarks. He spoke about the enforcing authority, which of course would be the authority which granted the licence, and not the authority in whose area the performance took place.
§ THE MARQUESS OF LOTHIAN
Perhaps the noble Lord misunderstood me. By "enforcing authority", I meant the authority to whom the licence had been sent; in other words the authority in whose area the performance is going to take place.
§ LORD STONHAM
In that event I think that my point is probably covered. If the licence must be sent to that authority, then it is up to them to see that the terms of the licence are carried out, and it may well be that this Amendment would then indeed be unnecessary. I will, of course, have a look at it again, but on this occasion I must say that the noble Marquess seems to have made his case, and I would ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 37 agreed to.
§ Clauses 38 and 39 agreed to.
§ 10.4 p.m.
§ LORD LINDGREN moved, after Clause 39 to insert the following new clause:
§ Central licensing authority
§ ".—(1) A central licensing authority shall be appointed by the Secretary of State which shall be responsible for licensing
- (a) all children under 13 years of age;
- (b) all children coming from or going abroad; and
- (c) all children taking part in television broadcasts.
§ (2) The central licensing authority shall be responsible for supervising the application by the local authorities of the regulations governing the licensing of children between the ages of 13 and 16."
The noble Lord said: I very much regret that an Amendment of this importance should come at this late hour in our proceedings. The brevity with which I will move it will have no redaction to its importance, or to the importance we attach to it. Much has been said about the Bateson Report this
evening, about the fact that it is twelve years old, and that since It was introduced there has been a very big addition to the field of employment, particularly in commercial television. So far as this Amendment is concerned, it is an attempt to give effect to a recommendation of the Bateson Committee which has been ignored by the Government in the Bill now presented to Parliament. I do not think there are many who would justify the multiplicity of administration which we now have—the Home Office, the local education authorities, the Ministry of Education and the magistrates' courts. Page 2 of the Bateson Committee Report said:
The advantages of a simple administrative system which would be applicable to employment in all types of entertainment, as the problems are akin, have throughout struck us very forcibly",
and then they make the recommendation that there should be a central licensing authority. As I said, I think that is one of the major recommendations of the Committee, and yet it has been ignored.
§ This Amendment (and, if I might say so, the following Amendment, to Clause 40, is consequential upon it) brings that administrative machinery in line with the recommendations of the Bateson Report; and, also, it would, I think, be a valuable addition to the protection of young persons engaged in the entertainment world. I beg to move.
After Clause 39, insert the following new clause—
(".—(1) A central licensing authority shall be appointed by the Secretary of State which shall be responsible for licensing
(2) The central licensing authority shall be responsible for supervising the application by the local authorities of the regulations governing the licensing of children between the ages of 13 and 16.")—(Lord Lindgren.)
I agree fully with what the noble Lord has said about the importance of this particular matter. As the noble Lord has said, the Amendment is clearly intended to give effect to the recommendation of the Bateson Committee. From the drafting point of view, 524 I would suggest straight away that the Amendment is probably defective. It does not, for example, set out fully the powers and duties of the proposed new central licensing authority; but as I understand that the intention behind the movers is to ventilate the principle involved here, and as, if I were to accept the Amendment, we could probably quite easily remedy the drafting defects, I will not labour that technical point.
In their Report the Committee expressed the view that the existing system suffered from three main defects: the procedure for appeal, which at present lies to my right honourabe friend the Minister of Education; the lack of uniform criteria; and what they called, "unequal administration"—and the Committee suggested that the best way of overcoming these defects would be to set up a simple, central licensing authority. The Government, after full consultation with the various organisations and interests conecrned here, have come to a different conclusion. I should like to say straightaway that we have not ignored the Bateson Committee's recommendation here. We have, in fact, after due consideration, decided not to adopt it. I think I should say why.
It may be true, first, that the present appeal procedure is defective, as Bateson suggested it was. If that is the case, I would suggest that the best cure is not to abolish the right of appeal. The Government think it better to substitute a new form of appeal to a magistrates' court; and that is in fact provided in Clause 37 (6) of the Bill. As regards uniform criteria and standard administration, I would grant that these may well be desirable objectives, but the Government consider that more uniformity over this whole field is in any event likely to be achieved if the discretion vested in the licensing authorities is somewhat reduced in the way in which the Bill provides. For example, under the Bill the licensing authority must in future issue a licence if they have power to do so and are satisfied on the matters that the subsection requires them to take into account.
Moreover, the regulations to be made under Clause 35 by my right honourable friend the Home Secretary will prescribe in more detail than the existing regulations how the power to grant 525 licences should be exercised. But, that said, I would urge that complete uniformity is neither necessary nor desirable, since we must take full account of local circumstances in this field. I doubt whether we should, in fact, gain much by interposing a now body between the local authorities and the Home Secretary here, and I f would make it clear, as is clear from the whole context of the Bill, that the Home Secretary will be the responsible Minister. He will be issuing the regulations or he will be the responsible Minister in this field.
