Lords Sitting of 17 July 1972

Preamble
The House met at half past two of the clock: THE LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Leicester.

U.S. EXPLOSIVES SHIPMENTS FROM BRITISH PORTS
LORD BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether United States' supplies of explosives for military purposes are being exported from British ports ; and, if so, what is their destination.
THE SECRETARY OF STATE FOR DEFENCE (LORD CARRINGTON): My Lords, the shipment of American explosives through British ports is part of the routine turnover of stocks. The noble Lord may have in mind the recent movement of a quantity of explosives from the United Kingdom to Zeebrugge, which I understand were later diverted to South East Asia.
LORD BROCKWAY: My Lords, I will not say "Thank you". I should like to ask whether it is not a fact that a large number of American explosives are being exported from Sheerness ; that the dockers are getting danger pay ; and that there is local controversy about lorries loaded with bombs going through the narrow streets. May I ask the noble Lord whether the same situation applied to Lowestoft earlier ; and whether the Government can give an assurance, in view of the very doubtful reply about South East Asia, that these explosives are not being used in the criminal bombing of North Vietnam?
LORD CARRINGTON: My Lords, these are American stores and the American forces are entitled to use them to meet their own needs, provided that
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within our country they comply with our safety requirements.
LORD BROCKWAY: My Lords, the noble Lord has not answered my questions.

CAMPING DRAFT MODEL STANDARDS
2.37 p.m.
THE EARL OF MANSFIELD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have considered the Report of the Camping Working Party to the Department of the Environment ; and, if so, whether they will commend to local authorities the draft model standards contained in Annexe 4 to the Report.
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD): Yes, my Lords. My right honourable friend and I are now considering comments on the recommendations of this Report made by the interested bodies consulted by the Department. Legislation will be necessary to give effect to most of the recommendations. But I am glad to have this opportunity of inviting local authorities to have regard, wherever possible, to the draft model standards in advance of these being given statutory authority.
THE EARL OF MANSFIELD: My Lords, may I thank my noble friend for that reply? May I also ask him whether he is aware that pressure on touring pitches for touring caravans is now so bad in the high season that, for instance, in Western Scotland the demand is now four and a half times the availability? Secondly, is my noble friend aware that the insistence of local authorities on draft model standards being followed to the letter has considerably reduced the amount of new pitches that would otherwise become available? Thirdly, would my noble friend go a little further than he did in his Answer, so that local authorities may pay heed to those new model standards that do not need any legislation to bring them into force?
LORD SANDFORD: My Lords, I think I have gone as far as I can. I have commended the model standards to local authorities, in spite of the fact that we are still in process of consultation. It may well be that when a circular is issued giving effect to such recommendations of the Camping Working Party's Report as can be implemented without legislation there will be another opportunity to commend these model standards ; but full statutory authority for them can be given only when time has been found for legislation in this field.

FAIRGROUND SAFETY PRECAUTIONS
BARONESS BACON: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many fatal accidents occurred on fairgrounds in the period 1963–70 ; whose responsibility it is to inspect machinery and whether the voluntary inspection scheme run by the Showmen's Guild extends to permanent fairgrounds or is confined to travelling fairs.
THE MINISTER OF STATE, HOME OFFICE (VISCOUNT COLVILLE OF CULROSS): My Lords, there were 17 fatal accidents at fairgrounds between 1963 and 1970. The bylaws relating to safety at fairgrounds, enforced by those local authorities which have made them, do not specify arrangements for inspections but lay a duty on the operators to ensure the safe construction and maintenance of the devices concerned. Under the voluntary scheme operated by the Showmen's Guild, which applies only to travelling fairs, annual inspections are carried out by independent engineers.
BARONESS BACON: My Lords, is the noble Viscount aware that of course 17 fatal accidents even in eight years represents 17 too many? Is the noble Viscount further aware that following the tragic accident at Battersea Park some misleading and inaccurate statements were made, such as that there were between 1,000 and 2,000 accidents a week ; and
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that this accident at Battersea was made the occasion for an attack on the Showmen's Guild? Would not the noble Viscount agree that the members of the Showmen's Guild have shown themselves to be very responsible in running their voluntary scheme so successfully, and that they have co-operated with the Royal Society for the Prevention of Accidents, the local authorities and the Home Office?
VISCOUNT COLVILLE OF CULROSS: My Lords, of course any accident is an accident too many, but I have certainly nothing which would give credence to the sorts of figures quoted by the noble Baroness. She asked about the Showmen's Guild voluntary scheme. I have been looking up the Home Office circular, which was sent out in March of this year, which explains it. Not only is it comprehensive and goes so far as to require some devices not to be operated at all until repairs have been carried out and further certified, but it has been tightened up again as from January of this year. So far as I know, there is the greatest possible co-operation between the Showmen's Guild, the Royal Society for the Prevention of Accidents, the Home Office and anybody else who is responsible ; and I think they are highly to be commended for it.
VISCOUNT ST. DAVIDS: My Lords, is the noble Lord aware that many of us, on hearing these figures, compare them with the figures of accidents in the home and feel that the Showmen's Guild should be congratulated on the state of their machinery?
VISCOUNT COLVILLE OF CULROSS: My Lords, I am sure that the House is obliged to the noble Viscount, as the showmen will be, for that remark.

AFFILIATION PROCEEDINGS (AMENDMENT) (NO. 2) BILL
Read 3a, and passed.
CULAG (LOCHINVER) PIER ORDER CONFIRMATION BILL
Read 3a, and passed.

CRIMINAL JUSTICE BILL
2.44 p.m.
VISCOUNT COLVILLE OF CULROSS: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Viscount Colville of Culross.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 [Compensation orders against convicted persons]:
THE EARL OF MANSFIELD THE EARL OF MANSFIELD moved Amendment No. 1:
Page 2, line 23, at end insert?—
(" ( ) The powers conferred by this section shall be exercisable upon the application of any person aggrieved or, if there be no such application, as the court in its discretion thinks fit.")
The noble Earl said: I beg to move Amendment No. 1. The effect of this Amendment will be to declare that either a magistrates' court or a Crown Court can make a compensation order either on the application of the victim of a crime or, alternatively, on its own volition. Except in the case of various specific offences, the power of the court to make compensation orders in the past 100 years or so has been derived from Section 4 of the Forfeiture Act 1970, and Section 11(2) of the Criminal Justice Act 1948. Section 4 of the Forfeiture Act lays down a maximum of £400 and may be in respect only of damage to property. Section 11(2) of the Criminal Justice Act 1948 gives the courts power to make what is in effect a compensation order, limited to £100 in the case of a magistrates' court, for damages and compensation for injury and loss. No application on the part of the victim is needed in the latter case, but the order can be made only if the offender is put on probation or given a conditional discharge. In the departed days of plea bargaining, as a defending advocate one frequently took advantage of that manoeuvre. If some young "rip" was involved in a series of assaults and somebody was injured, the relatives collected £100 and one could go
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behind the scenes and see the judge ; the offender was not deprived of his liberty and the victim was awarded, sometimes unexpectedly, £100. Those days have, alas! gone forever. The effect is to sweep away all this legislation and the law is now restated basically in Clause 1.
The aim of this Amendment is twofold: first, to encourage the courts to make far more frequent use of compensation orders ; and, secondly, to give the victim the right of audience when the matter of compensation is aired in court. There is no doubt that the power to award compensation has been most sparingly used by the courts in the past. In Appendix E in the report of the subcommittee of the noble and learned Lord the Lord Chief Justice, one can see that in 1970 23,800 compensation orders were made. The vast majority were in cases of offences against property and only 138 were in respect of cases of malicious wounding. These figures are incomplete and not up to date, but one can gain from that how reluctant the courts are, even when they have the power, to make compensation orders in respect of victims of violence.
One asks the question: "Why have the courts been so reluctant?" I believe there are two answers. I have played a part in a great number of cases of compensation and restitution. Our adversary system, so far as criminal courts are concerned, has the Crown standing on the one side, so to speak, and the offender, as he becomes if convicted, on the other side. The courts are reluctant to go farther than their narrow function to adjudge guilt and to punish guilt unless somebody makes an application, or it is in somebody's interest that a compensation order should be made. Again and again one finds somebody who would quite like compensation but does not know how to set about obtaining it. In the end, it is left to the prosecution counsel to set the wheels in motion, but if he cannot or will not, or the judge is in a hurry to start a new case, nothing happens.
The second matter is this. The method of assessment is very difficult. If one has not been intimately concerned from the prosecution's angle with the preparation of a case for trial, it is difficult to understand. Suppose that as a result of,

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let us say, a brawl on a Saturday night a victim is assaulted and hurt, but not too badly. The offender is probably arrested fairly quickly, and a police officer, who is either off duty or thinking about being off duty, takes a statement from the victim probably within 24 or 36 hours. Then the case eventually comes to court. If by that time the defendant (as he then is) has been legally advised he may well plead guilty, informing the court beforehand. The victim is told on the telephone that he need not appear, and in that instance when eventually the court is told the facts nobody knows the effect on the victim's health: whether he has lost any money by way of wages ; whether he wants any compensation in respect of injuries, or what the position is at that time. So, however sympathetic a court is to the victim's plight, it simply does not know, and has no method of knowing, how to assess compensation, even if it is minded to award it and the victim is minded to have it. These, basically, are some of the difficulties in which the courts have up to now been placed in trying to make compensation orders.
The next limb upon which I would base this Amendment is this. It seems quite illogical and unfair that somebody who, as a victim, may be the subject of a compensation order has no right to be present, so to speak, and address the court, either himself or through counsel, when the question of his compensation order is raised. He may not be there ; he may have no idea what is going on ; he may have no idea when the case is coming up for hearing ; he may not want a compensation order at all ; and he certainly may not want the kind of sum the court has it in mind to award. In the Second Reading debate of this Bill in your Lordships' House, when I ventured to suggest that this was contrary to the rules of natural justice, my noble friend Lord Colville of Culross said that, so far as he was aware, or his information led, a victim would have a right of audience and a right to ask for an order. As this Bill stands I cannot see how anybody will have that right. The Bill specifically repeals the old Section 4 which gives somebody the right to make an application. This is entirely new legislation, and I should have thought that
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nobody would have the right to address a court unless it is written into this clause. Even if I am wrong about this, if one is going to try to encourage the making of compensation orders, in my submission it should be spelt out in black and white so that people and courts, and possibly reluctant chairmen of courts in the Provinces, where perhaps one might say the fighting is less thick, will know precisely what is their duty.
It may lastly be said that if this right is given to the individual, to the victim, it may have the effect, first, of increasing the number of applications made to the courts—undoubtedly it would ; and I hope it would—and, secondly, that the courts might find themselves getting embroiled in what I might call "mini-civil" cases" to decide questions of quantum of damage. My Amendment is drafted in such a way that the courts have a complete discretion. If, for instance, somebody comes along with two doctors and a surgeon and says that, as a result of the injuries he has received by way of assault, he is now going to have difficulty for the rest of his life, the court would, without doubt say, "No. This is not for us", and refer them to a civil court. But it should not be beyond the wit of the modern judge to take into account questions such as loss of wages and possibly a small sum by way of compensation for pain and suffering. If the courts get more applications of this kind I, for one, shall be very glad. It seems to me a peculiarly appropriate way of dealing especially with minor cases of violence that the offender is told, not so much, "You are going to be fined £50"—which will go into the coffers of the Treasury—but, "You are going to pay £50 to your victim. You are going to pay at the rate of £2 a week, and the court will see that you do." If a victim is told that he may feel better off, but, far more importantly, if an offender has any sense of self-respect—and in the case of some of these young rips it very often is there but a little below the surface—I suggest that dealing with him in this way will have a better effect and perhaps help him to become a useful citizen. I beg to move.
VISCOUNT COLVILLE OF CULROSS: I have listened with great interest to what my noble friend Lord Mansfield has said.

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One of the things he said towards the end of his speech is of great importance ; that is, that we must not encourage the criminal courts to become involved in anything which would be much more suitable for civil legislation. I was glad to hear my noble friend stress that point. I am inclined to think that there is something in this Amendment. It is nice to be able to give my noble friend encouragement on what is, I think, the first Amendment he has moved in this House. However, I wonder whether I may suggest just a few points to him on it. The Committee will probably agree that it is right to have got rid of the essential application by the victim under the 1870 Act. This is something which the Committee of the noble and learned Lord the Lord Chief Justice particularly recommended ; and of course this Bill implements it. There will be no need for any application by anybody.
What my noble friend is worried about is the opportunity for a victim to come forward, if he should wish. I said on Second Reading that I could see no reason why a victim should not come forward, or why any court should refuse to hear him. My noble friend now says that this ought to be written into the Bill. I would suggest to your Lordships that the important point is that, having got rid of (in the case of the 1870 Act, in any event) the requirement for an applicant to come and ask, before the courts have power, we should encourage courts at all levels always to think in terms of compensation in suitable cases. This of course the Bill helps to do and we will further assist them in that direction by means of some circular information about the Bill when it comes into force. I therefore think that possibly, psychologically speaking, the Amendment starts the wrong way round because it tends to go back to the application, rather than leaving it to the discretion of the court in the first place. There is, incidentally, a technical difficulty in that there would need to be a consequential Amendment on a subsequent clause.
If the Committee thinks that it would be better to put some specific reference to the right of audience for a victim in the Bill, I do not think I would be prepared to resist it, at any rate in the first instance at the original trial. But
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if my noble friend would be prepared to withdraw this Amendment, because I think I would rather have the phrasing the other way round, so as to place the duty on the court to think in every case, but also to take account of any application made by the victim, if there is one, then I should certainly be prepared to consider this point very seriously with a view to an Amendment at the next stage of the Bill.
THE EARL OF MANSFIELD: I am gratified for what my noble and learned friend has said. I dare say it is too much to hope that the first time I move an Amendment in your Lordships' House it will actually be accepted, but I take his point and do so with considerable gratitude. I am not sure that I agree with my noble friend that, by putting the Amendment a different way round, it is going to read any better. But I think I must bow to him and his officials who know so much more about this matter than I do, and in the circumstances, therefore, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
3.0 p.m.
LORD HACKING LORD HACKING moved Amendment No. 1A:
Page 2, line 25, after ("1911") insert ("the proviso to section 3(3) and").
The noble Lord said: I move this as a tidying-up Amendment and I hope that the Committee will be able to treat it as such. This Amendment concerns subsection (3) of Section 3 of the Criminal Justice Act 1948, which gives to the court a discretionary power to impose conditions during the period of a probation order upon the probationer ; for example, the condition of good behaviour. The proviso to that section reads as follows:
"Provided that (without prejudice to the power of the court to make an order under subsection (2) of section 11 of this Act) the payment of sums by way of damages for injury or compensation for loss shall not be included among the requirements of a probation order."
Clearly that is recognised in Schedule 2 to this Bill. The proviso cannot be left in its present form because by deleting and causing Section 11(2) to cease to have effect that proviso, in its present form, would be in conflict with Clause 1 of the Bill which is now before the Committee. As is recognised in Schedule 2, in any event this proviso has to be

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amended to a certain extent by replacing Section 11(2) of the Criminal Justice Act 1948 with Clause 1 of the Criminal Justice Bill which is now before the Committee. I am asking the Committee to take it a great deal further than that and to say that this proviso should be deleted altogether. I think it would be right to examine with the Committee the purpose of the proviso before I argue the reasons why, in my submission, this proviso should be deleted.
The purpose of the proviso, as I read the Statute, is to prevent the court from making the payment of compensation a requirement of a probation order. For example, the offender's duty to pay compensation arid his duty to respond to a probation order according to the legislation are to be separate responsibilities. I argue that this severence is unreal. If a man does not bother to pay on a compensation order as ordered by the court, he is not, in reality, responding properly to the probation order.
There is a second argument which I also put before the Committee. Under this Bill there are quite a number of new methods of dealing with offenders. There is the attendance centre requirement in Clause 19 and subsequent clauses, and also there are the community service orders. Both the attendance centre order and, for breach of probation, the community service order, if this Bill passes through your Lordships' House in its present form, are to be made part of a probation order. I am asking the Committee to say that in all logic compensation orders should also, at the discretion of the court, be made part of the probation order. But I emphasise that by deleting this proviso we shall not be compelling a court to make a compensation order part of the probation order ; it will merely be giving the court liberty, at their discretion, so to do. I beg to move.
VISCOUNT COLVILLE OF CULROSS: I am grateful to the noble Lord, Lord Hacking, for explaining this situation. He has done so perfectly correctly. The only thing that needs to be brought to the attention of the Committee is that, as the Bill stands, there is nothing to prevent the court from making a probation order and also a separate compensation order. I know that the noble Lord is in no doubt about it, but it is an important fact and
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I think it is as well to make it clear. Therefore the crux of his argument is whether the two should be linked. To the best of my knowledge—and the noble Lord will tell me if he knows of cases to the contrary—there has been no pressure since 1948, when the proviso was first enacted, for the compensation orders—so many of them as there were—to be attached as part of the conditions of probation. I am sorry to say that the noble Lord's Amendment appeared rather recently and therefore I have not had much time to do further research into this matter, but I am not aware of any particular pressure for this to be done.
The difficulty about it is really twofold. First, although I think my noble friend Lord Mansfield said that it might be an appropriate penalty in some cases, one can envisage that the compensation is payment to a private person under the sanction of the court. I am not quite sure that the probation officer is the right person to get drawn into the details of this sort of transaction and to act as the agent of the private individual in this way, although he is doing it technically through an order of the court. But perhaps more difficult are the sanctions that would come about if the court were to make a probation order with a requirement that compensation should be paid as a condition of it. What happens if the offender does not pay the compensation? He is then in breach of the probation order and has to be taken back to the court. The noble Lord says that he could then be made subject to a community service order, or something of that sort, but one of the things the offender cannot be ordered to do is to pay it by instalments, as can be done at present. Supposing he has fallen behind in his payments, the breach of the probation order would not give the court the opportunity to extend the period for payments, certainly not over a period longer than the probation order itself. So if a large sum was involved one would inevitably come to grief at the end of the probation order. There is little else that a court can do. If the compensation order has failed it cannot bring back the man who is in breach and impose a fine on him, because ex hypothesi he would not pay that, either. There may be other reasons, and other good which would come from the probation

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order if it were to continue, which would be spoilt if the man had to be brought back and dealt with for a breach for not paying the compensation.
As I have said, I have not had a great deal of time to consider this Amendment but on balance I would advise the Committee that, as all has been well as far as I know since 1948, and since there is still power to run a probation order and a compensation order together, although not attached to one another, and as there are what I would suggest are some fairly important difficulties in combining the two—which perhaps was the reason why it was not done by Parliament in the first place—in these circumstances it would be best to leave the matter alone. I am sorry not to be more helpful to the noble Lord but that is, I think, as far as I can go in regard to this Amendment.
LORD DONALDSON OF KINGSBRIDGE: I should like to support the noble Viscount by expressing some doubt about this Amendment. It seems to me that the task of a probation officer is a difficult one. He is nearly always involved in trying to persuade his man to pay off back debts, and he does this by persuasion. If we add to that a compulsory deduction from the man's probably very spasmodic earnings, it is likely to make things too difficult. Therefore I am inclined to support the noble Viscount in his request that the Amendment should be withdrawn.
LORD HACKING: Having no supporters for my Amendment, I shall shortly seek permission to withdraw it. In the meantime, I wish to emphasise that I am not seeking in any way to compel the court to couple a compensation order with a probation order but merely to give it discretion in the right case to do so. If none of your Lordships supports me in this matter, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Appeals in the case of compensation orders]:
3.10 p.m.
THE EARL OF MANSFIELD THE EARL OF MANSFIELD moved Amendment No. 2:
Page 2, line 38, at end insert—
(" ( ) Where an aggrieved person has appeared in a court and a compensation order
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has been made in his favour notice of any appeal against the said order shall be served upon the aggrieved person and he shall have the right to appear when the appeal is heard.")
The noble Earl said: Your Lordships will see that this Amendment follows closely the first Amendment to Clause 1. However, it goes somewhat further because, as I suggest, if an order is made in somebody's favour and the decision is taken to appeal it is, to put it mildly, bad luck if the person in whose favour the order has been made is not allowed to say anything on the hearing of the appeal. One can imagine many instances where there may be an appeal against a compensation order. For example, if the victim is claiming compensation for loss of wages he may pitch his average weekly wage a good deal higher than in fact it is. It is extraordinary how people's average weekly wages fluctuate. Those of your Lordships who sit as magistrates will have been amazed how low average weekly wages are when you have been considering applications for legal aid. On the other hand, those of your Lordships who sit as company directors will have been amazed to note how high they are when applications for credit are made. If my noble friend will give me the same sort of assurance he was able to give in relation to Amendment No. 1—that this matter of aggrieved persons will be looked into—I shall be happy to withdraw the Amendment. I beg to move.
VISCOUNT COLVILLE OF CULROSS: It is sad, but I am afraid I cannot give my noble friend the assurance he seeks. There are rather more difficulties about this Amendment, certainly in the form in which it is drafted, and I think in principle as well. The Amendment would give the person who happens to have turned down at the court of first instance a compensation order made in his favour a very peculiar advantage, because he, and only he, would be able on appeal to make representations to the appeal court. This would be in direct conflict with what I said on the first Amendment about attempting to get the courts to "think" compensation. Why should the person who happened to be there—this would probably be rare, certainly more so than those cases where a court has granted compensation of its own volition—be the only one to be heard on an appeal? Those who for some reason could not be there—because the man

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pleaded guilty, because they could not get away or because they were not told in time—would be equally concerned with what would happen to their compensation order, but under the Amendment they could not be heard.
My noble friend's proposal would go further than that and, as I say, it is also a matter of principle. I said that I would look at Clause 1. While it is all very well to give a victim who wishes to turn up a right to be heard in the first instance, once one gets to the appeal proceedings then if there is a compensation order the appeal court will obviously know about it. It will be able to look at the reports and there will be no question of hurry in this type of case because all the documentation should be before the court as a result of the appeal. One must of course also consider the time involved.
If there were any question of the compensation order being amended or cancelled, it is likely to be either because the offence to which it attaches is thought not to have taken place or the sentence has been altered, or possibly, and more likely, because by that time it has become apparent that this is not one of those simple cases with which the criminal courts can deal but is more complicated and should be pursued in the ordinary way in the civil courts. For these reasons to give a victim, and a specified victim at that, locus to be heard in the appeal court would be cumbersome and unnecessary and would go against the principles I have explained. I therefore hope that my noble friend will not pursue the matter, as it would go rather too far.
LORD HALE: If nobody else intends to make some observations on this matter, I will do so briefly. The Amendment seems to bring us perilously near to the French procedure of the partie civile having an interest in a criminal prosecution being able to appear by advocate and Ro become, in effect, an additional prosecutor ; having more power and less restraint and not being bound by those rules which bind the prosecution in a criminal case. If the party who is injured is entitled to participate even on appeal as a party to the case, then we are really establishing a
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rule which most English jurists have deplored in contemplating the virtues and vices of the French procedure.
THE EARL OF MANSFIELD: My noble friend the Minister of State takes much too grave a view of what is likely to happen. My Amendment was drafted as a question of practicalities. Consider a magistrates' court in which someone obtains a sum of compensation for loss of wages. Suppose he claims two weeks at £20 and is awarded £40 and then, within the 14 days during which he is at liberty to put in his notice of appeal, the offender discovers that in fact his victim is an unemployed labourer who is certainly not worth £20 a week. He therefore puts in a notice of appeal against sentence and particularly against the compensation order. It may turn out, when that case is heard in the Crown Court, that the victim was an unemployed labourer. It may be that the offender is a thoroughly devious fellow who reads his OFFICIAL REPORT and knows what he has to do. How is the Crown Court to find out where the truth lies unless someone can tell it? The Crown cannot. It is not in a position to do so. Our courts are notoriously averse to receiving hearsay evidence, and rightly so. They may decide that the appellant is not speaking the truth. Are they to say, "We cannot deal with this because we do not have the machinery for finding out?" Presumably they will allow the appeal, possibly quite wrongly. Are they to say "The appellant looks a liar and we will not believe him in any event," and dismiss the appeal when he may be right? What are they to do?
To take up the point made by the noble Lord, Lord Hale, I assure him that it is not a question of an aggrieved person standing as a party between the Crown and the defendant. My Amendment simply seeks to give the aggrieved party the right to appear when the appeal is heard, and in my submission any properly constituted Crown Court or court of appeal—and it will be to those tribunals that these appeals will be directed—will, in the proper exercise of its discretion, soon stop an aggrieved party from doing any more than to put his point of view on the matter of a compensation order and whether the appeal should be allowed. The aggrieved party is not entitled to say that

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the appeal should not be allowed by virtue of something else which has nothing to do with the compensation order. All that I envisage the aggrieved party should be there for is to say: "Please do not disturb my compensation order because it was made justly and I wish it to continue ". If, for instance, the appellant achieves the upsetting of the conviction because the summing up in the lower court was deficient in some way, that would not give the aggrieved party or his counsel the right to say anything at all. It is really a question of quantum, and that is what I yam asking my noble friend to consider.
It seems to me at this stage, however, that since I withdrew my first Amendment, in all logic so far as this Bill is concerned there is not an aggrieved person, and therefore I seek leave to withdraw this Amendment also.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Review of compensation orders]:
3.21 p.m.
THE EARL OF MANSFIELD THE EARL OF MANSFIELD moved Amendment No. 3:
Page 3, line 25, at end insert—
(" ( ) Notice of any application under this section shall be served upon the person in whose favour the compensation order was made and such person shall have the right to oppose any discharge or reduction of the said order as the case may be.")
The noble Lord said: This Amendment is rather different in complexion from the first two. As your Lordships will notice, on this occasion I am not talking about an aggrieved person. Clause 3 of this Bill in effect gives the offender liberty to come back to a magistrates' court—and I emphasise magistrates' court—and say to it, "Your compensation order made against me is either too much or it is in respect of property which has been lost and has then been recovered." Once more the unfortunate person in whose favour the compensation order is made has no right of recourse. He may well wish to say to the court, "I do not agree that the injury, loss or damage in respect of the civil proceedings order is less." He may well say, "I do not agree that my lost property has been recovered." Even more, he may say, "I do not care if my lost property has been recovered, it is in
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a damaged condition and I still want some compensation." It seems to me that that is a thoroughly just and equitable claim to make, if it is right.
I do not think I can continue with this theme. It is a matter of natural justice that, where a person has been the subject of a compensation order (and this has nothing to do with an appeal), if the defendant says that the conditions have changed, that the situation is different from what it was when the order was made, the person who is the subject of the order must, in justice, be able to come back to the court and say, "No, they are not, they are exactly the same and I want my compensation, please." I beg to move.
VISCOUNT COLVILLE OF CULROSS: As my noble friend says, this is rather a different matter and I suggest to the Committee that here we are getting rather too far away from the whole point of this Part of the Bill, which is to provide a summary remedy in the criminal courts for fairly simple cases. I quite understand that the notional person about whom my noble friend was speaking, who has been to the civil courts (this is the first part of the Amendment) has had judgment in his favour and then finds that the compensation order is reduced or cancelled, may have some quarrel about it. But I would suggest to the Committee that the moment when the full amount of his loss should be dealt with, argued about and examined as the result of evidence and all the procedure of the law, is in the civil courts ; and if the civil courts have decided that a man should have so much in the way of damages then they will have taken account of what he has been paid by way of the compensation order. The whole scheme is designed to see that he does not get his money twice over. I cannot see room in this sort of summary proceeding for the victim to come back again when the order is being reconsidered by the magistrates, or the same court, as a result of a civil judgment, and be heard all over again.
The second limb of the argument is that once the goods have been returned then the magistrates' court—and it will be the magistrates' court in every case—can reduce or cancel the compensation order though the victim should be able to say to the court, "Oh yes ; the goods have come back, but they are damaged".

