REHABILITATION OF OFFENDERS BILL [H.L.] (Hansard, 8 March 1973)

HL Deb 08 March 1973 vol 339 cc1305-82 1305

§ 4.9 p.m.

§ LORD GARDINER
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

1306

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

§ On Question, Motion agreed to.

§ House in Committee accordingly.

§ [The EARL OF LISTOWEL in the Chair.]

§ Clause 1 [Rehabilitated persons and spent convictions]:

§ LORD GARDINER moved Amendment No. 1: Page 1, line 7, after ("Court") insert ("(including any Court Martial)").

§ The noble and learned Lord said: As this is the first Amendment, may I say how grateful I am to all noble Lords who took part in the Second Reading of the Bill, who had evidently studied it and who were good enough to make proposals for its improvement? I should also like to thank noble Lords who, surviving the railway strike, have continued to show their interest in the Bill this afternoon. Nearly all the Amendments on the Marshalled List are Amendments which I am moving in order to meet points which were raised by noble Lords in different parts of the House on the Second Reading of the Bill. Indeed I have been, and I shall continue to be, most anxious to meet any such points so long as they do not destroy the principle of the Bill.

§ This first Amendment arises out of correspondence that I have had. The first letter that I received on the subject was from a man who, when he was a young soldier in the Army, was convicted of housebreaking, and as it was his first offence he was fined and he has never committed any offence since. He asked whether it was clear that the Bill applied to convictions by courts martial. It had never occurred to me that it did not. It applies to convictions by "courts" and I should not have thought that there was much doubt; but if there is a doubt it is always better in legislation to clear it up. Therefore I thought we ought to have an Amendment stating either that the Bill does apply to courts martial, or that it does not. I know of no good reason why it should not, and accordingly I beg to move.

VISCOUNT COLVILLE OF CULROSS
If I am more than slightly "scatty" this afternoon about some of these provisions, I hope the Committee will forgive me, because I have been somewhat involved in other events immediately before and 1307 during lunch. But I think I ought to say a word about this Amendment. I believe the noble and learned Lord is right: that we ought somehow to deal with some of the offences which come before courts martial. When one goes into this point in rather more detail, however, I am not certain that we shall not get ourselves into some difficulties in a number of different ways. Whether this matter is susceptible of being dealt with simply by way of Amendment I am afraid I do not know at the moment, because I have only very recently had any advice from the Ministry of Defence on this point and it is one of substantial complication.
There are of course cases such as the one which the noble and learned Lord mentioned where a conviction by a court martial comes to almost the same thing as a conviction by a civilian court. But there are also others where that does not apply, because, after all, in any of the disciplined Services one has matters dealt with by courts martial which are not necessarily the equivalent of an offence in the ordinary civilian sense which would be tried before a criminal court. When one includes in Clause 1 of this measure a provision which allows rehabilitation in respect of courts martial we get into difficulties, not only with the definition of what these people are being rehabilitated from—which are not necessarily ordinary, civilian type offences—but also with the whole of the really important area of discipline and the correct choice of personnel for the Armed Forces. Because, as the noble and learned Lord and, I am sure, other Members of the Committee will know, the Army, the Navy and the Air Force are extremely careful, first of all about whom they enlist.
As it happens, there is a form called an attestation paper—this is not directly relevant to the Amendment, but I think I ought to set the military background to it —which a recruit completes and which requires him to mention any previous convictions. A false answer to that question is an offence under the Service Discipline Acts. That paper is kept with his personal records throughout his Service career and, in addition, all convictions by civil courts and all but the most minor convictions by military authorities are recorded in his Service record. These are—and, I think, rightly, should be—available to a court 1308 martial when they consider sentence, if ever a man should appear before them. I say that rightly they should consider them, because not only are they considering whether he should be sentenced to this or that penalty, but they have to bear in mind the question whether they should retain the services of that man in the Armed Forces at all. As the Committee will appreciate, it is of substantial importance that one should make sure that the people in the Armed Forces are really suitable for the increasing responsibilities which are thrown upon them these days. So I think it is right that disciplinary authorities in a disciplined Service should take any convictions into account in deciding whether or not they want to keep a man any more.
I would therefore suggest, although I do not want to object to this Amendment, that there is a good deal more in the whole question of Service discipline than simply appears from the short and simple case which the noble and learned Lord put in moving his Amendment. After all, we should be getting into a situation where the Armed Forces were put into a position like that of any other employer, but they are not just "any other employer", any more than is the Civil Service. There are matters which, for the security of the country or for the good discipline of the Services, they ought to know and ought to continue to have in mind when they are considering the future, the promotion and other responsibilities given to a man—or, indeed, a woman, because it is just as important with them—who is serving among them. Therefore, although I do not want to object to this Amendment, because I am quite sure that the noble and learned Lord is right that once you accept the principle of the Bill courts martial ought to be included, I do not think we can leave it at that. It is a pretty complicated exercise to see how to distinguish between those offences which are just civilian type offences and those which are not, and to decide whether we ought to make an exception for military records of all convictions, whether in civilian or military life, for the purposes that I have mentioned.
That is a brief description of what is indeed a very complicated subject, and I think the noble and learned Lord will appreciate the validity of what I am 1309 saying. Quite how we deal with it I am afraid I do not know. I have to confess to the Committee that I am in this general difficulty about the Bill, that without the services of those who are expert in drafting these provisions, which I am afraid I have not been able to obtain, I cannot advise the Committee in detail how one ought to handle this situation. I am sorry, but that is something which has to be faced. So if the Committee will bear in mind that accepting this Amendment is really an incomplete solution to what are some fairly substantial problems, I think we may certainly proceed. But the Committee should not, in any sense, be wholly satisfied with this provision as it would stand if this Amendment were made.

§ LORD SHACKLETON
First of all, I understand that the Government are not advising the Committee to reject this Amendment, and therefore we hope that we shall carry it. But I should like, if I may, to deal with some of the noble Viscount's arguments, even though we acknowledge that he is under some personal pressure and, for all I know, like me, has had no lunch to-day. I am a little shocked, first of all, that one reason that has been given is that no drafting facilities are available. I do not myself recall such an explanation being given to a Committee of your Lordships' mouse as a reason for being unable to deal with a particular Amendment. Perhaps the noble Viscount was a little—I will not say too frank in this matter, because in a sense it is not in the first instance (and I accept this) the responsibility of the Government to put the Bill right. But ultimately, whenever we have completed and, as I hope, passed the Bill through all its stages, there may be a time when one hopes the Government will pick it up, if there still are serious defects, as has been done frequently with other legislation. Having had some experience, when I was Minister for the Civil Service Department and had some responsibility for Parliamentary draftsmen, I know the difficulties that arise here, and that this is not a new difficulty. But I get the impression that it tends to get more acute rather than less acute and there is no easy solution by just saying, "Go out and recruit a couple of Parliamentary draftsmen", because, without going into a long lecture, it is a most complex 1310 arrangement. None the less, I do not think Parliament will generally be inclined to accept this as a satisfactory excuse in the long run, and I say this with the greatest sympathy to the noble Viscount, whose fault it is not in any way.
Turning to his remarks on the Amendment, it seemed to me that he was arguing on two bases. The first was that the Armed Forces were sui generis, and that therefore we had to be particularly careful. At the same time, many of the arguments that he used applied equally to others, and he himself referred to the Civil Service. This is a point where perhaps my noble and learned friend Lord Gardiner may be able to help us. As I understand it, there is no suggestion of there being records that people may have of a conviction, or which they might have obtained, assuming that they were properly obtained—and, after all, the Services, above all, are in a position to get this information, because they have access to the Criminal Records Office. I do not see why this should present any difficulty at all where the Services are concerned, any more than it would present a difficulty to the Civil Service. Therefore, I have yet to be convinced that that is an argument of any significance at all.
Secondly, I cannot myself think (and the noble Viscount did not give an example) of any particular military offence, an offence in respect of which there was a conviction at a court martial, which would not have been an offence under civilian criminal law to which it would be inappropriate to apply the provisions of this Bill. I take it that the noble Viscount has not had time to be briefed—

VISCOUNT COLVILLE OF CULROSS
Yes, I can give the noble Lord several examples straight away. Let the noble Lord consider these: misconduct in action, assisting the enemy, disobedience to lawful commands, desertion—

§ VISCOUNT DILHORNE
If the noble Lord wants a much simpler one than that, it is conduct to the prejudice of good order and military discipline, which covers a wide field. There are many examples of purely military offences.

VISCOUNT COLVILLE OF CULROSS
I was coming on to that one. I was simply going down the list, and in fact the noble and learned Viscount has quoted 1311 the last one. But there are a large number which are offences carrying very substantial penalties under the Army Act and the equivalent other Service legislation, which are not civilian offences at all.

§ LORD SHACKLETON
I did not suggest that there were not offences—indeed. I thought I specifically said there were—under military law which would not be offences under civilian law, and peculiar to the Services. But what the noble Viscount did not give to me—and he has not yet given it to me, despite the list he has given—is an example as to why these particular convictions should not be spent the same as any other conviction. We shall have to examine this in great detail, but I cannot see why, under the terms of this particular Bill, if the principle is accepted, they should not be spent. Therefore, I am not sure really that the criticism does not strike at the heart of the Bill itself. Obviously, there may be various offences under civilian law which some people say ought to remain permanently on the record in some way; but the whole purpose of this is that, for the purposes of this Bill, these convictions will be spent, and not one of the list that the noble Viscount read out seemed to me to be of a kind which could not be spent after the very lengthy periods that my noble and learned friend has proposed. It may well be that there are certain categories; it may well be that they might wish to have a longer period; but I really have not yet found an example to indicate that court martial convictions should be different from those in other courts.
I would also remind the noble Viscount that it is not only Service men and women who can come before a court martial: it can be civilians also. Civilians are convicted by court martial. I remember one case in which the noble Lord, Lord Carrington, actually agreed to an Amendment of mine by which somebody who has been convicted by a court martial and has appealed can also appeal against sentence, which the ordinary Serviceman cannot. I only mention this to remind the noble Viscount that civilians may be convicted by a court martial of an offence which, if it had been committed in this country, would have been tried in front of a civilian court.
1312 Therefore, I think that in a way the arguments which the noble Viscount has put forward are fairly fundamental with regard to his understanding of the Bill. I do not mean this offensively; I mean that these criticisms which he has levelled could also be levelled at the purpose of the Bill. As far as I am concerned, I am bound to say that I feel strongly inclined to support my noble and learned friend. It may well be that further consideration will be given to this, and if special drafting advice and help is necessary I hope it will be forthcoming. But it may be that the noble Viscount will have a chance to talk to his noble friend Lord Carrington, who I am bound to say I have always found to be rather liberal and progressive in these matters.

§ 4.28 p.m.

§ VISCOUNT DILHORNE
I regret that I cannot agree with the noble Lord, Lord Shackleton, in the view he has expressed. The purpose of this Bill is surely to deal with convictions for offences against the criminal law of this country. It is not intended to deal with offences committed against the Civil Service code; it is not intended, as I understand it, to deal with purely military, naval or Air Force offences. The noble Viscount, Lord Colville of Culross, gave examples of some. As I read the object of this Bill, it is to deal with criminal offences only; and I hope the noble and learned Lord, Lord Gardiner, will agree with me. That being so, so far as that goes I would agree with the noble Lord, Lord Shackleton, that you should not distinguish between offences against the criminal law of this country whether they are tried by court martial or by the ordinary courts. The noble Lord is of course quite right when he says that civilians can be tried for offences which are against the law of this country by court martial when they are overseas. To that extent I go with the noble Lord, but he went much further and dealt with what I would regard as purely military offences.
This Bill is not intended to deal with those, and I think it would be wrong if it had any application to them. When I read the Amendment I did not think that that was Lord Gardiner's object: I thought his object was to secure that a conviction for an offence against the criminal law of this country should be 1313 treated just the same whether the conviction took place before a court martial or an ordinary court. To that extent I am in complete agreement with the purpose of this Amendment. But I do not think the Amendment will do in its present form; and although the noble Viscount, Lord Colville of Culross, has said that he is not prepared to oppose it, I hope that the noble and learned Lord, Lord Gardiner, will withdraw it on this occasion and give further thought to the matter before tabling an Amendment—and I think an Amendment is necessary—for the Report stage.
What I should like to see provided is a conviction for an offence, which is an offence under the criminal law of this country, by a court martial; and that is not provided now. If you are going to include courts martial convictions in this Bill for that kind of offence I would say to the noble and learned Lord, Lord Gardiner, that he will have to make consequential Amendments of a fairly substantial character to Clause 5(3) so as to permit the record of convictions of those offences, and other criminal offences, to be admissible on trial before a court martial; not only among the list of previous convictions given after conviction but also admissible when, under the ordinary law, they are admissible in evidence now. I know that this is going beyond the Amendment, but it is linked with it.
If I understood Lord Gardiner's intention behind this Amendment, I am completely with him. But I am not with him if it is to extend the scope of the Bill to include what are purely military offences. It was twenty years ago, I think, when I had a good deal to do with courts martial and I may have forgotten a great deal. But I think that I have always been able to draw a very clear line between military offences and criminal offences. If we draw that line in this Bill, despite what the noble Viscount, Lord Colville of Culross, has said, I think that it would be workable; and I hope that the noble and learned Lord will table an Amendment to that effect and get it in the right way for the next stage of this Bill rather than press his Amendment to-day.

§ LORD DONALDSON OF KINGS-BRIDGE
May I ask a question? I do 1314 not know who should answer it. Is it possible that some military offences carry over into a criminal punishment? I rather think it is.

§ VISCOUNT DILHORNE
If the noble Lord means whether a person convicted of a military offence can be sent to prison the answer is "Yes". But it is a purely military offence. The noble Viscount gave examples, and I think they were good ones. There could be heavy penalties. Take mutiny, for example. It is a serious military offence but no one would regard that as an offence against the criminal law of this country. If the Bill is intended to apply to criminal offences, I would support it.

§ LORD DONALDSON OF KINGS-BRIDGE
I think it is worth pointing out that the list of offences which the noble Viscount gave from the Front Bench were almost without exception offences which would carry larger penalties than this Bill would apply, which I think is important.

VISCOUNT COLVILLE OF CULROSS
No, that is not right. The maximum sentence for being absent without leave is two years' imprisonment. We shall consider an Amendment shortly which would increase the scope of this Bill to 30 months. Damage to or loss of Service propery has a sentence of two years under Section 44 of the Army Act, and some of the others have as well. In any event, it is not the maximum sentence that matters; it is the actual sentence imposed by the court martial.

§ LORD DONALDSON OF KINGS-BRIDGE
My question having been answered, I think I would, on the whole, come down on the wider side with the noble Lord, Lord Shackleton. I think that there is a problem. I was convinced by the noble and learned Viscount, Lord Dilhorne, that one should draw a distinction here, but generally speaking the more se-lions military offences are punished with a punishment greater than can be imposed by this Bill. Absence without leave is not a terribly serious offence, in my view, and is the kind of thing you could forgive after a period of five years' perfect behaviour on the part of the offender.
The point I wish to make is that the principle of the Bill is that the act of wrong doing which is proved and for 1315 which the offender is convicted on one occasion should, after a period of right doing, no longer be evidence that the man is not worth the next step under consideration whatever it may be. In the case of the Services there will have been the closest possible supervision of the man for a minimum of five years, and in more serious cases seven and sometimes ten years. If there is no other cause not to keep him on, or not to promote him, or whatever the situation may be beyond the conviction five years previously. I think that I should support the wider interpretation

§ 4.35 p.m.

