§ Standing Order No. 43 having been dispensed with (pursuant to Resolution):
§ 3.4 p.m.
§ The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone)
My Lords, I rise to move that this Bill be now read a second time. We have a difficult and, in some ways, a distasteful day's business in front of us, but it is nonetheless an absolutely essential one. My first task should, I think, be to suggest how we may make the best use of the limited time available. As your Lordships will remember, I was on the Woolsack throughout the Statements by my noble friend Lord Belstead and my noble friend the Leader of the House and, if I may say so, I was particularly struck and particularly grateful for the understanding 410 way in which the Government's difficulties were received and accepted by the House. If I may single out the leaders in this House of the Opposition parties, I was particularly grateful for the contributions from the noble and learned Lord, Lord Elwyn-Jones, his noble friend Lord Boston of Faversham and the noble Lord, Lord Wigoder. Nevertheless, both the noble and learned Lord, Lord Elwyn-Jones and the noble Lord, Lord Wigoder, stressed the necessity of as careful an examination of the provisions of the Bill as time allowed; and, if I may say so, I agree with their points of view.
Subject to the better wisdom of the House—and the matter is entirely in your Lordships' hands—I myself would favour a relatively short Second Reading debate, to which my noble friend Lord Belstead will reply, followed by a clause-by-clause discussion on Committee, since each clause separately raises different problems. My right honourable friend the Home Secretary has already outlined in another place the background of the present emergency. I shall therefore not repeat here what he said yesterday, but there are one or two things which I think I ought to say which have not been said before.
First, let me stress what I believe to be the overriding duties of the Government, the court system and those responsible for the prisons to the nation as a whole. I mention them in what I conceive to be a descending order of importance. Of course, our overriding duty is the safety of the law-abiding public. Every community has a potentially dangerous minority, but ever since Magna Carta we have protected the law-abiding public by due process of law. This ensures that the dangerous minority is identified only after a proper trial by due process in front of an independent judiciary after the application of a rigorous standard of proof, and using custodial sentences only as a last resort. Once they have been identified and incarcerated, we also owe a duty to the public to ensure that dangerous criminals do not escape while serving their sentences.
That I believe to be our first duty in this respect; but I must add, and add immediately, that we also owe a duty to those who are deprived of liberty. During their incarceration, we all have a duty to 411 treat them humanely and not to subject them to squalid and degrading conditions. That is a duty which, in part, we delegate to our prison officers. In the past, I must say that as a nation we have not altogether succeeded in performing that duty. We live in a democracy and there are votes in building hospitals and schools, but there are no votes and there is much expense in building prison accommodation. I believe that the noble and learned Lord, Lord Elwyn-Jones, the Labour Government and certainly I, when I was Shadow Home Secretary in the past, have all spoken in public and in private of the dangers we were running by taking a shortsighted but perhaps electorally attractive view of this fact. My Lords, to some extent we are now reaping the reward of years of neglect, although we have now a realistic building programme which my right honourable friend the Home Secretary will carry forward through this decade. If I may be allowed to say so, I think that my right honourable friend is entitled to gratitude and not criticism for his far-sightedness and humanity in this respect.
Therefore, we do not need, in view of our past neglect, to speak in terms of excessive harshness of those who have borne the brunt of the trouble—and they are of, course, the prison officers. They are dedicated men and although we differ from them—or at least I differ from them—I would prefer to speak in muted terms. In other respects, both the Home Secretary and his Labour predecessor, Mr. Merlyn Rees, have also deserved well. In order to investigate the grievances of the prison officers, Mr. Rees set up the May Committee and my right honourable friend announced on the day of the publication of its report that he would implement in full its findings on pay and allowances. Under no pressure, he also entered into negotiations with the Prison Officers' Association for a new duty system. That new duty system, when it comes into force, will prevent a repetition of the grievances.
But after the May Committee there remained two grievances, one which was confined to Liverpool and which involved disputed questions of fact which have since been duly investigated by my noble friend Lord Belstead, and one which affected meal breaks in one but not both 412 of the two duty systems now in force. Both of these grievances were ventilated before the May Committee. After the implementation of the May recommendations the second, if allowed, would have involved an additional improvement in existing conditions which was not recommended by Mr. Justice May. Neither, in my view—and here I must express myself firmly—merited the degree of industrial action with which we are now faced.
Since the May Report my right honourable friend has used the full weight of his authority to better conditions in prison, both for those incarcerated and for those employed in the prison service. Again, I would say that for this he deserves both gratitude and respect. The industrial action which has been taken now faces us with an emergency. I pass over in silence the action taken which relates to contractors and to the work done in prison workshops. I also pass over in this connection in silence but not without compassion, or without some degree of indignation, those acts of industrial action which involve unmerited hardship on existing prisoners. These have not caused the present emergency which necessitates the present legislation. I think that there has been a certain lack of compassion for those prisoners. What has caused the present emergency is the refusal by prison officers in many establishments to accept prisoners remanded or prisoners sentenced by the courts. It is in the light of this that the provisions of the present Bill are required.
Before I deal with those provisions—as I am just about to do—may I say something which affects myself? Last week, when it was apparent that a crisis had already arisen and that an emergency Bill would have to be prepared so soon as it could be discussed by Ministers, my right honourable friend the Home Secretary sent a circular to all justices' clerks. The purpose of this was to acquaint the justices' clerks with the gravity of the situation and to assist them in their work and to remind them of the various powers which courts of summary jurisdiction possess as to which they might care to offer advice to the members of their respective Benches. Before he took this step, my right honourable friend had the courtesy to consult—as was only right— 413 both myself and the Lord Chief Justice of England.
We both expressed the same view which was put succinctly by the noble Lord, Lord Wigoder, in his reply to the Statement on Monday by my noble friend. The justices' clerks would, I think, have been entitled to complain and my right honourable friend would have been failing in his duty had he not taken the step he did. The noble Lord, Lord Wigoder, said—and I consider him to have been perfectly right—this at col. 38 of Hansard last Monday:May I venture to say that such criticism appears to me to be entirely ill-conceived and that the Government would be failing in their duty if they did not bring to the attention of the judiciary at all levels the purely practical difficulties which face everybody at the present time".Unfortunately, with the mania for soliciting instant criticism which infects the modern age, and perhaps particularly the modern media, some justices' clerks and magistrates were moved to comment on the terms of the circular before they received it. I am informed and believe that it is highly likely that, had they had their texts of the circular before them, these comments would not have been made at all, as they could only have been made upon inaccurate reports of the contents of the circular or else a complete misunderstanding of its terms. I hope that this will be a lesson to all of us to refrain from instant criticism of documents which have not been read. I am afraid I am over-optimistic. Neither I nor—much more important—the Lord Chief Justice would have consented to the issue of the circular had we not both thought it proper and necessary for it to go out as soon as possible. In moments of urgency, premature, ill-advised and ill-informed criticism can do a great deal of harm.
May I now draw the attention of the House to certain changes in the form of the Bill since it was first introduced yesterday as a result of discussion in the other place. This particularly affects Clause 8, which has been substantially altered since yesterday by Government amendment. As it now stands, and as amended, the effect of this clause is that the only permanent provisions in the Bill—that is, those in Part II, other than Clause 8—are Clauses 6, 7 and 9. All the other clauses of the legislation will be repealed in 12 months from the date of 414 Royal Assent unless by an order subject to Affirmative Resolution of both Houses of Parliament their repeal is postponed for another 12 months. Without such a resolution it will not be possible under Clause 8(2)(b) to revive any of the provisions of Part I when the initial 12-month period has elapsed. It will remain possible for Parliament to approve the extension of the life of the full contents of the Bill 12 months at a time indefinitely.
When the Bill receives Royal Assent the provisions of Part I will remain in force for a period of one month, and not three months as originally proposed in the text which your Lordships will have seen yesterday. They may thereafter be kept in force for another month for as long as Clause 8 remains in operation, by order made by the Secretary of State. This order must be laid in draft and approved by Affirmative Resolution of both Houses within seven days of being made. It will similarly be possible for a lapsed provision of Part I to be revived by order of the Secretary of State. I now come to the clauses of the Bill, and out of order may I take—
§ Lord HALE
My Lords, may I make a single interjection? The noble and learned Lord was recently making a criticism of the people expressing opinions on documents that they had not received or read. Is the noble and learned Lord's typescript document one that has been corrected since the Commons sat yesterday, or is the Green Paper—which, after three or four calls, was issued to me by the Printed Paper Office a few minutes ago—the one on which we can now rely as the document on which we are permitted to make observations?
§ The LORD CHANCELLOR
My Lords, the noble Lord should have received the right paper and the one to which he can refer with confidence. My Lords, may I now—
§ Lord HALE
My Lords, with very great respect to the noble and learned Lord, that really was a somewhat cavalier comment to someone he has known for quite a long time. Have the Members of the House been issued by the Printed Paper Office with a new printed Bill amended in accordance with the debate yesterday or have we to seek some other document—which was certainly not 415 offered to me—which contains particulars of the debate yesterday?
§ The LORD CHANCELLOR
My Lords, I thought I had made it very clear to the noble Lord. If I did not, I apologise. If the document was delivered in the past few minutes then he has the right one.
§ Lord ELWYN-JONES
My Lords, would it help if I say that the PPO now has the Bill as it has come to your Lordships' House from another place. It would seem that, unfortunately, my noble friend, has not had the opportunity to go to the PPO to collect it.
§ The LORD CHANCELLOR
My Lords, I did not know there was anything particularly obscure in what I said, but, if there was, I apologise. I am very grateful to the noble and learned Lord for evidently having got the point over better than I was able to do. May I now turn to Clause 6. This is a permanent clause of the Bill and it puts beyond doubt the legality of the use of police cells and police constables to deal with the tailback of prisoners. I hope and believe that this provision gives rise to small controversy. It is the only operative provision, except that relating to expiry, which I have already dealt with, which is permanent. I hope that this also will prove non-controversial at this stage. The other ones are financial provisions, citation and extent, and I do not think they require separate discussion.
I turn now to the main text. The first clause of the Bill allows the temporary accommodation of prisoners in places approved by the Secretary of State. This clause is rendered necessary by the accommodation of prisoners in police cells which, as your Lordships know, are now full almost to the point of overflowing. Therefore, the clause is obviously necessary, although it is equally obviously highly distasteful; and most distasteful of all is the necessity to invoke the assistance of the army in manning in part the accommodation, although it will be under the supervision of senior members of the prison service. The only comfort I draw from this provision is that it is as distasteful to the Government, including not least my right honourable friend, as 416 I am sure it will be to other Members of the House and to those members of the forces who have to carry out the work. The House may therefore be assured that the minimum use will be made of the power, consistent with the safety of the public and the humanitarian considerations to which I have already referred. It will not be continued for a moment longer than necessary. The accommodation will be occupied temporarily by the Home Office in order to accommodate those who cannot be received in prison. The ordinary prison rules will be applied so far as practicable, and those who help to run the accommodation will have the same powers as prison officers. I happened to hear the debate in another place and I think that in order to prevent misunderstandings I should say that those are the powers of a constable.
Clause 2 deals with remand. Under the existing law, which I think is contained in the Magistrates' Courts Act 1952 but which, of course, is very much older than the provisions of that Act, the prisoner on remand must be physically produced every eight days. Since, when they leave prison, owing to the industrial action, they will not be readmitted by prison officers, and since the police cells in which they would ordinarily be accommodated are not now available as they are full, clearly Clause 2 is necessary. Incidentally, new arrests will be accommodated in Clause 1 accommodation, which will not necessarily be within reach of the petty sessional courts. I must stress, however, first that this clause will not excuse the petty sessional courts from their judicial review of each case every eight days; nor will it remove from the courts the right to require particular prisoners to be brought before them for hearing, should justice require that.
I could go at greater length into that provision, but at this stage perhaps it is enough for me to say that. Of course, ordinary legal aid provisions will apply. The court has power to grant legal aid and of course the magistrates' courts supply what are called "the Widgery criteria" of which the first, so far as I remember, is that where the prisoner is in danger of losing his liberty, legal aid is granted. That would normally arise after the first remand. There is usually one remand where the police have not yet completed 417 their enquiries but after that, if prisoners are to be remanded, they will ordinarily be given legal aid.
Clause 3: When one reaches Clause 3 one turns to the evacuation from detention of those already there, and the clause deals with the release of prisoners on remand who have been refused bail. I know that this purely executive release, which does override judicial discretion by the courts, is one which has caused my right honourable friend the greatest difficulty and the most qualms of conscience. I am sure the House will accept my right honourable friend's assurance that the power itself will be invoked only with the greatest reluctance and then only with every reasonable safeguard and only with prisoners considered to be the least dangerous.
From the very nature of the Bail Act, which your Lordships passed fairly late on in the last Parliament and in relation to which the noble and learned Lord and I played some part in the discussions, some element of risk is unavoidable if the power is used at all, and I should be rather less than candid if I did not concede that. Therefore, I frankly concede that I contemplated exploring the possibility of incorporating a judicial element in this procedure, but I concluded that, since in the essence the function is executive and based on operational necessity, it would not be right to involve the judiciary in it at all. Clause 4 suspends the rights of courts to imprison for non-payment of fines, or for non-payment of maintenance or rates. This, too, is justifiable only on the grounds of emergency. If I may say so in passing, I think that such cases should be adjourned or postponed if otherwise the right of incarceration would be likely to be used.
Clause 5 is probably the least offensive provision of all, and I hope it will be the least controversial. Excluding, in the nature of things, life sentences, it provides for the premature release of all prisoners within six months of their release dates. I know that some noble Lords have notions about remissions generally, and this is obviously a matter which interests many Members of this House. I am not sure that I think it right to discuss this in the context of the emergency as it will affect our general policy of penal treatment. The noble and learned Lord, 418 Lord Elwyn-Jones, knows that I have my own views about that; but this modest degree of relief from overcrowding will surely not be objected to in present circumstances, least of all by the prisoners themselves.
I have already described the new duration provisions of Clause 8. At first sight they look somewhat complicated, but at this stage it is probably enough for me to say that Part I will die a natural death at the end of one month unless prolonged for a month at a time by Affirmative Resolution. There are also provisions for revival which I have explained, which are also subject to parliamentary approval by Affirmative Resolution I think that is all I have to say by way of introduction, because other Members of your Lord-ships' House will want to play a full part in the discussions. I beg to move that this Bill be now read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.29 p.m.
§ Lord ELWYN-JONES
My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for having taken us through the Bill in broad terms and having explained to the House the lamentable circumstances which have given rise to the Bill. Parliamentary arguments about the merits of an industrial dispute are not, I think, very rewarding, but the consequences of the dispute which is taking place between the prison officers and the Government or the Home Office are certainly very grave. Indeed, the whole system of criminal justice, the interests of prisoners themselves and the protection of the public are all at stake.
