HL Deb 29 March 1973 vol 340 cc1321-33

9.40 p.m.

LORD GARDINER

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read 3ª.—(Lord Gardiner.)

On Question, Bill read 3a.

Clause 1 [Rehabilitated persons and spent convictions]:

LORD SHACKLETON moved Amendment No. 1:

Page 1, line 20, leave out subsection (2) and insert the following new subsection— (2) The payment in full of any fine or other sum ordered to be paid by any court by way of sentence in criminal proceedings shall, notwithstanding that the payment was not made within the time, or any further time, allowed by the court, be deemed for the purposes of the last preceding subsection to have been a compliance with the sentence if either—

  1. (a) such payment was made in full before the commencement of this Act, or
  2. (b) the court has certified that it is satisfied that the sentence should be deemed to have been duly complied with notwith-standing the delay in making the payment,
but in the latter case two years shall be added to the rehabilitation period prescribed in section 3(1) below.

The noble Lord said: My Lords, this Amendment arises from one which was made by my noble and learned friend on the Report stage and which had the effect of ensuring that any individual who has been convicted but has not paid in full before the commencement of this Act shall, as I understand it, be deemed to have completed that sentence, notwith-standing that the payment was not made within the time (or any further time) allowed by the court. I may not have fully represented the effect of the Amendment, but I know that the noble Viscount, Lord Colville, who accepted that particular Amendment, and my noble and learned friend, both know what the effect is.

When my noble and learned friend moved the Amendment, which I supported and which took care of the past, I none the less objected—and my noble and learned friend referred to my use of the word "draconian". The effect of the Amendment was that an individual who, for one reason or another, has not com- plied with the sentence (that is, has not paid a fine) can never have his conviction regarded as spent. My noble and learned friend argued that courts were reasonable and that it is possible to apply for an extension; but some people, for one reason or another, may not have paid a fine. It seems to me wrong that if we are prepared to allow convictions for much more serious offences than disrespect to the court—though I am not minimising the objectionable nature of a failure to comply with an order of the court in the matter of a fine or other payment by way of sentence in criminal proceedings—to be spent it should be allowed also in these cases. But as the Bill stands these convictions can never be spent, however minor the offence.

Therefore I have put down an Amendment the effect of which is that if in due course these people do fulfil the requirements of the court and pay their fine, so that the sentence is fulfilled by payment, after the period established in Clause 2—that is, the period during which a conviction will stand and will not be regarded as spent—with the addition of another two years (which I admit is a figure plucked out of the air but which nevertheless seems to be appropriate) it will be possible for the conviction to be spent in accordance with the purposes of this Act. I am strongly in support of the purposes of this particular Bill though, like the noble Viscount, I have had some anxieties about certain aspects of the drafting—and we all know that my noble and learned friend and his legal friends have done a superb job in producing this Bill—and I hope that this Amendment will be acceptable to the House. I beg to move.

9.45 p.m.

LORD GARDINER

My Lords, I have no very strong view about this Amendment. On the one hand, it provides a locus pœnitentiœ for which I think there is a good deal to be said. On the other hand, it may be said that it somewhat complicates the Bill and it is perhaps rather unusual to provide that a court is to certify that it is satisfied about something. I apprehend that both the judge and the clerk of the court might be a little puzzled as to what form the certificate should take (it would presumably be in writing) or what they were to do with it when the judge had signed it, as I suppose he would. But on balance, and subject to what the noble Viscount, Lord Colville of Culross may say, I would advise the House to accept the Amendment, primarily because undoubtedly there will eventually be some people to whom the Bill applies who will not have heard of its provisions before it has been passed. It is unusual to pass legislation on the footing that somebody is to do something before the Bill becomes law, and on those grounds I think there is a case to be made for this locus pœnitentiœ. Therefore, on balance, I would advise your Lordships to accept the Amendment.

THE MINISTER OF STATE, HOME OFFICE (VISCOUNT COLVILLE OF CULROSS)

My Lords, I would not wish to discourage the House from doing so, either. I think I have made it plain at various stages of this Bill that I am not altogether enchanted with certificates being issued by the court—at least not necessarily if it is going to be done in the way in which the Bill is now drafted, or indeed in the way that this Amendment would suggest.