I think that this new tier of responsibility would be open to several objections. The most important is that the proposed central licensing authority would not be in a position to carry out its responsibilities alone. As the Bateson Committee themselves recognise, a licence should be granted centrally only after due consultation with the local authority in the area in which the child concerned is living. The Bill recognises that the local authority must be responsible for enforcement and must have power to vary the conditions attached to the licence. In these circumstances, I find it hard to know what the proposed central authority would, in fact, do. The decisions would have to be based on the views of the local authorities, and it seems much better that they should remain wholly responsible not only for issuing but also for enforcing the licences.
I also believe that there is little justification for treating children who are employed in television, as the Amendment would treat them, differently from children employed in, say, making films. After all, television is no longer "experimental" (to use the word which the Bateson Committee employed some ten or so years ago), whatever else we may think about its merits or demerits. So far as children going abroad (the third category covered by the Amendment) are concerned, we have long had machinery under which licences are issued centrally by the Bow Street magistrate. As I mentioned during the Second Reading debate, this system seems to be working perfectly well, and, in default of evidence to the contrary, I see little point in disturbing it.
This leaves only one category of children among those listed in subsection 526 (1) of the new clause—children coming to this country from abroad to seek employment in the entertainment field. I grant that rather different considerations might apply to this category. Nevertheless, they are few in number, and the Government feel that they can be adequately dealt with by providing that the licensing authority for them should be the local authority in whose area the applicant or applicants reside; and I see little justification for setting up a central licensing authority for this category alone.
May I now turn to subsection (2) of the proposed new clause? It would seem from this that the sponsors of the Amendment think that the local licensing authorities, in exercising the powers vested in them by law, need to be controlled in some way by the central licensing authority. There are arguments far giving the whole power to a central authority, but in the Government's view there are better arguments for giving the whole power to the local authorities. I should have thought that the proposed new subsection would in fact be an uneasy compromise between the two.
If the work of the local authorities under the power conferred by this Bill really requires supervision, it is doubtful whether the proposed central licensing authority would be the best supervisor. The local authorities' exercise of their present power has been unfettered and the Government see no sufficient reason far introducing a new tier of responsibility, in addition to the Government themselves, into the structure of the scheme set out by the Bill. All in all, I can see no real grounds why in the future, as in the past, these powers should not continue to be exercised by the local authorities, acting, of course, under the general direction of my right honourable friend. I grant that the Bateson Committee thought otherwise. Nevertheless, I cannot see that there would be a really useful role for this new central authority, nor do I see that it is really needed, and I would ask your Lordships not to accept this Amendment.
§ LORD LINDGREN
I must thank the noble Earl for the detailed reply he has given. He will not expect me to agree with him all the way through, but some of his points have some validity, and, in 527 view of the nature of the reply, I would beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 40 agreed to.
§ Clauses 41 to 43 agreed to.
§ Clause 44 [Financial assistance under s. 20 of Children Act 1948]:
I suggest that we may perhaps consider this Amendment and No. 46 together. They may appear to your Lordships to be extremely complicated. I can, however, assure your Lordships that they are purely drafting. I beg to move.
Page 23, line 30, leave out ("their care") and insert ("the care of a local authority").(Earl Jellicoe.)
§ On Question, Amendment agreed to.
Page 23, line 33 leave out second ("the") and insert ("a").—(Earl Jellicoe.)
§ On Question, Amendment agreed to.
§ Clause 44, as amended, agreed to.
§ Clauses 45 to 52 agreed to.
§ 10.20 p.m.
§ Clause 53 [Absence of parent or guardian of child received into care of local authority]:
§ LORD STONHAM moved, in subsection (1), after "unknown" to insert "to the local authority". The noble Lord said: Your Lordships have never heard me make any reference to the lateness of the hour, and I certainly do not intend to do so now, because whenever I move an Amendment the night is still young, and I am sure that as adequate consideration will be given to this, the last fairly controversial Amendment as it was to the first. However, I can comfort your Lordships by saying that I shall take only two minutes. Clause 53 enables a local authority to assume parental rights over a child if the whereabouts of the parents have been unknown for twelve months. This clause is a valuable one and should clear up any doubts arising from the generally accepted version of abandon- 528 ment—that is, leaving a child to its fate; and obviously it is a clause which we on this side fully support.
There is, however, one question which the clause as it stands appears to us to leave in doubt. The clause says:
Where after a child has been received into the care of a local authority under section 1 of the Children Act 1948 the whereabouts of any parent or guardian of his have remained unknown for not less than twelve months …
and so on. My Amendment would make it read, "remained unknown to the local authority". In other words, I am asking the question: remained unknown to whom? I am assuming that it means "remained unknown to the local authority", because it would be the local authority concerned who would, under the clause, have been trying to trace the parents, but without success. If this Amendment were accepted they would clearly be enabled to assume parental rights over the child. I am sure that that is what the Government mean, but the clause does not make it clear, and I think the insertion of the words in the Amendment is necessary. I beg to move.
