HL Deb 12 June 1967 vol 283 cc651-800

2.56 p.m.

Order of the Day for the House to be again in Committee read.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD STRANG in the Chair.]

Clause 30 [Suspended sentences of imprisonment]:

Suspended sentences of imprisonment

30.—(1) A court which passes a sentence of imprisonment for a term of not more than two years for an offence may, subject to the next following subsection, order that the sentence shall not take effect unless, during a period specified in the order, being not less than one year or more than three years from the date of the order, the offender commits in Great Britain another offence punishable with imprisonment and thereafter a court having power to do so orders under the next following section that the original sentence shall take effect; and in this Part of this Act "suspended sentence" means a sentence to which an order under this section relates and "subsequent offence" means an offence so punishable committed during the said period.

(3) A court which passes a sentence of imprisonment for a term of not more than six months for an offence shall make an order under subsection (1) of this section unless—

  1. (a) the act or any of the acts constituting that offence consisted of an assault on or threat of violence to another person,
  2. (e) the offender had at any time before the commission of the offence been sentenced to, or served any part of a sentence of, imprisonment or borstal training previously passed for another offence or been subject to a suspended sentence.

THE DEPUTY CHAIRMAN OF COMMITTEES

I ought to say that if the first Amendment, No. 39, were to be agreed to, it would not be possible to call Amendments Nos. 40 and 41.

LORD BROOKE OF CUMNOR moved to leave out subsections (3) to (7). The noble Lord said: I beg to move Amendment No. 39, which on the face of it is an Amendment to take out something like a whole page of the Bill. But I should like to point out that the operative part of the Amendment is really to take out subsection (3) of Clause 30. But since subsections (4), (5), (6) and (7) are all consequential on subsection (3), the Amendment has to propose the deletion of all of them.

The proposal in subsection (3) of Clause 30 is a classic example of the Government doing the right thing in the wrong way. I think I ought to declare my personal views on the whole general subject of Clause 30. I am very strongly in favour of the suspended sentence. I think it is a good thing to introduce that new variety of sentence into the ways in which courts can deal with offenders. I have no criticism of that at all. I am also even more strongly in favour of avoiding unnecessarily sending anybody to prison with a short sentence. That is not only because I have been Home Secretary, and know how seriously overcrowded the prisons are—although that in itself is a reason for seeking to avoid unnecessary prison sentences of all kinds—but because I believe that it is extremely important that people should not lose their fear of prison by becoming acclimatised to prison.

If a person has never been in prison the idea of prison certainly is somewhat intimidating and therefore has a deterrent effect. To almost everybody, what is unknown and believed to be unpleasant creates an intimidating influence. If a man or woman is sent to prison for the first time on quite a short sentence, the experience will cease to be unknown. It may or not be worse than they had expected, but they will have been able to measure it up; they will know what a prison sentence is, and the quality of its being unknown will disappear. This second reason is, to my mind, much the stronger reason for seeking to keep people of this kind out of prison—and I am not speaking here of first offenders, but of those who have never been sent to prison before. It is a wholly worthy object.

Unfortunately, the Government have proceeded in the wrong way to achieve this end. The right way, surely, is to bring these points forcefully to the attention of the courts, and especially the magistrates' courts. In the great majority of cases the first prison sentence, being a short sentence, is likely to have been imposed by magistrates. Unfortunately, the Government have chosen the wrong way, and they propose to forbid the courts to pass a sentence of up to six months' imprisonment which is to take immediate effect. They propose that by subsection (3) of Clause 30 which I am seeking to omit, and they propose it except for certain classes of people detailed in paragraphs (a), (b), (c), (d) and (e) of subsection (3). The court, which has heard the case and which has had an opportunity of forming its own opinion of the offender and of the crime and of all the circumstances, is to be allowed no discretion.

I understand from the debates in another place that the effect of subsection (3) as it stands will apply to some 5,900 persons a year, first offenders, who at present are being sent to prison and do not come into any of these categories (a), (b), (c), (d) and (e). So it is a fairly substantial slice of the total prison population. Some 44,000 are sent to prison each year, and this will deprive the courts of any discretion in the case of nearly 6,000 a year. Yet it may be perfectly plain to those who have heard the case that some of those accused ought to go to prison for six months, and to go to prison straight away and not have their sentences suspended and in that sense be given another chance.

The Government, who obviously will not have heard the case, rule that out in advance. Is it any wonder that the Magistrates' Association and almost all the bodies that can speak with authority on these matters are against this restriction of magistrates' discretion by subsection (3). They realise well from experience that that there are some who ought to go to prison forthwith. They realise that the public will now, if this clause goes through unamended, be exposed to the sort of offender who knows that he cannot be sent to prison if he commits the crime he is tempted to commit. His criminal friends can say to him, and say to him with truth, "It's all right. You go ahead, you come in with us; you do what we want you to do. You can't go to prison because the Government have so declared and Parliament has ordained it." That is one disadvantage.

Another is that magistrates will be forced against their will to commit people to quarter sessions so that a longer sentence can be passed if they are absolutely convinced that the person in question ought to be sent to prison immediately and yet are prevented from doing that by this clause. I understand, again from the debates in another place, that nearly three-quarters of the people who will be affected by subsection (3) in the sense that they cannot be sent to prison forthwith under it, have on current records committed offences which would render them liable to longer sentences than six months. It, therefore, seems to me perfectly plain that what is likely to happen is that the magistrates' courts resentful of not being allowed by Parliament to pass a sentence of immediate imprisonment which they think is right, will tend to commit these accused to quarter sessions in the hope that quarter sessions will pass a longer sentence on them. I cannot see that any purpose of justice whatever is served by that. It will merely clutter up the business of quarter sessions.

This is a wholly wrong way to proceed—this method of robbing the magistrates of their discretion. Let me give a parallel. It is, I believe, generally accepted at the present time that there are large numbers of university students who would be serving the public national interest better if they were to have a shot at degrees in engineering or some other branch of science instead of reading for degrees in English subjects. But the right way of coping with a situation like that, if it exists, is not to make it practically impossible for any young man or woman to read English but to proceed in a different way, and above all to make it better known what is the national interest. Here the right course is to make it better known to the courts that short prison sentences on first offenders are a mistake. The right course for us in this House, I submit, is to follow either my Amendment, which would exclude subsection (3) and the consequential subsections entirely, or to adopt some such method as embodied in the subsequent Amendment by the noble Lord, Lord Chorley, which maybe we can debate at the same time. I have no desire whatever to wreck this plan for suspended sentences. My concern is that suspended sentences shall be passed in the right circumstances, and where circumstances demand a sentence of imprisonment that is not suspended the court should not be frustrated from imposing it by anything in the law.

The Bill, I submit, cannot be left as it is. Maybe after hearing the discussion to-day the Government will submit their own Amendments on Report. To my mind it is the greatest pity that they have marred a valuable innovation by over-enthusiasm. Once again I say what a pity it is that the Government brought to an end the Royal Commission on the Penal System, which had already sat for two years, because had that Commission been able to complete its work we should have had a well thought out and thoroughly objective plan for a suspended sentence proceeding from a body which had given it long and profound thought. As it is, we have a scheme which is marred by this blot upon it, and I ask your Lordships to agree that we should not deprive magistrates wholly, as this clause would, of their power to send somebody to prison forthwith for six months if the magistrates themselves are convinced, having heard the case, that that is the right course in the public interest. I beg to move.

Amendment moved—

Page 21, line 35, leave out from beginning to end of line 31 on page 22.—(Lord Brooke of Cumnor.)

3.10 p.m.

LORD CHORLEY

I accept the noble Lord's suggestion that I should speak at this stage. It will certainly save my speaking twice, because in any case I wanted to speak on his Amendment. A good deal of what I have to say on the noble Lord's Amendment is pertinent to the one which is down in my name. I should like to say how much I agree with him when he indicates his approval of the proposal to introduce this new type of sentence, the suspended sentence. It is part of a trend which has been going on since the end of the war, and quite rapidly over these last years, towards a wider and more sophisticated range of remedies.

At the beginning of this century the remedies open to courts of law in relation to the punishment of offenders were most restricted. The great Act of 1948, which I had some small part in taking through your Lordships' House, introduced some new and valuable remedies, and this process is carried substantially further in the present Bill. I should at this point like to pay a tribute to the great work which has been done by a fellow magistrate, Mr. Brian Layton, in propagating this proposal over the last few years. He has not succeeded in converting all his fellow magistrates to his ideas on the subject, but certainly he has given it an important airing, and many of us have been persuaded by his views. I think, too, that they have had some influence in the Home Office itself.

On the other hand, I should like to say that I was already passing suspended sentences in my own court of quarter sessions before I heard of Mr. Brian Layton's proposals. This was not by any means unique, because suspended sentences were being passed by courts of quarter sessions, and I believe also by recorders, up and down England, although perhaps not in great numbers, until the Court of Criminal Appeal ruled that we had no power to pass them. I thought at the time that that was a rather unfortunate ruling. The great pride of our English Common Law—and, after all, sentencing is, or was, part of the Common Law—is that it is an elastic system and should be able to adapt itself to the requirements of a modern age.

As I have already indicated, and as the noble Lord opposite agrees, the suspended sentence is a most useful type of punishment. I think it was a great pity that the Court of Criminal Appeal ruled that we had no power to use it. But, of course, that ruling having been made, we had to stop the practice. I cannot say that I did it a great deal. I cannot say that I feel that the suspended sentence is a solution to all our problems—far from it. But, as I have already indicated, it is a useful extension or development. My court found it particularly helpful in the case of middle-aged or rather elderly men, whom one did not want to send to prison, straight off at any rate, and in regard to whom the usual remedy that one would use in the case of a younger man, putting him on probation, was not altogether appropriate. It is difficult to put a man of, say, fifty or more years, or even one in his forties, under a young probation officer. Many of the probation officers now coming forward are quite young men, and in many cases it is not satisfactory to make a probation order in the case of a middle-aged man. But the suspended sentence was really quite useful, and in the few cases in which I had experience of it I think it worked every time.

As my noble and learned friend on the Woolsack pointed out in his Second Reading speech, for many people it is undoubtedly more effective than the conditional sentence, which probation officers and others are saying is just as good. I cannot accept that view. I think that the suspended sentence has a number of advantages over the conditional sentence. It cannot be said that this proposal has received general favour among magistrates, or indeed among probation officers and others who are greatly concerned with the administration of the criminal law, but I think it has received a sufficiently substantial amount of favour to make it well worth the Government going on with with the proposal and trying it out.

The lack of favour has been particularly evident in relation to subsection (3) with which these Amendments are concerned, which deprives benches of justices of the peace of the discretion to impose a straight term of immediate imprisonment where they consider that is the appropriate punishment in the particular case. I am in agreement with what the noble Lord, Lord Brooke of Cumnor said—indeed, I and others of your Lordships have said it in this House before—about keeping men out of prison for as long as possible and as far as possible. I think that has been greatly in the minds of benches up and down the country over recent years.

Obviously there are cases where this is impossible. Unfortunately, there are cases where it is not possible to keep people out of prison, and the clause itself establishes a number of exceptions on that basis. My own view is that it is a mistake to make something hard and fast. So far as they go, these exceptions are obvious ones, and I think we all agree with them and accept them. But I cannot see that they cover all possible cases, and it is a pity to put a useful innovation of this kind in a straitjacket and tie it up in the way done in the Bill. As the noble Lord has said, there are quite a number of cases which are not in the exceptions but which come before magistrates' courts, in which the only effective remedy is to send the man to prison at once. I am sure that the justices will feel this, and I am sure the noble Lord is right in saying that they will say: "This man ought to go to prison. We would send him for six months, but we cannot. We have to send him forward to quarter sessions".

We at quarter sessions already get a number of these cases. I wonder if it has occurred to anyone in the Home Office that every time one of these cases comes to quarter sessions it costs the taxpayer a lot of money. At petty sessions the offender is dealt with by the police, who do it in the ordinary way of their work. But when the case comes to quarter sessions it has to be taken by a barrister, and up and down the country this means bringing a man from a local Bar which may be a long way away. Not only is it necessary to bring a barrister to quarter sessions, but a solicitor has to be there as well. Probably a defence certificate will be applied for, and it will be granted; and, before you are aware of it, you are spending £100, or even more. By the time you have been spending this up and clown the country it is going to cost the taxpayer a great deal of money. This is an aspect of the matter which has not been sufficiently developed. Indeed, it is an aspect of the administration of criminal justice in this country at the present time which will have to be seriously tackled before long, because the costs are simply rocketing. Anyone who has engaged in it knows perfectly well that is true.

If this method of sending a man forward to quarter sessions is not used it will mean, in many of these cases, that fines will be resorted to because, to be quite frank, justices of the peace do not like being told from Whitehall, or even from Parliament, how to do their work. I am sure many of them will say, "Well, we had better impose a pretty swingeing fine in this case as we cannot send him to prison". This is not altogether satisfactory, because fines are difficult and expensive to collect. Very often one spends more in trying to collect the fine than it is worth. The type of criminal involved in these rather small cases is the sort of man who moves about a good deal, and in that way one can spend a lot of money and valuable time on what is really a wild goose chase. That is another disadvantage.

All these are points in favour of Lord Brooke of Cumnor's Amendment, and I must admit that I have quite a bit of sympathy for his point of view. But, on the other hand, I think he goes too far. Although over the past years undoubtedly magistrates on the whole have come to realise that short sentences are not good, that is not completely realised, and I think it is right that benches should, so to speak, be pulled up and made to think more than once, and even more than twice, before they send a man to prison in this petty type of criminal case. I think the way to do that is not to take the method suggested by the noble Lord, Lord Brooke of Cumnor, and to eliminate this clause altogether; it is to pursue the method which has in fact been pursued in the Criminal Justice Act 1948, to which I have already referred in connection with young offenders.

Before a court may send a young man of under 21 to prison it has to satisfy itself that there is no other effective thing it can do with him, and the Statute lays down the sort of considerations which the court has to bear in mind in coming to that conclusion. Undoubtedly this has worked. It has certainly worked in the courts of which I have personal experience, and I have no doubt at all that if my Amendment were accepted it would work to a much larger extent. The words which I have used are a modified version of the words which actually appear in the Criminal Justice Act 1948, and I suggest to your Lordships and to the Government that this would be a useful way out of the dilemma and that we should adopt a similar policy in this type of case.

LORD HAMILTON OF DALZELL

I support the Amendment proposed by my noble friend, Lord Brooke of Cumnor, which I think on the whole is preferable to that proposed by the noble Lord, Lord Chorley, although I see the force of what he has said. I am grateful to the noble Lord, Lord Chorley, for what he has said about Mr. Brian Layton, who is a col- league on the bench on which I serve, but I am afraid that I am one who is not convinced by Mr. Layton, and on balance I am against the whole idea of the suspended sentence, for the reasons which I gave in the debate on Second Reading. I will not weary your Lordships with them again, because I realise I am in a minority in this regard and therefore I have not pursued the matter. But I am anxious that we should not diminish such value as the system may have, and therefore I am in favour of leaving as much discretion as possible to magistrates.

It has for long been the general complaint of magistrates, and indeed of everybody concerned with criminal justice, that insufficient alternative methods are available and therefore in principle any additional method of treatment must be useful. But I am quite clear in my own mind that any new system, to be valuable, must be flexible, and the part of the clause which my noble friend proposes to leave out does diminish the flexibility of this system. It seems to me to be part of the general policy of tying the hands of the magistrates when in fact they are most anxious to make full use of any sensible alternative method of treatment that is offered. Last Monday the noble Lord, Lord Royle, was indignant when he thought the suggestion had been made that magistrates are not to be trusted, but it appears to me that all the Government's thinking is based on this assumption. We had examples of this in the part of the Bill dealing with bail, and we have it again here. I believe it is a mistake to impose this bar on the discretion of magistrates, and I think it would do nothing to improve the suspended sentence.

LORD PARKER OF WADDINGTON

May I say at once that on the whole I am in favour of the suspended sentence, on the ground that the more weapons one has in one's armoury the better even if they are not often used? I doubt whether the suspended sentence will be used very often, because now that conditional discharge—and I welcome this—has been extended from one year to three years it will be perfectly possible (and indeed many judges already do it) to say to a man, "I had in mind to send you to prison for six months, but on reconsidering the matter I have come to the conclusion that it can be met by a conditional discharge, and if you do nothing wrong you will hear nothing more about the matter. If you do commit another offence you will know from what I have said the sort of sentence you will get. "In other words, a suspended sentence adds nothing unless it can be made completely automatic on the commission of another offence, and unfortunately I think that is quite impossible.

I welcome suspended sentences as yet another weapon in one's armoury but I object strongly to making any part of the suspended sentence a mandatory sentence. Certainly the Judiciary have always found that when a sentence is made mandatory it occasionally leads to injustice, although, of course, not in every case, and there is nothing more frustrating than being unable to do what is obviously the right thing because the Statute has said you may not do it.

One can think of many anomalies that may arise. One was referred to by the noble and learned Viscount, Lord Dilhorne, in the Second Reading debate. There may be two young men, one 19 and the other 21, both committing an offence for which they ought to receive what is often referred to as a "short, sharp sentence". A detention centre is available for the 19-year old and he is duly sent there, and quite rightly so; but when it comes to the 21-year old there is, of course, no detention centre and it is a matter of, let us say, six months' imprisonment, and immediately it has to be suspended. One only has to think of that to see the grievance under which the 19-year old would suffer on going to a detention centre when the other youth—perhaps his own brother—gets a suspended sentence. Nor would it be right to say, "We will give the 19-year old a prison sentence and suspend it so that they both get prison sentences", because I think the idea of somebody under 21 being sent to prison, even when the sentence is suspended, is something which not one of us would approve. Accordingly, one gets an anomaly there, working grave injustice and causing a sense of grievance.

Then again with driving offences one so often gets cases—and I wish I had kept the figures—of taking and driving away and driving whilst disqualified. One has perhaps five offences of that sort dealt with by magistrates by conditional discharge, by probation, or by fines. Even- tually, the time comes when the justices say, quite rightly in my judgment, that the man must go to prison. Immediately they have to suspend the sentence, unless there are two counts which enable them to give more than six months. From the justices' point of view it really means that the more lenient they have been in the past, the more lenient they have to go on being at least once more because they have to suspend the sentence. I mention these matters only as showing the difficulties which might arise.

On a point which the noble Lord, Lord Brooke of Cumnor, has already made—which is a very real one for justices who are faced with a conviction—that a six months' suspended sentence does not meet the case, and that they will inevitably commit with a view to borstal or imprisonment, as the case may be, that again would be a lamentable result. Subsection (3) appears to be based on one or other, or both, of two ideas. One is that the prisons must be freed of some of their population at all costs—in other words for administrative convenience, which I venture to think is no ground at all or, secondly, the idea that magistrates are not doing their duty and are sending people to prison unnecessarily. From what I have seen, I consider that magistrates all over the country will strain every nerve not to send a man to prison

I have looked at the figures for 1964, and it is to be noted that in that year magistrates dealt with 1,245,227 prisoners, which includes summary offences and indictable offences, of whom under 2 per cent. were sent to prison. That does not seem as if imprisonment was being used a great deal, and quite clearly that 2 per cent. will include a great number who would qualify for prison under paragraphs (a) to (e). Accordingly, there is little evidence, if any, that magistrates are sending people to prison unnecessarily. If they are, perhaps it can be said that there are good magistrates and bad magistrates, and that some perhaps do send people to prison unnecessarily, but I am quite convinced that, even if that is the case, this is not the right way to deal with it. Magistrates are only too ready to learn, and if any of them appear to be sending people to prison unnecessarily they can be told.

If something is to be put into the Bill (which I think is unnecessary) I should have thought that it would be along the lines of the Amendment in the name of the noble Lord, Lord Chorley. The emphasis there is to draw the magistrates' attention to the fact that they may send somebody to prison only if any other remedy is inappropriate. Before deciding, let them have a social inquiry report, for which provision is already made in a later clause of the Bill, Clause 46. Let it be provided that they may not send somebody to prison, unless they are satisfied that any other remedy is inappropriate, their having seen a social inquiry report and having heard all the circumstances of the case; and if need be let them state their reasons, in the same way as they have to give reasons for refusal to grant bail, as is already provided in the Bill. I feel very strongly that this jurisdiction ought to be left completely flexible and that the magistrates discretion ought not to be fettered in any way, unless it be to emphasise that somebody should be sent to prison only when any other remedy is inappropriate.

LORD ROYLE

Before the noble and learned Lord sits down, may I ask whether I heard him aright? When he referred to the number of cases before magistrates' courts he mentioned a figure of 1,250,000 prisoners in the year 1964. Is it not the fact that many of them were merely defendants and that merely technical offences were involved in which imprisonment would not have been appropriate?

LORD PARKER OF WADDINGTON

I am obliged to the noble Lord for pointing that out. "Prisoners" was the wrong word. They were people all of whom were found guilty.

LORD ROWLEY

I had not intended to speak on this Amendment, but I am bound to say that I have been very much influenced by the remarks made by the noble and learned Lord the Lord Chief Justice. I think that, in effect, he was suggesting that if we are to make any changes in the law we should have regard to the Amendment proposed by my noble friend Lord Chorley. I hope that it will be possible for my noble friend in charge of the Bill to have regard to the suggestions which are contained in the Amendment and the remarks made by the Lord Chief Justice, because I feel it is desirable that there should be some sort of discretion. I feel that the clause as it stands is somewhat rigid, and the flexible approach which was suggested by the Lord Chief Justice should be considered very seriously by the Government.

3.37 p.m.

LORD STONHAM

May I reply at once to my noble friend Lord Rowley by saying that of course I shall have regard to the Amendment of my noble friend Lord Chorley; and inevitably we shall have great regard, as will the whole House, to anything said by the noble and learned Lord, Lord Parker of Waddington. But equally I would express the hope that my noble friend Lord Rowley will have regard to the reply I make to the speeches that have been made and will then, at the end of the day, weigh it all up as to where the rights of the matter lie.

In the view of the Government, these Amendments to remove from the Bill the provision for mandatory suspended sentences would, in large measure, destroy one of the Bill's main objectives—a reduction in the number of short prison sentences and, in particular, the reduction of the number of short prison sentences passed on first offenders. In the course of the debate all noble Lords, except the noble Lord, Lord Hamilton of Dalzell, have expressed themselves to be in favour of the principle of suspended sentences. It is true that the noble and learned Lord the Lord Chief Justice had some reservations, but broadly speaking he, too, is in favour of the principle. The noble Lord, Lord Brooke of Cumnor, went further and said that he was strongly in favour of avoiding short sentences whenever possible. So at least we start with some common ground.

The drastic nature of the proposal made by the noble Lord, Lord Brooke of Cumnor, can be judged by the fact that in 1964, out of 44,000 persons received into prison under sentence, no fewer than 22,500 had been sentenced to six months' imprisonment or less. Despite the authorities quoted by the noble Lord, Lord Hamilton of Dalzell, it is clear that there has been almost unanimous support in both Houses for a reduction in the number of short sentences. In the Government's view, the best, and in our submission the only, effective way to achieve this is by the introduction, subject to the conditions set out in the clause, of mandatory suspended sentences.

I want to make the point that in judging the need for them the test is not whether the short sentences are necessary but whether it is necessary for them to be immediately effective rather than suspended. In the Government's view the suspended sentence has substantial advantages over the immediate short sentence: first, because a sentence of six months or less, meaning at most four months in prison, is too short to give an offender effective remedial treatment; secondly, because, as the noble Lord, Lord Brooke of Cumnor, said, the unnecessary imposition of short terms blunts the deterrent effect of imprisonment.

There is a third point which has not been mentioned but which is of importance to those of us who are concerned with the prison service. When half of all sentences are short term, the reception and early discharge of large numbers of such prisoners puts an enormous strain on prison accommodation and staffs. Proper attention cannot be given to either security or training. To-day we have 9,000 men sleeping two or three in a cell designed for one. In some prisons overcrowding is such that even sewerage becomes an anxiety. In some prisons we have had to increase the jobs which can be done sitting down on a chair because there is not enough room for anything else. Under such conditions it is impossible to justify sending men to prison for comparatively minor crimes, if they can be dealt with by other means.

Again, a short sentence utterly disrupts and may destroy the social and economic life of an offender. A suspended sentence does not do that. And if, in selected cases, on penal grounds a short sentence immediately applied has no advantage over a suspended sentence, then it is clearly right, it is a matter of simple justice and it is in the interests of society as a whole, that the sentence should be suspended. Indeed, the advantages of the suspended sentence are so great that in the Government's view a substantial proportion of the short sentences now imposed could and should be suspended.

There was an implication in the debate that we were asking for the mandatory suspension of short sentences when it was either a very serious crime or when the person had a bad criminal record. But that is not so. We are not asking for mandatory suspension of short sentences when the prisoner has previously been to prison or borstal. But we say that if the offender has no criminal record he is not set in his criminal ways, and if his offence merits only a short sentence it should be suspended, for the reasons I have already given and because an immediate sentence is, generally speaking, unnecessary as a deterrent. By our way we may make a man, instead of making a recidivist.

Even for the offender with a previous record, his first prison sentence, if at all possible, should not be a short one since, again, it removes for all time any deterring apprehension which he might have about prison. In our view, these mandatory provisions are crucial to a reduction in the number of short sentences. The noble Lord, Lord Brooke of Cumnor, gave some figures and I shall give some more. Of the 22,500 in 1964 which I mentioned, 7,400 had not previously served a custodial sentence, and of these 5,900 were convicted of an offence not involving personal violence or sexual assault. It is the Government's case that all those 5,900 sentences are now unnecessary.

I ask noble Lords who have not previously considered this question in detail to consider what kind of offender it is whose sentence would have to be suspended under our proposals. He will not be guilty of a serious offence; otherwise he would merit a sentence of more than six months. He will not have a very bad record, because he has not been to prison or borstal before. His offence will not involve violence; otherwise the sentence would not have to be suspended. Most probably he would have been convicted of a comparatively minor offence against property.

What will be lost if such a man has his sentence suspended instead of going to prison at once? He will have to keep out of serious trouble for up to three years. If he succeeds the suspended sentence will have proved its value. If he fails the sentence is likely to be executed and the deterrent of actual imprisonment will therefore be invoked, with perhaps a bit added for the second offence. In the first case the community, the offender and his family will have benefited. In the latter case no one will be worse off than if the sentence had been executed immediately it was imposed.

A suspended sentence will not be a "let off". The clauses have been drafted to secure the maximum deterrent impact. They give the suspended sentence a far greater deterrent effect than probation or—with all due respect to the noble Lord the Lord Chief Justice—conditional discharge. And there is no question that a man can go on committing offences, secure in the knowledge that he cannot be sent to prison without first being given a suspended sentence, because he can be given an immediate sentence of more than six months. The noble Lord, Lord Brooke of Cumnor, said that 75 per cent. of the 5,900 offenders in 1964, whose short sentences would have been suspended under subsection (3), could have been sentenced to more than six months. That is perfectly true. This is an argument for the mandatory suspended sentences, because the magistrates can still commit a man for a longer sentence if in their view his crime warrants it.

It comes down to this—and on this I think there will be general agreement. There has been only one argument put forward against the Government's policy. The noble Lord, Lord Brooke of Cumnor, said that the Government are doing the right thing in the wrong way, and almost every speaker—and my noble friend Lord Rowley was much impressed with this—relied on the discretion of magistrates; the discretion of magistrates would be enough. That is what the noble Lord, Lord Brooke of Cumnor, and my noble friend Lord Chorley argued, and it is virtually their only argument; that we could safely leave it to the courts to achieve the objective which we have in mind. The noble Lord, Lord Brooke of Cumnor, said that we were robbing the magistrates of their discretion. My noble friend Lord Chorley indicated that justices do not like being deprived of the opportunity of sentencing a man to prison.

LORD CHORLEY

The noble Lord misrepresents me. Do not get too emotional: and deal with the arguments.

LORD STONHAM

We are not depriving a magistrate in the appropriate case of the right to send a man to prison. Of course not. If my noble friend will carefully examine paragraphs (a) to (e) he must agree with that. In subsection (1) we give the courts discretion to suspend sentences of up to two years, and we very much hope that they will use this power pretty freely in appropriate cases. But we consider that the mandatory provisions are essential for the shorter sentences: first, because if Parliament decides to give the courts a new power to suspend sentences it is for Parliament to decide the consequential changes in the pattern of immediate prison sentences, rather than for the pattern to emerge from the decisions of individual courts all over the country in a host of individual cases. Inevitably—and I think the noble Lord, the Lord Chief Justice, will accept this—there would be a variation between different courts, which we think would be both unjust and intolerable.

Secondly, Parliament stipulates the maximum penalties for offences and the minimum qualifications for certain penalties. It is therefore right for Parliament to stipulate that certain categories of offenders may not be given an immediate short prison sentence. The Government's view is that when the suspended sentence is available a short sentence will virtually never be necessary in the case covered by the mandatory provisions. If, as I believe, all Parties in Parliament agree with the Government that certain categories of short sentences should not be imposed, there is no way of making sure of this other than a statutory requirement, and there is no logical ground for distinguishing between magistrates' courts and the higher courts in this matter.

Finally, I come to the Amendment of my noble friend Lord Chorley, which appears to have an appeal to a number of noble Lords. He proposes that all sentences of six months or less should be suspended unless the court thinks it would be wrong to do so. This, of course, is less drastic than the proposal of the noble Lord, Lord Brooke of Cumnor; and it has an appeal until one goes back and examines history a bit. Certainly in our view it would emasculate the clause. In considering the proposal of my noble friend Lord Chorley, I would ask your Lordships to consider the operation of the First Offenders Act. This is particularly relevant for two reasons: first, because Lord Chorley has embodied in his Amendment (and, in parts, in almost identical wording) the instructions which are given to the courts in the 1948 First Offenders Act. If my noble friend will refer (as I am sure he did when he drafted his Amendment) to Section 17(2) of the Criminal Justice Act 1948, he will find these words: No court shall impose imprisonment on a person under twenty-one years of age unless the court is of opinion that no other method of dealing with him is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to his character and his physical and mental condition. We have now had that for 19 years in respect to persons under 21, and it was so successful that it halved the number of adolescents sent to prison.