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That, again, is getting away from the whole of the summary character of this remedy. For one would then have to decide by how much the goods were damaged ; what was their value before and after. I am afraid that I must advise the Committee that this is the sort of thing that, if it is to be dealt with at all, should be dealt with by the county court or some other civil tribunal where it can be properly examined. I fear that I have to resist my noble friend in this Amendment because it is complicating this summary proceeding out of all recognition and is really quite unsuitable for the criminal courts.
LORD GARDINER: Would the noble Viscount be prepared to think about this and the last previous Amendment, which I am sorry the noble Earl, Lord Mansfield, withdrew? There seem to be in this Bill provisions from which it is very difficult to tell how the Government intend them to work. If I may say so, I was impressed by what the noble Earl said. Here are two men both of whom are concerned with an order and who are probably the only two men who know the relevant facts. I find it very difficult to see how this scheme is going to work if, for example, in relation to the present Amendment, the convicted man is able to come back to the court seeking an order reducing the amount of the compensation. In such a case, who can check whatever facts he gives in evidence except the man in whose favour the order has been made, and who is the only other man who knows the facts? It seems very unusual to have an order that affects two people, the payer and the payee, and to provide for hearing one of them but to make no provision at all for hearing the other.
I fully accept everything the noble Viscount said about the desirability of not turning this into a civil inquiry for damages. On the other hand, for the reasons given by the noble Earl, I find it difficult to see how the courts themselves are going to work the system if a defendant can come back for a reduction and yet no provision is made for the court to hear the only other person who can check the evidence given by the convicted man. I quite see that there are two sides to the argument, but now that these points have been so forcefully put by the noble
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Earl perhaps the noble Viscount will say that at least he will be prepared to consider this further before the next stage of the Bill.
VISCOUNT COLVILLE OF CULROSS: I am always prepared to consider points and I am grateful to the noble and learned Lord for intervening. There is consideration and consideration. I have dealt with my noble friend's first Amendment in a very encouraging way but I am bound to say that I am less enthusiastic about this one, although, of course, when two noble Lords ask me (because I am sure my noble friend behind me will do the same) I cannot possibly refuse to consider it ; and I will gladly do so. There is a certain amount of heavy weather being made about the Amendment to Clause 3 that we are on at the moment. Perhaps I may say one word about the Amendment to Clause 2, although strictly I am out of order. There must be cases where compensation orders go to appeal courts and to the prime court now, and again I have not heard of any practical difficulties arising. It may be just because such cases are not brought to my notice or because they do not occur very often. I will make further inquiries to see whether there have been practical difficulties. If the court has the information before it in cases which it deals with now, then it is probably adequate to leave it.
As for Clause 3, where we are going a little further than the present law, the situation under subsection (3)(a) seems to me to be that there has been an order of a civil court, which has produced a sum of money, and subsequently the injury, loss or damage has been held in civil proceedings to be less, so that the sum awarded turns out to be less than the original compensation order made by the original criminal court. I should have thought the only way in which the first court could be satisfied would be by the production of the judgment of the civil court ; I cannot see how it is going to proceed at all without evidence of that sort. I do not truthfully know whether that is exactly how it is going to be done, and this is one of the reasons why I should like to take up the noble and learned Lord's suggestion to consider it.
As for paragraph (b), which deals with the situation where the person who has been required to pay the order claims

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that the goods have been returned—though in the case raised by my noble friend come back damaged—would not the Committee agree that, unless it is a simple case, we are here getting into the sort of realm where only a civil court can properly come to a satisfactory conclusion on the facts? I should not want to see magistrates dealing with difficult cases of this sort. I should have thought it would be the simple case that was right for them. Suppose that a piece of silver has been stolen and a compensation order is made ; the property is recovered and is returned intact to the person from whom it was stolen, so that he is no worse off. But if the article comes back with a great dent in the side, or with the handle broken off, then the whole question of how much it will cost to mend it is a very different one and, I should have thought, not a very easy task for magistrates to deal with summarily. However, I take the noble and learned Lord's point, and I will certainly consider again both these points my noble friend Lord Mansfield has raised, though not, I think, with anything like so much enthusiasm as the first one.
THE EARL OF MANSFIELD: May I try to breathe a little more fire into this matter? Somebody in the other place described this Part of the Bill at one of its stages as "window dressing". I ask my noble friend to have a little more confidence in magistrates. They already do a vast amount of different types of work, a lot of it quasi-civil. If, in this question of recovered stolen or lost property, the question of damage arises, why should not a properly constituted bench of magistrates decide the matter? If, for instance, somebody has a diamond ring stolen and a compensation order is made by production of a certificate from an assessor, and the ring then turns up and the offender says, "Please cancel the order", is it just that the person in whose favour the order was made cannot get up and say, "That is not my ring"? Secondly, can he not say that one of the stones has fallen out? Why should not the court be able to reduce the amount of the order appropriately?
As to this matter being, so far as the offender is concerned, more appropriate for a county court, I do not know
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whether that is so. The number of quasi-criminal matters which take place in a county court is tiny. Criminals, basically speaking are not worth powder and shot in a civil court. I believe that the Criminal Injuries Compensation Board consider it worth while to pursue a defendant in respect of whom an order has been made in only one per cent. of the cases. It may be that when my noble friend, along with some of those perhaps who have experience of these magistrates' courts, has considered this matter, he may take a broader view of it. I am very much afraid, as matters stand at the moment, that these clauses in this Part of the Bill will be used no more often than Section 4 of the Forfeiture Act 1870, which is hardly at all. Unless the court have confidence that they can, as it were, have the power and the ability to go into these questions of compensation, assess the damage—admittedly in a humble way, not like a High Court judge in a running down case—according to their abilities, I very much fear that all these clauses will have much less effect than is, I hope, the idea of the Government at this moment. In the meantime, I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
Clauses 4 to 7 agreed to.
Clause 8 [Appeals in the case of criminal bankruptcy orders]:
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 4:
Page 7, line 7, leave out from beginning to ("and") in line 8 and insert—
(" (a) in any case until the expiration of the time for applying for leave to appeal to the House of Lords against the Court of Appeal's decision on the appeal against conviction (disregarding any extension of time which may be granted under section 34 of the Criminal Appeal Act 1968),
(b) if an application for leave to appeal is made within that time, so long as an appeal to the House of Lords is pending.")
The noble Viscount said: This is an Amendment for which I am indebted to the noble and learned Viscount, Lord Dilhorne. There are, of course, in your Lordships' House the noble and learned Law Lords, who know all about the machinery for getting an appeal in a criminal case from the Court of Appeal here. The noble and learned Viscount

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pointed out to us privately, and I am much obliged to him, that there appeared to be a drafting defect here, whereby if the Court of Appeal had in a criminal case refused leave to appeal to the House of Lords the bankruptcy order under Clause 8 of the Bill came into effect, notwithstanding the fact that there was still the possibility for the offender to apply for leave to appeal to the House of Lords, which can take place after, indeed only after, the Court of Appeal has refused leave itself. Therefore we have sought to meet this point by filling that gap in as well.
I am bound to say that I do not think it is as easy as all that, because there is, unfortunately, a provision under Section 34 of the Criminal Appeal Act 1968, which is mentioned in the words in brackets, which, technically speaking, allows a respondent—that is, not the prosecution—to apply to the House of Lords for leave to appeal at any time. And it is because of the words "at any time" that we have had to put this provision into brackets and disregard it ; otherwise we should never get the criminal bankruptcy order going at all. There is a respectable precedent for this, because the same words in brackets have been applied in recent legislation. Therefore, it seems to be the most satisfactory compromise we can get, and it certainly covers the period when somebody, having failed in the Court of Appeal, is applying to the House of Lords for leave to appeal to this House in the case of a criminal conviction. I commend this as being an improvement to the Bill, and I am grateful to the noble and learned Viscount for pointing the matter out. I beg to move.
On Question, Amendment agreed to.
Clause 8, as amended, agreed to.
Clause 9 agreed to.
Clause 10 [Suspended sentences]:
3.38 p.m.
LORD GARDINER LORD GARDINER moved Amendment No. 5:
Page 8, line 5, leave out ("cease to have effect") and insert (" have effect subject to the following proviso:
That the Court need not make an order under section 39(1) of the Criminal Justice Act 1967 where the offender has at any time before the commission of the offence been sentenced
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to any custodial sentence or has three or more previous convictions for an indictable offence.")
The noble and learned Lord said: I move this Amendment, which I think is, in the view of some of the Members of your Lordships' House, at least among the more important of the Amendments on the Committee stage of this Bill. The plea which I make to the Committee is that in dealing with this difficult question of crime and punishment we should eschew emotion and determine our conclusions on evidence and on rational grounds. I am, if I may say so, an admirer of Mr. Mark, the new Commissioner of Metropolitan Police, but he recently somewhat surprised some of us by a statement intimating that juries were quite wrongly acquitting enormous numbers of highly sophisticated professional criminals. He did not give any evidence on which he based that statement. It was apparently accepted by the Criminal Law Revision Committee, also without any evidence. This morning we know from a whole page in the Guardian what the true facts appear to be. This article comes from a research team which has investigated 475 cases tried at a group of assizes and quarter sessions over the period March, 1968 to July, 1970. Each trial was observed and the researchers discussed the case with the defending and prosecuting lawyers, the police, court officials, and in some cases with the judge. They had access to the police records and files. The surprising conclusion is that in 33 per cent. of these acquittals the jury were directed by the judge to acquit because there was no evidence on which anyone could properly be convicted.
The next largest group, 25 per cent., were prosecutions which the police did not intend should result in conviction ; they did not think they would get a conviction, and if they had they would have thought it wrong. These particular prosecutions had been brought for policy reasons of the nature which is discussed in the report. The smallest group, 9 per cent., was where the team came to the conclusion that the jury probably ought to have convicted ; but these were not cases involving sophisticated professional criminals at all, but poor people—for example, an old man of 75 with an unblemished record who had not really done any harm, and lovers' quarrels,

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family tiffs and things of that nature. They conclude by saying:
"There is no support here for the view that most acquittals involve people with previous convictions or that the recidivist stands a better chance of acquittal. Nor do the individual case histories set out in the report support the case of Mr. Robert Mark, the Metropolitan Police Commissioner, that most acquittals concern desperate, sophisticated or even professional criminals."
It is always wise to act on a basis of factual knowledge. When we discussed the question of mandatory suspended sentences in January last year I said that I thought they ought to be reconsidered. I said I had been very doubtful at the time of our Act of 1967 whether it was right to make them mandatory, but that I had no doubt that to be able to suspend the sentence was a useful power for a court to have, and that it appeared to me that the magistrates, for reasons I quite understood, had not been operating these provisions in the way in which it had been intended they should. It took some time before the Court of Appeal on these occasions made it plain that magistrates should not consider a suspended sentence at all until they had decided that the case was not one for a fine or probation but was one which could be met only by having a prison sentence ; and only then, for the first time, should consider whether that sentence should be immediate or suspended. It was for these reasons that I felt that the whole question of mandatory suspended sentences ought to be reconsidered. I said I had reached no final view on the matter.
I have now to some extent changed my mind. I think that with one or two exceptions mandatory provisions ought to remain. I have formed that view entirely because of some very recent evidence. In the first place I think the magistrates now understand what the court told us in O'Keefe's case. I think that the Government were quite right to accept an Opposition Amendment incorporating the law as so laid down in the Bill ; that would be there for the magistrates to see. Secondly, there have been two Home Office memoranda from which I have derived knowledge of a great many things about which I did not know before. It appears that it is not so much on the mandatory side that the thing went wrong, but where the suspending of the sentence was discretionary. If that is so
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it does not afford solid ground for increasing the discretion of the justices in this field. It is quite clear, I think, that for first offenders this innovation has been a success, because the rate of breach (that is to say the commission of a further offence during the period for which the suspended order was made) amounts to only 11 per cent., so I do not know why we should want to send more of those to prison. It appears that mandatory provisions have been a failure in two cases ; namely, first, where the offender has already had a custodial sentence and, secondly, in cases where he has already had three previous convictions even though he has had no custodial sentences. What this Amendment would do, therefore, is to keep mandatory provisions but to exclude those two classes of cases.
There has been a good deal of argument as to the effect of the Bill if we were to abolish mandatory suspended sentences, but there is no dispute that to do so would mean an increase in our prison population. The memorandum itself says that the probable consequence of repeal of the mandatory provisions will be some immediate increase in prison receptions and, therefore, in the prison population. We know the conditions in our prisons and how terribly overcrowded they are. In another place the honourable Member for Birkenhead, Mr. Dell, gave detailed reasons, which I will not now repeat, as to why he thought the probable increase in receptions, if we pass the Bill unamended, would be 2,000, and in the permanent prison population, 1,200. The Home Office have been very "cagey" about this ; they say they do not accept the figure of 2,000, but they will not say what they do think. I find it difficult to believe that the Home Office must not have applied their minds to considering the administrative arrangements they would have to make and to what extent, if this clause remains in its present form, the prison population will be immediately increased.
Before going further I should like to point out that this valuable memorandum, after making it clear that the study suggests that the sample is considered to be reasonably representative of all males given suspended sentences and that the majority of suspensions may be discretionary, then deals with the two groups to which I have referred. The

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memorandum says that the most significant factor influencing the breach rate was the existence of a previous custodial sentence, including detention centres, borstal and prison. The number of previous convictions was also important. These two variables are in any case related. The more previous convictions a man has the more likely he is to have previous custodial experience. Then are given the breach rates: for those with no previous custodial sentence, 31 per cent. ; with one previous custodial sentence, 56 per cent ; with two, 67 per cent. ; and with three, 75 per cent.
It is not sensible that we should continue making mandatory a course that we know will probably fail, as in cases where there is one previous custodial sentence ; the breach rate is as high as 56 per cent., which shows it is more likely to fail than succeed. Where there are no previous convictions the breach rate is 11 per cent. ; one previous conviction, 29 per cent. ; two previous convictions 39 per cent. ; three previous convictions, 44 per cent. and so on. They say the existence of previous custody or previous convictions makes a breach much more likely and that it also affects the relationships with other factors, age and type of offence, to the breach rate. Those things being so, it is the sensible course to take to continue the law as it is, but subject to those two exceptions? If I may ask the noble Viscount a question, is it true, as stated by the Opposition in another place and not contradicted by the Government, that when they framed this legislation and introduced it into Parliament, they were quite unaware of any of the facts to which I have referred? If so, this was not their fault at all, because this study team has only just reported to the Home Office.
Is it true, as stated in the other place and not contradicted by the Government, that none of these facts was known to the Government on the Second Reading of the Bill, or during its long Committee stage? If so, is there not a strong case in this House for applying our minds to this entirely new information, which apparently only reached the Government in time for the Report stage of the Bill in the other place? Even then there was no division on this point because it was dealt with at two o'clock in the morn-
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ing, and there were not enough people there.
I submit that in the field of crime it is no good acting on hunches ; we ought to act on evidence. Quite recently the cat has put its head out of the bag, at least in relationship to what the Home Office really thinks about the extent to which the Bill, if left as it is in this clause, will increase the prison population, because on June 27 Mr. W. R. Cox, described as Director-General of the Prison Service, giving evidence to the Public Expenditure General Sub-Committee of the Expenditure Committee was asked about the increase which would be likely, and he said:
"I am not sure we can put a figure on the end of the mandatory suspended sentence in these estimates, but there may well be when the Criminal Justice Bill comes into force another upsurge in the prison population."
He was asked about calculations by Mr. Roper as follows:
"Were calculations made of the increase in the prison population that was likely to follow the end of the mandatory suspended sentences?
"Mr. Cox. We can calculate the top and bottom figures. The bottom figure is obviously nil ; the top figure we believe to be somewhere around 3,500, but it might be anywhere between those two extremes.
"Mr. Roper. I was not sure whether 3,500 was receptions or population.
"Mr. Cox. 3,500 is the population figure."
The reception figure will obviously be very much higher than that, and it looks as if Mr. Dell's calculations, if anything, erred on the safe side.
It is not wise in this field to keep chopping and changing. We have had mandatory suspended sentences only for four years. Quite naturally, and I am not blaming the Home Office, nobody until just the other day has been able to conduct a sufficient research into what the actual result has been. It is not the fault of this Government because, as I understand it, the Government of which I was a member took no step, at the time when the Act was brought into force, to start a small unit from there to keep a watch on what mandatory suspended sentences were doing, but we know now. Does it not to-day, in the overcrowded position of our prisons, need a very strong case before we assent to a measure which we are told by the Home Office may result in an increase of up to 3,500 in our prison population?
As I say, this has only been in force for four years ; there is some reason for optimism because I am sure that the justices now increasingly understand what they were told in O'Keefe's case, which is now in the Act, and where it is discretionary will act in accordance with those principles. There is nothing to show that mandatory suspension has had any untowards results except in these two classes of cases. Therefore, what this Amendment would do is to keep it as it is, but not in relation to those two classes in which it is shown that the breach rate is so high. That, I suggest, is the course which a rational decision based on this very recent evidence should lead us to, and I beg to move accordingly.
3.55 p.m.
LORD DONALDSON OF KINGSBRIDGE: My noble and learned friend, as might be expected, has left very little for people who agree with him to add to the argument. The discussion to-day on all sides has been entirely among lawyers, so I hope that you will find it not unrefreshing that I once again claim lay status in this category. I should like to mention one or two rather more general things. Before doing so, may I say that I do not think that my noble and learned friend brought out the full significance of the difference between receptions and population figures? In normal calculations, roughly speaking, it takes three "receptions", and sometimes four, to equal one "population", because the commonest sentence is six months and, after remission, it comes out at four months. So that if there were a figure of anything like two or three thousand as a likely increase in population, it means an increase in receptions of six or seven thousand. This is a horrific figure in relation to the present situation.
I want to say just two things of a general kind. First of all, the great hope of this Bill among people who are concerned with the problem of penal reform and the treatment of prisoners and offenders is that the second half of the Bill, for which my noble friend Lady Wootton is largely responsible, should work as a substitution for prison and not as a substitution for probation and fines. There is no certainty that this will happen. It is likely that a certain proportion,
538
at any rate, of the community service orders and day training centre orders will, in fact, be used by the magistrates' courts in lieu of lesser sentences rather than imprisonment, but the one thing which is absolutely certain is that if you do away with the mandatory provision which my noble and learned friend was talking about, you are going to increase the number of people who are sent to prison when they need not be. As the whole object of the Bill, so far as I can see, is, or at any rate should be—and I believe genuinely is—to try to find ways of not sending people to prison whom you conceivably could deal with outside, it seems singularly crazy to indulge in this particular provision under Clause 10(1).
The argument leading from suspended sentences, and the difficulties which they have shown, to the mandatory sentence is non-existent, as my noble and learned friend said. It is very interesting to look at the figures in this Memorandum from the Home Office to which he referred. Between 1967 and 1970 there was the following change: in 1967 there were 13 per cent. probation, 54 per cent. fine, no suspended sentences, and 16·2 per cent. imprisonment. Taking the average of 1968 to 1970 you get the new figure of 11·4 per cent. suspended sentences, and that is divided up with a reduction in probation of 3 per cent. of the whole, in fines of 5 per cent. of the whole, and in imprisonment of 4 per cent. of the whole. So what has happened is that the suspended sentence has been used one-third to reduce imprisonment (and we are grateful for it) and two-thirds for the purpose for which it was never intended, to reduce fines and probation. The argument from this to the effect of mandatory sentences has never been provided. It was asked for again and again by my right honourable friend Mr. Edmund Dell, and he never got an answer. There is no connection between the two.
The suspended sentences have worked with difficulty, and in rather a creaking way, for a number of reasons that we need not to go into at this stage. The absence of imprisonment, but the insistence on suspended sentences, in the magistrates' courts has had an absolutely clear effect in reducing the number of people who go to prison, and the breach rate has been lower—I think it is 35 per

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cent.—than the breach rate of the discretionary sentences.
Your Lordships do not want a lot of figures. The fact remains that we are confronted with two choices here. The first is to say: "The results of discretionary sentences are doubtful. There is some evidence that they have done good, and some evidence that they have not. There is good evidence that the mandatory provision is working well. Neither of them has run long enough for conclusive results. Therefore, we will let both remain but will exclude those areas where we know that the mandatory sentence is working badly. " That is one course. The other course is to leave both as they are now. But we have suggested as we have had this piece of research revealed to us, that we should take advantage of it and should, at least, exclude those cases under the mandatory provision where we know it works badly, and keep it going where we know it works well.
I want to stress again that this is a very hopeful Bill. We on this side are supporting it fully. We are not opposing any single part of it ; we are simply trying to improve it. But there is a danger of ending up with three or four provisions which are not properly worked by the courts, and of taking away the one provisison which has worked well. My last word is this. There is only one argument against the mandatory provision, and that is that magistrates do not like it. Magistrates do not like it because they do not like their powers being curbed. Nor should I ; but I am in the strong position of not being a magistrate and I do not in the least mind their powers being curbed. I think it is a good thing, so long as it stops them from sending to prison people who ought not to go there. On that note, I should like to support my noble and learned friend in his Amendment.
BARONESS BACON: I should like to support this Amendment, as one who had a good deal to do with the Criminal Justice Act 1967. The noble and learned Lord the Lord Chancellor will remember the many hours that we spent in Committee on that Bill, not only during the day but nearly all night as well. I agreed with my noble and learned friend Lord
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Gardiner when he said that it is inevitable, if this clause goes through as it is, that the prison population will increase. But I want to make one further point. The decrease in the prison population which we hoped would come about as a result of the suspended sentence, was not the main reason for our introducing it. As the noble Viscount, Lord Colville of Culross, will realise, now that he has had some experience of the Prison Service, short sentences clutter up the prisons because of the amount of time which prison officers have to spend on receptions.
The main reason why we introduced the mandatory suspended sentence for sentences of under six months was that we felt that short prison sentences did little good to the prisoner. Short prison sentences mean, in effect, that prison officers are not able to do the job which we expect them to do to-day ; that is, to try to reform the long-term prisoner. The short-term prisoner was really cluttering up the Prison Service. Bearing in mind the fact that somebody who is sentenced to six months will probably be out in about four months, what possible good can short sentences of that kind do for the prisoner? It was that factor, rather than the prison population, which we had in mind when we introduced the suspended sentence. Nevertheless, I agreed with my noble and learned friend when he said that the prison population is bound to increase. Therefore, looking at these points, having regard to the prison population increasing, having regard to the fact that short prison sentences do no good whatsoever, I hope that the noble Viscount will look favourably on this Amendment.
BARONESS WOOTTON OF ABINGER: I, too, should like to support my noble and learned friend in this Amendment. I think the very sophisticated arguments which he has given are sufficient evidence, for those who are able to digest them quickly enough, that the mandatory suspended sentence has been unjustly blamed. But I should like to put a less sophisticated view. The magistrates were very much blamed, because it was said, when the suspended sentence—and, particularly, the mandatory sentence—was introduced, that if they were giving prison sentences at all they jumped at the idea

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of making them suspended prison sentences, not in place of immediate imprisonment but in place of fines and probation. This argument was reinforced by the fact that, lo and behold!, when the suspended sentence was introduced the proportion of people fined or put on probation went down.
Certain quite fallacious inferences were drawn, because they did not take into account the fact that some of the suspended sentence people would not have committed further offences and would not have gone to prison at all, while some of the people who might have been fined and put on probation and some of the people who were fined and put on probation would have committed further offences and gone to prison. You have at least to calculate which of those two classes would be more likely to go to prison. The facile inference that when fines and probation go down suspended sentences go up and that the magistrates are filling the prisons is quite unjustified. One needs far more sophisticated calculations, such as my noble and learned friend has given.
There is one other point which I should like to make, and that is about the proviso. The proviso which my noble and learned friend has suggested has at least the one great merit—I think it has many others—that it is purely factual. It states
"That the Court need not make an order … where the offender has at any time before the commission of the offence been sentenced to any custodial sentence or has three or more previous convictions for an indictable offence."
That is a statement of fact, easily proven. The proviso as it stands in the Bill is entirely hypothetical. It states:
"An offender shall not be dealt with by means of a sentence of imprisonment suspended …unless the case appears to the court to be one in which a sentence of imprisonment would have been appropriate"—
that is hypothetical—
"in the absence of any power to suspend such a sentence."
We surely cannot write into Acts of Parliament what people would have done in hypothetical circumstances that do not exist. It seems to me that it is exactly like writing into an Act of Parliament, "If you could not marry X would you, or would you not marry Y?" Unanswerable questions of that sort occur very
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often in ordinary life, but they certainly ought not to occur in the Statute Book.
BARONESS BIRK: I should like to support the Amendment. In doing so, I do not want to go over the figures and the facts which were so admirably and ably put by my noble and learned friend Lord Gardiner, but I want to take up the point about magistrates. My noble friend Lord Donaldson of Kingsbridge made the point that because magistrates do not like the mandatory provision—I thin he put it in this way—that was one reason why he liked it. There has been a great deal of confusion and over-statement about this matter. So far as I can understand them, the reasons put forward both here and in another place have been based on the evidence of the Magistrates' Association. Speaking as an active magistrate myself, I should like to say that a great many magistrates—both those who sit in my court and other magistrates I know—would not like to see the end of the mandatory provision. In fact, any association is not always a full or comprehensive voice of the people whom it represents and of those who are working in the field.
Magistrates are in a difficult position, but taking away the mandatory provision is not going to help at all. Either we have a system of suspended sentences, the plain, simple object of which is to keep people out of prison, or we do not have it at all. Because I believe—and I speak as a magistrate who also likes to have room to manœuvre and a certain amount of discretion—that it is essential, especially when the majority of criminal cases in this country are dealt with in courts presided over by lay magistrates, that there should be direction, and as our law gets more sophisticated, as our knowledge of penal methods and our philosophy moves ahead, it seems to me that it becomes more and more important to have not only the standards, not only guidelines, but actually written into the Statute what it is that we should do.
There is also—and I think this comes out in some of the views expressed by various magistrates—what I would almost term a generation gap. If one speaks to younger magistrates—those who have been appointed when, say, on the right side of 40, and who have also had the opportunity to go through the training

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that we now have, quite rightly, for magistrates—one finds that they see the importance of this, that they are perfectly happy about it and do not think that this is taking away their powers. Also—and I think this is of tremendous importance—if one appreciates the views held to-day by. I think, most eminent penologists, and certainly the more progressive prison governors, that a short sentence not only fills a prison but is simply of no use whatsoever, then there does not seem any point at all in doing away with the mandatory provision unless one is arguing that those magistrates who take the view that people should be sent to prison for sentences of less than six months should be free to do so ; and, then, I would submit, they are not interpreting the law as it was laid down, and even if they use their discretion they are not interpreting what was intended in the Statute.
One other point which arises and which puts magistrates really in a very difficult position is that I am quite sure that on many occasions suspended sentences are given instead of putting the person on probation. This is not because the magistrates either want to teach somebody a lesson or happily want to send people to prison: it is because they are aware that the Probation Service is so overstretched, and are extremely worried in what they feel are marginal cases about whether they should increase the caseload. All this, I think, means not that we should do away with the mandatory provision—and here again I would support every word of my noble and learned friend Lord Gardiner—but that there has not been enough time, we have not carried out sufficient research. All sorts of ideas are thrown into the air. We need to have very much more intensive and accurate research and knowledge of what has been happening over this period, and also what will happen for some time in the future, before we change something which is, I think, as important as this.
What we should be doing—and to a very great extent this Bill is attempting to do it—is turning our attention to an increase in the range of alternatives. If there were a larger Probation Service, with pay and other conditions made more attractive and with a great deal of routine secretarial work and other
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things taken off the shoulders of probation officers, and if we in the courts had a much greater range of hostels—and I know this is also part of the Bill—then I think a great deal of the argument and concern about the operation of the suspended sentence would fall into its right place, because it would then be used in the way in which it is meant to be used, which is asking oneself: "If it were not for the opportunity to suspend a sentence, would this person be sent to prison?"—and that is really the only basis upon which one can decide it. Because of these reasons, because lay magistrates are dealing with these matters and because of the difficulties under which they have to work and make these decisions, I would personally think it an extremely backward-looking step if the mandatory provision were taken away.
LORD CHORLEY: I should like to say a word or two about this matter because I introduced the discussion, to which the noble and learned Lord referred, which we had rather more than a year ago about this problem of the mandatory suspended sentence. I have not put my name to this Amendment, but that does not mean that I do not have a good deal of sympathy with it. However, I must say that I have felt that most of the speeches to which we have listened this afternoon have been rather in the nature of special pleading. I do not agree with Lord Donaldson that the reason why the great majority of magistrates have been opposed to the mandatory system from the beginning is just because of pique ; that they do not like to see their powers interfered with. As a magistrate of 25 years' standing, I have not really found that that is the reaction of magistrates on the whole. What I think they objected to was that a number of the cases which were brought before them were, they felt, eminently cases in which prison was the correct sentence ; and I have never been able to accept the view that short sentences are inevitably completely wrong. Very often a six months' sentence, a short time in prison, has a very salutary effect on the young criminal. I agree that possibly these short sentences have been too frequently imposed, but I have had a longish experience and I think I can say quite honestly that in quite a number of cases where short sentences have been imposed

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they have had a very salutary effect on young criminals. I think that the statistics which have often been deployed on this subject really go a very long way towards proving that.
On the other hand, obviously the qualifications suggested go a very long way towards meeting the point that the mandatory suspended sentence has not been working altogether properly. I think the noble and learned Lord has undoubtedly picked out the two types of case where, if the law is changed, the change will be valuable and will go a considerable distance in not exactly pacifying the great unpaid but will go a very long way in that direction, because it has been this type of case, very often, which has upset benches, when they have had to impose a suspended sentence in a case where it was perfectly clear to them that the man would be in trouble again almost at once. I am, I think, reasonably satisfied, on the basis of the evidence produced by the noble and learned Lord on the Bench in front of me, that to a very large extent this will in fact remove the principal blemish on the mandatory suspended sentence, and therefore I feel a little in two minds about this. But I do not think I should feel very upset indeed if the noble and learned Lord opposite says that he feels he can accept this Amendment.
4.19 p.m.
VISCOUNT COLVILLE OF CULROSS: This has been a debate full of statistics of one sort or another. Perhaps I could just tell the noble and learned Lord, Lord Gardiner, about the timetable of the statistics of the Home Office Research Unit, about which he asked. I think they first became available some time in the autumn, in a very provisional form. Whether this was before the introduction of the Bill or not, I do not know, but it would have been about the same time; and a preliminary version of them was available and was, I think, circulated to members of the Standing Committee in another place, but probably not digested in time, and the real use of them came at the Report stage. That, I think, is the factual situation on this.
I do not know a great deal about statistics, but I have had a little to do with them from time to time. I find that there is a curious dichotomy of
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approach in this matter; because the noble and learned Lord, Lord Gardiner, is quite right in saying that he has picked out for the purposes of further exceptions from the mandatory suspension of sentences the two factors which appear to be statistically most significant in the research figures that have been produced. On the other hand, the noble Baroness, Lady Wootton, says that she does not think that the statistics are significant or accurate if they show that suspended sentences have been used in the past in cases where a fine or probation would have been otherwise the sentence.
BARONESS WOOTTON OF ABINGER: The noble Viscount will forgive me, but I hope I did not say that. I merely called attention to the fact that fines and probation had gone down and suspended sentences had gone up. I was quarrelling with the inference drawn from these two facts coinciding.
VISCOUNT COLVILLE OF CULROSS: This is the point about statistical correlation. It is always a very difficult matter. I have had some remarkable experiences in trying to discover, or having explained to me, why it was that certain statistics were said to correlate with others. I have had to cross-examine on it, very much to my dismay and to the horror of those listening. The situation is not as simple as this. Whether or not the noble Baroness is right that there is a correlation between the fall in probation orders and fines and the arrival of the mandatory suspended sentence—
BARONESS WOOTTON OF ABINGER: I should like to intervene again, for I said exactly the opposite. I said that there was no necessary correlation but a coincidence in time.
VISCOUNT COLVILLE OF CULROSS: Whether or not the noble Baroness is right that there is correlation—and she may be right: for there may be none ; and on the other hand, there may be some—the fact is, as I understand it, that until the Court of Appeal gave its judgment in O'Keefe we had never had a definitive statement, either judge-made or in statute, of the circumstances where suspended sentences ought to be imposed. Whether or not the noble Baroness likes it, that is what we have in Clause 10(3).