I was particularly interested, as I am sure the House was also, to notice the reference the noble and learned Lord the Lord Chancellor made to the suffering of prisoners themselves as a result of what is happening. The interference with the routine is leading to delays in meals and deliveries of letters and, above all, cancellation of visits, the very lifeblood of a tolerable existence in a prison. Most serious of all, however, as the noble and learned Lord has said, is that prison officers in many prisons are refusing to accept prisoners who have been remanded or sentenced by the courts.
419 The result of that is that the appaling problems already created by overcrowded prisons and the conditions which prevail in them are being made worse by the necessary use of police cells, which in many cases are even worse than the conditions in some of the prisons, particularly, I understand, for women prisoners. The position now is that 3,500 prisoners are being kept in those wholly unsuited places of accommodation and, incidentally, in circumstances of less security than the prisons themselves. Of course, the interference this causes with the functioning of the police in their normal range of duties must be very serious. To add to all these grave problems there are, if I may say so, the provisions of this Bill. It gives unprecedented powers to the Home Secretary, enabling him to override the decisions of the courts and involving, I shall submit in at least one respect, a serious inroad on civil liberty.
In addition, there is what the noble and learned Lord has referred to as the deplorable necessity for, and, indeed, the unprecedented use of the army in the circumstances which now arise and which are dealt with expressly in Clause 1 of the Bill with the provision of approved places by the Secretary of State outwith the ordinary prison and police station accommodation. By the requirements of this Bill the army is given tasks which I am sure all ranks will find utterly distasteful. They will dislike it; they are not trained for it and we are indeed testing their loyalty a great deal in submitting them to it. But, as is the practice with our services, I am sure they will do their best. But we are putting a great deal on them; it is not their job.
The best solution in this unhappy situation is, of course, the settlement of the dispute. As I said, I am not going to enter into its merits. It is the case that the previous Administration set up the May Committee in the hope of anticipating and perhaps seeking to avoid some of the problems that have arisen. That Committee reported under distinguished chairmanship and the Government have given effect to its recommendations in a way which has improved very greatly the salary and conditions and benefits of the prison officers themselves.
Furthermore, as I understand, it is now agreed on all sides that a new duty 420 system is not only needed but is to be introduced, and I understand that negotiations are well advanced in order to achieve the introduction of the new duty system. In another place the Home Secretary described it in this way:The new system would be common to all establishments; it would remove the complexity of the existing systems, which has given rise to the current disputes; and it would remove the anomaly, which I acknowledge, that staff working under one of the existing systems receive certain payments that are not available to staff performing a similar pattern of duty under the other". [Official Report (Commons), 28/10/80; col. 213.]Obviously this is a state of affairs that needs remedying and is now about to be remedied. I should like to ask the noble and learned Lord the Lord Chancellor, when he comes to wind up to tell us what stage has been reached in these negotiations with regard to the new duty system. Are the negotiations continuing or have they been brought to a halt by reason of the industrial dispute? It seems to me at any rate that here is the patently obvious place, the obvious opening, for resolving the unhappy disputes that have arisen.
There was some suggestion, referred to yesterday in another place, that the Prison Officers' Association were wanting to put to the Home Secretary certain matters which were mentioned in another place yesterday by my right honourable friend Mr. Merlyn Rees, and perhaps in due course we may hear from the Minister whether that has been done and whether there is any hope of resolving the dispute, which is what is urgently needed. I myself, having visited many prisons in my time—as a lawyer, I am happy to say—am fully sympathetic to and aware of the great services which prison officers have rendered to the public and the state in carrying out their duties, very often in grim conditions; and we acknowledge their dedicated service. It is for this reason that we find the more painful awareness of what is resulting from their action. I appeal to them—I am sure the House will join with me in this—in moving on the road of negotiation in regard to the new system to bring an end to this intolerable situation.
Coming to the terms of the Bill itself, the noble and learned Lord will not be surprised if I say that it is most unhappy, using a most mild adjective, that we are 421 having to discuss at this breakneck speed a Bill of enormous constitutional significance and importance and implications. I received, rather earlier than my noble friend, a copy of the Bill as it came from another place in the late stages of the morning, and it may well be that the noble Lord who is going to be helping us on the Committee stage saw perhaps only an hour ago the amendments which my noble friend and I put down. It is not a satisfactory way of dealing with the matter but I appreciate that there is an urgent need for action. I wonder whether it might not have been necessary to proceed earlier, perhaps even by a recall of Parliament last week to deal with this situation. However, there it is; here we are, and certainly, given the situation we have, we do not want to obstruct the progress of the Bill. But we must take note of the fact that serious precedents are being created here.
Great power is being given to the Executive to interfere with the judiciary. I can only thank the Lord Himself that I am not occupying the Woolsack at this moment in time. I can well hear the fulminations which would emerge from the noble and learned Lord on his favourite theme of the executive interfering with the judiciary—an honourable friend in another place daring to put down a motion of criticism of a learned judge! What are we doing here? We are giving the Secretary of State power to override the decisions of the courts, to limit chockablock the results of court decisions. Let it be noted that we are embarked upon a very significant course which I hope will not result in too much imitation—
§ Lord ELWYN-JONES
—in the future. Or, indeed, as my ever-helpful noble friend said, any imitation. Therefore we shall have to examine, as we propose to do, the clauses of the Bill as we go through them, and I propose to follow the model of the noble and learned Lord in speaking briefly at this stage so that we can examine the matters in detail as we proceed.
As noble Lords will have seen, some amendments have been put down from 422 this side of the House and it may well be that some of the more interesting discussions will take place on "Clause stand part". That may well be the course of events. If I may briefly refer to some of them, Clause 1 deals with the power of the Secretary of State to nominate approved places for holding prisoners, and it is in that respect that the army will be used.
I think the House ought to know what is the nature of the duties that will be expected of the army. Will they actually be in contact with the prisoners themselves and performing, in relation to prisoners, what prison officers have to do, or will their function be more clerical and guarding, as well as safeguarding perimeters and, possibly, doing some of the work which will not involve contact with prisoners? These are important questions to which the public would like to have answers. One of the matters that, certainly, we should wish to be sure about is that the prisoners themselves who are taken to these places other than prisons and police cells will have the same rights as prisoners in prisons. The noble and learned Lord the Lord Chancellor said that that would be so.
But what has prompted our putting down an amendment, at any rate to identify the prison rules which seem most helpful to prisoners, is the provision in Clause 1(5) that:In the case of any particular approved place the said enactments shall apply in accordance with subsection (4)"—that is to say, enactments relating to prisons and prisoners—only so far as is practicable in the circumstances".We want to be sure that that proviso will not result in a failure to give the basic liberties and rights which prisoners enjoy. I shall not go into them in detail at this stage and we can come to them in Committee.
The next clause is, I submit, the one area in the Bill where there is intrusion into civil liberties. It is, I submit, under the terms of the remand clause, an erosion of civil liberty for a remand prisoner not to be called before a court to be able to apply for bail or to give reasons why he should not further be held on remand in custody. What, at the very least, we want 423 to be certain about is that he shall be legally represented when his case comes before the court. There is, as the noble and learned Lord said, the right to apply for legal aid. But, in our view, there ought to be more specific requirement of provision of legal help in those circumstances. There may be other aspects of that provision which we should look at, but it is certainly an area where, as it stands, there is a serious intrusion into civil liberty.
Clause 3 relates to the release of persons committed or remanded in custody. That is an example of the remarkable powers that the Home Secretary is given to override the decisions of the courts and to authorise the release of unsentenced prisoners whom the courts have decided should be kept in custody. It is not surprising that the Home Secretary has assured another place that those prisoners would not include among them those who were charged with offences so grave that they ought not to be released; and that I would expect to be art elementary safeguard. But the clause has value, as I appreciate, for easing pressure on the courts, as does the provision of Clause 4 which, as the House will see, provides that,Where a magistrates' court has been notified … that this section applies to it, it shall not commit any person to prison—We believe that, in the circumstances, that power should, certainly during the interim period, go and many of my noble friends think that it should go altogether.
- (a) for failure to pay any sum of money; or
- (b) for want of sufficient distress to satisfy any sum of money".
We have to tackle the problem of the overcrowding of prisons which is a scandal, and has been a scandal for long. I am not saying that in terms of criticism of the present Administration, and I have a sneaking sympathy for what the noble and learned Lord said in regard to the attitude of some to prisons and the lack of priority given to the provision of decent conditions in them. But we have now reached a point of crisis, quite apart from this crisis which has been caused by the industrial action.
One hopes, at any rate, that one of the things which will emerge both from the House today—I have no doubt about it, having seen the names of some of my 424 noble friends on the list of speakers—and from the exposure of prison conditions which is taking place more and more now in the media, is a speeding-up in the process of penal reform and of dealing with the scandal of appallingly overcrowded prisons, especially local ones. So we have a need here to deal with not only the immediate, but the long-term problem as well.
Therefore it may well be, at the end of the day, provided that the Government show determination to give practical effect to the intentions which have been announced—and I hope that there will be some reference to it in the Queen's Speech in the new Session—that we shall, at least, bring this country into some relation with what is going on in the rest of Western Europe.
We have far and away a higher proportion of the population in prison than anywhere else in the West. Germany is far behind us, Holland has about one-third in proportion, and more and more judges have been saying that far too many people are in prison who should not be there. I have joined with my noble and learned friend in preaching this sermon up and down the country. I remember that when I was appointed a Recorder many years ago, the theology of the Home Office at that time was: "It is no use sending prisoners to us for a short time and treating prisons like a transit hotel".
The present view, which I think is the right one, is that the deterrent effect of prison happens in the first week or so. Very quickly afterwards a prisoner becomes institutionalised, and I am very glad that the Lord Chief Justice has been appealing to both judges and benches to bear that fact in mind, because unless we reduce the prison population to tolerable limits we shall all stand condemned for our inhumanity. I apologise for this diversion, but I am glad that out of this Bill we shall, at least, have an opportunity of taking a hard look and making a serious appreciation of where we have failed and where our duty lies.
§ 3.49 p.m.
§ Lord WIGODER
My Lords, this is a Bill that can be received without any welcome in any part of your Lordships' House. It can be received only with 425 varying degrees of regret. That regret is strengthened by the instinctive feeling that some of us have that the confrontation which has begun and which may continue, with such very serious consequences, is out of all proportion to the gravity of the issue which is its immediate cause.
It is perfectly clear that the immediate issue is that the Prison Officers' Association made 16 separate, very complicated claims for meal break allowances before the May Committee. They were investigated with very great care and the particular cause of this dispute is one, and one only, of those 16 claims. It is a claim, as I have said, of great complexity upon which the May Committee found not in favour (I think those are the words to use rather than "against") of the Prison Officers' Association, but with these words—I quote from paragraph 9.25:The manner in which the relevant paragraphs have been drafted creates an unwelcome ambiguity".Then in paragraph 9.26 they said:For the time being we have to make the best decision that we can on the claim as presented".No one can suggest that the finding of the May Committee not to support that particular claim was clear, definite and unequivocal.
But having said that, one must I think go on to say that nothing in the uncertainty about that one claim can possibly justify the action which the Prison Officers' Association have taken. The industrial measures that they have taken have involved very real hardship to existing prisoners, and whatever those prisoners may have done in the past they are a singularly helpless section of our community. It involves very real hardship to prisoners' families who have been cut off from communication with them and it may involve very serious consequences and dangers to the community if, as a result of that action, people are released from prison who may then commit further offences, to the general detriment.
So it seems to me, if one looks at the nature of the claim, that one is bound to say that the Prison Officers' Association reaction has been out of all proportion and, indeed, verges on the irresponsible. I suspect that their reaction is in part due to their pent-up grievances over a period 426 of years about the fact that conditions in prisons have been worsening so dramatically. As the noble and learned Lord on the Woolsack said, that is something for which all of us in all the political parties share the responsibility. I do not suppose that there is a Member of your Lordships' House who has ever stood on a platform at election time and suggested that it would be desirable to increase taxation in order to provide new prisons.
If that is, as I believe it is, an unjustified reaction by the Prison Officers' Association I am bound to add that I have doubts about the wisdom of the Government's reaction to it. I can understand, of course, the instinctive reaction of a Government that they must stand firm in the face of action of this nature; although perhaps even the Government may have second thoughts when they discover that their attitude is being supported with such vehemence in the columns of the Guardian newspaper. Surely if a Government are going to stand firm during an industrial dispute they ought to stand firm when the issue is one of principle, when it is one of importance, and when it is one of substance. I doubt very much whether the issue in this case amounts to any of those things. What the Government have chosen to do is to embark upon a course which everyone recognises has very real dangers in itself.
There is the first obvious danger that there will arise at some stage ill feeling between the executive and the judiciary, and I know that all of us in this House would want to avoid that, if it were possible. There is the second obvious danger that, sooner of later, the Executive are going to take some decision in relation to some prisoner who is going to be released and commit some offence which is going to attract a degree of notoriety. The abuse that will then be showered upon the Executive in relation to that particular instance hardly needs to be foreseen in words.
All these are consequences, when one comes to consider the situation, which arise from one ambiguous claim out of 16 claims for meal break allowances. It is something that would perhaps provide the material for a highly successful farce if it were not for the fact that the consequences might now be so tragic. The Government, however, have made 427 their choice. They have decided for the moment to stand firm, and your Lordships' House now has the problem of dealing in very difficult circumstances with the Bill that is before it.
I say "very difficult circumstances" Hansard of last night's and this morning's debates in the other place is not available. We do not know precisely what was said. We do not know what undertakings were given. We have no information as to anything which took place there after the end of Second Reading. We are in a situation where clearly, if this Bill is going to go on to the statute book, it is desirable that it should go on to the statute book tonight. That, in effect, means that, although we may examine this Bill clause by clause, and although we may put down amendments, we are in a situation where it would be very difficult for us to divide your Lordships' House or to send back any amendment to the other place. Indeed, for that reason we on these Benches thought that it would be better to deal with the matter on the various clauses rather than to attempt to table specific amendments.
I would only mention, therefore, three particular matters about the clauses. First, on Clause 2, to take up the point that has been made both by the noble and learned Lord on the Woolsack and the noble and learned Lord, Lord Elwyn-Jones, if a magistrates' court is to remand a person in custody in his absence it is essential that that person should be legally represented when that takes place so that any representations about bail are properly and adequately made. It may not be possible now to amend this Bill but I hope that the noble Lord, Lord Belstead, will find it possible to say that the strongest possible circular will be sent out to all magistrates' courts stating that it is absolutely essential, without exception, that legal aid should be granted in those circumstances to anyone who is absent when his application may come forward.