So, in 1958—and this is the second reason why this is relevant to this particular discussion—I was sponsor in another place of the First Offenders Act; and for the first time in nine years I will read something that I have previously said—on May 12, 1958, when moving the Third Reading of the First Offenders Bill. I referred to what I have just read out from the 1948 Act, and I said that our proposals in the Bill applied to adults what had applied to adolescents since 1948. I then said: I am confident that it will be equally successful in reducing the number of men sent, in my view often unnecessarily, to prison".—[OFFICIAL REPORT, Commons, 2/5/58, col. 727.] I also find that I quoted—I must have had some prescience about this—no fewer than four noble Lords who had spoken in debates at that time upon this particular subject, including one noble Lord who said: A very large part of our prison population consists of men who ought never to have been sent there".—[col. 728.] This was in May, 1958; and I referred to the fact that the number in prison and borstals was then 24,500, the highest figure ever, and that there were nearly 4,500 men confined three to a cell. To-day the population is 35,500, and the number confined two or three to a cell is 9,000.

I concluded my speech with these words: Without increasing crime or adversely affecting the course of justice, the Bill will reduce our prison population and will further the course of rehabilitating those who must still be sent to prison. I believe that it will bring greater equality in the treatment of first offenders. Above all, it will save many thousands of innocent people from the stigma of associating with a husband, father or brother who has served a prison sentence". [col. 731.] I think my moving of that Third Reading proves that I was sufficiently confident in the discretion of magistrates.

So far as first offenders are concerned, we have had it now for over nine years—exactly the same discretion, exactly the words which the noble and learned Lord the Lord Chief Justice applauded in my noble friend's Amendment. My noble friend now proposes that we should accept an Amendment which in fact embodies exactly what is in the 1958 Act and what has been there for nine years. In other words, he advocates no change.

LORD PARKER OF WADDINGTON

May I intervene? As I understand the noble Lord, the 7,000, I think it was, that he said were being sent to prison for the first time were not necessarily first offenders. There is all the difference between a first offender and a person who is sent to prison for the first time with a long record of previous offences in respect of which he has been leniently dealt with.

LORD STONHAM

I appreciate that. In what I have been saying for the last three or four minutes I have been referring to the First Offenders Act. I was indeed referring to first offenders, and I am still referring to first offenders. How has that Act worked? This is a relevant comparison in relation to what we are asked to do now. How has it worked? In the five years before the 1958 Act, the percentage of first offenders sent to prison by magistrates' courts, expressed as a percentage of all offenders sentenced to imprisonment by those courts, dropped from 17 per cent, to 11 per cent. That was in the five years before the Act. In the four years after the Act, it dropped only from 11 per cent. to 10 per cent. This was when it was brought to their notice forcefully. I think the exact words of the noble Lord, Lord Brooke of Cumnor, were, "The right way is to bring this forcefully to the attention of courts, and particularly of magistrates' courts". I suggest that an Act of Parliament is about as forecful a way as one can find of bringing these matters to the notice of courts, but all that that forceful method did was to reduce the proportion of first offenders sent to prison from 11 per cent. to 10 per cent.—which means, in my submission, that they virtually ignored the Act.

For these last nine years, so far as first offenders are concerned, the courts have been charged and armed with precisely the same discretion as that with which Lord Chorley now proposes to arm them. In other words, he proposes no change. Does my noble friend or anyone else believe it would achieve any result at all? I think that is the complete answer to the noble Lord, Lord Brooke of Cumnor: that in the nine years since the passing of the First Offenders Act, during which the courts have been required by law not to send a first offender to prison unless they were satisfied that no other method of dealing with him was appropriate, they have used that discretion to send 6,000 to 7,000 first offenders to prison every year, and of that number some 5,000 went to prison for six months or less. These are the only ones we are talking about.

It is perfectly true—and I am glad that the noble and learned Lord the Lord Chief Justice interrupted me and pointed it out—that our clause refers to those sentenced to their first custodial sentence; that we make exception with regard to people who have been to prison or borstal before. This is their first custodial sentence. Of course, a boy may have been to an approved school; he may have been put on probation; he may have been sent to a detention centre; he may have committed quite a number of offences and for some of them have been fined. That is all perfectly true. What we are struggling to do is to avoid, if we possibly can, unless the offence is too serious, starting them in prison.

I would ask your Lordships to agree that those short-sentence first offenders whom I mentioned should not have been sent to prison; and also to agree that they must not be sent in future. I know from the evidence of nine years' experience of the First Offenders Act that if we want to achieve this objective we just cannot leave it any longer; we cannot go on for another nine years and then say that the discretion has not worked with these people. We must decide. I ask your Lordships to judge this matter on the facts, not on any kind of any Party predilection; and I am sure you will. On those facts I think it is quite clear that we must reject this Amendment.

4.1 p.m.

VISCOUNT DILHORNE

The noble Lord has made a long speech in support of a thoroughly bad proposal in this Bill. He has asked your Lordships to judge this matter on the facts. I shall do likewise; but I hope to deal only with facts that are relevant and not introduce an extraordinary mélange of argument and fact in an effort to justify something which is really a blot on an otherwise good Bill. The noble Lord sought to draw an analogy between what has happened with regard to first offenders and the provisions within this clause. He asks one to assume that because the percentage has dropped only from 11 to 10 (I think it was) in relation to first offenders, therefore magistrates have been exercising wrongly the power entrusted them by Parliament. I ask your Lordships not to accept that conclusion at all.

In the course of that long speech which fell from the lips of the noble Lord, Lord Stonham, there was not a single word about the need to maintain law and order. In the course of that long speech he went on to suggest that, really, crimes against property did not matter so very much—and, particularly, if they were only those crimes against property for which the proper sentence would be six months' imprisonment. Some of those crimes against property—for example, theft from poor people who cannot afford the loss—cause far greater suffering than some of the bigger crimes.

The noble Lord began his speech by saying that if this Amendment were carried out we should destroy one of the Bill's main objectives—not to maintain law and order; but to relieve the prisons of people serving short prison sentences. We are told that the accommodation is insufficient, that the strain on prison accommodation and staff is very great, that there is anxiety about sewerage systems, that sometimes there is not enough room for people to work sitting down. Is all that a reason for depriving magistrates of their discretion to impose a sentence which they consider to be right? That is an indictment of incompetence on the part of the Home Secretary and of the Home Office in not providing sufficient accommodation. Of course, in a short sentence it is difficult to provide remedial treatment. If that is the line of argument that is being followed, then the noble Lord is really suggesting that longer sentences should be passed than are now passed for the same offences. Of course, there will be variation between courts; there always is—and there is variation between offences. Your Lordships ought not to judge all these matters just by cold statistics; you must have regard to the circumstances of the case.

What are we really discussing here? It surely is whether magistrates should have any discretion at all to pass a sentence of six months. I ask the Committee to bear in mind that that is the maximum prison sentence that magistrates can pass on summary trial of indictable offences. From what the noble Lord has said one might have thought that all these people sentenced to prison for six months had never been in trouble before. In my experience, magistrates nowadays really fall over backwards to avoid sending people to prison. The offenders come up; they are put on probation, and even while on probation (I have seen it happen) they have committed an offence and are again put on probation. I am sure it is completely wrong to suggest that magistrates, unlike other people, do not realise that short prison sentences certainly should not be imposed if any other way is adequate to deal with the individual. But there comes the time, as the noble Lord has just said, when they have tried everything. They find perhaps that the offender is too old to send to detention; that he is too old to be sent to borstal. In such a case there is only one thing left; and that is prison, a short prison sentence, in the hope that that will do the trick. That is why those sentences are passed.

But the noble Lord, Lord Stonham, says, "No". He says that one of the main objectives of this Bill is to stop magistrates passing that sentence which, in the light of that man's record, they think the right sentence to pass—unless he comes into the other particular categories mentioned in this subsection: that it is a minor offence against property; that he has repeatedly stolen only small sums; that he obtains only a small sum of money by false pretences. The noble Lord says that those are only minor crimes against property; that magistrates should not send a man to prison for them. The noble Lord says "No, he must have another suspended sentence"—and then, at the end of the day, if he commits another offence during the time of that suspended sentence he may not have to serve at all the sentence which has been suspended. I really do not think that this will do.

I referred to this matter in the debate on Second Reading, and I said I thought that this clause, and the question raised by it, were far more important than that dealing with majority verdicts; because this covers a far wider range. By all means let us give guidance to magistrates. Let us help them to reach the right conclusion; let us emphasise the undesirability, as a general rule, of short sentences. But I should not be one of those who say that a short sentence is never right; because sometimes the desired purpose can be achieved by a short sentence and it is not necessary to pass a longer one to achieve the same purpose. I do not intend to repeat all that I said on Second Reading, but I find the arguments put forward by the noble Lord wholly unconvincing, wholly unrealistic and wholly ignoring the need to maintain law and order and to let the magistrates have the power necessary for the maintenance of law and order. If my noble friend proposes to divide the Committee—and I hope he will—I shall certainly support him.

LORD MACPHERSON OF DRUMOCHTER

May I ask the noble Lord whether he is suggesting that the future method of treatment of offenders should be based on the availability of space in the prisons and not on the way the courts consider most suitable?

LORD STONHAM

Nothing I have said in my speech could possibly be interpreted in that way. But I do say that it is a factor that noble Lords should consider, if it means sending somebody, as I put it, unnecessarily to prison. I made that clear in my speech. Although the noble and learned Viscount, Lord Dilhorne, is very good at making the kind of speech he has just made he did not face all the facts, and certainly he did not interpret the clause in the way it reads in the Bill. It is not true that in this way we are depriving magistrates of the ability they now have to help in the maintenance of law and order. The clause specifically says that if anyone has been to prison or to borstal before, then the magistrates' suspended sentence does not apply. It specifically says that if the offender before the court has committed an offence consisting of assault or threat of violence, or possessing firearms, and so on, or indecent conduct to a person under 16, again the mandatory sentence does not apply.

The noble Lord, Lord Brooke of Cumnor, made clear at the beginning of his speech that he was in favour of suspended sentences, rather than medium sentences, wherever that was possible. In the submission of the Government, a short sentence should be avoided when possible, because it is useless to the offender and to society but if the offence is one which the magistrates think can be met only by imprisonment their remedy is still available. They can send the case to a higher court for sentence—

VISCOUNT DILHORNE

So that the noble Lord is saying—

LORD STONHAM

Let me finish the sentence—and that may well mean that the man will get a longer sentence than six months. Probably that would be better, because it would not be useless. The fact that you are not going to have short sentences on conviction does not mean that some people may not have longer sentences.

VISCOUNT DILHORNE

The noble Lord is suggesting that people should be committed for trial with a view to the imposition of a longer sentence than the magistrates thought the case warranted: otherwise the magistrates could not send them to prison at all.

LORD STONHAM

The noble and learned Viscount was envisaging a very serious offence—

VISCOUNT DILHORNE

No, he was not.

LORD STONHAM

A more serious offence then, where the maximum sentence of imprisonment was more than six months.

VISCOUNT DILHORNE

With great respect, I was not. I was dealing with the particular case where the discretion is being taken away, the case where the magistrates are seeking to pass sentence up to six months, which is the maximum sentence for a case on summary trial for an indictable offence. That is all I was dealing with. The noble Lord, Lord Stonham, made a very long speech trying to support his measure. I do not want to pursue the matter, I think that we should divide.

4.13 p.m.

LORD CHORLEY

I should like, shortly, to make three points in reply to my noble friend. I do not think it is right to take these figures as from 1959 or 1958. You have to go back to 1948, as I did. The noble Lord showed that if you go back to 1948 it is indicated that this instruction to the bench that they must take these things into account has been very effective. The majority of first offenders are under 21, and this operation started in 1948. Surely it stands to reason that you have to take a conspectus over the whole period and not start in 1958. Does not this suggest that magistrates have been scrutinising these cases and dealing with them properly and effectively?

My next point is this. In effect, the noble Lord said that all these 5,000 who are outside the categories mentioned later ought not to be sent to prison—none of them. He used very strong language about this matter. There is not the time to go into all these cases which are not mentioned in the later categories, but there are some cases which continually come before the criminal courts—for example, motoring offences. There are three or four types of motoring offences where nothing effective can be done—for instance, where a man who has been disqualified from holding a driving licence nevertheless drives a vehicle—except impose a short prison sentence. These are important and serious offences but the offenders will not be sent to prison for a long sentence. They cannot be dealt with effectively by fines, and they are not referred to in the later provisions.

I have not mentioned all types of cases. There are several other kinds of motoring offences which may be dealt with only by means of a short term of imprisonment. Not all these short terms are ineffective. If the noble Lord will look at the statistics (it has been one of my interests for many years to study these things) he will find that in a large number of such cases the short sentence has a better curative effect than a long sentence. The number of people who do not come back after being sentenced to six months is, in proportion, much larger than the number who do not come back after being given a sentence of three years. You cannot deal with these things academically; you have to deal with them from experience.

My last point against the Government's case is that all knowledge and common sense about these matters does not reside in Whitehall. Many of us have spent a great part of our lives dealing with them. The noble Lord is asking your Lordships to reject the experience of magistrates, chairmen of quarter sessions and recorders. Their organisations are against this proposal. The probation officers and the people who are doing the job are against it. It used to be an axiom of Government to trust the man on the spot. Perhaps that attitude was taken too far, but the Government ought to pay more attention to the views and experience of the man on the spot than the noble Lord is asking your Lordships to take this afternoon.

4.16 p.m.

LORD ROYLE

I have been reluctant to take part in this debate, largely because of the use so often of the term "magistrates' discretion". Because of the appointments that I have held, I have a great deal of sympathy with the idea that as much discretion should be placed in the hands of magistrates as is possible. The noble Lord, the Lord Chief Justice, and the noble and learned Viscount, Lord Dilhorne, at the time when he was Lord Chancellor, instigated an inquiry into the lack of uniformity in the decisions arrived at by magistrates. I agree that in the main this related to motoring offences, but it does not alter the fact that the two noble and learned Lords have been very deeply concerned about the lack of uniformity. Over the years there have been many cases in which, when all the circumstances were equal, different magistrates' courts have imposed very different penalties for precisely the same offence.

LORD PARKER OF WADDINGTON

I am sure that the noble Lord, Lord Royle, would agree that both I myself and the noble Viscount, Lord Dilhorne, who was Lord Chancellor at the time, were not concerned so much over the disparity of sentences as over the fact that there should not be a "rubber stamp", fixed, penalty in every case. There is bound to be disparity in sentences: there is no such thing as uniformity of sentence. Does not the noble Lord think that it would be worse to have a fixed sentence, something which was imperative in every case, than to allow variations to meet the circumstances?

LORD ROYLE

I accept that at once. It would be quite impossible to get fixed penalties for every offence: everybody recognises that. But that does not alter the fact that there has been this great disparity in the sentences inflicted by various courts for precisely the same offence and invariably in the same circumstances. The editor of the Sunday Express has in the past let himself go very much on this matter, and I have been in complete disagreement with him because of it. But the fact remains that this lack of uniformity has existed, and the two noble and learned Lords to whom I have referred have made constant pleas to magistrates throughout the country, through the branches of the Magistrates' Association, to try to alleviate it.

VISCOUNT DILHORNE

May I say something, as the noble Lord referred to me more than once? Would he kindly indicate what on earth this argument has to do with depriving magistrates of the power in appropriate cases to send an offender to prison for six months? Getting a higher degree of uniformity may be a desirable objective, but it seems to me quite unrelated to depriving magistrates of this power.

LORD ROYLE

If I had been allowed to proceed perhaps I should have come to that, but I was interrupted before I had finished my argument. It has a great bearing on what we are now discussing: the question of a mandatory power to suspend a sentence. The indications which I have given show that there is some need—I do not put it any higher than that—for this mandatory power. I hesitate to criticise colleagues in magisterial circles, but the fact remains that the lack of mandatory authority has resulted in some of the things which I have been describing.

It would appear from what has been said in favour of the Amendment that it is thought that suspension of sentence is letting a man off. It is nothing of the kind. It is holding above his head the fact that if the suspended sentence has had no effect and he comes back to court, he will be sentenced in accordance with the first decision of the magistrates. I do not regard that as letting a man off in any shape or form. The noble and learned Lord the Lord Chief Justice referred to conditional discharge. We all know the success of conditional discharge. I regard the proposals of the Government at this moment as being an extension of that system, which has been such a great success. I am impressed also by my noble friend's argument with regard to the over-population of our prisons. This has an important bearing on the matter we are discussing. The main point is that a suspended sentence holds over the head of a man the fact that he can be sent to prison if he is not careful in his future conduct. I believe that that in itself will have a great deterrent effect on many of the people who come before our courts.

LORD BROOKE OF CUMNOR

With the greatest respect to the noble Lord, Lord Royle. I cannot accept that this is the right method for securing uniformity as between sentences passed in different magistrates' courts. Two things I learned as Home Secretary. The first was that magistrates and judges should have as wide as possible a variety of courses open to them when sentencing people. The second was that the Home Secretary cannot possibly know as well as the judge or magistrate, who has had an accused man in front of him, what is the appropriate

sentence to pass on that man, being the man he is, for the crime he has committed in all the circumstances of the case.

If I may say so without being presumptuous, the noble Lord, Lord Stonham, put up a gallant defence for a course of action by the Government which has received very little support within your Lordships' House or outside. At the end, he was forced to give his case away. He said that all these 5,900 sentences a year which the Bill will prevent are unnecessary and then went on to argue that if magistrates felt strongly about any of them they would be able to commit them to quarter sessions for sentence with the possibility of the man being given a heavier sentence; although he himself had said that a sentence of imprisonment in such a case was unnecessary. That is a clear contradiction; and this is what I mean by magistrate's discretion. They ought not to have to go a roundabout way to secure what they, having seen the man concerned, feel seriously is the right way to treat him in the interests of law and order by making him serve an immediate prison sentence.

The noble Lord asked that we should not discuss a matter like this on Party lines. He will be aware that not once in the Committee proceedings on this Bill have I asked my noble friends to support me in the Lobby on any Amendment of mine for Party reasons. I would ask noble Lords who care about the maintenance of law and order and think that the courts should have a wide discretion in sentencing so as to maintain law and order to support this Amendment.

4.34 p.m.

On Question, Whether the said Amendment (No. 39) shall be agreed to?

Their Lordships divided: Contents, 59; Not-Contents, 36.

CONTENTS
Aberdeen and Temair, M. Cottesloe, L. Grimston of Westbury, L
Ailwyn, L. Cromartie, E. Guest, L.
Amulree, L. Daventry, V. Hamilton of Dalzell, L.
Ashbourne, L. Derwent, L. Hawke, L.
Asquith of Yarnbury, Bs. Dilhorne, V. Horsbrugh, Bs.
Auckland, L. Drumalbyn, L. Howard of Glossop, L.
Balfour of Inchrye, L. Dudley, L. Hunt, L.
Blackford, L. Emmet of Amberley, Bs. Hylton-Foster, Bs.
Boston, L. Falkland, V. Iddesleigh, E.
Brooke of Cumnor, L. Ferrers, E. Ilford, L.
Byers, L. Fraser of Lonsdale, L. Jessel, L.
Carrington, L. Goschen, V. [Teller.] Kemsley, V.
Clwyd, L. Grenfell, L. MacAndrew, L.
Macpherson of Drumochter, L. Nugent of Guildford, L. Strange of Knokin, Bs.
Mansfield, E. Parker of Waddington, L. Vivian, L.
Merrivale, L. St. Helens, L. Wakefield of Kendal, L.
Meston, L. St. Just, L. Wimborne, V.
Mills, V. Sandford, L. [Teller.] Woolton, E.
Mowbray and Stourton, L. Somers, L. Wrottesley, L.
Moynihan, L. Strang, L.
NOT-CONTENTS
Addison, V. Henderson, L. Royle, L.
Archibald, L. Hilton of Upton, L. Sainsbury, L.
Beswick, L. Latham, L. St. Davids, V.
Bowles, L. [Teller.] Longford, E. (L Privy Seal.) Segal, L.
Brockway, L. Maelor, L. Shackleton, L.
Burton of Coventry, Bs. Morrison, L. Shepherd, L.
Champion, L. Moyle, L. Sorensen, L, [Teller.]
Douglas of Barloch, L. Pargiter, L. Stocks, Bs.
Faringdon, L. Phillips, Bs. Stonham, L.
Gaitskell, Bs. Plumber, Bs. Summerskill, Bs.
Gardiner, L. (L. Chancellor) Raglan, L. Taylor of Mansfield, L.
Harvey of Tasburgh, L. Rowley, L. Willis, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

Clause 30, as amended, agreed to.

Clause 31:

Power of court on conviction of further offence to deal with suspended sentence

31.—(1) Where an offender is convicted of a subsequent offence committed while he was subject to a suspended sentence and either he is so convicted by or before a court having power under the next following section to deal with him in respect of the suspended sentence or he subsequently appears or is brought before such a court, then, unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods:—

  1. (a) the court may order that the suspended sentence shall take effect with the original term unaltered;
and a court shall make an order under paragraph (a) of this subsection unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence.

(4) A person with respect to whom an order is made under this section by any court shall have the like right of appeal against the order as if it had been made on his conviction by or before that court; and where an appeal lies by virtue of this subsection to the criminal division of the Court of Appeal, the latter court shall have the like power of dealing with him as is conferred by this section on the court from which the appeal lies.

VISCOUNT DILHORNE moved to add to subsection (1): "in which case the court shall state the reasons for its opinion." The noble and learned Viscount said: This Amendment deals with a slightly different point from the one we were just discussing, but I must refer a little to what the noble Lord, Lord Stonham, said. In the course of his speech the noble Lord said that he thought the suspended sentence would be a real deterrent because, after all, the sword might fall and the man might have to serve the sentence. On Second Reading certain noble Lords thought that where there was a suspended sentence and misconduct thereafter, the sentence that was suspended should certainly be served. But this clause gives the court before which a man comes who has had a sentence suspended power to vary that sentence, even to the extent of saying that the man need not serve any of it.

If your Lordships look at paragraphs (a) to (d), you will see the various orders that can be made by the court if a man gets into trouble while the suspended sentence is still hanging over his head. They say: (a) the court may order that the suspended sentence shall take effect with the original term unaltered; (b) it may order that the sentence shall take effect with the substitution of a lesser term for the original term; (c) it may by order vary the original order under the last foregoing section by substituting for the period specified therein a period expiring not later than three years from the date of variation; or (d) it may make no order with respect to the suspended sentence.

The subsection then continues: and a court shall make an order under paragraph (a) of this subsection "— that is, that the sentence shall take effect— unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence.

I do not want that to become what one might call a kind of rubber-stamp formula. Your Lordships will appreciate that I am not moving an Amendment to seek to remove the discretion the court has under the clause as to what shall happen in relation to the suspended sentence. Although I know there are those who argue that the court should have no discretion, I do not share that view. What I say is that it ought not just to become a rubber-stamp practice of the court's saying: "We are of opinion that it would be unjust that this sentence should be served in view of all the circumstances which have arisen since the suspended sentence was passed." I think it is important that, if the court decides to take that course, then they should state their reasons for doing so. I believe that only if this is done will public confidence not be impaired. I beg to move.

Amendment moved—

Page 23, line 26, at end insert the said words.—(Viscount Dilhorne.)

4.38 p.m.

LORD HAMILTON OF DALZELL

I welcome, this Amendment, because I believe it will be useful to clarify the intention behind the clause—for this is where I think the great difficulty of the suspended sentence arises. The assumption seems to be that the enforcement of a suspended sentence is not something that one has to worry about, because the man would have gone to prison next time anyway. But is this necessarily so? Even now courts often find other ways of dealing with people with previous offences, and one hopes that other alternatives will be provided, such as hostels to which people can be sent as a sentence. But with the suspended sentence the court dealing with an offence has its hands tied. The courts will want to know to what extent they will be required to enforce suspended sentences. After all, when a court is imposing a suspended sentence the hope is that the question of its being served will never arise. So it seems possible to me that a court imposing a suspended sentence may do so without considering very carefully, or perhaps even being in a position to know, whether prison will be the right answer even next time.

What about social inquiry reports? The intention is, as I understand it, and quite rightly, that sooner or later no one shall be sent to prison without a social inquiry report on him having been considered. At what stage do we consider the social inquiry report with a suspended sentence? There is no point in having such a report when you are imposing sentence, because the probability is that it will have very little relevance to the circumstances of the person when he commits his next offence in anything up to three years' time. But on the other hand, if at the stage where he comes up again you are going to start considering the suitability of prison and the possible effects on the family and so on, to my mind it makes nonsense of any suggestion of automatic enforcement, which seems to be the idea. If the intention is that the enforcement of suspended sentences shall be virtually automatic, then I am against that because I think the whole idea is wrong. But in that case I am in favour of my noble friend's Amendment, because I think it will help in that situation.

If, on the other hand, the intention is that the whole question of prison as being right in the particular case shall be carefully gone into at the time of the next offence, with the inevitable result that a great many suspended sentences will not be enforced, I am still against the whole idea, because it seems to me that the effectiveness of the suspended sentence as a threat will very soon be dissipated, and no more will be achieved than can he achieved by conditional discharge, if properly used. That is all the more so now that the conditional discharge is to be extended to three years. I very much hope that when the noble Lord conies to reply he will make clear how it is intended that this system shall work, because courts will really have to know more about this than appears from the Bill if they are to operate the system properly.

LORD PARKER OF WADDINGTON

I support this Amendment. Indeed, some of your Lordships will remember that I raised this very point in the debate on Second Reading. The only thing which really distinguishes the suspended sentence from probation or conditional discharge, the only reason why it can be said to be not a "let off", is if the prisoner knows that he will in the ordinary way receive the sentence which is suspended. We all realise that there must be adjustments in the light of circumstances which have occurred later: a prisoner's behaviour during the suspended sentence and matters of that sort. But I think, from the very wording of the clause, the intention quite clearly is that the court shall enable the sentence to come into effect unless, one might say, there are really good reasons to the contrary; in other words, it should be as automatic as possible. I support this Amendment because it emphasises that fact.

It may be said that the provision is there already, because the court shall make an order under paragraph (a)…unless the court is of opinion that it would he unjust to do so". But, equally, we all know that if we are called upon to give reasons for a decision we think about it once again and get our tackle in order and make certain that our reasons are good. That is why, to come to a completely different subject, when one gets to motoring offences there are provisions for disqualification unless there are reasons, and those special reasons have to be given. I think it strengthens this clause that the justices should give reasons for not making an order bringing the suspended sentence into force.

4.47 p.m.

LORD STONHAM

The noble Lord, Lord Hamilton of Dalzell, asked me to say how this system worked and whether it is the intention, when a man who has been given a sentence comes up for the second time, to go into the whole question of the effect of prison on him when he gets it. I am glad to have the assurance from the noble and learned Lord the Lord Chief Justice that the wording of the clause is sufficiently clear. It seems to me to be so if you read the last sentence or so in subsection (1): and a court shall make an order under paragraph (a) of this subsection "— that means that the court will order that the suspended sentence shall take effect with the original term unaltered— unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence. This subsection of Clause 31 has been very carefully drafted to preserve what we regard as the deterrent effect of a suspended sentence when an offender is reconvicted on a subsequent offence and appears before a court which has power to deal with the suspended sentence. The court is required to deal with it and to order that the suspended sentence shall take effect with the original term unaltered, unless the court is of opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed". Nothing at that stage, when the man is before the court, has to do with what will be the effect of prison on him, because there is a mandate here in this Bill, and the kind of things the court would have to consider in particular would be the nature of the second offence. It might be a very trivial matter which would in any other circumstances be dealt with by a fine; it might even be a minor motoring offence, for all I know. It has nothing to do with the real crime, and therefore in effect it has nothing to do with the crime for which the suspended sentence was originally awarded. On the other hand, it may well be in the same field or in a similar field, or a crime of similar or greater gravity, and in such circumstances I should think there would be only one thing for the court to do.

But what we are now asked to consider by the Amendment moved by the noble and learned Viscount, Lord Dilhorne, is this. If the court decide it would be unjust, then they should state their reasons for that opinion. The noble and learned Viscount was anxious that this clause should not become a rubber stamp. As your Lordships know, the Justices Clerks' Society supported a somewhat similar view when they suggested that a requirement to specify reasons would make it clear that a mere desire to be lenient after a lapse of time is not enough, with which I am sure we should all agree. But I think the clause makes it clear that a lapse of time is not enough because it insists that account should be taken of I the nature of the second offence.

There is, of course, some force in the argument demanding a statement of the reasons. But, unfortunately, our experience with other provisions which have required courts to state their reasons for action—for example, again, the First Offenders Act—is not very encouraging, because in that case the court had to give reasons for not being lenient. The reasons tend to be stereotyped and perfunctory; in other words very "rubber stamped", which the noble and learned Viscount does not want. None of us would wish to require the courts, including the higher courts, to give reasons for their decisions if it became a useless formality and if no useful purpose would be served. This is one of those marginal things. I think it certainly would not do any harm and I am much impressed by the Lord Chief Justice's view that it would do good. Therefore I ask your Lordships to accept the Amendment.

LORD HAMILTON OF DALZELL

May I just raise one matter—or perhaps I had better do it later.

VISCOUNT DILHORNE

My noble friend will have a chance, I have no doubt, on the Motion, That the clause stand part, to raise anything he wishes. But I should like to thank the noble Lord, Lord Stonham, very much indeed for the way in which he has accepted this Amendment. I know that sometimes reasons are stated perfunctorily, but I think it is a wise practice that when decisions are made reasons should be given, as they are nearly always given in the higher court.

If the Amendment needs re-wording I will withdraw it and will put it down again, but if it is all right I will just express my gratitude to the noble Lord.

LORD STONHAM

I must confess that I have not gone into the question of the wording. I have just made a decision on the debate and I will leave it that we will accept the Amendment, and if subsequently we find that different words are needed I will refer it back to the noble and learned Viscount.

4.52 p.m.

LORD STONHAM moved to leave out subsection (4) and to insert as a new subsection: (4) For purposes of any enactment conferring rights of appeal in criminal cases, an order made by a court under this section in the case of a person subject to a suspended sentence shall be treated as a sentence passed on him by that court for the offence for which he was given the suspended sentence.