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I am told that this is the best way of drafting it to give effect to what the Court of Appeal said in the case of O'Keefe. That is a recent case and it must follow that everything that happened before that is slightly doubtful as being based upon the exercise (in the case, at any rate, of some magistrates' courts) of the wrong principles ; because if it required O'Keefe to set the matter right and the Bill to reinforce it in Clause 10(3), then the statistics, valuable though they may be, are not necessarily definitive of what the situation would be if the courts really used suspended sentences as they should and as they are now required to, not only by O'Keefe but by the clause in the Bill. For this reason—and there are other reasons—I find it difficult to take these particular statistics as the definitive starting point, as the noble and learned Lord suggested they should be, for an Amendment to the Bill at this stage.
The whole question of statistics in the Home Office—and the noble Baroness, Lady Bacon, will know this, if I can ask her to draw upon her own experience, as she asked me to draw upon mine—is a matter of incredible difficulty. One is dealing with people in situations where it is difficult to find for the purposes of comparison a parallel person who has been dealt with in another way. The control group is a difficult one to get hold of. I must say that instinctively (useful though statistics are to see whether one is going the right way) I do not think I could support the idea of legislating instantly upon the basis of one run of trial statistics on the working of suspended sentences and on the amount of recidivism. I am bound to say that I think that the approach in the Bill is the more sound one: and that is to give the courts discretion. It is a thing that we have done in most cases ; it is a thing, as was said by the noble Lord, Lord Chorley, and the noble Baroness, Lady Birk, that the courts on the whole appreciate and something to which I am certain they do justice. Equally I am sure they live up to the expectations of the legislators in giving them that freedom. I am not convinced that this is a case where we ought any longer to take that discretion from them.
The noble Lord, Lord Donaldson of Kingsbridge, said that the suspended sen-
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tence has worked well. I do not think it has—if you require the judgment of O'Keefe to put it right after four years and if you require the Court of Appeal to say, in effect (for the first time as far as I know, in a form where it is universally available and can be acted upon): "You shall not even consider putting somebody on a suspended sentence unless he is a person who ought to go to prison anyway. Then there is some factor which enables you to suspend it." That is the prime situation we are dealing with.
BARONESS BIRK: May I put a question on that point? If, as the noble Viscount said, it has not been working very well and O'Keefe led to it being spelled out in the Bill and he does not feel anyway that we should change things too soon, I cannot see the argument for taking away the mandatory provision. This, in fact, strengthens the need to leave the mandatory provision exactly as it is, together with the way in which the O'Keefe decision has been spelled out in the Bill.
VISCOUNT COLVILLE OF CULROSS: The noble Baroness, if she will allow me to develop my argument, will find that I come to this in the end.
LORD DONALDSON OF KINGSBRIDGE: I must correct this. The evidence that I produced for showing that there had been some results from suspended sentences comes from the Home Office table about which we have all been talking. It is not that I said they worked well ; it is that the noble Viscount's Department said that they worked well. I accept that.
VISCOUNT COLVILLE OF CULROSS: All right, I will come on to the question on which this bears. I think that suspended sentences work well where they keep out of prison those people who do not need to go there. I am second to none in seeking all possible methods to achieve that. I agree with the noble Lord, Lord Donaldson of Kingsbridge, that if suspended sentences are one method of doing this, then good for suspended sentences! Let us have them. But let us have them in the right place and in the right case. Although I know very well of the problems mentioned by the noble Baroness, Lady Bacon—of short-term sentences in prison, of the problem of reception and of the problem of what to

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do with the chap after the initial stage—I am bound to say that we are still left with the fact that the magistrates' courts have a power to send people to prison for six months. The noble Lord, Lord Chorley, said he thought that in some cases that was salutary. If it had been in the back of the mind of the previous Administration in 1967 that short sentences of this order were a bad thing altogether, then I suppose there were only two logical things that could be done. One would have been to extend the period for which the magistrates' courts can send people to prison ; and the other would have been to prevent them from sending people to prison at all except possibly in consecutive sentences on two different occasions. That has never been done. The situation is that the magistrates' court can send a person to prison for six months ; and that means that if he behaves himself he is in there for four months.
Against that background, if the magistrates—who know this, who are trained, who visit prisons, who nowadays go on training courses—think that the offender and the offence are such that they ought to use their powers to impose a short prison sentence, then I am afraid it is my view that the Prison Service must cope with these people in the best way it can. We cope in some cases better than we are given credit for ; it is not all black on this front, although it is a very difficult matter. Therefore if the magistrates' court (or the Crown Court ; though the mandatory suspended sentence mainly affects the magistrates' courts) decides that a person ought to go to prison, then that decision ought to be honoured. The idea of trying to keep people out of prison because the prisons are full, even though courts think that certain offenders deserve to be in prison, is in my view an unworthy objective in our legislation. I would rather face the fact that where people are really deserving of a sentence they should receive it.
There is also the question of population. I cannot go any further in that respect than Mr. Cox. This is the range. It may surprise the noble and learned Lord, Lord Gardiner, that there is no accurate forecast of this, but there is not. To the best of my knowledge there is no way of forecasting it. We can go to
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the outside range, between nil and 3,500, but where the figure falls in between I do not know ; and I do not think that at the moment anybody knows.
The point is this—and it impinges directly on the noble and learned Lord's Amendment. Clause 13 of the Bill discourages a court from passing a sentence of imprisonment on anyone who has not been in prison before. This is the overall provision which takes the place of the First Offenders Act and covers everyone. The statistics, even if they are not perfect, on which the noble Lord has founded his Amendment show that the most important circumstance that leads a person back to prison on a suspended sentence is the fact that he has been in prison before, which was one of the noble and learned Lord's points. In fact, I believe that if you examine the three previous convictions for indictable offences (which was the noble and learned Lord's other point) the reason why that is significant is because it usually includes a custodial sentence. Therefore it is the same point all over again.
Under this Bill we have these two themes running together. We have Clause 10(3), which requires the court to suspend only if prison would otherwise have been right but, for some reason, the court can see its way to suspend the sentence ; and we have Clause 13, which says that courts shall be as chary as possible of sending someone to prison who has not been in prison at all. Therefore it tends to take the person, if he has not been in prison before, out of the category of persons in respect of whom a suspended sentence would ever be considered, because it bears upon that at second hand. I suggest to the Committee that at this stage of the argument those two related provisions in this Bill, although they do not spell it out, in effect meet the noble and learned Lord's point.
I am sorry, but I do not agree with the noble Baroness, Lady Birk. If I heard her aright, she thought that magistrates would like more direction and assistance in the way to carry out their task. That does not accord with my philosophy, at any rate. I suggest that we should allow magistrates and the other courts freedom of discretion to deal with individual cases within a broad framework, unfettered by detailed (what

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the noble Baroness called "sophisticated" ; what I think are complicated) rules and regulations in the Statute.
BARONESS BIRK: I did not say they wanted more direction. I said that as we make progress, and the law becomes more and more Statute law—as I am sure the noble Viscount would agree—the situation becomes more complicated and it is essential for magistrates to have this guidance. Perhaps I may make the further point that I think we should remember that lay magistrates often have entirely different views and forms of knowledge and information about the interpretation of the Statute. For this reason, again, it seems to me important to have guidelines and directions. This is extremely important ; it is the crux of the whole Bill. Although I agree that, so far as possible, we want freedom of action—obviously we do ; and speaking as someone who is operating the law at that level, I should be sorry to see the mandatory provision go.
VISCOUNT COLVILLE OF CULROSS: With great respect to the noble Baroness, she did say that in an intervention in a speech of mine. Again with great respect, may I say that I am afraid the intervention was so long that I have now lost the train of thought which I was pursuing. I should be very grateful if I might be allowed to finish a sentence occasionally. It is very difficult to keep the thread of the argument going.
May I say this to the noble Baroness? The law is very complicated, particularly with this list of mandatory suspensions from which we subtract or to which we add. We are suggesting a great deal more simplification in dealing with individual cases, with two broad guidelines about which I have been speaking in Clauses 10(3) and 13. Those, I suggest, are good, solid, sound guidelines ; not requirements, as is the present mandatory system, but guidelines to show magistrates how they ought to deploy their common sense and experience.
The attitude of the Government on this, statistics or not, is that at this juncture we ought to restore discretion to magistrates and to other courts, and, at any rate for the moment, that there should be an end of the mandatory provision in the suspended sentence part of
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the 1967 Act—does the noble Lord, Lord Hale, wish to intervene?
LORD HALE: I was proposing to, but I gave way to the noble Baroness, Lady Wootton of Abinger, who I thought wanted to put a question to the noble Viscount. But if the noble Viscount is not willing to answer a question—
VISCOUNT COLVILLE OF CULROSS: I am only too happy to answer any question.
LORD HALE: In the circumstances there seems some difficulty of apprehension. May I just say this? The noble and learned Lord, Lord Gardiner, made a speech which seemed to me to put a case which I thought would appeal to both sides of the Committee. It was a well-argued case, and the noble and learned Lord gave figures, some of which I have not seen: I understand that they are from a recent Report which I have not road. The noble and learned Lord properly limited himself to the argument as from the passing of this Statute.
The noble Viscount, Lord Colville of Culross, notwithstanding what was said by the noble Baroness, Lady Bacon, did, in his speech, say one or two rather tragic things. I always listen to the noble Viscount with great respect. I think that he speaks with care and great ability. But the phrase, "If they think he has got to go to prison he must go there, and they must do their best with him" (which was based upon another argument ; the argument being that of course if the Government of 1967—was it?—had really had in mind to abolish short prison sentences altogether they might as well have gone on with it) really ignores the whole history of penal reform, not only in this country but everywhere else. The problem is that the short sentence nearly always produces no result ; or if it does produce a result, puts a man who is a redeemable man in a position in which he is in contact with old lags and so on for a time—
LORD CHORLEY: May I put this point to the noble Lord? Surely the figures show perfectly well that the great majority of defendants sentenced to a short term of imprisonment never appear before a criminal court again.
LORD HALE: With great respect, I do not know that ; and, with great respect, I doubt it. I have the greatest

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respect for the noble Lord, Lord Chorley, with whom I worked many years ago in this particular field. Four years' absence makes me hesitate to speak, and reluctant to make an absolute assertion about what has happened in that period until I overcome the defects in my knowledge caused by that four-year absence. But I have worked in this field, I have visited prisons in four continents and studied the conditions there. For a time I was Chairman of the Committee on Penal Reform of United Europe and I have studied the systems in France, Italy, and so on. Therefore, with the reservation I have made, I think that on this subject I can still express an opinion which may be worthwhile. Every prison governor to whom I have spoken, both here and abroad, has said that the short sentence man, or the man who went to prison without being sentenced at all, simply because he was refused bail, or could not obtain bail, was a man who could not be given any effective attention: he could not be trained ; he could not partake in some of the amenities of the prison.
We were evolving in those days a system in which we should take the prisoners away and send them through to a varied series of reform prisons adapted to the nature of their crime. But the man who goes in for a short period usually stops there for a short period. The man who goes in for a short period is not one for whom the prison authorities can do their best. They can do little more than lock him up and send him out as a man who ranks technically as an old lag, or a young lag, with a conviction which carries its own inevitable burden, and without making any effort at reform because no effective reform can be made. It was for those reasons that this Act was passed. As my noble and learned friend Lord Gardiner has said, it has been in force at most for only four years. Statistics are available promptly on these matters. The noble and learned Lord has devised an Amendment which will meet the objections made to the previous Act and deal with the exceptional cases that the evidence discloses may not be amenable to this particular form of treatment, but which still does not destroy and repudiate a beneficent reform that has not yet had time to show its worth, or to be adapted within the prison system. I realise that I made a slip of the tongue
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when I said "within the prison system". I should have said of course "within the penal system", because that temporarily abolishes imprisonment.
This is a matter of vital importance. I would say to the noble Viscount, for whom I managed to acquire a good deal of respect when I served with him on another Committee, that nobody has spoken against Lord Gardiner's Amendment ; everyone has given it something of a blessing, and most noble Lords have warmly endorsed it. When an Amendment is received with so much approbation, and when the noble Viscount has represented with his customary ability and clarity the arguments of the Home Office, which on these matters are not always correct, could he not consider what appears to be the feeling in all parts of the Committee: that we should not abandon an important reform designed for the redemption of the individual without a little more time being taken to study its effects?
4.43 p.m.
BARONESS WOOTTON OF ABINGER: If the noble Viscount is adamant about abolishing the mandatory requirement, may I beg him once more to look again at the proviso which writes into the Statute Book the O'Keefe judgment, and to compare with this the proviso that my noble and learned friend Lord Gardiner has proposed as an alternative? It is the duty of magistrates, presumably, to keep the law, and the proviso in the Bill is not guidance—which I think is the word used by the noble Viscount ; it is mandatory. The Bill says that an offender shall not be dealt with by means of a suspended sentence,
"unless the case appears to the court to be one in which a sentence of imprisonment would have been appropriate in the absence of any power to suspend such a sentence".
This means that a magistrate breaks the law unless he can put his hand on his heart and say, "If I had been unable to do this thing, then in those hypothetical circumstances I would have done a certain other thing." It seems to me that that is an offence which in all the circumstances it would be quite impossible to prove. You cannot say what you would have done in other circumstances had you been precluded from doing what you did. The great merit of my noble and learned friend's proviso is that it is completely

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factual and takes care of those cases in which a suspended sentence has been proved to be least successful. So I beg the noble Viscount again to look at this hypothetical proviso and ask himself whether we ought to write such a provision into the Statute Book.
VISCOUNT COLVILLE OF CULROSS: I think that there are only two additional questions that I have been asked, and perhaps I can deal first with the noble Baroness's point. I do not think the situation is quite so bad as she makes out, because although I know she has disliked the wording of this subsection since she first read the Bill (I remember her mentioning it on Second Reading), I think it is merely telling magistrates that, if they are going to impose a suspended sentence, they do not do it as an alternative to probation or in a case where otherwise a fine would do. That is the point of it. If this point can be better expressed, then I shall be happy to see if it can be done. But the point of it is—and, after all, whether we have the wording right or not, I think the noble and learned Lord, Lord Gardiner, applauded our attempt to put O'Keefe into the Bill—to underline the importance of the case where they say, under Clause 13 particularly: "Shall we have probation? Shall we have a fine? Shall we have a community service order, if it is available? Shall we have one of the known custodial sentences? Or is this a case where we have nothing but prison?" Then they can say to themselves: "Though prison is the only thing, can we suspend it?" I do not think this provision is mandatory in anything like the same terms as the mandatory part of the suspended provision in the 1967 Act. It does not inhibit the magistrates from putting the man on a suspended sentence, nor does it require them to do so: it simply sets out the circumstances in which they are to consider the matter.
As to the noble Lord, Lord Hale, I am extremely flattered by the kind things he said, but the point he made at the end, that we were abandoning a valuable reform, is simply not true. The valuable reform is the suspended sentence. We are not abandoning that. All we are doing is making it slightly easier for the magistrates to use their discretion, when they do and when they do not suspend
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the sentence. There is no question of abandoning the suspended sentence. I said earlier, in response to the noble Lord, Lord Donaldson of Kingsbridge, that I consider the suspended sentence a most valuable non-custodial form of treatment (if that is not too much of a paradox) and I support it. We are not abandoning it. All we are dealing with is the part of the 1967 Act which requires the sentence to be suspended in certain cases. That is what I think is wrong, and that is why I am urging the Committee to support the clause as it stands.
LORD DONALDSON OF KINGSBRIDGE: I should like to say one word more about the O'Keefe clause, Clause 3. I agree with my noble friend Lady Wootton, but I want to go further than she does. The most important reason for sending a person to prison is that he is a danger to society ; and the most important reason behind the attempts of this Bill to keep people out of prison is that it is not generally necessary to send people to prison unless they are a danger to society. I think it is obvious that if somebody deserves to go to prison but one can afford to keep him out for a year or two, he cannot be a danger to society. The number of cases where guilt requires punishment by prison is, I think, very small. It has obviously changed very much in the last twenty years. I think the kind of advice that magistrates would have received from a Bill of this kind twenty years ago would have sent many more people to prison than will go now. So one is in an area of utter vagueness ; and vagueness is changing very fast. Therefore I hope the noble Lord will think about this further.
LORD GARDINER: I am naturally very disappointed with the reply of the noble Viscount. May I say in the first place that of course I was not blaming the justices in any way. One quite understood why they thought that a suspended sentence was like a gift from heaven. First of all, it satisfied the public to hear that a prison sentence had been imposed ; secondly, it did not mean that the man or woman in front of the magistrates had to go to prison, either immediately or (if they went on behaving thmselves) at all ; thirdly, as opposed to a probation order, since our probation officers are terribly overworked, it was a case of, "Do let us save them all the cases that we can. Of

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course we can impose a fine but then, as we know, some fines are irrecoverable." So, as a sort of soft option, one quite understood the popularity of the suspended sentence.
What the noble Viscount said—and I am still puzzling over this ; he will correct me if I have it wrong—as I understood it, was this: "There is no reason to think there will be change. After all, O'Keefe is quite a recent case and there are really no materials on which we ought to make the drastic change which you propose in your Amendment." I find this argument quite incredible. Who is proposing the change?—not I. It is the Government who are proposing it in the Bill. At the moment we have mandatory suspended sentences. It is I who am saying that we should keep them, and if the Government want to keep them without my proviso then that can be done. I am saying, "Keep them". It is the Government who are proposing a change which their own officials at the Home Office estimate may lead to an additional prison population of 3,500. Why the noble Viscount says to me that there are really no materials on which to change—O'Keefe, to the best of my recollection, was 1968—
VISCOUNT COLVILLE OF CULROSS: I am sorry: I did not say there were no materials upon which to change. What I said was that these statistics did not necessarily make a definitive ground for the removal of the mandatory suspension in any particular case. I am merely saying that to legislate on the basis of a statistical correlation of this sort is not something of which I necessarily approve—and certainly not in this case.
LORD GARDINER: I should have thought it was better than legislating on nothing at all. I am submitting that it has not been shown that mandatory suspended sentences have been a failure. The troubles have mostly arisen with the discretionary powers. Why that should be an argument for increasing the justices' discretion, I do not know. I am in favour of keeping mandatory suspended sentences, which have been in
operation for only a short time and about the results of which, until just the other day, we had no hard statistical information. It is the Government who are saying, without any materials at all, "Let us now reverse what Parliament decided in 1967 and let us do away with mandatory suspended sentences." I should have thought that if we were going to keep them it would have been wise to have made an exception for those two cases which, on the facts as stated in the Home Office report—incidentally, a very recent report—tend to show that this method has not been a success
I agree with the noble Viscount that, as the report itself points out, they are both very much the same kind of case—a previous custodial sentence or three previous convictions. The main point of the Amendment is to keep the law as it is and not make a change. It is not the Amendment which is going to lead to 3,500 more people in prison. All I am pleading for is that the Government should not make this very serious change, which may have serious consequences, when they have not had the opportunity of ascertaining the facts.
I think we should come to some conclusion about this issue. I am not going to ask anybody behind me to vote for this Amendment because I have moved it. In the other place this matter was dealt with entirely on a non-Party basis, and I hope that so far as the whole of this Bill is concerned we shall deal with it on a non-Party basis. But because this information, certainly in the second memorandum, only reached the other place in time for the Report stage of the Bill, because they were required to deal with that at two o'clock in the morning, and as we have now had more opportunity to consider the subject than the other place had, I think it is one on which we should express a view.
4.55 p.m.
On Question, Whether the said Amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 50 ; Not-Contents, 77.

CONTENTS

Archibald, L.

Brockway, L.

Clwyd, L.

Bacon, Bs.

Buckinghamshire, E.

Collison, L.

Beswick, L.

Burntwood, L.

Crook, L.

Birk, Bs.

Burton of Coventry, Bs.

Diamond, L.

Blyton, L.

Champion, L.

Donaldson of Kingsbridge, L.

Douglas of Barloch, L.

McLeavy, L.

Slater, L.

Faringdon, L.

Maelor, L.

Stocks, Bs.

Fiske, L.

Moyle, L.

Stow Hill, L.

Gaitskell, Bs.

Phillips, Bs. [Teller.]

Summerskill, Bs.

Gardiner, L.

Popplewell, L.

Taylor of Mansfield, L.

Garnsworthy, L. [Teller]

Royle, L.

Wells-Pestell, L.

Hale, L.

Ruthven of Freeland, Ly.

White, Bs.

Hall, V.

Sainsbury, L.

Williamson, L.

Henderson, L.

Serota, Bs.

Wise, L.

Hoy, L.

Shackleton, L.

Wootton of Abinger, Bs.

Jacques, L.

Shepherd, L.

Wynne-Jones, L.

Janner, L.

Shinwell, L.

NOT-CONTENTS

Aberdare, L.

Digby, L.

Mancroft, L.

Ailsa, L.

Dilhorne, V.

Merrivale, L.

Airedale, L.

Drumalbyn, L.

Meston, L.

Amory, V.

Ebbisham, L.

Milverton, L.

Auckland, L.

Eccles, V.

Monck, V.

Avebury, L.

Elles, Bs.

Morris of Borth-y-Gest, L.

Balfour, E.

Emmet of Amberley, Bs.

Mowbray and Stourton. L. [Teller]

Balfour of Inchrye, L.

Ferrers, E.

Belstead, L.

Fortescue, E.

Northcurch, Bs.

Berkeley, Bs.

Gainford, L.

Oakshott, L.

Bethell, L.

Goschen, V.

Rankeillour, L.

Bledisloe, V.

Gowrie, E.

St. Helens, L.

Brooke of Cumnor, L.

Grenfell, L.

Sandford, L.

Brooke of Ystradfellte, Bs.

Grimston of Westbury, L.

Savile, L.

Camoys, L.

Hacking, L.

Sempill, Ly.

Carrington, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Somers, L.

Chorley, L.

Stamp, L.

Colgrain, L.

Howard of Glossop, L.

Strathclyde, L.

Colville of Culross, V.

Hunt, L.

Swaythling, L.

Courtown, E.

Hylton-Foster, Bs.

Tanlaw, L.

Craigavon, V.

Ilford, L.

Tweedsmuir of Belhelvie, Bs.

Craigmyle, L.

Kilmany, L.

Vivian, L.

Crathorne, L.

Kinnoull, E.

Wakefield of Kendal, L.

Cromartie, E.

Lothian, M.

Ward of Witley, V.

Daventry, V.

Loudoun, C.

Widgery, L.

de Clifford, L.

Macleod of Borve, Bs.

Young, Bs.

Denham, L. [Teller.]

On Question, Amendment agreed to.

5.4 p.m.
LORD JACQUES LORD JACQUES moved Amendment No. 6:
Page 8, line 20, after ("unless") insert ("the court has considered a social inquiry report from a probation officer and").
The noble Lord said: The purpose of this Amendment is to make it mandatory upon a court to have a social inquiry report from a probation officer before it passes a sentence of imprisonment which is suspended. Therefore there are involved two issues: first, the importance of such a report ; secondly, whether it is practicable to make it mandatory that the court should have such a report. I believe that there is general agreement on all sides of the Committee that there should be adequate opportunities for rehabilitation, especially for inadequate people who so often come from broken homes and are responsible for a good
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deal of petty crime. This Bill provides new methods of rehabilitation; it increases the range of sentences that are available. Surely in those circumstances it is all the more important that the court should be fully informed before it comes to its conclusion as to sentence. The probation officer has far greater opportunities than the court in getting at the background and finding out the possibilities of rehabilitation. He can spend far more time on the case and visit the offender at his home. The vast majority of our courts regard it as absolutely essential that they should have such a report before they make up their minds on a suspended prison sentence. But a few courts act extremely impatiently with the inadequate petty offender. The suspended sentence procedure suits that kind of court very well because it means they spend little time upon the case; they do not increase the work which is on the shoulders of the Probation Service; they do not increase the fines arrears, and they

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waste no time. In effect, they say to the offenders: "Do not let us see you back again. If you return in the next two or three years you will go back to prison."
We believe that there should be a full and proper inquiry before the suspended sentence procedure is used. On Second Reading the noble Viscount said that we must see that courts use the suspended sentence only when otherwise they would think imprisonment the only answer. I believe that it is only possible for the court to be in that position if it has been fully informed on the matters that are available to it. There is next the question of whether it is practicable to make the provision of a report mandatory upon the court. For this part of my argument I am willing to rest on the words of the noble Viscount during the Second Reading debate on June 26. At column 658 of Hansard he said:
"I cannot see why in practice there should not be such a report before a court in almost any case of gravity. I do not think we should want it in motor car cases, but certainly in anything that is liable to endanger somebody's liberty or livelihood."
I underline the words, "in practice" and I submit that unless the case is one of gravity, there should not be imprisonment. If there should not be imprisonment then in the opinion of the noble Viscount there should not be a suspended sentence of imprisonment. Therefore I hope that the brief of the noble Viscount agrees with his opinion and that this Amendment will be accepted without further ado.
LORD WELLS-PESTELL: I should not have associated myself with this Amendment had I not felt extremely strongly about it. I hope that the noble Viscount will find it possible to accept the Amendment. I do not want to cover the ground that has already been covered about the contributions that prisons do or do not make to-day other than to say that I have sat for twenty-six years as a lay magistrate and, in recent months, as a lay magistrate in Crown Courts. For some years I had practical experience as a probation officer. This has led me to visit most of the prisons in this country, most of the borstal institutions and the various other institutions in which we treat delinquents. While I recognise that prison is essential in certain cases, we
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cannot close our eyes to the fact that we are housing to-day in our prisons a large number of people—I venture to say many thousands—who ought not to be in prison. Their real problem is one of social inadequacy, fecklessness and general inability to meet the demands and responsibilities that we all have to meet in living in a community. If this is so, and if your Lordships will accept this, as I feel sure you will, it makes it incumbent upon the court to be absolutely certain that when they send a person to prison there is every justification for doing so.
I welcome the Bill as a whole because it is a sincere and sustained effort to keep people out of prison. It is an excellent Bill in that respect. But I feel that, because of the variety of behaviour of the various courts in this country (and my noble friend Lady Birk has said that even lay magistrates will think differently upon the same case; that is the reason why there are never fewer than two of us or more than three) in the last analysis a court must explore every avenue from which it can gather information—not just the police and not just the prosecution. It is incumbent upon the Houses of Parliament, of which we are a part, to write into a Bill of this kind a provision which makes it mandatory that the court should have a social worker's report, bearing in mind that he or she is a person who has been specially selected and trained to undertake this kind of investigation. In this way, as noble and learned judges will know for themselves, there often come to light circumstances about which the court knew nothing, circumstances which contributed to the commission of the offence. If such circumstances are known it might clearly be of far more help to the community to deal with an individual by means other than sending him or her to prison. Therefore, I plead with the noble Viscount to accept this Amendment, because it is of supreme importance.
5.12 p.m.
LORD JANNER: I support the Amendment. Having practised in the courts for a number of years I feel, and think that other practitioners in the courts feel, that the opinion of the probation officer is extremely valuable in enabling a court to arrive at a satisfactory decision. I strongly support the arguments

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that have already been put forward. In my view, it is not carrying the matter too far to ask every court (and later on we shall be dealing with Crown Courts, too) to consider the actual circumstances of the individual concerned in the light of an investigation by an experienced person—someone who is almost invariably kindly and sympathetic and would be prepared to place the facts before the court in the most sympathetic way provided that this did not involve anything in the nature of an injustice.
I cannot understand how there can be any objection to a proposal of this kind. Magistrates might say, "Well, we can do just as well as a probation officer"; but I think that, speaking in the main, magistrates already rely to a considerable extent upon the opinion of probation officers. Emphasis has been placed upon the reasons why, if it is at all possible, people should be kept out of prison. This provision would be invaluable for the courts. I cannot see any reason why it should be turned aside, and I hope that the Government will accept it.
BARONESS ELLIOT OF HARWOOD: I, too, rise to support this Amendment. Very often, certainly in the case of juveniles, and I believe of adults as well, reports are made on families who, alas! produce delinquent children or offenders of an older age. It is most important that the knowledge and experience of these people who have been watching over such families, in some cases for quite a number of years, should be used, and that they should be consulted and play a part in the vital decision of the magistrate or the sheriff, as the case may be, in any given case. In many areas we have now built up a very fine team of social workers and probation officers working closely together. They have great skill and experience. In many cases I have known them to be asked for their reports before a sentence of any kind has been awarded in court. The fact that they are not consulted is, I believe, a mistake. I have been involved in this sphere quite considerably: I am Chairman of the Probation Committee and Chairman of the Social Work Committee, and have for years worked for the Advisory Council for the Treatment of Offenders ; and all my experience leads me to believe that if you want to help
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people it is best done through the study and care which is given by probation officers and by other social workers. It would be most valuable if this could be part of the assistance given to magistrates or whoever presides at court. I hope very much that this Amendment will be incorporated in the Bill.
5.17 p.m.
VISCOUNT COLVILLE OF CULROSS: That is a very strong appeal from noble Lords opposite and from my noble friend. I am bound to say that this is a matter which causes me considerable concern. May I, to start with, tell the Committee that there is already power under the 1967 Act to make rules to this effect, so technically speaking (and I think this Amendment goes closely with Amendment No. 9 of the noble Lord, Lord Wells-Pestell, on Clause 13) there is no need for this Amendment. But I am glad that noble Lords have put it down so that we may consider it. The reason why the Government have not made rules under Section 57 (I think it is) of the 1967 Act, already bringing this provision into effect, is the, alas! gloomy situation about workload. That is the primary reason. There are cases where it is arguable that the court know the man concerned perfectly well ; he has been before them on several occasions and they know everything there is to know about him. They have had a probation report on him before, as well as other reports, and therefore do not need further reports. But I entirely appreciate that this is not the usual case. The usual case, particularly when we are talking, as we are in Clause 10(3) and Clause 13, about imprisonment, whether suspended or not, is the case where, as the noble Lord, Lord Jacques, accurately quoted me, I think it is highly desirable there should be a social inquiry report.
Let me tell the Committee a little about our research—not, I may say at once, because this helps me in any way, but because I think it is necessary that I should fulfil the undertaking given in another place to see whether we could discover what was the factual situation about the number of social inquiry reports that were in fact given to the courts before they passed sentence. Although I do not know whether this has been done on a universal basis, I think

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the statistics are fairly reliable ; and in some cases they are not very encouraging. I think that the situation in the higher courts is all right, because we have for some time been recommending these courts to obtain social inquiry reports as a normal practice in a wide range of cases, including very grave ones. In 94 per cent. of the applicable cases outside Inner London and in 83 per cent. of the cases in Inner London there has been a social inquiry report, and I suppose there have been others in the excluded figures in cases where there was not one, where probably the court did not need it, for the reasons of the kind that I have given.
The situation in regard to magistrates' courts is not so good. In four-fifths of the cases of people who were sent to detention centres there was a social inquiry report before the court sentenced them, and in London the number was even higher than elsewhere. Of the women given a prison sentence, whether or not it was a first one, 70 per cent. were the subject of a social inquiry report. But when one comes to men given a first prison sentence by the magistrates' court, I am afraid that there was a social inquiry report on rather less than two-fifths of them before the court passed sentence. This possibly gives point to what the noble Lord, Lord Jacques, said about some courts being a little impatient with people of this sort. I think that in 44 per cent. of the cases there was a report where a man went straight to prison, whereas when a sentence was suspended the figure was lower. I hope that this state of affairs will change partly as a result of this Bill, because the courts will take the actual sentence and the suspended sentence and these will be considered just as carefully.
The trouble is that in 1965 43,456 social inquiry reports were prepared on adult men and women appearing in magistrates' courts ; by 1968 this number had increased by nearly 50 per cent. to 66,405, and by 1970 there had been another, virtually, 50 per cent. increase, to 91,336—just in the magistrates' courts. Of course this was partly as a result of the vastly increased numbers of cases coming before the courts. But the truth of the matter is that if one had a statutory requirement of the sort suggested in this Amendment and in Amendment No. 9—the one to
566
Clause 13—we think we should need the equivalent of 50 probation officers over and above what we have now. This is a situation to which we are working. As I think I told the noble and learned Lord, Lord Gardiner, on Second Reading we are training and providing places at a tremendous rate, and the latest information that I have is that this programme is up to what we had hoped. As I told your Lordships then, we are working to a target of 4,700 probation officers by 1975, and that was partly geared to take account of the extra burdens placed upon them in this Bill.
Therefore I am afraid we have a cruel choice. I entirely agree that it would be ideal that we should have a social inquiry report in every case. The noble Lord, Lord Jacques, mentioned a suspended sentence, and the Amendment tabled by the noble Lord, Lord Wells-Pestell, any sort of sentence of imprisonment, whether suspended or not. But here we also have in this Bill—and it has been widely accepted—some experiments in non-custodial treatment, and some of these were with exactly the sort of people who have been mentioned, such as people who were inadequate. There are the day centres for those who are not very well able to cope with life ; we have the community service orders which I think, if we can make them work, will be a success and will bring in the voluntary side as well. We have other provisions which all put an additional workload on the Probation Service. Indeed the noble Lord, Lord Wells-Pestell, in one of his Amendments said that we should not bring these things into operation until the Probation Service can assure my right honourable friend the Home Secretary that they can deal with them. If we accept this Amendment inevitably we shall have to divert from the other non-custodial activities set out in this Bill some of our precious force of probation staff. That is not a position that I like defending at all. It is a most invidious choice to have to make. I think I must put it before the Committee bluntly, as I have done, and if noble Lords wish to put this Amendment into the Bill then I believe they will be sacrificing a certain number of provisions which everybody has welcomed.
I also think that as we have powers to do it, and as I hope I have given the impression that we are keen to try

