COMMONS AMENDMENT (Hansard, 27 October 1976)

§ Lord HARRIS of GREENWICH
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 16. For rather obvious reasons, I should like also to speak to Amendment No 16A at the same time, because otherwise we shall get ourselves into a rather complicated procedural situation. These Amendments concern the way in which the court has to approach the various criteria for the grant or refusal of bail. Commons Amendment No. 16 restores the wording of the Bill as introduced in your Lordships' House, as I am quite sure the noble and learned Lord, Lord Hailsham of Saint Marylebone, will recall. On a Division, the House ensured that for the words "there is an unacceptable risk that" were substituted for the words "that it is probable that".
Following extensive discussion in Committee in another place, the probability formula was restored on a Division and it is this formula which the House is invited to approve in Amendment No. 16. However, the House will have observed that the Government put down an Amendment to Amendment No. 16—this is No. 16A—which, if approved, would have the effect of substituting for the words "it is probable" the words "there 524 are substantial grounds for believing". Dissatisfaction has been expressed at various times, both in this House and in another place, that neither the probability formula nor the unacceptable risk formula is the right means of expression. The purpose of Amendment No. 16A is to offer to the House what we hope will prove a generally acceptable formula to define the way in which the courts shall approach the bail decision.
My Lords, I accept that we must start by recognising that no single phrase can deal with the basis on which the courts take these decisions. The Bill recognises this by setting out in what was paragraph 7 of the Schedule of the Bill as it left this House the facts to which courts should have regard when coming to a decision. Whatever words we include in paragraph 2 are qualified and extended by the later paragraph which the House will recollect was inserted at the suggestion of the noble and learned Lord, Lord Hailsham of Saint Marylebone.
The House will remember that when we discussed this matter at an earlier stage several noble Lords suggested that we had not yet found an entirely satisfactory form of words, and invited the Government to put forward a new one. We were unable to take this up at the time, because, frankly, we could not think of anything better than the words already discussed. As I have indicated, when the matter was discussed in Committee in another place the majority of the Committee favoured a return to the original word "probable"; and the only alternative put forward was a fresh formula which would have substantially weakened the presumption in favour of the grant of bail which is at the heart of the Bill.
The formula which the Government now invite your Lordships to consider is that the court should be satisfied that there are substantial grounds for believing that the defendant, if released on bail, would misconduct himself in one of the ways later specified. The reason why we now suggest this new form of words is that it is less subjective than the alternatives. The words "substantial grounds for believing", while not weakening the presumption in favour of bail, imply a setting out of specific grounds to be weighed and a dispassionate weighing of them in the light of the later paragraph of the Schedule; 525 that is, the matters to which the court is to have regard so far as they are relevant. I hope this formula will meet with general approval and will be acceptable to noble Lords generally.
I should perhaps conclude by saying that if this formula does find favour it involves a consequential change in the wording of the new Part II of the Schedule, which I shall move later as an Amendment to Commons Amendment No. 31.