With the greatest respect to those who have laboured long and lovingly on this Bill, I think the whole question of machinery in the courts for putting its provisions into action have not been thought through, simply because they could not be by private Members of this House. It is in no sense of criticism that I say that; I simply do not think it is within the powers of the noble and learned Lord to discuss this question with all the people who would be concerned. This sort of certificate suffers from the precise defect outlined by the noble and learned Lord, Lord Gardiner, in addition to which I am not altogether satisfied as to what are the criteria on which the court would be satisfied. I suppose that the money had been paid within a certain period of time, although it does not say so.

I assume that, in essence, whether or not it is drafted correctly, the noble Lord, Lord Shackleton, has attempted to produce a compromise between what is draconian and what is wholly lax. If we are speaking in terms of ideas I think we shall agree with what has been said about the clause; on the exact formula, the exact drafting and exact machinery I think we may well need to have further thoughts. However, I do not want to suggest that we should not proceed on the basis of this compromise.

LORD SHACKLETON

My Lords, I am much obliged to my noble and learned friend and to the noble Viscount, Lord Colville of Culross. I hope my noble and learned friend will not take it amiss if I say that I am more contented that this Amendment should go into the Bill because I am well aware that, despite the splendid labours of everyone, there are still imperfections in the Bill and indeed, even if it is appropriate as drafted, I suspect there may have to be consequential amendments. But at least I think this Amendment gets the particular point into the Bill and, if it should proceed further in another place, or here on a later occasion, it will be possible then to deal with the matter. I understand that the House may be prepared to accept my Amendment.

On Question, Amendment agreed to.

Clause 3 [Rehabilitation periods]:

9.48 p.m.

LORD GARDINER moved Amendment No. 2: Page 3, line 11, leave out ("two years") and insert ("thirty months").

The noble and learned Lord said: My Lords, the House will remember that at an earlier stage of the Bill in Clause 3(1)(c) we changed the period from what was then two years to 30 months. I am afraid I omitted to notice that in that event there ought to be an equivalent change at page 3, line 11. I beg to move.

On Question, Amendment agreed to.

Clause 4 [Certificates]:

9.50 p.m.

LORD GARDINER moved Amendment No. 3: Page 5, line 9, leave out ("be treated as spent") and insert ("becomes a spent conviction").

The noble and learned Lord said: My Lords, this Amendment arises on Clause 4, and as we are on Clause 4 may I say that the noble and learned Viscount expressed the opinion at the last stage of the Bill that the form of the certificate in the Schedule was not appropriate in the case of a hospital order. That is quite right and it would not be difficult to draft an alternative form for use in such a case, explaining to the offender that his rehabilitation period was five years from the date of conviction or two years from the ending of the hospital order, whichever was the later. The reason I have not dealt with that, as I might at this point explain, is simply that Clause 4(2) provides that: Any such certificate shall— (a) be in the form set out in the Schedule to this Act or in such other form as the Secretary of State may from time to time by regulation prescribe". It would be quite easy for the Secretary of State to provide a form applicable to hospital orders The reason I have not done it at this stage of the Bill is that I thought that it was about time that the Secretary of State did a little drafting work. I know that he says he has not got a Parliamentary draftsman; but he has many draftsmen who are quite used to drafting Statutory Instruments and to whom I hope this would be no difficulty. It has struck me that it is a little curious that there is another Private Member's Bill, with which I have been concerned, on which we have just got a Parliamentary draftsman with no difficulty, simply by paying for his services —a distinguished draftsman because he is a former chief draftsman. It is rather odd that a private Member can do that where-as apparently the Government themselves cannot. This particular Amendment on the Order Paper is simply a question of improved drafting, and I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, I am glad to hear this handsome tribute to the merits of private enterprise from the noble and learned Lord. What I shall do is to draw his remarks to the personal attention of my right honourable friend and suggest that he may set afoot the drafting of the necessary details relative to hospital orders which I think would be fairly difficult and something we would have to consider carefully because of the particular importance which I know that not only my right honourable friend but also everyone else place upon correctly dealing with people who have been subjected to hospital orders; that is not because we wish to be in any way unkind to them, but because in some cases there is the question of the protection of the public which has to be borne in mind.