567
to get this situation right, we should draw the attention of the courts to this very sad situation and go on with our administrative pressure and our exhortations to try to avoid this type of case. If the Committee thinks that that, rather than the statutory imposition of this duty, is the best compromise that we can get, then that is the one that I would be happy to try to implement. I should be happy to go on encouraging the training scheme, the extra training places and the extra recruitment that is going on. I know that the noble Lord will say something about pay. We have the Butterworth Report coming up, and I hope that that will be satisfactory.
I think I must really leave the matter with the Committee. I do not want to accept this Amendment because I believe that it will throw out of gear a great deal of the good that we want to achieve in this Bill. I would go so far as to resist it, not only on technical grounds but on the grounds that we ought not to jeopardise some of the other practical and experimental provisions. That is the situation. As I have said, I am not happy with it ; the Government are not happy with it. We are not pleased with the figures that have come out of this particular piece of research, but there they are, and I hope that we may be forgiven by noble Lords, however enthusiastic they are (as I am myself) and that they will allow us to go on until we can make the necessary rules under the powers that we already have.
LORD CHORLEY: With the noble Lord's permission, I should like to intervene. Would it be possible somehow to moderate this? I realise the importance of what the noble Viscount has been saying about taking away from the efficiency of other parts of the Probation Service in other parts of this Bill if the whole of this scheme is put into operation, because of the vast increase in the number of social inquiry reports which would be required. From my long experience of the growth of these reports since the end of the war up to the present time I have no doubt at all that they are very valuable. Nevertheless, as the noble Viscount has said, there are quite a few of these cases where such reports are really quite unnecessary and one feels that valuable time has in fact
568
been wasted. Would it be possible to moderate this provision in some way and let the magistrates call for reports, or something like that?
VISCOUNT DILHORNE: Supposing there is a case where the magistrates find the situation difficult and where they would like to have further information, is it not open to them to remand the case with a view to obtaining a social inquiry report? When I sat, before Beeching, as a deputy chairman of quarter sessions I do not recollect in recent years not having a social inquiry report available before sessions. In many cases I found it of extreme value ; in other cases the social inquiry report did not assist in the solution of the problem at all. But it was nice to have it and to know that the position had been looked into. Quite clearly, the workload is such that, without having to pay too great a price, one cannot make it mandatory to have a social inquiry report at the present time. I should have thought the case would be met by what the noble Viscount has said about the way in which the situation is developing and also by the magistrates' ability to have the cases remanded, maybe on bail or maybe not, with a view to obtaining a social inquiry report in a particular case. I should have thought that would have met the situation.
5.30 p.m.
LORD WELLS-PESTELL: I agree with what the noble and learned Lord just said and it is true of the majority of courts in this country. Nevertheless I think the noble Lord, Lord Hamilton of Dalzell, will agree that probation officers attach considerable importance to the court having social inquiry reports. We are dealing here with a specific group of defendants—those who are likely to be considered for suspended sentences—and are not ranging over the whole sphere of prison sentences. In other words, we are considering a small group of people. Bearing in mind that for every six we send to prison for a six months' sentence we are involved with three years' imprisonment, we would save enough money by taking this step to employ more probation officers. It is as simple as that.
VISCOUNT COLVILLE OF CULROSS: Yes, if we had them trained at the right time. It is correct to say that there is

569
power to remand for a report. In the cases with which we are dealing, of a possible suspended sentence, I suppose that this might well happen on bail. If we were dealing with the Clause 13 type of case, where the court would be thinking of imprisonment without suspension, it might have to be on remand.
LORD CHORLEY: Would it be possible to modify the clause in such a way that a report must be requested in all cases except where it was clear to the bench that one would not be of much use?
VISCOUNT COLVILLE OF CULROSS: I think that such a provision would be undraftable. In any event, magistrates who choose not to pay any attention to a report will not do so. The solution which I suggest to the Committee is the course we have been following—namely, to encourage the courts in certain specified cases to make it the normal practice to have social inquiry reports, and the exception to the normal practice is exactly what the noble Lord, Lord Chorley said—those cases where the court knows the person well—and in saying that the noble Lord really endorsed what I had previously put before the Committee. I do not believe that one could draft either a Statute or rules to cover this in the way the noble Lord suggested. However, the pressure should be kept up—particularly as a result of the figures I disclosed—on the magistrates' courts and especially on those which do not have social inquiry reports as often as they should. At the moment we feel that this should be done by administrative means.
I cannot go further than that. To try sensibly to legislate or make rules would not work. It would in the present circumstances probably mean cases getting badly held up and some people being kept on remand in custody for quite a long time. I believe that administrative means is the right answer, encouraging the courts to use social inquiry reports. Indeed, I will see that some of the speeches made by noble Lords in these deliberations are included verbatim in some of the circulars which we send out because the points of concern to us all have been put succinctly, clearly and forcibly. In view of the practical difficulties I hope that the noble Lord, Lord
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Jacques, will respond to what I have said and, as an earnest of his support for our endeavours in this matter, agree to withdraw the Amendment.
LORD HAMILTON OF DALZELL: It is true that magistrates can remand cases for social inquiry reports. Indeed, they frequently have to do so because although we are getting an increasing number of what are known as pre-trial reports, the time available as a rule makes it impossible to have reports in all cases. This is probably not so in the higher courts because the amount of time that has elapsed will have ensured reports being available. Generally speaking, the court will invariably want a report before making a suspended sentence. There may be occasions when the court knows the person so well that a report is not required and in such cases there would be no point in obliging the court to put the case back for a social inquiry report. On the rare occasions when that situation occurs, the court should not be obliged to take that step because the Probation Service is very fully occupied and it would be undesirable to ask it to do the unnecessary.
LORD JACQUES: It is common practice in the vast majority of magistrates' courts to have a remand for a social inquiry report before passing a suspended term of imprisonment. Only a few courts, the impatient ones, do not do so. The Amendment is drafted in such a way that it would give a certain amount of freedom to the courts. For example, if the offender had been before the court a year earlier and there had been a social inquiry report available at that time and the court was satisfied that there had been no change in his circumstances since then, there would be no need to oblige the court to wait for another report. I do not think it would be possible to redraft the Amendment to make it operate in a simpler way. Am I right in assuming that the Minister of State is in sympathy with the Amendment but says that what it seeks to do can already be done without the Amendment? In other words, is the noble Viscount saying that the Government are anxious to do this but that it is all a question of the availability of staff?
VISCOUNT COLVILLE OF CULROSS: I am not saying that we would be anxious

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to require this to be done in respect of every case that will ever come before a court. As the noble Lord, Lord Hamilton of Dalzell, said, if one had sufficient probation officers, one could afford to waste some time ; but in principle I am in sympathy with the proposal if the court does not know the background.
LORD JACQUES: I appreciate that it would be difficult, either in a Statute or rules, to draft a provision giving the exceptions because of the difficulty of defining them. This is such an important matter that ultimately we shall have to say, "Before a suspended term of imprisonment is passed, the court must have all the facts." The amount of time that would be wasted on those cases where reports would not be necessary would, in my view, be negligible and would be a price well worth paying.
As the noble Viscount is sympathetic and has made it clear that what I seek to achieve can be done without the Amendment—I appreciate that to achieve my objective completely would require an increase in the number of trained probation officers—I can only hope that if we have not fully persuaded the Government of the need to take this step now we may yet persuade them on another occasion. On that understanding, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
Clause 11 [Suspended sentence supervision orders]
5.39 p.m.
LORD DONALDSON OF KINGSBRIDGE LORD DONALDSON OF KINGSBRIDGE moved Amendment No. 7:
Page 9, line 4, at end insert ("or his nominee")
The noble Lord said: This is a probing Amendment which follows neatly on the last remarks of the noble Viscount who was pleading insufficient numbers of probation officers. The second half of this important Bill depends for its success on there being enough probation officers, a subject to which we shall come on Amendment No. 35. It depends also on something less direct but no less important. In my view, and in the opinion of
572
many others, the Probation Service cannot do its work properly without involving a large number of voluntary workers. This has been accepted, for example, in the case of voluntary after-care, which was done at one time purely by voluntary bodies and was then taken over by the Probation Service and run with the help of the voluntary organisations. This work is done extremely well. I am speaking of the great unpaid, the enormous army of people who make possible many things that would be impossible without the great deal of time and effort that they put in. I refer, among others, to magistrates, members of committees and accredited volunteers. This kind of voluntary work is rather different from the sort of voluntary work we shall be talking about when we come to community service orders.
I could have attached this Amendment to Clauses 14 or 19 as it applies to all three clauses. The point that I wish to get clearly understood is that though there is no mention in the whole of the Bill of the assistance of the voluntary movement, yet I do not believe it can succeed without that assistance. The noble and learned Viscount made some kind remarks about the voluntary movement in his Second Reading speech and that is the biggest dividend we have so far managed to get. I am not particularly interested in work just because it is voluntary, but I am quite satisfied that much of the work which needs to be done cannot be done without volunteers and cannot be done as well by people who are statutorily employed. I suppose that the most important thing that a volunteer can give to an offender, a man who has made a mess of his life, is leisure, a little time. That is the one thing that no probation officer can ever give. Quite apart from the fact that the volunteer can actually take some of the workload off the probation officer, he can also supply the client with something that the probation officer simply has not got.
Subsection (4) of Clause 11 says:
"An offender in respect of whom a supervision order is in force shall keep in touch with the supervising officer in accordance with such instructions as he may from time to time be given by that officer and shall notify him of any change of address."
Your Lordships will notice that this is a much more minimal duty laid on the

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probation officer than is the normal one, which is to befriend and assist. Of course the relationship does imply befriending and assisting, but the fact remains that his main work will be quite routine and it seems to me that, if he is going to do any good for this man who is given a supervision order on a suspended sentence, he will have to do more than is laid down in subsection (4) and he will also probably need volunteers to help him do it.
I do not think I need say more. The point I am trying to make is obvious. The noble and learned Viscount may not feel that I have this Amendment in the right place. He may not even feel that the Bill needs to have any reference at all, but I am absolutely certain that both the community service orders and the day training centres will be only half what they could be if this service is not very heavily used.
The position over the second half of the Bill is that all of us are trying—and the noble and learned Viscount says that he is as keen as I am, and I believe him—to keep people out of prison who should not go to prison. But there is more to it than that. It is not enough to keep people out of prison. If you send people to prison for a short sentence it is certain that you will not do them good and it is very likely that you will do them some harm. If you treat them under Clause 14 or 19 there is the possibility that you may do them some good. The change for the better in offenders is never the result of anything except personal relationships. You want as many personal relationships as you can get and therefore you want the largest variety of volunteers as possible. I do not think I need add anything further except to ask the Minister either to accept this Amendment or to suggest in what way we can express the importance of this assistance to the second half of the Bill.
LORD HAMILTON OF DALZELL: I must say that I am not very happy about this Amendment. I am, of course, entirely in favour of increasing the use of voluntary associates and other volunteers in collaboration with the Probation Service and it may well be that they could be used in connection with one of these suspended sentence supervision orders. But it seems to me that the person
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appointed by the court to supervise somebody under one of these orders must be trained and qualified with official standing in his relations with the court. I do not see that there is any essential difference between this type of order and a probation order, and I do not think anyone would suggest that people who are not in the official position of a probation officer should be put in the position of a probation officer in relation to a probation order. There is the particular point that under Clause 12 a person may be brought back before the court for a breach of the conditions of a suspended sentence supervision order and it seems to me even more essential that the person who comes back to the court to make a report in that connection should be a person with official standing and that he should be a probation officer and no one else.
BARONESS BIRK: I should like to support the Amendment. I quite understand some of the reservations, but I would point out that this is not the same as when a person is put on probation. A decision has already been made about a suspended sentence and this is giving a small piece of additional help and support. That is done in many other fields: we have prison visitors and marriage guidance counsellors. I cannot see why—and I think my noble friend mentioned this—there should not be a certain amount of training for this work: obviously it would not be the highly skilled probation officer, but it would be somebody acting in a supportive role. I would support my noble friend because this is a suggestion worth examining, particularly in view of what we all know and what the noble and learned Viscount said in reply to the last Amendment, this really terrible shortage of probation officers.
LORD WELLS-PESTELL: My noble friend Lord Hamilton of Dalzell has raised a very real point—albeit it is not a probation order it is nevertheless an order of the court. I do not know whether the court would be empowered to name in an order of this kind somebody who is not an officer of the court. I just do not know the answer to that. But what does seem to me to present difficulties—although the noble and learned Viscount may say that these difficulties can be easily overcome—is the question

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of breach. I can well understand that to work this Bill effectively there has to be a vast army of ancillaries and auxiliaries and voluntary workers. That is essential, otherwise the Bill, if it becomes an Act, cannot work effectively. It may well be that a probation officer will need to use a number of people in the course of a period to help him in connection with a particular individual, but I should have thought that the responsibility lay with the probation officer. I am wondering if the noble Viscount can say whether these are real difficulties or just imaginary ones on my part and on the part of my noble friend Lord Hamilton of Dalzell. But I do see difficulties if breach should arise.
5.49 p.m.
VISCOUNT COLVILLE OF CULROSS: I have a nasty suspicion that between them the noble Lord, Lord Wells-Pestell, and the noble Lord, Lord Hamilton of Dalzell, have seen my brief. They are perfectly right that there are substantial technical difficulties about this matter of exactly the sort that they have described. I may say that I am going to go on to say something constructive in a moment, but it would be very difficult to have a situation where there is the responsibility of the discharge of the probation order, the compliance with the conditions and the possibility of bringing a person back on breach whether it is under this clause or whether, as the noble Lord, Lord Donaldson, said, the same point could be applicable under later clauses in the Bill. Whenever you have a probation order imposed on a person then there are these formal statutory requirements and duties to the court, and I think it is right that it should be a trained, qualified probation officer who carries that responsibility. We then get to the point which the noble Lord, Lord Wells-Pestell, made, very much underlining the speech of the noble Lord, Lord Donaldson, that there is room for all sorts of assistance for that formal probation officer in the outside world.
I am very glad to expand a little the rather brief references that I made in an all too long final speech on Second Reading to the assistance we are going to get from the voluntary movements. As your Lordships may know, one of my ministerial responsibilities is to attempt to co-ordinate the voluntary social ser-
576
vices, and in the course of meeting some of them I have been talking to people who are already co-operating in the trial areas where some of these new experiments will, we hope, get off the ground. There are people who are actually concocting with the Probation and Aftercare Service community service schemes which can start being put into effect the moment this Bill is passed. With this sort of thing—and community service is perhaps the best example, though no doubt there are others—I believe that the volunteers have an enormous amount to offer: their enthuiasm, the fact that they are volunteers, the sort of jobs they are doing into which the person sentenced to something called community service can really fit. There are very well worthwhile things going on ; I wish there were more. I see the role of the volunteers in the operation of this Bill as being a very substantial and important one.
When it comes to the suspended sentence supervision order, which is what this Amendment is about, I should not be surprised if on quite a number of occasions the probation officer formally in charge says to a friend, a volunteer, somebody who is sensible and knows how to deal with people, and who lives in the area, "I could do with your help in this case". There is no reason why he should not. I feel sure that the Probation Service does this already. If not, I wish it would. I believe, with the noble Lord, Lord Donaldson, that this is a remarkably helpful act of co-operation between the Probation and Aftercare Service and all the volunteers we can get. So anything I say is intended to be encouragement. But I do not favour this Amendment, because I do not believe we should put on the nominee rather than on the probation officer himself the final legal responsibility. But by all means let us do everything we can in this House and outside to try to get the volunteers to come in with the Probation Service and make these schemes work. I hope that, in those circumstances, the noble Lord will not want to press this Amendment, but perhaps will feel that I have given him some encouragement on the general subject.
LORD DONALDSON OF KINGSBRIDGE: I am very grateful to the noble Viscount. I did not expect my Amendment to be accepted as it stood,

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but I did hope that we could get the kind of encouragement he has given, which is very necessary in the voluntary movement. At the moment, very large sums of money are being spent, to my great pleasure, on the statutory movement ; and very large sums of money on the probationary hostels. But still far too little—in fact, none at all—is being put towards the capital of the voluntary bodies. The voluntary movement needs encouragement, and I think it has had it this evening and I am grateful. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.54 p.m.
VISCOUNT COLVILLE OF CULROSS VISCOUNT COLVILLE OF CULROSS moved Amendment No. 8
Page 10, line 12, at end insert—
(" or
(c) if that court had not the power to make such an order but would have had the power with subsection (1) of this section in force as it is at the time when the offender is dealt with under secion 40(1).")
The noble Viscount said: This is really a drafting matter. What it does is to enable the court to impose a suspended sentence supervision order in a case where at the time when the sentence itself was imposed the court was not empowered to do so. Two such situations arise: one concerns the sentence imposed before this Bill becomes enacted ; the second could arise where my right honourable friend makes rules altering the period of the sentence to which the supervision order can be attached. Your Lordships will recall that at the moment the order has to be limited for the same reason, shortage of staff. Supposing he made an order and after the order had been made the sentence would have been susceptible to being supervised but was not at the time it was imposed, this Amendment would have the effect of allowing the court afterwards to add a supervision order as well. This Amendment fills those two gaps, and at the same time it fulfils an undertaking given in another place. I beg to move.
VISCOUNT DILHORNE: The noble Viscount in moving this Amendment said it was a drafting matter. I must say that I hope he will have a further look at the drafting. If I understood him correctly, this provision is meant to operate if the court
578
"… had not the power to make such an order but would have had the power …"
if subsection (1) of this clause had been in force at the time when the offender is dealt with under Clause 40(1). If I understood him correctly—I hope he will correct me if I am wrong—that is what he said this Amendment was intended to do. I do not want to take upon myself the mantle of my noble friend Lord Conesford, but I would ask your Lordships to look at the language of this Amendment:
"or
(c) if that court had not the power to make such an order but would have had the power with subsection (1) of this section in force as it is at the time when the offender is dealt with under section 40(1)".
That is a very cumbrous way of saying "but would have had the power if subsection (1) of this section had been in force at the time when the offender is dealt with". As the noble Viscount agreed with me that that was what this Amendment was intended to do, and as he said it is purely drafting, I do hope he will undertake to improve the drafting.
May I draw his attention to another drafting point on this very same subsection. It starts with the situation where a court varies the operational period of a suspended sentence or makes no order under paragraph (d). Then in paragraph (a) you find the words, "in place of any such order". What is meant by ' any such order" when the only order previously referred to is one varying the operational period of the suspended sentence? Perhaps the noble Viscount would look into this. Does he think that the reference to "any such order" is a reference to a case where no order is made? If so, I think again the drafting would require to be looked into.
VISCOUNT COLVILLE OF CULROSS: I have another point earlier in the Bill which the noble and learned Viscount has asked me to look at, and I am still looking. Rather than try to give a sensible answer as to which order is concerned under Clause 11(10)(a) may I take this away, and if we could make this Amendment now I will see whether perhaps we can rephrase it at a subsequent stage. The substance of the Amendment is important and I think it should be in the Bill.
Clause 11, as amended, agreed to.
Clause 12 agreed to.
Clause 13 [Restriction on imprisonment of persons who have not previously served prison sentences]:
5.59 p.m.
BARONESS WOOTTON OF ABINGER BARONESS WOOTTON OF ABINGER moved Amendment No. 10:
Page 11, line 5, leave out ("magistrates'").
The noble Baroness said: This is a very simple Amendment, but I venture to think it is one of some importance. I think it is common ground on every side of the Committee that the decision to send any person to prison for the first time is a very serious matter. That is recognised in the wording of this Bill. It is stated in Clause 13 that the court is not to pass a sentence of imprisonment on a person not previously imprisoned unless it is of opinion that there is no other appropriate method of dealing with him, and unless the court has obtained and considered information about the circumstances and taken into account any information relevant to his character and his physical and mental condition. In other words, no court is to pass a sentence of imprisonment without getting the fullest possible information about the circumstances of the crime and about the person who is found guilty of it. With due deference to my noble friend, Lord Hale, I am prepared to agree that the majority of persons who go to prison for the first time do not go again, but it is also true that every time a person goes to prison his chances of going to prison for a further time are increased. This progression—can I engage the noble Viscount's attention?
THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE): The noble Baroness need not fear. I am answering this Amendment.
BARONESS WOOTTON OF ABINGER: I thank the noble and learned Lord.
Every time a person goes to prison his chances of going again are increased. This increase becomes progressively greater over a large number of sentences of imprisonment. I say this in spite of the fact that people who go to prison for the first time generally do not go back. Nevertheless, the decision is an important one and all courts, as this clause
580
recognises, are to give great weight and consideration to making this decision. But under subsection (2) only magistrates' courts are to give their reasons for making this decision. The higher courts are not to give their reasons ; they are not obligated to do so. There is a precedent for asking a court higher than a magistrates' court to give reasons about sentences of imprisonment. Under Section 17(3) of the 1948 Criminal Justice Act quarter sessions were required to give reasons for sentencing to imprisonment in the case of a person under 21. The obligation was equal both on magistrates' courts and on the quarter sessions, but these provisos as they related to quarter sessions disappeared when quarter sessions were, as it were, swallowed by the Crown Court.
One asks oneself why the Crown Court is not required to give reasons for making these important decisions. It cannot be that the higher courts act irrationally and without reason—that is an explanation which we should discard at once—or that they have less reason than the humble, unlearned magistrates. One would have supposed that their reasons would carry even greater weight than the reasons that the unlearned magistrate could give, and one would certainly suppose that the higher courts—the Crown Court and the High Court Judges and circuit Judges—would be considerably more articulate than the magistrates and, therefore, would be better able to express their reasons in a form which would be both intelligible to the prisoner concerned and to the public whose concern it would be. And there might also be better grounds in the event of an appeal. I would therefore earnestly ask that all courts should be joined together in a common obligation, not only to give serious consideration to this important decision but also to state the reasons which have led them to arrive at their decision. I beg to move.
VISCOUNT DILHORNE: I am entirely with the noble Baroness, Lady Wootton of Abinger, in thinking that in every case a court ought to give the most serious consideration, as the clause requires, before sending any person to prison. I think that is the almost invariable rule, certainly in the higher courts, in the circuit court and in most courts, and I shall be surprised if it is ever

581
departed from. Therefore I myself do not see any valid reason for requiring them to state their reasons, because I should have thought that in most cases they do. In any event, it cannot affect the sentence that is passed ; it will not invalidate it and there would be no ground of appeal. I should have thought that this requirement in relation to the magistrates' court was merely there to ensure that they paid attention to this practice, which I think the vast majority of those courts ordinarily do. When the noble and learned Lord, the Lord Chancellor, comes to reply I shall be interested to hear what sanction is imposed on magistrates should they fail to comply with the requirements of this subsection. There is no provision at the moment. So far as the higher courts are concerned, and it is to them that the noble Baroness, Lady Wootton, wants to make the Amendment apply, I do not think it is necessary. I think it is another bit of trouble that will have to be taken to ensure that it is complied with, and it will make matters more complex. I think myself that this practice is always complied with.
LORD WIDGERY: I would endeavour to persuade your Lordships not to accept this Amendment for two reasons: first the superior courts already invariably give reasons for sentences, whereas the general practice is that the magistrates do not. Consequently it is logical to require the magistrates to give reasons in appropriate cases, whereas the superior courts do not require to he so instructed. I do not pretend that in every case in which a first sentence of imprisonment is passed one can spell out the judge's reasons and precise motives for passing the sentence, but in nine cases out of ten I am confident that the answer would be that the gravity of the offence itself requires the imposition of such a sentence and very little is to be gained by requiring, as a matter of law, that those words should be included as part of the formula of sentencing.
The other reason why I suggest this Amendment will have unfortunate consequences is in regard to the appellate system. The tendency when a judge is required to give reasons for sentence is to make people more interested in his reasons than in his sentence. When the matter comes to the Court of Appeal on
582
an appeal against sentence, we always regard ourselves as being concerned with whether the sentence was the right one. One of the matters we look at is the judge's reasons. We consider them part of the material for deciding whether or not the sentence was right. I have little doubt, from past experience, that if judges are required to give these reasons we shall find that a great many people will appeal, not because the sentence was wrong but because they think the reasons were wrong. We shall find ourselves arguing a great deal about the validity of the reasons and being distracted from the issue of whether the sentence was right. From my experience, I think judges are criticised for saying too much. Most of the comment I receive is of that nature. But if the treatment of the reason for sentence in the Crown Court is not wholly acceptable, it could, as an alternative to legislation, be cured by the influence of the Court of Appeal.
THE EARL OF MANSFIELD: The noble Lord, the Lord Chief Justice, has quoted the remarks of a previous Lord Chief Justice, who was the first holder of the title I presently hold. In Campbell's The Lives of the Chief Justices of England my ancestor's advice to justices was this:
"Consider what you think justice requires and decide accordingly, but never give your reasons, for your judgment will probably be right but your reasons will certainly be wrong."
On a practical note, I would point out that the higher courts are courts of record, in that there is a shorthand note. The magistrates' courts have no such facility. If a judge of the Crown Court is to be put right it is there for all to see in the Court of Appeal ; if a magistrates' court is to be put right the Crown Court have to go into it de novo.
LORD DONALDSON OF KINGSBRIDGE: I am a little puzzled by the noble and learned Lord's statement that the higher courts always give reasons. I think that this is a very good thing. But if that is the case I cannot see why there should be any objection to incorporating this steady habit into the Bill. I think what my noble friend is saying in this Amendment is that the suggestion that it is all right to send people to prison for the first time without giving reasons is not sound. The

583
noble and learned Lord tells me—and I am happy to accept it—that the High Court always gives reasons, but I do not find anything derogatory in putting this into the Bill.
I feel inclined to support my noble friend, if only in order to learn what the reasons are. Reasons are changing over the years. Nowadays if you speak to anybody who has had anything to do with running a prison they will tell you that prison is the last place to which to send people if you can help it. They did not say that twenty years ago. Times have changed, and I think the High Court should give a lead in telling us how their minds are working. This would be helpful. My own feeling is that this is a sensible Amendment, and it should not be regarded as derogatory. It certainly is not meant to be derogatory, and am inclined to support it.
6.12 p.m.
THE LORD CHANCELLOR: Of course I agree wholeheartedly with some of the things said by the noble Baroness, Lady Wootton of Abinger. She began by saying that it was an extremely serious thing to send anybody to prison for the first time, and that it should be done only for weighty and, indeed, irresistible reasons. With that I wholeheartedly agree. I was less certain how she meant me to take her next remark ; I am not sure that I was quite able to discern its relevance. She said that every time a person goes to prison it is more likely that he or she will go there again. Of course that is true ; but I am not quite sure what inference she wanted me to draw from it ; either that prison always encourages crime—which would be a melancholy conclusion to have to draw, because the conclusion from that premise would be that we should abolish prisons—or, alternatively, that if a man has committed more than one crime he is more likely to commit another. If that was the inference which she asked me to draw I am only too happy to draw it ; but at the moment I do not see its relevance to the Amendment.
BARONESS WOOTTON OF ABINGER: I think I can possibly shorten the discussion by saying that that remark was intended merely to emphasise that this
584
is a very weighty and important decision, because when a person is sent to prison for the first time it may be starting him on a progressive career. It was merely to emphasise that point, and no other.
THE LORD CHANCELLOR: I would have accepted the noble Baroness's conclusion without the premise, as I indicated to her in my first remark. But my own view is that the conclusion that she suggests does not follow from that premise, but follows from the fact that to deprive a man of liberty is a great liberty to take with that man and does not necessarily do him any good. At any rate, I am glad to have cleared that out of the way, because it now enables me to deal with the substance of the Amendment.
The first thing to realise is that magistrates in general do not have to give reasons for anything. That is the general position. Whether the reason is that advanced by the present distinguished inheritor of the famous Mansfield title or some other reason my historical researches do not permit me to say. Magistrates do not have to give reasons, and that is why, if it is desired that they should give reasons, it is necessary to put it in an Act of Parliament. If it is not put in an Act of Parliament then the general rule will apply. The second thing about magistrates is that they do not have a shorthand writer taking a note of what they say, and therefore not merely does the clause provide, as it stands without the Amendment, that the magistrates shall give a reason but that the reason shall be specified in the warrant of commitment.
My noble and learned friend Lord Dilhorne, if he will permit me so to call him, shot a very fast ball at me asking what was the sanction if the magistrates did not do what the Act of Parliament required. I am a little hesitant to tell him, because he sat on the Woolsack before me. I would venture to make two observations. The first is that the least that would happen to them if they were found out would be a "rocket" from the Lord Chancellor. The second, which I think appears from the form in which this clause appears in the Bill, is that, at any rate after the passage of this Bill, there would be a question whether the warrant of commitment which did not