Secondly, may I ask the noble Lord, Lord Belstead, at some stage, either now or in Committee, to deal with one point in Clause 5 where the Secretary of State is given power to direct release from prison at an earlier time than otherwise would be the case. In subsection (2) it is stated: 428A direction under this section—…(b) may relate to one or more specified prisons".I can see the case for giving the power which is there in relation to a class of persons, but it seems difficult to justify giving the power to the Home Secretary to specify particular prisons as being those where these orders may be made, because it would result in an unfair distinction between prisoners who are in fact in the same category. It would be quite wrong that by chance one prisoner might he released because he is in one particular prison while another is kept in custody because he is not.
Thirdly, may I add to the observations that were made by both the noble and learned Lord on the Woolsack and the noble and learned Lord, Lord Elwyn-Jones, about the problems of our overcrowded prisons generally. I ventured the other day in the course of the statement to comment that if only we could go over to a system of remission of half sentence rather than one-third the overcrowding in our prisons would be removed at a stroke. I still believe that to be highly desirable. Indeed, my honourable friends in another place tabled an amendment early this morning to that effect. I do, however, agree with the noble and learned Lord on the Woolsack that perhaps this Bill, being considered in such haste as it is going to be, is not the appropriate matter on which to debate a measure of long-term, vitally important penal reform. Therefore, although I mention the matter I would not propose to pursue it any further in the course of the proceedings on this Bill this afternoon.
That is all that we on these Benches propose to say at this stage. We are driven to the conclusion, as a result of a very unhappy set of circumstances, that there is really little alternative but to look at this Bill with care and then to let it go forward, but I know I can express on behalf of my noble friends the hope and the belief that it is really not beyond the wit of man, it is not beyond the wit of the fundamentally sensible people who run the Prison Officers' Association, and it is not beyond the wit of the people in the Home Office, even at this late stage, to find some settlement of this difficult problem.
§ 4.1 p.m.
My Lords, the noble and learned Lord the Lord Chancellor suggested that this should be a short Second Reading debate. I should like to assure him and your Lordships that my contribution will be very short. In fact I have little to add to what has already been said in the other place, in your Lordships' House this afternoon, and indeed outside Parliament through one means or another, but I am intent on saying in my own words things that may well have been said before.
I do not enjoy saying to this Government what, indeed, it might well have been necessary to say to another Government—namely, "I told you so"—because I think the crisis which has arisen might well have happened if the present main Opposition Party had been in power. I am only one among many with an inside knowledge of the situation in prisons who have been campaigning for years for radically new penal policies—and, with great respect to the noble and learned Lord on the Woolsack, I do not think it is possible to separate this immediate crisis from the long-term situation—to reduce the prison population, to increase the number of paroles, if only as a palliative and an expedient to shorten prison sentences, to make far greater use of the many alternatives to prison in the community, to exclude a number of categories of offenders from imprisonment and, last but not least, to do more than we are doing to encourage more members of the general public to take an active part in the prevention of crime.
I claim no special prescience in being one of those who warned, and warned many times, of a crisis arising. It does not matter at all that the crisis has been provoked by the Prison Officers' Association rather than by the prisoners themselves. The Government will doubtless point out—in fact I think that the noble and learned Lord the Lord Chancellor so implied—that the dispute is not about overcrowding. With great respect, I would say that to make that claim is no more than half a truth; it is about that. It is the conditions created by overcrowding which are the background and which we must consider. Against a background of stress and tension and discomfort and dissatisfaction about all who are confined 430 in prison, whether they are prisoners or prison officers, this claim, which I find quite insufficient for the action which is being taken, is only a symptom of a deeper problem.
I support—as indeed everyone with a sense of responsibility must support—Mr. Whitelaw in the measures before your Lordships' House. Not to do so I am sure would be leading irresponsibly along the road to anarchy. But I do not approve, any more than did the previous speakers, the action of the Prison Officers' Association in seeking to pursue their demands by inflicting further hardships on prisoners, who are already in many cases doing punishment in excess of what is right, upon others who have not been sentenced, on others who have not been convicted and on others again who have not even stood trial. I say this despite having, as I am sure is the case with all your Lordships, a very great admiration and respect for the prison service and despite having many friends among the prison officers. Indeed, I venture to surmise that there are many prison officers who are not in agreement with the action taken by their association.
If I understood him aright, the noble and learned Lord, Lord Elwyn-Jones, gave thanks to the Almighty, that he did not find himself at this moment sitting on the Woolsack. I may have misunderstood him but I think I have got it right, and I merely take his cue with a sense of anything but blasphemy and say "For God's sake let this be a prelude to a new beginning and not more tinkering with the side effects". Let it be a new beginning to tackle the real causes of the trouble in regard to our prisons, the penal policy behind it, the sentencing practices, with courage, with wisdom as well as with humanity.
The noble and learned Lord, Lord Elwyn-Jones, referred to the numbers of people in our prisons in relation to the numbers held in other countries in Europe. I should like to supplement that by saying that I hope very much that I live to see the day when this country is no longer at the head of the European league as the one which keeps more citizens behind bars than all the other countries. It is a league in which the merit lies in being at the bottom and not at the top, and as a 431 nation with a long tradition for humanity, as well as for hard-headed, self-interested common sense, that is where we ought to be. It is up to us, the legislators and the judges, and I join with anyone else who has said so or may say so, in praise and hope of the present Lord Chief Justice. He served for three years on the parole board and was educated very usefully during those three years; and it is up to the judges and of course the public at large, in a change of attitude, to make sure that that position in the league is reached.
§ 4.8 p.m.
My Lords, I rise to make several general points and to seek more information about Clause 6, which may not be quite so innocent as is claimed. I shall be short and I also say that I am not other than a convinced supporter of the need for a Bill of this nature at this unhappy time. I am very glad that the great majority of the provisions are short-term, but it is the habit of Governments to use an emergency to tag things on to rushed Bills of this kind which failed to find places in some earlier enactment. Clause 6, which increases police powers, with no limit of time, seems to be out of keeping with our British tradition, and it is something which I think Parliament should look at closely.
As is known, I have taken some trouble to learn about policing, and not just the organisational side, and I have great sympathy with the police of this country and not least in the more sordid side of their duty. This Bill puts an immense burden on our police and we should realise it—an immense burden—and we should not just take it all for granted. If I now ask several questions it is not intended to be unreasonable criticism of the police. The House deserves more information about Clause 6, and getting information from the Home Office in this field is not always easy. As I have said, there is no time limit and I should like to know what provision there is for monitoring the use of this power, which could in fact be abused.
It would also interest many of us to know definitely what persons, if any, have a right of access to police premises and cells, in the same way as I believe the 432 Board of Visitors has a right to enter prisons; and I am not sure that judges of the High Court do not have the same right. Do Her Majesty's Inspectors of Constabulary—not a very effective body, if I may say so—have such a right, and, if so, how is this modified in order to cover the Metropolitan Police, which is inspected in a different way? I have heard it said by a senior police officer that even the Secretary of State has no right to enter a police station and walk down the cell passage—a point that might well be cleared up.
While the police are always ready to take on emergency jobs, their minds sometimes work in a strange way; they try to do everything themselves and are not good at making full use of auxiliaries and of civilians. Will the Secretary of State at this time give a lead and say that, as far as possible, active men shall not be taken off duty on the streets, which is their prime field, in order to do work in these makeshift prisons which could be done by older men and others who do not necessarily have the same police training? For an example, we need look no further than the Palace of Westminster, which is most extravagantly policed. But I do not want to pursue that any further now.
My Lords, thinking it a small duty to know more about this problem than the familiar generalisations, I have tried to find out for myself something more of the conditions in these overcrowded cell passages, and I am very grateful to the police officers who have given me this opportunity. We hear about crowded cells; it is quite a different thing to go and see them. Today's conditions may well be two men in a cell all day, a cell intended for one man waiting perhaps for two or three hours before his case is heard in court. It is not acceptable when he is in that cell 23½ hours a day—that is 24 hours less 10 or 15 minutes in the morning to go to wash, shave and go to the latrine, to use the old-fashioned word rather than "toilet"; with maybe 10 minutes' exercise later, indoors, not even under the sky. With a small staff of, say, three police officers in such a cell complex, all three will have to be present every time the door of a cell with two men inside is opened.
There is a special problem of keeping the place, and not least the blankets, 433 clean when the occupants may be moved every two days, sometimes every day, where such a temporary prison is more in the nature of a transit camp. I have seen one lad with both scabies and VD, and, though he was kept in a cell on his own, he had no separate lavatory arrangements. Think of the risk of infection.
It has already been mentioned that the conditions which normally go with prison life and perhaps make it slightly less intolerable are largely absent in these temporary prisons. There is no association and no visits, except for a prisoner's solicitor, standing in the corridor outside and talking through a slide in the door because there is no appropriate room available. There is no reading matter to keep men who would like to read happy; and keeping prisoners happy is an important feature of prison management. I have seen newspapers bought only through the kindness of one police officer, and the cost is being met at the moment by a charge against his imprest account which he hopes will later be made good.
There is vast paperwork associated with the conditions, not just with regard to main moves of prisoners, but every meal-time for every prisoner is recorded, every meal he eats so that one day a claim can be made against the Home Office to avoid the cost of all this extra work falling on the prison Vote.
There is no mail in and no mail out; no mail in because in the middle of all these moves no one knows where the prisoner is, so letters cannot be addressed. As likely as not there is no mail out because no organisation is in operation for providing writing materials. There are occasions when a kindly policeman acting as gaoler will somehow find paper and envelope to enable somebody to write.
No doubt the police are making what they feel to be the best of a bad job, but men who are taken off their ordinary duties to do this get no satisfaction from it at all. Furthermore, when police are so thin on the ground in this great city and elsewhere throughout our country, it is a very dangerous situation to take more and more for these emergency duties.
It is Parliament's job to help the police in these circumstances, and also to ensure that what are temporary expedients do not 434 somehow become an accepted part of our administration, as sometimes happens.
§ 4.17 p.m.
§ The Earl of LONGFORD
My Lords, it is always a pleasure to follow my noble relative. He was once my very efficient trustee, but he reached the conclusion that the issues involved were not equal to his far-reaching talents, and the arrangement lapsed by mutal consent.
In a general sense the best things I might have said have been said very much better by the noble Lord, Lord Hunt. He will perhaps read that well-justified tribute in Hansard. I shall speak briefly, bearing in mind his injunction that one must on no account say "I told you so".
I should like to put one point to the noble Lord, Lord Belstead, before I come to the few main propositions. The noble Lord's advisers have had about an hour's notice, so by the time he comes to speak he may be able to provide a reply. Running through Clause 5, there seems to be an assumption that the Home Secretary requires some new statutory powers to release prisoners. May I remind him, which might not be in his mind, of this? All this occurred during my lifetime, though not in the lifetime of most of the House. On 20th July 1910, when the Lord Chancellor and I were certainly out and about—of course, he was only just out and about—Sir Winston Churchill, then Home Secretary, said this in the House of Commons:When His Majesty came to the Throne, one of the very first wishes which he was pleased to express was the desire that at a time when all hearts were stirred … the wretched prison population of the country should not stand outside that movement in the national mind.On similar previous occasions the proposal has always been to release a certain number of prisoners definitely. I think we have found a much better way, and that is not to release individuals, but to make a general pro rata reduction of sentences over the whole area of the prison population. The remissions which were granted on this occasion affected 11,000 prisoners, and at a stroke"—he used that phrase, since made popular—struck 500 years of imprisonment and penal servitude from the prison population. I am glad to be able to tell the House that no evil results of any kind have followed from this".That was said 70 years ago. Seventy years ago it was perfectly possible to let out 11,000 people, or to let them out sooner 435 than otherwise. So perhaps we can be given some understanding of the statutory position: have there been prison rules introduced in the meantime which place some restriction on this power? The point is of importance because if we say, as many of us think, that the general remission ought to come down permanently from one-third to one-half, are we to be told that that requires some statutory power when Sir Winston was able to let all these people out without any consent of Parliament at all? Perhaps the noble Lord will deal with that. His advisers may have had trouble over this, but we shall see what happens when the noble Lord replies.
I should like to state my general view very briefly in three propositions. If I may be allowed to do so, I shall not argue them but just state them. First, while the industrial action continues, the Government must be supported in any reasonable measures—that includes, of course, crisis measures and measures that would not be taken in other circumstances. Secondly—and noble Lords may find this rather more controversial—the Government might reasonably be more sympathetic to the idea of some kind of arbitration than they are showing themselves to be at present. My third point—agreeing very much with what my noble friend Lord Hunt said—is that good can come out of evil if the result of the crisis is the establishment of long overdue penal reforms recommended by many of us for so many years in this House and, above all, if the crisis leads to the elimination, in the reasonably near future, of the scandal of the overcrowded prisons.
I have very little to add to what I have already said, but I should like to raise two further matters, one of which is relatively short and the other a little longer. Anyone who has been connected with the Youth Service and particularly with that part of it which is concerned with young people in trouble—and the House will know that I have been involved in such matters for a number of years, as have so many others in this House—must be aware of the anxiety which is already springing up in such quarters. I appreciate that my noble Leader for the time being—my noble and learned friend Lord Elwyn-Jones—and others are to press for safeguards in this connection. 436 But, if one thinks of any particular youth centre visited by quite a lot of young people who have been in trouble and some of whom are now actually in prison on remand, one must be aware that there is great anxiety as to whether they will be lost sight of. Indeed, that is the crucial point: will they be lost sight of? Of course, if the whole machinery clicks into motion no doubt marvellous lawyers will be provided and something will be done. But we must always think of people who have broken away from home who have no relatives, no friends, no anybody, and who may simply disappear into the vast maw of Brixton or similar prisons. That is an aspect which I am sure will be in the mind of my Leader on the Front Bench.
I should like to make a few comments about prison officers in general. I am not in the least likely to suppose that I am the darling of the prison officers. If one has been involved on the side of the prisoners then that is not a role that one could reasonably expect to take on. But, I have been approached by them more than once, including recent occasions, and their leaders have shown confidence in me, as in other noble Lords, and I think that I understand something of their point of view. They undoubtedly consider themselves very much neglected. I have used the expression in this House before now that they are the most isolated section of the reputable sections of the community—in other words, they are neglected.
Are they right or wrong in saying that they are neglected? I say that they are abundantly right: they are neglected. But, I have ventured to say to the leaders of the prison officers in recent times—although not perhaps for the first time—that it is partly, though not mainly, their own fault because they have lacked a sense of public relations which is so helpful in the modern world and, therefore, it cannot be said that it is entirely the fault of the politicians or similar people I hope that they will take more trouble—and they seem to be taking more trouble—in the present crisis to let the public and the politicians know what is in their minds.