The noble Lord said: Subsection (4) of the clause gives an offender a right of appeal against an order made under paragraphs (a), (b) or (c) of subsection (1) bringing a suspended sentence into effect. The appeal would lie to the court to which an appeal would lie against a conviction by the court which made the order. In the case of the Court of Appeal, the subsection provides that the Court shall have the same power of dealing with the offender as the court below. As a result of the inclusion in the Bill of Clause 81—that is, against sentence passed at assizes or quarter sessions—which was added in Committee in another place and of the amendments proposed to be made to that clause by Amendments 109 and 111, it is necessary to revise subsection (4). The new subsection does not change the rights of appeal. Its main object is to avoid overlapping between this clause and Clause 81. It achieves this by providing that, for the purposes of rights of appeal, an order made by a court in activating a suspended sentence shall be regarded as a sentence passed by that court on an offender for the offence for which he was given the suspended sentence. The effect is that under the various enactments relating to appeals (the Criminal Appeal Act 1907, Magistrates' Courts Act 1952 and Clause 81 of the Bill, as revised by later Amendments), there will be a right of appeal against an order made under subsections (1)(a), (b) or (c) of Clause 31, otherwise than on appeal, bringing a suspended sentence into effect.

The new subsection omits a reference to the Court of Appeal having the same power to deal with the offender as the court below. This provision is unnecessary because similar provision is made in Clause 81(7), which is being revised by Amendment 111. I appreciate that in matters of this kind, which I myself have to read through six times before I understand them, it is not always easy for the whole thing to be understood on a first reading, but it seems to me to be a sound and necessary change. I beg to move.

Amendment moved—

Page 23, line 36, leave out subsection (4) and insert the said new subsection.—(Lord Stonham.)

On Question, whether Clause 31, as amended, shall stand part of the Bill?

LORD HAMILTON OF DALZELL

I should like to return to the point I was making before. The noble Lord has explained that his apparent intention is that the enforcement of a suspended sentence on the occasion of a next offence shall be more or less automatic, or at least there will have to be good reasons for not enforcing it.

LORD STONHAM

I must immediately interrupt the noble Lord. He must not attribute any such statement to me. The court has considerable power. What I say is what in fact the subsection says, namely, that the court "shall"—or in other words "must"—make an order under paragraph (a) unless it is of the opinion that it would be unjust to do so. That is a very different thing from saying that the execution of a suspended sentence is automatic when an offender is brought before the court on the next occasion.

LORD HAMILTON OF DALZELL

Perhaps, "automatic" is over-stating it, hut at any rate it is obligatory on a court to make an order unless they can produce some good reason why they should not. Does not the noble Lord feel that the result may be that a certain number of people will be sent to prison on this occasion who would not have been if the courts had not been tied in that way? Also I do not think the noble Lord answered my question in regard to the social inquiry report. I am sure it is right that no person should be sent to prison without a social inquiry report on him. At what stage will this be done under the suspended sentence system?

LORD STONHAM

Obviously if it is to have any effect on whether or not the man goes to prison it must be before the court makes up its mind what to do with him. I hope there would be no doubt whatever about that. With regard to the noble Lord's other point, I feel that the language of the subsection is perfectly clear, and in the discussion on the noble and learned Viscount's Amend- ment—a point confirmed by the noble and learned Lord the Lord Chief Justice—there was no question that the language was not clear. The only point at issue was one which I accepted, that it might be useful if the court should be obliged to state its reasons for not automatically sending a man to prison when he came up on a second offence. I am sorry if it is still not quite clear to the noble Lord, Lord Hamilton of Dalzell, but I should be glad to talk to him about it privately, or to write to him.

LORD CHAMPION

My noble friend said he hoped the court would have before it the result of the social inquiry. It seems to me that this ought to be very much stronger than just a hope. Is there any obligation upon the court to ensure this? I have forgotten whether it is the case that they must have such a report before them before coming to the suspended sentence.

LORD STONHAM

I am glad my noble friend has corrected my choice of words. I will delete "hope" and say "they will", and we shall come to that part of the Bill a little later.

Clause 31, as amended, agreed to.

Clauses 32 to 34 agreed to.

Clause 35 [Restriction on magistrates' courts' power to impose imprisonment for default in payment of fines, etc.]:

5.0 p.m.

On Question, Whether Clause 35 shall stand part of the Bill?

LORD BROOKE OF CUMNOR

This is an important clause and I think we need to be satisfied that the provisions for enforcement and payment of fines, as they will be if this clause becomes law, will not only be effective in securing the ultimate result, but also will not impose an intolerable amount of extra work and, maybe, waste of time by all concerned. I think I understand the clause. I do not think I need go over the procedure and ask the noble Lord to correct me if I make a mistake. I would rather proceed by asking him two questions.

First, have the Government any knowledge of a similar scheme elsewhere in the world from which we can learn? I am quite certain that the Government wish to set at rest the doubts which have been expressed in some quarters that in fact if this new procedure is adopted these fines will never be paid. I do not take that view, but it is important to realise that some people have mistakenly imagined that the new scheme will be ineffective. In the long run, it should be effective. I should be grateful if the noble Lord could tell us whether this scheme has been designed entirely from the Government's own thinking, or whether it is based on studies of any schemes that have been adopted in other countries.

My second question is a more technical one. It relates to paragraph (b) of subsection (5) of the clause, and we are coming here to the ultimate action of issuing a warrant of commitment for default. There will be some people who are constantly before the court, and frequently fined, and who will never pay if they can help it. That is a type of person to whom we must have regard. I should have thought subsection (5) should be so drafted that the court could take into account its past experience with a man like that. But as I read the clause, that is not possible. The magistrates cannot in any particular case rely on their knowledge of the man's usual recalcitrance. They cannot say that they have considered and tried all other methods, and that the time has come to issue a warrant of commitment, unless on each occasion they have been through the whole procedure of a means inquiry. The word used in paragraph (b) is "sum"— …the court has considered or tried all other methods of enforcing payment of the sum". The fact that they have tried all methods of enforcing payment of previous sums is irrelevant under the clause as it is drafted.

I would ask the noble Lord whether the procedure could not be improved by some amendment to paragraph (b) which would enable the court to take account of what had happened with a man like this on earlier occasions. If he was notorious for failure to pay in previous cases it would seem to me that the time and trouble involved in enforcing payment in subsequent cases after a certain stage could reasonably be shortened without the necessity of considering and trying all other methods of enforcing payment of this new sum, which it will be incum- bent on the court to do if paragraph (b) stands as it is. I am quite sure the noble Lord is aware of the dangers of delay and excessive work in these matters. Maybe that sort of man is completely uncooperative and fails to comply with an order under subsection (8). In that event he then incurs a fine under subsection (9), which again has got to be dealt with individually as a new case, and the whole thing may "snowball". I am not suggesting any fundamental change. I hope that the Government have completely satisfied themselves that this plan will work, but I submit that it might be desirable at Report stage to amend subsection (5) in the way I have suggested.

LORD STONHAM

I am most grateful to the noble Lord, Lord Brooke of Cumnor, for bringing up these points. To a large extent, as I am sure he will appreciate from his own experience, this clause is a modification of the existing law in detail. In effect, we are extending, and to some extent codifying, existing practice. The noble Lord picked on subsection (5), a new requirement which provides that in every case where a means inquiry is to be held the court must try, or consider, every other means of enforcement before committing the defaulter to prison. With regard to the noble Lord's first question, have we delved into experience in other countries, so far as I am aware there is no other country which follows exactly our ideas, certainly not exactly the same scheme. As the noble Lord is aware, there are a number of countries where attachment of earnings is found, and this is an important extension to something we have had since 1958 with regard to maintenance orders.

With regard to the noble Lord's idea that offenders will be less likely to pay their fines, or that there will be greater difficulty in getting them to pay, we think that the provisions in the Bill will not result in a significant weakening of the powers of the court to enforce payment of fines. If an offender does not pay he will be brought up for a means inquiry, and if other means are not successful he can be committed to prison, just as he can now. Of course in some cases the enforcement procedure will be more lengthy than it is now, and we think that is a price worth paying if it means that we get the money instead of keeping the chap in prison. But even now there are means inquiries in cases where time to pay is allowed, and of course there will be more means inquiries.

On the particular point about the "regular customer", the fellow who never pays until the last minute, and who might even be prepared to go to prison in the hope that someone else would pay for him, in a way the noble Lord is half right, because previous experience will naturally enable the court to consider whether other methods are inappropriate. They have that power, but there must always be a means inquiry. In some cases, of course, subsection (2)(b) of Clause 35 will be a help with people of the kind that the noble Lord has in mind. Therefore I do not think—and I do not think the noble Lord suggested it—that there is any need for revision or rewording of the clause, but certainly we will carefully study what he has had to say.

LORD BROOKE OF CUMNOR

I am grateful to the noble Lord for what he has said. I do not want any fundamental change, but I should be grateful if he would look again to see whether by some amendment of subsection (5) it could be put beyond any legal doubt that the court can take into consideration the fact that a defendant is a regular customer.

Clause 35 agreed to.

Clause 36 agreed to.

Clause 37 [Enforcement of payment of fines by attachment of earnings orders]:

On Question, Whether Clause 37 shall stand part of the Bill?

5.11 p.m.

LORD HAMILTON OF DALZELL

I should like to say a word on this clause, which makes it possible for the payment of fines to be enforced by an attachment of earnings order, in the same way as by a magistrates' order. Of course I welcome anything that makes easier the collection of fines. There is an appalling waste of time for everybody. Indeed, I have spent most of this morning with people who have not paid their fines and in trying to see whether means can be devised for making them do so. Experience with maintenance orders shows that an attachment of earnings order works well only when the person concerned wants it and he finds it convenient. It is like paying one's club subscriptions by banker's order. In some cases those concerned feel that it removes from them the temptation of spending their money before it gets to the court.

But it has drawbacks. One particularly unfortunate matter which arises in connection with the payment of fines to that the standard way of getting out of an attachment of earnings order is for a man to move his job. As soon as a man moves his job, the attachment of earnings order ceases to operate. This is not something one should encourage in people of the kind who are likely to come before the courts. It is difficult enough to keep them in a job as it is, without introducing something which encourages them to shift more often.

Another drawback to this is that it is necessary for the employer to be told that the attachment of earnings order has been made. In some cases it may have unfortunate results to the man if his employer has to be told that this has happened to him. The question has been raised, I think by the National Association of Probation Officers and others, and I mentioned it on Second Reading, whether it might be possible to arrange for fines to be paid through the P.A.Y.E. system. If that were possible it would be a satisfactory way of doing it, because on the changing of a man's job his P.A.Y.E. form goes wherever he goes and there is no difficulty about it. On the other hand, the employer with the P.A.Y.E. form would know only that the man's code number had been changed. These numbers are changing all the time through changes in the man's circumstances, and the employer would not know why it was happening. I should be grateful if the noble Lord could say whether this point has been looked into at all, or whether it could be.

LORD STONHAM

The noble Lord is rightly concerned with the fact that when a man has defaulted on fines and an attachment order is made the employer has to be told. That is unfortunate. But it is still more unfortunate if he has to be told that the man has "gone to jug". That is what would happen in the present circumstances.

LORD HAMILTON OF DALZELL

Please do not misunderstand me. I am not suggesting that this is a bad idea. I accept that it may well be useful in certain circumstances. All I am suggesting is that the P.A.Y.E. system would be better, and I was wondering whether it was in any way possible to adopt that system.

LORD STONHAM

That suggestion has been made, and no doubt it will be made to Mr. Justice Payne's Committee which is considering the question of civil debts. But although I am not aware of the details, I understand that the difficulties are very great indeed. Certainly it is a matter that on the surface looks to be a nice way of doing things, but I do not think I can give any conclusive answer now. Any legislation which would implement the recommendations of the Payne Committee when they are received and considered will automatically apply to fines under attachment of earnings orders. As I said, the Payne Committee is considering the particular proposal which the noble Lord has made, and I do not think it would be right for me to comment any further at the moment. The Criminal Justice Bill would not be an appropriate Bill to deal with civil fines, and therefore I should like to leave that point.

On the noble Lord's other points I think he must draw a distinction between the general attitude at present to the payment of maintenance orders in this way and the attitude which is likely with regard to ordinary fine defaulters. I have many a time asked a chap in prison, a decent fellow, apparently a craftsman, "What are you in here for?". He has said "A maintenance order", and I have said, "Would it not be better to pay rather than to be in prison?". He has said. "You do not know my wife!"

What I am trying to say is that many personal factors come into it which do not always arise, and are unlikely to arise in the case of the ordinary fine defaulter. We think that the process in the Bill is likely to help the fine defaulter who may be a regular wage earner but is so feckless as to be unable to manage his affairs. The employer may know that he is a little feckless in that way, but it would be much better to deal with the matter in this way, to get the money that he owes, and not to send him to prison.

Clause 37 agreed to.

Clause 38 [Fines imposed and recognizances forfeited at assizes and quarter sessions]:

5.18 p.m.

LORD STONHAM moved, in subsection (9), to leave out "the last foregoing section" and to insert "collection, enforcement and remission of the fine or other sum". The noble Lord said: I hope it will suit your Lordships' convenience if, with Amendment No. 43A, I discuss also Amendments Nos. 43B, and 136A and 136B which are in Schedule 5. The object of these rather technical Amendments is to deal with the case where a higher court imposes a fine and the magistrates' court becomes responsible for enforcement under Clause 38(3), and the offender resides in Scotland. As I said, it is a little complicated.

Under the present Bill, when a magistrates' court imposes a fine and the offender lives in Scotland, the court may make a transfer of fines order, with the result that the fine will be enforced by a convenient Scottish court. But the court may not make such an order if it has fixed a term of imprisonment to be served in default of the payment of the fine, because in such a case the court would, in effect, have decided that prison should follow if the offender defaulted, and there would be nothing for the Scottish court to do except commit the offender to prison if he defaulted. Under Clause 38(1) of the Bill a higher court will in all cases fix the term of imprisonment to be served in default; but this will have no effect on the means by which the fine is enforced, unless it is ultimately necessary to commit the offender to prison in default. Thus, there is no reason why enforcement of the fine should not be transferable to Scotland. If the fine was not transferable and there was a default, it would be necessary to bring the offender back to England for a means inquiry. Accordingly, these Amendments enable a transfer of fine order to Scotland to be made in these cases.

I will mention as briefly as I can the purpose of the Amendments. Subsection (1) of the new clause in Amendment 43B enables higher court fines to be transferred to Scotland, in spite of the fact that the term of imprisonment to be served in default will have been fixed. Subsection (2) abolishes the old procedure for enforcing these fines in Scotland. Amendment 136A inserts three new paragraphs in Schedule 5, to amend Sections 72A and B of the Magistrates' Courts Act 1952. The first paragraph—new paragraph 9—amends Section 72A of the 1952 Act, which provides that where enforcement of a fine is transferred to Scotland and the sum in question is £20 or more the court to enforce the fine shall be the sheriff court. This limit derives from the fact that a burgh court's powers of imprisonment are limited to 60 days, and that if a fine carries a liability of more than 60 days in default it has to go to a sheriff's court. When the Bill becomes law a fine will have to be over £50 before the default liability is more than 60 days—that is under Clause 77—and the upper limit of a fine that can be transferred to a burgh court can therefore be raised. The Amendment also provides that an English higher court fine shall always go to the sheriff court.

The second paragraph, new paragraph 10, makes a drafting amendment to section 72A of the 1952 Act. The third paragraph, new paragraph 11, makes the necessary provision for a magistrates' court in England to deal with a higher court fine transferred to Scotland and then transferred back again. Amendment 136B makes the necessary amendments to the Summary Jurisdiction (Scotland) Act 1954, to enable English higher court fines to be enforced in Scotland. I beg to move—

Amendment moved— Page 31, line 27, leave out ("the last foregoing subsection") and insert ("collection, enforcement and remission of the fine or other sum")—(Lord Stonham.)

LORD BROOKE OF CUMNOR

The general purpose of this group of Amendments seems to me to be thoroughly sensible, but it is difficult stuff for a layman, as the noble Lord will agree. Therefore I hope that he will forgive me if I ask one question about how it will work. Subsection (8) of Clause 38 ensures that a fine which has been imposed, let us say, at assizes and then handed to a magistrates' court for enforcement shall not be reduced under subsection (10) of Clause 35 without the consent of a High Court Judge. What happens when one of these fines is transferred across the Border?

Suppose that a Scotsman has a fine imposed on him at assizes in, let us say, Exeter, and the court under Clause 39(3) orders the Exeter magistrates' court to enforce it; but then, under the powers given by these Amendments, that court transfers the fine order to the appropriate court in Glasgow. I certainly am not an expert in Scots law—nor for that matter do I claim to be an expert in English law—but I believe I am right in saying that under the existing law the Scottish court would have power to reduce the fine and, as I read these Amendments, would not have to ask anybody; whereas the English magistrates' court—the Exeter magistrates' court in my example—could not reduce the fine without first having to ask an English High Court Judge under subsection (8) of Clause 38 for permission to do so. It appears to me that the Scottish court of summary jurisdiction ought to be under the same obligation to consult an English High Court Judge before reducing a fine as the magistrates' court in England would be in the very same case. I rather suspect that the same thing would happen vice versa if the offence had been committed in Scotland. I shall entirely understand if the noble Lord says that without notice he cannot give me a complete answer, but I should be grateful to him for an explanation or some account of what the Government intend.

THE EARL OF MANSFIELD

Before the noble Lord answers, would he be kind enough to say whether, for the purposes of this Bill, a court of summary jurisdiction in Scotland includes a court presided over by a sheriff-substitute?

LORD STONHAM

On that point I should imagine that the noble Earl is right, but I should like to reserve a final answer on it, and will let him know. On the question raised by the noble Lord, Lord Brooke of Cumnor, I have been frenziedly looking through the clause to find the answer to his question, and I have come to the conclusion that we have not provided for the particular point which he raised. In the English courts the clause suggests the authorities to which the lower court must go before it can reduce or remit a fine, but there is no provision analogous to subsection (8) of Clause 38 when the fine is reduced under the Scottish law by a Scottish court. As it would appear that the noble Lord has found an omission here we will consider the matter and return to it on Report.

Clause 38, as amended, agreed to.

LORD STONHAM

I beg to move Amendment No. 43B.

Amendment moved—

After Clause 38 insert the following new clause:

Enforcement in Scotland of fines imposed at assizes or quarter sessions

(".—(1) The power of a magistrates' court or of a court of summary jurisdiction in Scotland to make a transfer of fine order under section 72A of the Magistrates' Courts Act 1952 (transfer of fine orders to Scotland) or section 44 of the Summary Jurisdiction (Scotland) Act 1954 (transfer of fine orders within and from Scotland) shall be exercisable in relation to a fine imposed on any person or a sum clue from any person under a recognizance forfeited by a court of assize or quarter sessions the payment of which is enforceable by the magistrates' court or court of summary jurisdiction, notwithstanding that the court of assize or quarter sessions has in pursuance of the last foregoing section fixed a term of imprisonment which that person is to undergo if the fine or other sum is not duly paid or recovered.

(2) Section 24 of the Queen's Remembrancer Act 1859 (recovery of fines and other debts due to the Crown in other parts of the United Kingdom) shall cease to apply to the enforcement in Scotland of a fine imposed or a sum due under a recognizance forfeited by a court of assize or quarter sessions.")—(Lord Stonham.)

Clauses 39 to 44 agreed to.

LORD STONHAM moved, after Clause 44, to insert the following new clause:

Selection of probation officers

". A probation officer under whose supervision a woman or girl is placed in pursuance of an order under section 3 of the Criminal Justice Act 1948 or any provision of the Children and Young Persons Act 1933 may be a man or a woman, and accordingly paragraph 4(2) of Schedule 5 to the said Act of 1948 and paragraph 13 of Schedule I to the Children and Young Persons Act 1963 (which provide that the officer must be a woman) shall cease to have effect."

The noble Lord said: This is a new clause dealing with the selection of probation officers, and I have no doubt that the noble Lord, Lord Hamilton of Dalzell, will be interested to hear that this will probably be the first time during the proceedings on this Bill that I shall have his approval.

The clause repeals paragraph 4(2) of the Fifth Schedule to the Criminal Justice Act 1948 and paragraph 13 of the First Schedule to the Children and Young Persons Act 1963. The effect of these paragraphs is that the probation officer under whose supervision a woman or girl is placed must be a woman. The National Association of Probation Officers regard these provisions as unnecessarily restrictive; and although in general it may still be thought right that statutory supervision should usually be exercised by an officer of the same sex as the person under supervision, it would accord with law and practice in the child care and other welfare services to leave to administrative arrangement the choice of sex of the supervising officer. Schedule 6 to the Bill already provides for the repeal of these paragraphs. These repeals were in the Bill as introduced into the House of Commons, but unfortunately the supporting provision in the body of the Bill was overlooked. That is why this new clause is now necessary. I beg to move.

Amendment moved—

After Clause 44, insert the said new clause.—(Lord Stonham.)

LORD HAMILTON OF DALZELL

[...] am grateful to the noble Lord, Lord Stonham, for introducing this new clause. It is something which the Probation Service have been anxious to have, and it brings them into the same position as the other child welfare services. I must say that I had thought this point was already covered in the Bill, but I am delighted to welcome this new clause.

5.32 p.m.

LORD CHORLEY moved, after Clause 44, to insert the following new clause:

Power of Court imposing fine to make probation order

". In any case where a court imposes a fine it shall also have power to make a probation order."

The noble Lord said: I put down this Amendment in order to draw attention to what I think every magistrate to whom I have spoken about this problem feels regarding the incapacity of benches of magistrates, and indeed of judges, to impose a fine on a young man who is a candidate for a probation order. Many of these young men who are brought before courts are earning very good wages, and it would be a sensible punishment to inflict upon them a smart fine for what they have been doing. On the other hand, they are young men who obviously need looking after in the way that a probation officer can look after and supervise a young, undisciplined adolescent, and the balance of the argument in almost all cases is in favour of making a probation order.

As the law stands at the present time, magistrates cannot inflict a fine and make a probation order, although time after time in my own court—and I am told that it is very much the same in other courts—magistrates shake their heads and say, "It is a great pity that we cannot fine him as well. It would be good if he had to pay something out of the £15 or £20, or even more, wages which he is earning every week, and of which he is taking only £2 back to his mother, and if he were deprived of some of the pleasures which he is able to purchase out of those very substantial wages." But at present, as I have indicated, that cannot be done. It is interesting to find that this point is put very well in the May 13 issue of the Justice of the Peace, where the author of the column, From Court 4, which appears in that journal every week, writes: I looked in vain for the one provision that all magistrates would have welcomed; that a youth could be put on probation and fined as well. I am sure the writer is quite correct when he says that all magistrates would have welcomed this. He goes on: In so many cases these youths before a court have too much money to spend on themselves and their nefarious activities, yet display such total immaturity that they would benefit from having some supervision by an experienced probation officer. That is possibly putting in better words the view which I was attempting to put before your Lordships' Committee.

I appreciate that as a matter of strict logic this Amendment does not hold water. In effect, when a court makes a probation order on a man it is telling him that if he does not go straight he will be brought back and punished. But a fine is already a punishment, and if the court inflicts a fine it will have punished him. Therefore, I suppose that, as a matter of strict logic, a court cannot do this, especially as, in effect, it would involve the court's saying, "When you come back we shall want a rather stronger sanction and we shall have to send you to prison". I am not sure whether my form of words meets this difficulty. I have not had any expert advice and I am not proposing to press this Amendment to a Division. But the Government ought to know that there is a very strong feeling to this effect throughout the magistracy.

I think there are cases in practical life when logic ought to be sacrificed to the practical needs of the situation, and I am quite sure that this is one of those cases. I should be very grateful if the Government would look at this point and see whether they can provide us with something of the sort. I am not suggesting that my words are the right ones, but it cannot be beyond the wit of man, and certainly not beyond the wit of the experienced Parliamentary Counsel who work for the Government, to secure a set of words which would achieve this objective. Therefore, in order that the Government may look at this problem and tell us what they think, I beg to move this Amendment.

Amendment moved—

After Clause 44, insert the said new clause.—(Lord Chorley.)

LORD HAMILTON OF DALZELL

I must say that as a magistrate I have sometimes felt, and I know that many of my colleagues have felt, inclined to agree with the point of view which the noble Lord, Lord Chorley, has put forward. But I know that the Probation Service, I think with reason, see considerable difficulties in combining a fine and a probation order. After all, as the noble Lord, Lord Chorley, said, when a court puts someone on probation it is saying, in effect: "We are not going to punish you now; we are going to put you on probation. We are going to give you a chance and arrange for someone to help you with your affairs. We hope that you will not get into any more trouble, but if you do various things will happen." It is difficult to combine that approach with saying at the same time, "We are going to punish you and at the same time we are going to do the other thing." The two do not go well together.

Furthermore, there is the practical difficulty that a person who is not a juvenile has to be asked if he is willing to accept a probation order. There is some difficulty in saying, on the one hand, "We are going to impose a fine on you", and on the other, "We are going to invite you to accept a probation order, but you are not obliged to accept." I think this is all a little difficult and needs much more consideration. I understand that the matter is being considered at the moment by the Advisory Council on the Penal System, and I shall be very interested to see what they come up with. But at the moment I should not be prepared to accept the point of view of the noble Lord, Lord Chorley.

LORD BOWLES

The Committee are obliged to the noble Lord, Lord Chorley, for moving this Amendment and asking the Government to look into the matter. As he says quite correctly, at present the provision in Section 3(1) of the Criminal Justice Act 1948, that the court may make a probation order in relation to an offender "instead of sentencing him", prevents the court from combining a fine with probation for the same offence. My noble friend's Amendment is aimed at combining the benefit of punishment with the benefit of supervision. It has been suggested that such a combination would emphasise that the offender has not been "let off".

This idea has been put forward by a number of bodies, and at first sight the proposal is attractive because it suggests that courts can obtain the best of both worlds—the shock or deterrent effect of punishment, together with professional supervision. But the proposal presents considerable difficulties. As the noble Lord, Lord Hamilton of Dalzell, has said, to introduce a penal element into the probation situation would undermine the voluntary nature of a probation order. At present, a probation order cannot be made unless the offender consents to it, and its contractual basis is said to lend useful support for the probation officer's subsequent efforts to secure the probationer's co-operation.

The Government have an open mind on how these conflicting considerations should be resolved. The Home Secretary has referred to the Advisory Council on the Penal System the whole question of non-custodial penalties, and the subcommittee of the Council which is considering it, under the chairmanship of my noble friend Baroness Wootton of Abinger, is actively pursuing the suggestion that it should be possible to combine probation with a fine or other penalty. In advance of the Council's considered view, the Government feel that it would be premature to make the change proposed in the Amendment, particularly as previous inquiries have come down against it. The Home Secretary's Advisory Council on Probation and After-care recently recommended unanimously against it. In these circumstances, I must ask your Lordships to reject the Amendment.

LORD HAMILTON OF DALZELL

I think that by a slip I implied in what I said just now that a person had to agree to a probation order only if he was not a juvenile. Actually, the line is drawn much lower than that, I think at the age of 14, when the offender has to consent to a probation order.

LORD CHORLEY

As I said when I moved this Amendment, I have no intention of pressing it to a Division. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 45 [Committal for sentence for Offences tried summarily]:

LORD STONHAM moved, in subsection (5), to leave out the third "section" and to insert "subsection". The noble Lord said: I beg to move Amendment No. 46. With the permission of the Committee, I should like to speak also to Amendments Nos. 47, 48, 49, 50, 51 52, 54, and 55—that is, nine Amendments in all. This group of nine Amendments (which to be understood have to be considered as a group) is required to improve Clause 45. They have been decided upon after consultation with the Ministry of Transport. The Amendment of substance is Amendment No. 48, which is to page 37, line 10, and which makes interim disqualification permissive instead of mandatory.

Clause 45 enables magistrates, when using existing provisions to commit an offender to a higher court to be dealt with, to commit him also to be dealt with in respect of offences of which he stands convicted but not sentenced but which are not within the existing powers of committal for sentence. In such circumstances, the lower court's duties and powers in regard to endorsement and disqualification for motoring offences are transferred to the higher court, so that the higher court may view the whole complex of offences and decide upon an appropriate sentence without being inhibited by the decisions of the lower court. Since, however, it may be necessary to ensure that the offender is kept off the road between conviction by the magistrates and sentence by the court of assize or quarter sessions, the clause confers on magistrates a power, and in certain circumstances imposes a duty—I am speaking of the clause as it now is—to impose a temporary disqualification during the interim period, leaving the question of substantive disqualification to the sentencing court.

I come now to the Amendment of substance, Amendment No. 48. Subsection (8) of the clause, as at present drafted, provides that where magistrates commit an offender to be dealt with by a higher court for an offence punishable under the Road Traffic Acts with disqualification then, where the disqualification is mandatory, the magistrates have a duty to order interim disqualification, and, where it is discretionary, they have a power to order interim disqualification. This dual provision was designed to make the subsections of the clause accord, so far as possible, with the substantive Road Traffic law. Such a distinction, however, between a power and a duty has led to difficulty. Even where disqualification is mandatory under the Road Traffic Acts, courts are empowered to find special reasons or mitigating circumstances for not disqualifying.

The question is, in what cases the duty to impose an interim disqualification arises. Does the duty arise before the court has considered whether or not there are special reasons for not disqualifying, or only where the court has considered the question and decided that there are no special reasons? In any event, we do not want the lower court to be concerned at all with the question of special reasons or mitigating circumstances, since these should relate not to interim but to substantive disqualification. Otherwise, the sentencing court—that is, the higher court—might be embarrassed if it finds that its view of the existence of special reasons conflicts with that of the convicting court. An offender having been convicted at the magistrates' court and sent up for sentence, if there has been a mandatory interim disqualification then the higher court might be embarrassed if it disagreed with the views of the con- victing court which decided the question of interim disqualification. I hope the noble Lord is with me.

To avoid this difficulty the Amendment makes an order of interim disqualification entirely within the discretion of the magistrates: it makes it permissive. The higher court cannot, therefore, be embarrassed if it finds that there are no special reasons for not disqualifying the defendant, because the discretion of the court below is not expressed in terms of special reasons. There is no need to fear that this discretion will result in dangerous drivers being let loose on the roads during the period between conviction and sentence, because Clause 45 operates not on the ordinary decent motorist but on offenders who have been committed to higher courts under enactments which are basically designed for cases where the magistrates' powers of sentence are thought to be insufficient. Usually, these chaps will be in custody; but, even if they are not, the fact that magistrates intend them to be severely dealt with by the higher court seems sufficient guarantee against any undue leniency in regard to interim disqualification.