585
contain the reasons was a sufficient committal for prison. Therefore I take it that some prerogative application, either for habeas corpus or for certiorari, might lie against them. However, those two observations are made without premeditation and without malice prepense. I hope that my noble and learned friend will forgive me if I have made a mistake. If I have, I will seek to repair it by wearing sackcloth and ashes on a later occasion.
The next thing is what do you want the High Court to do? The first thing to say about that is that whereas magistrates do not have to give reasons, the High Court has to give reasons in every case. This is an essential feature of our superior courts. They not only have to give reasons why they send a man to prison, but they are expected to give reasons about the whole character of the case if they do not send him to prison. They have to give reasons for any decision they arrive at which is a reasoned decision and not simply a question of discretion, such as costs. Therefore, the Amendment, if passed, would not in fact do much good to the actual practice of the High Court.
Then the noble Lord, Lord Donaldson of Robertsbridge (I am afraid that was a Freudian slip ; I used to live near Robertsbridge. I should have said Lord Donaldson of Kingsbridge, whom I have known for most of my life), says that if the courts always do give reasons, what is the harm of asking them to do so in an Act of Parliament. If I may respectfully say so to him, there is every possible harm, because it immediately suggests that the general rule does not operate ; and if it were done sufficiently often it would deprive them of the obligation to give reasons in other cases. This is an example of the way in which you can whittle away a beneficial general rule by trying to enact it in individual instances, because you very soon get to a situation where people will doubt whether, in the absence of an enactment, the general rule will apply.
Of course, the High Court gives its reasons in a very different form. The magistrates have to state their reasons in an extremely compendious and almost formalistic way, so that they can be converted into the reasons contained in the warrant of commitment. The High Court
586
judge expatiates on the case at length, and the reasons are contained in a reasoned judgment that is reduced into a shorthand note which is available for the Court of Appeal (Criminal Division). This is much more helpful, if I may be allowed to say so, than the kind of reasons which magistrates have statutorily to give in committing a person to prison on a warrant. It probably takes a foolscap page at least (and sometimes two or three), and describes the nature of the case, the record of the prisoner, the things which the Court believes and does not believe, and the arguments of counsel on both sides (and normally, in mitigation, it is only the defence), as well as how much of it the Court accepts and how much it rejects. It is a far more valuable document than that which is required of magistrates under the statutory procedure.
The last point which the noble Baroness made was about Section 13 of the Act of 1948, which required quarter sessions to give reasons. I was in Parliament in another place during the passage of the Bill of 1948, and I was on the Standing Committee which dealt with that particular Statute. I cannot without research remember whether there was any expatiation on it, or what was the situation of quarter sessions at the time. But it was not very long before that that quarter sessions were sometimes presided over by gentlemen who were not even qualified lawyers. I remember that when I was first at the Bar a chairman of quarter sessions, who was a retired colonel, summed-up to a jury in the following immortal words, "There has been too much speechifying in this case. You will consider your verdict." Unfortunately, the jury convicted after that admirably concise summing-up and the Court of Criminal Appeal got to know about it, so that a probably guilty man got off on appeal. But you do not have to delve very far into the distant past before your realise that quarter sessions were not quite the enlightened thing that we all hope the Crown Court is to-day and will be in the future. For all these reasons, while I do not think I differ from the general philosophy of the noble Baroness, I would rather hope that the two noble and learned Lords on the Cross-Benches, who contributed so concisely and well to our discussion, will have persuaded her not to press her Amendment.
LORD DONALDSON OF KINGSBRIDGE: Before the noble and learned Lord sits down, will he explain whether these reports which he has been describing to us are available to anyone, or are they private to the Appeal Court?
THE LORD CHANCELLOR: They are private documents in this sense, that the transcript as a transcript is not generally available ; nor, I think, should it be so, because it refers to what for some people is a very painful occasion. I think there would be considerable complaint if transcripts were made readily available. But of course a court is a public place ; the Press are fully at liberty to report what is said and, indeed, members of the public are at liberty to attend. So that anything except the official transcript is extremely public.
BARONESS WOOTTON OF ABINGER: I was rather surprised when I took what was said at the beginning of this discussion in conjunction with what the noble and learned Lord the Lord Chancellor said at the end. I had not expected to find a former Lord Chancellor and the present occupant of the Wolsack apparently in flat contradiction. The noble and learned Viscount, Lord Dilhorne, said, in effect that the higher courts have very weighty reasons and give these matters very serious consideration. So weighty are their reasons that it is quite ridiculous to ask for them to be publicly exposed. The present occupant of the Woolsack said that the reasons are public, exposed in the judgments that are given.
VISCOUNT DILHORNE: I think the noble Baroness is putting into my mouth words which I did not utter. Perhaps I did not make myself clear or speak loudly enough, but I do not think I said quite what she attributed to me.
BARONESS WOOTTON OF ABINGER: I am sorry if I misunderstood the sense of what the noble and learned Viscount said, but that is certainly how it appeared to me. Let me say straight away that I am making no complaint about magistrates being
required to give reasons. I think that is entirely proper. I am rather concerned—and I hate to find myself venturing to differ from the noble and learned Lord the Lord Chief Justice—about what happened in what used to be quarter sessions. I have heard cases in quarter sessions where sentences of imprisonment have been passed, and I think that absolutely nobody present in the court could have had any idea why those sentences were imposed. To some of us they appeared to be quite staggering. The noble and learned Lord the Lord Chancellor suggested that now that quarter sessions are subsumed into the Crown Court, all will behave as beautifully as the Crown Court, or as beautifully as the High Court previously did. But these things take time, and for that reason alone I should have thought there should be a general obligation.
The other point I would make is that though all criminal courts, except juvenile courts, are open to the public, not a great many of the public can attend, and not many of the public who can go will entirely follow what is going on or understand what is being said. Therefore, a simple statement of reasons is of concern not only to the lawyers who may subsequently have to deal with appeals, not only for establishing the law, but also for the education of a wider public and for the information in ordinary language of the persons immediately concerned, who are the prisoner and his friends and relatives. I should have thought it would be a very simple matter to write in this simple obligation on all courts—not magistrates' courts in particular—quite accepting the fact that, by and large the higher courts give reasons, though, to my knowledge, there have been very considerable exceptions in what used to be quarter sessions. It would be a simple matter to write this in for everybody, and it would be most informative and helpful to the public.
6.27 p.m.
On Question, Whether the said Amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 49; Not-Contents, 69.

CONTENTS

Archibald, L.

Beswick, L.

Brockway, L.

Arran, E.

Birk, Bs. [Teller.]

Buckinghamshire, E.

Bacon, Bs.

Blyton, L.

Champion, L.

Collison, L.

Jacques, L.

Shackleton, L.

Crook, L.

Janner, L.

Shinwell, L.

Delacourt-Smith, L.

Llewelyn-Davies of Hastoe, Bs.

Slater, L.

Diamond, L.

Lloyd of Hampstead, L.

Stocks, Bs.

Donaldson of Kingsbridge, L.

Longford, E.

Summerskill, Bs.

Douglass of Cleveland, L.

McLeavy, L.

Swaythling, L.

Fiske, L.

Maelor, L.

Taylor of Mansfield, L.

Gardiner, L.

Morris of Kenwood, L.

Wells-Pestell, L.

Garnsworthy, L.

Nunburnholme, L.

White, Bs.

Hacking, L.

Ogmore, L.

Wootton of Abinger, Bs. [Teller.]

Hale, L.

Phillips, Bs.

Hall, V.

Popplewell, L.

Wright of Ashton under Lyne, L.

Henderson, L.

Royle, L.

Hoy, L.

St. Davids, V,

Wynne-Jones, L.

NOT-CONTENTS

Ailsa, M.

Elles, Bs.

Mar, E.

Ailwyn, L.

Elliot of Harwood, Bs.

Milverton, L.

Amory, V.

Emmet of Amberley, Bs.

Monck, V.

Bafour, E.

Ferrers, E.

Morris of Borth-y-Gest, L.

Belstead, L.

Fortescue, E.

Mountevans, L.

Berkeley, Bs.

Gainford, L.

Mowbray and Stourton, L. [Teller.]

Brooke of Cumnor, L.

Gowrie, E.

Brooke of Ystradfellte, Bs.

Greenway, L.

Northchurch, Bs.

Brougham and Vaux, L.

Grenfell, L.

Oakshott, L.

Clwyd, L.

Grimston of Westbury, L.

Rankeillour, L.

Coleraine, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Rockley, L.

Colville of Culross, V.

Ruthven of Freeland, Ly.

Cowley, E.

Hanworth, V.

Sandford, L.

Craigavon, V.

Howard of Glossop, L.

Sempill, Ly.

Croft, L.

Hylton-Foster, Bs.

Strange, L.

Cromartie, E.

Inchyra, L.

Tweedsmuir of Belhelvie, Bs.

Daventry, V.

Kilmany, L.

Vivian, L.

Davidson, V.

Lauderdale, E.

Wakefield of Kendal, L.

de Clifford, L.

Lothian, M.

Ward of Witley, V.

Denham, L. [Teller.]

Lucas of Chilworth, L.

Widgery, L.

Digby, L.

Macleod of Borve, Bs.

Windlesham, L.

Dilhorne, V.

Mancroft, L.

Wise, L.

Dundee, E.

Mansfield, E.

Young, Bs.

Eccles, V.

On Question, Motion agreed to.

Clause 13 agreed to.
6.35 p.m.
LORD JACQUES LORD JACQUES moved Amendment No. 11:
After Clause 13 insert the following new clause
Short sentences
" . A court shall not pass on any offender a sentence of imprisonment of not more than six months which is not suspended unless the court after considering a social inquiry report from a probation officer is of the opinion that no other method of dealing with him is appropriate."
The noble Lord said: At the present time the suspension of short sentences by a magistrates' court is mandatory. We have earlier this afternoon confirmed that if this Bill is passed into law then suspension will cease to be mandatory. The Amendment which is before your Lordships' Committee is a very modest one. It says that before a court passes a short
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sentence it shall consider a social inquiry report and be of the opinion that no other method of dealing with the offender is appropriate. That, I think, is extremely modest. I would point out that it does not say the date when the inquiry report should have been made. For example, in the case of a constant offender it could be a report which was made the previous year, or even two years previously, if the court has reason to believe that there has been no change in the circumstances. So that even with the constant offender this is not going to cause any grave inconvenience to the Probation Service or the court.
I have known of cases where offenders have had one short sentence after another, stretching over a good deal of their lifetime, and have never had the opportunity of probation ; and as far as one could see from their records, there had never been a social inquiry report. That, I think, is quite inconsistent with the wishes of Parliament, and consequently it is

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necessary for Parliament to lay down quite firmly that there should be a social inquiry report, particularly in cases of that kind. I would remind your Lordships that the Amendment does not seek that in all cases there should be a social inquiry report before sentencing. All it says is that there shall be such a report in those cases where the court is contemplating a sentence of imprisonment which is not to be suspended. There will therefore be relatively few cases. It does not include, of course, those cases in which the sentence is suspended.
As to its practicability, I would ask the noble Viscount not to look at his brief but to look at his own Second Reading speech. On this particular point it is very clear. He said:
"… I cannot see why in practice there should not be such a report before a court in almost any case of any gravity … certainly in anything that is liable to endanger somebody's liberty or livelihood ".—[OFFICIAL REPORT, 26/6/72, col. 658.]
This Amendment asks that there should be such a report in circumstances in which the offender is going to lose his liberty. I hope, therefore, that the question of practicability will not again be raised. I beg to move.
LORD JANNER: May I support this appeal to the noble Viscount? It seems to me that the point made by my noble friend is a very important one. We know of cases, particularly years ago, in which individuals have been sent to prison time after time without any real opportunity having been given for an investigation into their circumstances. I myself have had the experience of appearing for a man who has been convicted on a number of occasions, and on hearing his circumstances I have been perfectly satisfied that that person had not been properly treated in view of his background and in consequence of the life which he had led in his particular circumstances. I am pleased to say—and I am talking about 30 or 40 years ago—that when these facts were presented to the court in a fresh form (they had never been presented before in that particular way) the magistrates took what was a very exceptional view in those days: that here was a case in which they ought to put a person on probation.
There is no doubt in my mind that there are a number of people who would
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not have received the sentence they did receive if the circumstances had been presented to the court by a trained probation officer. From what the noble Viscount said on a previous Amendment, we all realise the considerable difficulties and appreciate his point about the number of persons who might be involved and the training which might have to be given to probation officers for this purpose. But here we are dealing with a much more limited number of cases. I hope that the noble Viscount will consider the points that have been made and that the Government will accept this Amendment.
LORD WELLS-PESTELL: May I say to the noble Viscount that I am not unmindful of the difficulties which would follow the acceptance of an Amendment of this kind? What it seeks to do, very clearly, is to ask magistrates not to commit anybody to prison for a period of up to six months without first of all examining the result of a social inquiry. I realise that this can impose a tremendous strain both on the court and on the Probation Service ; but the points we are trying to get home are, first, the futility of prison as many of us know it, and second, the futility of short sentences where you are doing nothing, other than keeping a prisoner incarcerated for the greater part of every day. In the majority of cases he will be in a cell with two others and will be under lock and key the whole time. Save in one or two of our prisons there is little opportunity for training to be given at all. We feel he might be better employed under supervision "on the outside".
I am not unmindful of the difficulties posed by this particular Amendment. I wonder whether the noble Viscount (who, I imagine, will not be able to accept it in its present form) would be prepared to say that when this Bill becomes enacted some sort of directive, if that is the right word, may be circulated to the courts calling attention to the spirit, if not the letter, of this proposal.
BARONESS ELLIOT OF HARWOOD:I would add my plea to that of the noble Lord. My mind goes back to many years ago when, with the advice of counsel and the Home Office, we were debating the first of the Criminal Justice Bills after the war. I think it was in 1948 or 1949.
A NOBLE LORD: It was 1948.
BARONESS ELLIOT OF HARWOOD: We were then searching for alternatives to short prison sentences. Somebody (I think it was Marjory Fry) came up with the suggestion of the detention centre in which a short sharp sentence could be served ; and that was put in the Bill. I do not believe it ever worked because there were practically no detention centres available for people in the younger age groups. I can remember all those distinguished people on the Committee years ago, searching for alternatives to short sentences. Nobody came up with anything that was original in any way except the detention centre. After making what seemed endless visits to prisons for some 20 years (I have not done so recently) and after examining many ways of dealing with people, I came to the conclusion that the imposition of short sentences was something to be avoided if possible. I know the noble Viscount feels the same. He said as much in one of his remarks. But the fact remains that there still is this possibility of people going to prison for six months—a sentence which usually ends after four months—and which as the noble Lord, Lord Wells-Pestell, said, is very expensive from the point of view of the Home Office and unsatisfactory from the point of view of the person who has received the sentence who, with any imagination and care, could probably be kept out of prison and dealt with in some other way.
Earlier this afternoon we debated the subject of the shortage of probation officers. It struck me as I listened that we are now, through social service, building up teams of people, not all of them probation officers, to deal with a variety of different types of social service. In Scotland, the probation officers are now part of the social work group team, but this may not be so in England. Far more people are now being brought into this work. I do not think it would be outside the bounds of possibility to speed up the training and recruitment of suitable people in this field of social work if we really put our backs into it and made the profession, as such, attractive and worthwhile. There are lots of people interested in this type of work.
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While it may not be possible to accept the Amendment as at present worded, I hope the noble Viscount will realise that people all over the country feel on this subject as I do and as do the Members of the Opposition. The present method is really an extraordinarily unsatisfactory way of dealing with certain types of offender ; it cannot be beyond the wit of men to-day—and I have been talking about the situation between 1948 and 1968—to find an alternative. This is particularly so since there are now more opportunities, more social workers and a whole new attitude towards social work. In my opinion it has progressed enormously. Even if the Amendment cannot be accepted as such, I hope that some form of instruction can be circulated to the courts.
BARONESS BACON: I should like to make a plea to the noble Viscount to accept this Amendment. I should like to go back to something that he said on a previous Amendment when we were discussing short sentences. When some of us were talking about conditions of those who serve short sentences he said that the prison service was not all black and there were some bright spots. I agree that there are some bright spots in the service but there are some very black ones. I think the noble Viscount would agree that those put in prison for under six months are most likely to serve their sentences in local prisons and not in a training prison ; and I think that he would also agree that the black spots in the prison system are in the local prisons, which are nothing more than overcrowded transit camps. I hope, therefore, that when considering this we shall consider not only the alternatives to prison itself but the alternative to local prisons in the form of other treatment which might be available.
LORD SOMERS: I am not learned in the law, but I wonder whether the noble Viscount would say whether, were this Amendment accepted, there would be a risk that some magistrates, if a report were not immediately available, might take the easier method of giving a longer sentence than six months in order to save the trouble of getting one.
BARONESS BIRK: I wish to support the Amendment. If the mandatory provision regarding suspended sentences had

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not gone it would be unnecessary. But since the mandatory provision is not operative I think it essential to have this Amendment in order to make sure that where there is a sentence of less than six months there is no alternative. For that reason I support the Amendment.
6.51 p.m.
VISCOUNT COLVILLE OF CULROSS: I think I may set Lord Somers's mind at rest by telling him that magistrates cannot send a person to prison for more than six months, except in one or two rare Excise cases, and matters of that sort. So I do not think that they could take that way out. I do not know where to start to answer this discussion because we have had so many helpful and useful speeches. The noble Baroness, Lady Bacon, talked about local prisons, and it is there that almost all go if they have a short sentence, except for young offenders and people sent to borstal and detention centres. Even so, all such prisons are not black, although I grant that some of them are. But has she been to Dorchester?
BARONESS BACON: Not for some time.
VISCOUNT COLVILLE OF CULROSS: I went the other day. I grant that this may be an exception. These are the prisons at the top of the priority list in the building programme for relief, and in the end one prays that there will be rebuilding. But first we must get out some of the inhabitants so that there is room to rebuild. I agree with the noble Baroness that this is the area to which priority should be given, and at the moment in the Prison Department it is being given.
My noble friend Lady Elliot of Harwood mentioned the combined social services in Scotland. South of the Border the Probation Service is a separate body and probably there would be difficulties. They are not run under the same ægis ; the social work departments are local authority based whereas probation and after-care is run by the magistrates' courts. I think that there would be certain practical difficulties about bringing in people from the local authority field to assist in the preparation of these reports ; apart from the fact that I suspect that those as learned in the subject of proba-
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tion as is the noble Lord, Lord Wells-Pestell, would probably say that different skills are involved in the preparation of probation reports and social inquiry reports, than in some of the other admirable training and techniques which enter into the work of other social workers in the local authority field. It is probably right that these reports should be prepared by trained probation officers.
The value of such reports was pointed out by the noble Lord, Lord Janner. I do not suppose that I have read as many of them as the noble Lord has, but I have read a great number. They continue to be of value. I see them in connection with parole cases ; they provide a complete history of a person and I know their value. I also know their value when deciding what sentence should be passed on a man who has appeared before a court. I should be chary of accepting the suggestion of the noble Lord, Lord Jacques, that a court could rely with safety on a report which was a year, or two years, old, or anything of that nature. It is strange how things change in the circumstances and way of life of a person. I should not be happy about justifying this Amendment as something which did not cast a vast workload on the Probation Service by the expedient of saying to a court, "If you know a chap, and you have seen him before and you have an old social inquiry report about him, that will fulfil the spirit of the legislation." I think that courts would insist on having a new and up to date social inquiry report, if for nothing else than the fact that something in his favour might previously have been missed ; some new change of circumstances about which the court was not aware, but the probation officer might find out.
I am in the same difficulty as when I was discussing an earlier Amendment. This is a class of case, as was said by the noble Baroness, Lady Birk, which is most important when the sentence is not going to be suspended, and magistrates dealing with the matter want all the guidance they can get. I do not think that a man who is being sentenced to a period of up to six months by a magistrates' court is more deserving of attention than a man who is being sentenced for the first time for any period by any court ; for instance, the type of person covered by the provisions in Clause 13.

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Or indeed—and I strongly emphasise this—a person who is liable to be sentenced to a term of imprisonment and in relation to whom the magistrates are considering a suspension of sentence. All these are cases on which we have had Amendments. One was not moved, but we discussed it with another Amendment. They are all cases where a man's liberty is liable to be taken away, and one would like to see a social inquiry report as a matter of normal practice.
What does this Amendment mean? It goes further than either of the other two for it covers slightly different ground. The noble Lord, Lord Jacques, said something about not many people being involved. But in 1970 magistrates' courts imposed sentences of immediate imprisonment of six months or less on over 18,000 people. That does not take account of sentences that were suspended let alone suspended mandatorily. It covers a substantial number of people who were not going to prison for the first time. The statistics are not broken down sufficiently to be able to tell how that works. So we should here be extending beyond even the scope of what we talked about in respect of the earlier Amendment. As I have already told the Committee, this is an approach favoured by the Government. We should like courts to have social inquiry reports when a sentence of imprisonment is considered, even a suspended sentence. I have explained the situation, the question of manpower and the diversion of resources that would be needed to make this statutory ; and also that we could do it under rules. I do not think that I can go any further than that. This is another case where in the ideal world with a full complement of probation officers it would be possible. I agree with the noble Baroness, Lady Elliot of Harwood, about that being a rewarding job and we are recruiting as hard as we can. We have set a high target which I believe we shall attain.
I think we ought to try to do this, as was said by the noble Lord, Lord Wells-Pestell, by encouragement ; by Circular. There certainly will be a Circular to follow this Bill. I have in mind one which would be rather more comprehensive and go into other topics ; it is a matter which I am discussing in the Department. If we make this statutory,
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it will be at the expense of someone else who needs just as much attention and deserves as much care and sympathy as someone who would be covered by this Amendment. I do not think it would be right to single out these people, having regard to our fairly scarce resources. I hope the general policy that I explained earlier to the Committee will be acceptable in this case too, and, desirable though this Amendment is, I hope, for the reasons I gave earlier, the noble Lord will not think that he has to press it.
LORD JACQUES: I should like to raise two points. First, as to numbers. As I understand it, the noble Viscount said there were 18,000 cases of short terms of imprisonment imposed by magistrates' courts.
VISCOUNT COLVILLE OF CULROSS: Not suspended ; those were instant.
LORD JACQUES: This Amendment is dealing only with not suspended cases. I would guess that in 80 per cent. of those cases there would be a social inquiry report already. I should think that the number where there was not a social inquiry report would be about 20 per cent. In that case it would add only 3,600 cases. I do not think that is a colossal number or a very big price to pay for what we should get. We should get a social inquiry report at the point where it is essential. There is no other point where a social inquiry report is more necessary than before sending a man to prison. I think that this price would be worth paying.
VISCOUNT COLVILLE OF CULROSS: If I may intervene for a moment, the noble Lord will remember the rather regrettable statistics I produced earlier, and he will also know that as between men and women it is the men preponderantly who are the offenders. It was the adult men in the magistrates' courts where we were down at the very low end of the scale in the number of cases where there was a social inquiry report. I do not think, alas!, that his assumption is justifiable, and I believe that the number of extra social inquiry reports would be a good deal larger than he has said.
LORD JACQUES: I do not think there would be any profit in pursuing this point, because neither of us can get at

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the figure with the information available. It is also clear that the Amendment will not be accepted and that it would be lost in a Division. I therefore beg to withdraw the Amendment.
Amendment, by leave, withdrawn.
House resumed.

ELECTRICITY SUPPLY (NORTHERN IRELAND) ORDER 1972
7.2 p.m.
THE MINISTER OF STATE FOR NORTHERN IRELAND (LORD WINDLESHAM): My Lords, I beg to move that the Electricity Supply (Northern Ireland) Order 1972, a draft of which was laid before the House on June 15, 1972, be approved. The purpose of this Order is to provide for a reorganisation of the electricity supply industry in Northern Ireland. A Bill to this effect had been presented to the Northern Ireland Parliament and had completed all its stages in the Lower House before that Parliament was prorogued.
Electricity in Northern Ireland is at present supplied by three separate bodies: the Electricity Board for Northern Ireland (E.B.N.I.), and two municipal electricity undertakings which serve Belfast and Londonderry respectively. In addition, the Northern Ireland Joint Electricity Authority has a general supervisory and planning function. The present system, which has a total installed capacity of 1,200 megawatts is, of course, small in comparison with the size of the industry in Great Britain. But it plays a most significant role in the economic structure of the Province, where the increase in demand for electricity is running at between 9 and 10 per cent. a year. To meet this demand, and to provide for future development, the industry is in the process of increasing its capacity by 75 per cent. between 1972 and 1976, and has plans for further development which should increase generating capacity by 175 per cent. in the next decade.
In consequence of this expansion programme and the increasing importance of electricity to the economic life of the community, the previous Government of Northern Ireland decided that a new
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unified organisation, to be called the Northern Ireland Electricity Service, should be created to take over all the functions of the present undertakings which, under this Order, will be dissolved. The Order in Council provides for the setting up of a new body, whose chief advantage over its predecessors will be to provide a strong centralised organisation for the long-term planning of all aspects of the industry, as well as the generation, transmission and distribution of electricity throughout Northern Ireland, while still providing an efficient and economical service to the consumer. The new Northern Ireland Electricity Service will control the general running of its affairs, subject to the reservation of certain powers to the Ministry of Commerce, and that in the long term it must recover its costs through consumer sales. The electricity supply industry is of course capital intensive, and the Order provides for a borrowing limit of £350 million, which may be raised by Order to £500 million.
This reorganisation inevitably involves large numbers of staff at present employed by the industry. Provision is made to protect the interests of all employees, and to provide compensation should they find themselves in a less favourable position because of the transfer. I understand it is not likely that there will be any redundancies as an immediate effect of this order ; but there should in time be savings in staff which can be offset by normal wastage as administrative services are rationalised. Before ending, I believe your Lordships would want me to place on record the Government's appreciation of the steadfastness shown by the staff of the present electricity undertakings in Northern Ireland. They have been faced with many difficulties and some danger in the past three years in particular, and it is only right that the contribution of the staff at all levels should be acknowledged now that the industry is taking on a new shape. My Lords, I beg to move.
Moved, That the Draft Electricity Supply (Northern Ireland) Order 1972, laid before the House on June 15 be approved.—(Lord Windlesham.)
7.8 p.m.
LORD SHACKLETON: My Lords, the noble Lord, Lord Windlesham, used the

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words just now "Before ending": I thought he had hardly begun. The last thing that I, or indeed any noble Lord, would wish to do would be to harass the noble Lord, of all people, with the responsibilities that he carries at the moment. But I am bound to make one or two remarks on the procedure, and they are directed rather to Parliament than to the Government. Here we have a Bill—there is no other word for it—which has admittedly passed through Stormont. I appreciate that the Government have not had time to set up proper procedures for dealing with these matters ; nor is it their fault that at a moment which depends a great deal on inter-Party agreement and discussion it has not been possible to make some sort of institutional arrangement. Perhaps it will be convenient for me to make my remarks on this aspect in relation to this Order, and I need not repeat them later.
It is clearly not possible for the Special Orders Committee to discuss the merits of what amounts to legislation: indeed, it would be outside their terms of reference, although their terms of reference allow them, having satisfied themselves on the vires of a particular Order, to comment on something that is unusual. I am wondering whether it might not be appropriate for the Special Orders Committee, until such time as we have proper machinery in Parliament for dealing with these Orders, at least to indicate in respect of these Orders whether one is dealing with a short Order of the kind we are familiar with, or with what amounts really to an Act of Parliament. Later on we have the equivalent of an Act of Parliament running to 117 clauses. I think your Lordships' House ought to have attention drawn to this matter. I do not want to do anything other than speed the passage of legislation. The Bill has passed through Stormont, and I noticed that in another place there was criticism even by a Member of Stormont of the limitations of the Stormont procedure. I am wondering again whether the Government could consider, when we have legislation of this kind—something which is essentially an Act of Parliament—the extent to which the pattern follows very closely the sort of pattern we follow in the United Kingdom.
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Looking at the present Order, I note that it bears quite a superficial resemblance (though it is of a different order, because it is an amalgamation) to some of the British legislation. My experience of Northern Irish legislation is that on the whole they have always sought to follow closely the legislation of the United Kingdom. To take one example of the general powers of the Ministry to give directions to a Service and obtain information, paragraph (2) of Article 11 says:
"If it appears to the Ministry that there is a defect in the general plans or arrangement, of the Service for performing its functions, the Ministry may, after consultation with the Service"—
and the word "Service" is itself rather an awkward word, because although there are what I may call "Northern Irish" reasons for calling it a Service, the paragraph goes on to say that the "Ministry" (not "Minister", which is more familiar to us),
"may give directions of a general character for remedying the defect."
It is very difficult to see how one can give directions of a general character for remedying what is presumably a particular defect.
I should like to ask the noble Lord (I will not press him closely if he cannot give me an answer) how closely this follows the powers of the Minister with regard to nationalised electricity in this country. Furthermore, I notice that a report is to be made to the Minister on the workings of the Service because it says:
"The Minister shall cause a copy of every such report to be laid before Parliament."
Here again I take it that this Order is identical in its wording to the Bill which passed through Stormont. For clearly they did not wish to start playing around and redrafting it to suit the new situation. One wonders, however, which Parliament is meant. Presumably, it must mean the United Kingdom Parliament and the "Minister" in fact is the Secretary of State for Northern Ireland.
There are a number of further points that I could make. There was a debate in another place when a large number of questions were asked. I am bound to say that Mr. David Howell contrived to give more answers in a short time than

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is usually possible for a Minister. I suspect that there are a lot of points, and it may be that there are noble Lords who know something about Northern Irish electricity: I confess that I know little. Therefore it may be that the noble Lord—and I know that he is very willing to consult the convenience of the House—will perhaps bear in mind some of the observations I made at the beginning, which are not intended as a criticism of him personally or of the Government. I would ask him to bear in mind particularly that the Special Orders Committee could perhaps consider giving just a little more information as to the nature of the Order. This of course may be a matter for the Chairman of Committees. At the moment I take it there is clearly no question of vires, since the Government, with our approval, took almost unlimited powers for doing things by Order ; and this is in accordance with that.
I notice that in another place they are proposing to set up a Northern Irish Select Committee to deal with these matters and I know that the noble Lord himself is anxious to find the appropriate machinery for Parliament. While it is right for us to do as we are doing now and to speed this Order on the way, none the less I am sure we shall be failing in our duty if we do not between us manage to achieve a better procedure perhaps by the next Session.
LORD WADE: My Lords, I do not know very much about Northern Irish electricity, but at the time of the last batch of Orders I raised a point concerning precedent. The noble Lord was kind enough to write to me and I am much obliged to him for doing so. My difficulty to-night is this: I realise that one must exercise restraint and not abuse the generosity of this House, but there are one or two points which are of a rather general nature. It would seem to me that perhaps the most helpful way of raising these questions would be on the draft Appropriation (No. 2) Order, as that seems to cover a number of related subjects. If I may, I will defer making any comments until we reach that Order. I hope that that may be found helpful.
7.18 p.m.
LORD WINDLESHAM: My Lords, in reply to the noble Lord, Lord Wade, what
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he suggests seems to me a good way of conducting these debates. We have four Orders in Council on the Order Paper which deal with totally diverse subjects. However, a number of the points which have been raised earlier and which the noble Lord, Lord Shackleton, has raised again now, relate to the way in which Parliament is asked to approve these Orders in Council. Therefore if any observation might seem more relevant to one Order than to another, I am sure our procedure is sufficiently flexible for us to be able to take account of it.
I have given a great deal of thought, as has the Secretary of State in another place, to the question of just how Parliament, in this exceptional situation, can exercise proper scrutiny over Northern Ireland Orders in Council. As the noble Lord, Lord Shackleton, correctly says, many of these are in fact substantial Bills. Indeed, by the end of this Session most of what would have been the legislative programme of the Northern Ireland Parliament will be brought into effect in this way. As it happens, it is a heavy legislative programme because a lot of the consequential legislation following on the reorganisation of local government was included in this particular Session. But the difficulty, and it really is a fundamental difficulty, in which we find ourselves is that in the Northern Ireland (Temporary Provisions) Act, which Parliament passed just before Easter, it was agreed that the only way of dealing with this situation was by way of Orders in Council requiring the Affirmative Resolution of both Houses.
Having said that, I would point out that it is really not possible to subject Orders in Council to the sort of procedures which have been evolved over many years for the discussion and amendment of legislation. The two are quite different. For a start, the question of the timetable is an extraordinarily tricky one. Legislation has to start in one or other House of Parliament ; that House has to finish with it, and send it back again to the other House of Parliament. With Orders in Council the timing is left open. One House may or may not consider a draft Order before the other House ; thus, Members may or may not be able to take into account points of view ex-expressed elsewhere.