Page 28, line 4, after ("unknown") insert ("to the local authority").—(Lord Stonham.)
I am sure the noble Lord is right to draw attention to this matter, which I must confess has given me some slight difficulty. I do not wish at this stage to be dogmatic in any way in my reply to the noble Lord. I will be brief. As I am advised, in the context of the clause there is no room for doubt. The word "unknown" is being used, as it is commonly used elsewhere in similar circumstances, of information that is not ascertainable from any source from which one might reasonably expect to derive it. That assurance should go some way to meet the noble Lord's point.
I have a difficulty about accepting the Amendment, which otherwise I should be rather inclined to accept, because it does dot the "i" and cross the "t." As I read the Amendment, it might give the impression that the local authority is able to act under this clause, as amended, merely because it did not happen to know the child's whereabouts, when in fact it had not troubled to make inquiries of other persons to whom the whereabouts might be known. I understand 529 that it might have that legal force. I am not saying that many local authorities would be so bereft of responsibility as to exercise this important power in those circumstances, but I think we should be careful in this legislation, and in the light of what the noble Lord has said, I should like to consider whether the present wording, his suggested wording or some other possible wording, is the more watertight.
§ LORD STONHAM
I regard that as a very satisfactory reply from the noble Earl. I am not dogmatic about this. I think he agrees that, as the words now are, there is a genuine doubt as to exactly to whom the whereabouts have to be unknown. Secondly, there is a doubt in my mind. I feel quite sure that we mean "unknown to the local authority". I hope that between now and Report stage the noble Earl will be able to consider this again and make that point clear.
With regard to the local authority's not having bestirred itself sufficiently to find the parent or guardian, I agree that, hypothetically at least, there is that danger. But there is an urge upon the part of every local authority which has a child in its care—I do not say this in any derogatory sense—to relieve itself of the responsibility, if it properly and legitimately can, without damaging the interests of the child. That means that it would make every attempt to find the parent or guardian. In normal circumstances it would be an extremely bad local authority who did not do that. I do not think a great deal of the danger the noble Earl put forward in this respect. I believe—and I think he does—that the clause, in the fourth line, needs a little more clarification so as to show exactly whom we mean, and I am sure that before we part with the Bill in this House we shall be able to clear that one up together. With that, and again thanking the noble Earl for his reply, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 53 agreed to.
§ Remaining clauses agreed to.
§ Schedules 1 and 2 agreed to.
§ Schedule 3 [Minor and Consequential Amendments]:530
I hope that we may consider this Amendment and Amendment No. 49 together. They are both fairly small Amendments, and quite simple, and I trust that they will commend themselves to your Lordships. Paragraph 12(3) of the Fourth Schedule to the principal Act enables a local authority to undertake, as agents of the managers of an approved school, the after-care of a person who, after being released from the school, is under the supervision of the managers. Paragraph 26 to Schedule 3 of the Bill substitutes a provision making it the duty of a local authority (and this follows an lngleby recommendation), if requested by the managers to do so, to undertake the aftercare of a person released from an approved school. As it stands at present, the paragraph, unlike the provision it replaces, applies only while the person concerned is under the supervision of the managers, and not during any further period when he is voluntarily receiving advice and assistance. The Amendment extends the paragraph so that it applies to the whole period of both compulsory and voluntary after care. I beg to move.
Page 40, line 28, leave out from ("cause") to ("to") in line 29.—(Earl Jellicoe.)
§ On Question, Amendment agreed to.
This Amendment is consequential. It relates to Clause 22 and is, I think I can assure your Lordships, minor and perfectly anodyne in its effect. I trust that you will allow the Amendment to go through, as it were, with that explanation. If so, I feel, having secured our half-century of Amendments, that we might then draw stumps for the evening.
Page 40, line 30, at end insert—
("any person in their area who is out under supervision from that school or who may be visited, advised and befriended in pursuance of paragraph 7 of Schedule 2 to the Criminal Justice Act 1961")—(Earl Jellicoe.)
§ On Question, Amendment agreed to.531
Page 43 line 44 at end insert—
§ On Question, Amendment agreed to.
§ On Question, Whether Schedule 3, as amended, shall be agreed to?
§ THE EARL OF IDDESLEIGH
I venture to ask why it is—I do not expect an answer necessarily at this moment, but I am calling attention to a small point—that as you are amending the Oaths Act, Section 27, the Oaths Act is not mentioned in one of the Schedules?
I must confess to the noble Earl that I have not the faintest idea, but I will look into the matter.
§ Schedule 3, as amended, agreed to.
§ Remaining Schedules agreed to.
§ House resumed: Bill reported with Amendments.