The effect of the other Amendments, which are either drafting or procedural—I will go through them as quickly as possible—is as follows. Amendments Nos. 46 and 47 are only drafting improvements. Amendment No. 49 makes procedural improvements of the existing clause. The first new subsection requires an offender in whose case the magistrates ordered interim disqualification to produce his driving licence to the magistrates' court, which is then to forward it to the court by which he is to be dealt with. Non-production is punishable with a fine of £50, as for non-production to a court which, under existing road traffic law, has ordered endorsement. The second new subsection requires a court which has imposed an interim disqualification to notify the appropriate licensing authority of the order. Where the higher court to which the offender is committed determines not to order a substantive disqualification, that court has a duty to notify the licensing authority of its decision, so that the licensing authority will know that no further action has been taken in regard to the order of interim disqualification ordered by the magistrates. Otherwise, there would he doubt on the part of the licensing authority as to how the case had eventually been disposed of.

Amendments Nos. 50 and 51 are drafting Amendments. Amendment No. 52 is a new subsection to replace the existing subsection (10) which back-dates a substantive disqualification ordered by the higher court to the date of any interim disqualification ordered by the lower court. A new subsection is necessary here to ensure that higher courts are not prevented from making their orders of disqualification consecutive to any disqualification already in force; they can tack it on. It provides merely that a substantive disqualification shall be reduced by any period during which the offender was disqualified by reason only of an order of interim disqualification. Amendments Nos. 54 and 55 are drafting Amendments to remove ambiguities. I beg to move Amendment No. 46.

Amendment moved— Page 36, line 28, leave out ("section") and insert ("subsection").—(Lord Stonham.)

LORD SOMERS

I should like to say a word or two about this clause. I had intended to deal with the whole matter of the law as regards motoring in a Motion which I had put down. Unfortunately, a date could not be found for it, and it will have to wait until after the Summer Recess. But as we are on this point at the moment I should like to say that I personally am not satisfied at all that disqualification is a suitable penalty for motoring offences unless it happens to be total disqualification for life—and that could be imposed, of course, only in absolutely proven cases of motorists who are incapable of driving properly. In lesser offences where a motorist has committed, say, three or four offences of careless driving, and the court orders him to be disqualified, he stops driving for a year. But when he comes back to driving he is even worse than when he ceased to drive, because he has had a year without any driving practice. I think a far more suitable punishment would be to relegate him again to the learner stage and insist on his again passing a test—an even stiffer one than the ordinary standard test—before he regains his licence. I think that these short periods of disqualification are a very serious threat to his standard of driving on the road; for if he has been a poor driver before he will most certainly have become a poorer one afterwards.

THE EARL OF MANSFIELD

There are two observations that I should like to make on these Amendments. First, while I approve No. 48 I would point out to the noble Lord, Lord Stonham, that this is a complete reversal of the Government's attitude hitherto, inasmuch as it gives discretion to magistrates, which is the very thing the Government refuse to do throughout the rest of the Bill. I am afraid that I must disagree with my noble friend Lord Somers on the question of disqualification. He spoke of it as being applied to the merely careless driver who has several accidents through lack of skill and slowness of perception. But there are other people who lose their licences not through careless driving but through wilfully reckless and dangerous driving. Those people should be off the road for a considerable period.

LORD SOMERS

May I interrupt my noble friend? I agree with him that they should be disqualified for life.

THE EARL OF MANSFIELD

While in regard to most penalties I am normally probably more drastic in my views than most noble Lords, in this case I am considerably less drastic than my noble friend Lord Somers. I do not think for a moment that because a man—very likely a young man, with all the recklessness of youth—has had several accidents while driving, he should necessarily be disqualified for life. I would say that he should be disqualified for two, three, five or ten years, or whatever may be called for—and in particular the latter if there was involved the death or even the serious injury of a fellow-user of the road. But I feel that there should be some "middle distance" between imposing a heavy fine and imposing disqualification for life.

LORD CHORLEY

Perhaps there could be laid down a rule that if a driver were disqualified for 12 months or more, he should thereafter go through a driving test again and, following that, he could as it were, be worked back into driving properly. I agree that after a man has been off the road for a substantial period he is hardly competent to drive in heavy traffic. The fact that he did quite a lot of driving before he was disqualified is neither here nor there; particularly so because as one gets older one loses one's facility in driving.

LORD DERWENT

I do not want to join in my noble friend's private war, in which the noble Lord, Lord Chorley, has now joined. I want merely to thank the noble Lord, Lord Stonham, for his explanation. When he started, I was under the impression that I did not understand quite how all these series of Amendments worked. I now think I do understand. I shall read what he has said, however, and if I do not understand them I will come back to him.

LORD STONHAM

I am most grateful to the noble Lord, Lord Derwent; because that makes two of us. I understand them now, too. It is one of the most delightful features of your Lordships' House that a noble Lord can stand up with the full approval of your Lordships in a discussion on an Amendment and make a speech which has no kind of bearing at all on that Amendment. I am sure that we were all delighted to have heard the observations of the noble Lord, Lord Somers—which were in some measure supported by my noble friend Lord Chorley—to the effect that when a man has been disqualified for a year he then ought to take another course of instruction.

I am glad to say that I agree with the noble Earl, Lord Mansfield. Over the last three years I have been very sorry to find that the happy state of affairs which existed when I was in Opposition and when the noble Earl was supporting the Government, when we nearly always agreed, has not continued now that the position is reversed. I am glad that I can find something with which to agree with him; namely, that a man who is disqualified usually is not disqualified only for carelessness; he is often a good driver who is not concerned to drive well or with full consideration for others, but to drive in all kinds of circumstances where no driving training would have any effect on his road conduct at all. I would say to the noble Lord, Lord Somers, that personally I agree with him; but we have to consider the worst people.

With the point made by the noble Lord, Lord Mansfield, about this Amendment being a complete (but, to him, welcome) reversal of Government policy, I must disagree. We are concerned here only with interim disqualification, the case of a man who has committed a bad motoring offence and who is almost certainly going to be remanded in prison. It is just a question of leaving to a higher court not only the sentence, but also any decision with regard to special reasons which would affect disqualification. The purpose of this Amendment is to ensure that there should be no unnecessary and avoidable disagreement between a lower court and a higher court, or indeed by prejudging an issue which does not need to be judged at that time, to inhibit the higher court freely from expressing a considered opinion. I hope that with that explanation the Committee will accept the Amendment.

LORD STONHAM

I beg to move Amendment No. 47.

Amendment moved— Page 36, line 33, after ("by") insert ("virtue of").—(Lord Stonham.)

LORD STONHAM

I think it would be for the convenience of the Committee if I moved together Amendments Nos. 48, 49, 50, 51 and 52. I beg to move.

Amendments moved—

Page 37, line 10, leave out from ("disqualified") to ("nevertheless") in line 11 and insert ("it may")

Page 37, line 13, leave out from ("offence") to end of line 16 and insert— ("( ) Where a court makes an order under the last foregoing subsection in respect of any person, it shall require him to produce to the court any licence under Part II of the Road Traffic Act 1960, and any Northern Ireland licence, held by him and shall cause any such licence to be sent to the clerk of the court to which he is committed; and if he does not produce any such licence as required he shall he liable on summary conviction to a fine not exceeding £50. ( ) Where a court makes any such order in respect of any person, sections 112 and 116(2) of the Road Traffic Act 1960 (supplementary provisions as to disqualification and endorsement) and section 7(1) of the Road Traffic Act 1962 (endorsements) shall not apply in relation to the order, but the court shall—

  1. (a) if he holds a licence under the said Part II, send notice of the order to the licensing authority by which the licence was granted and to the licensing authority in whose area he resides;
  2. (b) if he holds a Northern Ireland licence, send such a notice to the Minister of Transport;
and the court to which he is committed shall, if it determines not to order him to be disqualified under section 5 of the Road Traffic Act 1962, send notice of the determination to any such licensing authority or the Ministry of Transport, as the case may require.

Page 37, line 20, after ("Part") insert ("I or")

Page 37, line 21, leave out from ("involving") to ("section") in line 23, and insert ("disqualification) and no order is made in his case under subsection (8) of this section")

Page 37, line 26, leave out subsection (10) and insert— ( ) A period of disqualification imposed on any person by virtue of subsection (5) of this section shall be treated as reduced by any period during which he was disqualified by reason only of an order made under subsection (8) thereof; but a period during which he was so disqualified shall not be taken into account under this subsection for the purpose of reducing more than one other period of disqualification.")—(Lord Stonham.)

6.0 p.m.

LORD HAMILTON OF DALZELL moved, after subsection (10), to insert: ( ) A Magistrates' Court shall not order an offender to be disqualified under Section 5 of the Road Traffic Act 1962 for a period exceeding two years if the offender is under the age of 21 years or has not previously been convicted of an offence for which disqualification could be ordered.

The noble Lord said: This Amendment arises from the disquiet which has been felt by probation officers and others about the unfortunate effect, especially on younger people, of overlong periods of disqualification. Very often the first disqualification is imposed for some foolish act arising from youth and inexperience more than anything else, and this course of behaviour is something it may be hoped that the young offender will grow out of. Long disqualifications are often imposed for these offences. Sometimes I think it is because courts feel difficulty about imposing a heavy fine on someone who has not much money, and are apt to redress the balance by reducing the amount of the fine and increasing the period of disqualification. The effect on the young person is serious. Not only does the inability to drive impair his social status but it may also have a damaging effect on the possibility of getting the sort of job he desires.

As I am sure we all remember, in youth years seem longer than they do when we get older. When one is young a period of four or five years ahead seems a very long time. In many cases, therefore, the temptation proves too strong and the young man drives again. He may be caught while doing so and, without having done anything wrong in the way of committing an actual traffic offence, he is further disqualified, making the whole situation worse. I have been told of examples where the period of disqualification has been increased in this way so that the commission, in the first instance, of one not very serious offence has led to a long disqualification without there being any evidence of any further actual bad driving. This situation leads to an increasing feeling of frustration and injustice in the young person concerned. I think my Amendment does something to help matters in this respect, and I hope that it will commend itself to the Committee.

I wish to make one other point. The intention of the Amendment is that if a magistrates' court feels that a longer period of disqualification is called for than they have the power to impose they should be able to send an offender to quarter sessions for sentence. I am not sure whether that follows automatically, but if the Amendment is accepted in principle, no doubt any omission in that respect could easily be rectified at a later stage. I beg to move.

Amendment moved—

Page 37, line 30, at end insert the said subsection.—(Lord Hamilton of Dalzell.)

LORD STONHAM

Whatever the merit of the Amendment, I have to tell the noble Lord that it is completely outside the scope of Clause 45, which deals simply with procedure to be followed in the case of offenders committed to a higher court to be sentenced or dealt with. None of the provisions in the clause in any way alters the sentences or periods of disqualification which may be imposed for particular offences, or on particular classes of offenders, since the whole object of the clause is to reform procedure rather than to adjust sentencing power.

LORD HAMILTON OF DALZELL

I am sorry to interrupt the noble Lord. I appreciate what he is saying. I am not very experienced in these matters, but I thought that my Amendment would insert a new clause. I see that its content has nothing to do with the rest of Clause 45.

LORD STONHAM

I have before me now the Amendment to insert words at the end of line 30.

LORD HAMILTON OF DALZELL

Yes, that is quite true.

LORD STONHAM

If I may help the noble Lord, as I intend to be helpful, may I say that in his Amendment he refers to a magistrates' court which: shall not order an offender to be disqualified under Section 5 of the Road Traffic Act 1962 for a period exceeding two years if the offender is under the age of 21 years or has not previously been convicted … Section 5 of the Road Traffic Act prescribes certain minimum periods of disqualification. In the case of mandatory disqualification, 12 months, unless there are special reasons, and three years (these are minima) in the case of a conviction for driving under the influence where there has been a previous conviction for such an offence within the preceding ten years. In the case of discretionary disqualification it is for such period as the court thinks fit. In the case of totting up offences, it is six months, unless there are mitigating circumstances, and this adds to the difficulty of dealing with the noble Lord's Amendment.

It is true that several of the provisions in the clause we are considering, Clause 45, deal with powers of convicting and sentencing and disqualifying people from driving, and magistrates are given new powers to impose an interim disqualification on offenders committed to be dealt with by a higher court. But I did not want to ride off on that, and so, as it is a matter for the road traffic law and not criminal procedure and we cannot deal with it here, I have consulted my right honourable friend the Minister of Transport. She would not welcome a restriction on the powers of the courts in motoring cases. Disqualification is a means of protecting the public against drivers who are a danger on the roads. A driver who commits a disqualifiable offence is no less a danger because he is under the age of 21. Indeed, if he is a compulsive young driver he may be a bigger danger than an adult. I submit that the courts should not be prevented by reason of the offender's age from disqualifying for such a period as seems necessary to the court in the light of the nature of the offence.

In the case of an offender who has not previously committed an offence punishable with disqualification, no doubt the court would take his record into account on the first occasion on which a disqualification is ordered, but we think it unwise to compel them to do so in this way. It might be that a first offence, the first offence for which a disqualification may be imposed, even in respect of a young person under 21, might be an appalling case of dangerous and drunken driving of the worst kind. The offences of dangerous driving and driving under the influence are punishable by imprisonment as well as disqualification, and a restriction on the length of the disqualification could result in a sentence of imprisonment being imposed because the court considered that a disqualification for two years was not an adequate punishment for the offence. In our view the Amendment would not conduce to road safety and the protection of the public. Although the noble Lord has made clear that he accepts what I said about the Amendment not belonging to this part of the Bill, or indeed to the Bill at all, I hope he will understand that I have gone into the matter, and on other grounds the Amendment would not be acceptable.

THE EARL OF MANSFIELD

On this occasion my sympathies are entirely on the side of the noble Lord, Lord Stonham, and the Government. I think it would be most regrettable for the discretion of a court to be interfered with. Nearly all your Lordships will be aware of gross cases, not merely of negligent but of dangerous driving, on the part of young people under 21 which have occasioned death or serious injury to other road users. In many of these cases it would have been entirely wrong that they should not have been disqualified from driving for a longer period than two years. I am sure that we should leave it to the discretion of the courts to apply the period of disqualification which seems most proper to them.

LORD CHORLEY

I think that the noble Lord, Lord Hamilton of Dalzell, has hit on a sound point. Anyone who has much experience of dealing with these young people who have been disqualified in this way must realise how tremendously compulsive is the temptation. If the disqualification is built up to a substantial period I do not think there is any real chance of an offender reforming. But however difficult the problem may be from a technical point of view, a real effort ought to be made to find some way round the question, because, from the point of view of the community as a whole, it is important that a young chap should restrain himself and come back feeling that he will make a real effort to drive reasonably carefully. It may be that this Amendment does not handle this technically in the right way, but I hope that an effort will be made to do something about it.

LORD HAMILTON OF DALZELL

I am grateful to the noble Lord, Lord Stonham, for dealing with my Amendment on its merits, despite the obvious difficulty from the technical point of view, and I appreciate what he says. I am grateful to the noble Lord, Lord Chorley, who has understood what I am trying to get at. I think that this is felt by most people in the country. One thing which should be understood, and which arises from the debate on my left a little earlier, to which the noble Lord, Lord Stonham, referred, is that disqualification is not going to make offenders any better drivers when they come back. Disqualification as at present applied is a punishment. Obviously if it was not intended as that, we should have an elaborate system of retraining. At the moment it is regarded solely as a punishment, in the hope that an offender, by being deprived of the right to drive, will learn a lesson. But there is no reason to suppose that he will be a better driver at the end of one, two or three years' disqualification.

In regard to what the noble Earl, Lord Mansfield, said, I wish magistrates to have power to send to quarter sessions anyone whom they thought should have a greater period of disqualification than they have power to impose. We accept that magistrates' courts are not allowed to send a man to prison for more than six months, and we would also accept this limitation on the period of disqualification that the court should impose. I beg leave to withdraw my Amendment.

LORD SOMERS

Before the noble Lord withdraws his Amendment, may I say that I should have thought the answer to his point is that an offender should come back as an "L" driver.

Amendment, by leave, withdrawn.

LORD STONHAM

I beg to move Amendment No. 54.

Amendment moved— Page 37, line 33, leave out ("and") and insert ("under Part II of the Road Traffic Act 1960").—(Lord Stonham.)

LORD STONHAM

I beg to move the next Amendment.

Amendment moved— Page 37, line 34, leave out from ("vehicle") to end of line 35 and insert ("and 'Northern Ireland licence' means a licence under any such provision as is mentioned in section 116(1) of the said Act of 1960 (use of Northern Ireland licences in Great Britain).")—(Lord Stonham.)

Clause 45, as amended, agreed to.

Clause 46 and 47 agreed to.

Clause 48:

Constitution and functions of Prison Licensing Board and local review committees

48.—(1) For the purpose of exercising the functions conferred on it by this Part of this Act there shall be a body to be known as the Prison Licensing Board consisting of a chairman and not less than four other members appointed by the Secretary of State.

(3) The following provisions shall have effect with respect to the proceedings of the Board on any case referred to it, that is to say—

  1. (a) the Board shall deal with the case on consideration of any documents given to it by the Secretary of State; and

(5) The Secretary of State may by rules make provision—

  1. (a) for the establishment and constitution of local review committees having the duty of reviewing at such times or in such circumstances as may be prescribed by or determined under the rules the cases of persons who are or will become eligible for release under section 49 or 50 of this Act and reporting to the Secretary of State on their suitability for release on licence; and
  2. (b) for the interview of such persons by a member of any such committee (not being a prison officer);
and rules under this subsection may make different provision for different cases.

6.15 p.m.

LORD STONHAM moved, in subsection (1), after "Act" to insert "as respects England and Wales". The noble Lord said: I beg to move Amendment 55A and with it I should like to discuss Amendments Nos. 56A and 56B. The first is a paving Amendment for the substantive Amendments. These Amendments provide for the appointment of separate prison licensing boards for England and Wales and for Scotland. They are the first of a series of Amendments designed to apply to Scotland the provisions in this Part of the Bill relating to the release of prisoners on licence. During my speech on Second Reading, I intimated my intention to do this, and I then explained that, notwithstanding the traditional principle of separate English and Scottish legislation on treatment of offenders, the provisions regarding release of prisoners on licence constituted so important a practical change in the law that it was thought that it should not be enacted for England and Wales only and that it was intended to extend these provisions to Scotland.

It is proposed to achieve this by amending Clause 89 to apply to Scotland the relevant sections of Part III and Schedule 2 (that is Amendment 114B, when we reach it), and by making consequential amendments to Clause 49, Amendment No. 64A; Clause 50, Amendment No. 65A; Clause 51, Amendment 68A, B and C. All these Amendments directly refer to the Amendment I am now proposing, and they will all make appropriate reference to Scottish law and institutions. I beg to move.

Amendment moved— Page 38, line 17, after ("Act") insert ("as respects England and Wales").—(Lord Stonham.)

LORD HAMILTON OF DALZELL

These Amendments fulfil an undertaking to extend the parole system to Scotland, and I very much welcome it. But how does the noble Lord see this fitting in with the Government's acceptance of the Kilbrandon proposal that the functions of probation officers would be taken on in Scotland by the local authority social welfare departments? I understand that it will be the duty of the probation service to supervise men released on licence, to report to the Home Department about them, and to recommend their recall should the occasion arise. Will this really be a suitable function for the local authority social welfare departments and will they be happy to accept this as one of their roles?

LORD STONHAM

The noble Lord is right in thinking that this proposal means that it is intended to apply in Scotland the provisions for release on licence which the Bill already has for England and Wales. The question of what branch of the social services will deal with this in Scotland, particularly because, as the noble Lord says, the implementation of the Kilbrandon recommendations has an effect on the probation service, is a matter for the Secretary of State for Scotland. I can only assure the noble Lord that all these matters I am now proposing are fully supported by my right honourable friend, and unquestionably he has considered all the implications, including that which the noble Lord has raised.

6.19 p.m.

LORD BROOKE OF CUMNOR: moved, in subsection (1), to leave out "Prison Licensing", and to insert "Parole". The noble Lord said: I beg to move this Amendment. Before I actually speak to it, may I express appreciation to the Government for their change of mind in deciding on Report stage in another place to introduce this plan of a licensing board. I feel sure that it is right to have machinery of this kind and not to leave the whole matter in the sole hands of the Home Secretary without any overt advisory body at all.

LORD STONHAM

May I interrupt the noble Lord and thank him very much for what he says? Would it meet his convenience if, with the Amendment he is now moving, we discussed Nos. 61, 62, 65 and 66, which are on the same point?

LORD BROOKE OF CUMNOR

Certainly. I am grateful to the noble Lord. They are identical Amendments. Let me say that I am thoroughly in agreement with the idea of a licensing system of some sort. I have a number of questions to ask and some suggestions to make at a later stage, but I have no criticism whatever of the plan that there should be machinery of some sort under which suitable prisoners may be released on licence before what is now a man's earliest date of release, after two-thirds of his prison sentence. I am more enamoured of the first part of my Amendment than the second; that is to say, I am extremely anxious to avoid "Prison Licensing", and if anybody can think of a better name for the board than a "Parole Board" I shall be well content.

The reason why I do not think the inclusion of the word "Prison" in the name of this board is suitable is this. I am sure it is important to be able to convince prisoners of the complete independence of the Board; and when I say "prisoners" I am not just thinking of an individual prisoner whose case is in front of the Board at a particular time. It is important to convince the prison population collectively that this is a body genuinely independent of the prisons and the Prison Service. If that cannot be done, there will be grave dissatisfaction—how grave noble Lords will be able to appreciate when I say that in the case of a seven years' sentence a favourable decision of the Board may mean that a prisoner is released on licence after serving 2⅓ years, instead of serving 4⅔ years with full remission, as at present, or seven years without remission. And, of course, the margin becomes greater as the sentence is longer. It will matter a tremendous amount one way or the other to prisoners whether they get a favourable decision from this Board.

I am sure the noble Lord, Lord Stonham, remembers well the feeling there was about the preventive detention advisory boards. In that case it was not a feeling against the name of the Board, or against the personnel of the Board, but those advisory boards never really succeeded in getting the confidence of the prison population because it appeared to prisoners, and indeed to some other people, that their decisions were arbitrary or, at any rate, that they were difficult logically to understand. I say nothing about the quality of those decisions: I think the Boards did the best they could in difficult circumstances. But it was a considerable factor in the state of opinion about preventive detention, so long as those boards existed, that it was thought by prisoners to depend almost on the whim of an advisory board whether a man got one-sixth or one-third remission of sentence.

I feel sure the noble Lord, Lord Stonham, will agree with me that this licensing system will work much better if prisoners collectively have confidence in the independence of the Board; and it is the word "independence" that I stress. We have to think of those who have to run the prisons. The governors, assistant governors and prison officers must continue to run the prisons, and the noble Lord and I both know well how much harder that task can be in a particular prison if there is an element of dissatisfaction which may or may not be justified but which has arisen over a succession of cases. That is the reason why I greatly hope that before this Bill reaches the Statute Book we shall have together devised a name for this Board which does not include the word "Prison". If it is the Prison Licensing, Board, it will be all too easy for prisoners to gain or to spread the idea that this is just an adjunct of the prison staff and that the Board is in fact controlled, or tremendously influenced, by the governor and the rest of the prison staff in the particular prison.

So far as I know, it is the desire of the Government that this shall be a completely independent body. That is not stated anywhere on the face of the Bill. I think that under the Schedule, which we shall come to later, it will be possible for the Home Secretary to appoint prison governors to the Board. But I am accepting that it is the desire of the Government that this Board should be completely independent of the Prison Service. What I am saying now is: let it be so named that it is seen to be independent of the Prison Service. I hasten to say that I have no intention of pressing this Amendment to a Division, because I should like to think of a word better than "Parole". I do not think this is really going to be a Parole Board in the strictest sense of the word "parole". I hope that noble Lords will support me in my effort to try to arrive eventually at a name for the Board which will carry greater conviction of its independence than the name Prison Licensing Board would. I beg to move.

Amendment moved— Page 38, line 18, leave out ("Prison Licensing") and insert ("Parole").—(Lord Brooke of Cumnor.)

VISCOUNT DILHORNE

I should like to say a word or two in support of my noble friend. Whatever may be the right description of this Board, "Prison Licensing" must be wrong. It has nothing to do with the licensing of prisons. I am sure that if my noble friend Lord Conesford were here—unfortunately, he cannot be, through indisposition—he would make a powerful speech about the use of English in relation to this Board. If you are going to call this Board, which has to do with prisons, a Prison Licensing Board, as if it were something to do with alcohol or something like that, then it will be a complete misnomer. I hope that the noble Lord, Lord Stonham, will see the weight of that argument and will search for another name.

I should like to stress that "Prisoners" or "Prison" should form no part of the name. I do not think we want any reference to "Prisoners" or "Prison" in the name which is given to this Board. If you like, you could have "A Review of Sentence", or something else like that. A Parole Board is what I expect most people will call it. I hope the noble Lord will say that he will search anxiously for another title which does not stress the prison side of it, but does emphasise the independence of this body and, at the same time, its importance. It certainly is not a Prison Licensing Board.

THE EARL OF IDDESLEIGH

We very much miss the noble Lord, Lord Conesford, who keeps us correct about our English. I am sure the noble and learned Viscount, Lord Dilhorne, is quite correct in saying that he would object to the term "Prison Licensing". But I feel that the noble Lord, Lord Conesford, would also take grave exception to the use of the word "parole" in this connection. It is true that the word "parole" is occasionally used or, as I would say, misused in relation to prison sentences, but I do not think in this matter we should imitate the Americans. "Parole", originally French, is now an international word. It is a term of art used in time of war, and it can be used only for an officer who gives his parole d'honneur, his word of honour, not to escape from captivity, or to refrain from certain other actions to which his captors object. I believe that "parole" was occasionally used in the last war when officers were allowed to take walks outside their camps and gave a parole not to escape while doing so. I would ask the noble Lord, Lord Brooke of Cumnor, with whose general views I have every sympathy, to try hard to find another word that will not, so to speak, debase the honourable military term of "parole". I would suggest the possibility of the word "enlargement" which might be appropriate in this connection.

LORD PARKER OF WADDINGTON

May I add just a word? I am so much in favour of the idea behind this clause—in other words, of the licensing of prisoners—that I should greatly dislike to see it come into operation in circumstances which create difficulties. I share the view expressed by those who have spoken to me, people who know prisoners—people in the welfare services, and, above all, Mr. Mervyn Turner, who knows the prisoner's mind so well—and who say that things will get off on the wrong foot if this Board is called a Prison Licensing Board. It is very important that those who fail to get their release should realise that the Board that has the final say is completely independent. Perhaps it is all the more important as the local review tribunal will inevitably have some connection with the prison and as the next step will be through the Home Office. The prisoners must know that the Board with the final say is completely independent. Finally, why not simply use the words "Review Board"?

6.32 p.m.

LORD STONHAM

This shows how often we think alike on some things. Before coming to the Chamber this afternoon I was thinking about this Amendment, and I, too, wondered where the noble Lord, Lord Conesford, would be, because it is on such occasions that we miss him very much—so much so, indeed, that I felt obliged to arm myself with a definition of the word "parole". I consulted the Oxford Concise Dictionary, which defines "parole", as the noble Earl, Lord Iddesleigh, said, as something to do with parole d'honneur. But for the less enlightened people like myself it starts off by saying: Word of honour, especially a prisoner's word that he will not escape or will return to custody if liberated or will refrain from taking up arms for stated periods. I think we are all agreed, therefore, that we do not like the word "parole".

The noble Lord, Lord Brooke of Cumnor, is of course fully aware of this, because he had a great deal to do with it when he was Home Secretary. Prisoners are frequently paroled under prison rules by the exercise of powers of temporary release, perhaps to attend the funeral of a near relative or to go on home leave, or to be interviewed by a prospective employer sometimes, before their sentence ends. We have the difficulty that "parole" in prison is understood now to be just that. It is indeed a word of honour that they will come back, and it is highly regarded by prisoners as a very great privilege. And when sometimes, as unfortunately happens, a man does not come back, or does not come back by the time he has said he would, he is very badly regarded by his fellow prisoners because he has let them down. So we have that difficulty: the fact that prisoners clearly understand what "parole" means now, and certainly it would not mean to them something which has the functions that we intend the Prison Licensing Board should have.

I am grateful to both the noble Lord, Lord Brooke of Cumnor, and to the noble and learned Lord the Lord Chief Justice for affording me the opportunity of giving a very firm assurance that the Board will be as independent as we can possibly make it. But the connotation of "parole", as Lord Iddesleigh mentioned, has a sort of American flavour. It is perfectly true that if the Prison Licensing Board were equivalent to the Canadian or American parole boards, then, subject to any objection as to the use of the word "parole", we could accept the Amendment right away; indeed, we might have put it in the Bill ourselves in the first place. But really they are not the same. The Canadian and American parole boards have executive functions and they themselves initiate releases. The Licensing Board will not have executive functions and will not of itself initiate the review of cases. It is not, therefore, a parole board. This being the case, it would be wrong to call it one. On the other hand, until I heard the noble and learned Viscount, Lord Dilhorne, I thought that "Prison Licensing Board" correctly described the functions of the intended Board, but I am bound to say that he is quite correct; that it will have nothing whatever to do with licensing prisons, and this interpretation could be placed upon that title.

I think the most important point made in the debate is the one on which I think Lord Brooke of Cumnor based his case; that is, the word "prison" should not be in it at all; it should not be associated with prison. We are all agreed that, inevitably and rightly, a substantial number of prisoners must be disappointed. They are bound to feel not only disappointed but possibly, although wrongly, that there has been some injustice in the decision; and that feeling will be lessened if it can be shown that the effective decision was made by an independent Board which had no relationship with prisons or the Prison Service. I think we are all agreed, also, although we do not like "Prison Licensing Board", that "parole board" is not generally acceptable; and the only thing I can do, without any guarantee but with the utmost good will, is to go away and see whether I can come back with a better solution.

LORD MITCHISON

If I may for one moment interrupt this interesting discussion, I would say how I miss the French Academie. In France they are considering the meanings of English words, and they have decided what you may use and what you may not. You may use the word "bulldozer" if you pronounce it bouldozeur. I do not quite know what we do with the word "parole" if we adopt it here. But, seriously, surely if the local review committees are doing something rather like this, the sensible thing to call this body is the Central Review Committee.

LORD BROOKE OF CUMNOR

I am very much obliged to noble Lords who have contributed to the debate on my Amendment. I think I have established my main point, which is that we should devise a name which omits the word "prison" or the word "prisoners". That being so, I am happy to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD STONHAM

I beg to move Amendment No. 56A.