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What we have tried to do—and through the usual channels I have made this known to the Parties opposite—is to try and import as many democratic features as possible into this exceptional legislative process. This applies particularly to consultation in Northern Ireland with interested parties, and the consideration given to the views of those who express an interest. We are now getting to the stage where Bills had not previously been published as such. Therefore a draft Order in Council is published together with an explanatory memorandum. That explanatory memorandum is sent to interested parties ; to Members of the House of Commons in Northern Ireland and of the Senate. It is available to the public through Her Majesty's Stationery Office in Belfast. There is a period for consultation and consideration of views. The Order in draft then goes before the Northern Ireland Commission. I have taken part in several of these sessions—the major ones so far have concerned education, health and planning. I can assure noble Lords that there is a thorough and protracted scrutiny given to draft Orders by the members of the Northern Ireland Commission.
I readily accept that this is a rather unusual form of public control, but it has some advantages. Ministers and senior officials can be present and take part—officials as well as Ministers—in the discussion. We learn new things all the time. It is not, of course, an elected body—this is the main objection to the Commission—but an appointed body ; but, on the other hand, it represents the views of both communities which, for whatever reason, Stormont was not able to do for the previous nine months.
LORD SHACKLETON: My Lords, before the noble Lord leaves this fascinating account of this new institution, I take it that its proceedings are not open to the public. I am not proposing at this moment that they should be ; it would be interesting at some time to know how it operates—whether people can put forward Motions or Amendments. But here again, I accept that the noble Lord and his colleagues are trying to create a new institution and make it very effective. The other point is this. Has this particular Order been through this institution? I take it that it has not, because it had previously passed through Stormont.
LORD WINDLESHAM: My Lords, that is correct. Those Orders which have been through Stormont, or had completed a substantial part of their progress at Stormont, were not referred to the Commission. The draft Education and Libraries Order, which is a long one, had only received a Second Reading at Stormont when a number of points were raised. It was thus referred to the Commission and there was a long discussion on it. I should be happy to give some further information at a later date to the House on the workings of the Northern Ireland Commission. I do not think I should delay your Lordships at the moment. I thought it worth giving a fairly short account of what the procedures are, because as we have often said this is an exceptional procedure.
The stage at which we are to-day is therefore only the tip of the iceberg. A great deal of consultation, debate, consideration and so on, has taken place. When the Orders come to London they are scrutinised by the Select Committee on Statutory Instruments in another place, and by the Special Orders Committee in your Lordships' House. As the noble Lord the Leader of the Opposition said, it is not for the Government but for the Chairman of the Special Orders Committee, perhaps after wider discussion, to give some thought to the proposal which has been put forward which I know has support from some other quarters as well. Finally, the Orders are submitted for the Affirmative Resolution of both Houses. In the next Session the situation will be rather different: new proposals may come forward from Her Majesty's Government which are not Stormont proposals. The Secretary of State's mind is open on this matter, as is mine and that of the noble Earl the Leader of the House, as to what we should do in this House.
If I may deal now with one or two of the smaller points that the noble Lord, Lord Shackleton raised, on Article 11, Section 2, the Article relating to the giving of directions by the Ministry of Commerce, I can confirm that the power is similar to that contained in the comparable legislation, that is the 1957 Act, in Great Britain. The reference to Parliament is to the Parliament of Northern Ireland, not to Westminster. In all these Orders references to Parliament mean

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the Parliament of Northern Ireland which is prorogued. The reason is that these are permanent enactments. We would end up in a very confused state if in legislation passed after Easter of this year "Parliament" meant the Westminster Parliament, whereas in all the rest of Stormont legislation "Parliament" meant the Parliament of Northern Ireland. For the purposes of consistency, therefore, and because these are permanent enactments, "Parliament" refers to the Parliament of Northern Ireland. This was pointed out by the Special Orders Committee when they considered some of the earlier Northern Ireland Orders which were approved recently. I think that I have covered most of the points raised in this short debate, and I hope that I have not done so at too great a length.

COUNTY COURTS (ADDITIONAL SITTINGS) (NORTHERN IRELAND) ORDER 1972
7.27 p.m.
LORD WINDLESHAM: My Lords, I beg to move the Second Order standing in my name on the Order Paper. I think I can do so very briefly as this is a short Order. As those of your Lordships who have a copy in front of you will see, it is different in kind from the previous Order. It is, alas! stating the obvious to say that during the present conflict in Northern Ireland there has been a great increase in the number of persons appearing before the courts charged with indictable offences. I have some figures here should any noble Lords want them. This has placed a tremendous burden on the courts, and whilst various other measures have been taken in an attempt to meet this situation it is now necessary that additional sittings of the county court be constituted during what, in more normal circumstances, would be the summer vacation. That, in brief, is the purpose of this Order. I beg to move.
Moved, That the County Courts (Additional Sittings) (Northern Ireland) Order 1972, be approved.—(Lord Windlesham.)
LORD SHACKLETON: My Lords, the advantage of taking several Orders together is that I can come back on the Minister's reply on the previous matter.
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He knows that I am not seeking to harass him. I take it that this is an Order which would not be called a legislative Order and that this could have been made as an Order under Northern Irish legislation. I realise that it is actually made under the Northern Ireland (Temporary Provisions) Act. At any rate, it is a genuine, bona-fide Order. I will therefore reserve my remarks in relation to the Acts until I come to the next Act of Parliament. Being unfamiliar with Northern Ireland, I was under the impression that county courts did not deal with criminal matters. Perhaps something has happened in England that I do not know about ; perhaps this has always been the case in Northern Ireland. I will sit down in a moment and maybe the noble Lord, Lord Wade, will be able to answer this point. I can only express regret, which everybody shares, that this Order should be necessary.
LORD WADE: My Lords, I was not going to speak on this Motion ; but, in reply to the noble Lord, Lord Shackleton, I must say that I think something has happened in England.
LORD WINDLESHAM: My Lords, not only has something happened in England but the jurisdiction is quite different in Northern Ireland. Unlike what has traditionally been the situation in this country, where county court jurisdiction is civil and not criminal, the county courts in Ireland have a criminal jurisdiction. Under Section 8 of the Criminal Law Act (Northern Ireland) 1969, a county court can try every offence except murder ; conspiring, inciting or attempting to commit murder ; and a small number of crimes such as offences against electoral law ; or treason. Therefore, what we are talking about are the courts which take a large part of the proceedings resulting from indictable crime in Northern Ireland. In addition there are the Belfast City Commission and the Assizes, and these Courts, too, have been meeting for exceptional periods. But they come under the control of the Lord Chief Justice. These higher Courts have been more or less in continuous session, I believe, for about six months. But to extend their sittings does not require an Order from the Secretary of State. In the case of the county courts an order is required.

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As the noble Lord, Lord Shackleton, surmised this is an Order in Council of an emergency nature. It was no part of the Government of Northern Ireland's legislative programme ; the situation could not have been forecast at that time. It is merely necessary, alas, due to circumstances, that the courts should sit in August and September.
LORD SHACKLETON: My Lords, before the noble Lord sits down, may I say that I am not sure that his answer was entirely on all fours with what the noble Lord, Lord Wade, said? Perhaps it was unfair to ask him to explain to me. I am well aware, of course, that there has been a major change here. At any rate, I gather that in Northern Ireland the county courts, unlike the county courts in the past in England, have always dealt with this matter.

APPROPRIATION (No. 2) (NORTHERN IRELAND) ORDER 1972
7.32 p.m.
LORD WINDLESHAM LORD WINDLESHAM rose to move, That the Draft Appropriation (No. 2) (Northern Ireland) Order 1972, laid before the House on June 30, be approved. The noble Lord said: My Lords, I beg to move the third Order standing in my name on the Order Paper. This Order continues the financial procedure for expenditure by Northern Ireland Departments in 1972–73. It is laid before Parliament in draft and it is the intention that the Order, if approved by both Houses of Parliament, it should come into operation as soon as it has been made by Her Majesty in Council. This Order, in draft, was debated at some length in another place last week, and it would I think be in accordance with your Lordships' usual practice regarding the handling of financial business if I explained it fairly briefly.
The sequence of events concerning financial arrangements in Northern Ireland is that in February of this year Estimates were drawn up and authorised to be printed. These amounted to some £417, 943, 300. Later, in February, the House of Commons at Stormont authorised by Resolution a Vote on Account covering roughly one-third of this amount
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to enable payments to be made in the first four months of the year. This was followed by a Consolidated Fund Act passed on March 23, 1972. Detailed estimates were then published in the normal way.
Prorogation of the Northern Ireland Parliament then occurred and altered the annual procedure as regards appropriation. The earlier stages up to and including the Consolidated Fund Act had been completed in the normal way, but the procedure as regards appropriation had not. Although the Consolidated Fund Act therefore has authorised the issue of money out of the Consolidated Fund, it did not appropriate monies to particular services. Instead of one appropriation Act passed at Stormont in June of this year, it has been necessary to bring two Orders in Council before Parliament at Westminster concerning the appropriation of monies for services in Northern Ireland. For certain technical reasons following Prorogation, the first Order was laid under the urgent procedure and was approved by your Lordships on June 12. The Appropriation (No. 1) Order, the earlier one, provided for the first four months of the year appropriating a sum of approximately £140 million which had been the subject of the Stormont Vote on account in February.
The Appropriation Order (No. 2), now before your Lordships, covers another £250 million, thus providing for the remainder of the Estimates which have been reduced by £26·3 million for capital borrowings and minor expenditure on ministerial salaries not now required. Autumn and spring supplementaries will be needed this year, as in any normal year, although possibly for greater amounts because of the situation in Northern Ireland. These will in due course be the subject of one or more further Appropriation Orders. I beg to move.
Moved, That the Draft Appropriation (No. 2) (Northern Ireland) Order 1972, laid before the House on June 30, be approved.—(Lord Windlesham.)
7.37 p.m.
LORD SHACKLETON: My Lords, I understand that the noble Lord, Lord Wade, has a number of points to raise, and therefore in the interest of time I

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shall confine my remarks. I am persuaded all the more to confine my remarks because this matter was debated fully in another place. What is slightly unfortunate is that the Minister's replies continued in column 2139 of the OFFICIAL REPORT of the other place for Friday, July 14, because it was after four o'clock, and the text is not yet available. I sought, rather late in the day, to get what I believe is technically called the "Over-matter", but I was advised that there was not a copy anywhere in the building. Certainly in saying this I intend no reflection to our Library, because I asked for it only five minutes before the debate. None the less, this is another aspect—perhaps it was just a misfortune ; it is very unusual for another place to sit after four o'clock on a Friday.
I am not quite sure, again, what is the status of this Order. If it is equivalent to a Money Appropriation Order, one clearly would not wish to discuss whether the money should be appropriated or not ; but one does discuss the subjects for which it is appropriated. This document is comparable to some of the other various lengthy documents (I have even forgotten what they are called, and the noble Lord, Lord Wade, may be able to help me again here) we dealt with in another place and here, whether Estimates or the various Departmental Accounts. It is usual to go through them, but it is futile for me to attempt to do so on this occasion. I do not know enough about the merits and, on the whole, I think that this type of matter will be more appropriate to the Commons, although occasionally we have a general debate on Northern Ireland and these particular matters might then be raised. But I am all for the noble Lord, Lord Wade, taking advantage of this situation, within reason.
7.39 p.m.
LORD WADE: My Lords, I have no intention of "taking advantage", if that means taking unfair advantage of the situation. The subject is becoming almost esoteric. But it leads me to say that there is a certain air of unreality in this whole debate, because we are all very much conscious of the bloody conflict that is continuing in Northern Ireland. This is brought home to me very much by the report I have just read that the latest three casualties in the
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Armed Forces are three members of the Duke of Wellington's Regiment, which is recruited in the West Riding of Yorkshire and therefore of concern to me. I can understand those who say, "Well, how long is this going on ; and isn't time running out?"
With reference to that I should like to ask a question, which I hope is not going too wide of the Order. What is the relationship between the legislation and the activities of the Advisory Commission? Those who have agreed to serve on the Advisory Commission have, by doing so, indicated their willingness to support Mr. Whitelaw's policy, and I welcome that ; but I am not quite sure whether they are consulted on matters requiring legislation. Of course it is the Westminster Parliament that has authority, and there may not be very much advice required where Orders such as these are already in the pipeline. But there will be new proposals coming forward, and new reforms, and it may be that the Commission's advice will be helpful.
A particular point that this leads me to mention concerns education. Like the noble Lord, Lord Shackleton, I am not quite sure how far we can go in discussing an Order, but education is one of the subjects referred to in this particular Order, and I think that in another place the question was raised as to whether it was desirable that there should continue to be a separation of children according to their religious background ; whether some progress should not be made towards bringing children together in one school, instead of separating them according to religion. I should like to know whether anything can be done in that regard and, if so, whether the Advisory Commission will be asked to consider such a matter. In the future, when new proposals come forward, it will be helpful to the Westminster Parliament to know what advice has been offered by the Advisory Commission. If the noble Lord is able to deal with these points I shall appreciate it.
7.43 p.m.
BARONESS BACON: My Lords, I had not intended to speak in this debate because I have spoken on several occasions during Northern Ireland debates and, like many other noble Lords, I have

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almost come to the point when I ask myself, "What is the use?", because as soon as we have a debate here it seems to be so unreal. Like the noble Lord, Lord Wade, I come from the West Riding of Yorkshire, from where the troops upon whom the present casualties are being inflicted have come. However, I feel I must say something about this Order. My noble friend Lord Shackleton said he was not quite sure whether the £250 million was an Estimate or a grant, or what it was. Whatever it is, my Lords, it is an awful lot of money. It is £250 million which is to be spent in Northern Ireland, in addition to a great deal more, and I feel that I cannot let this occasion pass without saying how dreadful it is that as we in this House and in another place are providing all this money it is being bombed away in millions of pounds almost as soon as we are granting it.
The noble Lord, Lord Wade, mentioned the West Riding. I remember coming to London from my West Riding town a few weeks ago, during the rail "go-slow", and speaking to an elderly porter whom I have known for some time. I said, "Is there going to he a train to-day?" He said "Yes, I think so, but I read in the paper this morning that we are giving millions of pounds more to Northern Ireland. All we want is £3 million or £4 million more for an honest day's wage, and we are not doing any bombing." I make these remarks—and I am conscious of the fact that we must not in any way intensify the situation—only to emphasise that in this country at the moment there is a feeling about Northern Ireland, and I wish to make a plea—which in the present situation will probably go unheard—to the people of Northern Ireland that they should realise that we are making these great grants and that it is all fruitless and a waste of time if there is at the same time such terrible destruction in Northern Ireland.
LORD WINDLESHAM: My Lords, the last two speakers have referred to their close connections with Yorkshire and with the Duke of Wellington's Regiment, which has served so admirably in Northern Ireland. I will certainly arrange to pass on their comments to the Commanding Officer of the Duke of Wellington's Regiment. I know that he will value what has been said in this House.
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Whether or not it is reported outside, it will certainly be reported to him, and to the G.O.C., by myself.
What we find ourselves doing almost every day in Northern Ireland, and certainly every week—indeed we had this exact discussion at the Commission last week—is to remember that if, because of the nature of the security situation and because of the crisis atmosphere in which too many people live, we allow ourselves to be deflected from the proper administration of the Province, which includes planning for the future, then we give the extremists one of the things they have been trying to achieve. They have been trying to bring normal administration to a standstill. That is one of their aims. Therefore if we were to say, even to ourselves, "It is all too difficult ; we cannot go on considering the future of the schools, or of planning or of local government ; all this should be put on one side it really would be a defeatist thing to do. Moreover, I think it would be something that Parliament here would not wish us to do. So we have to try to ride both horses at once: maintaining the standards of public administration, while at the same time paying full and proper regard to the immediate and urgent requirements of the day-to-day security situation.
LORD WADE: My Lords, I hope the noble Lord will appreciate that in my remarks I was not putting forward the defeatist attitude to which he has referred.
LORD WINDLESHAM: My Lords, I quite understand that, but I thought I should explain the dilemma we are in. In a sense it is unreal ; but, on the other hand, not to proceed in this way would be the less desirable of the two alternatives.
The noble Lord, Lord Wade, asked about the draft Education and Libraries Order and whether it had been considered by the Northern Ireland Advisory Commission. The answer is that it has been considered at some length, indeed at two meetings by the Northern Ireland Advisory Commission, and the subject of integrated education was discussed. This is a large and complicated question, going back over many years, and it is one that perhaps we might

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debate when the draft Order in Council comes before your Lordships.
As to the point raised by the noble Baroness, Lady Bacon, I believe that I know what was really in the forefront of her mind. But I should point out that the Estimates of £417 million were prepared in the early part of this year, before Prorogation ; and, as I explained in my introductory speech, £140 million of that, roughly speaking in order to cover the first four months of the year, was appropriated to specific services in the Appropriation No. 1 Order. The remaining £250 million is appropriated in this second Order. There may be a need for a further Order or Orders later in the year. But this one is on the basis of the earlier Estimates.

SUPERANNUATION (NORTHERN IRELAND) ORDER 1972
7.49 p.m.
LORD WINDLESHAM: My Lords, I beg to move that the Draft Superannuation (Northern Ireland) Order 1972, laid before the House on July 6, be approved. This Order deals with the superannuation schemes of various categories of officials employed in the public sector in Northern Ireland. It is the complementary measure regarding Northern Ireland services to the Superannuation Act 1972, which some noble Lords may remember considering some months ago. In moving the Second Reading of that Bill my noble friend the Leader of the House outlined its main purpose, which he described as being to overhaul the legislative framework of the public sector pensions schemes. This is exactly the purpose of the draft Order now before the House. Indeed, the Order follows closely the text of the Superannuation Bill (Northern Ireland) which was introduced to complement the Great Britain legislation and which was given an unopposed Second Reading on March 22, 1972, in the House of Commons at Stormont before Prorogation.
The main bulk of the Order—that is, Articles 3 to 14—corresponds to the first twelve sections of the Superannuation Act, 1972. The provisions which noble Lords are asked to approve will allow
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the Ministry of Finance to make pension schemes for the Northern Ireland Civil Service in the form of administrative documents. This will obviate the necessity of changes, even minor ones, in pension schemes having to come before Parliament. Bearing in mind the various revisions which will arise from proposals contained in the Fulton Report and from the future development of the State pension scheme as outlined in the Command Paper of last autumn, Strategy for Pensions, (Cmd. 4755) I believe that noble Lords will welcome the greater flexibility which this Order will allow for the Civil Service scheme. In this connection, it is planned to introduce, subject to the agreement of the Northern Ireland Whitley Council, the same improvements in the Civil Service pension scheme, and with the same commencement dates, June 1, 1972, as have been agreed for the United Kingdom service.
The other public sector schemes covered by the Order are those for local government employees, teachers and persons engaged in the health services. In these cases the draft Order provides for their superannuation schemes to be set out in regulations made by the appropriate Government Department. Again, the detailed superannuation benefits and the qualifying conditions relating to contributions and pensions for each of the Northern Ireland schemes correspond generally to the equivalent scheme in Great Britain.
In the remaining Articles of the Order the main provision is to be found in Article 20. This means that the pensions of public sector retired officials will be reviewed every year instead of every two years as at present. This will be a review as of right, not an act of discretion by Government, and will I am sure be as welcome to pensioners in Northern Ireland as it has been in the rest of the United Kingdom. My Lords, I beg to move.
Moved, That the Draft Superannuation (Northern Ireland) Order, 1972, laid before the House on July 6, be approved.—(Lord Windlesham.)
7.53 p.m.
LORD SHACKLETON: My Lords, we are here considering another Order relating to Northern Ireland. I was about to say that it did not particularly look

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like an Order ; it is more like a Bill, even though it is printed in a somewhat different style. In any event, I am grateful to the noble Lord, Lord Windlesham, for explaining its purpose. Once again we are in some difficulty. I understand that this matter was debated in another place on Friday and the OFFICIAL REPORT of those deliberations is not yet available to us. This makes matters particularly difficult for us because although a number of noble Lords live in Northern Ireland, we do not have anything like the background of so many Members of another place who actually represent Northern Irish constituencies, all of which strengthens the case for another place receiving Orders of this kind before us—that is, unless there is some desperate urgency, when the Government know that they can rely on our co-operation.
As I listened to the noble Lord's explanation of the Order I felt some uncertainty. For example, he said that these proposals corresponded "generally" to the British legislation. As the noble Lord will appreciate, I know the British legislation well and have supported it. I was not certain about his reference to Strategy for Pensions, which I thought related to the general scheme. Arising from my uncertainty, there are two points which I should like the noble Lord to answer, though if he is not able to answer them to-night I will not press him.
First, I notice that in the Order there is power for the Ministry of Development, the Ministry of Education and the Ministry of Health and Social Services—the same can no doubt be said of other Ministries—to make Orders ; but these various Departments are all united under the noble Lord, Lord Windlesham, and as he has so much to do I will not delay him by asking too many detailed questions. Indeed, it may be more efficient to have one person doing the lot and I have no doubt that the noble Lord will make a good administrator. I should be interested to know whether there are any particular pension provisions in Northern Ireland which do not correspond to our legislation. If so, are they better or inferior?
Secondly, I should be interested to know whether there is any communication between the Whitley organisations in Northern Ireland and the British
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Whitley Council. It may be that during this phase there is co-ordination in this matter, which would be desirable because the trade union side of the Whitley Council in this country is highly responsible, constructive and formed of wise people. Perhaps a little help could be given, if it is needed, at this tragic time in Northern Ireland.
I have not referred to conditions in Northern Ireland and I would certainly not complain about others—including my noble friend Baroness Bacon, the noble Lord, Lord Wade, and my noble friend on the Front Bench with me, all of whom are much concerned with this issue—commenting on the subject ; but I am just beginning to feel that I can hardly go on making expressions of sympathy, and I expect that the noble Lord, Lord Windlesham, feels the same. However, to ensure that there is no doubt, may I simply say that the Secretary of State for Northern Ireland has my absolute and full support and loyalty—if I were a praying man he would also have my prayers—in the awful responsibility which he is carrying as well any one could.
LORD WADE: My Lords, relating to the superannuation schemes referred to in the Order, may I ask whether the benefits will be transferable when an employee moves from Northern Ireland to this country or vice versa?
LORD PEDDIE: My Lords, the noble Lord, Lord Windlesham, said that these pensions would be reviewed annually, and I take it that this is in line with regulations applicable to English pensions. On what basis will this review take place? Will it be based on changes in the cost of living or on other considerations? I am anxious to know because the noble Lord's answer is likely to be applicable to wages and rates of pay on the English side.
LORD WINDLESHAM: My Lords, the general principle is that pensions, salaries and conditions of service of the Northern Ireland Civil Service should be comparable with those of the rest of the United Kingdom. A close liaison is maintained by the official side of the Northern Ireland Whitley Council and the United Kingdom Whitley Council. I understand that when negotiations have been concluded in Great Britain it is normal for discussions to take place in Northern

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Ireland, and unless there are reasons why the same provisions should not apply the general practice is that they do. The answer to the question asked by the noble Lord, Lord Wade, about the transferability of benefits is that benefits will be transferable.
My Lords, that probably answers the detailed questions put to me, except that by the noble Lord, Lord Shackleton, who asked whether there were any particular points where provisions for pensions differ between Northern Ireland and the rest of the United Kingdom. I know how familiar he is with this whole subject and what a great contribution he has made to the cause of improving pensions and conditions of service for civil servants. Indeed, civil servants in Northern Ireland will have benefited from the work he has done in his time at the Civil Service Department. But the general picture is as I have described it, and what I should like to do is to write to him after some detailed inquiries have been made. I understand that there are one or two marginal cases where differences may arise. There is also a substantial document headed "Explanation of differences between the draft Order and the Superannuation Act 1972 to which attention was drawn by the Civil Service Department." If the noble Lord would like to have a copy I should be happy to send one to him. But as it is just on eight o'clock it probably would not be to the convenience of the House if I attempted to summarise the contents of the document now.
LORD SHACKLETON: My Lords, before the noble Lord sits down, perhaps he would confirm—I would not press him for any more information—what, I believe, is the answer to the question put by my noble friend Lord Peddie, that in fact the system in Northern Ireland is the same as in England ; namely, that it is designed to provide inflation-proofing. It is linked therefore entirely to that aspect.

CRIMINAL JUSTICE BILL
8.2 p.m.
House again in Committee.
THE EARL OF MANSFIELD THE EARL OF MANSFIELD moved Amendment No. 12:
After Clause 13 insert the following new clause:
Borstal training
(" .—(1) Without prejudice to any other enactment prohibiting or restricting the imposition of imprisonment on persons of any age, a sentence or sentences of imprisonment amounting to more than a period of six months shall not be passed by any court on a person within the limits of age which qualify for a sentence of borstal training unless the court is of the opinion that a sentence of borstal training would be ineffective in all the circumstances of the case and no other method of dealing with him is appropriate.
(2) Where a magistrates court imposes a sentence or sentences of imprisonment amounting to more than six months on any such person as is mentioned in subsection (1) of this section the court shall state the reason for its opinion that no other method of dealing with him is appropriate and cause that reason to be specified in the warrant of commitment and to be entered in the register.
(3)Section 3 of the Criminal Justice Act 1961 shall cease to have effect.")
The noble Lord said: This debate, and I shall try and keep it as short as possible, will, I anticipate, cause a direct conflict between my noble friend Lord Colville of Culross, who speaks for the Government, and what I hope will be a goodly number of noble Lords from both sides of these benches. I say that because I see that at an earlier stage an Amendment was at least tabled by the noble Lord, Lord Donaldson of Kingsbridge, and subscribed to by the noble Baroness, Lady Birk, but in the Marshalled List it appears to have got lost. I hope, however, as the criminal classes say, that neither of those two noble people have lost their bottle and that they will therefore speak up for my Amendment.
From time to time, occasions occur when the legislature and your Lordships' House with it pass measures which although passed with every good ambition and in the greatest of good faith have the most appalling results. Section 3 of the Criminal Justice Act 1961 is one of those. There are others with which one could regale the House ; perhaps Section 1 of the Road Safety Act 1967 is pretty nearly as bad. I say that because of the

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effect which Section 3 has had upon our criminal system. Almost every judge of the High Court, certainly every judge of the Court of Appeal and a number of noble and learned Lords have from time to time said what a bad and unfair fetter this particular enactment is upon the discretion of the courts. Of course, the Section 3 to which I speak, in effect, prohibits a court from passing a sentence of imprisonment on a person aged between 17 and 21 years unless the sentence is six months or less or three years or more. The unfairness which this enactment has produced over the years is really threefold.
Firstly, it is unfair upon many of the offenders who are brought before the courts. Wrongly, as it happens, judges are of the opinion that a period of borstal training would be ineffective in their case, are unwilling or reluctant to sentence them to the derisory term of six months and they therefore give them three years. There are many people in gaols now who are serving longer terms of imprisonment than the courts thought proper in the circumstances but who were unwilling to give them the derisory term of six months or less. Secondly, this enactment has been unfair on co-defendants. In various instances, and it happens frequently, you get two persons who are jointly charged and the court decides that the younger one of the two as it happens is perhaps more to blame. He gets the sentence of three years, but so does the other defendant in order to achieve parity.
Thirdly, there is unfairness and injustice on the name of the law itself. On many occasions in country assizes I have sat and literally blushed under my wig when in a case which has excited considerable local comment and where local feeling and indignation has been aroused, a judge sentences some young person to six months imprisonment or less not because that is the right thing to do but because of this Section 3 of the 1961 Act. The comments of the various judges in various and many different types of case are so numerous and so condemning that I will not attempt to repeat any of them to your Lordships because so many of your Lordships know as much about this as anyone. Even the noble Lord, Lord Donaldson of Kingsbridge, who persists in telling us that he is a member of the laity, although I very
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much question his amateur status—I hope I am not being offensive—knows of this iniquitous piece of legislation and the effect it has had over the last ten or eleven years, as indeed does nearly everybody.
The question is, therefore, what is to be done about it? Is the situation to remain? If it is to be altered how is it to be altered and when is it to be altered? I am very conscious of the fact that this measure—that is to say, Section 3—was discussed in the other place not quite in the context of my new clause to-night but fairly similar. My feelings on the subject are that this is and has been such a scandal on our national face of justice for so long that it is proper that it should be again ventilated not in some Standing Committee in the other place but on the Floor of your Lordships' House so that those who wish to apologise for this system can do so and those who I hope will join with me in condemning it may also have the chance.
The lack of logic which has been displayed before now is this. I yield to no one in my admiration for what the borstal system can do and on occasions does do. But I would never want any person to go to prison of whatever age ; still less a person under the age of 21. There are, however, occasions when a person under 21 has to go to prison for whatever reason ; and for the sake of logic, if not fairness, in my submission he should be sent for a period of imprisonment that the court thinks is just in the circumstances and not for a term of imprisonment which is artificially hatched out in the manner of Section 3.
To take the individual—because that is what the court is bound to do—there are a number of offenders between seventeen and twenty-one who simply are not suitable for borstal. There is the sexually mature young man who perhaps very badly assaults a girl indecently. He may well have a good job, he may well not be in need of any training at all, he may well not be criminal in the ordinary course of events. He really must lose his liberty, but should not have an indeterminate sentence to borstal. What can be done? At the moment, what I have described. Then there is a category of people not in need of training for the reasons I have given. Perhaps they can earn their own living, hut they wish to

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behave in a disgraceful way—I am thinking of gang fights, flick knives, stabbing. If they go to borstal training it is not going to do them any good and could well do a lot of the inhabitants of borstal a good deal of harm. They are frequently well educated, frequently have a good deal of money. There is a third category of offender who in the public interest should not go to borstal, who is so bad and so wicked that he will not derive any good from borstal and will contaminate many of the youngsters with whom he comes into contact. All these types of people—one hesitates to say it, but it must be faced—have no need for borstal and should not be sent there.
If it appears to a judge, sitting in his judicial capacity, that somebody should not go to borstal, then the question arises, what is to happen? In this instance I put the cart before the horse, because no judge should make that decision before he has taken several others. First of all, what is he to do with the offender? Secondly, if he is to deprive him of his liberty and cannot put him on probation or something like that, can he send him to borstal? And if he cannot, a sentence of imprisonment has to be faced. My plea, and the purpose of this new clause, is that it should be faced logically and fairly. The way I have drafted the new clause, as your Lordships will see, is so that it follows closely on the last clause which the Committee was discussing ; that is to say, Clause 13. If somebody under twenty-one must go to prison, the court should not pass that sentence without taking the most careful and hard look at all the circumstances surrounding the case. If a superior court is of the opinion that it must be prison, then it should say so. If a magistrates' court is of the opinion that it must be prison—and, with respect to the noble Viscount, Lord Colville, under the new Drugs Act a magistrates' court can sentence to imprisonment for more than six months—then they have to give their reasons on the register. That subject has already been discussed in your Lordships' House.
There will be those who say—I have no doubt the noble Viscount will be one —that the Advisory Council of which the noble Baroness, Lady Wootton, is a member is inquiring into this problem
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and we should wait until they come up with some solution, when they do and if they do. I understand from what was said in another place that the Council may report in a matter of months. If it does, and it has a recommendation, I suppose it could be put into some kind of Bill in a matter of years, and this Bill could then find itself in front of your Lordships—another Criminal Justice Bill of some kind—and be debated. This may literally take years, and in my submission to this Committee the matter is too important and has been a scandal on the face of our court life for too long to wait for that Council to pronounce, when and if it does. At the risk of being told that I am presumptuous in anticipating what this Council is going to say, my Amendment puts a person aged between 17 and 21 in precisely the same position as his elders if not betters—a sympathetic view from the court, followed, if necessary, by the necessary penal action. I beg to move.
8.15 p.m.
BARONESS WOOTTON OF ABINGER: I must apologise to the noble Earl for not having heard his opening words owing to there being something wrong with the public address system. As he rightly anticipated, I, on behalf of the Penal Advisory Council, would strongly urge that he does not proceed with this Amendment. It is likely that the Council will report, I think I can say, within a matter of months. I think it is very unlikely that no change will be made—I cannot speak for the present Government—within the matter of years which the noble Earl anticipates. I should have thought that something on the lines of what the Council may report, or perhaps some improvement or perhaps some less good version, will be produced much more quickly, because it is a matter, I agree, of great urgency.
I have two comments to make on the merits of the noble Earl's Amendment. One is that I think it may have a disastrous effect which he perhaps has not anticipated. He does say that sentences of imprisonment amounting to more than six months are not to be passed by a court on any person within borstal age
"unless the court is of the opinion that a sentence of borstal training would be ineffective in all the circumstances of the case …".