§ BARONESS WOOTTON OF ABINGER
The noble and learned Viscount, Lord Dilhorne, has clarified the position a good deal. But I think that even now we have not got it crystal clear—or at any rate I have not. It seems to me that there are military offences which are of interest to the military and therefore should be quotable in a military context, irrespective of this Bill, should there be subsequent military misconduct and misbehaviour. There are ordinary criminal offences which could be dealt with either by a civil or a military court. They should all come within the ambit of this Bill. If that is so, surely the right course would be to make some Amendment to Clause 2, which says that a rehabilitated person "shall be treated for all purposes in law …" and a discrimination could be made there between the military conviction and the civilian conviction.

§ VISCOUNT DILHORNE
With respect, I do not think that can be right. You must have the Amendment to Clause 1. It is Clause 1 which says that in certain events the conviction will be spent.

§ BARONESS WOOTTON OF ABINGER
I was supposing that you would have the court martial referred to in Clause 1 and deal with the subsequent difficulties under Clause 2; that you would exclude the military offences under Clause 2. I was intending to support the Amendment that a court martial should here be mentioned and that the scope of including it should be by an Amendment to Clause 2.

§ LORD SHACKLETON
Before the noble and learned Lord, Lord Gardiner, answers, I wonder whether he could 1316 clarify a point for me. I am very ignorant on these matters. Is a conviction by a court martial disclosed in a subsequent case in a civil court? The fact that somebody had committed some minimal offence, perhaps not merely being absent without leave, but had been guilty of that well-known Service habit of occasionally appropriating someone else's property, which I am not suggesting goes on all the time—and I cannot remember the Service phrase—does the noble and learned Viscount wish to intervene?

§ VISCOUNT DILHORNE
I do remember the Service phrase—it is "scrounging".

§ LORD SHACKLETON
I am very grateful to the noble and learned Viscount. It seems to me that it would he very unfair if such a conviction were revealed; and there are other offences of varying degrees.

§ VISCOUNT DILHORNE
With respect to the noble Lord, "scrounging" may be the colloquial expression, but the offence would be larceny, or stealing, or theft—whichever is the modern word—which is an offence under the ordinary English law. The offender would never be charged at a court martial with "scrounging".

§ LORD SHACKLETON
Perhaps I could lead on to another point—

VISCOUNT COLVILLE OF CULROSS
The noble Lord, Lord Shackleton, is having a rough time during his short speech. I am trying to recall the fairly substantial number of criminal records that I have been looking at recently in connection with parole cases which I consider. My recollection is that what goes on the police record is a conviction by court martial for something which is equivalent to a criminal offence under the ordinary law, and of non-Army or non-military type. I do not recall ever having seen a conviction by court martial, or indeed any other disciplinary corrective method by a commanding officer or anybody else, which was of a purely military type. I think that the record already makes the distinction that the noble and learned Viscount, Lord Dilhorne, has made.

§ LORD SHACKLETON
That is very helpful, but of course it disposes of 1317 the argument which I think the noble and learned Viscount, Lord Dilhorne, advanced, that you can make a natural distinction between a military and a civil offence—

§ VISCOUNT DILHORNE
No—

§ LORD SHACKLETON
If I may just finish my sentence, then any noble Lord may tear me to pieces. That would be very educational for me, if not for the Committee. The point I was going to make was this: I may be wrong, but it seems to me that on occasions there may be a choice in these matters. The noble Lord has said that the convictions which are revealed have always been ones for which there was a civilian equivalent. May there not be a conviction under the military code which had no exact parallel in civilian cases? I believe this is the point to which the noble and learned Viscount was referring—or in certain circumstances, it might be decided that instead of prosecuting somebody for a civilian offence such as being drunk and breaking up furniture, causing damage and so on, a man might be convicted of, say, "behaviour unbecoming an officer". It seems to me that it may not be so easy as the noble Viscount suggests to make these distinctions. I think I have asked all the questions that my limited knowledge allows me to do.

§ 4.41 p.m.

§ VISCOUNT DILHORNE
My recollection is that all the ordinary criminal offences that can be committed by a civilian used to be charged under the old Army Act under. I believe, Section 41, which had the broad heading of "committing an offence under the criminal law", or something of that sort. So you always knew that if a man was convicted under Section 41 the offence was one against the ordinary law.
Turning to what is included in the list of previous convictions which goes before an ordinary court in this country, I have prosecuted in many cases and I do not know how many lists of previous convictions I have seen in that capacity and in others, but I cannot recollect ever having seen included in one of those lists a court martial offence of any kind. It may be that they could be included, but I cannot recollect ever having seen it done. I certainly do not think it would be wrong to include what was clearly a court martial 1318 conviction for an offence against the ordinary law. I would indeed be horrified if any offence for what I would have called a military offence were included. I do not believe they ever have been. I do not believe that, if they were, a judge or a court would take them into account or have any regard to them at all. I would think that the judge might make some strong observations about their being included. I do not think one need worry about that.
I assure the noble Lord that there is a clear line, and if it be that before the court martial, instead of charging "larceny" the charge was some other purely military offence only applicable to members of that Service, then I say that would be a military offence and should not come within the scope of this Bill, because it would not be used in ordinary criminal proceedings and therefore it would not be used for any other purposes except as part of the man's military record. There I think it would be rightly used.

§ LORD GARDINER
I do not think the noble Viscount, Lord Colville, has dealt with this point; and my information is a little different from that of the noble and learned Viscount. Lord Dilhorne, because as I understand it, these matters are often referred to in criminal courts, and indeed it would not be right if the criminal court did not know that the man had been dismissed the Force and, if so, what for. I think there is in the Committee a general view that this Bill should certainly apply to convictions by courts martial of what are criminal cases ordinarily tried in the courts. Therefore I would hope to carry the noble and learned Viscount with me if I were to ask the Committee to accept this Amendment for to-day, while promising that I will consider whether the definition of "offence" should be altered so as to exclude purely military offences. That would warrant further investigation, I think, and I should welcome any assistance available not only from the Home Office but also from the Ministry of Defence, and in particular from the noble Lord, Lord Carrington.
It was just about six months ago that I took my first draft Bill to the Home Office and I have naturally been very disappointed to learn that even now they cannot get a draftsman or help 1319 with the drafting. It may be that the Ministry of Defence is in a better position. So far as records are concerned no difficulty arises, because under Clause 7 it would be for the Secretary of State to say who has access to the records; but obviously the Armed Forces will always continue to have access to their own records.
The question which really arises is that if the offence for which someone is convicted is a purely military offence, is it one for which the person should never have any opportunity throughout his life of ever rehabilitating himself? It may be that that is right; I do not know. But I am not clear why. To take a purely military offence to which the noble Viscount referred—"absence without leave"—it must be remembered that under this Bill we are in the main dealing only with people who, having been convicted, have done absolutely nothing wrong for 10 years. Is it really to be said that it is absolutely essential that he should never be able to rehabilitate himself if he went absent without leave 10 years ago? It may be right. All I can say is that I should like to have an opportunity, if this Amendment could be accepted to-day, of considering further everything that has been said before we get to the Report stage, with a view to saying whether applying the Bill to convictions by courts martial, certain exceptions ought not to be made. On that, as hitherto, I should welcome the assistance of the Government.

VISCOUNT COLVILLE OF CULROSS
May I say one more word on this? The noble Lord, Lord Shackleton, said that I was perhaps a little too frank in saying that I had not had the assistance of specialised draftsmen. I say this for a very good reason. When I am attempting to advise the Committee on the attitude it might care to take on some of these Amendments, I do it without having had the chance to look at the necessary crossreferencing—which truthfully only a Parliamentary draftsman can do—and I therefore do it really by way of warning. Even if I say on any occasion during this Committee stage or at subsequent stages of the Bill that I think something is right, I cannot guarantee that there will not be consequential points to be cleared up. 1320 Therefore I make this warning at the beginning to put everybody on guard and to lot the noble and learned Lord know that, with all the good will in the world, I cannot be sure there are not other things to be done. But simply on this, I think he may be right that one could allow the records to be transmitted or disclosed for the purposes of courts martial under Clause 7. But I just wonder quite how this fits in with Clause 2, paragraph (b), which says: no evidence tending to prove the contrary "— that is to say, contrary to the fact that the conviction was spent— … shall be admissible in any Court or tribunal having jurisdiction in any part of Great Britain. This may be a bad point What about a court martial sitting abroad? Is it covered? It would be very strange if a court martial sitting in this country were not allowed to take these matters into consideration, yet if it were a court martial sitting under the auspices of NATO in Germany it would be. This is the sort of consequential matter that I think the noble and learned Lord should look at, because I believe that courts martial, if they are going to consider matters such as dismissal from the Service, must have the record, whereas a civilian court may very well be able to dispense, perfectly properly in accordance with the philosophy of this Bill, with any knowledge of offences which have occurred a long time ago and are no longer relevant. So it is this sort of thing which I hope the noble and learned Lord will have a chance to look at.

§ On Question, Amendment agreed to.

§ 4.50 p.m.

§ LORD GARDINER moved Amendment No. 2: Page 1, line 17, after ("conviction") insert ("(in this Act called a "spent conviction")").

§ The noble and learned Lord said: In speaking to this Amendment, may I also speak to Amendments Nos. 3, 5 and 6? There is no doubt that on Second Reading the question that was least popular was: what was going to cause the authorised lie, which comes under Clause 2 paragraph (a)? During the course of discussions two most helpful suggestions were made, one by the noble and learned Viscount, Lord Dilhorne, that the convictions referred to in the Act as "spent" 1321 should be treated as if they had been quashed; and the other by my noble friend Lord Shackleton, who suggested a clause providing, in effect, that any question put to a rehabilitated person, or to anybody, about his past, and any answer thereto, should be deemed not to relate to his spent convictions, or to the offences forming the subject thereon.

§ The merit of these two Amendments—the others are only consequential—would enable us to get rid of the clause in the Bill which was the least popular clause, Clause 2 paragraph (a), which was called the "authorised lie". The effect of these two provisions would be that anybody could quite properly and truthfully answer any questions about his past, because the law would have provided that the question and any answer to it would be deemed not to apply to a conviction which had been treated as spent under the Bill. I hope the Committee will be prepared to accept those Amendments as a considerable improvement to the Bill. I am most grateful to the noble Lords who made those suggestions. I beg to move.

§ VISCOUNT DILHORNE
I am grateful to the noble and learned Lord for accepting the suggestion that I put forward to him. I think it is a great improvement to the Bill. The use of the word "quashed" has considerable significance. It is true to say that a man may be convicted at assizes, but if his conviction is quashed by the Court of Appeal (Criminal Division) he is treated as never having been convicted at all. By the use of the word "quashed" you get to the same position here: that if, by reason of the rehabilitation period having expired, his conviction is to be treated as quashed, it is to be treated as never having occurred. That enables one to get rid of the objectionable provision to which the noble and learned Lord, Lord Gardiner, referred. These Amendments make a considerable improvement to the Bill.

§ LORD SHACKLETON
I take it that any points regarding Amendment No. 6 will be dealt with now? There is much to be said for mopping them all up together. Before I make the few remarks that I have to make on Amendment No. 6, I wonder whether the noble and learned Lord is going to move Amendment 1322 No. 6 formally. I should be perfectly agreeable to that.

§ LORD GARDINER
I would move all the Amendments together but I cannot, because Amendment No. 4 comes between them and it does not relate to this matter at all. It would be convenient, I am sure, if we were to speak, as I did, to Amendments Nos. 3, 5 and 6 while dealing with Amendment No. 2.

VISCOUNT COLVILLE OF CULROSS
I should be perfectly happy about that. In that case, I hope the noble and learned Lord will explain Amendment No. 6 a little more fully, and how it is going to work. I see practical difficulties in the questions that might be put and the answers that might be given.

§ LORD SHACKLETON
It might be better to take the Amendments separately, in which case I will say no more at this stage.

VISCOUNT COLVILLE OF CULROSS
I understood that this Amendment and Amendment No. 3, which we are dealing with, lead up to Amendment No. 6. The substance of the matter is in Amendment No. 6. I agree with the noble Viscount, Lord Dilhorne, that this is a change in approach and an improvement in the Bill. This is a point which has been perfectly adequately made already; it is one I appreciate and need not elaborate on. But there are some practical points which ought to be looked at when we come to the new form of the paragraph in Clause 2.

§ LORD SHACKLETON
The paving Amendment for this would be Amendment No. 4, would it not?

§ LORD GARDINER
Amendment No. 4 relates to a different matter.

§ On Question, Amendment agreed to.

§ LORD GARDINER
I have already spoken to this Amendment. I beg to move Amendment No. 3.

§ Amendment moved— Page 1, line 18, leave out ("spent") and insert ("if it had been quashed").—(Lord Gardiner.)

§ On Question, Amendment agreed to.

§ On Question, Whether Clause 1 shall stand part of the Bill?

VISCOUNT COLVILLE OF CULROSS
I hope that the noble and learned Lord will not mind the continuing dialogue on 1323 the drafting of this Bill. This relates to paragraph (c) in Clause 1. As it is drafted at the moment a person gets rehabilitated only if he has duly served or complied with his sentence. What I want to know is what happens about the payment of fines? If one looks at the Schedule—I know this is going to be the subject of Amendments later, but it is clearly illustrated as things stand at the moment—one sees that the conditions for getting rehabilitated if you are fined are that you should pay the fine within the time limited by the court, or make payments ordered within the time limited by the court. It is notorious that people default on the fine in terms of paying it at the time when the court originally told them. It does not necessarily mean that they do not pay it subsequently, or that they do not go back and arrange instalment payments, which they do not always comply with. But in the end the whole thing gets paid off. As the Bill stands at the moment on this matter, unless the man is meticulous in paying the tine he is not going to get rehabilitated. I doubt whether the noble and learned Lord means that. There is therefore some drafting which needs to be done on this point which I would draw to his attention.

§ LORD GARDINER
Yes, that is exactly what we mean. There may be more than one view about this; but this Bill is going to do a great deal for a great many convicted people. The noble Viscount is quite right in saying under the Bill as drafted—and this was intended—if the order of the court is that you have to pay the fine by a certain date and you do not do it, you have not complied with the order. I can see that there may be two views about that. I suggest to the Committee that this is a Bill conferring advantages on people. Many people throughout the country have become much too slack in the payment of fines. We all know that there is a great difficulty in collecting fines, and a great many people do not seem to realise that the orders of courts have to be obeyed. Therefore, if the beneficent provisions of this Bill are to apply to about a million people, they ought to comply with the order of the courts and pay their fines in time.
This Bill does something to make people realise more than they do to-day that if 1324 they are ordered by a court to pay by a certain date, they must pay by that date. I appreciate that there may be another view. It may be said that it is rather hard on a man, simply because he may have fallen ill or something of that sort, if he does not pay by the due date. But in the first place the court does not order fines to be paid by a certain date without knowing something of the man's means. If any difficulties supervene there is no difficulty in going back to the court and asking for an extension of time. If he gets an extension of time and pays within that time he will have complied with the order of the court. It is quite possible that there might be another view about that, but as the noble Viscount has asked what the effect of the Bill is and what is its intention, I am saying that that is the effect of the Bill and that is what is intended.

§ LORD SHACKLETON
I am bound to say that I am rather on the side of the noble Viscount. My noble and learned friend has taken a somewhat draconian view of this matter and it seems to me that, essential though it is that people should show respect to the courts, it is quite extraordinary that where people can purge an offence and have it spent if the due time has gone, if they have offended against the courts by not paying within the due time they will never be forgiven and it will never be spent. If I may say so, I find that this is the sort of view that sometimes worries laymen when judges are "tough", as they sometimes are, and are committing people for contempt in certain circumstances. If I may take a layman's view of this, I hope my noble and learned friend will consider the possibility of a suitable Amendment so that somehow the non-payment of a fine in due course may, after a suitable period, be spent.