Amendment moved— Page 38, line 18, after ("Board") insert ("and for the purpose of exercising those functions as respects Scotland there shall be a body to be known as the Prison Licensing Board for Scotland, each body ").—(Lord Stonham.)

LORD STONHAM

I beg to move Amendment No. 56B.

Amendment moved—

Page 38, line 20, at end insert— ("( ) Any reference in the following provisions of this Part of this Act (including Schedule 2 thereto) to the Prison Licensing Board shall be construed as a reference to the Prison Licensing Board or the Prison Licensing Board for Scotland, as the case may require.").—(Lord Stonham.)

6.40 p.m.

VISCOUNT DILHORNE moved, in subsection (3)(a), to leave out "deal with the case on consideration of" and insert "consider". The noble and learned Viscount said: It may be for the convenience of the Committee to take Amendments Nos. 57 and 58 together, because they both deal with the same topic. If your Lordships will look at the Bill you will see that it is provided in subsection (3): The following provisions shall have effect with respect to the proceedings of the Board on any case referred to it, that is to say—

  1. (a) the Board shall deal with the case on consideration of any documents given to it by the Secretary of State; and
  2. (b) if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may request one of its members to interview him and shall take into account the report of that interview by that member.…"

As I read that clause it defines quite specifically what are the powers of the Board in relation to any case. First of all, it has to deal with the case on consideration of such documents as are given to it by the Secretary of State. I drew attention to this in the debate on the Second Reading, and I said then—if I may refer to my speech: When a case does come to the Board, one sees that the Board will have before it only such material as the Secretary of State likes to give it." [OFFICIAL REPORT, 10/5/67, col. 1475.] I think that is what that subsection means. But when the noble and learned Lord the Lord Chancellor came to reply, this is what he said (col. 1565): The noble and learned Viscount, Lord Dilhorne, raised a question about documents. The noble and learned Lord, the Lord Chief Justice, said (and if I may say so I quite agree with him) that there must be confidence between the Board and the Home Office: I did not follow the point about documents. Then this sentence follows: If the Board wants any documents and the Home Office has not sent them, the Board only have to say so. I cannot see any difficulty about that. But that is not what the Bill provides, and it is to make the Bill agree with what the noble and learned Lord Chancellor said that I have tabled this Amendment. If the Amendment is accepted the clause will then read: The Board shall consider any documents given to it by the Secretary of State; but that does not mean that they have got to decide the case on the documents provided by the Secretary of State.

My second Amendment, No. 58, goes on to provide that: the Board shall be entitled to call for reports and to call and examine witnesses in relation to the case. I think that this is very important. If the Board wants to have an up-to-date psychiatric report, for instance, it should be entitled to call for it, and I should like to see that expressly contained in the clause. There is nothing controversial about this matter, but if this new body is going to be created to discharge this important function—and the noble Lord, Lord Stonham, knows that I have long been in favour of a licensing body such as is envisaged in this Bill—it is important that it must exercise its functions independently. It would be quite wrong if the impression were gained, whether rightly or wrongly, that all the Board had to do was to decide the case on such documents. As this clause stands I think that is clearly implied, and I think that is wrong. I beg to move the first Amendment.

Amendment moved— Page 38, line 35, leave out ("deal with the case on consideration of") and insert ("consider").—(Viscount Dilhorne.)

LORD BROOKE OF CUMNOR

I greatly hope that the Government will be able to meet fruitfully the cogent points made by my noble and learned friend Lord Dilhorne. The drafting of the clause as it stands is somewhat strange, because it would appear to put the Licensing Board and the local review committees at arm's length. Indeed, when I first read this clause I was led to assume that it was so drafted as to ensure that, unless the Secretary of State so wished, the Board would not be able to discover what the local review committee had recommended to the Secretary of State.

I think this arises partly because subsection (5), which deals with the local review committees, seems not to be fully integrated with the rest of the clause; indeed, one is not aware until reaching subsection (5) that there are going to be review committees; and neither there nor in the Schedule does it appear that there is a functional link-up, if I may put it that way, between the work of the local review committees and that of the Licensing Board. And I greatly hope the Government will make it absolutely clear that the Board is not confined to a consideration of such documents as the Secretary of State may see fit to give it, but may make its own inquiries, and that it shall be entitled to see anybody it wishes—anybody who, in the Board's view, will help it to come to a right decision in the case.

I think those are the two purposes of my noble and learned friend. I greatly hope to hear that there is really nothing between him and the Government on this matter, and that what the noble and learned Lord the Lord Chancellor said on Second Reading was correct. I certainly join my noble and learned friend in urging that, if that is so, the drafting of subsection (3) needs further attention.

LORD PARKER OF WADDINGTON

I should like to support this Amendment. I think we are all agreed that the Board must be an effective Board and command the trust of everybody, the public and the prisoners. At the moment, as it seems to me, all this Board can do is to sit down and look at a file of documents passed to it by the Home Office. I cannot think that a Board carrying out that function would command much confidence. Of course I accept that if the Board wanted further documents no doubt the Home Office would supply them, but on the very face of this clause it looks as if all the Board was going to do was to sit down and look at a file of documents. If it is to command confidence I think this Board must have powers to call for reports.

It may be that the Board will want to cross-examine a witness. One of the members is most likely to be an eminent psychiatrist, and he may express a different view from that of the prison medical officer concerning a particular man. I think it would be wrong for him to act merely on his own view and not pay attention to the views of the medical officer, and what really fulfils natural justice is to be able to have the medical officer before the Board and cross-examine him. Again, there may be cases where a medical report has not already been given and is required. If so, the Board ought to be able to call for such a report, and, indeed, for any information which it requires.

LORD STONHAM

I have carefully studied these Amendments and have listened with great care to the three speeches made in support of them. I am bound to say that they have given me a very different impression from the one I formed by just looking at the Amendments as they are drafted and studying the effect on the Bill. Under the Amendments subsection (3) of the clause would read like this: The following provisions shall have effect with respect to the proceedings of the Board on any case referred to it, that is to say—

  1. (a) the Board shall consider any documents given to it by the Secretary of State; and
  2. (b) the Board shall be entitled to call for reports and to call and examine witnesses in relation to the case;"

VISCOUNT DILHORNE

The present paragraph (b) would remain.

LORD STONHAM

Yes. The part I have underlined is: the Board shall be entitled to call for reports and to call and examine witnesses in relation to the case". I have also, of course, studied what the noble and learned Viscount, Lord Dilhorne said on Second Reading and the reply that my noble and learned friend the Lord Chancellor gave to him, when he said that if the Board want any documents and the Home Office have not sent them the Board have only to say so. That, of course, is exactly what the position would be.

The noble Lord, Lord Brooke of Cumnor, referred to the local licensing committee and the dossier they would build up. It would be unthinkable to me that a recommendation for a case is submitted to the Board, or whatever we finally call it, unless it had complete documentation from the ground up. Indeed the basic forms which we have under preparation, and which certainly I so far approve, are started with that idea in mind, so that the Board will know everything we are able to tell it about the particular prisoner under consideration. I agree with the noble and learned Lord the Lord Chief Justice that it might so happen that the psychiatrist member of the Board might, on a medical matter, looking at the papers, take a different view from the medical officer at the prison; that, of course, is a distinct possibility. He might want them to write to him or perhaps, exceptionally, bring him up. I say "exceptionally" because it is not intended that the Board shall meet all that frequently. Naturally it will meet as often as necessary to do its job. This will be a matter for the chairman and members, hut they will not sit continuously, or full-time, or anything like that.

The real difference, if there is a difference between us—and having heard the debate I am not at all sure that there is—is that it would appear from my reading of the Amendments, although not from listening to the debate, that the noble and learned Viscount felt that the Board will have a judicial function. Its function will be administrative. It will not in any sense try the case again. It has to reach a decision as to whether a man, it released, is likely to be a good citizen, is likely to benefit from it, and is likely to benefit society as well.

Naturally we have got to start work in a preliminary way; we cannot actually start any of these bodies until the Bill becomes an Act. But in our preliminary thinking we shall have to submit all this to the chairman-elect, when one has been selected, and work out the detailed procedure. The procedure for calling for reports of this kind must, in our view, be left to be worked out with the Board. When it comes to calling for any further information, further reports that the Board wants, we should expect it to obtain all the additional information through the Home Office, if only to ensure that there is no unnecessary overlapping or repetition or duplication of effort. I do not think there is anything between us, and I think that, in practice, the Board will be able to proceed broadly as the noble and learned Viscount wishes it to do, and as I think we all wish it to do.

I want to make it quite clear that in our view paragraph (a) should remain as it is, because it establishes that the Board's consideration of a case is primarily a consideration in private, and is of a quasi-administrative and certainly not a judicial character. Unless the Bill provides clearly that the Board can deal with cases in this way, it could be argued that on such important matters as release from custody the rules of natural justice require that the prisoner should be entitled to appear before the Board or to be represented before the Board and see the information given about him to the Board by the Secretary of State. We feel that would be certainly impracticable, and that is why we think it crucial to retain the definition in (a) of how the Board is to consider and deal with cases.

LORD PARKER OF WADDINGTON

May I intervene? Am I to understand that it is considered that subsection (3)(a) is necessary in the Bill because this is not a judicial or quasi-judicial decision'? If so, with all respect, I should have thought it was very difficult to say that the process was not a judicial or quasi-judicial process. True, the ultimate action of the Home Secretary as a result of the recommendation is a purely administrative decision, but the process leading up to it, which consists of this Board weighing the evidence in the documents, must be, I venture to think, a quasi-judicial matter. As the words stand at the moment, I should have thought the Board was debarred from considering anything else except the documents.

LORD STONHAM

Certainly if that is the interpretation the noble and learned Lord the Lord Chief Justice has put on it, that this is not a quasi-judicial decision, then it is right. That is our view of what it should be: that the Board has to make an administrative decision.

VISCOUNT DILHORNE

The Home Secretary makes an administrative decision, but surely the Board does not.

LORD STONHAM

The Home Secretary decides on the cases to be submitted to the Board, but in a number of important respects, as the noble and learned Viscount will be well aware, the Board will have a right of veto.

VISCOUNT DILHORNE

I think it is made quite clear by subsection (2): It shall be the duty of the Board to advise the Secretary of State … that the Board's function is advisory. It discharges that function in a quasi-judicial manner. I do not think it is open to any other possible construction. The administrative decision is taken by the Home Secretary in the light of the advice given to him by the Board.

LORD STONHAM

The final responsibility, except in a recall of a licensed prisoner, is the Home Secretary's, but in fact the Home Secretary will not release a prisoner if the Licensing Board thinks he should not be released. This was the point I was coming to about further consultation or requiring further documents or requiring a person, possibly a member of a local review committee or a doctor or somebody like that, to come before the Board. If it did not get these people or the information it asked for, it simply would not approve of the release on licence of that particular prisoner. It would, in fact, therefore be a veto.

I cannot see such a situation arising. We intend to give the fullest possible information. If in individual cases the information is not enough, we shall, if it is at all possible, give the further information required. If we think—this would need to be only exceptionally—the Board wishes to see a person, it of course will see him. If the Board wishes one of its members to see an individual prisoner and submit a report, that too is provided for. It seems to me that the clause as it stands is wholly adequate for the purpose we have in mind and that as things are now everything that needs to be provided will be provided. I assure your Lordships that in collaboration with the Board we shall spare no efforts to make the licensing system a complete success in ensuring, as far as humanly possible, that the men the Board recommends for release on licence will be those who will benefit themselves and their families and society by such release.

We hope that there will be a substantial number of successes achieved by the Board's objective consideration of the full facts about each prisoner from the facts compiled with the assistance of those who have the prisoners in their care. Subsection (3)(a) is certainly not intended to be an exclusive list of the material on which the Board will rely for its decisions, and paragraph (b) already contemplates, as I pointed out, an interview by a Board member. Certainly we shall look again at the noble and learned Viscount's suggestion that paragraph (a) is too exclusive It may well be the case.

As I say, the Board should be in a position to see an expert. There is also a wide power under Clause 48(3) to make rules. The provisions that we are now discussing in subsection (3)(a) and (b) and in subsection (4) are designed to secure the essential framework of this procedure, but it would make for greater flexibility if as much as possible were left to the rules, and in these rules we can take account of what has been said in this debate. Although I am willing to have a look at paragraph (a) in particular, we cannot get to the point where the Board's functions would be quasi judicial. In our view they must remain administrative.

VISCOUNT DILHORNE

It will not depend upon the wording of subsection (3)(a) as to whether it is held that this Board has quasi judicial functions or not. That will be determined on a challenge in the courts, and will not depend on the wording of subsection (3)(a). I should have thought that there would be no doubt at all that the Board would be asked to discharge quasi judicial functions, and might be liable to a writ of certiorari. That really is not the point about this. When the noble Lord started his speech I thought that there was really nothing between us as to the way we wanted the Board to function. But the more he went on, the more I began to wonder whether he really wanted it to function at all. Surely the function of this Board is that when a case comes before it it will go into that case thoroughly and fully, and give to the Home Secretary the best advice it can. I hope the noble Lord will agree with this. It is to be an independent Board. If it is to perform that function it must be entitled to make such inquiries as it thinks proper, from whoever it may be. I think the noble Lord agrees with that. There is nothing about its quasi judicial or administrative function.

Here we are concerned with what it can do. My complaint about subsection (3) is that it gives quite the wrong picture of what the Board can do. I am hopeful that it is merely a matter of language more than of intent. Of course the Board must decide the case and advise on it to the Home Secretary; but surely that does not mean that the Board must only decide the case on documents submitted by the Home Secretary. As I read paragraph (a) that is what this Bill provides. Therefore I say—and I rely on a great deal that the noble Lord said in support of this contention—that the drafting is unhappy and should be altered.

Again, I quite agree that in the ordinary way the normal channel will be for the Board to get in touch with and to deal with matters through the Home Office. That is quite right. I do not object in the least that the Home Office should be in that position. But it may be that a further question needs to be put, perhaps to the medical officer at Bedford prison. Surely it is not necessary for the Board to go straight to the Home Office, and for the Home Office to go to the medical officer. A telephone call might clear up the matter directly.

I want to ensure—and I am not pinning myself to the wording of this—two things: first, that the Board shall have power to get all the documents that it thinks appropriate. In that I think the noble Lord agrees with me. Then I think that the Board should have power to call such evidence as it thinks fit of any persons; and that the Board should have power to call for such reports as it might require. There may be a more up-to-date report. That is what I want to achieve. It may look to the noble Lord as if one is making it too much like a trial when one speaks of calling and examining witnesses; but I do not think that really is so. I want to make it quite clear that they can ask someone to come and tell them about the case. The noble Lord said that they are not going to try the case again. I am not asking them to try the case; but they have to try to evaluate the evidence on the issue whether that man can be safely released on licence. I want to see them armed with full powers to discharge that function.

From what the noble and learned Lord the Lord Chancellor said in his reply on Second Reading, I thought that he and I were really in agreement about this objective. But when you come to look at this language—and it is language that governs the matter—it is restrictive, and it cannot be cured if passed in the form of making rules, because the rules could not really go contrary to the provisions of the Statute. So I press the noble Lord in all seriousness to say that he really will have a further look at this wording, because it really requires alteration. If it is not altered I shall have to raise this matter on Report, albeit reluctantly, and press it further, because I think it is most important that there should appear to be no restriction on the discharge by the Board of the important functions entrusted to it.

LORD STONHAM

I can assure the noble and learned Viscount—he knows this—that I as much as anybody, and possibly more than anybody, hope that this Board will be a great success. My noble and learned friend the Lord Chancellor said in the Second Reading debate that if the Board wants any documents and the Home Office have not sent them, the Board has only to say so. Of course that is right, and I give an assurance that any reports that the Board needs in dealing with cases, any documents it thinks are necessary, it will of course have.

One thing about which I am concerned in the Amendment is the use of the word "witnesses". Of course they will want to see some persons who will be called "witnesses", but in our view this would be rather exceptional. The one example that the noble and learned Viscount put was that supposing they want to get some information from the medical officer of Bedford prison, then a telephone call would do. That may well be common sense. This is something to be worked out with the Board itself, the modus operandi. It is not a question of whether or not they should have information; it is merely a question of how the information should be supplied. These are things that have still to be worked out.

Having heard what has now been said, certainly I will look at the wording of this subsection to see whether a way can be found to meet the objectives. From the way I have acted throughout the Committee stage your Lordships will appreciate that I see the difficulty of the noble and learned Viscount, and I hope that I have made mine clear to him. I think our objective is the same.

VISCOUNT DILHORNE

I am grateful to the noble Lord, for I think that when he comes to look at this matter in the light of this debate he will see that subsection (3) is capable of being misinterpreted. It may be that I have misinterpreted it, but I do not think I am alone in that. I certainly feel that the wording wants improving. I take the noble Lord's objection to "witnesses". It looks a little too formal. One might say: The Board shall be entitled to call for reports and obtain such information whether in writing or orally as they may require. I am quite satisfied with that. Certainly, if we are to define the Board's powers, as subsection (3) purports to do, let us define them accurately so that it is quite clear they are understood. Having said that, and hoping that the noble Lord will be able to meet this point, as I think he can, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

7.12 p.m.

LORD BROOKE OF CUMNOR moved, in subsection (5)(b), to leave out from the first "of" to the end of the paragraph, and to insert: each such person by one or more members of any such committee;

The noble Lord said: In moving this Amendment, No. 59, it may be for the convenience of the Committee and may lead to a saving of time if I speak also to Amendment No. 60, because both Amendments are closely connected with the work of the local review committees. It may afford an opportunity for any noble Lord who wishes to say something about this important development to do so at this stage.

LORD STONHAM

As we are now considering two rather important Amendments, does the noble Lord think that it would be better to adjourn at this point before we become involved in the detailed discussion?

LORD BROOKE OF CUMNOR

That would be perfectly acceptable to me, but I do not know whether it would be acceptable to noble Lords generally.

LORD STONHAM

I think that, as this discussion may well take an hour, it would be for everybody's convenience if we now adjourned until 8.30.

[The Sitting was suspended at 7.13 p.m. and resumed at 8.30 p.m.]

LORD BROOKE OF CUMNOR

Just before we adjourned I had begun to move Amendment 59 and had suggested that if it was to your Lordships' convenience it might save time if with it we discussed Amendment 60. For my part, I think it would be most helpful if on these two Amendments we could have a general discussion on the local review committees. Let me say at the outset that I have no intention of dividing on either of these Amendments. I think we should use our time more fruitfully if we expressed our views and discussed across the Floor of the House how these local review committees will work, and then further thought can be given to the whole subject between now and Report stage.

The purpose of my first Amendment is to secure that every prisoner who is under consideration shall have the opportunity of appearing before at least one member of the local review committee. I believe that that is the Government's intention, but it is not actually stated on the face of the clause. It seemed to me that in certain cases he should be seen by one member of the committee, and that it might be desirable in some cases that he should be seen by more than one member, or by the whole committee. I want to make quite sure that the wording of the clause allows for that. But the point to which I attach importance here is that a prisoner who comes up for consideration by the local review committee in the normal course of events will know that he has a right to be seen by at least one member of the committee if he wishes to exercise that right.

It is very important that, as with the so-called Prison Licensing Board, there should be complete confidence in this system; that the Home Secretary should have confidence in it, that the Licensing Board should have confidence in it, and that the prisoners should have confidence in it. That is why I think it is worth while spending a little time discussing the local review committees. As I said on an earlier Amendment, subsection (5) does not seem to be fully integrated with the rest of the clause, yet I am quite sure that the local review committees have an extremely important part to play which is integrated with this whole business of consideration by them, by the Licensing Board and by the Secretary of State.

I put down Amendment No. 60 to insert the words: A local review committee shall not include among its members any person employed in the prison service to emphasise at this level also the importance of what I sought to say about the Prison Licensing Board in another connection. It seems to me of great importance that the ordinary prisoner should not regard the local review committee as just an adjunct of the prison service; as just a tool of the prison governor. I shall not be surprised if the Government say that this Amendment goes too far, and that it would be a mistake to exclude all members of the prison service from the local review committees. But, as I said earlier, I am not proposing to press this Amendment. But what I am extremely desirous of ensuring is that the local review committee shall be seen by prisoners, collectively, as something which is not simply under the control of the prison governor. I believe that the Government have in mind some such composition as: a prison governor or his deputy; a member of the visiting committee of magistrates or the board of visitors, as the case may be, of that particular prison; and a senior probation officer. I would strongly urge that, in addition, there should be at least one person who is not connected by any official relationship whatever with the prison service.

Other Government Departments, I believe, have learnt the value of associating with bodies appointed to do this kind of work someone who not only is completely independent, but is seen to be independent and known to be independent. I genuinely believe that this would make a difference to the success of the scheme, because it will ensure that prisoners understand that there is at least one member of this committee who is under no sort of control by the prison service, who is not indebted to the prison service in any way and who, as I say, is not in any official relationship with it. I am quite sure that the noble Lord, Lord Stonham, is personally anxious to make these local review committees as productive and as valuable as they can possibly be. Nor do I think that the Licensing Board could do its work without cases being sieved by somebody of this kind.

May I mention a couple of other points? They are not covered by any Amendments, but they are closely related to this subsection and the rules that the Secretary of State is to make. I feel a concern that local review committees attached to different prisons throughout the country should keep generally in line with one another. It is very desirable that an idea should not grow up, whether justified or unjustified, that you get a very poor chance with the local review committee at X prison but that at Y prison it is much softer. I feel sure that if anything like this were to go wrong it could be guarded against by some kind of manual of guidance, as it were, issued by the Home Secretary and laying down broad criteria to which, in his view, the local review committee should pay attention. After all, as they are reporting to him he is not interfering with the way they carry out their responsibility if he does issue some manual of guidance of that kind. Whatever the means adopted, I feel sure the noble Lord, Lord Stonham, will agree that it would be extremely undesirable if some local review committees gained a reputation of being more lax and others that of being more strict.

Likewise it is clearly going to be important that the members of the Licensing Board, the national body, should have equal confidence in all the local review committees, because, as we have heard, a great deal of the material coming up to them will be related to the reports which the local review committees have made. I think it would be valuable if members of the national Licensing Board had opportunity from time to time to "sit in" as observers on some of the local review committees, so that they could see how the work was being done at the lower level before it came up to them.

But, coming back to my Amendments, the main purposes I should like to secure are: first, that it is made absolutely clear on the face of the Bill that every prisoner who wishes to exercise the right has the right to appear personally before a member of the committee; and, secondly, that the membership, the composition, of the local review committee is somewhat wider than what I understand the Government have in mind, and that each committee should include at least one person who is in no official relationship whatever with the prison service. I beg to move.

Amendment moved— Page 39, line 24, leave out from first ("of") to end of line 25 and insert ("each such person by one or more members of any such committee;")—(Lord Brooke of Cumnor.)

VISCOUNT DILHORNE

I support the Amendments tabled by my noble friend. In fact, with regard to one of them I think I go a little further than he does. I suppose it is a necessary consequence of the late acceptance of this proposal that there should be a Licensing Board—I call it that without prejudice—that there should be a provision in the Bill dealing with local review committees and their powers by rules. I think it unfortunate—it may be unavoidable—that when we get the rules we shall not be able to amend them. We must either take them or leave them individually; there is no opportunity to suggest any alteration. Therefore it is perhaps in this debate, and only in this debate on these clauses, that we can express views to which we hope the Government will pay attention.

I need not repeat again that I am very much in favour of a licensing system. I think there must be a central board; I think there must be a system of filtering, otherwise the central board will be absolutely overwhelmed. But if this scheme is going to work satisfactorily—and we all want it to work satisfactorily—it is going to depend, as I see it, on the constitution and the functioning of the local review committees; because it is only if the case passes the local review committees that, in the ordinary way, it will come up to the Home Secretary and the central body. People who get rejected by these local review committees when someone else in the same prison gets through are likely to feel a great sense of dissatisfaction. This may be to some extent unavoidable.

I would submit to the Government that if these local review committees are to function properly it is just as important that they should be independent, and appear to be independent, as in the case of the central reviewing body. While I, for one, would not be in any way opposed to some former member of the prison service serving on the central body—because some of them could be very valuable; I can think back to some leading figures in that service in the past and consider they could have been very useful—I feel that when it comes down to the local review committee (and this is where I go further than my noble friend) it is very important that no serving member of the prison service should serve on that committee. It must be really independent.

Quite how it is going to be constituted we do not know—I should find it difficult to formulate precisely how it should be constituted—but I would stress that one could and should exclude that category. Once that category is included the chances of this body being regarded by the prisoners as independent will have gone. It is all very well to say that if this was the idea put forward by the Opposition in another place they ought to have worked out the scheme. But the Government, with all their resources, have accepted this suggestion—I think wisely: and I am glad they have—and it is for them to work out the details of it. I should like to see the prisoner concerned having the right to see one member of the review committee. One wants to see what criteria the review committee have to apply. But it is also very important that, however constituted, the review committee should not contain as one of its members either the governor of the local prison or anyone in the prison service.

8.45 p.m.

LORD STONHAM

I am extremely grateful to the noble Lord, Lord Brooke of Cumnor, for his helpful attitude in this matter, not only for his useful suggestion that we should discuss Amendments Nos. 59 and 60 together, but for the other remarks which he made indicating that he was not in this matter attacking a point to secure a Division but that he wanted a general exchange of helpful views which might be calculated to ensure we make progress towards the objective which I am glad to say we all have in mind. I hope that the noble Lord will not regard me as discourteous if I first reply to the points made by his noble and learned friend, Lord Dilhorne.

The noble and learned Viscount said it was unfortunate that we have to deal with the composition of the local review committees by rule. As he rightly said, this may be partially attributed to the fact that we have incorporated the Board into the Bill in the course of the discussions in another place. Nevertheless, I can assure the noble and learned Viscount—and this is no idle statement—that everything said here will be considered with extreme care when we build up the rules. I was glad to hear the noble and learned Viscount say that there must be a system of filtering. This may not be as generally recognised as he so obviously recognises it, but the fact is that we shall start on the appointed day with a backlog of some 4,000-plus cases of prisoners who have technically qualified; that is to say, they will have served one-third of their sentence or twelve months, whichever is the greater; and during the twelve months after the appointed day there will be some 4,500 men who will qualify. So we have to make arrangements whereby during the twelve months from the appointed day we can deal with some 8,500 cases, the backlog and the current cases. This is no light matter, and of course we have begun such arrangements as we can make before Parliament approves our proposals in whatever form they are finally approved.

There is one point upon which I should like to correct the noble and learned Viscount. He said that only if a case passes the local review committee will it come to the Home Secretary. This is not so. Every technically qualified case will be considered. That means the whole lot. They will be considered by the local review committee. The recommendations of the committee will vary, but it is not true to say that the cases will not be considered.

VISCOUNT DILHORNE

I did not suggest that they would not be considered, but I was suggesting, perhaps wrongly, that if they are to go further forward in the ordinary way they would be passed on by the local review committee. Otherwise the filter does not serve a useful purpose.

LORD STONHAM

Then I have not made myself clear. All the cases will have to be passed on; some with favourable recommendations, some as borderline cases and some with negative recommendations: but every case will be considered.

VISCOUNT DILHORNE

By the Home Office?

LORD STONHAM

Yes. Well, before they are considered—

VISCOUNT DILHORNE

May I get this clear? The noble Lord says that every case will come before the local review committee. That I understand. But is the noble Lord saying that, when the local review committee has considered the case, whatever the committee recommends—whether it recommends that there should be a release on licence, or no release—every single case coming before the committee will be sent on to the Home Office? If so, I do not understand how the local review committee will operate as a filter.

LORD STONHAM

Yes, that is what I mean. Every case will be considered by the local review committee and their recommendation, whether favourable, mid-way or negative, will be sent to the Home Office. It is correct to say that every case will be considered by the Home Office. While I am on this point, let me answer the question put to me by the noble Lord, Lord Brooke of Cumnor. do not want to misquote or mislead the noble and learned Viscount in any way whatever; this matter is far too important for me to do that. Every technically eligible prisoner will be interviewed by one member of the local review committee. By the very nature of things that means that some prisoners will be seen before others, but they have an equal right to be seen, and information about every case will come to the Home Office.

LORD PARKER OF WADDINGTON

May I intervene to clear this point up, because I am not certain about it now. The local review committee will consider everybody who is eligible, and then will give a positive or negative recommendation to the Home Office. I have understood so far, but I may be wrong, that if there is a negative recommendation, that is an end of it. The Home Office will not convert that into a positive recommendation and send it on to the Board. In other words, the local review committee will be a filter. They will examine every case, but if they do not recommend release, that is the end of it.

LORD STONHAM

I cannot agree that that is the end of it, because cases will be reviewed again by the local review committee. Their decisions will be guided in large measure by a man's response to training, and it would be utterly wrong to suggest that when a man's case was first reviewed and turned down, that that was the end of the matter.

VISCOUNT DILHORNE

This is extremely important. I agree that a man could apply again if technically qualified, after he has had some training. But if the local review committee on one application give a negative answer, is that the end of that application or not? That is what we want to get clear.

LORD STONHAM

The answer is that that is not necessarily so. The Home Secretary has the ultimate responsibility, the complete responsibility, for those cases which are submitted to the Board. Therefore it is not possible to say that if a man's case is not recommended by the local review committee that is an end of the matter, because that would be tantamount to saying that because the committee does not recommend a man's release, he cannot be released. That would be unacceptable. Would the noble and learned Viscount like to interrupt?

VISCOUNT DILHORNE

I would much rather the noble Lord finished.

LORD STONHAM

I said earlier that many men—perhaps the majority—will be disappointed, and will not feel that their case has been conducted fairly. They may petition; letters may be sent to Members of Parliament, and Questions may be raised in the House about individual cases. Those cases will have to be considered. We shall have at the Home Office information in regard to those cases. I hope that I have answered this clearly enough. As I say, every case will be considered by the local committee, and every prisoner technically entitled will be interviewed.

When it comes to the question of review, the prisoner does not have to apply for his case to be reviewed. He may do so, but he does not have to: it will be reviewed as a matter of course. This is a continuous process while the man is in prison. Indeed, when the member of the local committee interviews the man, the man is able to make any kind of representation. For example, supposing a man who has been on licence is recalled, he may well feel aggrieved about that. He may make representations. That is provided for in the Bill. But it is envisaged that a member of the local review committee will explain the matter to him and in all respects keep the man informed, so that if there is a sense of injustice it can be dissipated and the man can be made to understand. We regard that as very necessary.