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I do not like to say it, but if the noble Earl will look at the effect of the borstal system, judged by the reconviction statistics, he will agree that the courts will be tempted to say borstal training is extremely likely to be ineffective in a great many cases. He may in point of fact he sending a great many people to prison who would not otherwise go there.
These apparently not very successful results of the borstal system are one of the matters before the Penal Advisory Council. I do not think anybody likes—at least I have yet to meet anybody who likes—Section 3 of the Act of 1961, but that hangs together with this whole question of the effectiveness of the borstal system and the need for wide consideration of what ought to be done with young men and women of borstal age. If radically different arrangements are to be made now, it seems more than likely that within a fairly short period, if, as we hope, the Government take some notice of the report we intend to present, other and perhaps more radical changes will have to be made. The whole of the young offender system is at the moment in a state of flux, in a state to some extent of disturbance and disorganisation. It knows it is being reviewed, and it knows it is not able to do the job it was originally set up to do: to train selected trainable people. The present law prevents that because it gives it everybody within these ages. It is therefore already sufficiently disturbed. I think it would be quite disastrous if this Amendment were adopted and then perhaps whatever Government was in power smiled on the Council's report, or something like it, and there was a second disturbance. For the sake of the people trying to run the system, I think it would be wise to hold our hands, at least for a few months.
LORD WELLS-PESTELL: I find myself in complete support of the noble Earl and also of my noble friend Lady Wootton. It is not in the least confusing, if I may say so, because I think the noble Earl has made out a first-class case for the repeal of Section 3 of the Criminal Justice Act 1961. I would say—I would not ask my noble friend Baroness Wootton for her view—the borstal system in this country by and large has failed, but I think we have to look at the reasons for the six months and the three years
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when this became law some 11 years ago. The tendency was to keep young people in borstal for a much longer period. The original sentence of the court was that a person was sent to borstal for a period not exceeding three years but if he came out under three years it was because of the progress he had made and his behaviour. However, in the last few years owing to the increase in crime we have had people awaiting borstal in Wormwood Scrubbs until some of the inmates in borstal institutions are discharged.
This is a ridiculous situation we have got ourselves into. As my noble friend said, the Penal Advisory Council is considering this matter and I think it is much nearer a decision than perhaps can be said at this stage. I would not think it is going to be a long time before something is done in this matter ; I do not think it will be a long time before it publishes a report. If the noble Earl finds something in the report to commend it to him there is nothing to prevent his introducing an amendment to the Criminal Justice Act if this Bill becomes an Act ; so it need not take a long time. I share sincerely the view he expressed, in relation to Section 3 of the Criminal Justice Act of 1961, of the futility and unfairness of dealing with young people in this way—it is either six months or three years. I am aware there has been serious abuses of this and I would say to the noble Lord, with the greatest respect, that I would be prepared to wait a little longer for the report of the Penal Advisory Council, which I am sure I shall find satisfactory as no doubt will the noble Lord.
LORD DONALDSON OF KINGSBRIDGE: My noble friend, Lord Wells-Pestell, says he is in agreement with both the previous speakers. I am in agreement in the same sense with all three previous speakers. Although my noble friend came down in favour of the noble Baroness, Lady Wootton, I come down, throwing Party politics aside as we do in this particular debate, on the side of the noble Earl, Lord Mansfield. He chided me for withdrawing my Amendment. I withdrew it only in the knowledge that his stood, and it avoided direct conflict with my dreaded and valued friend the noble Baroness, Lady Wootton, with whom I hate to differ. My views are governed entirely by my main interest in the

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whole of this Bill, that is, people in prison. The biggest thing which affects the prison population is long sentences ; short sentences have much less effect on the prison population. The noble Earl has made the case, which I had already decided was true, that the result of the present law is that quite a number of offenders are given longer sentences than the courts want them to have. I am in favour of scrapping what we have got and going back to the pre-1967 position.
What we have to consider is whether the noble Baroness has any basis for saying it would be disastrous to do this. I am unable to see it. It seems to me that the law would be perfectly clear. When something new comes out the machinery will work, perhaps faster than the noble Earl thinks, perhaps not. But we shall have saved meanwhile a fair number of unjust sentences and I see no reason not to put right something which is wrong while one is waiting for something better to come along ; it is the old argument of the best being the enemy of the good. My own view is that the noble Earl's Amendment is sound and that we should accept it. I shall vote for it if he brings it to a Division and I shall vote for the Advisory Council's recommendation if I agree with it, as I expect I shall.
8.25 p.m.
LORD HACKING: As a practising member of the Bar I should like to give my wholehearted support to the Amendment moved by the noble Earl, Lord Mansfield. I should like to adopt the powerful argument he presented to this Committee. I am a little disappointed in supporting the noble Earl, to find no members of the Judiciary sitting on the Cross-Benches with me, because, as the noble Earl has pointed out, it is members of the Judiciary who have complained more severely about Section 3 of the 1961 Act than practising practitioners, whether members of the Bar or of the other side of the profession.
I support the noble Earl for three reasons. The first is that his Amendment would give discretion to the court. That is one of the admirable themes of this Bill. Secondly, it is simple to apply—and certainly that cannot be said of Section 3 of the Criminal Justice Act 1961, as regards which noble Lords have mentioned periods of six months and three years.
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However, that is not the end of the story. If one reads Section 3 of the 1961 Act one finds different circumstances in which the courts are empowered to pass sentences of imprisonment. The third reason I support this Amendment is that it does, within the terms of the draft presented by the noble Earl, fully protect young offenders. I do not want to enlarge much on those three points, but I should like to pass one observation upon each part of my argument. May I remind the Committee—and I am a little surprised that little mention has been made of it during the debate—that if a court errs there is a full appellate procedure to put matters right. If the magistrates' court errs there are appellant proceedings to the Crown Court or to the Queen's Bench Division.
I now turn to my second point which is concerned with the simplicity of application of this clause, as opposed to the complexity of Section 3. I would ask your Lordships to spare a thought not only for judges and justices but also for the practitioners. To invoke complicated legislation is to invite mistakes and, as a consequence, to obtain wrong sentences. As for my third point, that the Amendment fully protects the young offender I need to do no more than refer your Lordships to the last three sentences of subsection (1) of the proposed new clause. It reads as follows:
"… unless the court is of the opinion that a sentence of borstal training would be ineffective in all the circumstances of the case and no other method of dealing with him is appropriate."
In my submission, that is quite sufficient protection for the young offender. I have heard with interest the argument presented by the noble Baroness, Lady Wootton, who fears, if I understand her rightly, that if this Amendment were accepted her report would not receive the attention it should. I hope the Government will not be so unworthy. I think the noble Lord, Lord Donaldson, made this point—
BARONESS WOOTTON or ABINGER: With all due respect to the noble Lord, that is not what I had in mind. I do not imagine that the Amendment would have any effect upon the reception the Council's report will receive. What I had in mind was that there would be great disturbance throughout the whole of the borstal and

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prison system if two changes are made within a relatively short period. They are very uncertain as to what they are supposed to be doing.
LORD HACKING: I heard the noble Baroness, and if I have misconstrued her argument I apologise to her and to the Committee. I really find myself coming back again to adopt the argument which the noble Earl used when he moved this Amendment. There are wrongs being perpetrated at present. Not only are there wrongs in the sense that sentences are being passed of a lower duration of imprisonment than they should be, but there are occasions—and I would ask your Lordships to recognise this—when young offenders are sentenced to a period of imprisonment substantially longer than they would be given if the court had a discretion. I hope that this is not being too dramatic, but if one young offender is sentenced, because of Section 3 of the Criminal Justice Act 1961, for a longer period than he should be, then the section is unsatisfactory, it is wrong ; and this Amendment, even if it only be an interim Amendment, should receive your Lordships' favour. On that basis I support the noble Earl in moving this Amendment.
8.32 p.m.
VISCOUNT COLVILLE OF CULROSS: I must say that I wish I could join the unanimity on this Amendment, but I fear that if I have to come down on the side of one or the other I must join the noble Baroness, Lady Wootton of Abinger, wholeheartedly on this argument that has gone ahead. I do not think that it comes as a surprise to anyone to know that in certain sources Section 3 of the 1961 Act is unpopular. It was certainly discussed at substantial length in another place, and the remarks of judges and other people concerned have not altogether escaped us.
I am a little sorry that the borstal system has come in for quite so much criticism as it has received. It may not necessarily succeed in all its aims, and there may be a good number of people who come back again to one sort of institution or another. But I do not think that this is due to any lack of effort on the part of the staff who work there. Nor, indeed, is it due to the lack of variety in the type of establishments
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which have been set up. No longer is it a single form of training, as the Committee will know ; it is tailored for a very large number of different sorts of people with differing qualifications and other characteristics. I am a little sad that the borstal system should have been so roundly condemned this evening, when I know some of the people concerned and know how earnestly they try to make something out of some fairly unpromising material that is delivered over to them. I think we should be doing them an injustice if we did not recognise that.
I should like to correct what the noble Lord, Lord Wells-Pestell, said: I do not think that the waiting at Wormwood Scrubs situation is quite so bad as he made out. We have recently improved things quite a lot. On the whole it is between two and four weeks from the time of the sentence before people go off to the training borstal, and not quite the black picture that he painted. Anything further one can do in this direction is, of course, very welcome.
The noble Baroness explained about the forthcoming report of the Advisory Council. I am bound to say that I can think of few worse times than this to initiate a change. If there were some deep mystery about what the Advisory Council were going to say, I suppose that one might say, "Well, let us take a chance on it". But, as I told my noble friend at Second Reading (and I am not going to read out the whole of this passage now, because I gave him the Second Reading reference in Hansard), we did ask the Chairman of the Advisory Council whether the repeal of Section 3 in this form was likely to fit in with the deliberations of that Council. He wrote back a letter to my honourable friend the Under-Secretary of State at the Home Office saying that it did not. The matter is set out in full in the Hansard Report of the Standing Committee in another place. I gave my noble friend the reference on Second Reading. What on earth is the object of making a change which is almost certain to be in direct conflict with the recommendations of this Council, who I hope will report within months, and find ourselves, as a matter of policy set out in Parliament, in a position where we immediately have to start thinking again? I do not know whether or not the Advisory Council's

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suggestions will be followed, but if this Bill is anything to go by they have not done too badly in terms of legislation, either in content or in timing, as I said before.
The other point that I think has not been made—and it is one that concerns me very much as the Minister responsible for the present system—is what do I do in practice if this Amendment is passed? This is a point, it seems to me, that no noble Lord has thought about. It is plain from the speeches that have been made that the judges would wish to send more people to prison and fewer to borstal. People sent to prison would in most cases have to be treated as young prisoners. Where do I put them? At the moment there is no accommodation available for young prisoners which would take the sort of numbers that have been indicated in this debate. Therefore existing accommodation would have to be converted.
Am I to convert borstals? If so, it will take 12 months at least before any accommodation will be provided. People would have to be moved out, a good deal of money would have to be spent. On the other hand, I could convert a wing of an adult prison. If I do that, it is going to add to the overcrowding which was the topic of debate before the dinner break, when we were discussing the Bill earlier this afternoon. To take people at present in the borstal system, however undesirable it may be thought that they should be there, and put them in adult prisons means, somehow or other, that one has to find room for the adults at present in that wing. Again it means conversion (perhaps not so much), extra overcrowding while it lasts, and money almost certainly all wasted because by the time we have decided which prisons or borstals to convert the report of the Advisory Council will be upon us. This is not the time to deal with this matter.
I am sorry if noble Lords think that this Government would be so dilatory in its implementation of the Advisory Committee's Report when this comes, but I cannot advise the Committee to accept this Amendment this evening because, quite apart from the objections that have been made all round the House, to do so at this juncture—and this is really
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the noble Baroness's point—would be a waste of time, a waste of morale, a waste of money, and would achieve nothing at all in terms of a satisfactory solution. I hope that the Committee, however strongly noble Lords may feel about Section 3, will think that from the administrative and policy points of view the adoption of this Amendment would be a great mistake. I hope that my noble friend will not decide to take it to the vote. If he does, I advise the Committee very strongly to vote against it.
8.38 p.m.
THE EARL OF MANSFIELD: May I first of all thank those noble Lords and noble Baronesses from all sides of the House who have come to my aid, in the sense that they have given their blessings to what I propose would be a satisfactory alternative to the present thoroughly unsatisfactory position. I detected a certain note in what the noble Baroness, Lady Wootton of Abinger, said, and in what the noble Lord, Lord Wells-Pestell, said of what I might call the "impetuosity of youth". As somebody who has had a 15-year-old son in the Chamber for much of this afternoon, I was very flattered indeed. Having said that, I am bound to say that I am now going to deliver a brickbat. It is going to be a short one. It is perfectly true that in the Second Reading my noble friend directed me to a column in a very thick OFFICIAL REPORT of Standing Committee G. The Chairman of that Committee, in that letter which the two of them swapped, was gracious enough to say that his Committee might be reporting in about 12 to 18 months' time, and he would not like to see Section 3 disturbed in the meantime. I am completely inexperienced in the ways of your Lordships' House, but I venture to suggest that that is hardly a satisfactory way of conducting business in Committee in this place. If this House is to be muddled by whatever has gone on—
VISCOUNT COLVILLE OF CULROSS: I am sorry, but I really cannot allow the noble Earl to get away with that. Our proposals are not in final form, but I can say with the authority of the Council that we shall not recommend a return to the pre-1961 system of alternative medium-term custodial sentences of

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borstal training and imprisonment, which is what a simple repeal of Section 3 of the 1961 Act would produce. That is what the Chairman of the Council said.
THE EARL OF MANSFIELD: With respect to my noble friend, that is precisely why I worded my Amendment and drew it as I did. Nobody wants to go back to pre-1961 and nobody wants to go back at all. I should like to advance. May I deal, first of all, with the point which the noble Baroness, Lady Wootton of Abinger, made, that any move now might be disastrous. I do not know, and I do not suppose many of your Lordships know, what is likely to be the outcome of this Report. But it is fair to say that it is unlikely to suggest other than that offenders between the ages of 17 and 21 years will continue with borstal treatment, or be sentenced to terms of imprisonment, or be sentenced to a mixture of the two. Therefore, all that my Amendment does is to give a court discretion.
On the point of the noble Baroness, Lady Wootton, that judges might consider that sentences of borstal training were more likely to be ineffective, my reply is that if a court pays attention to subsection (1) of my new clause it must be considered that in all the circumstances of the case borstal training would be ineffective and that no other method of dealing with an offender would be appropriate, before a prison sentence could be passed. If that is disastrous, then I am speechless.
BARONESS WOOTTON OF ABINGER: The noble Earl is fully entitled to speculate as to the probable content of the Advisory Council's Report, but it is also possible that he is quite wrong.
THE EARL OF MANSFIELD: I am trying only to peer through a glass darkly. The noble Baroness is much nearer to the other side of the pane than I am. The other matter which was taken up was the criticism of officers in borstal institutions. I have never sought to criticise the borstal institutions or the persons within them. What I criticise is the present lack of logic, the injustice which is written in the face of Section—
BARONESS WOOTTON OF ABINGER: I must apologise for interrupting again,
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but nothing that I said should be interpreted as criticism of the staffs of borstal institutions with whom I have the deepest sympathy. What I tried to convey was that, owing to the present situation and all the uncertainties, they are very often in a state of doubt as to what they are supposed to be doing, and this is not good for morale. I think the noble Viscount mentioned morale. I hope he will greatly emphasise that as one of the reasons why changes ought to be made, and ought to be made at a reasonably early date, and then not be re-made quite soon afterwards.
THE EARL OF MANSFIELD: I appreciate very much what the noble Baroness has said. My point is that I should not like it to be thought that I was criticising either the prison officers, or the borstal institutions as they are. I have thought very deeply as to whether I should withdraw this new clause and, on balance, I have come to the conclusion that I should not—not because I am happy with the situation as it will be, but because there is always an excuse for doing nothing. My noble friend said that he would be in difficulties with the prison system if this Amendment were passed, but that was equating criminal justice with a cash register. In a previous speech this afternoon, he said that it is up to the prison service to do what it has to do according to the laws which are passed—
VISCOUNT COLVILLE OF CULROSS: I did, on the basis that they were permanent. What I object to is having to do something in about a year or so, all of which is to be reversed with a good deal of public money wasted in the process.
THE EARL OF MANSFIELD: I have not been interrupted so much since I was last in the Court of Appeal. I should like to see noble Lords, from whatever section of your Lordships' House they come, join with me in expressing their distaste of the status quo. It is never a good time to do anything, but come and join me in the Lobby now and say that it is a good time to pass my Amendment.
LORD GARDINER: What I like, and what cheers me up, is that we have now really got away from any Party political division. I have listened to all this discussion and there have been no Party

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politics in it at all. I can hardly remember any occasion in British public life when I have ever disagreed with my noble friend Lady Wootton of Abinger. I think that on this occasion I do, and that I shall vote with the noble Earl, Lord Mansfield. But it is the right spirit that we should get away from all of this Party
Clause 14 [Community service orders in respect of convicted persons]:
8.54 p.m.
LORD GARDINER LORD GARDINER moved Amendment No. 13:
Page 11, line 36, leave out ("less than forty nor more than two hundred and forty") and insert ("more than one hundred and twenty").
The noble and learned Lord said: We are here in the field of community service orders, and the effect of the Amendment is to omit the minimum number of hours provided in the Bill for community service work—namely, 40 hours—and to omit the maximum provided in the Bill of 240 hours, and to substitute no minimum and a maximum of 120 hours. The concept of community service orders is a promising and, I think, an exciting one, because it does not remove the offender from the community but includes him in the community and in working for it. It can win the voluntary co-operation of
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political stuff, and all say what we think is right.
8.46 p.m.
On Question, Whether the said Amendment (No. 12) shall be agreed to?
Their Lordships divided: Contents, 24 ; Not-Contents, 40.

CONTENTS

Ailwyn, L.

Gainford, L.

Milner of Leeds, L.

Bacon, Bs.

Gardiner, L.

Morris of Kenwood, L.

Beswick, L.

Hacking, L. [Teller.]

Phillips, Bs.

Blyton, L.

Hoy, L.

Ruthven of Freeland, Ly.

Davidson, V.

Jacqucs, L.

Shackleton, L.

Donaldson of Kingsbridge, L.

Janner, L.

Stow Hill, L.

Elliot of Harwood, Bs.

Maelor, L.

Taylor of Mansfield, L.

Evans of Hungershall, L.

Mansfield, E. [Teller.]

Watkins, L.

NOT-CONTENTS

Ardwick, L.

Eccles, V.

Northchurch, Bs.

Auckland, L.

Elles, Bs.

Rankeillour, L.

Belstead, L.

Ferrers, E.

Sandford, L.

Birk, Bs.

Gowrie, E.

Segal, L.

Brabazon of Tara, L.

Greenwood of Rossendale, L.

Slater, L.

Brooke of Cumnor, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Stocks, Bs.

Brooke of Ystradfellte, Bs.

Swaythling, L.

Champion, L.

Hanworth, V.

Wade, L.

Colville of Culross, V.

Jellicoe, E. (L. Privy Seal.)

Wakefield of Kendal, L.

Craigavon, V.

Llewelyn-Davies of Hastoe, Bs.

Wells-Pestell, L.

Delacourt-Smith, L.

Lothian, M.

Windlesham, L.

Denham, L. [Teller.]

Macleod of Borve, Bs.

Wootton of Abinger, Bs.

Digby, L.

Mowbray and Stourton, L. [Teller.]

Wynne-Jones, L.

Dundee, E.

Young, Bs.

Resolved in the negative, and Amendment disagreed to accordingly.

such people in the rules of society, rather than their sullen acceptance for fear of the consequences.
I think we are all greatly indebted to my noble friend Lady Wootton of Abinger and her Committee for this imaginative alternative to prison sentences. But it would be a pity to spoil the effect by making the community service work go on for too long. A minimum of 40 hours would make it more difficult to find suitable tasks, and any minimum would fetter the discretion of the courts. One thing I am very puzzled about is this. We have had this distinguished Advisory Committee, comprised of men and women of great distinction and great experience in this field, who have proposed this system of community service work. They considered very carefully whether there ought to be a minimum and/or a maximum number of hours for this work, and in paragraph 57 of their Report they said:
"The order of the court would need to specify the total period of service to be performed, within a maximum to be prescribed

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by legislation. We suggest that this overall maximum might be of the order of 120 hours. We think it preferable not to specify in legislation any maximum number of hours of work to be performed on any one occasion, so that there would be complete freedom to fit in with arrangements for volunteers. It would clearly be undesirable for a very long period to elapse before the service was completed: one suggestion made to us was that the order might provide for a maximum period of six months during which the community service should he completed, within a probation order of two years' duration. We think, however, that, since there might be changes both in the offender's circumstances and in the programme of work which would hamper the implementation of the order, it might be preferable to leave the supervising probation officer to decide within what overall period the order should be carried out",
and so on. So they very seriously considered this question of what should be the minimum period of the community service work and what should be the maximum. They came to the conclusion that there should be no minimum and that the maximum should be 120 hours.
How does it come about, then, that in the Bill we have a complete departure from this suggestion? We have a rigid minimum of 40 hours and a maximum, not of 120 but of 240 hours. I have naturally read all the proceedings in another place to find out how this has come about. The answer, as I understand it, is that a little clique of officials in the Home Office came to the conclusion that the Advisory Council were wrong in recommending that there should be no minimum period ; so the little clique of officials put "40 hours" in the Bill as the minimum. They came to the conclusion that the Advisory Council were wrong in recommending that the maximum should be 120 hours ; so they put in "240 hours".
I have the highest regard for the officials of the Home Office but the difficulty, I feel, is this. An Advisory Council give their reasons for the conclusions to which they have come—and they have given their reasons in this Report. But the little clique of officials at the Home Office give no reasons at all ; and from what has been said in another place I have been unable to ascertain what is the ground on which the officials have overruled the Advisory Council on both these points. I confess that I think the Advisory Council are right and that the clique of Home Office officials are wrong. Two hundred and forty hours spread over a year could lead to disillusion, boredom and an un
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necessarily high rate of breaches of the order. There is nothing to stop community service work from going on longer voluntarily and there is nothing to stop the Secretary of State from later increasing the maximum. There is power, which I quite approve of, in the Bill to enable the Secretary of State by order to vary the figures.
So the question is this. Do we start by assuming that the Advisory Council were wrong ; do something entirely different and then say that if experience shows that the Advisory Council were wrong then the Secretary of State can alter the figures ; or do we say, "Let us start by assuming the Advisory Council were right and if experience shows that they were wrong, then the Secretary of State could alter the figures"? I must say that I think that we should start with the proposition that this very experienced Advisory Council are right and that if it is found from experience that they were wrong then we should alter the figures ; rather than that we should start with the proposition that the clique of Home Office officials (who give no reason for their views) are right and then, if we find that they are wrong, the Secretary of State should alter the figures.
Let us take the example of a seaside town. A number of young hooligans come down from London or from somewhere else to this seaside town and make an infernal nuisance of themselves. What could be more sensible or more just than, if they agree, that they should be told, "Instead of your being sent to prison or fined, we are going to ask you to help us with community work for this town. We have just had an oil slick outside and this oil slick is making a confounded mess of the beach. Come along! Will you agree to help the citizens of this town (in which, you must admit, you made a bit of a nuisance of yourselves) by clearing away the effects of the oil slick from the beach?" Does it make sense to say that because on the evidence it would only take 30 hours of work to clear this oil slick from the beach, the magistrates should be quite unable to make an order of community service work because it is less than this minimum period of 40 hours which the clique of Home Office officials thought up? This is silly, is it not? Why fetter the discretion of the court?
I would ask the Committee to say that this is not sensible and that we should accept the advice of the Advisory Council and that there should be no minimum. Why should there be a minimum? This must depend upon the circumstances of the case, and the circumstances of such community work as may be available. If 30 hours is all that is available, why not order that? Why have a rigid minimum? So far as the maximum period is concerned, we know that whether you are clearing a canal or doing any other kind of community work, the time comes when the drop-out rate very much increases because people get bored. Therefore, would it not be much better to accept the advice of the Advisory Council and have no minimum, and to have a maximum of 120 hours—so that in the Bill there is a very wise provision enabling the Secretary of State, if he finds in the result that this does not work out, to alter it rather than to start by rejecting the views of the Advisory Council and accepting the views of this Home Office clique who give no reasons for rejecting the views of the Advisory Council? For these reasons I would hope that the Committee will accept this Amendment. I beg to move.
LORD DONALDSON OF KINGSBRIDGE: I should like briefly, and a little less abrasively, to come to the support of my noble and learned friend. I doubt whether the Home Office officials are responsible. In so far as there is any blame, then I lay it squarely on the shoulders of the Minister. But I do not think this is so much a question of blame as of anybody's judgment as to the best way of doing something quite new. It is worth pausing to see how new this is. Imprisonment, over the last 30 or 40 years, has replaced that kind of punishment—the stocks and the whipping post—which went on before for more than a hundred years. Imprisonment is now the only sanction we have. This Bill, in the most imaginative way, is trying to introduce the concept that the deprivement of leisure is a punishment as well as the deprivement of liberty. It is most important, if we are to keep people out of prison—as we have ad nauseam expressed ourselves as being in favour of doing—that the public
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should accept the alternative sanction as being a genuine sanction.
My noble and learned friend argued about the minimum in a way in which I thought one could not answer him. It seems to me perfectly clear that there is no particular virtue in a minimum, and the case which he gave of the oil slick is a good one. Equally, there may be a rich young man who commits a terrible driving crime, or something of that kind, and it is considered that imprisonment is not necessary. If he knows that he has tickets for Wimbledon, one Saturday would have a great effect. One has to realise that 40 hours—eight Saturdays at five hours a day—is quite a long period. Again, 240 hours, which is really a year of Saturdays—48 Saturdays if my arithmetic is right—is probably long enough to interfere seriously with this method as an effective sanction, because you have to obtain consent and I doubt whether many young men would accept or stand up to that length of time. Either they would not accept the offer and would go to prison or they would fall down on it after a certain time and then go to prison. So there is a strong case for sticking to Lady Wootton's figures.
It is worth remembering that the community service order can be used in lieu of a fine, as we see from Clause 40, and also that a fine may be used in lieu of a community service order. There is a curious circular effect by which failure in respect of either produces the other. It is important that the initial experiment should be as moderate as possible, and I think that 240 hours is rather an immoderate figure. I should prefer to see 120 hours as the maximum, but it is a question of anyone's judgment ; and so long as we are all trying to do the same thing I shall not feel bitter if the noble Viscount does not agree with me. But I am inclined to think that my noble and learned friend and I are right and I am happy to support my noble and learned friend.
BARONESS BIRK: I wish to support the Amendment for the reasons which have been given by my noble friends. It is much easier when experimenting to increase something rather than to reduce it. I agree with what was said by my noble friend Lord Donaldson of Kings-bridge, that what to us may appear to be