§ VISCOUNT DILHORNE
I did not want to raise this point but it may be rather more convenient if I mention it now, although I may mention it again on another matter later. This particular provision, Clause 1(c), will apply not only to fines. Therefore, I find myself rather on the side of the noble and learned Lord, Lord Gardiner; it is a curious division between the proponents and the opposition. But I do not want to raise this matter of a suspended sentence put into operation. When the man has served that 1325 sentence he will have complied with the sentence. At some time—it may not be convenient now—I hope the noble Lord will explain that. The Bill deals with a suspended sentence which is not put into effect, but I am not quite certain how the Bill operates in relation to a suspended sentence which is put into effect. Supposing a sentence is suspended for three years and in the course of the second year it is ordered by a court to be put into effect. I am not quite sure how that would operate, because as I read the Bill the rehabilitation period runs from the date of conviction and not from the date of the commencement of the sentence. I mention this now because it may be that we shall not be able to conclude these proceedings to-day, although I rather hope we will. But it is a point to which I think noble Lords should give some attention. I may have got it wrong and I am quite prepared to admit it if I have; but I think it needs clarification.

VISCOUNT COLVILLE OF CULROSS
May I say one thing in order to make sure that the line-up is not incorrectly drawn? It had not occurred to me that the noble and learned Viscount was in fact taking this strict view. I am hound to say that from the point of view of trying to maintain law and order in respect of the courts should have to agree with him. It was simply that I thought he would probably wish to take the rather more liberal view expressed by the noble Lord, Lord Shackleton; but I must say that I welcome the strict view which he has taken because I feel sure that the points he made are very sound.

§ BARONESS WOOTTON OF ABINGER
I should have thought that the strict view was really not all that strict. The convicted person has the right to go back to the court, as my noble and learned friend has said, and ask for longer time, in which case he is rehabilitated. I think we might have in mind that persons who flout their fines are usually those who have had fines imposed for not very serious offences. Therefore, it would not be so damaging to the convicted person as if the offence carried a sentence of imprisonment for which he had served the sentence of imprisonment. If he has deliberately not paid his fine—and I think we must say that it is deliberate if he does 1326 not go and ask the court for further time—then it seems to me that the strict interpretation is quite right.

§ LORD WELLS-PESTELL
May I ask a question for information? What would be the position of a defendant who, having been convicted of an offence and fined and given, say, 28 days or two months in which to make the payment, applies to the court for an extension of time; he gets the extension of time and still does not comply and subsequently the court has to impose a sentence of imprisonment in respect of the unpaid fine? Would that come under Clause 3(1)(b) under which the rehabilitation period is seven years, where the sentence imposed was a custodial sentence for a term not exceeding six months? This frequently happens, certainly in magistrates' courts, where defendants are fined, perhaps, £30, £40, £50 or £100 and sometimes more, and where ultimately it is necessary to impose a sentence of, perhaps, three months or ninety days because the fine hat not been paid.

§ LORD DONALDSON OF KINGS-BRIDGE
May I ask one further question in order to settle exactly where my alignment is in this rather interesting split? Take the case of a man who at the age of 17 or 18 commits an offence for which he is fined £100, and is given 28 days in which to pay because he is in a position where he can pay, and does not pay. He goes abroad and when he comes back he feels better about it and pays before any further attack has been made on him by the court. Then some years later the question of his rehabilitation comes up and he quotes the Act in his defence. Will they say, "Because you paid £100 a month late seven years ago you are just as unable to be rehabilitated as you were before the Act was passed"? This seems to be very peculiar indeed.

§ BARONESS WOOTTON OF ABINGER
Surely in those circumstances the events will be quoted and he will be able to give the explanation.

§ LORD GARDINER
The answer to the question raised by my noble friend Lord Wells-Pestell is plainly Yes; if you are sent to prison for the non-payment of a fine that is a custodial sentence. The answer to the question asked by my noble friend Lord Donaldson, if I understood 1327 him rightly, is: Yes, if you fail to comply with the order of the court you are not one of the people for whom the Bill is designed. At the moment, supported by the noble Viscount, Lord Colville of Culross, and the noble and learned Viscount, Lord Dilhorne, it seems that on balance we are really in favour of the Bill as it stands. This was only a point raised on the Question, Whether the clause shall stand part of the Bill? But I will certainly give further consideration to everything that has been said on this point before the Report stage of the Bill.

§ LORD DONALDSON OF KINGSBRIDGE
I am sorry to intervene again, but there is one more question I should like to ask in order to get this point clear. My noble friend Lady Wootton said that the man could then give an explanation of what happened, but of course the rehabilitation does not only happen in court; it may happen in other places, and I do not think an explanation is always available.

VISCOUNT COLVILLE OF CULROSS
I have just had the carrier pigeon service at my disposal and on the point raised by the noble Lord. Lord Wells-Pestell, I am not absolutely certain whether it is a five year or a seven year period, because if one looks at Clause 3(1)(b) it is seven years where the sentence imposed was a custodial sentence. Now what was the sentence? The sentence originally was a fine. It may have been a fine with an alternative of X days in prison, in which case no doubt upon the activation of the X days in prison the sentence itself becomes custodial. But if that was not said at the time in court and a man is committed to prison for default of payment, then is the sentence a fine and the imprisonment a committal which is not covered in the Bill at all? It seems to me that one ought to have a clarification of this and it probably goes to the word "sentence" in Clause 3(1)(b).

§ On Question, Amendment agreed to.

§ Clause 2 [Effect of rehabilitation]:

§ LORD GARDINER
Amendment No. 4 arises simply because of Amendment No. 19 which adds an additional subsection to Clause 5 and therefore it should not be limited as it is in the Bill here to subsection (3). I beg to move.

1328

§ Amendment moved— Page 1, line 19, leave out ("(3)").—(Lord Gardiner.)

§ On Question, Amendment agreed to.

§ LORD GARDINER
I have spoken to this. I beg to move Amendment No. 5.

§ Amendment moved— Page 2, line 4, leave out paragraph (a).—(Lord Gardiner.)

§ On Question, Amendment agreed to.

§ 5.13 p.m.

§ LORD GARDINER moved Amendment No. 6:

§ Page 2, line 10, at end insert (" and () any question put to a rehabilitated person or to any other person about him (whether in or out of Court) relating to his past and any answer thereto shall be deemed not to relate to his spent convictions or to the offences forming the subject thereof.")

§ The noble and learned Lord said: This Amendment is what I might perhaps call the "Shackleton Amendment", and I do not know that at this stage of the matter I desire to add anything further to what I have already said. I beg to move.

VISCOUNT COLVILLE OF CULROSS
I only want to ask a question on this. Perhaps as it is the Shackleton Amendment it would be better to leave noble Lords opposite to deal with it. What I want to find out is the practicality of this Amendment. I believe that this is an improvement, but I want to know what is the man to say when he is asked the question? I am sure that the noble and learned Lord has worked this out. If you are deeming the conviction to be quashed under the previous Amendment and you are asked, "Have you ever been convicted?", that is fine; you say, "No" because it is deemed to be quashed and it is for the purposes of the Bill deemed to be quashed. What I am not so certain of is what you do when you are asked the question, "Were you convicted at the Marylebone Magistrates Court on January 1, 1968, for five offences of the following nature: taking and driving away; driving without insurance; driving while disqualified; driving without an L-plate; and stealing the radio out of the car?" At that stage one is in trouble because it is fairly obvious that one has been convicted for those things otherwise the details would not have been given. What does the man say? I cannot imagine that 1329 this would happen very often but we ought to know how that is to work in a case of this kind. I do not know whether the noble and learned Lord has thought this out.

§ LORD SHACKLETON
My noble and learned friend would be much better at answering this particular question. I thought that paragraph (b)—if it is still called (b)—in Clause 2, took care of that point but I will leave that to my noble and learned friend. I thought this evidence could not be given in court. May I say that I am very grateful to my noble and learned friend for taking an objection which a number of people feel strongly about. At one time I thought it was only laymen who felt strongly that one should not make a statement which to any layman appeared to be a lie, even in court. But I felt cheered when my noble friend and other noble Lords also agreed with this view. Here is what appears to be very skilful drafting of an Amendment, to which the name "Shackleton" is not justly attached because my version was a great deal more garbled, but the sense seems to have been perfectly interpreted and I am very grateful to my noble and learned friend.

§ VISCOUNT DILHORNE
I am not entirely happy. I agree entirely with the object of this Amendment but I am not entirely happy with the drafting. I am not talking about what is said to you in court because that comes in another clause, but if you are asked, "Have you been convicted?" and the conviction has been quashed I think you are fully entitled to say, "No." You need not say, "I was convicted at the Old Bailey and it was quashed two months later in the Court of Criminal Appeal." It is, therefore, a little unfortunate to use the words "spent convictions". You define what you mean by "spent convictions" earlier on, but the wording should really be: should be deemed not to relate to a conviction which is quashed by virtue of the operation of this Act". You want something more positive like that wording. I agree with the object, but I am not happy about the drafting.

§ LORD HALE
May I ask a question, not in any critical sense but because, as other noble Lords have said, I do not 1330 see how this works. I wish I could. I feel strongly in favour of the principle of the Bill and am very anxious to support it. But how does this new clause operate in connection with the standard defence, often a very genuine defence, in allegations of larceny, burglary or any form of theft where evidence is being given for the prosecution by a fence who has got convictions and so on? As I see it—and I have always admitted that I am out of date on my modern law—defending counsel can put to the fence a series of questions suggesting that he is a habitual receiver of stolen goods; that his place has been searched by the police on a number of occasions; that he was reported to be in possession of the Marquess of Somebody's diamonds removed from the castle; and so on. At the end of that he says, "I put it to you that you have been convicted of receiving stolen goods." And the fence, being a rehabilitated person, says, "No". I do not see any objection to that. If he is a rehabilitated person as a witness for the prosecution he is probably just as much entitled. But where does the probing of character stop? How does it start and how does it stop? It may be that halfway through that particular cross-examination the judge raise his papers and says to defending counsel, "Mr. Jones, I must remind you that you are attacking a witness for the prosecution." He does not say, but he indicates, that he has before him the accused's record and Mr. Jones says, "No." He cannot say it out loud nor to the members of the jury but he has to indicate, "No. My client is rehabilitated. His last conviction, if you will look at the record …". That is, unless it has already been removed from the record, and we will come to that later. This question of having removed from papers may be vital to the working of the procedure.

§ VISCOUNT DILHORNE
May I say to the noble Lord that I think that the question he is raising comes under subsection (3) of Clause 5. What we are doing in Clause 2 has no relation to what may happen at a criminal trial at all. When we had reached Clause 5 I was going to raise much the same question as the noble Lord has raised because proceedings at a criminal trial are excepted 1331 from the provisions of Clause 2. Therefore, I would, if I might respectfully suggest it, say that it might be more convenient to consider them if we get there.

§ LORD HALE
I accept that. The noble and learned Viscount is perfectly right. But this issue was raised in previous speeches and I felt that I did not want to let it pass without what was intended to be a very brief comment. It is how it will work and at what stage, and how these matters can be dealt with, which give a little anxiety.

§ LORD GARDINER
If my noble friend Lord Hale will forgive me I think that it might be possibly more convenient to deal with the matter when we come to Clause 5. The noble and learned Viscount, Lord Dilhorne, has already answered the noble Viscount's question because the answer to the question he raised was that he would say, "No" because it has in fact been quashed. I shall certainly give further attention to the wording before the next stage of the Bill to see whether this is capable of improvement. There are few wordings which are not capable of improvement.

VISCOUNT COLVILLE OF CULROSS
I do not think that the noble and learned Viscount has answered the question. The question which is put to the rehabilitated person relating to his past shall be deemed not to relate to his spent convictions". That is fine. But how do you deem a question such as the one that I have put not to relate to the incident which the question itself contains?

§ VISCOUNT DILHORNE
It is a question of drafting.

VISCOUNT COLVILLE OF CULROSS
Supposing you have defending counsel in a civil case who wants to drag this in and attack the character of the plaintiff. He has only to ask the question that I have just put to vitiate the whole content and spirit of this Bill.

§ VISCOUNT DILHORNE
He can under Clause 5(3).

VISCOUNT COLVILLE OF CULROSS
I am talking about civil cases.

§ VISCOUNT DILHORNE
Yes. But surely in civil cases the same thing can 1332 be done. That is why I suggest that this should be left to Clause 5(3).

§ On Question, Amendment agreed to.

§ On Question, Whether Clause 2, as amended, shall stand part of the Bill?

§ VISCOUNT DILHORNE
I only desire to draw to the attention of the noble and learned Lord the desirability of commencing paragraph (b), at line 8 on page 2, with the words, "Subject to the provisions of this Act", because it is a firm positive statement there, and when you come to Clause 5 you see that that makes tremendous inroads on parts of that statement. We must consider later what those inroads are, and what they should be, but I think you should have there, "Subject to the provisions of this Act", or something like that, to point out that this is not a completely general rule.

VISCOUNT COLVILLE OF CULROSS
Perhaps I could ask the noble and learned Lord, Lord Gardiner, one or two matters on the Question, That the clause stand part? We have already talked about those, for instance, who enlist in the Forces and those who want to apply for a job in the Civil Service. On Second Reading I went back to the point of the noble Baroness, Lady Wootton (I think it was the noble Baroness), that we had on the Criminal Justice Bill about the employment of people who had been convicted for sexual offences in certain establishment such as hospitals, schools and so on. It may be that the noble and learned Lord anticipates that one would have provisions made under Clause 7(4)(c) which would enable full disclosure to be made as between previous employers (I think, the police) and the potential employer about all these things. But is he satisfied that this will do to protect the public against what I think must be expected to be risks, if the person who is applying can legitimately deem any question about previous convictions not to relate, even in the case of a sexual offence when he is going to teach in a school, to a particular offence if it is spent in the terms of the Bill? It may be that the noble and learned Lord thinks that the Secretary of State's power to make regulations or allow exemptions will cover this. But it would, in those circumstances, have to be very wide, and he will have to accept 1333 that it will have to be very wide, because of the failure to catch that past conviction, which may be very relevant under the ordinary questionnaire which the applicant fills in. I should be glad to know the noble and learned Lord's point of view on both of these points.

§ LORD GARDINER
We can certainly discuss this again when we come to Clause 7. My view is that Clause 7 can provide for all this. So far as employers are concerned, I must frankly say that the provisions in the Bill in relation to qualified privilege are I think sufficient. I say that because the Confederation of British Industry, who are very much concerned with employers, appointed a special six-man committee to go into every aspect of the Bill, and they have unanimously recommended to their counsel that the Bill should not be opposed.

§ Clause 2, as amended, agreed to.

§ Clause 3 [Rehabilitation periods]:

§ 5.23 p.m.

§ LORD HUNT moved Amendment No. 7: Page 2, line 20, leave out ("two years") and insert ("thirty months").

§ The noble Lord said: I rise to move this Amendment on behalf of my noble and learned friend Lord Gardiner and myself, and, if I may say so, such is my lack of knowledge of the law that I shall probably heavily rely on my noble and learned friend Lord Gardiner depending on how the Committee views this proposal at the end of our short discussion on it. When I spoke on the Second Reading of this Bill I expressed the belief and hope, which I think was shared by other noble Lords, that its scope might he widened even at the outset to include those offenders whose latest sentence was more than the two-year limit established in the draft: in fact, I suggested that any period short of a three-year previous sentence should qualify.

§ I hope it will not be seen as digressing if I also mention that I think there was a good deal of sympathy with the view expressed by the noble Lord, Lord Soper, who felt that by fixing any limit to the qualifying sentence it could be implied that anyone who had served more than a two-year previous sentence was somehow beyond the pale and irre 1334 deemable, and presumably liable for the rest of his life to have his criminal past held against him. The moral and practical injustice of such an inference needs no argument from me. In principle and in fairness, any man should be able to live down his past when he has proved that he can do so by having done so, without an abiding liability to have it held against him that he did things of a criminal nature ten or more years before. I accept personally that we should proceed by stages. When I said to my noble and learned friend Lord Gardiner that I felt that two years, even to start with, was too short a sentence to qualify, he made the quite reasonable point that that would be only a beginning, with the prospect of extending the scope after a period of experiment. I accept that of course. But I adhere to my view about starting with a rather longer term.

