HL Deb 28 July 1977 vol 386 cc1160-70

1 Clause 43, leave out Clause 43.

2 Schedule 10, page 92, line 55, column 3, leave out "Sections 3 and" and insert "Section".

The Commons insist on the above Amendments for the following Reason:

3 Because to remove the restriction imposed by section 3 of the Criminal Justice Act 1961 (elimination of intermediate and short prison sentences) would increase the number of young offenders of or over 17 and under 21 in the prisons (including prisons for adult offenders) at a time when the prisons are already severely overcrowded.

Lord HARRIS of GREENWICH

My Lords, I beg to move that the House doth not insist on their disagreement to the Commons Amendments Nos. 1 and 2 on which the Commons have insisted for the Reason numbered 3. This, I think, my Lords, is the final debate on the Criminal Law Bill, and it is indeed a debate, not just on the powers of the courts in relation to young adult offenders but on the effects of the Bill as a whole. If I may remind the House about the background to this matter, it is this. Last week your Lordships insisted, against the opposition of another place, on Clause 43, inserted into the Bill during its passage through this House. This repeals Section 3 of the Criminal Justice Act 1961, which imposes restrictions on the passing of prison sentences of medium length on offenders aged between 17 and 21.

Last night the other place made it clear, and I think by a convincing majority, that it did not want Clause 43 in the Bill. Until then, I think it could perfectly reasonably be argued that the view of another place was unclear, because it rested on a fairly narrow Committee decision—I think a decision taken by a majority of only one vote, in the absence, I think the noble Lord, Lord Wigoder, would agree, of one member of the Committee who might have voted the other way. But last night's vote creates, I think, a new and significantly different situation, because it now falls to this House, either to accept the decision of the other place or, by insisting on Clause 43, to lose the Bill altogether. There is now no procedural possibility of any further to-ing and fro-ing between the two Houses. All that work, all that Parliamentary time, would be thrown away, and all the useful reforms incorporated in this Bill would be postponed until we know not when.

First, I think it would be right to say a little about the subject-matter of this remaining issue, difficult though it certainly is to say anything new. This is, I think, the sixth occasion on which I have spoken in the House on this matter. I think it right, nevertheless, on an occasion such as this, to define the area of difference and, I hope, to attempt to narrow the area of disagreement and, if possible, to lower the temperature. Certainly it is not the Government's case that the present law is the right solution to the problem of custodial sentencing of young adult offenders. The 1961 Act, of course (and we went into this on Second Reading), was not the legislation of my own Party but of the Party opposite; but certainly it was non-partisan legislation, and it was treated in exactly that way during its passage through both Houses—and perfectly properly so, too. It reflected the recommendations of the Prison Commissioners, which had been ratified by the then Advisory Council on the Treatment of Offenders under—and I think this is a very important point—the leadership of a judicial chairman. Their object was not to frustrate or fetter unreasonably the Judiciary: it was to work towards keeping young offenders under 21 out of prison by building on the best in the British custodial system; namely, the borstals. These, I think, were worthy aims at the time, and I think they remain so.

The difficulty, essentially—and this has been emphasised during the course of all our discussions, both in this House and in another place—is that the courts have found the limitation which Section 3 places upon their sentencing discretion increasingly irksome. How irksome certainly is uncertain. Are there few cases, or are there many? How are they dealt with now? It is sometimes suggested that Section 3 works well in the great majority of cases, and that it is only a few that would have to be dealt with differently if there were no Section 3. I, for my part, find it hard to believe that, if this were indeed so, Section 3 would create quite such a furore in judicial and other legal circles. At any rate, when the Home Office comes to speculating on the effects of the repeal of Section 3, it cannot with safety assume that it would make only a little difference. I went into the reasons for that judgment in some substantial detail during my speech last week, and I certainly do not want to weary the House by going over precisely the same ground this afternoon. It is, of course, not as though there were no other ways to solve this particular problem. Sentencing questions were at the heart of the review of young adult offenders which was carried out by the Advisory Council on the penal system, and certainly I think there is a wide consensus of support for their solution, which is a single custodial sentence for young adult offenders which would relieve the courts of the present restrictions on fixing the length of sentence and, at the same time, would bring the different sentences and penal establishments into a single system. Of course, it is said that we have had the Advisory Council's report for three years and have not acted upon it. That is certainly true. However, it became clear to us at a very early stage of our consideration of this issue that full implementation of the Advisory Council's plan would require a very substantial input of resources which we cannot possibly contemplate in the present economic situation; and to attempt to implement the Advisory Council's plan without adequate resources would be a recipe for confusion for which any Government would, I think, be rightly criticised. It was therefore our hope to live with the present system until the prospects for implementation became brighter: hence the terms of the Statement which my right honourable friend the Home Secretary made in February of this year.