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a comparatively brief amount of time may appear to he almost a lifetime to a young person. We bear this in mind in the courts when deciding on a period of disqualification from driving, because one realises that what may appear at first sight to be a short period may be a very long period in the opinion of a young person. So far I can see no reason that would lead one to feel that the advice of the Advisory Council should be changed. I hope that the Government will accept this Amendment, which would provide a much more flexible introduction. Also, there would be fewer breaches and a much greater impact would be made on young people.
LADY RUTHVEN OF FREELAND: I wish to support what has been said by the noble Baroness, Lady Birk. I work with volunteers and I know that you would not be able to pin them down to 240 hours, or even 120. You have to take them when you can get them, and you are lucky if you can get them.
VISCOUNT COLVILLE OF CULROSS: I am sorry that the noble and learned Lord, Lord Gardiner, should have taken the occasion to pick upon an alleged clique of Home Office officials. In my respectful submission to the Committee, it is quite unjust that the noble and learned Lord should say such a thing. The noble Lord, Lord Donaldson of Kingsbridge, was perfectly right ; if anybody should take the responsibility for this provision it is I, and in another place my right honourable friend. I do not think it does a service to anybody to suggest that it is something concocted by a clique of Home Office officials and to go on referring to them. I would much rather take the responsibility for this myself, and if I can succeed in explaining the matter to the noble and learned Lord I may have made some progress, but perhaps I shall not.
The noble Lord, Lord Donaldson of Kingsbridge, said that this is a matter of judgment, and so it is. Here we have a totally new "animal" in the form of non-custodial treatment. Though one respects the work put into this subject by the Committee, I do not suppose that even the noble Baroness, Lady Wootton of Abinger, would say that all their exercises of judgment were necessarily infallible. The noble Baroness is too modest,
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and not the sort of person who would make that claim. One ought to bear in mind that this is meant to be a genuine alternative to imprisonment, something quite different but something which is acceptable as an alternative to a sentence which would deprive someone of his liberty—the noble Lord, Lord Donaldson of Kingsbridge, rightly says not his liberty, but his free time. For that reason the Government consider that one cannot have a minimum which is simply derisive. That is why a minimum has been inserted in this Bill, because if the scheme is to gain any credence, I do not believe we can leave an unspecified lower end of the range which the courts might use.
The oil slick may be a very good point in theory, but unfortunately it is not likely that the scheme will work in that way. The court, when sentencing somebody to a certain number of hours of community service, in lieu of what might otherwise have had to be a prison sentence, will not know what jobs the person will be called on to do. There is no oil slick in front of the court as there is on the beach. The court simply sentences the person to the system run by the Probation Service which happens to be operating in the area—that is, of course, when the areas are all covered and the courts can do this. So they will not have in mind that there is some particularly apposite remedy for that person. Indeed, I read the Advisory Committee's Report to suggest that one was not attempting in this form of treatment to fit the punishment too closely to the crime, but rather the contrary. I felt that the whole concept of this was not to rub the offender's nose on the beach where he had offended, but to have a much more broadly based system whereby he might do something that might have had nothing whatever to do with his offence, but nevertheless would be most useful for the community and, one would hope, useful to him as well.
If that is not going to be seen by the public as being the "soft option" of all time, then it is the view of the Government—and I grant that it is a matter of judgment—that there must be a minimum period. That minimum period has been set at 40 hours, which, assuming an eight-hour Saturday, means five Saturdays ; or, if it is a five-hour Saturday, eight Saturdays. The maximum period is about

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a year, if it is worked on the half-day ; it is seven months on the basis of service all day on Saturdays.
The noble and learned Lord, Lord Gardiner, asked, "Why do we not start from the recommendation of the Wootton Committee?" I can give no better reason than that we consider it to be inadequate. There is no particular reason why we consider it to be inadequate. There is no particular reason why we should pick on 240 hours as being adequate, save for the acceptability of this matter in the eyes of the public. If this is going to be a genuine, accepted alternative, we believe that the public who hear these sentences given out by the courts must feel that there is a really worthwhile effort being put into it by the offender ; that he is going to do something which will purge him, as it were, of the liability of going to prison—because this is obviously what he might have done instead. Then one has in mind, as with all maxima, that the courts are in no way bound to impose 240 hours: they can impose anything between the minimum and the maximum. If in any particular case the court thinks it is far too much, then it will not impose anything like so many hours ; and one would perhaps expect it not to, except in a very bad case, or in a case where there is some particular reason why the court thinks that a long period of this work would be suitable for the offender.
The noble and learned Lord reminded us of the powers to reduce. There is also the power in Clause 17(2) whereby the order can be revoked on the application of the offender himself or of the probation officer who is supervising the scheme. And if the whole thing has gone wrong, and the period appears much too long, then it may well be in the interests of justice, as the subsection says, that the order should be reduced. There are a certain amount of checks and balances on this provision.
Perhaps I might finally say to the noble and learned Lord, in regard to exercising judgment, that I think I have heard before something which echoes strongly of the speech that he made. He may remember that at the time when we were discussing the Theft Bill in 1967, throughout the Committee stage and on Second Reading he said: "We have had this Committee sitting for seven years. There
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are 13 of the most experienced criminal lawyers on it, and they recommend this and that. It has been drafted by the best Parliamentary draftsmen that we have. We do not think it can be wrong." Then on the Report stage he put down 35 Amendments.
BARONESS WOOTTON OF ABINGER: I should feel much happier about the noble Viscount's answer if he could assure us that the Government are at least considering working some of this community service in with residential weekend centres, such as have been established in New Zealand.
VISCOUNT COLVILLE OF CULROSS: I am in a certain amount of difficulty in explaining how this community service will work out. I do not think there are any bars on the way it can be done. As I told the House on Second Reading, we have five experimental areas. We are beginning to discuss with the Probation and After-care Services and voluntary bodies in those areas as I mentioned earlier on this afternoon, how best this can be done. It may be that in some places a residential scheme would be a good thing. If that is so, then the 240 hours or the 40 hours could be compressed into a much shorter period, if that was felt to be a good way of doing it. But I do not think I should be truly doing a service to those who try to work this scheme if I made a pronouncement which might bind its form. It is an experiment. It is a pretty skilled job, as the noble Baroness will realise, having discussed it at the length she did, to work out precisely how this might be done. But I would not rule out a residential course at all and I hope that will add point to the calculations about the length of service.
LORD DONALDSON OF KINGSBRIDGE: This frightens me a little ; this is a very delicate matter between punitive and rehabilitative. We know that local prisons are punitive rather than rehabilitative: this is pretty well a general view. What about these community service orders? The Minister in another place, Mr. Carlisle, did stress the punitive side in the Committee discussion and I was hoping to get the other side discussed here. I think it is not enough to deal only with the punitive side: you lose public acceptance. I accept this, but

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I think magistrates, if they are not going to send to prison somebody who they think ought to go—and that is the only condition under which they can use this—will tend to go towards the maximum. It is very dangerous to have a maximum which will almost inevitably lead to many breaches. I believe this is an indiscreet maximum. It is not a wrongheaded one but I think it is liable to lead to a lot of trouble. I am rather frightened about it in case we lose the good that is in this scheme.
VISCOUNT COLVILLE OF CULROSS: I am very grateful to the noble Lord and I should like to think about what he has said. I should not like to be committed at the moment to the punitive, as opposed to the curative, methods of treatment and I should like to see what he has had to say considered by those setting up the schemes.
LORD GARDINER: I am very glad to hear that the noble Viscount is prepared to think about this. I am entirely unrepentant about the theft law for the reason that I would never have proposed any Amendment of that Bill had it not been for the fact that the noble and learned Viscount, Lord Dilhorne, proposed every sort of amendment differing from the recommendations of the Committee. The Amendments that I proposed were merely to try to meet him on the point which he raised. I hesitate to say this, because although he was here earlier he is not here now, but nearly all the difficulties which have since arisen on the Theft Act, so far as I can make out—and the House rightly or wrongly accepted the views of the noble and learned Viscount when making alterations in the proposals which this Committee had been considering for a very long time—have arisen from the alterations which were made.
I remain unrepentantly of the view that where you have a committee, and particularly a committee of ordinary people, and, I suppose, still more so if there are experts on it, one ought to consider that what they recommend is probably good sense. My experience of public committees of this kind is that they are extremely conscientious and extremely good ; and they usually come up with
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the right solutions. If I have referred disrespectfully (which I have no intention of doing) to the Home Office "clique", this is simply because here is this Advisory Council of considerable distinction and acknowledged experience which comes up with this proposal for community service orders, and the Government say, "Yes, that is a very good plan: we entirely accept that". When it comes to the Bill you find that in relation to the number of hours for which these orders are to work, there is a complete departure. Naturally one asks: "What is the reason for this?" Having carefully read the proceedings in the other place, I think the only reason for it, so far as I can understand, is that a body of officials in the Home Office, for which the Minister must take responsibility, have differed from the Advisory Council.
One of my difficulties is that the Advisory Councils in their reports give reasons ; Home Office officials do not give any reasons. Until the noble Viscount had spoken I found it very difficult to understand why the Bill says that the Advisory Council are absolutely wrong in not providing a minimum number of hours. They say, "We must have a minimum number of hours". If it is found that there is some good local community work that they might do, but that it is only going to take 35 hours, the officials say, "It cannot be allowed". That is what is in the Bill. But, why?
Similarly, when it comes to the maximum, I thought the Advisory Council gave very good reasons why 120 hours was a reasonable maximum. If you increase the number of hours you will find the drop out rate will be higher, people will lose interest, they will get bored, and so on. We never had any good reasons, because officials do not give reasons, why the Advisory Council were wrong in saying that it would be a mistake to make the maximum number of hours more than 120. I am delighted to hear that the noble Viscount is prepared to reconsider what has been said. It is obviously useless at this hour to try to carry this Amendment to a conclusion by a Division. We shall have to reconsider this matter at the Report stage of the Bill.
Amendment, by leave, withdrawn.
9.27 p.m.
BARONESS WOOTTON OF ABINGER BARONESS WOOTTON OF ABINGER moved Amendment No. 15:
Page 13, line 4, at end insert—
(" (9) On making a community service order the court shall in ordinary language explain to the offender—

(a) the purpose and effect of the order (and in particular the requirements of the order as specified in section 15 of this Act) ;

(b) the consequences which may follow under section 16 if he fails to comply with any of those requirements ; and

(c) that the court has under section 17 the power to review the order on the application either of the offender or of a probation officer.").

The noble Baroness said: This Amendment can be dealt with fairly shortly. In a number of cases where new provisions are introduced it seems desirable that they should be explained in ordinary language to the persons concerned. Amendment No. 15 deals with community service. It proposes that, in ordinary language, the following should be explained to a person who is subject to a community service order:
"the purpose and effect of the order (and in particular requirements as specified in section 15 of this Act) …"
Those requirements are that he should report to the relevant officer and notify him from time to time of any change of address, and that he should perform for a number of hours specified in the order such work at such time as he may be instructed to do.
Necessarily this is rather vague, because the court cannot know whether the young man will be instructed to go and dig somebody's garden or help bath a paraplegic. They will not be able to tell him what kind of work he has to do—that comes at a later stage. He has to report to an officer who will set him his task and give him instructions. Secondly, he is to be told of the consequences which may follow if he does not do what he is told, which in effect means that he may be brought back to court and dealt with in any way that he could have been dealt with for the original offence. Thirdly, the offender is to be told that the court has power under Clause 17 of the Bill to review the order, to let him off on either his or the probation officer's application.
With the consent and approval of my noble friend Lord Wells-Pestell, may I also deal with Amendment No. 16? This also requires attendance at a day attendance centre, which is another innovation which should be explained in ordinary language. It is not necessary to spell out in detail all these consequences in relation to the day attendance centre because the day attendance centre requirement is the condition of a probation order and these consequences are implicit in the probation order. That explains the difference between Amendments Nos. 15 and 16. The whole point, therefore, of both these Amendments is to explain in ordinary language so far as we can what the offender is to expect. I beg to move.
LORD WELLS-PESTELL: I commend these Amendments to the noble Viscount. I will be very brief. A number of probation orders are made these days without conditions being explained. They cause concern to probation officers who are responsible for the supervision and in order to overcome that and difficulties with other orders which are being made I would commend these Amendments to the Committee.
VISCOUNT COLVILLE OF CULROSS: On Amendment No. 15 I entirely agree with everything said and I recommend the Committee to accept the Amendment. Amendment 16—if I may deal with it at the same time—I do not think is necessary. The whole matter will be dealt with in the context of the probation order itself, and therefore the statutory requirements to explain the probation order will include a statutory requirement to explain the day training centre. Therefore Amendment No. 16 is not necessary: it is already covered by Statute Law.
BARONESS WOOTTON OF ABINGER: Amendment No. 16 has not been formally moved. Perhaps I had better not move it, if that has the consent of my noble friend Lord Wells-Pestell.
VISCOUNT COLVILLE OF CULROSS: Shall we deal with No. 15?
BARONESS WOOTTON OF ABINGER: Yes.
On Question, Amendment agreed to.
Clause 14, as amended, agreed to.
Clause 15, as amended, agreed to.
Clause 19 [Probation orders requiring attendance at day training centre]:
9.32 p.m.
LORD DONALDSON OF KINGSBRIDGE LORD DONALDSON OF KINGSBRIDGE moved Amendment No. 17:
Page 18, line 9, at end insert—
(" (9) If the person in charge of the day training centre considers that the offender would benefit by further attendance at the day training centre, the offender shall be permitted to continue to attend up to a maximum of one hundred and twenty days and to receive payments towards the cost of maintenance of himself and his dependants as provided in section 45.")
The noble Lord said: This is a very interesting clause in that it is the first clause in the second Part which does not come directly out of my noble friend Lady Wootton's Report. I should like to claim a kind of indirect parentage of it. In your Lordships' House in December two years ago I drew attention to a paper which had been read to the Howard League by Philip Priestley, who is one of our employees at NACRO, suggesting exactly this. He proposed that community training centres should be set up using cheap housing in dense urban areas which offenders who would normally he given short prison sentences might be required to attend as a condition of a probation order, and so on.
The point of this Amendment is twofold. First of all, we want to discuss in a probing sense the right period for this supposed treatment ; and secondly, we want to find out from the Government a little of what they have in mind over the day training centres because, apart from the Home Office circular, which is fairly comprehensive, they have so far given us very little information. We want to make sure that these training centres are used for rehabilitation rather than punishment. We have no suggestion from the Minister in another place that he is thinking more of punishment than rehabilitation in these cases—rather the other way round. The extension from sixty to 120 days which the Amendment suggests will of course not be desirable in all cases, or even in most cases. But we put it forward having in mind the kind of man who has drifted from job to job and from prison to hospital and back to prison again, who is given this
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order and whom it fits. He is presumably a man who finds it very hard to obtain employment, but suddenly he makes a relationship with one of the employees of the attendance centre and begins to do very well. He begins to do very well from a very low base, so it may easily take him some time.
What the Amendment is asking for is that if the warden or director of the centre (or whatever he is called) and the probationer, who has of course already consented to his probation, ask for further time to continue this treatment, not only can they get it without going to the court, but under Clause 45 the probationer's expenses may be paid as laid down in the Bill. This is important. Government acceptance of this Amendment—if they do accept it—would show that they regard this as a serious attempt to do something for people who need to have something done for them.
If one may take this opportunity to look around a little at the day training centres I think one must confess that they will stand or fall by how they are run, yet nobody has the slightest idea how they are going to be run. We have some ideas of what ought to be done. Clearly illiteracy is one thing that must be dealt with. Many offenders of this type are nearly illiterate and I suppose some training in writing letters, interviewing for a job, and so on, will be included, but it is difficult to do. I think it has to be done almost individually. The set-un for the centres now is three probation officers, each dealing with fifteen men—five before, five in situ and five after ; in other words, each probation officer will have a load of fifteen men: he will have five waiting to go in, five in the centre whom he is looking after and five to whom he is giving after-care. The first thing one notices is that they will be the only probation officers in the British Isles with a load of one-third of normal. This is a remarkable step forward ; we praise it and are strongly in favour of it. In my opinion this kind of person can only be dealt with by something approaching a one to one relationship. This will be a five to one relationship, and in my opinion there will be a great deal of room for volunteers as well.
It is interesting that Giles Brandreth in his book Created in Captivity, tells us

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that at the T.V. station which is run for and by the inmates at Michigan State Prison, the most popular courses, written and presented entirely by prisoners, are on letter writing and on how to fill in the tax form. Whether the latter will be quite so prominent here I do not know ; I think probably not. I think one must realise that this is a difficult and highly skilled operation and we want an assurance that the money will not be stinted. We were told during the discussions on the Bill in another place that everything in the experimental period will be paid for by the Home Office ; in other words, the local authority will not have to make a contribution. There is no limit imposed and I think it will be very expensive. In my view they must have good typewriters, plenty of pencils, ink which is not full of blotting paper. It must not be like an old-fashioned post office, but well run with clean tables ; and the whole thing must be "slap up" if it is going to do any good.
I think it is worth looking at the "profile"—which is the modern word for what people look like—of the type of person we are hoping to deal with. I suppose one could say that this man will have a bad work record, poor health ; he will probably come from a broken family, or if he had ever formed a marriage relationship he will certainly have lost it. He will be grossly incompetent at managing his own affairs, and will often be inarticulate, particularly with middle-class officials. I expect some of your Lordships have read some of Mr. Bernstein's works on articulacy and the difference in vocabulary between ill-educated working class and the highly educated middle class ; the gap is almost total. A great deal of the total case, which is to do good for this class of offender, comes from lack of communications. Once again, this gap can only be bridged by very skilled teachers and a large number of volunteers.
There are three ways in which persons of this type can be "attacked", if one can use that word in this context. First, one must consider their position in the world, and as a rule it is dreadful. Most of these men are bachelors. Those who are not bachelors need help from the marriage guidance people, and in this respect those centres can be of help to
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them. When we refer to bachelors we normally have in mind rather agreeable people—the sort of men one might see in St. James's Street. It is perfectly good to be a bachelor, but in the sector of society we are discussing the word relates to a common lodger, a dosser or a vagrant. There is no social background on which such people can lean. The task of the day training centre is somehow to provide that background, and I am not saying how it can be done because I do not know. I only know that some of the voluntary hostels have succeeded in achieving a great deal.
The second aspect is that of work. People at this level of failure require interest and status rather than money. Of course they like plenty of money for the jobs they do, but above all they want to feel respected ; they want to do jobs which make them forget some of the humiliation they have earned and suffered. This means that one must look at the sort of skills that can be taught to them and the jobs that they can fill once they have learnt such simple skills. When driving towards the South Coast towns one comes across many men thumbing a lift to, say, Bournemouth. When one asks them, "What are you going to do once you get there?" one is often given the reply, "We're going into the summer catering trade, guvnor" Many of them go into the catering trade for the summer and spend the winter on building sites.
We must try to get them to aim a little higher than that. Not that there is anything wrong with building sites or the summer catering trade ; indeed, holteliers often point out that the pilfering from which they suffer is highly organised and is not necessarily caused by the people we are considering to-night ; and that is remarkable. The sort of work they can do is quite varied and includes such jobs as hospital porters, working a little way up the ladder from there. The new careers plan in America has placed over a million offenders in lower grade (if I may used that phrase) social work jobs. This is something that we in Bristol are considering, and I understand that the Home Office intends to help us start something there. These are early days, but it could have a great future.
The first aspect, therefore, is personality and the situation in society, while the

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second is work. The third is transient skills. These people have terrible deficiencies. Many of them cannot read, talk properly, spell or add up. They are in many instances frightened of those who give them money and other forms of help. A great deal can be done about this problem, but those who do it must be highly skilled and specialised and be prepared for unrewarding work. If the Government are serious in trying to make these day training centres work they will have to spend a lot of money on them ; but, having done so, they will have secured something that will be cheap at the price, because these men are the most expensive offenders we have. Home Office circulars on this subject leave many of these points open. A great effort will have to be made if success is to be achieved, and the Amendment would help in that it would meet the wish of those men who desire, on their warden's recommendation, to serve a longer period and be paid for so doing. I beg to move.
LORD GARDINER: I rise very shortly to support my noble friend's Amendment. Most of us are in favour of this imaginative conception of day training centres as an alternative to imprisonment. The short point of this Amendment is whether we are wise in limiting the number of hours. I must say that a number of my noble friends are very sceptical about day training centres although they are in favour of them. I rather think that my noble friend the Baroness Wootton is, though it was her conception. The reason why they are sceptical about it although it is their conception is because the Home Office do not seem to have applied their minds to the question of what is going to happen in these day training centres. One of the governing questions obviously is finance. If you are going to look on this as the alternative to prison then it is £24 per man per week ; if it is the alternative to probation then it is about £1 a week. You cannot really run an effective day training centre unless you are going to provide the money which, if it prevents their going to prison, the State can well afford. They do not seem to have thought out what they are going to do.
The only point of this Amendment is not to limit the number of hours. It seems so silly to fetter the discretion of
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the justices and everybody in this way. If the real trouble with this young man is that he has left school without being able to read—and this applies to some older people too who conceded for years that they simply cannot read—then this is what he really needs. Does it make sense that, because when he comes to the end of a particular number of hours and he has not quite got there but he will if you give him a few more hours, you must refuse him any more because of the limits imposed by the Bill? The sole point of this Amendment is to provide that there should not be this absolute limit on the number of hours. If the man is doing well and is reported on well—"Yes, he has worked hard on this and is getting on well but does need a few more hours "—he should be able to go on. That is the only point of this Amendment and I should have thought with respect that this is right.
9.47 p.m.
VISCOUNT COLVILLE OF CULROSS: It is perfectly right but it is already in the Bill. Under subsection (5), heavily disguised by one of these revolting pieces of cross-referencing, there is power in the court upon the application either by the probation officer or the offender, with the offender's consent, to alter the probation order so that he can further attend the centre, and he will go on getting the money under Clause 45. There is no difficulty about that at all. It is perfectly adequately covered in the Bill. The only requirement will be an application by one or other of those concerned, and it is probable that it will be by the probation officer, who is the one who can judge whether the man could profit by a further period. I hope that is satisfactory. I am advised that there is absolutely no problem about it at all.
Assuming that is so, may I just say a word to both noble Lords, and particularly to the noble Lord, Lord Donaldson, about the content of the courses in the training centres. It is plain from the speech that he made that the noble Lord is drawing heavily upon the experience—and I am glad he did—of the discussions that are already taking place, probably in connection with the Bristol scheme. I do not think that we have committed ourselves to it at the moment but I know that it is a matter that is going forward. The noble Lord says that we soon will.

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I hope that perhaps will be right. The noble Lord has given a pretty good picture of the sort of person who is likely to be helped by one of these day training centres. If I may be forgiven at this hour of the night, having been going since half past two, I will not go through all this criteria again, but I could perhaps just emphasise some of the things we might be able to do. I appreciate that it is expensive and this will be done, by comparison with the rest of the service, on a very small ratio of probationers to probation officers—about a third or less of the usual workload—so there will be pretty intensive supervision and help.
I would also emphasise that, like so much of the rest of this, what we have at the moment is, as it were, suggestions for what might be done at day attendance centres rather than any fixed views about whether the scheme is right or not. It is experimental and it would be a mistake at this stage to adopt an inflexible attitude. I agree about reading and writing. We have a certain amount of experience in detention centres and short prison sentences which shows that something can be done in two months. There is a good deal in what the noble Lord said about filling in forms and generally finding one's way about officialdom and language, and all the paraphernalia of modern life. Every person must have a course tailored for him or her ; it is no use providing a general course with this sort of arrangement: it must be tailored for the particular person.
Health is a problem ; and that includes alcoholism, with the possibility of suggesting somebody to Alcoholics Anonymous or some other sort of cure. There is the problem of getting work and keeping time ; of learning how to conform to the regime in a factory, and how to get used to the whole idea of a regular period of work. For some it may be helpful to have attendance based upon working hours, and the question of timekeeping and that sort of thing. It is possible to train somebody for a short period in the idea of a job and what is entailed. Then there is occupational training, the use of tools and so on ; and again we have a good deal of experience in the Prison Service. I have seen people maybe less inadequate than those in day training centres who are doing comparatively
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difficult joinery cuts after only two or three days. The noble Lord is also right when he says that there is sometimes need for help with family relationships, if they manage to keep their wives or have some other family relationship. That would include home economics, how to budget, things of that sort. The bachelor might very well profit from it, too, whether he is in Seven Dials or St. James's Street—I think Seven Dials is more respectable now. But that is the sort of picture.
I think the noble Lord has done us a service by raising this discussion and he was very accurate and very much on the ball. Perhaps I have expanded it a little and given him some encouragement. I hope now that the noble Baroness, Lady Wootton, will not be quite so unenthusiastic. Perhaps she is not. Anyway, we must see if these experiments work. I appreciate they are going to be expensive, but it is thought that they will be worth while.
LORD DONALDSON OF KINGSBRIDGE: I apologise for having moved an Amendment which was unnecessary, but we have extracted from the noble Viscount the kind of thing I was hoping to hear, and my noble friend has explained to him that he has £24 a head to spend, which ought to enable him to do the job very well. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.54 p.m.
On Question, Whether Clause 19 shall stand part of the Bill?
BARONESS WOOTTON OF ABINGER: We seem to have strayed into discussing Claue 19 in toto on an Amendment of a very small part of it, and I was rather embarrassed as to whether I should speak on my noble friend's Amendment or on the Question, That the Clause stand part ; and I propose to do the latter. I do not know where the story came from that I am unenthusiastic about the whole idea of day attendance centres. This is not true. I am very enthusiastic ; I think it is a highly imaginative proposal. But I am a little concerned about what I have just heard, about how the sentence is going to work out. My noble friend gave a very vivid profile of the type of person expected to attend these centres, and it

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did not quite coincide with what I had imagined. I hope that attendance is not to be restricted to this particular type of very inadequate person.
The Explanatory Memorandum says that the day attendance centres are places where social education will be provided in conjunction with intensive probation supervision. In the clause itself there is no reference to the content of the training. The clause itself says (and I am trying to make my remarks as short as possible) that the person is required to attend only if there is a centre to go to. That is reasonable. He is not to attend for more than 60 days unless this is extended, and when there he has to do what he is told. The Secretary of State may make rules and regulations, and no person is to be appointed to be in charge of the centre without his approval. It does not say a single word about what will go on at the centre, or that the Secretary of State may make regulations as to what will be carried on. The noble Viscount gave a description of some elementary social education, and I hope that if people cannot read or write they will be able to learn there. He has given a description of their learning how to deal with forms and how to hold down jobs.
All this, however, suffers from one extraordinary vacuum which seems to run through the whole penal arrangements ; that is, that one must never mention that the whole object of the exercise is to prevent people from committing offences. The noble Viscount has said we may help them to get on with their families and other things like going to work, good timekeeping and so on. The Explanatory Memorandum says that social education means behaving like a responsible citizen. I hope that when the attendance centres are brought into being they will pay a good deal of time and attention to people's ideas about what is right and what is wrong ; why certain things are prohibited, or ought to be, and how people can be encouraged to see sense behind all these things. A number of people take the view that it is all right to steal from a railway company but quite wrong to steal from someone they know. They need to be led to widen their horizons so that they see that theft from some corporate body is just as criminal as theft from an individual. No
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reference has been made to social education in this widest sense at all and I hope the noble Viscount will be able to assure us that it is not going to be just the three R's, and of keeping a job and being a steady workman.
VISCOUNT COLVILLE OF CULROSS: It would be foolish of the Government not to listen carefully to what the noble Baroness has said. I may have orientated my description too far in one direction. Fortunately for all concerned I am not trying to run or to set up day training centres. The points the noble Baroness has made about the other ingredients in the treatment are very valid and I entirely accept them. Exactly how this is done in any given case must be left to the discretion of the person who is having to train the individual. That aspect of the régime is something we should be reminded of.
BARONESS WOOTTON: I hope some day we shall have a profile of persons who will run these centres because I think the reason the Committee did not dare recommend them was because they thought they would have to be run by archangels of genius and intelligence.
Clause 19 agreed to.
Clause 20 agreed to.
10.0 p.m.
THE EARL OF MANSFIELD THE EARL OF MANSFIELD moved Amendment No. 18:
After Clause 20 insert the following new clause:
Mental treatment for offenders subject to probation order
" . In section 4(1) of the Criminal Justice Act 1948 as amended by Schedule 7 to the Mental Health Act 1959 the words ' not extending beyond 12 months from the date of the order ' shall cease to have effect."
The noble Earl said: I beg to move Amendment No. 18. If this new clause were to take effect Section 4(1) of the Criminal Justice Act 1948 as amended by the Mental Health Act 1959 would then read:
"Where the court is satisfied, on the evidence of a duly qualified medical practitioner approved for the purposes of Section 28 of the Mental Health Act 1959, that the mental condition of an offender is such as requires and may be susceptible to treatment but is not such as to warrant his detention in pursuance of a hospital order under Part V of that Act the corm may, if it makes a probation order, include therein a requirement that the offender

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shall submit, for such period … as may be specified therein, to treatment by or under the direction of a duly qualified medical practitioner with a view to the improvement of the offender's mental condition."
I will say at once after the last matter that I raised in your Lordships' House that this is intended to be helpful. It is intended to give the courts the greatest possible discretion. I do not think it is going to cause any trouble to anybody. I have moved this Amendment hoping that the noble Viscount would at least consider it. For my own part, in my own professional practice the only time when I have come up against psychiatrists and persons of that ilk who like to have more than 12 months is in those desperately sad cases of infanticide where women kill their young children. I beg to move.
VISCOUNT COLVILLE OF CULROSS: I am very much inclined to advise the Committee to accept this Amendment. Whether the Committee would like to do it on the drafting of my noble friend—and it is no insult to him for me to suggest that there may possibly be snags in drafting, as there always is, so far as I can make out, in drafting by anybody other than the official draftsman—or whether it would be better to leave this for me to put down an Amendment at Report stage, I do not very much mind.
I should like to make one point, and I think those who advocate this should bear it in mind. As my noble friend said, I think it is not very often that it will be suitable to carry on the mental treatment as a condition of the probation order for very much longer than 12 months. Usually it is found that if success is to be achieved with these cases it is possible to establish a relationship between the patient and the doctor which does not need to be supported by a compulsory condition in the probation order for that length of time. If it is not possible, then it is probably better not to try to do it under a probation order but to go for a hospital order instead, although I know that that needs certain certificates. I do not wish it to be thought that this Amendment will provide the complete cure for the difficulties that arise for those who are on probation with a mental treatment order, because at the moment the usual case is somebody who can be helped quite quickly by a
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psychiatrist but still needs the supervision and help of the probation officer, even after that treatment is over. That is the standard sort of case to which the provision at the moment applies, though I understand that there can be exceptions. I think that it would be useful if we extended the discretion of the court in this way. If the noble Earl would like to have the Amendment in this form I do not mind. It might need some consequential Amendments, however, and he might prefer to withdraw it and put down an Amendment at the next stage.
THE EARL OF MANSFIELD: I am most grateful to my noble friend. I thought that I drafted the Amendment rather well, and should prefer it to be accepted.
On Question, Amendment agreed to.
VISCOUNT COLVILLE OF CULROSS: Although we still have a certain way to go, some of the bulk left is in fact in large Amendments in my name which I think—and I pray—are going to be fairly non-controversial. The Committee may think that this might be an appropriate hour at which we could break off and resume another day. If so, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

DEVON RIVER AUTHORITY (GENERAL POWERS) BILL
The Queen's Consent signified, and Bill reported with Amendments.