§ I am delighted that the noble and learned Lord has joined me in suggesting that we should go up to two and a half years. I think I can claim some grounds for pressing for a modestly higher limit. During five and a half years on the Parole Board I have scrutinised literally thousands of dossiers of prisoners serving sentences between two and three years, and, if I may say so in fairness, as many thousands again of those beyond that bracket. It is my conviction from this reading—speaking of course in general terms, and as a layman—that there is no signifiant distinction to make between the nature and gravity of offences attracting a two-year sentence and those which attract sentences of more than two years, up to, but not including, those of three years. It is a truism that courts vary widely in imposing sentences. What is more, the sentence frequently has an additional sentence added to it which has been suspended after the previous conviction, and of which the man is in breach by his current offence: in other words, a sentence of two and a half years may in fact be a two-year current sentence with perhaps a six-month suspended sentence added to it.

§ I believe that the recent Criminal Justice Act has gone some way to remedy what many people felt was a defect in the nature and use of the suspended sentence by the courts. But in many instances in the past those suspended sentences 1335 have placed an intolerable strain on an offender and a breach of them could often not be fully or fairly held against an offender. My colleagues and I have long made a general differentiation between those who serve sentences of under three years and those serving sentences of three years and more. There seems to be an identifiable divide at this point. Initially—and I stress "initially", because we must look forward to an advance in earning and spending a criminal record—I should not wish to propose that we fix the qualifying limit beyond two and a half years. It would, I understand, bring within the scope of the provisions of this Bill some 4,100 prisoners who are currently in our prisons serving sentences of more than two years and up to and including 2½ years. There must be many thousands of others who have come out of prison in the past and who perhaps are going on the path of rehabilitation. All these people, in my view, should have this incentive or this reward, depending on how far they have got along the hard path of rehabilitation, this end to prejudice arising from a criminal past, if, after ten years, they have manifestly lived it down. I beg to move.

§ LORD GARDINER
I rise to support this Amendment to which my name is attached on the Marshalled List. I do so shortly. I have no strong view about this matter myself, but I have been influenced by three things: first, on the Second Reading of the Bill a number of noble Lords said that they thought the period of two years was too short. They included the noble Lord, Lord Hunt, the most reverend Primate the Archbishop of York, my noble friends Lord Longford, Lord Soper and Lord Janner, and the noble Marquess, Lord Hertford. I felt, therefore, that I should yield to those. Perhaps I should add, secondly, that although my Committee thought two years was the right term, there was no member of the Committee who thought it ought to be less than two years and there were a number of members of the Committee who thought it ought to be more. The third point which has influenced me is that the knowledge of the noble Lord, Lord Hunt, in this field is so extensive that I thought I must give way to it.

1336

LORD JANNER
I naturally accept the point of view that is presented by the noble Lord, Lord Hunt. No one, I suppose, could speak with more authority on this particular matter than he, and, in consequence, his views are naturally accepted with the greatest respect. One ought to pay a tribute to him for the tremendous service he has given in the course of his personal work in this direction. I would ask why we have stopped at 2½ years. Some of us think that the limit should be at least three years. Your Lordships may remember that at the time when we were discussing the matter on Second Reading I quoted the example of a sentence in respect of an offence which carried a minimum of three years if six months was not accepted by the court as the appropriate term.
I refer again to the Criminal Justice Act 1961, Section 3 of which reads: Without prejudice to any other enactment prohibiting or restricting the imposition of imprisonment on persons of any age, a sentence of imprisonment shall not be passed by any court on a person within the limits of age which qualify for a sentence of borstal training except—

(a) for a term not exceeding six months; or

(b) (where the court has power to pass such a sentence) for a term of not less than three years."

Everybody realises that a discretion of that nature vested in a court might be exercised by some courts, being merciful, as six months. They are prohibited from giving a period of between six months and three years, and some courts being human beings and apt to err, as most of us are, might very reluctantly give three years. Others might consider that the appropriate sentence should be between six months and three years. The danger is that in this case the person is given a sentence of three years.
The latest figures given by the Secretary of the Howard League for Penal Reform indicate that some 5,000 out of 32,000 prison receptions would not be eligible for the benefit under this Bill, and this would include as many as 500 young persons. It is obvious, and it is the intention of this Bill, that every possible incentive for the rehabilitation of these 500 is vital if they are not to decline into recidivism. In those circumstances, perhaps at this stage, or, if there is to be 1337 one, at a later stage, the Government might consider the possibility of extending the period. Of course, I would not dream for one moment of opposing the Amendment, because it does go some way towards my own view of what is advisable in these circumstances.

§ VISCOUNT DILHORNE
I agree with the proposal of the noble Lord, Lord Hunt, that the scope of the Bill should be enlarged. I would go even further; I should have liked to see the noble and learned Lord, Lord Gardiner, embody in the Bill a power to the Secretary of State to enlarge the period still further by Statutory Instrument. As we get experience of the working of this Bill, it would be tiresome not to have the power to do that and to bring more people within its scope. That is one point. While the object of this Amendment is to bring more people into its scope, I should like to see power taken by Statutory Instrument to bring even more in later on, if the Bill works well, as one hopes it will.
I am a little bothered about the terms of paragraph (c) of Clause 3(1). It is five years' rehabilitation period where there is no custodial sentence, seven years where the sentence was not exceeding six months, and then it is ten years where it exceeds six months but does not exceed two and a half years. I think the step is a little too steep between sentences not exceeding six months and those exceeding six months. It is not very easy to justify saying that the rehabilitation period for a man sentenced to 12 months shall be precisely the same as the rehabilitation period for a man who has been sentenced to two years, presumably because he has a worse record or has committed a more serious offence than the man sentenced to 12 months. I should like the noble Lord, Lord Gardiner, to look at that point. It seems to me that there is a case for introducing another step between the seven and the ten years' rehabilitation periods.

§ LORD DONALDSON OF KINGS-BRIDGE
May I say a brief word to support the Amendment? I am very pleased with what the noble and learned Viscount has just said. I think the only reason why this Bill did not ask for much more was that the people framing it 1338 did not think they would get it, and I think this is very reasonable. I do not think one wants to ask the public to take more than they are prepared to take. When they find that this measure is not abused, which I think is what they will find, it is important that the machinery should be built in to extend it. Philosophically, of course, there is no sense in any limit at all. The point which the Bill is trying to make is that people can change. It is saying that after a certain time it is reasonable to suppose that they have changed. So far as I am concerned, I certainly should not think that a life sentence man who had served ten years of the life sentence and then spent ten years living blamelessly with his wife should not have the same advantage. I do not think that the public want to see this. There are very few cases. I am happy simply to support the Amendment as it stands.

VISCOUNT COLVILLE OF CULROSS
I appreciate that one has to try to draw the line somewhere, and I think that it is very difficult to know where to draw it. I would not wish to suggest that the Amendment is defective; I think it is simply a matter of judgment. The only thing that I would suggest is that one ought not to pay too much attention to the point made by the noble Lord, Lord Janner, about the somewhat unusual case caught by Section 3 of the 1961 Act. The point of this was that you were to send these young people to borstal unless the offence was so minimal that it could be dealt with by something very much less, or that it was so awful that borstal would not cope.
At the moment, when we are awaiting the advice of the Advisory Committee on the whole subject of penalties for young persons, and how you should deal with them in custody or in any other way, to hinge the whole argument about the length, for the purposes of rehabilitation, on what is likely to be this superannuated provision, seems to me to be a mistake. I would very much rather take the practical steps that the noble Lord, Lord Hunt, has suggested and, for all I know, if the noble and learned Lord, Lord Gardiner, puts down an Amendment on the lines of allowing my right honourable friend to extend the period, this may be the better way of doing it. I hope that the Committee will not go overboard on the 1339 argument of the noble Lord, Lord Janner, because this whole thing is under review, and the particular section that is quoted is really a very small part of the criminal law.

LORD JANNER
I wonder whether the noble Viscount would be good enough to bring to the notice of the Committee, either directly or indirectly, the point that I made here, because I think it is worth considering. When they come to a conclusion they might keep in mind this particular Act, as it may possibly be, and the point with regard to the difference between six months and three years.

VISCOUNT COLVILLE OF CULROSS
The answer is that the whole subject of Section 3 was mulled over at substantial length last summer, both in another place and here, when we were dealing with the Criminal Justice Bill. At that particular time the propriety of this provision was specifically drawn to the attention of the Advisory Committee. They had it in front of them. I really do not think that their views on how to treat young offenders are going to be affected particularly by this Bill, because they have something very much wider before them. As they have had this point drawn to their attention already, I hope that the noble Lord will forgive me—as they are rather getting on with their work—if I do not have specifically to refer this back to them again.

§ LORD HUNT
I was the spokesman for this partnership in proposing this slightly wider extension of the Bill, but I recognise that the Bill is the Bill of the noble and learned Lord, Lord Gardiner. I would say to my noble and learned friend that I was attracted by the suggestion made by the noble Viscount that the Home Secretary should be empowered by Statutory Instrument to continue the progress of widening this Bill, if and when it becomes an Act. That seems to me an excellent idea.
As regards the suggestion that there should be any additional stage, or limit, at which the previous convictions should be spent, my only feeling is that it may slightly complicate the Bill. Without further thought, I should not like the proposal that an even longer period than ten years should be required.

1340

§ VISCOUNT DILHORNE
I was not suggesting that a longer period should be specified. I was thinking that if you are going to have a ten-year period for someone sentenced to two years, it appears a little hard that someone who is sentenced to nine months should have to go through the same rehabilitation period. It was an intermediate step that I was suggesting. I should be content if the Secretary of State had power not only to extend the number of persons who came within the scope of the Bill, but in relation to those persons to vary the steps to make them fit better, while not exceeding the maximum of ten years.

§ LORD HUNT
This seems to me to have much merit, and I should like to commend it to my noble and learned friend.

§ On Question, Amendment agreed to.

§ 5.45 p.m.

§ LORD GARDINER moved Amendment No. 8: Page 2, line 24, leave out ("whether immediately or subject to any suspension,").

§ The noble and learned Lord said: In moving this Amendment may I refer to Amendment No. 9, which relates to the same point. This is not a point on which I personally have any view at all. I have great belief in the wisdom of the Committee of this House, and I thought it worth raising. The question is, ought a suspended sentence to be treated as a custodial sentence or not as a custodial sentence? In the Bill it is treated as a custodial sentence. My noble friend Lord Peddie, who I think is unable to be with us to-day, puts it in this way, referring to Clause 3(2)(a): It is suggested here that sentences of imprisonment which have been suspended should be regarded as custodial. If the sentence of the court is to be the yard-stick of the seriousness of the offence, it has been asked why the suspension should be regarded as custodial. It would appear to be contrary to the spirit of the new Criminal Act 1972 where in Section 14(3) it states that for the purpose of the Act, a sentence of imprisonment which has been suspended and which has not taken effect, should be disregarded. There is, surely, a qualitative difference between the immediate prison sentence and one which has been suspended.

§ As I say, I have no strong view either way, but in view of the representations that I have received on this point I thought that I should put down the 1341 Amendment in order that the Committee might consider it, and particularly that I might have the advice of the Home Office as to what they thought about it. I beg to move.

§ VISCOUNT DILHORNE
I personally do not think that you can regard a sentence which is suspended and not put into operation as a custodial sentence. It is really a contradiction in terms, because so long as it is suspended it does not cause any loss of liberty and, therefore, there is no custody. In principle, I am in favour of the Amendment, but in the same way as I do not think that a probation order should count as a custodial sentence, although the consequences of a breach of a probation order may be a custodial sentence. I think that in relation to suspended sentences and a probation order you perhaps get the same problem here. I do not want to anticipate anything that the noble Lord, Lord WellsPestell, may say about probation orders; but the Bill is silent, when these Amendments are made, about what is the effect, and how it is going to operate, if a suspended sentence is brought into operation and the sentence then becomes in fact a custodial sentence.
I do not think that it will matter very much if the sentence, when it is brought into operation, is to run concurrently with another sentence of imprisonment imposed by the court on that occasion, although it may be a little odd that the period of rehabilitation, which will not apply to that man at all until the sentence is put into operation, should in fact run from what may be two years, or anything less than three in relation to a suspended sentence, from an event which took place up to three years before. That does look a little odd. I am not sure that it matters very much.
What I think may matter as I read the Bill—and the noble and learned Lord will correct me if I am wrong—is if the suspended sentence is put into operation consecutively to the other sentence then imposed by the court—and the court will have the power to do that. The provision here, under subsection (2)(b), is that: consecutive custodial sentences for specified terms imposed on the same occasion shall be treated as one custodial sentence for a term equal to their sum; 1342 If a man is sentenced, say, to two years, and the suspended sentence is one of 12 months, it has to be treated, when it is put into operation—I think this is the effect of the Bill—as a sentence for three years, in which case that man can never be rehabilitated. I am not quite sure what the answer is, for I have not had much time to devote to the Bill, but I do know that I do not like that. I think it is too much. I think that some provision has got to be made to deal with that situation. All this Amendment is doing is to say that you shall not take into account custodial sentences which do not take effect. That is not going far enough. You have to say what account is to be taken in relation to a suspended sentence when it does take effect. As the Bill stands at the moment I think that is a defect which might work considerable hardship to some of the individuals whom it is intended that this Bill shall benefit.

VISCOUNT COLVILLE OF CULROSS
The noble and learned Lord, Lord Gardiner, asked what the Home Office view on this was, and I am bound to tell him that it is not very much more definite than his own. I hope I was following the noble and learned Viscount, Lord Dilhorne, aright. If I was and he said that there was a suspended sentence passed and the man then committed another offence for which he was given two years, and at the same time the court said that they took so serious a view of his breach of the suspended sentence that they gave him a consecutive activation of his suspended sentence, making three years in prison, I see no reason why that should not be taken as a sentence of three years. He had his chance; he did not take it; the court took so serious a view that, instead of making the two sentences concurrent they made them consecutive, in which case it must have been a very bad breach or the second crime must have been a very bad one. I really cannot support the view that you should give way on that.

§ VISCOUNT DILHORNE
I am not at all sure that putting into operation a suspended sentence depends on the gravity of the conduct which resulted in the conviction for the offence on the occasion when the suspended sentence was brought into account. I think the court would 1343 have great regard to the nature of the offence originally committed.

VISCOUNT COLVILLE OF CULROSS
I think they would also decide, looking at the two offences together, whether to make the suspended sentence concurrent or consecutive. If they made it consecutive it would be some indication of the gravity of what had happened. It is this point that I was really on. I think that there are two views on this and I cannot really guide the Committee any more than the noble and learned Lord has, save to remind the Committee of this. Whereas the noble Lord, Lord Peddie, in his letter quoted something out of the Criminal Justice Act 1972, the context of which I have not got in front of me, we must remember that we toughened up on the whole concept of the imposition of a suspended sentence. I think it was the O'Keefe case which was then made statutory. That Act now provides that the court has to decide first of all whether there is anything other than imprisonment that they can give, and if they decide it has got to be imprisonment, then and only then do they decide whether it is to be a suspended sentence; therefore they have to be sure that imprisonment is the right answer and that in theory therefore they are dealing with a custodial sentence and not, as has sometimes been the case, something which really is an alternative, and a rather bad alternative, to a probation order because it did not carry the supervision which a probation order did.
I do not want to suggest anything which would undermine that particular doctrine, as I believe it is a very important doctrine and I think, whatever anybody else may have said about some of the other things to do with suspended sentences, that particular point attracted the support of everybody in the House when we were debating it last summer. There is therefore that perhaps slightly theoretical approach which one has to bear in mind. I do however also take the point that if the sentence is suspended, if it is successful and he does not offend again and does not go to prison, it is a little strange to call it a custodial sentence. I would not object to this Amendment if it were made; equally I would not object to the provision staying as it is. I therefore leave it to the Committee to decide.