However, most of the blame must fall on the politicians whether we be high or low, in office or out of it, or wherever 437 we may be stationed. We have allowed the prison officers to develop an increasing sense of resentment. I am saying nothing now about the prisoners. Although in the short run there may be a conflict of interest, I am convinced that in the long run the interests of prisoners and prison officers are harmonious, even if it does not always appear like that in the short run.
At any rate, if we leave out the prisoners and take just the prison officers, we must ask ourselves where the real blame lies—where does the crucial, cardinal blame lie? I must place the blame not on any individuals, but on those who have been in charge of the Home Office and on the officials. Of course, we know that Home Office Ministers come and go and so do the officials. Indeed, a very high person who had served some years in the Home Office until fairly recently told me that during seven years in the Home Office there were six different heads of the Prison Department. So, there was not likely to be much continuity there.
The May Committee has been set up and has made various suggestions about a new role for the prison officers. I opened the first debate on prisons in this House in 1955 and my main point 25 years ago was a new role for the prison officers. What has happened in those 25 years?—substantially, nothing. The May Committee has been called in and people, at short notice, have been asked to undertake the matter in rather a hurry. What do they say? They say a lot, but, to use an old Irish expression it is a case of, "Mind you, I have said nothing". It is not quite true that they have said nothing, but they have said very little that we can put into effect. It must fall to the Ministers and the Home Office to decide on this new role, but they cannot do that unless they are in much closer contact with the prison officers. So, to add just one more sentence, when this crisis is over there will be no real improvement unless there is much closer human contact between Home Office Ministers and officials on the one side and prison officers on the other.
§ 4.27 p.m.
§ Baroness MASHAM of ILTON
My Lords, as a member of the board of visitors of a borstal, I should like to take this sad opportunity to ask the Minister 438 a few questions related to the present unfortunate circumstances. When a dispute like this takes place in institutions housing inmates, be they prisoners or patients in hospital, the results are some-what the same, except that the prisoners do not have the sympathy of the public, because they have committed crimes. The inmate is the helpless person stuck in the middle of a conflict between two sides. It may not be common knowledge to some people that many prisoners of all ages, including young people, have been shut up for 23 hours a day in their cells. This practice has been going on since well before the present dispute.
A few weeks ago I spoke to a group of about 60 men in Armley Prison in Leeds. For years that prison has been housing far more prisoners than it was built for, but worse than that situation is the fact that there is very little work for the prisoners to do. The work-rooms are silent and the men are locked up, apart from a short time out of their cells for exercise and recreation. This situation is demoralising for the inmates and can only lower the morale of the staff.
There is no doubt that work in prisons motivates everyone involved in the right direction. Inactivity breeds depression and discontent, and that is what has happened in our prisons over the last few years. The present dispute has only made a difficult and unsatisfactory situation much worse. I suspect that such services as the library service are now not operating in most penal institutions, which, if one is shut up for 23 hours-plus a day, is a serious deprivation for many inmates. I should like to ask the Minister what plans are being made in these temporary provisions to maintain this library service, which I believe is generally run by the prison officers.
I am attached to an open borstal far removed from the large enclosed prisons. The situation when I was there last week was very confusing, most of all to the young inmates, many of whom are schoolboys. The prison officers seemed to be working but not allowing the boys to work apart from vital services such as in the kitchen. Boys were becoming bored—at least they wanted to work, which was good, but boredom can breed bullying among young people, especially in open conditions.
439 When the dispute is not operating, several of the boys work outside doing valuable work in the community. Some are collected by a minibus belonging to a voluntary home for disabled people and some go out and take a bus to a nearby Cheshire Home. Now, because of the dispute, this has been stopped. I cannot see the reason why. This service does not involve prison officers, except in checking the prisoners in, and I would ask the Minister if he could look into this. There is nothing to stop, the boys leaving the borstal if they take it into their heads to do so, which some of them do from time to time.
I hope that the Home Office will look into the matter of volunteers working and doing useful work, be it volunteers going into institutions such as hospitals or borstal inmates going out into the community in times of disputes. All inmates—be they prisoners in large prisons, people on remand or boys at borstal—are concerned about visits, not so much for themselves but for their relations or friends who may travel miles and then find that they can see the prisoner only for a quarter of an hour, if that. I should like to ask the Minister what plans he has under the temporary provisions for visiting throughout the institutions.
I conclude by asking him what use he sees for members of boards of visitors of prisons and prison visitors in this situation. If it comes to bringing in the Army, it may be that these people, who already know their institutions and carry a Home Office card, can be of help; as I should think many soldiers or officers in the Army will never have been in a penal institution. It would be useful for the House if, before the Committee stage takes place, the noble Lord the Minister, Lord Belstead, could tell us clearly about the situation today in the prison service. Several unions are involved. I think that tribute should be paid to the governors and the assistant governors of the penal institutions. They are very much in the minority and need all the support they can get at this present difficult time.
§ 4.33 p.m.
§ Lord HUTCHINSON of LULLING-TON
My Lords, together with a number of other noble Lords, I am not surprised at the arrival of this Bill in this Chamber. 440 During the short time I have been a Member of your Lordships' House, on a number of occasions I, too, have warned the Government of the crisis which was inevitably upon them. As other speakers have said, the fact that it came as the result of the action of the prison officers really makes very little difference, because it would have come in another way if it had not come now.
Those who believe that the manner in which our society manages the criminal process is some indication of the degree of civilisation of our society, must, of course, view this Bill—which I accept, as does everyone else, is now a necessity—as utterly distasteful and forever to be deplored. To look back at this stage of course means that one will meet the criticism that that water has now flowed under the bridge. But when the bridge is collapsing and powers are being sought to prop it up, it is still vital—is it not?—to look at the causes of the engulfing flood which is causing the bridge to fail. I would submit that confrontation in this situation is simply no solution to this grim crisis.
Prison officers are not boys at a public school, and in the context and against the background of the last seven years, I would suggest that there is still ample room for civilised negotiation. One cannot help but have the suspicion that the reason why the door has been so firmly slammed and closed is the Government's fear that if the arbitration went against them it would result in some further public expenditure which they are committeed on all sides, in all circumstances, to refuse.
The May Committee grappled with this question of payment for meal breaks. It may seem to some noble Lords here—and the noble Lord, Lord Wigoder, has already voiced this view—to be a trivial basis for militancy. It may well be that some of your Lordships who come into the Chamber after a good lunch in the restaurant would take that view. But the fact remains that for at least seven years, if not longer, prison officers have expressed the view that this is a continuing injustice as far as they are concerned. After all, it is the very matter which caused the setting up of the May Committee. Whether or not it appears to some as 441 trivial, the fact of the matter is that it is a continuing yearly and significantly important cause of concern and dissatisfaction for prison officers.
Prison officers are required to work net hours; that is, their payment is for the hours actually worked. Periods for meal breaks obviously affect the starting time of their overtime. When one reads the May Report one sees that they have attempted to grapple with this highly complex question. They have interpreted the 1972 Notice to Staff and an essential letter of 17th April 1973 from the Home Office in a certain way. Having done that, they found that those documents did not establish any principle of general application. As they say, they were prepared only to consider questions of principle and not to adjudicate on any issues involving only establishment.
The May Committee was under the most tremendous pressure to report quickly, and as a result I think that most noble Lords would agree that, so far as diagnosis is concerned, the May Report is excellent; but as regards its recommendations it is really very poor. The Committee had, of course, a huge remit, and I am sure that a distinguished High Court judge would agree that he would be no expert in wage negotiations. In my submission, Chapter 9 bristles with ambiguity and doubt, and surely here there is a perfectly respectable basis for a reference back, a reference to ACAS, or for some further consideration of this claim. The Prison Officers' Association said to May that the Home Office only takes cognisance when confrontation actually occurs. This Bill is indeed evidence of that.
Clause 2, now involving legal aid, and concerning extension of the period of remand, was certainly a suggestion made by myself and other speakers on a number of occasions for reducing the difficulties of conditions in which prison officers have to work. Clause 4, taking debtors out of prisons, has been repeatedly urged as another way of improving those conditions. The early release scheme for persons sentenced to imprisonment has been repeatedly urged by myself and others as a method of getting rid of the overcrowded conditions in which prison officers have to work. All these matters have been urged, and urged repeatedly, 442 and as indeed the prison officers said to May the Home Office only takes cognisance when confrontation actually occurs.
I would implore the Government to continue on with the rest of the measures which have already been mentioned today—and which have been repeatedly mentioned by the noble Lord, Lord Hunt, in debates in this Chamber—and not simply to stand back behind the draconian contents of this Bill with the confrontation with these prison officers, and not at the same time hold out hope to them, and of course to the prisoners, that there are measures in the pipeline—real measures if crisis measures—to reduce the appalling overcrowding and the appalling conditions in which these men have to work, and which, as has already been said, lie behind the course of action upon which the Prison Officers' Association has embarked. As a practising lawyer, and as an advocate in the criminal courts, of course that behaviour could not possibly be condoned by me or by anybody else who believes in the rule of law; but whereas one cannot condone it one can at least surely try to understand it.
So far as the Bill is concerned, there are two things I would say in addition to what has already been said. I do not know whether noble Lords appreciate the extent in Clause 1(6)(b) of the powers which are being given to persons in this Bill.Any person [or class of persons] authorised by the Secretary of State … to assist any person so appointed [temporarily to do the job of a prison officer] shall … have all the powers … and privileges of a constable".Powers of arrest. Presumably powers of arrest in relation to the public at large and not only to those persons affected by the terms of this Bill. I would not have thought that any layman in our society should lightly be given powers such as those. This surely is a possible area of overkill. I certainly would like some assurance from the Minister who is replying in this debate that there are limitations on the powers which are being given to persons authorised by the Secretary of State in these circumstances.
So far as the interference by the executive with the judicial process is concerned, I have fewer fears. If the judiciary, whether it be the magistracy or whether it be the judges, will remain 443 blind to the incredible dangers which have been so obviously arising in the overcrowding of the prisons and have not adjusted their sentencing policy accordingly over the months and even over the years which have passed, then I must say it causes me no concern that the executive has to interfere in such a situation.
When one reads that the Magistrates' Association's reaction the other day to the Secretary of State's circular to impose shorter sentences, and the guidance as to the granting of bail, simply in one phrase was, "This will make no difference to us. We have been doing this for years", then one despairs sometimes of the judiciary, and in those circumstances of course such interference has to take place. So far as the Bill is concerned, I have nothing else to say, except perhaps on Clause 6(2), where the powers which have been given to a constable—coming back to what I originally said—are that if for any reason it isnot practicable to secure the admission of a personto one of the institutions set out,he may lawfully be detained in the custody of a constable until such time as he can be admitted there …".That seems to me a possibility of a completely open-ended detention.
Again, if one is appreciative of the fact that these are not police officers, persons with long experience and training in doing this sort of thing but lay persons or members of the military, then it seems to me that again one requires an assurance as to these powers. I merely end by asking your Lordships, who are these prison officers who have brought about this crisis? If I may quote from the May Report:We wish to stress emphatically that the United Kingdom is fortunate in the men and women that it has secured to run its penal establishments. No one can plead ignorance or deny the staff the thinking and inquiring support as well as the resources which they need".Those are the persons about whom we are speaking this evening. Confrontation in my submission, is an arid philosophy. It leads to the necessity for this sort of legislation. It will never achieve a solution. I would implore the Government to come out now with some plan, a crisis plan, for reducing the over- 444 crowding in the prisons which has caused this problem, and so to give hope to prison officers so that once again they can have some job satisfaction and not simply be obsessed by the amount of their pay.
§ 4.47 p.m.
My Lords, having listened to the opening speech by my noble and learned friend the Lord Chancellor, I had intended to delete my name from the list of speakers. As I understood it, in his opening speech he stressed that Part I of this Bill, and Clause 4 in particular, were of a strictly temporary nature. However, when the noble and learned Lord, Lord Elwyn-Jones, spoke concerning Clause 4, I understood him to use this occasion to advocate the permanent removal of a court's power to imprison fine defaulters.
I speak as a justice of the peace and as a member of the Magistrates' Association, who I know are in general agreement with what I have to say. Already there are a number of penal reform organisations—some call them "do-gooders"—who have already welcomed Clause 4 in the few hours that Clause 4 has been available to them. These organisations will, I am sure, use this as a lever for the permanent introduction of such legislation. Here I feel there is a real danger.
Courts now use this power of imprisonment only in the very last resort and when they are convinced that an offender can but will not pay, and after trying and considering the alternatives open to them: that is, giving the offender time to pay a fine; giving him the opportunity to pay by instalments; making an attachment of earnings order; or issuing a distress warrant.
§ Lord HALE
My Lords, having been a member of the Committee on the Collection of Debts, the abolition of imprisonment for debtors has been the aspiration of many of us for very many years. We abolished imprisonment for large debts long ago. When a man who owes £1,000, £500 or perhaps £200 files a petition in bankruptcy, frequently he has had ample opportunity to make provision so that he will have no assets at the time the bankruptcy occurs. On the other hand, the small man who gets behind with hire- 445 purchase instalments and so on was the person we particularly considered in the committee and we unanimously declared for that change. There were minor problems of course, but if one is going to pass a temporary measure, can one not at least—
§ Lord HALE
My Lords, I have sat here in the last 30 days for longer periods than many other noble Lords and I am now rising to intervene in the speech of the noble Earl, Lord Fortescue, whose courtesy I acknowledge. He made comments about imprisonment for debt which were misleading. If one cannot forego imprisonment for a week or two for debt, at great cost to the country, how will one persuade people in a week or two to adhere to the proposition that one should cut down sentences for murder and release people from prison before their time?
§ Lord SANDYS
My Lords, I must protest to the noble Lord, Lord Hale, who is intervening in the speech of my noble friend Lord Fortescue. He is making an excessively long intervention, and if he wishes a reply, he certainly will not get one.
I was speaking on the subject of fine defaulters, my Lords. There remains a hard core of such offenders who can pay, but will not do so until the eventual threat arises of immediate imprisonment. Many of them at that moment then pay, when they are arrested, while others pay within a few hours of arrival in prison. It is only a very small minority who serve their full prison sentences. Fine arrears run into several millions of pounds and without this final sanction of imprisonment for default I am convinced that the number of defaulters and the fines outstanding will become even 446 greater. I therefore ask the Government to give a positive undertaking that the provisions in Part 1, and particularly Clause 4, will be of a strictly temporary nature.
§ The LORD CHANCELLOR
I can answer that at once, my Lords. They are strictly temporary. I explained that in my reference to Clause 8; they are part of Part I.
§ 4.45 p.m.