§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I think I must say a few more words about this one than I have said about the previous ones. I want to say both some friendly words about the Government, and in particular the noble Lord, Lord Harris of Greenwich, and some rather unfriendly words. As the noble Lord knows, I have given a private under-taking, which I now repeat in public, that I will recommend to my noble friends to accept this formula as certainly an improvement on what was done in another place. This Bill has never been fought on Party lines at any stage, and I have not done so. This makes it all the more important that Ministers in another place should not arrogantly try to put back what is put forward in good faith after careful discussion in this House.
When I proposed the formula of "unacceptable risk" as distinct from "probability", I did so because I was frankly dismayed at the danger to the public of offences being committed by accused persons while out on bail. I do not know whether the House knows this, but the other day in the mugging case which became notorious for quite different reasons, which I will not discuss, one of the accused had committed a series of offences while out on bail for a serious offence, and they were offences of violence. The Police Commissioner, Sir Robert Mark, has, certainly in private and I think in public, repeatedly complained of the number of people on bail at the moment in the metropolis who go about committing offences of one sort or another, and in particular offences of violence.
I believed at the time I put forward this new formula, as distinct from that originally 526 favoured by the Government, that they were running a quite unwarrantable risk with the safety of the public in going as far as they had; and, of course, this risk is accentuated if, as I now understand is the case—though this is a matter for the Lord Chancellor's Department rather than for the noble Lord, Lord Harris of Greenwich—once again in the metropolis delays are mounting up between committal and the trial of offenders. When I took over from the noble and learned Lord, Lord Gardiner, as Lord Chancellor, I made it absolutely my first priority to reduce those delays, both in the interests of the defendants and in the interests of the public. They are mounting up again, and if you are taking risks about continuing offences while people are out on bail the mounting delays accentuate that risk.
Having said that, when I propounded this debate in Committee before the Bill left for another place, I had support from all round the House. I had support from the noble and learned Lord on the Cross-Benches, Lord Morris of Borth-y-Gest; I think I had welcome support from the Liberal Benches, from the noble Lord, Lord Foot; I think even the noble and learned Lord, Lord Gardiner, gave me a rather wintry kind of approval. I quoted on Second Reading, and again in Committee, a letter I had had from a very eminent person, whom I did not choose more particularly to designate, but whose identity was perfectly well known to the Government. At any rate, I expected that this would be taken seriously. What in fact happened in another place was that the Minister of State, with complete arrogance, put back the original formula which had met with such disapproval in this House.
I really must say this to the Government, and I am sorry that I have to say it to the noble Lord, Lord Harris, because he has been so decent with us through out; but as he is the only person present, I say it nevertheless, harshly and firmly. This House is a revising Chamber, and, particularly in matters which do not involve Party controversy, it simply is not good enough for the Jacks in office in another place arrogantly to put back words we have deliberately changed in the course of our quite prolonged discussion. I do not hesitate to say to the noble 527 Lord, and I hope he will convey it to his colleagues in another place, that I would not have hesitated to insist on our original formula if nothing whatever had been done about it; and if the Government had lost their Bill as a result of their complete disregard of debate in Parliament by informed opinion they would have lost it entirely because of their own obduracy and folly. I hope that this will be conveyed to the Minister of State in another place, that he simply cannot ride roughshod over informed opinion in this House, and that the only sanction we have in such circumstances is to make them lose their Bill, and I would not have hesitated to do it.
As a matter of fact, thanks to the good offices of, among others, the Lord Chancellor, but I have no doubt of the noble Lord, Lord Harris of Greenwich, too, consider-able efforts were made, when I made my position plain, to improve the formula. I do not think that the formula now proposed is as good as that which I originally advanced, but, as the House knows, I never preen myself on, I have no amour propre or false pride in, the actual words in any draftsmanship I indulge in. I am quite sure that the Government, owing to the good offices of the Lord Chancellor and the noble Lord, Lord Harris, and I expect of the Secretary of State himself, have conscientiously applied themselves to the feeling we had, that this was not treating this House with proper respect or treating informed opinion with proper respect. Therefore, I shall gladly perform my undertaking, which is to support this Amendment, and simply signalise the fact that it is far better to settle the case if you can than to fight it to the end.

§ Lord WIGODER
My Lords, may I support the formula contained in the new Amendment. I have always felt that in the overwhelming majority of cases in which there is today an application for bail, that application will be decided in precisely the same way before the passing of this Act as after it. In the last few years there has been a very remarkable change, I think, in all the courts, which now approach the whole question of bail in a far more realistic and generous way than has been done in the past. This has been due largely to stringent observations on the subject from 528 successive Lord Chancellors and Home Secretaries. However, there remain a small minority of cases in which it may be that the court will wish to refer to the precise terms of the criteria laid down in the Bill. In regard to that small number of cases I believe the new formula is an improvement upon those which have preceded it. The original Government formula that the defendant need not be granted bail if the court is satisfied that it is probable that the defendant would misconduct himself would, if strictly interpreted, make it almost impossible for a court to remand almost anybody in custody.
The Amendment of the noble and learned Lord, Lord Hailsham, which was ingenious and extremely clear, perhaps on reflection leant just a little too far in the other direction, and might have resulted in some defendants being remanded in custody who could safely and properly be given bail. It was therefore helpful that a compromise might be reached. I also do not regard as ideal the words in the present proposal. I am bound to say particularly that I am not entirely happy about the use of the word "satisfied" which, in terms of the criminal courts, so often involves a degree of certainty which is sometimes philosophically quite un-obtainable. I regard the present formula as a great improvement on the previous one, and I hope it will be discovered in practice that in that small number of cases it has struck the right balance.

§ Lord HARRIS of GREENWICH
I would certainly accept that the noble and learned Lord and, indeed all others who have contributed to the debate on this particular issue and the other issues raised in the Bill, have not regarded this as in any way a Party issue, as manifestly it is not, and have discussed the proposals in the Bill on that basis. I am grateful for what the noble and learned Lord said about my noble and learned friend the Lord Chancellor, who is sorry he cannot be with us this evening but he has been detained at a Ministerial meeting.
If the noble and learned Lord would forgive me for saying so, I think he was rather harsh on my honourable friend the Joint Minister of State. It is possible to have two views of this matter without being actuated by ignoble motives, and 529 it was true that the Government at that time did not take the view that the noble and learned Lord's Amendment was an improvement. Nevertheless, we hunted around for the compromise which is now before us this evening, and I am delighted that the noble and learned Lord and the noble Lord, Lord Wigoder, think it improves the Bill. Certainly I do.

§ Lord HARRIS of GREENWICH
My Lords, I beg to move Amendment No. 16A as an Amendment to Commons Amendment No. 16.

§ The DEPUTY SPEAKER (Lord Amherst of Hackney)
My Lords, the Question is, That the House doth now agree with the Commons in their Amendment No. 16, as amended by Lords Amendment No. 16A?