1344

§ LORD DONALDSON OF KINGS-BRIDGE
I must just say that I have been left very much confused. Philosophically, an alternative to imprisonment is meant to be a punishment which is a more efficient and less damaging one than imprisonment; therefore a suspended sentence is as much a punishment as imprisonment. On the other hand, if the man concerned lives through his period of suspension without offending it does not arise, and it seems to me an absolutely equal argument as to which way the mind goes. On the whole I would go on the side of not regarding a suspended sentence as custodial because the word "custodial" lets you out completely. It is not custodial if it is not activated, so I think one can reasonably take that. But the philosophical point—that it is no good saying that imprisonment is a bad punishment and to have another punishment instead if you then treat the crime as different—is important and is interfered with. However in the end I think I would take the view that a custodial sentence must involve the actual deprivation of liberty.

§ LORD GARDINER
I think I am going to ask the Committee to allow me to withdraw this Amendment. I have been most interested in the discussion which has taken place but I think perhaps the real point is this. My Committee, which included two serving stipendiary metropolitan magistrates and other lay justices of the peace, felt, "We are not looking to see how deserving the person is in regard to the future; that depends on his subsequent conduct. We are trying to divide cases not according to whether the particular crime was a very grave one but as reflected by the sentence", which is what most rehabilitation laws of other countries do. I remember a man who was convicted of forgery, which always sounds a terrible offence. He was a company director. He backed a bill in his company's name and there had been no resolution of the board, as he added his signature that made it technically a forgery. You can get a forgery case where nothing is gained, nobody has lost anything; it is a trivial case; you get another case, as we all know, in which the judge says that this is the worst kind of case he has ever had. The decisive factor is the sentence.
1345 I am proposing to ask leave to withdraw the Amendment because I think I really agree with the reason which the noble Viscount, Lord Colville of Culross, has given. I was trying to think of the name of the place coming along this morning, and then I forgot to chase it up. The courts have now all been told, and indeed are told in the Criminal Justice Act of last year enshrining these cases in our Statute Law, that you must not begin to think about a suspended sentence until you have first decided that it is a case which cannot be dealt with by a fine and cannot be dealt with by a probation order and can only be dealt with by a sentence of imprisonment. Only at that point should you for the first time consider whether that sentence of imprisonment is to be immediate or suspended. I would feel myself that it falls into that class rather than into the fine or probation order class, and for that reason, if I have the consent of the Committee, I beg leave to withdraw this Amendment.

§ Amendment, by leave, withdrawn.

§ LORD GARDINER
There are two cases which clearly ought to have been included in the Bill, but which were omitted. I am obliged to those who have drawn my attention to the point. I beg to move.

§ Amendment moved— Page 2, line 27, after ("remand home,") insert ("a community service order made pursuant to section 15 of the Criminal Justice Act 1972, a care order made pursuant to section 1 of the Children and Young Persons Act 1969,").—(Lord Gardiner.)

VISCOUNT COLVILLE OF CULROSS
What the noble and learned Lord said is quite right, and this is an indication of the care which he and his advisers have taken. It is also yet another example of how they are all the time trying to improve this Bill.

§ On Question, Amendment agreed to.

§ LORD GARDINER
In rising to move Amendment No. 11, may I acknowledge my indebtedness to the noble Viscount, Lord Colville of Culross, who raised this point on Second Reading at column 744 of the OFFICIAL REPORT. This is a provision which obviously ought to have 1346 been made and it is an improvement of the Bill. I beg to move.

§ Amendment moved—

§ Page 2, line 43, at end insert— ("(f) where a sentence is varied on appeal or otherwise, the sentence as so varied shall be treated as the sentence imposed.").—(Lord Gardiner.)

VISCOUNT COLVILLE OF CULROSS
On the principle of not looking gift horses in the mouth I ought to be careful about saying anything on this Amendment, because I quite agree that this is an essential provision which ought to go in the Bill. But can the noble and learned Lord tell me what the words "or otherwise" deal with? Are they intended to deal with the case of a pardon, or is it something else? I simply have not followed this.

§ LORD GARDINER
The words are intended to deal with the fact that if there is a suspended sentence of imprisonment and it is later reactivated, the original sentence can be altered although it is not strictly an appeal.

VISCOUNT COLVILLE OF CULROSS
It would take into account a pardon as well, no doubt?

§ LORD GARDINER
Yes it would.

§ On Question, Amendment agreed to.

§ 6.2 p.m.

§ LORD WELLS-PESTELL moved Amendment No. 12: Page 3, line 3, leave out from ("satisfied") to ("or") in line 5.

§ The noble Lord said: I am in some difficulty in moving this Amendment, because I must mention in some detail Amendment No. 14 which also stands in my name.

VISCOUNT COLVILLE OF CULROSS
Speak to them both.

§ LORD WELLS-PESTELL
With the leave of the Committee, I shall speak to them both, because the first one is really a paving Amendment. As your Lordships will see, I want to remove quite a chunk from subsection (3) of Clause 3. Clause 3 deals with the rehabilitation periods, and subsection (3) deals specifically with the probation order. If I understand the situation correctly, paragraph (b) of subsection (3) indicates that the period of rehabilitation shall be the period 1347 of the probation order. So if a person is placed on probation for one year, two years or three years, and he gets through that probation period without committing a breach of probation, it is deemed that he has completed the rehabilitation period. Perhaps I ought to pause here, and say that I have given the Chairman of this Committee a manuscript Amendment, because I want to add six or seven words to my Amendment No. 14. I want to call your Lordships' attention to—

VISCOUNT COLVILLE of CULROSS
Can the noble Lord tell us what those words are, so that we may follow the argument better?

§ LORD WELLS-PESTELL
At the end of my Amendment No. 14, where it reads "period shall be three years", I want to add from the time of the expiration of the probation order. In other words, if a person has been on probation for one year, two years or three years and has completed the probation period satisfactorily without being brought before the court for breach, there should be a further period of three years before he or she can be deemed to be rehabilitated and the conviction becomes spent. I want to include those words quite deliberately, because, in the first place, before a probation order is made, a tremendous amount of social, medical and mental investigation goes into the case. The courts invariably get not only a social work report, but a report dealing with a person's mental and physical state. During the probation period there is a very close face-to-face relationship with the probation officer, designed to help the person to come to terms with himself and with society. A tremendous amount of work has been done, not only by the probation officer but, as I have said, by members of the medical profession who advise on the mental and physical condition. So it would be a great pity if a person—and in the majority of cases these people are first offenders—was put on probation and then, within a week of the end of the probation period, having fulfilled the requirements of rehabilitation, found himself before a court again charged with another offence.
As I understand the situation, the court could not then be told what happened in 1348 the past one, two or three years, because the person had completed the probation period without a breach. Therefore the court could not be informed of all the conditions and events leading up to the making of the probation order. It could well be that an individual could go on, time after time as a kind of first offender. I do not say that that would happen very often, but it is possible. A first offender could be put on probation and, within a week or two of completing the probation satisfactorily, could be up again, could be put on probation again, could complete it satisfactorily because he was under supervision, and then a week or two after that he could be up before the court again. It is not unusual for people who are subject to a probation order to come before the court again within a week or two, or a month or two, of completing the probation. So I feel that it is in the best interests of the individual and of the community that when the probation period has been completed satisfactorily there should be a definite period, which I am suggesting should be three years, so that the person has a real opportunity of rehabilitating himself.
As the Bill stands at the moment there is no rehabilitation period following the probation order, but in view of the kind of situation which I have described there should be a quite separate rehabilitation period. That is why I have put down these two Amendments—No. 12 which is a paving Amendment, and No. 14 which, with the addition which your Lordships have allowed me to put before you, will end with the words: from the time of the expiration of the probation order. I beg to move.

§ VISCOUNT DILHORNE
The noble Lord, Lord Wells-Pestell, has raised a point of very considerable importance, but I think his argument really turns on this question. Where a man comes before a court again, is it to be told or not told that that man has been made the subject of a probation order? It is curious that in this Bill we start with all the various clauses stating that after rehabilitation the conviction shall be washed out, quashed and not recorded. Then we go straight to Clause 5(3), where it preserves the right to bring before the court evidence of convictions which, under this Bill, are to 1349 be treated as quashed. We shall come to deal with that later on. But where Clause 5(3) is silent is with regard to the position of probation orders. For myself, I think that you do not so much want to enlarge the period of rehabilitation after the probation order has been made, but to provide in Clause 5(3) that, like convictions, the making of a probation order, notwithstanding what appears in the earlier part of the Bill, shall be something of which the court can be informed.
I think it is important that the court should be informed for two reasons. If a man has been put on probation and has served his probationary period without getting into any further trouble, and if he later gets into trouble again, the fact that he behaved while on probation may perhaps influence the court, in some cases, to put him on probation again. In other cases, it may have a contrary effect; but it seems to me something that the court should certainly know. I would therefore suggest that, rather than extending the period of rehabilitation after a probation order has come to an end, we should concentrate on so amending Clause 5(3) as to ensure that, not only convictions but probation orders can, in appropriate cases, be brought to the attention of the court. I say "in appropriate cases" because, if we ever get to it while I am able to be here—and I am afraid I cannot be here very much longer—I want to say a great deal in favour of restricting the operation of Clause 5(3), because I think it goes far too wide and I think it really destroys a great deal of what this Bill seeks to achieve. Indeed, if I had sought to table an Amendment to Clause 5(3) the noble and learned Lord, Lord Gardiner, would have accused me of tabling a wrecking Amendment. But we shall come to that later.

VISCOUNT COLVILLE OF CULROSS
I wonder whether perhaps I ought to put in my word at this stage, before the noble and learned Lord, Lord Gardiner, speaks. I know that in fact he has down his own Amendment which deals with this point, though not, I think, with the point that a probation order is not a conviction, if this is correct. I had forgotten this point.

§ VISCOUNT DILHORNE
You will be convicted I think in the majority of cases before you are put on probation. 1350 That is the trouble here, because the Bill deals specifically with probation orders, and they are to be treated as non-existent after a particular period. I think they should be so treated for a great many purposes, but I do not think they should be non-existent for the purpose of bringing it to the attention of the court.

VISCOUNT COLVILLE OF CULROSS
In that case I have not followed the noble and learned Viscount, because, as I understand Clause 5(3), you can have, at least in the Crown Court—and at this stage I do not want to go into the question of whether you should in the magistrates' courts—and now, under an Amendment, on committal proceedings in a magistrates' court, and for the purposes of committal to a Crown Court either for borstal training or for another sentence, all the past convictions, whether spent or not, and what the man was sentenced to as a result. I should have thought you would have got a probation order in there; but if this is not the case, then of course I bow to the noble and learned Viscount on this point.
Where I think this matter was wholly objectionable, if I may say so, before Amendments started to be moved on it was really exactly on the lines that the noble Lord, Lord Wells-Pestell, has put forward. In fact, as the Bill stands at the moment one has a perfectly lunatic situation, because if somebody is put on probation for a year and in the eleventh month he commits another offence which constitutes a breach of the probation order, but because the court takes a little time to get round to it he is not in fact tried and convicted until thirteen months after the original probation order, not only can the court not take account, as the Bill is drafted at the moment, of the fact that he has been on probation for the last year; they cannot even deal with the breach of the previous probation order, which took place during the course of that order, because they are not allowed to be told about it. By the time the matter comes before the court it has become spent, and therefore it cannot be referred to, at any rate by the magistrates. That has gone, under either of the Amendments of the noble Lords opposite, because there will not be this extraordinary situation arising.
1351 I think that the noble Lord, Lord Wells-Pestell, is absolutely right about this, and I am particularly pleased with his manuscript Amendment to Amendment No. 14. I was going to say that I would advise the Committee that it ought to be five years, because, truthfully, if one looks at some of the things for which people are put on probation, I know they are not all very severe but sometimes courts are bold, even with quite severe offences. They say, "Look, we are going to take a chance in this case. This is something we could deal with very seriously, and you have got to realise you are very lucky. But you are going to be put on probation because you have a jolly good probation report and a very good probation officer, and we think it is the best thing for you". In that case, it seems to me strange that you deal with it for rehabilitation purposes even more leniently than you deal with a fine.
But in fact I would be prepared to advise noble Lords to settle for the argument of the noble Lord, Lord Wells-Pestell, and for his Amendment with its new addition in manuscript, because I think we shall then at least be able to have a period after the probation order has finished when the courts—even the magistrates' court—can look at the behaviour which went on while the person was on probation. It really cannot be sense that a magistrates' court which has an offender before it should not know this. After all, if this happens frequently they know the man; they remember that he has been put on probation. It is a tremendous waste of time for them first of all to pretend they have never seen him before and to forget about all the previous probation reports, and then have to look at a new probation report carefully prepared so as to disguise the fact that he has ever been on probation before and carefully prepared so as to deny the court any knowledge as to how he behaved while on probation. This really cannot be sense.
The noble Lord, Lord Wells-Pestell, gives us a way out of this. He will give to the magistrates the opportunity, during the three years subsequent to the end of the probation order, to take all these things into account; and I am bound to say that, as I read the Bill, I think that quite regardless of this par 1352 ticular pair of Amendments the Crown Court will always be able to have this in front of them. So I would very strongly recommend this to the Committee. I think it is better than what is proposed by the noble and learned Lord, Lord Gardiner, because of what I have said about the seriousness of some of the offences for which people are put on probation. Therefore, I would suggest that it is preferable in the form in which the noble Lord, Lord Wells-Pestell, now moves it.

§ LORD HALE
I often find myself, I am afraid, in a minority of one, and I am usually rather reluctant to intrude myself when I do find myself in that position, particularly in the presence of so many distinguished people who know more about these matters than I do. But I am sorry to say to my noble friend Lord Wells-Pestell that this seems to me to be an Amendment which goes directly contrary to the main purpose of this legislation. I learnt a great deal from reading the speeches of the noble Viscount as to the present position. I know that the whole question of probation has gradually been enlarged so that it covers a whole series of different subjects. I remember the old procedure of binding over, which was, in a sense, a bargain. The accused was asked if he was willing to be bound over, if he was willing to promise to behave himself; and the court intimated that if he was willing to take that course, to give that promise and that undertaking and to submit to what conditions the court might lay down as ancillary, then he could have a bargain with the court and complete what was, in effect, a period of probation.
Then of course—I think it was in the Criminal Justice Act 1948—the whole question of probation was regarded as a reform of a tremendously important kind. It was the period of laying down that the principle of justice was to give the accused a chance wherever it could be given, and to avoid a sentence. Bit by bit we have given more power to probation officers, more power to the supervising officers, and more power has been given to impose conditions, and so on. But essentially (if I remember, this is precisely what the noble and learned Lord, Lord Gardiner, himself said by way of an interjection in the Second 1353 Reading debate) you are saying to the accused, "Look here, you have committed an offence, not a very minor offence. But, in view of the reports on you, in view of your background and in view of what we have now been told, we put you on probation for two years. And remember this: if you break that probation, if you commit another offence, even a minor one, then you may be brought back and fully punished for the offence of which you have been found guilty to-day. But if at the end of two years you have a clean, decent record, you will hear no more about this case at any time or forever." That is the principle. Indeed, it is the principle which was invoked in almost every penal reform document of my time. And we are saying now, at this late stage, when what we are doing is intended to be a reforming order, that all this should go and a probation period can be raked up.
The noble Viscount was good enough to explain that there was an anomaly in the law; that it could be raked up in a Crown Court but not before the magistrates, which certainly seems an anomaly. But at least, if my recollection is right, it is an anomaly slightly in the right direction. A Crown Court may be dealing with the same charge, but on average it is dealing with a rather more serious charge. Anomalies have to be put right. But, with respect, I must say to the noble Viscount that one can never, in dealing with the law, invoke the argument that if it happened one day he was all right and if it happened the following day he was not all right— and that is an anomaly. If the noble Viscount had been a Member of Parliament for 20 years he would know that that anomaly is one about which we have to complain to our constituents over pensions. If you were insured on June 5, 1948, you qualify for a pension for the rest of your life; but if you were not, you are disqualified, and you can apply only for a supplementary pension.
Unfortunately, this is a world in which accident plays its part. The only thing that legislators can do is to lay down a serious, considered system. However serious it is, it will involve anomalies in its application. I would have thought that to make a specific provision that a probation order can be invoked again against an accused person when he has 1354 fully and completely complied with all the terms imposed on him for the full period of that order is to add something of a penal nature to the present law which is neither necessary nor justified by the circumstances suggested.