On Question, Amendment agreed to.

Clause 5 [Evidence of previous convictions]:

LORD GARDINER

My Lords, I beg to move Amendment No. 4, which arises because at the Report stage of the Bill the noble and learned Viscount expressed the opinion, at column 697 of the OFFICIAL REPORT that we had got the wrong section of the Social Work (Scotland) Act. As I told him at the time, I had had advice, informal and gratuitously, from a Scottish Parliamentary draftsman. I should have checked the section number myself but I am afraid I did not. It therefore a case of Homer having nodded. I beg to move.

Amendment moved— Page 6, line 3, leave out ("62(3)") and insert ("64(4)").—(Lord Gardiner.)

On Question, Amendment agreed to.

LORD GARDINER

My Lords, I beg to move Amendment 5. This matter was also raised by the noble Viscount, at column 697, at the Report stage because he thought this ought also to apply to the question of the fitness of a teacher. I respectfully agree; hence the Amendment. I beg to move.

Amendment moved— Page 6, line 4, at end insert ("or section 72 of the Education Act 1944.").—(Lord Gardiner.)

On Question, Amendment agreed to.

LORD GARDINER

My Lords, this is simply a question of improving the drafting. I beg to move Amendment No. 6.

Amendment moved— Page 6, line 12, after ("any") insert ("rehabilitated").—(Lard Gardiner.)

On Question, Amendment agreed to.

9.56 p.m.

LORD GARDINER moved Amendment No. 7: Page 6, line 17, leave out ("accruing to him by reason of that conduct or a right") and insert ("or to claim relief founded upon that conduct, or a right or relief").

The noble and learned Lord said: My Lords, in moving this Amendment may I also speak to Amendment No. 8? This refers to the rather troublesome question that arose of exceptions being made to the Bill for the purpose of civil proceedings. At the moment these exceptions are limited to those claiming a right. It was pointed out to me by the noble Viscount that there might be people claiming relief, possibly, I suppose, on a counterclaim. I am quite prepared to extend the Bill in the sense for which he contended, but I thought there ought to be some balance, so to say, on the other side, otherwise we were really making the clause too wide. Accordingly Amendment No. 8 adds the words: , and the court or tribunal is satisfied that justice cannot be done except by the admission of such evidence". If the two things are taken together, I would suggest to the House that there is a proper balance. I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, the noble and learned Lord again has made a valiant effort to meet the point that I raised, and I am very grateful to him. I agree with him that one has to attempt to get the right balance in this particular matter when one is dealing with admissibility of spent convictions in civil proceedings of one sort or another. I do not want to oppose either of these Amendments. I would still remind the House that this whole area of the application to civil law is a very difficult one. I have done my best with the advice I have, and I know that the noble and learned Lord has also done the best with the advice he has. I cannot guarantee that any of us have got it right. Certainly I would not wish to oppose this Amendment. It meets a certain extension of the Bill that I wished to see. The counter-balance the noble and learned Lord has mentioned could have its difficulties in practice, but it is, I would think, workable; therefore, if this is the argument and the balance the noble and learned Lord wishes to see in the Bill, I certainly would not wish to resist it.

On Question, Amendment agreed to.

LORD GARDINER

My Lords, I have already spoken to Amendment No. 8. I beg to move.

Amendment moved— Page 6, line 18, at end insert (", and the court or tribunal is satisfied that justice cannot be done except by the admission of such evidence").—(Lord Gardiner.)

On Question, Amendment agreed to.

LORD GARDINER

My Lords, I beg to move Amendment No. 9. This is a point raised by the noble Viscount at the Report stage. I think it is quite right, and I therefore beg to move this Amendment.

Amendment moved— Page 6, line 29, after ("order") insert ("supervision order or care order").—(Lord Gardiner.)

On Question, Amendment agreed to.

In the Schedule:

LORD GARDINER moved Amendment No. 10: Page 9, line 20, leave out ("are not dealt with for") and insert ("do not commit").