Now the debates during the Bill on Section 3 have increased our conviction that, rather than wait until we can embark upon the full implementation of the Advisory Council's plan, we ought to press ahead with plans to reshape the sentencing and institutional structure within existing resources, solving in the process the problems created by Section 3. This may sound a simple recipe but, in fact, it is a complex task with various options that need to be explored; but we believe it can be done and it is our intention that it should be done. I beg to move.

Moved, That this House doth not insist on their disagreement to the said Amendments on which the Commons have insisted for the Reason numbered 3.—(Lord Harris of Greenwich.)

Lord MORRIS of BORTH-Y-GEST

My Lords, now that a conclusion on this matter has been reached in another place, that conclusion being the conclusion of the elected Chamber, I, for my part, very much hope that your Lordships should take the view that that conclusion should now be accepted. Your Lordships came to a view in regard to the matter with which we are concerned; you came to a clear view, and then the matter went to another place. I think, if I may be allowed to say so, that your Lordships were amply warranted a few days ago in coming to the conclusion that it would be desirable to give another place the opportunity to look at this matter again.

As the noble Lord, Lord Harris of Greenwich, has indicated, when this matter was first in another place it went to a Standing Committee and there were good reasons for wondering whether the votes expressed—the votes being nine one way and eight the other—really represented the balance of opinion in another place. Therefore I think it was absolutely right a few days ago—and I do not understand the noble Lord, Lord Harris of Greenwich, to be dissenting from this—to give the other place the opportunity to go into this; and so it came before the full House and a conclusion was reached.

I, for my part, do not think that any useful purpose would be served if I re-stated the view that I hold. Many noble Lords in this House expressed their views on this subject. I hope that I expressed mine and I hope that I expressed it clearly. I have in no way changed it, but I fully recognise that a different view, held, as I entirely accept, with great sincerity, has now been accepted by a majority in another place, in the elected Chamber. I therefore, do not feel for my part that there would be any advantage in carrying the matter any further. I believe that this is a most important and valuable Bill and I think that great credit should come to this House from the fact that this very important Bill was introduced here. So many of your Lordships spent a great deal of time in endeavouring to improve the Bill, to consider it very carefully, and I really feel that your Lordships greatly improved the Bill.

I, for my part, therefore, not without some regret but with every good grace, accept the decision arrived at yesterday. I think that this is an important Bill and I hope that your Lordships will take the view, also with good will, that it is right now that this Bill should go on its way with the full endorsement of this House.

4.55 p.m.

Lord WIGODER

My Lords, like the noble and learned Lord, Lord Morris of Borth-y-Gest, I, too, am unconvinced by the Home Office arguments. I remain sceptical about their guess—and it is no more than a guess—that if Section 3 of the 1961 Act were repealed more young people would find themselves in prison. I remain deeply perturbed by the fact, and on this there is no doubt, that as a result of the operation of Section 3 some young offenders find themselves in prison for longer than they would otherwise have to serve. I think that one ought to mention that it is not realistic to refer to Borstal as being a satisfactory medium-term sentence when one sees from the prison statistics only last week that the great majority of borstal offienders are released certainly before they have served as much as nine months of their sentence.