§ 6.35 p.m.

§ LORD GARDINER
I do not think that I would strongly have opposed the Amendment put on the Marshalled List by my noble friend Lord Wells-Pestell because under the Bill as drafted the rehabilitation period in respect of a probation order is the period of the order or one year, whichver is the greater, if it had been extended to three years I would have agreed. I myself have put down an Amendment, which we have not yet reached, extending it to two years, and I did so largely because of the very strong view expressed by the noble Viscount, Lord Colville of Culross, that the period in the Bill was too short. But I could not agree to the manuscript Amendment which, in the case of a three year probation order, makes it another three years before you can become rehabilitated; that is a total of six years. And there is no exception made for juveniles. So it comes to this: you can be sent to prison for six months, and if you are a juvenile you can rehabilitate yourself in two and a half years; but if you are put on probation you cannot rehabilitate yourself for six years. I think that simply cannot be right.
May I add a word as to why the Bill is now as it is. It is for two reasons. First, I think that courts ought to act honestly. I think I have said once before that I used to be concerned on hearing a judge say to a convicted person, "Your doctor says you want psychiatric treatment. If you need that, you will get it in prison" when that judge knew—or if he did not, he ought to have known—that it was ten to one against the person getting any psychiatric treatment. I did not like to hear magistrates say, "I am going to give you a chance. If you obey the conditions of the probation order, and go to see the probation officer once a month, and live where he approves and if you do not get into any trouble during these two years, you will never hear of this conviction again. But if you go and commit another offence while you are on probation you will not only be charged 1355 with that offence but also you will be brought back here to answer for the breach of your probation." I cannot think that it is right that they should say that. If a man does his two years, completes his probation order and fulfils all the conditions, and commits no other offence, and then, maybe a year or two years later he commits some offence, the first thing that happens when he is convicted is that he has the previous conviction thrown at him which is the very thing the magistrates told him would never happen. That does not seem to me to be right.
The second reason why I do not like that is that it is against the law. As long ago as 1948, and I think it has been the law ever since, we provided, in Section 12 of the Criminal Justice Act: Subject as hereinafter provided, a conviction of an offence for which an order is made under this Part of this Act placing the offender on probation or discharging him absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the foregoing provisions of this Act. This, you see, was really the beginning of Parliament's groping its way towards a rehabilitation of offenders scheme; and saying, "Under this thing, a probation order, if you do what you are told it is deemed not to be a conviction at all." That was in order that a person could rehabilitate himself, if he fulfilled all the conditions of the order and went straight and did not commit any offence. Therefore all the time it has really been against the law that, after he has fulfilled all his conditions and at some later date, it may be six months or six years later, he commits some offence, his own conviction should be brought up against him. The Act said that that must not happen. The way the magistrates get round that is, instead of its being read out—it is in the previous conviction list—and instead of its being called a conviction, to call it a "finding of guilt". This is their way of not complying with what Parliament said was to happen. These are the reasons why in the Bill the period is what it is.
My Committee said this about it in paragraph 54 of their Report: 1356 The courts have power, which they often use, to discharge an offender either absolutely, or subject to the condition that he commits no further offence for some specified period (not exceeding three years), or to place him on probation for a similar period. In the last two cases the offender is always told that, provided he behaves himself, he will hear nothing more about the matter. No doubt that was what Parliament had in mind when it provided in Section 12(1) of the Criminal Justice Act 1948 that in these circumstances the conviction should be 'deemed not to be a conviction for any purpose' other than the proceedings themselves, or a breach of the order (in which case the offender can he brought back to the court to be sentenced for the original offence). Unfortunately, however, this is not always how matters work out in practice. The proceedings are still entered on the official record and there is nothing to prevent them from being recalled many years later as part of a man's previous convictions'. True, they will be formally referred to as findings of guilt' rather than 'convictions', but the damage will be the same. This was written by men who are stipendiary magistrates and who are very familiar with these problems. That is why the Bill is drafted as it is now. I could not accept the provision in the manuscript Amendment, because it really means that you can rehabilitate yourself, having been sent to prison, in a shorter period than you can rehabilitate yourself if a probation order is made.
I am entirely in the hands of the Committee. What I am inclined to suggest is that if the manuscript Amendment was a necessary one—and I am not complaining about this in any way—of which the Committee had no notice at all, if my noble friend Lord Wells-Pestell would agree to withdraw his Amendment and I do not move mine, we should then all have a further opportunity to think about these things at the Report stage. My heart is very much, as the Committee will have seen, with the spirit which animated the observation of my noble friend Lord Hale.

§ VISCOUNT DILHORNE
I should like to add one word, if I may, though I strongly support the proposal that all these Amendments about probation orders should be withdrawn and the matter reconsidered. I do not think I can have made myself quite clear to the noble Viscount, Lord Colville. I was aware of the provision to which the noble and learned Lord, Lord Gardiner, referred. That is why I spoke specifically about a probation order in relation to 1357 Clause 5(3). But the argument that the noble and learned Lord, Lord Gardiner, has now advanced really establishes that where a man is placed on probation he does not come within the purview of this Act, because he does not come within Clause 1. The whole basis for coming within this clause is that there should he a conviction, and if by Act of Parliament the sentence imposed is not being treated as a conviction, you are not within Clause 1. That is why I did not refer to Clause 1.
I think the argument goes further. I do not myself think—indeed I am convinced now by the argument—that there should be any rehabilitation period after this period of probation. I do not see why there should be. That really amounts to extending the probationary period. What I think is essential, by whatever language it is called, is that the courts before whom such a person comes for sentence shall be entitled to know that he has been on probation; because this may help him, and it is clearly relevant—just as under the Bill as it stands they are entitled to know of his previous convictions, although by virtue of Clause 1 they are to be treated as quashed, the rehabilitation period having expired. Therefore, I do not myself feel that there is any valid argument for extending the rehabilitation period beyond the period of probation, provided that the courts (and the argument has so far been about what the courts should know) are informed of the order being made. I intervene merely to mention that, in the hope that putting it on the Record may give the noble and learned Lord, Lord Gardiner, more time to consider those points.

VISCOUNT COLVILLE OF CULROSS
May I suggest that the idea of the noble and learned Lord's of taking all this back and looking at it again is a very good one? I hope to be able to persuade the noble and learned Viscount that you really cannot have a situation whereby a magistrates' court which has imposed a probation order, an order which has been breached towards the end of the period, is not entitled to take account of the fact that there was a probation order and neither is it allowed to deal with the breach, simply because the period is so phrased in this Bill that the rehabilitation 1358 runs at the time of the subsequent conviction.

§ VISCOUNT DILHORNE
I do not think there is really very much point in pursuing this point, because I have failed wholly to make what I was saying clear to the noble Viscount and I do not want to repeat it. I will summarise it quite shortly. A conviction followed by a probation is not a conviction within Clause 1. Forget about rehabilitation periods and treat the period of probation itself as the rehabilitation period if you will. If the offender breaks the probation order they of course know of it, but if, after it has expired he comes before the court, what is essential is that the court should know that he has been on probation. That is what I was directing my remarks to in relation to paragraph (b) of Clause 5(1).

VISCOUNT COLVILLE OF CULROSS
If the noble and learned Viscount will forgive me for saying so, we really are in substantial difficulties about this. We have the question as to whether probation orders come into this Bill at all—which is what the noble and learned Lord has raised. We get the question as to whether they can be dealt with in the magistrates' court, which is the question that I am going to raise very strongly when we come to Clause 50. We also have the technical point that if you cure both these in order to allow the Crown Court to deal with them, you debar the courts from acting upon the original offence when there is a conviction, simply because of some technicality of the rehabilitation period intervening. These are three points of real substance. I do not think that any of them can be ignored. So I greatly welcome the idea that all these Amendments should be withdrawn and that we should at least be able to have a good think about the whole subject.

§ LORD WELLS-PESTELL
I am grateful, as always, to the noble and learned Viscount, Lord Dilhorne, for his clarity in these matters and I am also grateful to my noble and learned friend for the help he has given me. There are only two points that I should like to make. The first is that I believe that if anybody was placed on probation at the old quarter sessions or assize courts, as they used to be, it was laid down very clearly that it was a conviction. I should like to 1359 look this up because I think that in recent years some alteration has been made concerning probation orders made in magistrates' courts. In respect of juveniles there are "findings of guilt", but I believe I am right (I apologise if I am wrong) in saying that probation orders made in quarter sessions or assize courts, now Crown courts, were recorded as convictions.
The second point I want to make is that I am not yet clear with regard to Clause 5(3) because under Section 29 of the Magistrates' Courts Act the only reason why magistrates remit cases to the Crown Court (the old quarter sessions or assize courts) was the known character of the defendant. Magistrates came to the conclusion that because of previous offences they did not feel they had sufficient powers as magistrates to deal effectively with the defendant and so he was committed to the old quarter sessions or assize courts (and now to the Crown Court, under Section 29). The point I am trying to make is that you can have a first offender who commits an offence and is put on probation. He goes through his probation period quite satisfactorily without any complaint, and there is no breach of his probation; but then within a few days of completing that he commits another offence and goes before the court—and he does so as a first offender. I do not say this would go on ad infinitum; of course it would not. But it can happen, and in fact anyone who has sat regularly in a magistrates' court knows that this sort of thing does happen. A person completes a probation period satisfactorily and then within a few weeks comes before the court again. It is not that I want to punish them. What I want to be certain about is that if, subsequently, within a few weeks or a few months of completing a probation period, they appear before a court, the court should be able to know what has happened when they were on probation and should be able to see—

§ LORD HALE
May I intervene at this point? The noble Lord said that the man comes before the court as a first offender. Everybody comes before the court as a first offender until the question of guilt of the crime he is charged with arises. No question of putting in a conviction can arise unless he conducts a 1360 certain line of defence which is laid down and which attacks the veracity or character of witnesses for the prosecution. He comes before the court as a first offender. All that is said in the Bill is that he is entitled to every purpose to be treated as a man with no previous convictions—except under Clause 5(3), and that will be a matter for the court. Only after the man is convicted will the probation officer or the reporting officer be able to report to the magistrates that he had previously been on probation. I do not like it particularly, but I do not feel strongly against it. The noble and learned Viscount, Lord Dilhorne, said, fairly, that this could be of assistance to the prisoner, for it is part of his medical and training record and so on, and on the whole it would be well for a beneficent and intelligent court to know. That is the position under Clause 5(3). I am not saying that that is necessarily right but it does not go any further than that.

§ LORD WELLS-PESTELL
My understanding of Clause 5(3) is that (if my noble friend is right) it means, notwithstanding the fact that one has completed a rehabilitation period, in almost all and every circumstance the court can be told of previous—

VISCOUNT COLVILLE or CULROSS
Only in the Crown Court.

§ LORD WELLS-PESTELL
I have been referring all along to a subsequent appearance in the magistrates' court. That is what I am talking about and I have made it quite clear. I am talking not about the Crown Court but about a subsequent appearance in the magistrates' court which can take place two or three weeks or months after the probation order has been satisfactorily completed. The person can plead guilty or be found guilty, and he stands before the court as a first offender. The court will know nothing of what has happened. That cannot be in the interests of the community or of the defendant. I take the advice, as always, of many who have given this matter as much thought as I, and in the hope that we can do something at the Report stage I beg leave to withdraw the Amendment.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 3, as amended, shall stand part of the Bill?

1361

VISCOUNT COLVILLE OF CULROSS
There are two points that I should like to raise with the noble and learned Lord. If he is going to consider the question of probation orders, would he be so kind as to think once more about conditional discharges? I know that he has grouped these two together, but I would suggest again that his Amendment would have covered this had it been moved. But if we are not going to have an Amendment at all at this stage we ought to consider whether conditional discharges ought in the case of magistrates' courts instantly to vanish the moment that the period laid down for it is up. I think that we shall get a situation where magistrates are debarred (unless we amend Clause 5(3), as I should wish) from knowing the following day that there has been a conditional discharge period which has just run out; or an offence may have been committed during the period of conditional discharge which, because of the drafting of the Bill and the fact that the hearing does not come on until after the conditional discharge is finished, they cannot take into account and punish for. If I have succeeded in explaining it art all intelligently, could the noble and learned Lord look at it?
There is another point on Clause 3(5) which deals with mental health orders. Again I have the courts very much in mind. I write a great number of letters when dealing with patients in one of the secure mental hospitals, or possibly afterwards when they have been transferred to a local mental hospital, letters which say, I think justly, that the person concerned is being kept in the mental hospital not as a matter of punishment—because, although technically he was convicted, he was found to be unfit to plead or something of that sort and therefore it was not a penalty at all—but for treatment to make him well again. I am thankful to say that advances in medicine have meant that the number of mental diseases can be cured and people can be got back into the community at greater or lesser speed and that, apart from one or two dreadful cases, it works very well.
What worries me about Clause 3(5) is that we are going to get into a situation where somebody may have been in a mental hospital for quite a long period 1362 of time—say, five years, which is not all that uncommon—comes out and commits another offence. As the Bill is drafted, the magistrates are not allowed to know about the Mental Health Act order. I would suggest to the noble and learned Lord that this is plain crazy; because they will not have any idea of the background to the case. Had they that knowledge they very properly would want to make certain that he had more treatment. If they are not allowed to know that he has had five years of specialised treatment under the best psychiatrists in the land and has been in this sort of trouble before, how can they properly dispose of him? It may not he a matter of sentence. Could the noble and learned Lord look at this point? I believe that it is a serious point and that we shall have dreadful mistakes made. This matter goes basically to the magistrates' court; the Crown Court would not be worried. The magistrates might have a case before them where what ought to happen is that the person should be committed to the Crown Court for sentence and for proper medical reports, so that the Crown Court could send him for treatment, perhaps with a restriction order; but because they do not know that there is any mental health background they fine him, and he may go out and do it all over again. There is the tragedy. I think that we are on a particular point where we must have an Amendment to the Bill. I hope the noble and learned Lord will look at it.