§ Lord DONALDSON of KINGS-BRIDGE
My Lords, the noble Earl, Lord Fortescue, addressed himself to an entirely hypothetical situation. Many of the people who agree with me about the necessity for penal reform have been pressing for many years for something to be done about fines. We have never said there should be complete removal for deliberate refusal to pay money where the money exists in the pocket, and that is the essential issue. However, it is quite irrelevant to this Bill and I do not think we should discuss it. I shall try to keep to a few points in relation to the Bill and the discussion we have had, because the noble and learned Lord Chancellor is right to say that the details we can discuss in the next hour or two and that we need not discuss those now.
I wish at the outset to point out that my noble and learned friend expressed my point of view to a nicety in his support for the Government on the Bill, in his lack of condemnation of the prison officers and in his peroration, in which he indulged in the irrelevance of saying he thought this may be something evil out of which good may come. That relieves me of the necessity of making the speech I have made in this House for the last 12 years at least twice a year, and that will no doubt be a relief to your Lordships.
However, I cannot help quoting the fact that if one looks at the Inter-parliamentary Penal Affairs Group's recommendations in the pamphlet entitled Too Many Prisoners, one finds that one of the recommendations concerned, with careful safeguards, the lack of the civil rights necessity to take a man to the court in which he was condemned, from whatever prison he is in, every eight days. Secondly, we have always asked for more use of bail. Clause 3 simply overrides the 447 judiciary through the Home Secretary on the question of granting bail. This is something which, as with my noble friend Lord Hutchinson of Lullington, worries me more than it does some of my legal friends, and no doubt my noble and learned colleague will not agree with me. The third was no imprisonment for fines, and we have already discussed that in relation to this Bill. That must be sound. It means only for a month, as the noble and learned Lord Chancellor pointed out, because if somebody is not sentenced to imprisonment for a fine, he can be suspended for a period and the sentence given when the emergency is over. Fourthly, on the question of early release, almost every noble Lord who has spoken has expressed the hope that this will end in a decision to give 50 per cent. remission. It would be quite wrong to discuss that here at this stage. I am extremely pleased that this method of dealing with the intolerable situation of the prisons should be used as a result of this crisis, but I do not think this is the moment for us to press for more; I am glad we have as much as we have.
There are a few other points I must raise. The first, which has not been mentioned, is the fact that prison officers are on active service all the time they are at work, and in Northern Ireland when they are going home and coming back as well, although Northern Ireland is not affected by the Bill. I have met many prison officers in my time hardly one of whom has not been assaulted once or twice in his career. It is a very tough job and let nobody think it is anything else; so they need rather special consideration.
The noble and learned Lord in his opening admitted on behalf of us all that we have had years of neglect, for which we are now reaping the reward. One reason why we are reaping this particular reward is that conditions for prison officers have been very bad for very many years, due particularly, as everybody has said, to overcrowding. This is not a Bill to cure overcrowding and I will say no more about that, except to remark that I agree with the noble Lord, Lord Hunt, and others in that I hope the results of the experience of this crisis legislation will convince the powers-that-be—as the 448 noble Earl, Lord Longford, said, Sir Winston was already convinced—that many things can be done without causing any extra danger to the public and that some way has to be found to relieve the overcrowding.
The noble Baroness, Lady Masham of Elton, asked about the library service. I too should like an answer to that. I believe it is all right, but I should like to be sure because it is one of the most important things when men are going to be banged up for a long time, as inevitably sometimes they must be. She also spoke of volunteer visitors to prisons. I am concerned with one such organisation, the Apex Trust, which has over 100 volunteers visiting prisons every month, and I know that other organisations have people paying similar visits, and I do not think there is any great difficulty over that.
My noble friend Lord Hutchinson said that the crisis would have come anyway—and I think that this is the point. If this particular crisis had not arisen, we should have had a "blow-up" in a prison from the other side, and I think that most of us who have anything to do with this matter know that. I hate to say so to the noble Lord opposite, but it is the truth: the only solution in the end will be to spend some money which ought to have been spent years ago. I shall not go into details of what money ought to have been spent, but the noble Lord's department can tell him exactly what ought to be done, and quickly.
I wish to make two more short points, then I shall sit down and we can get on. My noble and learned friend asked: what are the duties of the Army? This is a very important point. In Northern Ireland the Army do not meet the prisoners at all. They are camped outside, and they are periphery guards. My noble friend has asked, and I should like to know, what is the position here.
One or two noble Lords have spoken of the erosion of civil liberties if the eight-day rule on remand is done away with. The answer is that there would be an erosion of civil liberties only if this were done against the wish of the prisoner concerned. In most cases prisoners are only too glad not to have to get up at five o'clock in the morning, go on a long 449 railway journey to a court, and then come back again. So I think that this could be done in a general way without any erosion at all.
Those are just a few points that came out of the debate. I stand by my noble and learned friend's stance—if that is English. We support the Government in this Bill with the greatest reluctance. We think it is frightfully important that the Army should not be involved personally with prisoners; and if they are not involved personally with prisoners, I think that the constitutional question is not so difficult. With great enthusiasm we hope that the experience of this disastrous time will lead to better things.
§ 5.2 p.m.
§ The PARLIAMENTARY UNDERSECRETARY of STATE, HOME OFFICE (Lord Belstead)
My Lords, my noble and learned friend the Lord Chancellor in his speech spoke briefly about the roots of the dispute which have led to the industrial action that is now being taken by prison officers, and many of your Lordships with considerable experience in one way or another of the prison system of this country have, with one accord, recognised the difficult and sometimes dangerous work that prison officers are asked to do—and over the years they do it. I should like to join other noble Lords who have spoken in that vein by saying that having previously known nothing about it, over the last year or so I have at least tried to learn something of the very demanding work that prison officers do.
However, with great regret there is one point that I have to make. Following in particular the speech made by the noble Lord, Lord Wigoder, when my right honourable friend's Statement was repeated in your Lordships' House on Monday, we looked again at what the May Committee has said and what might be the possibilities here. That was of course in addition to the discussions that have been going on with the Prison Officers' Association. There really can be no possibility of reconvening the May Committee to consider the outstanding claims made by the Prison Officers' Association. I say that, not in any desire to be hard-headed, nor simply on behalf of my right honourable friend to 450 try to turn my back on what could be a solution to this dispute which is causing us so much concern. It really would be logically impossible to expect the Committee, or any other body, to examine this claim in isolation from the other matters that were referred to May. It was a subject which was prominently within the terms of reference of the May Committee and which the committee specifically considered and rejected.
I do not want to rake over this point, and so, with the greatest brevity, may I add that the May Committee's terms of reference included examining, and making recommendations on, the Prison Officers' Association claim for continuous duty credits for meal breaks. The Prison Officers' Association then argued, as it had every right to do, that if the May Committee accepted, as it did, the claim for staff working what is called the functional group system—that is in the longer term and the training prisons—then any favourable consideration of this 7k 9b argument (that is the functional group system argument) should apply equally to all prison officers, regardless of their attendance system.
What did the May Committee actually find? If, for a moment, your Lordships will glance at paragraph 9.23 of the May Committee's report, you will see that the committee saidWhatever may be the effect of paragraphs 7k and 9b they can confer no right to payment except in any cases clearly falling under their terms, and to state the claim in the wide term used by the POA clearly goes well beyond any possible construction of the paragraphs".Really in those circumstances must we not try to look forward, and not to look back over the ground which the May Committee was specifically invited to study by the previous Government and on which it reached the conclusion of the kind I have just put to your Lordships? The way which is possible is to reach agreement on a new duty system which will be both more comprehensible and practical. In reply to the noble and learned Lord, Lord Elwyn-Jones, I would say that my latest information is that the Home Office and the Prison Officers' Association are continuing the negotiations on the new duty system, and I should hope—I emphasise that I say "I should hope"—that by agreement the details 451 of such a system could soon be made public.
Having said that, I should be the first to concede that the provisions in Part I of this Bill are an intrusion upon the normal working of the criminal justice system, to which the Government are committed without qualification. But the hard fact is that, though these measures may be distasteful, if we have to use them, they would be much less damaging to the essential fabric of the criminal justice system than would be the effects of the current industrial action by the prison officers if no steps were taken to cope with the situation.
I like to think that by their revision in another place last night of the provisions for renewing the Bill the Government have shown that they approach the whole problem with as open a mind as possible. As my noble and learned friend the Lord Chancellor made clear in answer to my noble friend Lord Fortescue about half an hour ago, the amendments made in particular in another place make it clear beyond a peradventure that the Bill is temporary in its effect. I should like to join with the noble Lord, Lord Donaldson of Kingsbridge, when he says that it is not appropriate for an emergency Bill to make alterations of a permanent nature to important matters such as, for example, the use of prisons or the imposing of fines. If such things are to be done, they should be carried out on a more permanent basis.
May I endeavour to answer some of the questions that your Lordships have raised? If I omit any answers, I wonder whether it would be for the convenience of your Lordships for us to consider them on the Question, whether the clause stand part? The noble and learned Lord, Lord Elwyn-Jones, asked me about the use of members of the Armed Forces. It is not intended that servicemen performing routine duties in prisons shall be armed. I think this news has now got across pretty clearly as a result of the proceedings in another place. Soldiers will have administrative functions and functions to enable an approved place to be kept running; and, of course, they will be working, in the case of Frankland Prison, with a governor and with assistant governors from the prison service. 452 Primary responsibility for the security of the perimeter of prison establishments will rest on the police. Chief constables have authority to decide whether police officers shall be armed if required to deal with serious disorder.
In essence, what I am trying to say is that the clauses of this Bill do not relate to, nor do they in any way affect, the use of the military arm in support of the civil power. The Bill enables the Secretary of State to appoint other persons, including members of another disciplined force, to have the same powers and authority as a prison officer, and the powers do not go beyond that.
The noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Elwyn-Jones, raised, as they saw it, and indeed as the Government see it, the highly important point of the giving of bail in the absence of the person who is in custody. We fully agree that legal representation is highly desirable where the defendant is absent, and by the administrative methods that were outlined in another place last night we shall be doing all we can to encourage the courts to see that this principle is observed. I should like to give the noble Lord, Lord Wigoder, and the noble and learned Lord an unqualified assurance that the circular mentioned in another place last night which we shall be sending to the courts will leave them in no doubt at all that the Home Secretary regards it as highly desirable that a defendant remanded in custody in absentia should be legally represented; and it will be made clear to the courts that they are being asked to give the most serious consideration to the grant of legal aid at the first remand hearing, when the defendant is present.
Perhaps I may just add that what we find it difficult to accept is that it should be written into the Bill that the power of a court to remand in absentia should be made absolutely conditional on legal representation. If one went down that particular road, it seems to the Government that there could well be circumstances in the present state of confusion in which the prisoner could not be produced and for some unforeseen reason no legal representative appeared in court. If that were to happen, is the court then to have no option but to release the defendant on to the streets, however dangerous he might be? It is for this 453 reason that, if your Lordships will allow the Government to do so, we are most anxious to proceed by way of circular, about which I have endeavoured to give an assurance, rather than by way of writing anything further into the Bill.
The noble Lord, Lord Wigoder, also asked me about Clause 5(2)(b) specifying prisons or classes of prisons as opposed to prisoners or classes of prisoners who would be released by Executive decision. The Government feel that they must try to have the maximum possible room to manoeuvre in the present circumstances. We would not, as a matter of policy, want to release prisoners in certain prisons while other inmates were detained in custody simply because they happened to be in other establishments; but the justification in an emergency situation for this particular power which the noble Lord has put his finger on is clearly one of operational need. We foresee that there might be circumstances in which we needed to relieve pressure at a particular establishment or group of establishments, and it would then be a matter of fine judgment whether we should let our natural preference for equal treatment across the board take us so far as to release prisoners from other establishments which were not under the same pressure. If the noble Lord feels that he would like to return to that, perhaps we could do so in a few moments' time.
The noble Baroness, Lady Masham, and indeed the noble Lord, Lord Donaldson, joined together in asking particularly about the library service in prisons, and also the noble Baroness asked about visiting prisons. This is a question, of course, which should be asked equally (I am sorry I have to say it) of the Prison Officers' Association, but, as the noble Baroness quite properly directs the question to me on behalf of the Government in your Lordships' House, I say that what we have felt is that it was necessary to issue what is called a headquarters memorandum saying that the duties of prison officers must be discharged if pay is to be expected in return. If the detail of work for a day is to be altered, then that has to be done by the decision of the governor who is responsible for the establishment concerned, on operational grounds. Therefore, there is no reason, except for the very unfortunate facts of this dispute, why the particular functions of prison 454 establishments which the noble Baroness has mentioned in the debate should not continue to be carried on.
The noble Lord, Lord Hutchinson, asked me about Clause 6. How long, the noble Lord asked, is a constable entitled to detain a prisoner who cannot be admitted to prison? Of course, the answer is: for only so long as the constable cannot deliver the person detained into prison custody. All the time that the prisoner is in the constable's custody, the constable remains under the obligation set by the court to deliver him into prison custody.
My Lords, I had a reply for the noble Earl, Lord Longford. The noble Earl asked me a question which I think undoubtedly displayed the skill and erudition which I know the noble Earl has, but I hope he will not leave this debate at the end of the day thinking that he has totally floored my right honourable friend's very able officials in the Home Office quite as thoroughly as he may have expected. I think the answer to the noble Earl's specific question is that the current standard rate of one-third remission is prescribed in Rule 5 of the prison rules which were made under the Prison Act 1952. The rules may be amended subject to the Negative Resolution procedure. So far as concerns the noble Earl's example of the release of very large numbers of prisoners when Mr. Winston Churchill was Home Secretary in 1910, I do not know, but I assume that this was done under the Royal Prerogative of Mercy; but I think that that power is not quite appropriate to the situation in which we find ourselves today.
§ The Earl of LONGFORD
My Lords, may I ask the noble Lord a question? The Home Secretary apparently just did it off his own bat. The noble Lord has had the passage placed in front of him, which I believe was not familiar to him before, wad I am asking whether that power does not exist at the present time.
§ Lord BELSTEAD
My Lords, all I can say, off the cuff, is that Prison Rule 6, as the noble Earl will know, allows for the release of prisoners—I have the rule with me, and in a moment or two I will look up the exact wording—but it was really to put the matter beyond any doubt at all that, for the consideration 455 of Parliament, we inserted Clause 5 into the Bill. We felt that this was the most open and sensible way to proceed in this particular matter.
May I briefly reply to my noble friend Lord Inglewood, who raised some three or more points? On the first one, if I may confine myself to that until we get to Clause 6, he asked an important question about who is going to see what the situation is in prison cells where, as we know from reading the press, at the present time conditions are not as we should want them and where, despite the fact that the police have done a magnificent job in looking after prisoners whose numbers have escalated enormously in the last few weeks, there is considerable worry about the conditions to be found. Formally, it is clear that members of the police authority for each police force have the right to enter and to inspect its police stations and, under the Police Act 1964, the police authority has a duty to secure the maintenance of an adequate and efficient force and to provide and maintain buildings for this purpose.