I perhaps started at the wrong end—I do not mean this disrespectfully—in dealing with the noble and learned Viscount's point first, but there were certain things that I felt I had to reply to. I will now try to deal with the questions addressed to me by the noble Lord, Lord Brooke of Cumnor. He said that every prisoner should have the opportunity to appear before at least one member of the local committee. I can give the assurance at once—indeed, I have already given it—not only that every technically qualified prisoner will be seen by one member of the committee, but that the wording of the Bill, as at present, does not preclude him from being seen by an additional member of the committee when perhaps a second opinion may be required. In case the noble Lord points out that this has to be settled by regulation, I can say that it will certainly be clear in the regulations.

The one thing that I cannot accept—and I hope the noble Lord will agree with me—is that the man should be seen by the whole committee. Our experience with the Boards which decided about preventive detention convinces us that a man is disturbed and overstrained by appearing before a committee. He cannot for the life of him—and I have had hundreds of letters from P.D. men—understand what was wrong with his performance before the Board; he cannot understand why he was turned down. We do not want that condition of strain. I can give the assurance that was asked for, and on that point, at least, the noble Lord's Amendment is not necessary.

The second point he put to me was that on his second Amendment, No. 60, he would wish to exclude a member of the prison service from the local committee. The noble Lord was not pressing this, but he was desirous of ensuring that the local committee is not under the control of the governor. The local committee will certainly not be under the control of the governor. But a great deal depends, with regard to release, on the type of custody in which a prisoner is kept and the type of treatment he is given, which must depend to some extent on his release prospects. The governor has an overall responsibility which cannot be dispensed with. In our view he must he a member of the local committee.

The noble Lord, Lord Brooke of Cumnor, also strongly urged that there should be one person not connected in any way whatsoever with the prison; he must be seen and known to be independent. I would point out that the member of the visiting committee need not be a magistrate, and I thought that that would have filled the bill in that respect.

LORD BROOKE OF CUMNOR

May I intervene on a point of correction? A member of the visiting committee would be a magistrate; a member of the board of visitors would not necessarily be a magistrate. But my concern is that there should be somebody on this local review committee who cannot be thought of as being part of the general prison set-up, and I have a fear that if the committee consists simply of the prison governor, a member of the board of visitors or visiting committee and a senior probation officer in the Probation and After-care Service, a great many prisoners will regard this as really a part of the whole prison set-up, and that is what I want at all costs to avoid.

LORD STONHAM

I am grateful to the noble Lord for correcting me. I should have said that a member of the board of visitors need not be a magistrate. But the noble Lord has made his point, which is a valid one, and I would say that the clause as at present drafted does not preclude what he wants. I am not saying that we shall be able to meet him entirely, but we shall certainly look at that point which is certainly in line with our discussions so far.

The noble Lord then said—and I think we should all agree with this—that local committees should keep generally in line with each other. I entirely agree with that. I would tell the noble Lord that in the Department we have had a Working Party on this since last November, and they made a computation (I will not reveal the figures) of the number of men who might well be eligible for release out of those who were technically eligible at the appointed day. And, based on figures which were provided in one region last April, I myself, with an entirely different method of computation, worked out how many might be found suitable for recommendation for release, and miraculously the two figures, arrived at in entirely different ways and by two separate bodies, were exactly the same.

Of course that does not remove the possibility, which I admit, of some prisons being regarded as being good prisons for release and others as very bad ones. But I should like to say this to the noble Lord. He will be aware of our allocation system and our categorisation of prisons—"A", "B", "C" "D"—the "D" prisons being the open ones. We want a man's prison life to move within those categories according to his progress, and it is quite obvious, not only in the nature of things but because of that progress, that the greater number of actual releases on licence will eventually come from the "C" and "D" prisons, because that is where the men will have moved to in accordance with their progress.

But having said that, I fully agree with the noble Lord that there should be a manual of guidance—and that was the noble Lord's own expression, "a manual of guidance", and that is what we intend to provide. He may be interested. and the Committee may be interested, to learn the broad principles on which we think that guidance should be supplied. The object of the scheme remains as it is in the White Paper originally produced by my noble friend Lord Stow Hill when he was Home Secretary: that is, to release those prisoners who are likely to respond to generous treatment and are not regarded as a risk to the public. But to put this in some greater detail, the intention is that a prisoner should be released on licence after consideration of his criminal and social history before his current sentence, including the length of periods of liberty, any conduct under supervision or response to after-care, work record, and domestic background; his response to treatment and training in prison during his current sentence; the circumstances of his current offence, including in particular any observations by the sentencing judge or the Court of Appeal, and information about his domestic and employment situation on release. Consideration will also be given to whether he has co-operated in the training provided and made satisfactory response; has reached a point in his sentence in which further training is unlikely to improve his prospects of leading a good and useful life on release; whether there appears to be no significant risk of his committing a further serious offence, and that arrangements are available, or can be made, for accommodation and occupation outside prison; and whether there are no overriding objections in the circumstances of the offence itself, having regard to such considerations and observations made by the courts at the time.

Broadly speaking this is the guidance (it could be made more precise) which will be issued. The noble Lord, Lord Brooke of Cumnor, also said that it was important—and I agree—that the Licensing Board should have equal confidence in local review committees. As I would suggest to him, and I know he will agree, if inequality emerged the Board would become aware of it and, I am sure, would take appropriate action. I think his suggestion that a member of the Board might sometimes go as an observer of the work of local committees is an excellent one. I cannot say that we should send a member of the Board, because it is an independent Board and it is a matter for them. But such a visit would, I know, be welcome, and indeed it would seem more reasonable and convenient that when a single member of the Board wanted to see a single prisoner he should see him in prison and not bring the prisoner up to London, or wherever the headquarters happen to be, to meet the Board. But these are matters for the Board.

I have tried to give a clear picture of the facts. There is not a tittle of difference between us in our objectives. It is quite true, as the noble and learned Viscount said, that the Board was interposed in the Bill in another place and we have a lot of work to do on the regula- tions. Everything that has been said here will be most carefully considered, and I firmly believe that at the end of the day there will be complete agreeement between us, not only as to our objectives (as there is now) but as to the means of achieving them.

LORD PARKER OF WADDINGTON

It is because we are all so anxious that this clause shall work in practice that the subject we are now debating is so very important. I started my consideration in this way: that in countries where the review board really works well—and I am thinking of New Zealand and some of the States, in particular Victoria, in Australia—there is one central board which is utterly independent and which interviews each prisoner who is eligible. I am the first to appreciate that that would be quite impossible in this country, having regard to numbers, and there must be some filter or filters; but one has only to think of it in that way to realise that the first filter (if it be a filter) must command the confidence of the prisoners. Otherwise they will feel that they are entirely in the hands of the prison governor and the prison authorities. I still think (and I am sure the noble Lord will correct me if I have misunderstood the position), the local review committee is a filter, in the sense that it will see every prisoner and will then recommend. No doubt those who are recommended for release will be considered first by the Home Office with a view to sending the matter on to the central committee. A negative recommendation, as the noble Lord put it, does not necessarily (I think those were his words) mean the end of the matter. But I imagine that by that he means that the consideration of those who get a negative report will be delayed: they will be allowed to do a little more training before they are put forward in turn to the central committee. Therefore, the local review committee is a filter.

Unless the Home Office is going to be bombarded by petitions from people who have not obtained their release, who have not had their cases sent on to the central committee, I think it is of vital importance that the local review committee should appear to be at any rate independent. I personally would not go so far as to say that no member of the prison service should be on it. The noble Lord said that the governor ought to be on it. I am by no means sure that he should. He is obviously the most important adviser to the local review committee, albeit he is mainly concerned with the way a man has conducted himself in prison, though that may not be the best criterion of how he will behave if subjected to the stresses of normal life. Be that as it may, any local review committee would pay the greatest attention to the governor, whether he was or was not a member of the board. I should have hoped that the Government might have seen their way to let us know in more detail who would constitute the local review committee and would put its constitution in the Schedule, in the same way as the central committee's constitution appears in the Schedule.

It that is not done, it seems to me that we ought to have some assurance that the local review committee will appear to be independent, that this connection with the prison will not be in the majority—because we are here dealing, I imagine, with a majority verdict. I hope that the Government will think further on this matter and either provide in Schedule 1 what the constitution shall be, or at any rate provide in this clause with which we are dealing that it shall be an independent committee.

9.13 p.m.

LORD CHORLEY

I should like to make two points arising out of the discussion as far as it has gone. The first of them is on the slightly technical side. I am rather disturbed by the statement by the Minister that a negative decision by the local review committee is not necessarily the end of the matter. Of course, I appreciate that technically, acting on behalf of the Crown, the Home Secretary has rights over the whole administration of the criminal law, and in a proper case no doubt he can, and does from time to time, intervene. But if he goes further than that I think this would create a very dangerous situation.

The noble Lord said, if I understood him correctly, that these matters might possibly be raised in Parliament. I think that if that happens the whole thing is going to get into a complete mess. If Members of Parliament are going to be "got at" by relations and people who have been turned down by the local review committee, and if the matter is going to be brought up here, it is going to be a very dangerous and difficult situation. I would express the greatest hope that this situation will not be allowed to develop in this way. I hope that what the Minister said was not an indication that it might so be allowed.

My other problem is one which has been touched on by the noble and learned Lord the Lord Chancellor, and indeed by other speakers; namely, the personnel of these committees. This, it seems to me, is the crux of this whole problem. It has not really been sufficiently discussed in detail, and, as I understand it, this system has to a large extent failed in the United States. It has not succeeded as well as had been hoped in some of the parts of the British Commonwealth where it has also been tried, although I believe that the experience there has been rather more satisfactory than in the United States.

I have not personally been able to make a study of this aspect, but colleagues of mine have done so and, so far as I understand it, in the United States the general view is that the failure—on the whole, it is accepted by British students of the American penal system to have been a failure—has been largely due to the fact that the reviewing boards have been ill-chosen. One can quite understand that that might be so. If this work is going to be done properly and efficiently it will depend tremendously on the people who are doing it. At the moment we have practically no indication of how these people are going to be chosen, and what sort of qualifications will be required. By means of the Amendment before the Committee at the moment we are trying to prevent prison officers from being given a position of authority in regard to this problem. I am sure that that is right. But we have to go much further than that, and I hope that before this matter is finally concluded the Home Secretary will publish in the shape of a White Paper or draft rules, or something of that kind, some sort of indication of what is going to be done.

It is very important that in Parliament, and indeed in those circles in which matters of this sort are under constant scientific study, the material on which judgments can be formed should be provided. I want to underline that. I think this is going to be the crux of the whole thing. If this side of the matter is not properly looked after I am rather afraid that this promising proposal may fizzle out, as to a large extent it has done in some of the States of the United States of America. I hope that we shall not follow that line, but that, before this matter is finally concluded, we shall be given the opportunity of seeing what is proposed, how the personnel is to be chosen, and also the opportunity of expressing our views upon it.

VISCOUNT DILHORNE

Not for the first time in the course of this Committee stage (I think it is unique that it has happened twice in the one day) I find myself substantially in agreement with the observations of the noble Lord who has just sat down. I do not think it has ever happened before. I thank the noble Lord, Lord Stonham, for explaining so carefully exactly how he contemplates this system will work. I will certainly study what he said. From what he said, I am not at all sure that the local review committee can be correctly described as a "filter". It seems to me to be designed to arrange the priority of the cases for release. But, however that may be, I would ask the noble Lord to think again whether it really is necessary for the governors of prisons to be members of the local review committee. I entirely agree with him that the governor must have the closest access to the committee. His views on what should happen are obviously things to which the committee must pay great attention. With that I entirely agree. It does not necessarily follow that the governor should be a member of that committee and a party to the actual decision. It would be unfortunate if he were a party to a decision of the local review committee to give a negative answer to any particular prisoner. It would be much better for him to express his view and allow the body which is independent to decide. I hope the noble Lord and the Government will give further thought to this matter.

LORD BROOKE OF CUMNOR

I trust that it is the Government's feeling, as it has been mine, that this has been a most productive as well as a fascinating discussion. I hope the Government will give careful thought to all that has been said; and most particularly to what has been said by the noble and learned Lord, Lord Parker of Waddington, who expressed what I have been trying to say much more successfully than I myself, could have done. What is obvious is that this Committee is intensely interested in the whole subject of the local review committees and the Licensing Board, and that your Lordships are, without exception, anxious to try to make their contribution, alongside that of the Government, to render this scheme a success. I said at the outset that I had no intention of pressing this matter to a Division, and when the time comes I will withdraw my Amendment. But before I do, perhaps the noble Lord, Lord Stonham, would like to say something.

LORD STONHAM

I am most grateful to the noble Lord. I thought that it would not be right for us to end this discussion without some word from me on what was said by the noble and learned Lord, Lord Parker of Waddington. He made the important point that the first filter must command the confidence of the prisoners, which was analogous to the point strongly made just now by the noble Viscount, Lord Dilhorne, that, in his view, the governor should not be a member of the committee but that he should express his opinion and give his advice without taking a part in the actual decision. This is a matter on which I shall certainly report to my right honourable friend the Home Secretary, and we will return to it at a later stage of the Bill. My own feeling at the present stage is that this filter process is mainly a professional job which should be done carefully and conscientiously by the people who know most about the man concerned. I feel that that is supremely important. I do not think it is right to suggest that prisoners are distrustful of the governor. They write to him and can. and do, go to see him about almost anything, and most governors enjoy the confidence of inmates. Nevertheless, it is a point about which noble Lords obviously feel quite strongly, and I will have the matter looked into.

The noble and learned Lord, the Lord Chief Justice, said that the Government should let us know who would constitute the local committee, and went further by saying that this should be put into the Schedule. That matter also will be looked at, though I do not give any kind of assurance on the point. My right honourable friend has already indicated that it is our present intention that the local committees should be comprised of the governor, a senior member of the probation service and a member of the visiting committee. I submit to the Committee that those connected with the prison would not then be in a majority but in a minority of one as against two—that is to say, two-thirds of the committee would not be connected with the prison service.

My noble friend Lord Chorley, with the agreement of the noble and learned Viscount, Lord Dilhorne, protested his alarm at the prospect of Members of Parliament being "got at". We must be realistic about this. Nothing on earth can prevent the relatives of a prisoner from writing to a Member of Parliament, if they feel that their relative ought to have been released on licence and has not been; and nothing can prevent that Member of Parliament from writing to the Home Secretary about it if he feels so disposed. One of the great advantages of the Board is that it is recognised as an independent body, making independent decisions which cannot reasonably be questioned. I should like to say to all those noble Lords who have taken part how grateful I am for their contributions, and still more for the manner of them. They will be carefully considered, and I am sure that in guiding our final decisions they will be of great value.

LORD BROOKE OF CUMNOR

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 48, as amended, agreed to.

Clause 49:

Release on licence of persons serving determinate sentences

49.—(1) The Secretary of State may, if recommended to do so by the Prison Licensing Board, release on licence a person serving a sentence of imprisonment, other than imprisonment for life, after he has served not less than one-third of his sentence or twelve months thereof, whichever is the longer.

(3) A person subject to a licence under this section shall comply with such conditions, if any, as may for the time being be specified in the licence.

VISCOUNT DILHORNE

One curious matter about this Part of the Bill is that it does not say that a person subject to a licence shall be under the super- vision of a probation officer. Surely that is intended; indeed, I should have thought it was essential that there should be regular reports about the behaviour of a person who is released on licence. I have put down this Amendment to ensure that that is, in fact, the case. I believe it is implicit in the Bill that that should be so, but it is not in any way expressed in the Bill that a person released on licence should, while under licence, be subject to probation. I beg to move.

Amendment moved— Page 40, line 7, at end insert ("and shall be under the supervision of a probation officer.").—(Viscount Dilhorne.)

LORD STONHAM

It is not our intention to make supervision of every licensee by a probation officer compulsory. The Bill does convey our intentions correctly. Naturally, it is the Government's intention that in the overwhelming number of cases the licensee shall be under the supervision of a probation officer, and he will be required to keep in touch with that officer in accordance with such instructions as the officer may give. The effect of subsection (3) of the clause is to provide for the imposition of whatever conditions may best suit the licensee, and for this purpose it is necessary to retain some flexibility. The variation of conditions in a licence may sometimes prove desirable, and for those with a very lengthy period on licence it may sometimes be possible to remove the condition of supervision, especially as a means of easing the transition towards complete freedom on the expiry of the licence.

I am quite sure that, in the main, the noble and learned Viscount has fixed-term prisoners in mind, but his Amendment would also apply to life sentence prisoners through the operation of subsection (2) of Clause 50. For them super. vision for the entire period of licence could extend, in the event of a young person—and we do have murderers under twenty-one—to forty years, and would serve no useful purpose, in any case, once the licensee was thoroughly rehabilitated. Of course, under subsection (4) of Clause 49 the Secretary of State will be bound to consult the Prison Licensing Board before imposing, varying or cancelling a condition of licence. There will thus be an effective safeguard to ensure that supervision is a condition of licence wherever it is thought desirable. But, for the reasons I have stated, which I think are valid reasons, we do not want to make supervision by a probation officer compulsory in every case.

LORD BROOKE OF CUMNOR

I appreciate the point that the noble Lord, Lord Stonham, has made: that in certain suitable cases it may be desirable to relax or remove the condition of supervision by a probation officer. But perhaps this is an appropriate moment for me to ask a question which has been weighing on my mind. The noble Lord said that in the overwhelming majority of cases he anticipates that supervision by a probation officer will be a condition of the licence. That prompts me to ask the Government about their ideas of timing, because this scheme is going to involve a very considerable additional load on the probation service in certain places.

I know that one can argue from figures that, in relation to the total amount of work the probation service has to do, this additional supervision will not amount to very much, but we must be realists and recognise that a very large number of these people who have been sentenced to fairly long terms of imprisonment will be going back to certain parts of London or the big cities. This is not going to be a load spread evenly on the probation service throughout the country. It will fall with especial weight on the probation service in certain cities, and it will be disastrous if the strength of the probation service in those cities is not by then at a level which enables the service to feel that it is strong and fit enough to do the job.

Again I am asking this question because I am most anxious that the scheme shall be a success: Can the Government give an undertaking that before bringing these provisions into operation—and I understand that that can he done by orders at different dates for different parts of the Bill—they will satisfy themselves that the probation service in the big cities will be able to carry the additional load put upon it?

LORD HAMILTON OF DALZELL

should like to endorse what my noble friend Lord Brooke of Cumnor has said. The probation service accept this as a proper part of their duties as the casework service for all offenders, but they are anxious about whether or not they will be capable of doing it. They want to do it, and they want to do it well; but they are anxious. In the Second Reading debate the noble and learned Lord the Lord Chancellor quoted a figure of 50 probation officers as being the extra number that will be required to carry out this work, and he suggested that that would be an easy enough number to find. But the service is already short, and numbers are not increasing at the rate envisaged even before this extra duty is imposed on them. Furthermore, as the noble Lord, Lord Stonham, himself said in the Second Reading debate, if the scheme is to work properly it will also require a considerable increase in the number of prison welfare officers in the prisons; and these, too, have to be found from the probation service. So, even if the demand does represent an additional load corresponding to only 50 probation officers, it will be a heavy burden, and I hope that the noble Lord will comply with the suggestion that my noble friend has made.

LORD STONHAM

Once more, let me say that, in so far as the principle of the Amendment moved by the noble and learned Viscount is concerned, there is no difference of opinion between us. It is only the question of not writing into the Bill that it must be compulsory in every case. With regard to the load on probation officers, which I agree is a most important point, it would be idle for me at the moment to quote any figures of my own of the numbers of men likely to be released. After all, they will have to go through the processes, and the Board will decide. But my right honourable friend in another place—and I can quote these figures—said that initially the releases might be of the order of 750 to 1,000.

Let us take the hypothetical figure of 1,000 releases in the first year. I agree with the noble Lord that they may be concentrated in particular areas, but we must take an average number—say, 50 cases per probation officer. That would mean work equivalent to 20 additional probation officers. Although I think we are doing reasonably well, we are not making the net increase in the numbers of probation officers that we should like. We have a target of 3,500 by 1970 (and that figure takes into account these additional responsibilities), and the numbers at the present time are something of the order of 2,500; so that the target means something like a 50 per cent. increase in a comparatively small number of years.

When I visit probation officers in their own localities and talk about aftercare, I meet with—I was going to say "complaints"; but that would be the wrong word: I meet with information that they are not getting as many ex-prisoners accepting after-care as they would like. One of my hopes for the future is that a very important result of doubling the number of probation officers who are prison welfare officers will in fact be to secure prisoners' acceptance of after-care. I do not think, therefore, that this burden (equivalent to, say, 20 full-time jobs for probation officers) is an unacceptable one. But it is extremely important that there should be maximum consultations with the probation service, not only in general but in particular relation to the burden where it is likely to fall.

As we progress and ascertain the numbers of men likely to come from the prisons on licence, and the numbers likely to go to particular localities (and therefore become the responsibility of the particular areas of the probation service), we will give that information to the probation service immediately it is available to us. It must be done, and it is naturally one of the things that I have been discussing myself. The noble Lord, Lord Brooke of Cumnor, will no doubt remember that almost immediately after he received the Report of the Committee on Preventive Detention he accepted and implemented one of its recommendations, namely, the increase in the amount of remission from one-sixth to one-third, with the result that in March, 1963, 176 P.D. men were released in one day. Of course the noble Lord had had consultations with the probation service and with the S.A.C.A., with the result that there were rather special provisions for looking after those men.

The noble Lord is probably aware—if he is not I will tell him—that as a result of those special provisions, on average those P.D. men did very much better than the normal run of P.D. men coming out. This is the kind of exercise that must be undertaken and continued with the probation service when we release men on licence. It is right to raise this question. It is a matter very much in our minds, and we shall do our best with consulting the probation service so that they may do their best.

VISCOUNT DILHORNE

I should like to thank the noble Lord for his answer. Again this is an important question, and he has given a clear answer with regard to it. I ask leave of the Committee to withdraw my Amendment.

Amendment, by leave, withdrawn.

9.38 p.m.

Viscount DILHORNE moved, in subsection (5), to leave out "the next following section" and to insert "Section 51 of this Act". The noble and learned Viscount said: This Amendment, I hope, is a winner. I remember the great speech made by the noble and learned Lord the Lord Chancellor—and some of your Lordships may remember it—that every Bill introduced by a Labour Government would be unlike a Bill introduced by any other Government: it would be easy to read; easy to understand; there would be no mistakes, no blemishes. Of course, I have always read these Bills on that assumption, but not always with a feeling that the assumption is realised. Here your Lordships will see that subsection (5) starts: A licence granted to any person under this section shall, unless previously revoked under the next following section, remain in force until a date specified in the licence… It is not very easy to understand that because the "next following section" does not deal with the revocation of licences at all; it deals with the release on licence of persons sentenced to imprisonment for life. You have to look at the next following section to find that that is the one which deals with revocation. Therefore, there is a drafting error which by this Amendment I have endeavoured to put right. I beg to move.

Amendment moved— Page 40, line 17 leave out ("the next following section") and insert ("section 51 of this Act").—(Viscount Dilhorne.)

LORD STONHAM

This Amendment shows the stuff of which Lord Chancellors are made. I too, of course, have read this Bill, not with the skill and knowledge of the noble and learned Viscount, Lord Dilhorne, but with intense concentration. I, too, share his admiration for Bills produced by the Labour Government. I am slightly disappointed to find that the noble and learned Viscount did not notice that in one part of the Bill we have printed "an" instead of "on". As he has not noticed that, I assure him it will be corrected the next time the Bill is printed. I would express my grateful thanks to the noble and learned Viscount for pointing this error out. It arose because on Report in another place a new clause was inserted as Clause 50. We ought to have noticed the mistake; I apologise, and thank the noble and learned Viscount for pointing it out, and recommend that your Lordships accept the Amendment.

LORD STONHAM moved to add to the clause: ( ) In the application of this section to Scotland—

  1. (a) the expression "prison rules" means rules under section 35 of the Prisons (Scotland) Act 1952;
  2. (b) the expression "imprisonment" includes detention in a young offenders institution as defined in section 31(1)(d) of the Prisons (Scotland) Act 1952;
  3. (c) subsection (2)(a) shall be omitted;
  4. (d) in paragraph (a) of subsection (5), the words from "to a person" where they first occur to "or" shall he omitted."

The noble Lord said: This Amendment is consequential on the application of the release on licence provisions of this Part of the Bill to Scotland by Amendment No. 114B with which we shall deal later. The explanation is quite simple. Paragraph (a) of the Amendment extends the definition of "prison rules" to cover Scottish rules. Paragraph (b) extends the expression "imprisonment" to include detention in a young offenders' institution. Section 1(4) of the Criminal Justice (Scotland) Act 1963 provides that a court in Scotland may not impose a term of imprisonment upon a person under the age of 21, but may instead impose a period of detention in a young offenders' institution. In order that the parole provisions of the Bill may apply to those under the age of 21 serving a sentence in Scotland equivalent of imprisonment in England, it is therefore necessary so to extend the meaning of the expression "imprisonment". Paragraphs (c) and (d) are required to preclude from the Scottish application persons in respect of whom an extended sentence certificate has been issued. Provision for extended sentence certificates is made in Clauses 28 and 29 of the Bill which are not applied to Scotland. Accordingly reference to extended sentence is inappropriate in the Scottish application of this Part of the Bill.

As we are now fortunate to have with us the noble Viscount, Lord Colville of Culross, I will repeat the assurance I gave to the House earlier that these Amendments relating to Scotland are put forward for approval at the desire of my right honourable friend the Secretary of State for Scotland, and I think they apply to Scotland provisions of the Bill which the noble Viscount will agree are necessary. I hope that he will not be hurt by the fact that I am moving these Amendments. I remember once when in Opposition he suggested that I might become an honorary wearer of the kilt. Perhaps the mantle has descended upon me. I beg to move.

Amendment moved

Page 40, line 32, at end insert the said subsection.—(Lord Stonham.)

9.46 p.m.

On Question, Whether Clause 49, as amended, shall stand part of the Bill?

LORD HAMILTON OF DALZELL

Before we leave this clause, I wonder whether the noble Lord would be good enough to explain the purpose of subsection (5)(b), which I find rather difficult to understand. It says in effect that the licence of an ordinary prisoner will run from the date of his release to the end of two-thirds of the sentence. I understand that it is the intention to release the soonest the man with the best chance of success outside. He will be released after one-third of his sentence, and he will then have supervision and help for the whole of the second third. The man with the least chance of success will be released later and will have less supervision, until the man who is thought to have so little chance of success that he will not be released until the end of the normal two-thirds of his sentence will get no supervision at all.

Is it really the intention that the more help a man needs, the less help he will get? Would it not be better to have a fixed period of supervision for all licensees, as is the case with borstal, or a fixed proportion, say, one-third, regardless of the actual time of release? I should be grateful if the noble Lord could throw some light on this while there is still time for the Bill to be amended, if necessary.

LORD STONHAM

A prisoner sentenced to an ordinary sentence will be released under prison rules, subject to whether or not he has lost remission, at the end of two-thirds of his sentence. Both the prisoner serving an ordinary sentence and the prisoner serving an extended sentence will be technically eligible for release when he has served one-third of his sentence or 12 months, whichever is the longer. A prisoner serving an extended sentence, at whatever stage of his total sentence, if released on licence, or after two-thirds of his sentence has been served, will be under supervision for the whole of his sentence, but an ordinary prisoner, if released on licence before he has served two-thirds of his sentence, will remain on licence only until the point has been reached when two-thirds of his original sentence would have been served. I do not know whether that covers the point the noble Lord is making.

LORD HAMILTON OF DALZELL

I was referring to the ordinary prisoner. If a man is released early, he will get the help and supervision of the probation officer up to the end of two-thirds of his sentence. The effect of this is that the better chance of success a man has, and therefore the earlier he is released, the more supervision and help he will get after he comes out. Conversely, the less chance of success a man has when released and therefore the later he is let out, up to the point when he has reached the end of two-thirds of his sentence, the less supervision he will get after he comes out, until ultimately he gets none. That does not seem to me to be satisfactory.

LORD BROOKE OF CUMNOR

I think my noble friend is on to a very pertinent point here. I realise the tidiness in the Bill, but I am not sure whether it is sufficiently purposeful. I confess that, for my part, it has always seemed to me that any prisoner who is released on any account—hitherto, of course, it has been only through normal remission—before expiry of his full sentence can reasonably be put, by law, under some form of supervision. The court sent him to prison for, let us say, three years. The court did not say that he should be out after two years under no supervision whatever.

I think the point is highlighted by what we are doing in this clause. In my view, my noble friend is absolutely right. It seems odd that the man who has been able to satisfy the local review committee, the Licensing Board and the Secretary of State that he is, or has become, so well behaved that he can be released on licence after serving one-third of his sentence will be released on licence and, in the great majority of cases, as the noble Lord, Lord Stonham, says, under supervision, while the man who is less qualified to be out in the free world on his own, having been judged by those bodies and the Secretary of State to be less qualified, will, if he behaves himself in prison, come out after two-thirds of his sentence under no form of supervision whatever. This seems to me to be somewhat topsy-turvy.

I, for my part, would not ask the noble Lord, Lord Stonham, to do more than consider carefully what my noble friend has said, because we want this to be not only tidy but just and purposeful; and while we are going through this Bill we should all like to make sure that the Bill will be as helpful as possible to all kinds of people, the good and the less good prisoners, in securing that they are as likely as possible to lead a good and useful life after they come out.

LORD STONHAM

I am grateful to the noble Lord, Lord Brooke of Cumnor, for making this point again, and indeed for making it so clearly. There is some difficulty here. As I understand it, if we were able to meet the point made by the noble Lord, Lord Hamilton of Dalzell, it would mean that the person who was not released on licence but served two-thirds of his sentence would have to remain under supervision for the other one-third. This does not arise when there is an extended sentence. I think many of the people about whom we have been most concerned will receive extended sentences and will either be in prison or on licence for the entirety awarded by the court, and they are the ones who will have maximum support. Many will live in hostels, as a condition of the licence. They will have maximum support throughout their sentence.