The noble and learned Lord said: My Lords, as this is the last Amendment may I just mention two points. On page 8 at line 34 Clause 7(7) begins Any order pursuant to paragraph (c) of subsection (4)". Owing to Amendments carried on the Report stage of the Bill, paragraph (c) became paragraph (d). I think I pointed that out at the time. But this point has not been picked up. I wanted to put down an Amendment to change "(c)" to "(d)", but I was told that it was unnecessary and that it will be seen to and corrected in the next print of the Bill.

The other point I wish to mention is that line 24, on page 9, states: (c) that you pay the fine within the time limited by the court or any further time which is allowed".

The word should not really be "limited"; it should be "allowed" in both places. I moved an Amendment at Report stage to leave out the word "limited" and to insert the word "allowed", and that Amendment was carried. But in the Bill it is still "limited", and therefore I wanted to put down an Amendment again, but I was told that as the Amendment had been carried earlier it could not properly be put down again. The powers-that-be would see to it that in the next printing of the Bill the word was corrected. I mention that only for the Record. The last Amendment is, I suggest, obviously right. The Schedule states: These conditions are: —

  1. (a) That you are not dealt with for any breach of the probation order".
The point is not whether the person is dealt with for breach of the probation order, but whether he has committed a breach of the probation order. Accordingly, my Lords, I beg to move.

VISCOUNT COLVILLE OF CULROSS

My Lords, I did not notice the noble Lord, Lord Shackleton, straining at his noble and learned friend on a point of Order on this Amendment, as he did on the previous occasion. All I can say is that on these technicalities we have a new personification of Homer. But, as to the Amendment itself, I certainly would not wish to oppose that, either.

LORD SHACKLETON

My Lords, the reason I did not attempt to do so is that I saw the Government Chief Whip here, who I thought might wish to do so.

On Question, Amendment agreed to.

LORD GARDINER

My Lords, I beg to move that this Bill do now pass. In doing so, I should like again, if I may, to thank the noble Viscount, Lord Colville of Culross, for the great personal interest and care which he has taken in relation to the Bill, the noble and learned Viscount, Lord Dilhorne, my noble friend Lord Shackleton, and all those who have shown such great interest in the earlier parts of the Bill. I hope it will now go forward to the other place, and I hope very much that the Government will take this Bill over. We have all been conscious throughout that it is just the sort of Bill which merits the attentions of a Parliamentary draftsman. Having passed its Second Reading, nobody has at any time quarrelled with the principle of the Bill.

It affects about one million people ditectly, some of whom are in middle-age with children and wives whom it affects, and some have fathers and mothers, so I suppose there are something like four million votes in this Bill if one looks at it from that point of view. Naturally, I should not wish anybody to take too Party-political a view about it. All I should like to make plain is that if the Government would like to take it over and take credit for it, I shall have no objection of any kind. I am persuaded that this Bill must become law at some time. We all know the difficulties about Parliamentary time in relation to Private Members' Bills in the other place. Now that we have joined the Common Market, we remain the only Member of the Council of Europe which has no rehabilitation law. This in itself shows that there is nothing wrong with the principle or something impracticable about it, because every other member of the Council of Europe has already introduced it. I therefore hope very much that the Government will give careful consideration to the question whether in the other House they themselves should take this Bill over. My Lords, I beg to move.

Moved, That the Bill do now pass.—(Lord Gardiner.)

LORD SHACKLETON

My Lords, I should like to congratulate my noble and learned friend on his determination, his ingenuity, his idealism, and the good social principle that is contained in this Bill. I have been interested in it right from the beginning, from the time when the original report from Justice came out. I had at that time, as I still have, some doubts about whether we have solved all the problems. It was quite obvious that in that first report, looking at it from the point of view of an employer who has to administer matters, and indeed to a lesser extent from other public angles, there were difficulties—and those difficulties have been made abundantly clear by the noble Viscount in his various speeches. None the less, the principle is so important that I am sure we are right to let this Bill complete all its stages in this House, and to pass it. It is perhaps a little unusual that we should have gone as far as this. On previous occasions with Private Members' Bills, when I have had to deal with them, we have not gone beyond Second Reading; then there was a wearisome period while the Government, and in particular that very over-burdened office the Home Office, who always get landed with new and complicated bits of legislation, finally got down to dealing with it. Then the Bill reappeared and got picked up in another place.