My noble friend specifically mentioned the Metropolitan Police when he made the valid point that members of Her Majesty's Inspectors of Constabulary do not extend the scope of their functions to the Metropolitan Police. I should like to remind my noble friend that it is my right honourable friend the Home Secretary who is the police authority for the police of the metropolis.
My Lords, I hope that I have at least indicated, not at any great length, that the Government fully appreciate the very proper concerns that have been expressed respecting civil rights and liberties. It is this particular point which obviously concerns all noble Lords—and, I can assure the House, concerns the Government—and which we have tried to take into account, for example, by devising the administrative system for the legal representation of defendants remanded in absentia—points which have been put to the Government both in another place and in your Lordships' House this afternoon. The powers in this Bill are carefully calculated to be the minimum we need at a very difficult time—and about that there can be no doubt at all. With that in mind, I hope that this Bill can be now read a second time.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.
§ 5.23 p.m.
§ Lord BELSTEAD
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, that the House do now resolve itself into Committee.—(Lord Belstead.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD NUGENT OF GUILDFORD in the Chair.]
§ Clause 1 [Detention of prisoners in places approved by Secretary of State]:
Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 1:
Page 1, line 7, after "person" insert "over the age of 16".
§ The noble Lord said: This is a very obvious and easy amendment. It is a probing amendment. I wish to be assured that in so far as juveniles are affected by the new arrangements they are kept separate from people above the age of 16, either by being kept in a separate place in the same camp or, which would be better, in a completely separate place. I think no discussion is required here; the point is obvious. I hope the answer will be equally so.
§ Lord BELSTEAD
The amendment could have the presumably unintended effect of obliging the youngest prisoners (whom I hope very much are going to be few in number) to remain in police cells and thus endure conditions worse than those in temporary accommodation. Normally prisoners of 16 and under would be detained in a borstal or a detention centre. I think the Committee may like to know that at the present time the industrial action is not affecting unduly the reception of prisoners at both those types of accommodation. The whole problem of the situation stems from prisons not receiving those who are due to come to them. This, at the moment, I am relieved to say, is not the situation (so my information is) with regard to the accommodation in detention 457 centres and borstals; although on occasion prisoners are having to wait a little longer than normally before they are admitted.
That does not answer the absolutely direct question which the noble Lord asked me in moving his amendment. The powers under Clause 3 for executive bail and under Clause 5 for early release are going to be administrative powers. My noble and learned friend the Lord Chancellor explained in his speech that he had considered whether some judicial element should be imported into the powers under Clause 3 and had decided that this would be inappropriate, because clearly, in a crisis situation it is an administrative matter. My right honourable friend who, as he made clear in another place, will be personally responsible for both these clauses as well as the Bill, will bear closely in mind what the noble Lord, Lord Donaldson, has said in this respect. We would endeavour to make sure that the expression of opinion that the noble Lord put would be met absolutely.
§ Baroness MASHAM of ILTON
May I ask the noble Lord whether the education departments have been involved in any way in the dispute and whether the under-16s have full education as usual?
§ Lord BELSTEAD
There are two points that I should like to make here. The first is to reiterate the point that I made to the noble Lord, Lord Donaldson, that, clearly, the action that has been taken has not, as far as receptions are concerned, affected in the same way the establishments which are responsible for young offenders; in other words, detention centres and borstals. I cannot honestly say to the noble Baroness, because I do not have the information, whether in all those particular establishments the education services are running normally. Perhaps I should reveal to the noble Baroness that obviously my right honourable friend is made aware from time to time of what the situation is in different establishments. Essentially, the pattern is different in different parts of the country and in different establishments. For that reason I cannot give the noble Baroness the assurance that I know she wants. All that I can say is that we are watching the situation carefully and that this is the sort of matter which undoubtedly would be discussed when the Prison Officers' Association and 458 the department meet for discussions—which they are continuing to do from time to time.
§ 5.30 p.m.
§ Lord DONALDSON of KINGSBRIDGE
I will accept the noble Lord's absolute assurance that every step will be taken to ensure that under-16s are not confined with over-16s. I accept the fact that he has told us that neither detention centres nor borstals are full at the moment; that is what I understood him to say. So the question of receptions will not create a problem for the next few days, anyway. I think that I am right in interpreting what he said as that.
What I want to feel sure about is that when it is clear to the prison department that boys and girls—particularly boys because there are more of them—under 16 are overflowing from detention centres and borstals they can, if possible, be put in a separate area in these camps, or whatever else is going to be used. I do not wish to divide the Committee on this and I am sure that the noble Lord is as anxious to do this as I am. But I want it to be clearly stated that we think that this should be done; we think it could be done, and I end by hoping that it will be done.
§ Lord BELSTEAD
I do not think I can add very much to what I have said. I hope that we can meet absolutely what the noble Lord is saying. We shall certainly endeavour to do our best to do so.
§ Amendment, by leave, withdrawn.
Lord DONALDSON of KINGSBRIDGE moved Amendment No. 2:
Page 1, line 14, at end insert—
(2a) Arrangements shall be made for any approved place to be inspected regularly by the Board of Visitors of the most proximate prison, remand centre, borstal institution, or detention centre".
§ The noble Lord said: This is again an obvious and easy amendment which requires very little discussion. If prisoners are to be put in new and un-authorised places for a month or perhaps two months, the normal outside super- 459 vision should be available to them which boards of visitors give. I cannot remember how many prisoners there are, but clearly one cannot appoint 170 boards of visitors this week to do this work. But it would be perfectly possible to ask boards of visitors from the nearest prison to allocate one or two members to visit periodically, inspect and receive complaints. I beg to move.
§ Baroness MASHAM of ILTON
Being a member of a board of visitors, I believe this is a reasonable request. I support Lord Donaldson's amendment.
§ Lord BELSTEAD
It is a wholly reasonable request. I hope, however, that the noble Lord will not ask for it to be written into the Bill. I should like to give him an absolute assurance that our minds are working on the same lines. I am grateful for the prodding which this amendment gives to us. The whole Committee will understand that, while it is our intention that persons detained in places which are to be approved under Clause 1 should be treated as far as possible in the same way as those detained in existing prisons, it may not be practicable to achieve that object fully.
It is for this reason that I give a full assurance that any approved places under Clause 1 will be made open to a board of visitors' attention in one way or another. We have already set in train arrangements to try to see that something on these lines is set up at Frankland prison in Durham, if that establishment has to be used. I do not think I can add anything more except to say that I hope that meets the noble Lord's point fully.
§ Lord DONALDSON of KINGSBRIDGE
I am very grateful. I hope that the noble Lord will not be put off by distance. This is a question of money and members of boards of visitors will be quite prepared to visit if the cost of their petrol (at its present exorbitant rate) is paid for. This is something that the noble Lord must bear in mind. I am happy to accept his assurance, and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 3 trot moved.]460
§ On Question, Whether Clause 1 shall stand part of the Bill?
§ 5.35 p.m.
§ Lord RENTON
May I raise a small point which has puzzled me slightly? Having tried to get to the bottom of it, I will give the Committee the explanation as it appears to me. It would be helpful if we were to understand clearly what the position is and perhaps my noble and learned friend can assist me. If we turn to the first subsection of Clause 1, we find:This section applies to any person whose detention in a prison, remand centre, Borstal institution or detention centre is for the time being authorised by law".If we look at subsection (3) we see:In relation to a person to whom this section applies, whether detained in an approved place or not, the Secretary of State shall have all such powers as he would have if every approved place were a prison".That is a prison only; there is no mention there of a remand centre, a borstal institution or a detention centre. So I went hopefully to Halsbury's Statutes in order to see whether there was a definition of a prison. But the only definition of a prison is a purely negative one to be found in Sections 1 and 53(1) of the Prison Act 1952, where it says that "prison" does not include a naval, military or air force prison. So that gets one no further forward.
It may be that the Government have some way of explaining to the Committee—and of carrying this into law—that the word "prison" has a much wider sense and includes remand centre, borstal institution or detention centre in the context of this clause. One gains some comfort for that point of view by the fact that in subsection (5) of Clause 1 we find:the Secretary of State may by order direct that any rules in force under section 47 of the Prison Act 1952 shall, in their application to approved places generally, or to any approved place specified in the order, have effect with such modifications as may be so specified".Section 47 of the Prisons Act 1952 is the section which gives the Secretary of State power to make the prison rules. The prison rules are well known and when we turn to them we find that they apply not only to prisons but to borstals and detention centres. I do not think they apply to attendance centres but it is perhaps not necessary that they should. At 461 any rate, as we have only the word "prison" as the last word on page 1, if it is intended that that word shall have a wider meaning perhaps we could be told that it will have that effect in law.
§ The LORD CHANCELLOR
My noble friend has unravelled this matter with a piece of unrivalled research. I do not think I can improve upon it. The situation is even simpler. The clause applies to persons who are subject to be detained for the time being by the authority of law in any of the named places, and the Secretary of State has power in relation to an approved place because that is where they will go under Clause 1.
I agree with what my noble friend said about extending the meaning of "prison" for the purposes of this subsection. I do not think that I can improve on what he said. It applies of course to prisoners who are detained in temporary accommodation and also those elsewhere. It will ensure that the Secretary of State may transfer a person from a prison to a camp, and vice versa, and order the temporary removal of a prisoner in a camp for judicial, medical or other purposes.
§ Lord DAVIES of LEEK
This Bill contains provisions with respect to the detention of persons and the release from custody of such persons. It is intended to make provision for reducing the number committed to such institutions and to modify the law. That is what this temporary Bill is doing; it is modifying the law. Consequently common sense says that anything the Government approve of as a place of detention or incarceration is a prison. I would leave it just at that, because as a layman that is how it seems to me.
§ On Question, Clause 1 agreed to.
§ 5.41 p.m.
Lord ELWYN-JONES moved Amendment No. 4:
After Clause 1, insert the following new clause:
§ ("Prison Rules
|Rule||2||(Maintenance of order and discipline)|
|Rule||7||(Information to prisoners)|
|Rule||18||(Special illnesses and conditions)|
|Rule||19||(Notification of illness and death)|
|Rule||44||(Use of force)|
§ (2) All outgoing mail of persons detained in "approved places" shall be forwarded without inspection unless a search warrant has been duly obtained.
§ (3) Incoming mail shall be opened in the prisoner's presence and inspected for contraband, but correspondence shall not be read or photocopied. Exceptions to this rule shall be made only with the authority of the Secretary of State.").
The noble and learned Lord said: The purpose of inserting this new clause is to seek to ensure that those who are to be held in "approved places", to use the language of Clause 1 of the Bill, shall enjoy at any rate some of the basic rights that the prison rules give to those who are held in prisons. I have identified what seem to me to be some of the key ones. I do not know that I need read them out to your Lordships as they are probably familiar ground. Their essence is to be beneficial to prisoners—for example, Rule 2, which prima facie does not look very helpful to the prisoner as it refers to the maintenance of order and discipline. Indeed, the rule says:
Order and discipline shall be maintained with firmness but with no more restriction than is required for safe custody and well-ordered community life. In the control of prisoners officers shall seek to influence them through their own example and leadership and to enlist their willing co-operation. At all times the treatment of prisoners shall be such as to encourage their self-respect and a sense of personal responsibility, but a prisoner shall not be employed in any disciplinary capacity".
There is the duty to provide information to prisoners in Rule 7; medical attendance, Rule 17. Rule 18 refers to special illnesses and conditions; Rule 19 to notification of illness and death and Rule 27 to daily exercise. Then there is Rule 36, securing release, which reads:
A person detained in prison, in default of finding a surety, may communicate with any relative or friend to arrange for the surety".
Then there is Rule 44 relating to the use of force, which says:
An officer in dealing with a prisoner shall not use force unnecessarily and, when the application of force to a prisoner is necessary, no more force than is necessary shall be used".
The noble and learned Lord the Lord Chancellor, in the debate on Second
Reading indicated that these rules were intended to be applied, and the only concern that I had was the proviso in Clause 1 (5), which reads:
In the case of any particular approved place the said enactments
in subsection (4)—
shall apply in accordance with subsection (4) only so far as is practicable in the circumstances;".
I should like to get some assurances about the extent and nature of that proviso.
§ Lord BELSTEAD
The Government are determined to ensure that so fas as is humanly possible conditions in approved places under Clause 1 shall meet all the objectives of the prison system proper, including the requirements of the prison rules—not only those listed in the noble and learned Lord's amendment, but in the prison rules at large. However, the House will recognise that there are limitations which the situation we are now in is bound to impose, and to require absolute compliance with some rules could be detrimental to the broad interests of security, staff safety and inmate welfare. Such a provision, moreover, could imply that less importance should be attached to other important rules.
I do not think I can really add very much else to that general statement. I could give examples which obviously have been very much in the minds of those of us who are connected with the Prison Department and working in the Home Office recently. May I give just one or two. Clearly it is the firm intention that educational needs, also, obviously, medical needs and—although I do not wish to sound unduly pious about this—also the spiritual needs of those who are kept in approved places should be properly looked after.
Again, I hope I am not sounding evasive when I say that this assurance, given across the Floor of the House, represents the firm intention of the Government in setting up, if we have to set up, approved places. This would be the way we should try to go, without writing requirements into the legislation. The difficulty about starting to write such requirements is that when one looks at requirements (2) and (3) of the noble and learned Lord's amendment—and 464 perhaps I can see there the hand of the noble Lord, Lord Donaldson—there one finds certain requirements regarding the censorship of mail, both outgoing and incoming. On a general point of principle which I have mentioned already and which was mentioned earlier than that by the noble Lord, Lord Donaldson, the Government would not see this temporary Bill as being the vehicle for introducing permanently substantive changes in the ordering of prison life which have been and remain matters of current debate. It is for those reasons that I hope the noble and learned Lord will not press the amendment, although I must confess that I agree with a great deal of the thrust of it.
§ Lord ELWYN-JONES
I apologise for omitting reference to paragraphs (2) and (3) of the new clause, to which I attach importance; but in the light of the assurance given by the noble Lord and the fact that it will be on the record, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 2 [Remand]:
Lord ELWYN-JONES moved Amendment No. 5:
Page 2, line 23, after "person" insert "who is legally represented".
§ The noble and learned Lord said: The noble Lord, Lord Belstead, commented on this point in his speech on Second Reading. I submit that it is an important point and it is the clause of the Bill which ought most carefully to be looked at from the point of view of the rights of the subject who is detained in custody. The amendment proposes the addition of the words "who is legally represented" in line 23 on page 2. The noble Lord, Lord Belstead, informed your Lordships that the Minister of State in another place proposed on Second Reading that a circular should be issued to the courts, asking that they give serious consideration to the granting of legal aid at the first remand hearing when the defendant was present. If that were done, at the second hearing the court would be able to consider representations by the lawyer on the defendant's behalf.