But there is a difficulty. It might be that a man who has committed a bad crime is given a 10-year sentence, and at the end of two-thirds of the period he comes out, as he does now, and will be free from supervision. I see no way of meeting that point in the somewhat rare cases in which that situation would arise. Of course, we could not meet it the other way, because if we did, the person on licence would have to be kept beyond his two-thirds date and would be put at a disadvantage with the people who were not given release on licence and who would come out at the end of their two-thirds period free men. It is a difficult point, and, frankly, I do not see at the moment any way of meeting it. But certainly I will look at it, and I will get in touch with the noble Lord between now and Report stage in case he wants to raise the matter again.

Clause 49, as amended, agreed to.

Clause 50 [Release on licence of persons sentenced to imprisonment for life, etc.]:

9.56 p.m.

LORD STONHAM

This Amendment is also consequential on the application of this part of the Bill to Scotland by Amendment 114B, which we will deal with later. Paragraph (a) substitutes for the reference to the Children and Young Persons Act 1933 the equivalent Scottish reference. Paragraph (b) provides for consultation with the Lord Justice General where a person serving a life sentence or detained during Her Majesty's pleasure in Scotland is being considered for release on licence. I beg to move.

Amendment moved—

Page 41, line 6, at end insert— ("( ) In the application of this section to Scotland—

  1. (a) for the references to section 53 and 53(2) of the Children and Young Persons Act 1933 there shall be substituted respectively references to section 57 and 57(2) of the Children and Young Persons (Scotland) Act 1937;
  2. (b) in subsection (1), for the words 'Lord Chief Justice of England' there shall be 764 Substituted the words 'Lord Justice General'").—(Lord Stonham.)

On Question, Whether Clause 50, as amended, shall stand part of the Bill?

VISCOUNT DILHORNE

If one looks at Clause 50(1), one sees that it reads as follows: The Secretary of State may, if recommended to do so by the Prison Licensing Board, release on licence a person serving a sentence of imprisonment for life … but shall not do so in the case of a person sentenced to imprisonment for life or to detention during Her Majesty's pleasure or for life except after consultation with the Lord Chief Justice of England together with the trial judge if available. In ordinary language that means that the recommendation comes first from the Prison Licensing Board to the Secretary of State, who then consults with the Lord Chief Justice. The noble and learned Lord the Lord Chancellor, when this point was raised on Second Reading, said: It is the intention of my right honourable friend that in the case of a life sentence the noble and learned Lord the Lord Chief Justice and the trial judge would be consulted before the case goes to the Board."—[OFFICIAL REPORT, 10/5/67, col. 1565.] As I read this clause, it does not carry out that statement. It is obviously right that he should be consulted before it goes to the Board, but the clause as drafted seems to me clearly to contemplate consultation after a recommendation has come from the Board. I draw the noble Lord's attention to that point in the hope that it will be considered.

LORD STONHAM

I naturally agree with my noble and learned friend that this must be the order, and that is our intention. In these cases the Lord Chief Justice and the trial judge must be consulted first, because there will be some cases, one would have thought, where the Lord Chief Justice will say, "No", in which case there will be no reference to the Board at all. I could have assured the noble and learned Viscount before he raised the matter, had he asked me this privately, that I should have given him the same answer. Now that he has said the words appear to have a different interpretation, naturally I will look at the point. But I would assure him now that the procedure which my noble and learned friend the Lord Chancellor mentioned on Second Reading is the one which we feel the words convey. I am not disputing the matter, and I will look at it again.

VISCOUNT DILHORNE

I think that it is only a matter of wording, and that there is nothing between us, but it seems to me that the contrary view could be taken, and that the wording probably ought to be altered. I am grateful to the noble Lord.

Clause 50, as amended, agreed to.

Clause 51:

Revocation of licences and conviction of prisoners on licence

51.—

(4) The Secretary of State shall refer to the Board the case of a person recalled under subsection (1) of this section who makes representations under the last foregoing subsection and shall in any event so refer the case of a person returned to prison after being recalled under subsection (2) of this section.

(6) If a person subject to a licence under section 49 or 50 of this Act is convicted by a magistrates' court of an offence punishable on indictment with imprisonment, the court may, instead of dealing with him in any other way, commit him in custody to quarter sessions for sentence in accordance with section 29 of the Criminal Justice Act 1948 (power of quarter sessions to sentence persons convicted by magistrates' courts of indictable offences).

(9) If in the case of a person subject to a licence under section 49 of this Act, a court of assize or quarter sessions revokes that licence under this section, the Secretary of State shall not thereafter release him under that section before the expiration of one year from the date of revocation or before the expiration of one-third of the period during which the licence would have remained in force whichever is the later; but the foregoing provision shall not affect any power to release him otherwise than under that section.

(10) This section shall have effect, in its application to a person sentenced to be detained under section 53 of the Children and Young Persons Act 1933 (young offenders convicted of grave crimes), as if for any reference to a prison there were substituted a reference to any place in which the Secretary of State directs that person to be detained.

10.0 p.m.

LORD HAMILTON OF DALZELL moved to add to subsection (4): and a person recalled under either subsection (1) or (2) of this section shall be entitled to appear in person before the Board unless his recall results from his being charged with a further offence.

The noble Lord said: I made it clear on Second Reading that I was not really happy about the arrangements for the recall, if necessary, of men on licence. I should have preferred a system by which men whom it was proposed to recall should be brought before a court, in the same way as a man is brought before a court for a breach of a probation order. It was clear that was not likely to be accepted, and so I have not pursued it.

I think it is the least satisfactory part of the proposed system that a man can be arrested and taken back to prison simply on the basis of a report from his supervising officer, without any opportunity at all of defending himself or of confronting those who are putting him back inside. His only right is to make written representations from the prison. The probation service feel that, if it is to be their duty to make direct recommendations for a man's recall to prison, it will produce difficult relationships between the supervising officer and his client and will clearly impede the establishment of the mutual understanding which is essential if the supervision is to be fruitful.

In addition to that, it seems to me to be contrary to natural justice, and I think it may well seem so to the men, too. I realise that a man on licence is still technically a prisoner, and therefore is deprived of the normal rights of a citizen; and I realise also that this system applies in the case of borstal licensees and certain types of prison licensees. I also understand that it does not work particularly well in those cases, but this provision will extend it to a much wider class of prisoners, some of whom will have been, to all intents and purposes, free men, living normal lives, for a number of years before they are suddenly picked up and sent back to prison.

In these circumstances, it seems to me intolerable that a man should have no right to face the people who are accusing him, of cross-examining them and putting his own case in rebuttal. I should prefer all this to happen in court, but failing that I am suggesting that a man recalled in that way should have the right to appear in person before the Board, which will presumably arrange for those responsible for his recall to be present, together with his supervising officer and possibly the police, if they have been involved. Of course, none of this would be necessary if the man has committed another offence, because in that event he would have appeared in court and would have had an opportunity of saying whatever he wanted to say. I think this Amendment will go some way to meet the concern of probation officers over the difficult relationships which they would have with licensees over the arbitrary recall to prison without the man having a proper chance to defend himself. I beg to move.

Amendment moved—

Page 41, line 25, at end insert the said words.—(Lord Hamilton of Dalzell.)

LORD STONHAM

If the noble Lord's Amendment were accepted, subsection (4) would then read: The Secretary of State shall refer to the Board the case of a person recalled under subsection (1) of this section who makes representations under the last foregoing subsection and shall in any event so refer the case of a person returned to prison after being recalled under subsection (2) of this section, and a person recalled under either subsection (1) or (2) of this section shall be entitled to appear in person before the Board unless his recall results from his being charged with a further offence. I am grateful to the noble Lord for explaining what he means by the last words of his Amendment, because it was not clear to me when I read it. As it stands at present, the Bill has the effect that the Board will have an absolute veto on all recall decisions. So far as responsibility is concerned, the responsibility is theirs, and that veto will be exercised in full knowledge of the licensee's side of the case. Any recalled prisoner will be entitled under subsection (3) to an explanation for the reasons for his recall and an opportunity to make written representations in respect of his recall, and whenever he does so the Secretary of State will be obliged to refer the case to the Board; and in addition to the prisoner's representations the material before the Board will include an objective report from the supervising probation officer setting out all the circumstances, including any explanation known to have been given by the licensee for alleged misconduct.

Lord Hamilton of Dalzell's concern, as I understand it, is because the probation officers feel that the prisoner will associate them or the supervising officer's report with his recall. I find it a little difficult to understand why they shrink from that, for when they have someone put on probation with them by the court they have to exercise a like function and inform the court if the terms of the probation order are not being carried out; in other words, they are doing their duty. We propose that as far as practicable the documents should include the report of an interview with a recalled prisoner by a member of the local review committee. Indeed there would be nothing to stop a member of the Board itself from interviewing a prisoner if it were thought necessary.

I would remind the noble Lord that in this matter the Board has a veto, a complete veto, on these recall decisions. If the Home Secretary cancels a licence and recalls a man to prison he has to inform the Board. If the Board say, "We do not agree; this man should not be in prison," he has to be released. Their power in this matter is complete. We consider the local machinery we intend to establish will make ample provision for a recalled licensee to communicate to the Board all his arguments, in some cases verbally with a member of the Board, in most cases in writing, against revocation of his licence. We think the Board can be relied upon to make use of the power to interview by a member of the Board whenever it is desirable.

It would be impracticable for a licensee to put his case before the Board in advance of his recall, in any case, because if he was given formal notice to appear before the Board he would probably disappear. Even if it were desirable—and it is not—the Board will not sit frequently enough to enable it to be possible for these recalled men to make their appearance before the Board. It just is not a practical proposition. I appreciate the noble Lord's motives, but supervising officers must accept the responsibility of their office. I am quite sure they will. They must accept the responsibility of taking the necessary steps which may result in the recall of a licensee to prison if he is not carrying out the terms of his licence and if the breach of the conditions of the licence is sufficiently serious to merit his recall. We do not agree that he should be entitled to appear before the Board. It is not a practical proposition.

10.10 p.m.

LORD HAMILTON OF DALZELL

The noble Lord has said again that he does not see the difference between what is proposed here and what happens under a probation order. That is really the whole point. What is proposed here is a sort of procedure by correspondence. The supervising officer writes up a report and then, sooner or later, as a result, the policeman's hand descends on the man's shoulder and he goes to prison and he can write to say if he does not like it. Under a probation order the probation officer has a relationship with the court. If the man misbehaves the probation officer says, "I will take you back to the court"; and that happens. He does not write to the court and say that something must be done. The man appears in court; the probation officer appears; he say what he wants to say on oath, the man hears it and can complain or disagree, or whatever he likes. Everything is above board, and the man knows where he is.

What I do not like about this arrangement is that the man going to prison is going to be "whipped away" without a chance of doing anything at all in his own defence, except to write a letter when he gets there. I see that I shall get nowhere with this Amendment, but I feel it is unsatisfactory. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR

In moving Amendment No. 24, in regard to the power of magistrates' courts to commit on bail for sentence, I drew the attention of the Committee to the fact that Amendments Nos. 68, 134 and 139 were consequential upon that Amendment. The Committee accepted Amendment No. 24, and I hope therefore that I may be allowed to move this Amendment formally. I beg to move.

Amendment moved— Page 41, line 37, after ("custody") insert ("or on bail").—(The Lord Chancellor.)

10.12 p.m.

LORD STONHAM moved, after subsection (7), to insert: ( ) If a person subject to a licence under section 49 or 50 of this Act is convicted by the High Court of Justiciary, or by a sheriff, whether summarily or on indictment, of an offence punishable on indictment with imprisonment, the court by which he is convicted may, whether or not it passes any other sentence on him, revoke the licence. The noble Lord said: I beg to move Amendment No. 68A. With your Lordships' agreement, I will with this Amendment take Amendments Nos. 68B and 68C. All these Amendments are consequential on the application of this part of the Bill to Scotland by the later Amendment No. 114B. They substitute appropriate references to Scottish courts in giving power to the courts to revoke a licence and they substitute a Scottish reference for the references to the Children and Young Persons Act 1933. I beg to move.

Amendment moved—

Page 42, line 3, at end insert the said subsection.—(Lord Stonham.)

LORD STONHAM: I beg to move Amendment No. 68B.

Amendment moved— Page 42, line 9, after ("sessions") insert ("or the High Court of Justiciary or a sheriff")—(Lord Stonham.)

LORD STONHAM: I beg to move No. 68C.

Amendment moved— Page 42, line 19, after ("1933") insert ("or section 57 of the Children and Young Persons (Scotland) Act 1937").—(Lord Stonham.)

Clause 51, as amended, agreed to.

Clauses 52 to 54 agreed to.

Clause 55 [Miscellaneous amendments of the Prison Act 1952]:

LORD STONHAM moved, after subsection (2), to insert: ( ) For sections 30 to 32 of the said Act of 1952 (discharged prisoners aid societies and allowances and expenses for discharged prisoners) there shall be substituted the following section:—

'Payments for discharged prisoners

30. The Secretary of State may make such payments to or in respect of persons released or about to be released from prison as he may with the consent of the Treasury determine'.

( ) Any statutory instrument containing rules made under section 47 of the said Act of 1952 (prison rules) shall be subject to annulment in pursuance of a resolution of either House of Parliament; and accordingly so much of section 52(2) of that Act as requires a draft of such an instrument to be laid before Parliament shall cease to have effect."

The noble Lord said: I beg to move Amendment No. 69, and with your Lordships' permission I would deal also with Amendments Nos. 134A, 143 and 144 in Schedules 5 and 6.

The purpose of Amendment No. 69 is to repeal Sections 30 to 32 of the Prison Act 1952, and replace them with a new provision, general in its terms, for meeting the fares of persons discharged from prison service establishments and making to them other payments, for example, subsistence and discharge grants, subject to Treasury approval. It would also repeal that part of Section 52(2) of the 1952 Act which provides that Statutory Instruments made under Section 47 of the Act should be laid before Parliament in draft, and replace this with the more convenient provision that they should be subject to Negative Resolution procedure. Section 30 dealt with the certification of discharged prisoners aid societies. The reorganisation of after-care arrangements on the lines recommended in 1963 by the Advisory Council made this provision obsolete.

Section 31 provided that an allowance of up to £2 may be paid to a prisoner on discharge, or to an aid society for his benefit. Since 1964 adult prisoners serving sentences of over three months, or serving shorter sentences if discharged on a Saturday or unable to reach their local office of the Supplementary Benefits Commission have been eligible for a grant of up to £4, in lieu of supplementary benefit, to meet immediate needs on discharge. Other arrangements are made by the after-care authorities to meet such needs of young prisoners and persons released from borstal or detention centre. The provisions of Section 31 are no longer appropriate. I think that these matters are familiar to your Lordships and that the new arrangements, which in a sense make statutory the arrangements which are already in being, are generally approved by your Lordships. I beg to move.

Amendment moved—

Page 43, line 15, at end insert the said subsection.—(Lord Stonham.)

VISCOUNT COLVILLE OF CULROSS

We are obliged to the noble Lord for explaining this matter. I have one question that I should like to put to him. There was one sum fixed by Section 31 of the Prison Act, and the matter is now to be dealt with generally by the Secretary of State with the consent of the Treasury. Is there to be some published scale laid down? Is the consent of the Treasury to be given to a complete carte blanche on the part of the Secretary of State, or how is this to be done? How are the public to know what public money is being spent on this purpose, and in what form will the information be available to us?

LORD STONHAM

I must say to the noble Viscount that when the day comes that the Treasury give carte blanche to anybody or anything, that will be the day! But I take his point about the publication of a scale, though I am afraid I cannot give him an answer to it. It is a point of importance which I shall go into and let him know the position before Report stage, so that if he wishes to raise the matter again he will have time to do so.

On Question, Whether Clause 55, as amended, shall stand part of the Bill?

VISCOUNT COLVILLE OF CULROSS

Can the noble Lord help me on a point arising on subsection (1) of Clause 55? I do not think this point has been discussed anywhere else. It seems to me to be a curious provision. The subsection says that where there is a remand centre whose purposes are described by relationship to the sort of person who goes to that centre, anybody who is required to be detained in any institution to which the Prison Act applies whether it be prison, or borstal, a detention centre or a remand centre, can be sent to a remand centre to do domestic work or maintenance. Does this practice exist now? If not, what has happened? Is it impossible to get people to do such work at remand centres, and are people going to be sent there because they happen to be skilled in these spheres, regardless of what training they are doing in their prisons or borstals—that is to say, simply to fill a gap in the domestic service of the remand centre? It seems to me to he a startling proposition that the Secretary of State should be given complete power to interrupt the sentence of any person in any institution to which the Act applies and send him to do maintenance or domestic work at a remand centre.

LORD STONHAM

The reason for this very necessary provision is that most of this maintenance and domestic work is done by prisoners in all penal establishments. In remand centres, which consist very largely of young people, such people are not sufficiently available and they are not there sufficiently long to enable this work to be carried out satisfactorily and properly. Therefore, we find it necessary to have a certain proportion of adult prisoners there to do this work. They are not permanent staff, because no adult prisoner is there for ever, but they do have adult prisoners to do the necessary work in remand centres. That is the answer to the noble Viscount's question.

Clause 55, as amended, agreed to.

10.20 p.m.

LORD STONHAM moved, after Clause 55, to insert the following new clause:

Extension of enactments relating to persons sentenced to imprisonment or detention to young offenders sentenced to detention.

".—(1) In section 38(3) of the Criminal Justice Act 1961 (construction of references to imprisonment or detention and sentenced) at the end there shall be added the following paragraph— '(c) any reference to a person serving a sentence of, or sentenced to, imprisonment or detention shall be construed as including a reference to a person who, under any enactment relating to children and young persons in force in any part of the United Kingdom or any of the Channel Islands or the Isle of Man, has been sentenced by a court to be detained for an offence and is liable to be detained in accordance with directions given by the Secretary of State, by the Minister of Home Affairs for Northern Ireland or by the Governor of the Isle of Man with the concurrence of the Secretary of State, and any other reference to a sentence of imprisonment or detention shall be construed accordingly.'

(2) In section 49 of the Prison Act 1952, section 37 of the Prisons (Scotland) Act 1952 and section 38(2) of the Prison Act (Northern Ireland) 1953 (persons unlawfully at large) any reference to a person sentenced to imprisonment shall be construed as including a reference to any such person as is mentioned in the foregoing subsection."

The noble Lord said: I beg to move Amendment No. 70. This new clause relates to the transfer among penal establishments within the British Islands of young murderers sentenced to be detained during Her Majesty's pleasure and young offenders sentenced to detention for serious crimes. Such offenders are detained in this country under subsections (1) and (2) of Section 53 of the Children and Young Persons Act 1933, and there are comparable provisions in Scotland, Northern Ireland, the Channel Islands and the Isle of Man.

There is already power in Part III of the Criminal Justice Act 1961 to transfer ordinary prisoners, borstallers and persons ordered to be detained in detention centres, but offenders sentenced under Section 53 of our Children and Young Persons Act 1933, and under the comparable provisions elsewhere, were not included in the categories eligible for transfer. The effect of this oversight is that, for example, a person under 18 convicted of murder in this country but whose home and roots are in Scotland cannot be transferred to Scotland so that is family can conveniently visit him while he is serving his sentence. That deficiency and difficulty are remedied by this new clause, and I hope that it will have your Lordships' approval. I beg to move.

Amendment moved—

After Clause 55 insert the said new clause.—(Lord Stonham.)

LORD STONHAM moved, after Clause 55, to insert the following new clause:

Prisoner transferred from Scotland to England for Security

".—(1) Where the Secretary of State, in the case of a person serving a sentence of imprisonment, corrective training or preventive detention in Scotland, is of the opinion that in the interests of security or of public safety that person ought to be transferred to a prison in England and Wales, he may make an order for his transfer to that prison:

Provided that the Secretary of State may at any time make an order for the transfer of that person back to a prison in Scotland.

(2) A person transferred to England and Wales or transferred back to Scotland under this section shall be treated for all purposes as if he had been transferred to England and Wales or, as the case may be, Scotland under section 26 of the Criminal Justice Act 1961."

The noble Lord said: This is another of the Scottish Amendments, if I may so call them. This Amendment will enable the Secretary of State for Scotland to transfer to England and Wales a prisoner serving a sentence in Scotland, where this is necessary in the interests of security or public safety. It also provides for the prisoner to return to Scotland. Your Lordships will remember that the Report of the noble Earl, Lord Mountbatten of Burma, referred particularly to this difficulty, and he made some complimentary references to security in some Scottish prisons. But there will be occasions when prisoners will need special security—"A" security, as we call it. It is thought not desirable to have a separate prison of that category in Scotland, and this new clause will enable persons for whom the highest standards of security are required to be transferred from Scotland to a special English prison. I beg to move.

Amendment moved—

After Clause 55, insert the said new clause.—(Lord Stonham.)

VISCOUNT COLVILLE OF CULROSS

I did not intervene earlier when the noble Lord, Lord Stonham, mentioned the Scottish points, because I did not want to waste time. I was grateful to him for his explanation and the assurance that Scottish legal authorities had consented to this Amendment. I want to raise just one point—it may be perfectly all right—because, as I understand it, there is in theory only one Secretary of State. It is the Secretary of State for Scotland who, when a person is imprisoned in Scotland, orders his transfer to England, but there is another Secretary of State mentioned who may order his transfer back again to Scotland. In the second case is that the Secretary of State for Scotland, or the Secretary of State for the Home Department? It may be that there is nothing in this point, but I think it would be nice to know which Secretary of State is fulfilling the second function mentioned. If there is any requirement to specify which it is, then I think there will have to be another Amendment in the Bill, because the Secretary of State is not defined, let alone this Scottish adaptation.

One other small point. I think that Amendments, unlike side notes and rubrics, tend to stand as they are accepted by the Committee. We have had several references to Amendment No. 114B. Of course all the section numbers in that Amendment will be wrong by the time we take account of the clauses inserted in the Bill. I do not know whether the noble Lord will move a manuscript Amendment when we get to that stage to put in the right section numbers as they have been by then inserted.

LORD STONHAM

I am very grateful to the noble and learned—

VISCOUNT COLVILLE OF CULROSS

No, I am not learned.

LORD STONHAM

Not yet? Well, it is only a question of time. I am grateful to the noble Viscount particularly for his last point about the renumbering. I must confess that I thought that all would be sweetness and light when we got to No. 114B but I will certainly have that point looked at.

With regard to the other point, that is assuming that the Secretary of State for Scotland had arranged for a Scottish prisoner to come to the English prison and subsequently that prisoner were to go back to Scotland, that would be on the order of the Secretary of State for Home Affairs, who has charge of English prisons and their inmates. As the noble Viscount will readily appreciate, this is always a matter for agreement and arrangement. In other words, it is largely a distinction without a difference. But the answer to his question is that to return the Scot it would be the Home Secretary who would make the decision.

Clause 56 agreed to.

LORD STONHAM moved, after Clause 56, to insert the following new clause:

Power of magistrates to issue warrants for arrest of escaped prisoners and mental patients

".—(1) On an information in writing being laid before a justice of the peace for any area in England and Wales or Northern Ireland and substantiated on oath, or on an application being made to a sheriff, magistrate or justice of the peace in Scotland, that—

  1. (a) any person is unlawfully at large from a prison or other institution to which the Prison Act applies in which he is required to be detained after being convicted of an offence; or
  2. (b) any convicted mental patient is liable to be retaken under section 40 or 140 of the Mental Health Act 1959, section 36 or 106 of the Mental Health (Scotland) Act 1960 or section 30 or 108 of the Mental Health Act (Northern Ireland) 1961 (retaking of mental patients who are absent without leave or have escaped from custody);
the justice, sheriff or magistrate may issue a warrant to arrest him and bring him before a magistrates' court for that area or, in Scotland, before any sheriff.

(2) Where a person is brought before a magistrates' court or sheriff in pursuance of a warrant for his arrest under this section, the court or sheriff shall, if satisfied that he is the person named in the warrant and if satisfied as to the facts mentioned in paragraph (a) or (b) of the foregoing subsection, order him to be returned to the prison or other institution where he is required or liable to be detained or, in the case of a convicted mental patient, order him to be kept in custody or detained in a place of safety pending his admission to hospital.

(3) Section 139 of the Mental Health Act 1949, section 105 of the Mental Health (Scotland) Act 1960 and section 107 of the Mental Health Act (Northern Ireland) 1961 (custody, conveyance and detention of certain mental patients) shall apply to a convicted mental patient required by this section to be conveyed to any place or to be kept In custody or detained in a place of safety as they apply to a person required by or by virtue of the said Act of 1959, 1960 or 1961, as the case may be, to be so conveyed or kept.

(4) In this section—

(5) Section 27 of the Criminal Justice Administration Act 1914 (power to issue warrants for the arrest of persons who may be arrested without a warrant) shall cease to have effect."

The noble Lord said: The main purpose of this new clause is to facilitate the recovery of prisoners who have absconded to the Irish Republic. Section 43 of the Extradition Act 1965 of the Republic of Ireland enables us to seek the return from the Republic of a person accused or convicted in this country of an indictable offence or a summary offence punishable by six months imprisonment or more, where a warrant for his arrest has been issued by a judicial authority. In the case of a convicted person, the section requires that the purpose of an arrest shall be to enable him either (a) to be brought before a court for sentence in respect of the conviction or (b) to be taken to a place of detention under the sentence. At present this procedure cannot be used in such cases, because there appears to be no power to issue a warrant to arrest an escaped prisoner.

Where such a person is within the United Kingdom, the Channel Islands or the Isle of Man there is power to arrest him without warrant and return him to his place of detention. This is under Section 49(1) of the Prison Act 1952 as extended by Section 30 of the Criminal Justice Act 1961. Therefore the power to issue a warrant of arrest in such a case is unnecessary. Equally, where the escaped prisoner is in a country to which the Extradition or Fugitive Offenders Acts apply his return can be effected without the necessity of having a warrant of arrest. This problem arises, therefore, only as regards the recovery of convicted persons from the Irish Republic.

It is not always convenient to obtain their recovery by seeking warrants for their arrest as persons accused of the Common Law offence of escape or prison breach. This would not necessarily apply to all cases and, where it does, it involves committing the prisoner for trial in this country on his return for the new offence, instead of just returning him to his place of custody, which imposes an unnecessary additional burden on the higher courts. The effect of the new clause will be to obviate this difficulty, and we shall be able to deal with such persons in a way of which I think that your Lordships will approve. I beg to move.

Amendment moved—

After Clause 56, insert the said new clause.—(Lord Stonham.)

LORD BROOKE OF CUMNOR

I have no criticism of this new clause which I hope the Committee will agree should be added to the Bill. But as this appears to be the last item in Part III of the Bill, I should like to take the opportunity of saying how much we on this side of the Committee appreciate the assiduity of the noble Lord, Lord Stonham, who, except for a short interval for dinner, has been virtually in sole charge of the Bill ever since three o'clock. If he has not quite the same responsibilities in respect of Part IV, I hope that he will now do what I am going to do, and take a rest.

LORD STONHAM

If I may say so, the noble Lord has shamed me because he forestalled me by thanking me when I wanted to thank him and his noble friends. It has been a great pleasure to have participated this afternoon and tonight in this Committee stage, and I am grateful for the great co-operation and helpfulness which has been shown by everyone. If the noble Lord, Lord Brooke of Cumnor, will delay his departure for the time necessary for me also to move, I shall be pleased to "do the honours".

Clause 57:

Power to order legal aid to be given

57.—

(3) Where a person convicted or sentenced by a magistrates' court desires to appeal to a court of quarter sessions, either of those courts may order that he shall be given legal aid for the purpose of the appeal.

10.32 p.m.

THE LORD CHANCELLOR moved to add to subsection (3): and where any such person gives notice of appeal, either of those courts may order that the other party to the appeal shall he given legal aid for the purpose of resisting the appeal.

The noble and learned Lord said: The purpose of this Amendment is to preserve the existing power of magistrates' courts—

VISCOUNT COLVILLE OF CULROSS

I am sorry to interrupt the noble and learned Lord, but would he consider dealing with this Amendment in conjunction with Amendments Numbers 73 and 73A? I know they are not in the sane clause, but it may be for the convenience of the Committee if we could discuss these matters together, because I have an Amendment which deals with this in a slightly contrary sense to one of the noble and learned Lord's.

THE LORD CHANCELLOR

I am happy to do anything which is to the convenience of the Committee. The only point I would make is that the noble Lord, Lord Derwent, has Amendment No. 72A which is, so to speak, in the middle of my Amendment and those of the noble Viscount. I am prepared to do anything which is to the convenience of the Committee.

As I was saying, so far as Amendment No. 72 is concerned the purpose of this Amendment is to preserve the existing power of magistrates' courts and courts of quarter sessions to grant legal aid to a respondent for the purpose of resisting an appeal to quarter sessions. At present provision exists in Section 2 of the Summary Jurisdiction (Appeals) Act 1933 for the grant of legal aid, not only to an appellant to quarter sessions but also to the other party to the appeal. This provision is repealed by the Criminal Justice Bill (Schedule 6, page 116). The power to grant legal aid to an appellant is preserved by Clause 57(3), but there is at present no provision in the Bill to enable legal aid to continue to be granted to a respondent. The need for this power arises only in the case of a private prosecution, where a person who has been convicted summarily appeals against his conviction. The power is not exercised frequently—there were 31 cases in 1965. The cases concerned are usually of a minor nature; for example, common assaults arising from private disputes, where the police do not consider that they would be justified in intervening.

Legal aid is not available to a private prosecutor in summary proceedings for the purpose of carrying on the prosecution, and it is not proposed to provide power for this in the Bill. The Widgery Committee reported (paragraph 289) that, bearing in mind that a private prosecutor takes the initiative in commencing criminal proceedings and that civil legal aid is available if he wishes to seek a remedy in the civil courts, there is not a strong case for making legal aid available for a private prosecution. The justification for granting a private prosecutor legal aid to resist an appeal is, however, somewhat stronger. In these cases the magistrates have decided that the prosecution was justified. As an appeal to quarter sessions against conviction is a retrial it is necessary for the prosecutor to appear in order to get the case on its feet, and as proceedings at quarter sessions are more formal than a summary trial a private prosecutor may be in difficulty unless he is legally represented. It is therefore proposed to preserve the existing power to grant legal aid to a respondent, even though the need for it arises only infrequently. The Amendment to Clause 57 accordingly provides that where a person convicted summarily gives notice of appeal either the magistrates' court which convicted him or the court of quarter sessions to which the appeal lies may grant legal aid to the other party to the appeal for the purpose of resisting the appeal.