§ LORD GARDINER
Yes, I will do so. It is the sort of point on which the Home Office knowledge is obviously much greater than mine. Perhaps I may be allowed to show the noble Viscount some correspondence I had with the noble and learned Lord, Lord Parker of Waddington, because the clause in its present form is exactly what he proposed. It does not follow that he was right. I mention it merely to show that I always seek the best advice. On the matter of conditional discharges, we are here very much in the same position as with probation; because the 1948 Act applied also to conditional discharges. What they were trying to do was to create the first beginnings of rehabilitation law, inventing a new procedure which could be applied to somebody; and if, for the duration of the order, it was successful, then he 1363 was able truly to be told: "You may get into all sorts of trouble after this; you may be punished for all the things that you do in the future; but you will never hear of this conviction again." That was the intention of Parliament. It said it about probation orders; it said it about conditional discharges in the same section. That is what they meant to happen. Whatever view we finally arrive at, it may be that we want to make a conditional discharge six or 12 years before we are there. My own feeling is that Parliament was right, but its intentions have never been carried out.
Unfortunately the noble and learned Viscount, Lord Dilhorne, has had to leave the Committee, but of course a probation order cannot be made unless there is a conviction. So it is a conviction within the terms of Clause 1. But, as the Committee may have noticed, there is a special reference making something in Scotland which is not a conviction into a conviction for the purposes of this Bill. That is because Scotland was rather wiser when they started probation orders, and they did not seem to trust the magistrates or the police not to refer to them afterwards. Scotland provided not for a probation order being made if one were found guilty of an offence, but without proceeding to conviction. They did not want this man with this new procedure of probation order to have a conviction at all. If they had made it formally a conviction it could have been referred to; they did not want magistrates referring to it. The rule, as I understand it, is strictly observed in Scotland to this day: you are not allowed to refer to a probation order which has been made and successfully complied with. If later you do wrong you can be prosecuted; you can be sent to prison—they can do what they like. But magistrates are not allowed to know that the probation order had been made. That may be right; it may be wrong. We have a good deal to think about before the Report stage.

§ Clause 3, as amended, agreed to.

§ Clause 4 [Certificates]:

§ 6.52 p.m.

§ LORD GARDINER moved Amendment No. 15: 1364 Page 4, line 28, after ("person") insert ("if he at any time so requests,").

§ The noble and learned Lord said: There was a strong feeling on Second Reading that Clause 4 provided too much work for the courts. Both the noble Viscount, Lord Colville of Culross (at column 743 of the OFFICIAL REPORT), and my noble friend Lord Shackleton (at column 760), suggested on Second Reading that the certificate should be obtainable only if the person concerned so requested it. Consequently, I am very happy to adopt that proposal, and I beg to move.

VISCOUNT COLVILLE OF CULROSS
I know exactly what the noble and learned Lord has been trying to do on this point. I appreciate his attempt to deal with it. The trouble is the words, "at any time". Whether or not we get rid of the proposition that everybody shall be entitled to have a certificate every time he is convicted—and this would put a great deal of burden on the courts—if somebody is entitled to come back in five or 10 years' time and say, "I now want a certificate relating to an offence which I committed and on which I was convicted by this court; I rather think it was in 1963", the record keeping processes of the court are going to be very laborious indeed. We are not going to get round the proposition that an enormous amount of work will be put on the court. It will not be so much the work involved in handing out the certificate; it will be the colossal cross-index system with names, dates, offences and so on, which would enable them to find and give the authoritative certificate that is necessary.
As a matter of fact, it also follows one would have to amend the Schedule because it would no longer be right to say, "You have to-day been convicted That is a point that has not been picked up. I wonder whether I could now enlarge this so as to avoid yet another speech on the Motion, That the clause shall stand part of the Bill. We have been thinking very carefully about the whole of Clause 4 and the Schedule procedure. I know that the noble and learned Lord put this Amendment down because when he went to see my colleague, the other Minister of State, we commented on the Bill and said that it would not always be easy for those for 1365 whose benefit the Bill is being drawn up, and the many other people who need to take account of it, to be sure at any given time whether a particular person was rehabilitated. There is no central point of reference to which one can refer when in doubt, and so on.
What the noble and learned Lord has done is to bring in this fairly complicated statutory system. After a certain amount of thought, I do not think we can devise a method whereby one is going to avoid having an enormous burden put upon what are after all fairly heavily worked court staff in order to carry this out. One must also recall the point that I made on Second Reading, that the certificate that is produced is only good so long as another offence has not subsequently been committed, or, in the case of a fine, as we discussed earlier, that it was subsequently paid—neither of which can be seen from the face of the certificate. The certificate will be the document which is produced and shows the one fact that the whole of this Bill is attempting to conceal. Anybody who produces a certificate under the Schedule will be drawing attention to a conviction, which is precisely and exactly what we are trying to avoid in the course of this Bill.
I wonder whether the noble and learned Lord would consider—and this may not be so satisfactory or smart—that, instead of putting in a fairly complicated and difficult statutory provision, we should attempt to deal with it by way of a piece of paper, a circular or pamphlet, which is handed to people at courts and takes in most of the matters in the Schedule as a point of advice to the person concerned. This would tell anybody what are his rights, and the language would be simple. The person concerned is the person who is going to know best of all when he was convicted and whether or not he has been subsequently convicted. He is the best person to find out from the records if he wishes to have, say, a certificate of conviction produced by the clerk of the court for any particular purpose. Nobody else is going to benefit by this certificate, because if the man shows it to them, all he is doing is to draw attention to a spent conviction. I do not think it is going to be very easy for the people who might wish to see whether 1366 they are protected. For instance, a newspaper may wish to see whether it is still protected if it wishes to refer to a case, or whether the case has been spent and it therefore has to avoid any reference to it. It is not going to be easy for it to go to the courts and get the necessary information. I do not know whether in any event it would be entitled to it. It will go to a back number of its own newspaper, and even then, in either case, it will not be sure because there might have been an appeal which would not be in the original court file or in the newspaper cuttings.
These things are liable to be a trap. We may do better to go on an unofficial basis with the pamphlet or something of that nature. We would then avoid any necessity of putting a great deal of burden on the courts staff while at the same time bringing to the attention of anybody who is convicted what his rights are under this measure. I put this forward as a suggestion; it may get round some of these substantial difficulties.

§ LORD SHACKLETON
I am a little worried now although I supported the original proposal, because I subsequently saw certain virtues in everybody being given this particular form. Now I am more worried than ever by what the noble Viscount has said and I am not sure that I very much like the idea of "dishing out" a form, saying "You will become a rehabilitated person", to everybody, for every offence for which they are convicted, which would appear to be the case. I really have not made up my mind and I shall be interested to hear what my noble and learned friend has to say. He has tried very hard to accommodate us and it is rather hard luck for him to have it thrown back in this way.

VISCOUNT COLVILLE OF CULROSS
Of course, as the Bill stands they will get a piece of paper automatically.

§ LORD SHACKLETON
Yes, certainly.

§ LORD GARDINER
I have only been trying to assist everybody. As I said on the Second Reading, Clause 4 owes its origin to Home Office criticism that it would be difficult for anybody to know about the date: hence the original clause and the Schedule. Then it was said that 1367 it would put a heavy burden on the courts, and both the noble Viscount and my noble friend Lord Shackleton asked why it should not be limited to cases in which persons asked for it, and I thought that was a sensible thing to do. I gather that so far as this Amendment is concerned, if Clause 4 is to be in the Bill at all, it will be regarded by the Home Office as an improvement.

VISCOUNT COLVILLE OF CULROSS
Just.

§ LORD GARDINER
I think it would reduce enormously the work of the courts. Of course there are some noble Lords who are not able to be here to-day because of the situation with regard to the trains. The noble Viscount may remember the noble Lord, Lord Soper, saying that this document would be a considerable encouragement to a man to go straight; that the man would take it out of his pocket and look at it from time to time and say, "Well, I only have another five months to go". If the Committee will accept the Amendment I will certainly, with others, consider everything that the noble Viscount has said and perhaps we can discuss the matter together.

§ LORD DONALDSON OF KINGS-BRIDGE
May I ask my noble and learned friend to give full attention to what the noble Viscount has said? I have enormous respect for my noble friend Lord Soper, but I believe this is a misguided view of the way people who are sentenced for crime look upon rehabilitation. This is not something you take out of your pocket and look at; it is a defence to avoid persecution. That is all it is. I think that the publication of one's rights in a simple way to everybody who is sent to prison or is punished in any way is a valuable thing. If we pass this it will be the law of the land. I do not think one wants to sentimentalise it. Everybody ought to see it and it would do no harm whatever to tell them the facts. I believe it is a very good idea, and indeed a better one than something you can take out of your pocket.

§ THE DEPUTY CHAIRMAN OF COMMITTEES (BARONESS WOOTTON OF ABINGER)
Do I understand that the noble and learned Lord wishes to withdraw the Amendment?

1368

§ LORD GARDINER
No; as I understand it the noble Viscount regards this Amendment as some improvement if the clause is to remain in the Bill. The decision whether it shall remain will wait until a later stage in the Bill.

§ On Question, Amendment agreed to.

§ Clause 4, as amended, agreed to.

§ Clause 5 [Evidence of previous convictions]:

§ LORD GARDINER
This deals with a point raised by the noble Viscount, Lord Colville of Culross, at column 754. It will enable the justices to see rehabilitated convictions when they are sending somebody up with a view to a borstal order. I beg to move.

§ Amendment moved, Page 5, line 11, after ("section") insert ("28 or").—(Lord Gardiner.)

§ On Question, Amendment agreed to.

§ LORD GARDINER moved Amendment No. 17: Page 5, line 15, after ("court") insert ("or during proceedings before any such court for his committal for such trial.").

§ The noble and learned Lord said: This is also to meet a point raised by the noble Viscount. It will enable the magistrates to see rehabilitated convictions when there are proceedings for committal before them. I beg to move.

VISCOUNT COLVILLE OF CULROSS
I am obliged to the noble and learned Lord for this Amendment. It was a point that I raised with him informally; it was not something mentioned on Second Reading. I think this is an improvement. I still think that all magistrates ought to see the whole of this, and the collection of provisions in Clause 5(3) ought to apply to all magistrates' courts at all times. But if we are not going to get that—and I know the noble and learned Lord wishes to resist it—I certainly think this provision is a great improvement.

§ On Question, Amendment agreed to.

§ 7.7 p.m.

§ LORD GARDINER moved Amendment No. 18:

§ Page 5, line 17, at end insert— ("() in any proceedings relating to the guardianship, wardship, custody, care or control of, or access to, any minor; 1369 () to the extent to which such evidence is relevant upon his conviction of an offence under any enactment making him liable to greater penalties on a second or subsequent offence;").

§ The noble and learned Lord said: This Amendment relates really to two different things. The Committee will remember that an exception is made in the Bill for adoption proceedings. For however long a man may have been rehabilitated, it was felt that the whole of his record ought to be made available in adoption proceedings before a court. These proceedings are usually held in private. I think the House accepted that view, but it has been pointed out to me that if that is so in adoption proceedings it ought to apply equally to any proceedings in connection with guardianship, wardship, custody, care or control of, or access to a minor, and I hope the Committee may take that view.

§ The second is a different point: it is to the extent to which such evidence is relevant upon his conviction for an offence under any enactment making him liable to greater penalties for a second or subsequent offence. I rather think the final offence ought to be a conviction, but that is a question of terminology. There are of course Statutes which provide that a person should have a heavier sentence imposed on him for a second or subsequent offence. If that is so, the Committee may well feel that even though the person concerned is rehabilitated under the Bill, for the purpose of imposing on him a heavier punishment for a second or subsequent offence these matters should be before the court.

§ Only last year in the Road Traffic Act, for example, we provided for a heavier punishment on a second breathalyser offence than could have been imposed on a first one. After all, that is quite a sound principle, and taking it into account I thought we ought to make this provision in this Bill. I beg to move.

VISCOUNT COLVILLE OF CULROSS
The second part of this Amendment is quite vital and deals with the sort of points which the noble and learned Lord has mentioned, and I am grateful to him. The first needs a little further thought. It is quite right, of course, that one should have a special provision whereby the court can know fully the circumstances in the types of case set out in the new 1370 paragraph (d). Unfortunately, that does not cover all the possible proceedings relating to children and their wellbeing, and I think it probably ought to. It does not cover things like proceedings relating to the maintenance of a child, or permission to marry in England or Wales if you are between 16 and 18 years of age. It does not cover fitness to have foster children or, for instance, fitness to be a teacher under a certain part of the Education Act 1944.
What I would suggest to the noble and learned Lord is that at the end of his Amendment he might care to insert the words or to any matter affecting the welfare of any minor. That would cover these cases and, incidentally, would be quite useful on the whole question of cross-relating convictions in these very delicate areas where people really are not fit to have anything to do with children. I suggest that form of words, and I feel that would mop up the whole of the area that we are attempting to cleanse in this particular way. Perhaps he would consider that for the next stage of the Bill.

§ LORD GARDINER
I am very much obliged to the noble Viscount and shall certainly consider that for the next stage of the Bill.

§ LORD SHACKLETON
If it is as simple as that, would it not be worth having a manuscript Amendment at this stage?

§ LORD GARDINER
I should like to think about the matter.

§ LORD SHACKLETON
I thought that the noble Viscount had it ready.

VISCOUNT COLVILLE OF CULROSS
I have; but one of the things I admire very much is the noble and learned Lord's team on this. They have already produced some remarkably good Amendments and I accept the idea that they should think about this point and see whether it fulfils their own wishes.

§ On Question, Amendment agreed to.

§ 7.10 p.m.

§ LORD GARDINER moved Amendment No. 19: Page 5, line 19, at end insert— ("(4) Notwithstanding the provisions of section 2 of this Act, evidence of the conduct of any person, and of his conviction of any 1371 offence by reason of that conduct, shall be admissible at any time in any civil action or proceeding tried in any Court or tribunal having jurisdiction in any part of Great Britain in which a party seeks to enforce a right accruing to him by reason of that conduct or a right to which that conduct is or was relevant.")

§ The noble and learned Lord said: Amendment No. 19 is another point made by the noble Viscount at columns 744 and 757, on the Second Reading of the Bill. I have sought to meet him by this provision which will cover the case of convictions which might be relevant in running down cases and I think—though I have less sympathy with this—in divorce cases. I hope that it generously meets the points which he raised on Second Reading. I beg to move.

VISCOUNT COLVILLE OF CULROSS
This Amendment is probably the most important that the noble and learned Lord has put down to solve some gritty problems that we were trying to deal with at Second Reading. Again I do not want to be chary about my welcome of this Amendment, but there are cases which still might need to be covered on rare occasions. I meant to mention this earlier, but I wonder whether the noble and learned Lord would consider this. Having this general rule in the Amendment that we have already, would he also consider that there should be exceptions made with the leave of the court in cases not covered by this Amendment? I have some rather obscure points in mind—and I am prepared not to bore the Committee by going through them now—but I believe that there could be injustices if we did not make that final provision to catch the difficult case. I should have thought that one could safely leave it to the High Court judge or to the county court judge to be able to deal with this kind of thing in a civil matter quite successfully and without getting into any trouble.
There is also a dreadful point on defamation. As the clause is amended there seems to us to be a clash between the new Clause 5(4) and Clause 6(2). One or the other of them will have to prevail. Indeed there was going to be a collision before I suggested to the noble and learned Lord that certain extra words should go into this Amendment, which 1372 he generously accepted. Again, without boring the Committee with all the details, perhaps I could talk to him about it. I hope that the whole of this defamation matter, including some Amendments we are coming to, can be looked at again by the Faulks Committee, and the noble Lord, Lord Ballantrae and his colleagues, because this is an area with which I am not familiar. However, I know that the noble and learned Lord is familiar with it. I do not think that we should put anything into this Bill which runs counter to what the Faulks Committee have in mind. Perhaps I could leave this one at the moment, although I know that the defamation side is a pivot of this Bill. But we want to make sure that we get this right. An Amendment is needed to Clause 5 to tie up this particular matter.

§ On Question, Amendment agreed to.

§ On Question, Whether Clause 5, as amended, shall stand part of the Bill?

§ LORD SHACKLETON
I want to say only two things very briefly. First, I am extremely impressed by the ingenuity, skill and energy that my noble and learned friend and his friends have adopted with regard to this clause. The two points I want to make are these. First, I was attracted by the noble Lord's solution with regard to the leave of the court and increasingly, as I have thought about it, I can see virtues—and this is perhaps the appropriate place to refer to this matter—not perhaps to provide an enabling power (that is not the right word) but to "enable" the courts. Indeed at one time I thought this point might have been mopped up by giving special leave to the courts to give permission, but clearly we have gone very far in getting it nearly right. But I am nervous that there will be other cases which will not be covered and it is important that there should be some type of discretionary power in this matter with regard to the future. My noble and learned friend may not agree, but I believe that it could be important. The second point is that we shall need to look at this clause in its amended form. It is difficult for me to see how it looks now and I have a horrid feeling that in order to have a meaningful discussion we may have to re-commit some of these clauses.