Having made those observations, like the noble and learned Lord who has just spoken, I, too, for my part—and this is not, as I have always said, a Party political matter—would accept the view expressed in the other place last night. Despite some of the observations by some of the more belligerent journalists, I do not believe there was ever any intention of having a confrontation between the two Houses on this particular issue. The thought of fighting a General Election on the question of whether Section 3 should be repealed is not one that I, myself, find attractive.

I am of the view that we should accept the decision of another place despite the fact that some rather extraordinary observations were made in another place last night and, in particular, if I may refer to them, observations about the noble and learned Lord, Lord Hailsham of Saint Marylebone. Whether those observations were a breach of the conventions of another place it would be quite improper for me to comment upon; that they were obviously grossly lacking in taste and grotesquely inaccurate is perfectly clear to everybody who listened to the distinguished part that the noble and learned Lord has played in this House in the course of the passage of this Bill. I know that your Lordships and the public at large will treat with derision the observations that a Member of another place chose to make.

Arising out of our protracted discussions on this issue, one good feature has resulted and that is that the Younger Committee's proposals are now very much nearer implementation than they were when we started. When the debates began, it was indicated that it was quite impracticable for us to hope that any steps would be taken towards implementing those proposals in the reasonably near future. It is clear from what the Minister has said in another place last night and from what the noble Lord, Lord Harris of Greenwich, has said this afternoon that it is now going to be possible to take some steps towards the implementation of those proposals within a reasonable time. I believe that that is a desirable objective and that that has been achieved largely as a result of the pressures brought about by the debates on this Amendment.

The last observation that I would make is this: perhaps it is time that we began to educate the public into appreciating that when resources are available the building of new prisons will have to have a very much higher priority than it has had in the past. The shortage of accommodation in our institutions has led to total distortion of our penal policy. I am sure that the noble Lord, Lord Harris of Greenwich, will agree that the sooner that matter can be rectified, the sooner we can go ahead towards a sensible and coherent sentencing policy and a constructive method of dealing with young offenders.

5 p.m.

Lord HAILSHAM of SAINT MARYLEBONE

My Lords, I rather question whether it would have been appropriate for me to intervene at this stage and detain your Lordships still further but for two factors. The first is that I should like to acknowledge with sincere gratitude the generous remarks of the noble Lord, Lord Wigoder, in this matter. He was very gracious to me and I sincerely appreciate what he has just said. Secondly, because he said the remarks which were made last night were inaccurate, I am entitled—if only as a Member of your Lordships' House, and if only in order to justify the part which your Lordships' House has played—to put the record straight. I should not trouble to do so if the remarks had simply been made by an inexperienced Member of Parliament. But they were in fact made by a Member of the Bar who has received a patent of silk from Her Majesty, and who has held office under the present Government, although he does not any longer do so. That would have led one to suppose that the remarks had a certain validity, or that he had taken some trouble to verify his remarks before he had made them.

But they are certainly false and, so far as I know, he had made no effort to verify them before he made them. So far as his speech is concerned, he produced no evidence whatever in support of what he said. He made two charges against me. I may not name him, and I do not attempt to do so; nor may I read what he said, because both actions would be out of order in this House. I say in parenthesis that when I was a Member of the House of Commons it was wholly out of order for a Member of that House to make a direct, personal attack on a Member of this House. It was something which would have immediately incurred the censure of the Chair, and I can only suppose that it was very late at night because on this occasion the honourable gentleman seems to have got away with what he said.

He made two charges against me: one was not in relation to this House, but in relation to the Bail Act. Although I will not read what he said, I will closely paraphrase it and, as the House can see, I am in a position to do so. He said that I had done that to the Bail Act, the result of which was that the Act had no effect on judges at all in the way that they exercised their new powers, and I had done it by an Amendment.