The noble Viscount suggested that we should take Amendment No. 73 at the same time, without prejudice, so to say, to Amendment No. 72A, set down by the noble Lord, Lord Derwent. Amendment No. 73 is, of course, really a consequential Amendment to Amendment No. 72. Subsection (6) of Clause 58 provides that when legal aid has been granted for the purpose of an appeal to quarter sessions and the court confirms the conviction or sentence, or varies the latter, the assistance given by the solicitor or counsel assigned may include advice on the question whether there appear to be reasonable grounds of appeal from the decision of quarter sessions and, if such grounds appear to exist, assistance in applying for a case to be stated to a Divisional Court of the Queen's Bench Division. The respondent in an appeal to quarter sessions cannot appeal from the decision of quarter sessions, and the Amendment is therefore necessary in order to limit the application of subsection (6) to a legally-aided appellant to quarter sessions. I beg to move.

Amendment moved—

Page 44, line 4, at end insert the said words.—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS

So far as the first of the noble and learned Lord's Amendments is concerned, this seems to me to be entirely justified, and the explanation he has given for it fully bears out his proposal to insert it in the Bill. I am, however, a little concerned about the consequential matter in Clause 58, because it was my understanding that either party could apply for a case to be stated from quarter sessions. The noble and learned Lord is better advised than I am; and, in any event, he probably knows it himself a great deal better than I do. But it occurred to me to look at Archbold on this matter, and I there found a reference (unfortunately, I have now forgotten it, but it was from the Criminal Justice Act 1948, I think) which gave both parties a right to appeal from quarter sessions by way of case stated to the Divisional Court.

If that is so, then plainly, I would suggest, it cannot do any great harm, or place any great burden on legal aid funds, that the private prosecutor, by that time the respondent, should have included in his provision of legal aid advice on whether or not there should be a case stated and assistance in having it stated or in making application to quarter sessions to get it stated. Therefore I do not believe there could be any objection in principle, provided I am right in law. There is a further stage, and I shall do some more research upon this point, seeing that the noble and learned Lord has said that no such possibility exists. But perhaps I could ask him if he would be so kind as to look once more and see whether, beyond doubt, I am wrong in my law upon this.

THE LORD CHANCELLOR

I shall certainly be very happy to look into this matter, and we can perhaps discuss it further at Report stage.

VISCOUNT COLVILLE OF CULROSS

Would the noble and learned Lord say this? Suppose there is an appeal by the respondent. Does he think that there would be any objection in principle to legal aid being extended to this small extent, as it is being extended for the appellant by his second Amendment?

THE LORD CHANCELLOR

I should like to consider that point, if I may. As I have said, so far as original proceedings are concerned, if a private prosecutor likes to proceed the onus is rather on him. On the other hand, once he has succeeded, it seems reasonable that he should be legally aided to support an appeal to quarter sessions. What should apply at the third stage is, I think, a matter which requires consideration, which I shall be happy to give it.

Clause 57, as amended, agreed to.

Clause 58 [Supplementary provisions as to legal aid orders]:

10.40 p.m.

LORD DERWENT moved, in subsection (2), to leave out "indictable". The noble Lord said: I have put down this Amendment because, to me at any rate, the object of this subsection seems somewhat obscure. The subsection says: Notwithstanding anything in the last foregoing subsection legal aid ordered to be given for the purposes of any proceedings before a magistrates' court shall not include representation by counsel except in the case of any indictable offence where the court is of opinion that, because of circumstances which make the case unusually grave or difficult, representation by both counsel and solicitor would be desirable. Is it the intention that this should apply only to committal proceedings, or is it also the intention that counsel might be supplied in cases of indictable offences tried summarily? Cases do arise before magistrates and are dealt with summarily which are in the nature of test cases and raise difficult problems. Perhaps the noble and learned Lord could tell me whether the clause means what it says and, if a case is difficult and the court thinks fit, legal aid may be given. I beg to move.

Amendment moved— Page 45, line 6, leave out ("indictable").—(Lord Derwent.)

THE LORD CHANCELLOR

At the moment, as the noble Lord no doubt knows, in justices' courts counsel are available only in a murder case. This seems perhaps too restrictive, and indeed the Bar Council have said so for a long time. They have pointed out that indictable cases, apart from murder, are often complex and that in these complicated cases, such as long firm frauds, counsel should be permissible. What the noble Lord's Amendment would do would be to make counsel available in any case, whether indictable or summary. The in- tention is that the clause should apply both to committal proceedings and indictable offences which are tried summarily. Purely summary cases do not really need counsel.

The Widgery Committee considered this and said: We are not convinced that any radical change in the existing arrangements for criminal cases is desirable. It appears from the evidence we have received that in general these arrangements are working satisfactorily, and that in the very large majority of cases in magistrates' courts where legal aid is granted the services of a solicitor are all that is required. We do not consider that there is any case for the assignment of counsel in summary proceedings. As regards committal proceedings, we consider that murder cases still stand in a class apart from other crimes and that in general the services of counsel should not be necessary on charges other than murder. We recognise, however, that there are from time to time other exceptional cases, such as a large and complicated fraud or conspiracy case, in which the services of counsel at the committal stage may be equally desirable in the interests of justice. We accordingly recommend that the general rule should continue to be the assignment of a solicitor only under a legal aid certificate, but that magistrates should have discretion to assign both counsel and solicitors, not only on a charge of murder but also, exceptionally, in other committal proceedings where the prospective length and complexity of the proceedings justify this action. In other cases"— that is to say, committal proceedings where they are not complicated, and so forth— where solicitors employ counsel for their own convenience to undertake the work of advocacy in magistrates' courts, it would in our view be wrong that there should be any consequential increase in legal aid, and we do not recommend any change in the principle laid down in Section 22(3) of the 1949 Act. So the Bill as drafted is more liberal than the Widgery Committee intended. It would not be right, I suggest, to say that magistrates ought to allow a counsel as well as a solicitor in what is purely a summary case.

VISCOUNT COLVILLE OF CULROSS

think part of the trouble is that there is a difference and, as the noble and learned Lord has said, a more liberal provision undoubtedly than that recommended by the Widgery Committee. But I do not think this subsection is altogether without flaw or, at any rate, without the potentiality of difficulty, because now that it has been made clear that you may have in these exceptional circumstances counsel assigned under legal aid where the offence which could have been dealt with by indictment is being dealt with summarily, there is the difficulty of the wording.

As I understand it, that procedure arises out of Section 19 of the Magistrates' Courts Act 1952, and there the court is entitled to try summarily an indictable offence if—and this is the wording of the Act: it thinks that the punishment that the court has power to inflict would be adequate and that the circumstances do not make the offence one of serious character and do not for other reasons require trial on indictment.' The subsection in this Bill says that they can give legal aid for this sort of summary trial of an indictable offence because of circumstances which make the case unusually grave or difficult. There must be prima facie a clash of wording here, because if the magistrates' court decides to try the offence summarily it will do it only because it is not one of serious character. Therefore, under the Bill the case is presumably not unusually grave. Equally, they may try the indictable offence summarily only if, for instance, they have power to inflict sufficient punishment of themselves, or for other reasons do not consider it requires trial on indictment. But under the Bill they may give legal aid only if the case is difficult.

Is the difficulty of the case which would entitle them to grant legal aid under the Bill the very point that might require them or lead them to send the case for trial by quarter sessions under the Magistrates' Courts Act? Is there a way by which they can thread themselves in between this wording and find a case which they think they can deal with because it is not sufficiently grave as an offence, but is still difficult enough to be given legal aid under this subsection? I hope the noble and learned Lord sees what I mean. I think the wording, as compared with Section 19(2) of the Magistrates' Courts Act, leaves something to be desired, and I suspect that, in practice, there will be difficulty in interpreting what are these summary cases which can be tried summarily although they are indictable, but which nevertheless may be cases where legal aid can be given under this particular provision in the Bill. Would the noble and learned Lord consider this point?

THE LORD CHANCELLOR

I will certainly consider it. I should not have thought that there would be any real difficulty. On the one hand, you have indictable offences which are committed for trial to a superior court. On the other hand, you have purely summary cases where counsel are not necessary at all. Then there is a middle group of indictable cases which are either committed or dealt with summarily, and really where counsel ought not to be allowed unless in both cases the circumstances are such that the court is of opinion, because of a situation which makes the case unusually grave or difficult, that representation by both counsel and solicitor would be desirable. I should not have thought that this would work out with any difficulty. Solicitors, after all, are quite capable of dealing with most cases of this kind.

Occasionally you get a case in which, either because it raises some particularly difficult question of law or because it is one of these very long cases, it is reasonable and right that there should be counsel; and I do not think the Bar Council themselves have ever said more than that they think that the rule that there should never be counsel except in a murder case is really too narrow. After all, the difference between counsel and solicitors from the point of view of rights of advocacy, and so on, is really one of function. A solicitor can manage a case which lasts less than a day all right, but he cannot do a long case that goes on for days; and this is really the reason why in nearly every country, whether there is fusion or not, there is a specialised group doing High Court advocacy. Because you cannot as a solicitor carry on a case for days and see your other clients and do correspondence and be on the telephone and so on. Some of these firm frauds are cases which go on for a very long time. I should have thought that, whether the cases are committed for trial or dealt with summarily, the justices would have sufficient common sense to see whether or not a case is a case in which counsel ought to be allowed.

VISCOUNT COLVILLE OF CULROSS

I am sorry to come back on this point, but I do not think I have altogether made myself clear to the noble and learned Lord. I am not talking about the long cases which are dealt with by magistrates on committal proceedings. I entirely appreciate what he says about that, and I am sure he is quite right. I am talking about the case where there is an indictable offence but in fact the magistrates' court decides, with the consent of the accused, to try it summarily. It can do this only if the offence is not of a serious character. The noble and learned Lord will look at his Bill and see that if the case is one which is unusually grave, this is one of the grounds upon which legal aid may be given. Those two are completely contradictory. You cannot have a case which is not of a serious character and which is unusually grave, because I assume that "grave" must apply to the offence which has been committed, otherwise I do not think there is any point in using that word. Therefore you have to start with a contradiction between the Bill and the Magistrates' Courts Act 1952.

We then get on to the question of difficulty. Does "difficulty" stand alone? Supposing the magistrates are trying a case which they feel is not of such a serious character that they need send it to be tried by a jury; then they look at the Bill and find they can give legal aid only if it is unusually grave or difficult. Ex hypothesi, it is not unusually grave. But is the noble and learned Lord satisfied that there will be cases, notwithstanding that, where they will say, "Yes, this is unusually difficult, in which case we will allow counsel to be given." I hope I have now made myself clear, because I think there is a difficulty.

The alternative to this is that they may think, "We are not entitled to give legal aid in these circumstances because the wording in the Bill is obscure. Therefore we will treat this as a case which ought to go to quarter sessions, and it will have to go to quarter sessions in order that legal aid may be granted in what it admittedly all round a difficult case". I think there is a small point here, but one which might cause a conflict when the two Acts are compared, when this Bill finally becomes an Act.

THE LORD CHANCELLOR

The noble Lord, Lord Derwent, is pleading that counsel should be available in every summary case.

LORD DERWENT

My Amendment is pleading that; I am not.

THE LORD CHANCELLOR

I agree, but the Amendment which is proposed by the noble Lord is saying that the court ought to be able to allow counsel in every summary case. The noble Viscount is really saying the opposite. He is saying that never, except in a case which is committed for trial, should it be given, because he says that if it is an indictable case triable summarily, it will not be a very serious one, and therefore the grant of counsel ought to be restricted.

VISCOUNT COLVILLE OF CULROSS

No, I am not. I am saying it may not be a serious offence but it may be a difficult case. It may be a test case, where the offence was purely nominal but nevertheless it gives rise to difficult points of law, and it could be dealt with technically by the magistrates summarily and it would no doubt be quicker to do it that way. Therefore the magistrates think, "Yes, it is within our jurisdiction; it is not of a serious character. We can try it, although it is indictable. But it is difficult and we should like to have legal aid". That is the case that I think should have legal aid under this subsection, and what I am saying is that I am afraid the phraseology of this subsection at the moment is too inexact to make it perfectly certain that the magistrates' courts in those circumstances can grant legal aid.

I do not think my noble friend Lord Derwent put down this Amendment to argue what the noble and learned Lord thought at all; it was because we could not understand the circumstances envisaged in the Bill where legal aid would be allowed by the Government. This was the point of the Amendment and this is what we are trying to clear up.

THE LORD CHANCELLOR

I should not have thought there was any real question, if it is terminology. Clause 58(2) covers committal proceedings as well as summary trial. The words used "unusually grave or difficult" are needed at least for committal proceedings.

VISCOUNT COLVILLE OF CULROSS

Hear, hear!

THE LORD CHANCELLOR

If unusually grave the case will not be tried summarily. But the case may be unusually difficult among summary cases, and therefore, on this footing, I should have thought this would work out exactly as phrased. I am quite prepared to consider it again before Report stage, but I think it is perfectly clear.

LORD DERWENT

Among my various lawyer friends with whom I have been discussing this subject I was rather led to believe that the subsection did not mean what it said. Now that the noble and learned Lord has explained to me, as a layman, that it does mean what it says, I am delighted. I am very much in favour of this liberalising motion, and so are the justices' clerks who pointed out to me that some summary cases are extremely complicated in law. Therefore I think it is much to be desired. If my noble friend is not satisfied as a lawyer, then he can perfectly well put down an Amendment for the next stage, but, speaking as a layman, I am quite satisfied. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR: I beg to move.

Amendment moved— Page 45, line 34, at end insert ("convicted or sentenced by a magistrates' court").—(The Lord Chancellor.)

On Question, Whether Clause 58, as amended, shall stand part of the Bill?

LORD PARKER OF WADDINGTON

May I raise a point on this clause as a whole, merely to inquire as to a difference of wording? If one looks at subsection (7) of Clause 58 one finds that the legal aid which is ordered to be given to any person for any proceedings by a legal aid order under subsection (4) of the foregoing section—that is a case where a man is committed by magistrates to a superior court for trial and is convicted on sentence in those proceedings—shall "include advice". In other words, the legal aid order and the payment (or, to put it in counsel's language, the brief) includes advice in regard to appeal. And quite rightly.

But when one goes back to subsection (6) and (5) one finds that things are different. The wording in these is that the legal aid order in both cases "shall be authority for". I do not know if it is intended to be different; but it seems to me to be different. It is saying that the legal aid order does not include an obligation to give advice but merely an authority to do so. I mention this because the noble and learned lord the Lord Chancellor will remember the difficulties under the defence certificate regulations where elaborate provision is made for giving a man advice on an appeal and for drafting grounds of appeal; but the solicitors take the view that it is merely authority to do it and they are not bound to do it. I should very much appreciate it if the noble and learned Lord could explain the differences in language.

THE LORD CHANCELLOR

I am much obliged to the noble and learned Lord the Lord Chief Justice for drawing my attention to this point. I have not had prior opportunity to consider it, but I should like very much to do so.

Clause 58, as amended, agreed to.

Clause 59 agreed to.

Clause 60 [Liability for contributions]:

11.3 p.m.

THE LORD CHANCELLOR moved, in subsection (1), to leave out "fund or". The noble and learned Lord said: It may be for the convenience of the Committee to consider with this Amendment Nos. 75 to 82, 86, and 120 to 127, I am sorry to have to mention so many, but this at least kills a number of birds with one stone.

The purpose of these Amendments, to Clauses 60, 63, 65 and 68 and to Schedule 1, is to alter the arrangements made in the Bill for the collection of contributions ordered by a court to be made by a legally-aided person towards the costs of legal aid. The responsibility for collection is transferred from local authorities and the Law Society to clerks to justices. Clause 60 at present provides, broadly, for contributions to be paid to the fund or the authority which bears the costs of legal aid. An exception is made where legal aid is granted for proceedings in a magistrates' court to a person who is subsequently committed for trial or sentence. I do not think I need to worry about that at the moment. The effect of Clause 60 is that the following authorities are responsible for the collection and enforcement of contributions. One, in the case of legal aid granted for an appeal to or from the Courts-Martial Appeal Court, the Secretary of State for Defence; two, in the case of legal aid granted for proceedings in a magistrates' court in which a person is not committed for trial or sentence, the Law Society (which administers the Legal Aid Fund set up under Part I of the Legal Aid and Advice Act 1949); and, three, in the case of legal aid granted for any other proceedings, the local authority responsible for paying the costs of legal aid in the court which made the contribution order.

The Law Society have now made it clear that they do not wish to undertake the responsibility of collecting contributions in criminal cases. They have explained that the Society's existing organisation, which is responsible for the assessment and collection of legal aid contributions in civil cases, is already overstretched and that they are about to embark on an experiment in centralising the machinery. They are concerned that if the Society now had to undertake the additional task of collecting contributions in criminal cases their resources would be inadequate; and they would therefore have to expand their organisations, at a most difficult time for them, and for what might prove to be only a short period if the recommendations of the Payne Committee on the Enforcement of Judgment Debts subsequently lightened their burden. Apart from such practical difficulties, the Law Society consider that it is wrong in principle that the Society, who are an independent body and not a Government organisation, should be required to collect debts on behalf of the Government. In this respect there is a difference between their existing role in civil cases, where they are responsible for the whole conduct of the scheme, and their proposed role in criminal cases in magistrates' courts, which would be limited to the purely financial functions of paying the costs of legal aid out of the Legal Aid Fund and collecting any contributions from defendants.

In the light of the Law Society's views and of representations made by the Association of Municipal Corporations against this responsibility being placed on local authorities, in the case of pro- ceedings in the higher courts, my right honourable friend the Home Secretary has decided to change the provision made for the collection of legal aid contributions in criminal cases and to place this responsibility on clerks to justices, except in the case of appeals to or from the Courts-Martial Appeal Court, where, as at present provided in the Bill, the Secretary of State for Defence will remain responsible for collection. The Amendments will provide that in the case of legal aid granted for the purpose of proceedings in a magistrates' court the clerk to that court will be responsible for collection of any legal aid contribution. In the case of legal aid granted for the purpose of other proceedings, the authority responsible for collection will be the clerk to the magistrates' court from which an appeal was brought or by which a person was committed to a superior court, or, if a person appeared or was brought before a superior court without being committed, the clerk to the magistrates' court nominated for the purpose by the superior court. Clerks to justices will remit contributions received direct to the Home Office and neither the Law Society nor local authorities will therefore be involved in the collection of contributions or in accounting for them.

The enforcement of payment of legal aid contributions is likely to be a difficult task. Clause 63(3) and (4) provides for their recovery as sums ordered to be paid as a civil debt. The Amendments leave this provision unaltered. Since, however, we recognise that the procedure for enforcement of civil debts is less than satisfactory, it is proposed to ease the burden which will be placed on clerks to justices by providing that contributions may also be recovered in the same manner as arrears under an affiliation order. This procedure is more effective than that for the normal civil debt procedure, as there is more satisfactory provision for securing the debtor's attendance and enquiring into his means, and magistrates' courts will have power, if contributions are not paid, to make an attachment of earnings order in appropriate cases. It is for those reasons that these Amendments are tabled. I beg to move.

Amendment moved— Page 47, line 42, leave out ("fund or").—(The Lord Chancellor.) I think it is quite an important change that is embodied in this particular group of Amendments, and the noble and learned Lord said two things which, I think, are enlightening. The first was that it is likely to be difficult, or at any rate a laborious task, to collect these contributions; and the second that neither the Law Society nor the Association of Municipal Corporations want to have to do it. So the clerks to the justices are the people who are saddled with this admittedly trying burden. I appreciate what the noble and learned Lord has said about the machinery which is being brought in to assist them under the two Acts that he mentioned, but has there been a discussion with the Magistrates' Clerks' Association to see what their views upon it are? Have they stated that they have sufficient numbers on their strength to take on this job? After all, if the Law Society are going to recruit and the Association of Municipal Corporations do not want to do it, it looks as though it is going to be a tiresome job. The clerks to the justices have a number of exceedingly important functions other than this, all of which have to be fulfilled, and a number are being added by this Bill. I should be glad to know that they have been consulted on this matter and that they are not too unhappy about it.

THE LORD CHANCELLOR

My right honourable friend has probably consulted more people on this Bill than have been consulted for years and years on almost any Bill. Most of the Bill originates from the views of others—the Byrnes Committee, the Tucker Committee, and others. My right honourable friend has throughout consulted everybody who would be likely to have views on these matters. So far as these Amendments are concerned, he has consulted the Justices Clerks' Society, who have said that they do not object to them.

THE LORD CHANCELLOR: I beg to move.

Amendment moved— Page 48, line 2, leave out from first ("to") to end of line 10 and insert ("pay the whole amount of those costs to that authority. ( ) In the following provisions of this Part of this Act any reference to a contribution towards costs shall be construed as including a reference to a payment of the whole amount thereof").—(The Lord Chancellor.)

THE LORD CHANCELLOR: I beg to move.

Amendment moved— Page 48, line 12, leave out ("or repayment") and insert ("towards costs").—(The Lord Chancellor.)

Clause 60, as amended, agreed to.

Clauses 61 and 62 agreed to.

Clause 63 [Supplementary provisions as to payment of contributions]:

Supplementary provisions as to payment of contributions.

63.

(3) Any sum due by way of contribution or repayment from a legally assisted person may be recovered summarily as a sum adjudged to be paid as a civil debt by order of a magistrates' court.

THE LORD CHANCELLOR: I beg to move.

Amendment moved— Page 49, line 31, leave out from first ("the") to end of line 32 and insert ("fund out of which the costs of legal aid fall to be paid under section 65 of this Act or, in the case of appeals to or from the Courts-Martial Appeal Court, to the Secretary of State.").—(The Lord Chancellor.)

11.13 p.m.

VISCOUNT COLVILLE OF CULROSS

Amendment No. 75, just moved by the noble and learned Lord the Lord Chancellor, turns "contribution towards costs" into a term of art. In Clause 63, the Bill speaks about contributions with reference to costs. I missed one of these examples in subsection (2) but there is one in subsection (3). I think that it may be clearer if the same terminology is used throughout, and I have put down the same Amendment as was moved by the noble and learned Lord where this phrase occurs elsewhere. I beg to move.

Amendment moved— Page 49, line 37, after ("contribution") insert ("towards costs").—(Viscount Colville of Culross.)

THE LORD CHANCELLOR

At this hour of the night we are all very accommodating. What rather broke my heart was that the noble Viscount did not move Amendment No. 73A, because that would have led to the entrancing question as to what one means when one says, "Mr. Smith met Mr. Jones in the street and raised his hat to him". There are at least six different meanings which can be attached to this, and I thought that on Amendment No. 73A we should have an interesting time.

This is really a matter of terminology. I would submit that there was no danger of Clause 63(3) as it stands applying to any contribution other than a contribution towards costs, and that accordingly the descriptive words which the noble Viscount seeks to add are unnecessary. But I never like to take up time arguing about questions of terminology, and if on reflection the noble Viscount thinks that this is an Amendment which should be made, I should not advise my noble friends to divide against it.

THE LORD CHANCELLOR: I beg to move Amendment No. 78.

Amendment moved— Page 49, line 37, leave out ("or repayment").—(The Lord Chancellor.)

THE LORD CHANCELLOR: I beg to move Amendment No. 79.

Amendment moved— Page 49, line 40, at end insert ("but section 74 of the Magistrates' Courts Act 1952 (arrears under affiliation orders) and sections 17 and 18 of the Maintenance Orders Act 1958 (not more than one committal for same arrears, and power to review committals) shall apply in relation to any such sum as they apply in relation to a sum ordered to be paid by an affiliation order.")—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS moved, as an Amendment to the Amendment, to leave out "order" and insert "or maintenance order, as the case may be". The noble Viscount said: I am sorry to have disappointed the noble and learned Lord on Amendment No. 73A. In fact, it was the point of substance that I raised in discussion with him. It may have been discussed as a matter of the most charming phraseology, but it was intended to be an alternative to his previous Amend- ment. I did not move it because I thought we had already discussed it. I shall probably put it down again on the next stage.

On this Amendment (again I hope that I am not being pernickety), may I say that when I looked at Sections 17 and 18 of the Maintenance Orders Act they seemed to me to not apply to affiliation orders but to maintenance orders. It seemed to me that it would not be clear to describe them by reference to an "affiliation order", and that there ought also to be a reference to a maintenance order. I beg to move.

Amendment to Amendment moved— Line 6, leave out ("order") and insert the said new words.—(Viscount Colville of Culross.)

THE LORD CHANCELLOR

I cannot be quite so accommodating on this point because, as the noble Viscount knows, Parliamentary draftsmen have strong views about the right way to do things in the way of personal terminology. The noble Viscount's point is that when Section 74 of the 1952 Act applies to affiliation orders and Sections 17 and 18 of the 1958 Act to maintenance orders, it is clearly wrong that the last words of the Government's Amendment should refer to affiliation orders only. The point, I am told, is that maintenance orders are defined in the 1958 Act as including affiliation orders, so that the Government's Amendment is correct as it stands. Perhaps the noble Viscount would like to consider that. If necessary, the point can always be raised again.

VISCOUNT COLVILLE OF CULROSS

I am obliged. I beg leave to withdraw the Amendment to the Amendment.

Amendment to Amendment, by leave, withdrawn.

THE LORD CHANCELLOR: I beg to move Amendment No. 80.

Amendment moved— ("( ) If on the application of the appropriate authority it appears to a magistrates' court that at the time of the application payment of a contribution towards costs by a legally assisted person or any instalment thereof has been due for not less than four weeks, and that he is a person to whom earnings fall to be paid, the court may make one or more attachment of earnings orders within the meaning of the Maintenance Orders Act 1958 to secure the payment of the whole of the unpaid amount of the contribution. ( ) The provisions of Schedule 1 to this Act shall have effect for the purpose of applying, with modifications, provisions of the said Act of 1958 to attachment of earnings orders under this section and for the purpose of making a consequential amendment of that Act. ( ) Any sum paid by way of contribution towards costs to a clerk of a magistrates' court shall be paid by him to the Secretary of State, and section 27(1) of the Justices of the Peace Act 1949 (application of fines, fees, etc.) shall not apply to any such sum, but section 27(9) of that Act (regulations as to accounts) shall apply to any such sum as it applies to a sum payable under the said subsection (1).")—(The Lord Chancellor.)

Clause 63, as amended, agreed to.

Clause 64 agreed to.

Clause 65. [Payment of costs of legal aid]:

THE LORD CHANCELLOR: I beg to move Amendment No. 81.

Amendment moved— Page 51, line 33, leave out from ("(d)") to ("be") in line 36 and insert ("shall").—(The Lord Chancellor.)

THE LORD CHANCELLOR: I beg to move Amendment No. 82.

Amendment moved— Page 51, line 42, leave out from ("authority") to ("except") in line 44.—(The Lord Chancellor.)

Clause 65, as amended, agreed to.

Clause 66 [Solicitors and counsel]:

11.20 p.m.

THE LORD CHANCELLOR moved, in subsection (2)(a), after "rules" to insert "i". The noble and learned Lord said: I hope that with this Amendment it may be convenient to take also Amendments Nos. 84 and 85. Subsection (2) of Clause 66 provides that the Lord Chancellor may make rules establishing a tribunal with power to hear and determine complaints against a barrister or solicitor, and to exclude from legal aid work any barrister or solicitor against whom a complaint is proved. The purpose of the Amendments is to enable the Lord Chan- cellor to provide by rules for such a tribunal, on determining that a complaint has been substantiated, to exercise the additional powers of, first, reducing or cancelling the remuneration which would otherwise have been payable to the barrister or solicitor under a legal aid order; and, secondly, making such an order as the tribunal think fit for the payment by the barrister or solicitor of the costs of the proceedings relating to the complaint.

It is the intention that the arrangements for dealing with complaints should be broadly similar to those under the civil legal aid scheme, and that any tribunal established under the rules should have similar powers to those exercised by a panel complaints tribunal in civil cases. Under the legal aid and advice schemes 1959 to 1963 made by the Law Society, with the approval of the Lord Chancellor, for the administration of civil legal aid, a panel complaints tribunal has power to determine the remuneration of a barrister or solicitor against whom a complaint is substantiated, and to order him to pay the costs of the proceedings relating to the complaint. The Amendment will enable a tribunal set up under the rules in criminal cases to exercise broadly the same powers as the panel complaints tribunal; and I beg to move accordingly.

Amendment moved— Page 52, line 7, after ("rules") insert ("(i)").—(The Lord Chancellor.)

VISCOUNT COLVILLE OF CULROSS

I think that on this side we welcome this Amendment. As the noble and learned Lord said, it brings the two forms of tribunal into line and gives them the same powers in each case.

THE LORD CHANCELLOR: I beg to move Amendment No. 84.

Amendment moved— Page 52, line 9, leave out ("and") and insert ("(ii)").—(The Lord Chancellor.)

THE LORD CHANCELLOR: I beg to move Amendment No. 85.

Amendment moved—

Page 52, line 14, at end insert— ("(iii) to reduce or cancel the remuneration otherwise payable to any such barrister or solicitor or to his firm under a legal aid order; (iv) to order any such barrister or solicitor to pay all or any of the costs of the proceedings on any such complaint;").—(The Lord Chancellor.)

Clause 66, as amended, agreed to.

Clause 67 agreed to.

Clause 68 [Interpretation of Part IV]:

THE LORD CHANCELLOR

This Amendment, again, is one of those which are consequential upon Amendment No. 74, as I previously said, and therefore I beg to move.

Amendment moved— Page 54, leave out lines 5 to 8 and insert—("'appropriate authority' means—

  1. (a) in relation to legal aid ordered to be given for the purpose of or in connection with an appeal to or from the Courts-Martial Appeal Court, the Secretary of State;
  2. (b) in any other case, the clerk of the magistrates' court (if any) by which the legally assisted person was tried or dealt with or from which an appeal was brought, or by which he was committed to a court of assize or quarter sessions for trial or sentence, or, where he was tried or dealt with otherwise than after being committed by a magistrates' court, the clerk of the magistrates court nominated for the purposes of this paragraph by the court by which he was tried or dealt with").—(The Lord Chancellor.)

Clause 68, as amended, agreed to.

LORD SHEPHERD

I think this is the spot we have been aiming for, and which some have been looking forward to. If I may, I would express my very grateful thanks to all those noble Lords who have taken part in today's Committee stage. It has been very long, but we have achieved our target, and it would now seem possible that we should be able to complete the Committee stage tomorrow, as was agreed. But I should like to express sincere thanks to all those who have taken part. I beg to move the House do now resume.

Moved, That the House do now resume.—(Lord Shepherd.)

On Question, Motion agreed to, and House resumed accordingly.