VISCOUNT COLVILLE OF CULROSS
On the Question, whether the Clause 1373 shall stand part, I want to say only that I have to reserve the position of the Government on the question of the magistrates. I am simply not convinced that the magistrates' courts should not be entitled to have before them the complete record. The Crown Courts are going to be able to have it. The noble and learned Lord wants to take this away from the magistrates' courts. He has been generous in making more exceptions to-day. He made some previously. But I am total unconvinced that magistrates' courts are not fit to exercise discretion over the amount of information about somebody's record which is made public. It does not matter whether the magistrates know it and keep it to themselves. What matters is what they allow to be read out or referred to. We have tried to deal with this, as I explained before, by way of an administrative circular but I do not think that I could ever commend this Bill to the Government without a great deal more persuasion on the basis that it did not allow the magistrates to have this power. I leave this point, therefore. It is no use attempting to do anything about it to-day, nor is there any Amendment down about it. But I give the noble and learned Lord warning that we shall take a very strong line on this unless I hear something different from what I have heard so far.

§ LORD GARDINER
May I say that the noble Viscount has given me a lot to think about and perhaps he will think about this: what we are talking about are people nearly all of whom have gone absolutely straight for ten years. When we were considering periods and so forth, I naturally asked my Committee, which included both lay justices and stipendiary magistrates, what, if any, attention, would they have paid in this case to a conviction of this kind. They said, "No attention at all". That is why we thought what we did: that in actual practice there are things which magistrates ought not to pay any attention to. Nine out of ten of these people, a million of them, have gone absolutely straight for ten years. However, if the noble Viscount will be kind enough to think about that, I will think about what he has said.

§ Clause 5, as amended, agreed to.

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§ Clause 6 [Defamation Actions]:

§ LORD GARDINER
Amendment No. 20 deals with another point raised by the noble Viscount at column 748 and by the noble and learned Viscount, Lord Dilhorne, at column 773, and I hope that the Amendment meets the point that he was making. I beg to move.

§ Amendment moved— Page 5, line 26, leave out ("but without prejudice to") and insert ("notwithstanding") —(Lord Gardiner.)

§ On Question, Amendment agreed to.

§ LORD GARDINER moved Amendment No. 21:

§ Page 5, line 28, at end insert— ("Provided that for the purpose of this subsection a defence that the words published constituted a fair and accurate report of judicial proceedings shall not be treated as a defence of privilege unless the publication was contemporaneous with the proceedings.")

§ The noble and learned Lord said: This is a technical point in the law of libel. There is a statutory defence of privilege for newspapers which publish a contemporaneous and fair and accurate report of judicial proceedings. The newspaper report has to be both fair and accurate and contemporaneous with the proceedings. It is a matter of doubt in one or two cases, on which judges have not always agreed, whether, apart from this statutory defence, there is not also a common law defence even if the report is not contemporaneous. It is clearly desirable that any defence, in so far as this Bill is concerned, must be only if the report is a contemporaneous one, and it is to remove a doubt which might otherwise arise on the cases that I beg to move this Amendment.

VISCOUNT COLVILLE OF CULROSS
The final piece of my advice on this, which I otherwise wholly do not understand, is that the clause now appears—that is, with these two Amendments—to hit its mark, and where privilege is removed it is removed entirely and not by any evidential prohibition. I would guess that the noble and learned Lord and his advisers have done a remarkably smart job on this Amendment. I should still like to show it to the Faulks Committee, but I am happy to recommend its acceptance this afternoon.

§ On Question, Amendment agreed to.

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§ LORD GARDINER moved Amendment No. 22:

§ Page 6, line 11, at end insert— ("(4) In the application of this section to Scotland "plaintiff" means pursuer and "defendant" means defender.").

§ The noble and learned Lord said: On the print, I am afraid that this is printed under Clause 7, which is a mistake. It should be Clause 6. It is page 6, line 11, but it should have appeared in front of, and not after, the words "Clause 7". This Amendment corrects an obvious error in the preceding paragraph which refers to "actions by plaintiffs and defendants." As it applies to Scotland, provision must be made that in relation to Scotland "plaintiff" means "pursuer" and "defendant" means "defender". I beg to move.

§ On Question, Amendment agreed to.

§ Clause 6, as amended, agreed to.

§ Clause 7 [Unauthorised disclosure of spent convictions]:

§ 7.24 p.m.

§ LORD GARDINER moved Amendment No. 23: Page 6, line 38, leave out from ("person") to end of line 40 and insert ("whom the Secretary of State has by order designated as a person or as one of a class of persons to whom specified information may be disclosed; or").

§ The noble and learned Lord said: This point was dealt with by the noble Viscount at column 751 on the Second Reading of the Bill. This is a question of who has authority to allow disclosures from the criminal records to be made. The noble Viscount said, I think quite rightly, that there was a limitation placed on the powers of the Secretary of State by the words … the Secretary of State or a person duly authorised by him for purposes relating to the security of the State or the maintenance of law and order. The noble Viscount gave examples to show that those provisions might be too restrictive. I have, therefore, by this Amendment, left the whole of this problem entirely to the Secretary of State, subject to one later Amendment which raises a different point. We have all realised throughout, and it was said in the Report, that there are specially sensitive areas, and there are public authorities who are liable for these specially sensitive areas—matters both of security, 1376 and particularly matters concerning not only teachers, but almost the whole field of child care.

§ At the moment, I think it is generally agreed that the criminal records are open to the knowledge of a good many more people than they ought to be, considering that the police hand such information to people who are not authorised to receive it. It is strictly a breach of the Official Secrets Act. There is much too much coming and going between the police and the security officers of large companies, to whom the police, I am afraid, do provide information, although they ought not to. It was Mr. Maudling who first said that he would reconsider the whole of this field, and I understand that the present Home Secretary is still doing so. I am sure that the schedule ought to be made entirely by him as to the professional bodies, local authorities, probation officers and so on to whom this information should be given. There is a quite separate Amendment down on the question whether or not that should be subject to Parliamentary control. This only gives power to the Home Secretary. I beg to move.

VISCOUNT COLVILLE OF CULROSS
Again I should like to reserve the position of the Government on Clause 7; that is, whether one really has to have this tremendously elaborate provision in order to get at what may be a serious, but is a comparatively small class of non-justifiable disclosure. But having said that it is something to which I should not like to commit the Government at this stage, I very much welcome the changes the noble and learned Lord has made in this particular Amendment.
There is one difficulty about it, and that is that if you take it with the provision for Parliamentary control—which is the next Amendment, to which in principle I do not think I should object; though what form the Parliamentary control should take may be another matter—I would suggest to the noble and learned Lord that when we have an individual person who is going to be designated, he need not be designated by an Order which has to be subject to Parliamentary control. When the Secretary of State is dealing with a class, I think this is probably right, but in the case where he is naming an individual as being somebody to whom 1377 these matters may be disclosed—say, a member of a tribunal under the Tribunals and Inquiries Act 1921, or someone like that—it seems to be using a sledge hammer to crack a nut to have to take an Order through both Houses of Parliament before you can allow the Secretary of State to designate one individual person.
I think therefore that, "by Order designated as a person" goes too far, whereas, "by Order designated as one of a class of persons" would be all right. I do not think we can unscramble this to-night. The mischief lies in the hideous piece of writing that I gave to the noble and learned Lord, because this was one of my suggestions, and I think I wrote it very badly. But I think the noble and learned Lord will probably agree that there is soundness in the point that I am making, and perhaps he would consider putting that right. Otherwise, I think this is a great improvement.

§ LORD SHACKLETON
This, to me, is one of the most difficult clauses of the Bill. On the other hand, we really ought not to have to deal with this at all, because there ought not to be this kind of unauthorised disclosure; although on the other hand we all know that it does take place. I confess that I had direct business experience of this sort of information being brought to me—but, let me hasten to add, nothing to do with the business with which I am connected to-day. This has gone on. I continue to worry about the classes of people to whom these disclosures can be made. Quite obviously—and this is one reason why I personally would welcome Parliamentary control over it—there will be a natural tendency, and rightly so, to confine it to official bodies, possibly local authorities and education authorities. But there can be other categories of people, and sometimes even individuals, where it may be important that they should have the information. There have been cases where a perfectly ordinary employer would have been able to save his employee—a young girl for instance—from misfortune if this kind of information had been available.
I find a very real conflict of public interest in this matter. On the one hand, there is the important principle which the noble and learned Lord, Lord 1378 Gardiner, has in mind, and, on the other hand, there is the problem of the concerned person. I do not know how we get this right. Notwithstanding that, I am very much with Lord Gardiner in favouring the restriction of this sort of information, which, of course, ought not to be disclosed anyway. If the Official Secrets Act was not such an incredibly clumsy and unusable Act it might serve; indeed one of the arguments against amending the Official Secrets Act is that anything else which was put in its place would bite much harder. I congratulate my noble and learned friend on what he has done. My own feeling is that there ought to be some sort of control over this, not merely from the standpoint of seeing whether people who are put in should have been put in, but also to make sure that the people who ought to be included in the club are there also. I certainly welcome the Amendment.

§ LORD GARDINER
I am grateful for what noble Lords have said. I think there is a legitimate public interest and concern in the question as to who are the people to whom the police reveal previous convictions. We have never known; this has always been sub rosa, and nobody so far has even known, except the Home Secretary and the police themselves, to whom they are authorised to disclose. I am not dealing now with the case where they give information which is not authorised. We do not even know to whom they are authorised to disclose old convictions. I think there is a perfectly legitimate public interest and concern to know who the people are. That is why I think they ought to be included in the Order, whether they are individuals or groups, so that everybody should know. I should have thought that one person who is entitled to know to whom the conviction has been disclosed is the man who was convicted. It may be quite right in the case of a professional man that his professional body should be told, but he ought to know that that is happening.
On the second point, I am not wedded to an Affirmative Resolution Order. But it seems to be almost impossible in the other place for Parliament to find the time for Order under the Negative Resolution procedure. If it were not for that fact, I should be quite satisfied with a Negative Resolution. Perhaps this point 1379 could be considered again before Report stage.

§ On Question, Amendment agreed to.

§ 7.32 p.m.

§ LORD GARDINER
I have already spoken to this Amendment. I beg to move.

§ Amendment moved—

§ Page 7, line 9, at end insert— ("(7) Any order pursuant to paragraph (c) of subsection (4) of this section shall be made by statutory instrument and shall not have effect unless a draft of the order has been laid before, and approved by resolution of, each House of Parliament.").—(Lord Gardiner.)

VISCOUNT COLVILLE OF CULROSS
We think this should be under the Negative Resolution procedure. There is no hard and fast rule about this, and I know about the problems in the other place. But this does not seem to come quite into the category of the seriousness of things dealt with by Affirmative Resolution. I can tell the noble Lord that if he is going to have individuals designated by Order and it has to be done by Affirmative Resolution I shall fight him into the Division Lobbies on it.

§ LORD SHACKLETON
I am bound to say that having on so many occasions supported the case for Affirmative Orders, my present opinion is that it certainly ought not to be Affirmative in this case. The important thing is to get it before Parliament. If I may say this to my noble and learned friend, there are certain reforms taking place at the moment with regard to Statutory Instruments which will also affect us in this House. Hitherto, Negative instruments were not seen by our Special Orders Committee, or not examined. I see the Chairman of Committees is here and he may be able to correct me if I am wrong. Under the new Joint Scrutiny Committee all such Orders, as I understand it, if they are subject to annulment, will be seen by the Joint Committee. I would make the further point that this House ought to be prepared, in regard to these orders, to look at them more fully—I am making a general point—even if we have to set up some sort of special merits committee for the purpose. It would be really counter-productive to have the Affirmative Resolution Procedure here, and I suspect that my noble and learned friend would be inclined to that view himself.

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§ On Question, Amendment agreed to.

§ On Question, Whether Clause 7, as amended, shall stand part of the Bill?

VISCOUNT COLVILLE OF CULROSS
I would give notice that if the noble and learned Lord does not turn this into a Negative Resolution we shall have to oppose it. I am sure he will give very serious consideration to this in view of what the noble Lord, Lord Shackleton, has said.

§ Clause 7, as amended, agreed to.

§ Clause 8 [Citation, commencement and extent]:

§ On Question, Whether Clause 8 shall stand part of the Bill?

VISCOUNT COLVILLE OF CULROSS
I have been advised that, even with the Amendments that we have made in Clause 6 and elsewhere, the insurance industry are likely to need to change a great deal of their paperwork forms, and probably premiums, if this Bill is enacted, and it will take them quite a long time to do it. I would suggest to the noble and learned Lord that in order to give them the time properly to bring this into effect he ought to have a commencing date of, say, July 1, 1974, rather than January 1, because they simply will not have time to do it.

§ LORD GARDINER
I am very much obliged.

§ Clause 8 agreed to.

§ The Schedule [Form of Certificate]:

§ LORD GARDINER moved Amendment No. 25:

§ Page 8, line 20, leave out paragraph 4 and insert— ("4. These conditions are:—

(i)	(a) that you are not dealt with for any breach of the probation order;
(Delete as required)	(b) that you do not commit any other offence on or before the date given in paragraph 3;
(c) that you pay the fine within the time limited by the court;
(d) that you make the payment(s) ordered within the time limited by the court;
(e) that you serve the sentence which has been imposed upon you;

and (ii) that you are not convicted of any offence on or before the date given in paragraph 3 (but conviction of a minor offence, i.e. one which is not triable on indictment, will not count for this purpose)")

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§ The noble and learned Lord said: I must apologise for the fact that, through nobody's fault, there were one or two inadvertent errors in the Schedule. As your Lordships will see, the bracket should have stopped after (e) because any of (a), (b), (c), (d) or (e) may require to be deleted, whereas (f) will always be necessary. The word "and" which appears at the end of (e) should appear in the middle of the next line, so that (f) would be separate. Also, in the penultimate line of (f) the word "on" should have been "one". All these points are corrected by the Amendment, and I beg to move.

§ On Question, Amendment agreed to.

§ LORD GARDINER
In moving this Amendment, may I thank all noble Lords in all parts of the House who have been good enough to sit through what I think has been an interesting, and for me a very profitable, discussion to move this Bill one stage nearer the Statute Book. This particular Amendment deals with simply a misprint. The word "to" ought to have been "or". I beg to move.

§ Amendment moved— Page 9, line 7, leave out first ("to") and insert ("or").—(Lord Gardiner.)

§ On Question, Amendment agreed to.

§ Schedule, as amended, agreed to.

§ THE DEPUTY CHAIRMAN OF COMMITTEES
The Question is that I report this Bill with Amendments to the House.

§ Moved, That the Bill be reported with Amendments to the House.—(Baroness Wootton of Abinger.)

§ Loan SHACKLETON
May I speak to this Motion to congratulate my noble friend, who has been so kind to us that we must be kind to him? I think, too, the noble Viscount, who is under very heavy pressure, has borne up very well, and I have great hopes that he will bear up under a good deal more examination on this measure.

VISCOUNT COLVILLE OF CULROSS
I think the noble and learned Lord, Lord 1382 Gardiner, deserves to be congratulated. I have already said earlier on to-day that I appreciate how very hard he and his advisers and team have worked in order to meet almost every conceivable point that has been raised. I still think that there are one or two major issues of principle that we may have to deal with, but it would be churlish of me in the extreme not to join in the praise to him. I am only too happy to bear up under any pressure that I may be put under.

§ On Question, Motion agreed to.

§ House resumed: Bill reported with the Amendments.