I would make only two points here, very briefly. The first is that I think my noble friend might still consider whether this is not an appropriate Bill for a Select Committee. He has now taken it through all its stages in this House, and I think it would be an appropriate Bill to send to a Select Committee of this House. I remember now why it is that I have the Sex Discrimination Bill in my hands. In the case of that Bill, a Select Committee, aided by Sir Noel Hutton and with the resource of being able, one way or another, to call on one of those really first-class ex-Parliamentary counsel, were able to produce a Bill which I hope will be more acceptable. At least it had the virtue of being drafted by a first-class draftsman. It is almost impossible in the case of a Bill of this complication, admirable though we all agree its purposes are, to get it right.

The choice is therefore either for the Government to pick it up at a later stage, or it can perhaps go some way through the Commons, though the prospects for a Bill of this complexity are not very great —certainly there are none in this Session. Or it might go to a Select Committee; or we, as a Parliament, might face up to the fact that we ought to have resources available in the form of Parliamentary draftsmen, as they are available to the Canadian Parliament and as they are available to Congress. This is a matter I do not wish to say anything further about just now. It is not right to press the noble Viscount, who I think has done his best, on this point. This is a matter that one day we might consider; in fact, I hope at not too distant a date. I would ask the noble Viscount and his noble friend to consider this matter with the Leader of the House.

VISCOUNT COLVILLE OF CULROSS

My Lords, on that last point, may I say that this is a problem which has beset Parliament for a long time, and I know that the noble and learned Lord, Lord Gardiner, was himself concerned very much with the problem of Parliamentary counsel when he held the high Office that he did. Alas!, I think neither his efforts nor those of preceding or subsequent Governments have made any great impact on the problem; but we are very well aware of it, and we who have been interested in this Bill are all the sufferers. The noble Lord, Lord Shackleton, has I think very accurately forecast some of the things that might happen to this Bill. It goes to another place. I am grateful for the generosity of the noble and learned Lord in offering it to us, but I simply cannot forecast what my colleagues may feel is the right course to take, though the generosity of his offer will be passed on to them—I assure him of that.

There are really two things that I want to say about this. The noble Lord, Lord Shackleton, has emphasised that we may very well have not got this measure right. There are certainly details in it which are still wrong. There may be matters which do not necessarily go to the root principle but which affect some fairly substantial subordinate principles which we have not got right, either. I am glad it is thought that the Home Office on this occasion have taken a constructive attitude. We have done our best and I am glad that we have got the Bill to this stage in this House, but it remains, when all is said and done, an amateur effort, if a skilled amateur effort, and what we must do in Government is to reflect on the principle underlying the Bill which has now been very widely discussed. We must look at the attitudes which have been expressed in the balanced debates in this House—and they have been remarkably favourable to the noble and learned Lord and his supporters and we shall take this into account.

We shall have to look at some time at the precise provisions of the Bill as they now stand after all these Amendments. I am sorry if that sounds a little disappointing, but the noble and learned Lord must take comfort in the fact that what he has done will be widely recognised as being not only an idealistic and determined effort but an extraordinarily skilful one in trying to meet all the points which I have raised. My fear is that I have not raised all the points. If I have, I feel certain that the noble and learned Lord would have bent over backwards to meet them, but I still think that submerged in this is a good deal of trouble; there are reefs on which the whole thing could run aground. I am sorry it should be so. I have reserved the Government's position on a number of matters and I do not want to go into this, but we must bear in mind that these matters exist and we must not underestimate the difficulties that still lie ahead.

Having said that, however, I would once again thank the noble and learned Lord for the trouble he has taken to try to meet all my points. It has been a most agreeable exercise to carry out with him and his advisers, and certainly we shall look with interest to any further progress of this Bill, and we shall not fail to take account of the principle so clearly enunciated in the Divisional Court of Justice and in the Bill and see what we really ought to do about it.

On Question, Bill passed, and sent to the Commons.