§ The amendment that I move requires that legal representation should have been 465 obtained for the defendant at the first hearing if his right to a subsequent personal appearance is to be set aside. If that were not arranged for, he would be brought back after eight days for a second hearing. If legal representation were then arranged, his right to further personal appearance would then be set aside. I submit that if some such provision as the amendment proposes is not made, an inarticulate defendant could be remanded in custody without the benefit of a statement by a legal representative or possible grounds for bail, and could thereafter remain in custody without the right of a further personal appearance on a subsequent occasion. That is really the reason for seeking to protect the position of the individual in those circumstances. I beg to move.
§ Lord WIGODER
I also referred to this matter on Second Reading. In his reply the noble Lord, Lord Belstead, indicated that a circular would be sent out. If I may say so, for my part I found his reply acceptable and satisfactory in these rather difficult circumstances. I would only venture to remind the noble Lord of a fact of which I have no doubt he is well aware, which is that there are some magistrates' courts who are notoriously reluctant to grant legal aid unless they are compelled to do so. Therefore, no doubt the circular will be in the most stringent terms.
§ Lord SOMERS
I am afraid I am no lawyer, but would it not be possible to insert words such aswho must, when possible, be legally represented"?
§ Lord BELSTEAD
I fully understand the reason the noble and learned Lord, Lord Elwyn-Jones, has moved this amendment. It is true that since the amendment was put down before the House met this afternoon I have sought to follow my noble and learned friend the Lord Chancellor and I repeated the assurance which my honourable friend the Minister of State gave in another place that a circular would be sent out about this matter. But this does not change the fact that this is an important amendment. May I try to do two things? First of all, may I briefly repeat the effect of what my honourable friend Mr. Brittan said in 466 another place? The assurance which he gave there, and which I repeat now, is that we are proposing, by means of a circular to the courts, to ask the courts to give the most serious consideration to the grant of legal aid at the first remand hearing when the defendant is present, rather than at the second remand hearing, as happens now.
Bearing in mind that there are, on not a few occasions, as I realise, those who are accused who appear before the court and for one reason or another find themselves lost for words, I think it is most important that this circular is going to be directed in those sort of terms; because clearly it will be the advice to the courts, who I am sure will fully understand and take on board the reason why this is being given, that the courts would take the initiative in putting the matter to the accused who appears before them.
I realise that that is not quite the end of the matter. This is not a completely fail-safe assurance. Clearly the court might feel that they would wish not to follow the advice given. That brings me to the second point I want to make, which is that as a result of amendments written into the Bill last night in another place by the Government, as a result of advice which came from the Opposition, the length of time which the Bill now lasts is only one month. It is genuinely temporary in that way unless Parliament sees fit to increase the length of time. I think I should add to the argument I am seeking to put that if at the end of one month, if the state of dispute was continuing, it was found that the courts were not following the advice which had been tendered in the circular then I think Parliament would want to think again about this important matter. I know that does not give full satisfaction to the effect of the amendment which the noble and learned Lord has moved, but, as I said on Second Reading, I do hope we can proceed on this matter by way of circular and not by way of amendment to the Bill.
§ Lord RENTON
We should not over-look the fact, which is familiar to those of us who have had experience of practice in the criminal courts, that there are quite a number of accused people who will not be represented by counsel, who prefer to represent themselves. By saying 467who is legally representedthe amendment would, in effect, make it a condition precedent that there should be legal representation before the powers contained in this clause could be used, and I think that it would be unfortunate to frustrate the use of those powers by making such a condition precedent.
§ Lord HUTCHINSON of LULLINGTON
May I ask the Minister whether he will make it his business to see that these circulars go to the professional bodies of the lawyers? Very often circulars go to courts about which the lawyers know nothing at all.
§ Lord BELSTEAD
I am sure we will certainly endeavour to send them copies. In the time-honoured words, I will pass this on to my right honourable friend with some alacrity because, as the noble Lord can guess, we intend to try to send out very shortly a circular about this matter.
§ Lord ELWYN-JONES
In the light of what the noble Lord, Lord Renton, has said, perhaps I should have said—who is offered legal aid".In view of what the noble Lord, Lord Belstead, has said—that this is going to be put into the circular in quite specific terms—I have it in mind to ask leave to withdraw the amendment. But as the noble Lord intimated, a circular is not a directive, but no doubt it carries a great deal of weight; I hope it does, at the very least. In the light of the positive assurance of the intention to put what is proposed in the circular, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.57 p.m.
Lord ELWYN-JONES moved Amendment No. 6:
Page 2, line 28, after "unless" insert—
he has been detained in custody for a continuous period of 28 days since he last appeared or was brought before a court or".
§ The noble and learned Lord said: This is an important amendment. The regular appearance by an unconvicted accused person is an ancient and, indeed, necessary safeguard against abuse and injustice. The 468 Bill would not only suspend the present requirements of a weekly court appearance but would not require any appearance by the defendant for an indefinite period. This amendment would at least ensure that a right of regular personal appearance was retained, at any rate every 28 days. With respect, I should have thought that this was a minimal provision. I beg to move.
§ Lord BELSTEAD
The aim behind this amendment is, of course, very clear, and the noble and learned Lord has explained it. Since the objective of the amendment appeals very much to the hearts of those who listened to the noble and learned Lord—I mean that quite genuinely—I deploy with a little trepidation any arguments that I have against it. But I would ask the Committee, in looking at this amendment, to bear in mind that the powers in Part I of this Bill are temporary; they last for only one month at a time.
Secondly, from the operational point of view it is very important that the number of remand appearances, with the constant escorting duties which they entail, should be kept to the barest minimum. That is not just a matter of administrative convenience or smooth words of Government; this is absolutely at the heart of the difficulties which we are in at the present time. Thirdly, the courts will have the power to issue a direction ordering production, and we would trust to the courts' good sense. Fourthly, there could, I think, be some complicated problems on the ground in settling whether or not a particular prisoner had been held, let us say, for 29 days, or whether he had been held for only 28 days or for less. It could be difficult for the police to establish exactly when a prisoner made his last court appearance; and, again, I say that in the context of an emergency situation.
Fifthly, if, by inadvertence, the 28-day period were to be exceeded, the power of detention would lapse and the prisoner could be, to use an expression that I used earlier, out on the streets—and he could, of course, be a very dangerous person. Sixthly, we are, as your Lordships know, trying to do everything we can to ensure that prisoners remanded in absentia are legally represented—the subject of the previous amendment. Against the accumulation of those problems which I have 469 gathered together—not cobbled together, as I am sure your Lordships would not say to me—I must ask the Committee, while recognising the spirit of the amendment, not to accept it.
§ Lord DONALDSON of KINGSBRIDGE
I do not think this is quite the end of it, because the emergency can be extended by a month and it seems to me that, without trying to get the Bill altered, which I realise is very difficult at this stage, we want a fairly positive assurance from the Government that the Secretary of State himself will be informed if any prisoner on remand has not been seen for over 28 days so that he can look at the case himself and do something about it. One hopes that it would not be very many. But does the noble Lord think that something of that kind could be given to us in order to keep us quiet?
§ The LORD CHANCELLOR
I quite take the point that my noble friend has made. I will certainly see that the point which he has made is passed to my right honourable friend. However, there are two points which I think I ought to make. The first is a silly one but I think I ought to make it, and it is that one must deal in multiples of eight days, owing to the terms of the existing law, and 28 is not, unless I am mistaken, a multiple of eight. So one really has to do that.
Secondly, as I see it, the problem arises in this way. The difficulty that we are dealing with is the refusal of the prison officers in the great number of establishments to let people into prison. The moment someone goes to court on remand as a physical appearance, he cannot get back in. He then has to go—if you are keeping him in custody—to one of these approved places, which are, I think, ex hypothesi not as attractive as the place from which he came. This gives a practical sense to this difficulty, which the lawyer has to take on board. Once you have let him out, you cannot get him back in because of the action of the prison officers, and if you cannot get him in you have to put him somewhere else which is less agreeable than the place from which he came.
I was rather taken by what my noble twin said on Second Reading, that it does not necessarily follow—this is something of which I have been made very 470 conscious by my Secretary of Commissions—that, in every case, even apart from the emergency, the prisoner is very keen to come out and travel a long way in rather uncomfortable circumstances, be popped into a police cell, have to wait till his case is called on and then be remanded back whence he came. My own feeling is that this whole question of the eight-day period of remand is one which, when we deal with the matter on a broader basis we shall have to look at, because the wishes of the prisoner are something which we have to take into account.
§ Lord DONALDSON of KINGSBRIDGE
Would it be possible to deduce from what the noble and learned Lord has said that if we call it 32 days—unless the prisoner wishes it not to happen or something of that kind—that could be put up to the Secretary of State? It seems to me that that would meet my point absolutely.
§ The LORD CHANCELLOR
What I have to do is to see, through my noble friend, that the Secretary of State takes this point generally on hoard, in the light of the exchanges which have taken place.
§ Amendment, by leave, withdrawn.
§ Clause 2 agreed to.
§ Clause 3 [Release of persons committed or remanded in custody]:
§ 6.5 p.m.
Lord ELWYN-JONES moved Amendment No. 7:
Page 4, leave out line 3, and insert "brought before a court at the earliest opportunity after his arrest".
§ The noble and learned Lord said: As the clause stands, the prisoner who has been remanded in custody and then released on bail by the Home Secretary can be arrested in the circumstances that are set out in Clause 3(6). The amendment would ensure that, in those circumstances, he would be brought before a court at the earliest opportunity after his arrest, rather than await the due course of law which could be for up to three weeks if 471 the person was originally remanded in custody after conviction but before sentence. So the amendment would expedite the process of bringing him before the court, and it seems to us to be a more helpful provision than the ancient words "in due course of law" which, in the circumstances, have a certain lack of precision. I beg to move.
§ Lord BELSTEAD
As with practically all the proposals which the noble and learned Lord puts forward, this is helpful. But I wonder—and I hesitate to cross swords with the noble and learned Lord on my interpretation—whether it would help other people who are caused to be brought before a court, bearing in mind that the courts are very full of business at the present time. It occurs to me that acceptance of this amendment would mean that there would be, to put it in old-fashioned terms, a certain amount of immediate queue-jumping by those who had availed themselves of remaining in freedom, having been given executive bail under Clause 3, and who then had to be arrested by a constable under subsection (6). It is simply for that reason that I wonder whether it really would be very helpful to accept the present amendment, and whether there really is justification for interfering with the normal processes as proposed in the amendment.
§ Lord ELWYN-JONES
I confess that I find the argument that he would jump the queue on others who might have been awaiting trial for quite a long time not a very appealing one, and I am not very happy about it. The sooner people can be brought before the court the better. Probably that will be regarded as a platitude. I see the noble and learned Lord the Lord Chancellor looking somewhat sympathetic to me, but perhaps I am misinterpreting his visage.
§ The LORD CHANCELLOR
I hope that I am always very sympathetic. I was just wondering whether we have lost perspective in this matter. The position is that you are dealing in Clause 3 ex hypothesi with people to whom the court has refused bail; that is, people who are not entitled to bail in the ordinary course of events. Then the executive, in the right given by Clause 3, overrides the discretion of the court and it may impose 472 conditions of behaviour. The effect of the conditions being broken, or events of misbehaviour taking place, is simply to put the person back where he was when he started; that is, under the jurisdiction of the court, the court having refused bail. He will, of course, be able to apply for bail at any time that is appropriate, as he could before. He would have the same rights as any other prisoner who had been refused bail. But he would not be given a better right than another prisoner who had been refused bail because, against the better judgment of the court, he had been given what, for this purpose, must be the advantage of executive release. When he is put back inside for not be-having himself, he is only back where he started. He is not any worse off. So I wonder whether or not, with that in mind and with the further assurance that of course I shall see to it that my right honourable friend's attention has been drawn to this amendment, the noble and learned Lord will feel that I have been sympathetic.
§ Lord ELWYN-JONES
The noble and learned Lord has indeed been sympathetic to the point where I ask for leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clause 4 [Restriction on committal for non-payment of money, etc.]:
§ 6.10 p.m.
Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 8:
Page 4, line 4, leave out "Where".
The noble Lord said: With the leave of the Committee, I should like to speak to Amendments Nos. 8, 9 and 10 together. If they were accepted, Clause 4(1) would read as follows:
A magistrates' court shall not commit any person to prison—
§ The object behind this amendment is twofold. First, we think that in the 473 emergency this should apply to all magistrates' courts and should not wait for the Secretary of State to give them orders one by one, which is implied by the phrase as it stands; and, secondly, we feel that the offences of begging and sleeping out and the offence of soliciting for an immoral purpose are non-injurious—in the physical sense—offences with which it is unreasonable to fill the prisons at this time. I think it would be desirable to include these offences. We put down drunkenness, but there is no imprisonment for drunkenness, as such, so we took it out again. What I am trying to get at here is quite obvious, and I beg to move.
§ Lord HALE
I should like to applaud my noble friend on this amendment, which appears to effect a major and permanent alteration in the law of a type which I have been most anxiously seeking for many, many years. The amendment as moved—I hope that the noble Lord will not alter it because of anything I have to say—leaves out any possibility of cancellation of notification to the court and leaves a perfectly clear and coherent statement that a magistrates' court shall not commit. It may well be argued that the operation of this statute will come to an end by the passage of time or by the cancellation of its provisions by regulation or by order.
In the bits of the debate in another place which I heard and, indeed, in the speech of the noble Lord, Lord Inglewood, on another matter, doubts were expressed about the abolition of certain provisions. If I heard him correctly, the noble Lord, Lord Inglewood, said that we all know that the habit of governments after they have introduced an emergency measure is to be attracted by certain parts of it and therefore not to cancel it. If this were done it would remove the questions which I had intended to ask on clause stand part.
Although I do not want to waste time and although I did not seek to intervene at Second Reading in order to be able briefly to deal with these matters now I should point out the problem. There is some doubt as to the meaning of "notification" in subsection (2). The word appears to relate to notification to the court. As I understand it, the clause is intended to mean that we can let out a lot of relatively poor persons under a single collective notice from one court which normally commits to a certain 474 prison and that in that way we shall be doing the least possible harm to the community. No doubt there will be major difficulties over people who have been tipped out—but that is dealt with in other clauses—in order to make available collective accommodation in prison. That is as I understand it, but I do not think that it is very clear.