It is quite true—and I speak in the presence of the noble and learned Lord—that at a comparatively late stage in the Bail Bill there was a difference of opinion between the Home Office, as represented by the noble Lord, Lord Harris of Greenwich—of whose personal attitude in these matters I make no complaint at all—and not only myself but noble and learned Lords on the Cross-Benches and noble Lords on the Liberal Benches as well. The result of that, as the noble and learned Lord on the Woolsack knows very well, was that I went to see him in his room. We had a most amicable discussion. We thrashed the matter out. I cannot now remember whether the Amendment which emerged was proposed by the noble and learned Lord and supported by me, or proposed by me and supported by the noble and learned Lord on behalf of the Government. But one or the other of those two things happened. The idea that I was guilty of what was described as "insufferable conduct", having support from all quarters of the House and, ultimately, the Government themselves, in having secured that Amendment, is contrary to fact. It is because that is contrary to fact that I feel, without commenting upon the propriety of the speech, that I should put the record straight.

The charge in relation to this Bill is that I did not even trouble—so the phrase was—to intervene in the debate in the Lords. I had spoken on Second Reading on the point; I had spoken in Committee on the point; I had spoken on Report on the point; and it seemed to me that the House was entitled to a change of bowling. The noble Earl, Lord Mansfield, is a specialist in English criminal law and it seemed to me that he was well entitled to go in first wicket down. So I was not guilty of any disrespect to anybody by not making a fourth or fifth speech on the subject.

It was also said that I hung a threat over the House of Commons that they would not be able to obtain a most important Bill reforming aspects of the criminal law because I took a different view from the Government on this one item. The only true fact in that particular charge is that I do take a different view from the Government on this particular item, for reasons which I have now adumbrated four times and with which I will not therefore weary the House again.

What was described as blackmail and as insufferable was that I should threaten to destroy this Bill simply because I disagreed about this. Not one word of evidence was produced for this extraordinary fabrication. Let me say at once, lest the House should think I am painting myself as a Sir Galahad, that I would not hesitate to destroy the Bill if any good would come of it; but if I did destroy the Bill or advised my noble friends to destroy the Bill, and they were foolish enough to listen to my advice—which I hope would always be more sensible than that—the effect would be that the Amendment, Clause 43, would fall with the Bill itself, so that I would not get what I wanted.

I am willing to destroy some of the more idiotic provisions of the Government where it is proper to do so, but where the whole object is to get rid of Section 3, and the whole effect of what I did was to preserve Section 3—because the only way of getting rid of it is by an amendment to this Bill—the honourable and learned gentleman must have thought, not that I was a blackmailer—which is what he said—but that I was a lunatic. It is just possible that, in my old age, I am going senile. But I am not quite so senile as that. I therefore say that I would really rather appreciate it if the honourable gentleman to whom I have referred thought fit to give me an apology.

Several noble Lords

Hear, hear!

Lord HARRIS of GREENWICH

My Lords, may I say at the outset that I am grateful to the noble and learned Lord, Lord Morris of Borth-y-Gest, and the noble and learned Lord, Lord Hailsham of Saint Marylebone, and the noble Lord, Lord Wigoder, for what they have said and the manner in which they have said it. There has undoubtedly been a significant disagreement between us on this issue, which is hardly surprising because, as we have been reminded, a similar disagreement took place within the life time of the last Government. This is a difficult issue and, as the noble Lord, Lord Wigoder, rightly said, there has been some change of attitude on this important question as a result of the debates which have taken place in both Houses. I emphasised that in my speech this afternoon.

May I say something in relation to what the noble and learned Lord, Lord Hailsham, has just said. I confirm, in so far as it is necessary for me to do so, the accuracy of the statement made by the noble and learned Lord. He never made any such threat either to me or to any other member of the Government. We certainly have our disagreements—sometimes sharp ones—but he has always behaved with great moderation in matters affecting these suggested changes in the criminal law. He has always taken the view, I think rightly, that these are not matters for the normal character of debate that sometimes takes place between the two Parties; and he tries to raise the level of debate—as he always has—during our discussions on these matters. I would end by saying that certainly the noble and learned Lord has not made any such suggestion to us. I repeat that, in so far as it is necessary to confirm the accuracy of the statement, I should now like to do SO.

On Question, Motion agreed to.