However, my noble friend's proposal is very clear. It is: "Let's forget it all, boys; let's abolish all this nonsense about imprisonment for debt". Announcements have been made once every 40 years during the last 150 or 160 years, if the noble and learned Lord the Lord Chancellor wants me to be mathematically correct, about the abolition of imprisonment for debt. Charles Dickens rejoiced in it and the noble Lord, Lord Donaldson of Kingsbridge, is doing it at the most convenient possible time when it really would help the administration of justice generally and diminish the problem of three in a cell and overcrowding. I think it is an admirable proposition. Even if it does not mean precisely what I am saying—and I suspect that it does—I should be happy to vote for the noble Lord's amendment.
§ Lord RENTON
With respect to the noble Lords opposite, I do not think the Government should accept this amendment. The purpose of the clause is to deal with a considerable number of people who are sent to prison simply for non-payment of fines or other forms of monetary awards made by the courts—a clear-cut case for special treatment in the circumstances of the Bill. By singling out two particular and fairly unusual forms of offence leading to imprisonment—I shall explain why they are unusual in a moment—the amendment is attempting to extend the clause artificially.
The offences of begging and sleeping out very rarely indeed, I should have thought, lead to a prison sentence. As for offences of soliciting for an immoral purpose, the whole purpose of the Street Offences Act, which many years ago, with the late Lord Dilhorne, I had to pilot through its Standing Committee in another place, was to prevent people from being sent to prison. The noble Baroness, Lady Jeger, will remember it because she was on that Standing Committee. We succeeded in allowing a very considerable 475 number of offences of soliciting to be committed before the ultimate sanction of imprisonment was applied. Therefore, I submit that that is a fairly rare cause of imprisonment and should not be singled out, any more than the other one, for special treatment within the context of this clause, which, as I say, has a very special purpose.
§ Lord AVEBURY
May I follow the noble Lord, Lord Renton, and first of all apologise for not having been here earlier? This is a matter of particular concern to me because I have twice tried to amend the Street Offences Act so as to abolish the penalty of imprisonment for soliciting. Indeed, I had a substantial measure of support in your Lordships' House for that proposition.
With great respect to the noble Lord, Lord Renton, it is not true to say that a substantial number of women are not committed to prison for this offence. The noble Lord, Lord Belstead, has been good enough to give me the figures for the last two years, I think, and it amounts to several hundred women every year. While this may be a minor contribution to the objective which the Home Secretary hopes to achieve by means of this Bill, I should have thought that he would welcome every contribution the House can possibly make, and this is one which is quite plain and easily understood and easily put into effect.
I should add that a great number of women who are convicted of soliciting ultimately go to prison for non-payment of fines, so the two things are not so totally unconnected as the noble Lord, Lord Lord Renton, imagines. As I ventured to remark to your Lordships on the last occasion when I introduced a Bill to abolish imprisonment for soliciting, sometimes women go to prison for as much as nine months for this offence because, as the noble Lord, Lord Renton, correctly remarks, the courts try to avoid sentences of imprisonment. They often do so by imposing a suspended sentence, so that a woman may have two suspended sentences of three months and then she comes before the magistrates for a third time for the same offence and the previous two suspended sentences are then put into opera- 476 tion, with the result that the woman spends a total of nine months in prison.
I must honestly say that this is counterproductive, because after a woman comes out of prison, having been there for nine months for the offence of soliciting, and particularly if she has children to support, as is quite often the case, she may be deeply in debt to the landlord and she may have HP commitments, and so on, and therefore she has no choice but to go back "on the game" and to repeat the offence for which she was first committed. So I hope that the noble Lord will see fit to accept this amendment, notwithstanding the fact that it goes so much further than the two limited categories which are mentioned in the subsection.
§ Lord DONALDSON of KINGSBRIDGE
Before the noble Lord replies, may I say first that I am grateful for the support; secondly, I do not know what the noble Lord, Lord Renton, means by "artificial". What was artificial about including this? That is a puzzle to me. I do not know that it is worth going into, but it seemed to me to be quite a wrong adverb. I should have thought that my paragraphs (c) and (d) were absolutely consistent with paragraphs (a) and (b). But as the numbers are small I do not think it is worth dividing the Committee. I would only remind the noble Lord of the slogan on which I, as a Left-Wing character in those days, was brought up, which was "the grand impartiality of the British law, which forbids both rich and poor to sleep on doorsteps."
§ 6.24 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
I really do not think we ought to involve ourselves in a general attempt to reform the law as part of this Bill. I wish I could persuade the noble Lord, Lord Hale—but apparently I cannot get through to him—that this has nothing at all to do with imprisonment for debt. It deals with a temporary provision for so long as these provisions last, which is one month, that temporary provision being that a person shall not be sent to prison for failure to pay fines or failure to pay his wife's maintenance. That, broadly speaking, I am right about. To bring in begging and prostitution and the tremendous business which the noble 477 Lord, Lord Avebury, brought in about his long campaign to stop imprisonment for street-walking, really like—The flowers that bloom in the Spring … Have nothing to do with the case".
§ Lord HALE
I am not attempting to bring in begging; I never mentioned it. It was not my attempt to bring in the other cases; I never mentioned them. I merely accepted the amendment proposed by the noble Lord, Lord Donaldson, as including a minor aspiration of my own. If the noble and learned Lord really is saying that people who are subject to a magisterial process in respect of the non-payment of a fine or the non-payment of debt—and indeed the clause includes a failure to provide or to have enough goods to enable a distress to be levied, which of course may be a temporary matter—are to be told when they get to the court that the Home Office has sent a notice to say that the court is not to deal with debt cases until the prison warders' position has been settled, well, these are remote matters in themselves.
The noble and learned Lord the Lord Chancellor should not feel that we are going very far if we are trying to deal with prison warders by measures of this kind. It is surely rather remote from the justice of the matter. I made no attempt to include the two kinds of prisoners mentioned by the noble Lord, Lord Donaldson. I indicated that if he was going to press the matter to a Division I would support him in the Lobby, and indeed support him with rather more enthusiasm because the proposals made by the noble Lord, Lord Donaldson, are, in any case, rather dear to my heart. I think on the whole that the noble and learned Lord, with all these complicated matters to understand, has really failed to understand the whole nature of the amendment.
§ Lord AVEBURY
I venture to inflict one further sentence on the Committee and that is to remark that in saying that this amendment has "nothing to do with the case" the noble and learned Lord, the Lord Chancellor, may have overlooked the sentence in the Long Title of the Bill which reads:to make provision for reducing the numbers committed to such institutions".
§ Lord DONALDSON of KINGSBRIDGE
I have to agree with the noble 478 and learned Lord that my amendment has "nothing to do with the case". I shall not go on with the quotation, because that really has nothing to do with it, but I think it would be very wise to include any reasonably harmless thing for which people are even occasionally sent to prison if the idea is to have fewer people in prison. But I certainly do not think the amendment is worth pressing, because I accept the statement made by the noble and learned Lord, which I have made myself., that this is not an occasion for trying to reform the law permanently. When that time comes I shall be with the noble Lord, Lord Avebury, and the noble Lord, Lord Hale. With the permission of the Committee, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 9, 10 and 11, not moved.]
§ Clauses 4 and 5 agreed to.
§ Clause 6 [Other provisions]:
§ 6.29 p.m.
Lord ELWYN-JONES moved Amendment No. 12:
Page 5, line 21, after "court" insert: "provided that, if the person so requests, the place where the person is held is notified either to that person's solicitor or next of kin, and arrangements are made for visiting".
§ The noble and learned Lord said: This amendment would ensure that when someone is kept in an approved place, if he requests it his solicitor or next of kin should be informed of his whereabouts and allowed to visit him. A prisoner would have such rights if he was held in a normal penal establishment, and in our submission this would be an appropriate provision and right for a person held in the circumstances which are set out in the last subsection of Clause 6. I beg to move.
§ Lord BELSTEAD
The purpose of Clause 6 is to place beyond any legal doubt the power of the police to detain in their custody a person who has been committed to prison by a court but whom the police cannot deliver into prison custody. I think it is important for me to remind the Committee that this is an attempt to put beyond legal doubt this power, but it is attached very much to the 479 present emergency situation because the power is in order to detain in police custody when the police cannot deliver the person detained into prison custody. There is no wish to legalise in some way the keeping of somebody in police custody for the sake of it; indeed the very opposite. I feel that the amendment would perhaps serve to reintroduce some legal doubts.
As to the first part of the amendment, concerning notification, certainly I can give an assurance that it is already standard police practice. Clearly it is right that a person to whom the clause applies should have his or her whereabouts notified, if he or she wishes, to any person reasonably named by the person in custody. But of course some prisoners may have neither next-of-kin nor a solicitor, and the legality of their detention should not be in doubt on this ground. The second part of the amendment, concerning visiting arrangements, I think makes the problem a little more difficult. The plain fact is that in many cases it is simply not practicable to allow social or family visits to prisoners detained in police cells, particularly in the present circumstances.
May I return to what I was trying to say at the beginning. The purpose of the clause is to put beyond legal doubt the right of the police to keep in police custody those who cannot be committed to prison on the order of the court because they cannot be delivered into prison custody. That is the reason for it, and it is under those circumstances, which are not of the police's seeking and not of the Government's seeking, that Clause 6 appears in the Bill. I think it would make that situation more difficult if the amendment were to be accepted.
§ Lord ELWYN-JONES
I believe I am right in thinking that this is one of the parts of the Bill which are going to be permanent—is it not? Therefore, it is a matter of some significance, more so than in perhaps some of the other matters, where the argument is, "This, after all, is only going to last a month, so do not worry unduly," which was the reassurance that one has received from time to time. I am not very happy about the fact that, as I understand it, there is no assurance that arrangements of this kind can be made wherever practicable. I do not think I have extracted that so far from 480 the noble Lord, Lord Belstead. If he were willing to go that far with me, I might be willing to withdraw the amendment.
§ The LORD CHANCELLOR
If I may intervene, I think I can go that far and that the noble and learned Lord can extract that from me. It is obviously right. But I do not think the amendment qua amendment will do. I think it is perfectly right to try to extract from the Government an assurance that where a person is being kept otherwise than in a known place of detention the appropriate person should be informed of the detainee's whereabouts, whether it is under Clause 6 or under Clause 1. I think people have got to know where these detainees are. I am sure that this will be taken on board, and I am sure I can give that assurance on behalf of my right honourable friend.
However, what I think my noble friend by my side was trying to get across was this. Clause 6 is put in the Bill in case something like this ever happened again, so that no question can arise as to the vires of the police, where the situation arises, to carry out the detention. The point about notification is an absolutely valid one policy-wise, but I do not think if it were put in in this way it would do other than reintroduce into the vires question a new doubt about the vires, which it is the whole purpose of this clause to dispel.
It seems to me the noble and learned Lord the Lord Chancellor is rather simplifying this issue. It is something that will not end at the end of the month. It refers to something being practicable. If I understood the noble and learned Lord aright, he has in mind a repetition of some sort of crisis which means that prisons are full and there is no place for men to be delivered. In fact, I can see other reasons. If a police force is greatly under strength and the distance that the man has to go to prison is an extremely long distance, there is every reason why he might be detained for a day or two until other men return from leave, or for some other reason, which would enable him to be sent, perhaps 100 miles or more, when it would be far less inconvenient. I do not accept that this is simply a power which we should associate with the sort of difficult situation we are now in.
§ Lord RENTON
It does not seem to me that this is a new power at all. In fact, it seems merely to represent what has for years and years been the normal practice.
§ The LORD CHANCELLOR
I think my noble friend is right. I do not think I am over-simplifying it at all. I entirely accept the policy which the noble and learned Lord has put forward, but I do not think I am over-simplifying it. This is not a new power. Our opinion is that it is really a removal of doubt, a statement of what the law is. Obviously it would be quite wrong for me to give the impression that notification would not take place. It is the practice and it ought to remain the practice.
§ Lord DONALDSON of KINGSBRIDGE
It is just worth adding that it must be with the prisoner's consent, because a lot of prisoners would be furious if their wives were told they were inside.
§ The LORD CHANCELLOR
I fully take that point on board, too. I think the amendment really intended that.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 6 shall stand part of the Bill?
§ 6.36 p.m.
§ Lord DONALDSON of KINGSBRIDGE
Perhaps I may make one short remark, which I think is out of order because it is on our amendment which was not passed. Though it is probably impossible to arrange proper visiting in police cells, I take it that every effort will be made to make it possible in the larger camps or anything else which are being set up. I should like an assurance on that.
§ Lord BELSTEAD
This is a hypothetical question, because we have not got so far as designating what is an approved place. So I cannot go further than to say that we take very firmly on 482 board what the noble Lord has said. As I said earlier, already our mind has gone in the same direction as his in the sense that there is going to be outside monitoring of what is happening certainly in the first of these approved places, if it is to be opened, by virtue of activities of boards of visitors.
§ Lord ELWYN-JONES
I am sure there will be a wish to diminish rather than increase the sufferings of prisoners under the new arrangements.
In clarification of what the noble Lord, Lord Belstead, said in his Second Reading speech in reply to something I asked, may I ask him to be a little more explicit about a police authority's rights to enter police premises? I did not mean, in the middle of the day, having a look to see whether new roofs are necessary or the outside or inside needed repainting. I meant to ask who, if anybody, had a right to enter at any time of day he liked, and maybe late at night when cell passages are filling up. I understood his reply to mean that it was in fact the case. If it is so, I can think of a number of chief constables who will be absolutely furious.
I would ask the noble Lord, if he would be so good, in their interests as well as ours, to clear up exactly what was meant. Furthermore, with regard to the Metropolitan Police, where the Secretary of State is the authority, does that mean that he alone has the right, or could he nominate the noble Lord, Lord Belstead, or one of his senior officials? I think this is an important point.
§ Lord BELSTEAD
The operational responsibility for the way in which a force discharges its policing responsibilities is of course for the chief constable. This means that when a force is particularly stretched on, let us say, a very busy Saturday night, maybe it would not be as welcome as it might be at another time if somebody said they would like to look round the police station. But I can give my noble friend an assurance that facilities would, as a matter of course and of right, be provided for members of police authorities to visit police accommodation. So far as the Metropolitan Police is con- 483 cerned, yes, my right honourable friend the Home Secretary is the police authority and it would be for him to decide who should avail himself or herself of these facilities so far as the police authority for the Metropolitan Police is concerned.
§ Clause 6 agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported without amendment: Report received.
§ Moved, That the Bill he now read 3a.—(Lord Belstead.)
§ Lord ELWYN-JONES
My Lords, I was wondering whether the noble Lord, Lord Belstead, was going to intervene at this point. It is true that no amendments that were moved by those of us on this side of the House were successful, but if I may say so the Government have given important assurances on a number of matters of importance and significance. The major improvements by way of amendments were achieved by my noble friends in another place in regard to the reduction of the period to one month and the duration for one year. But I should like to place on record the fact that we have been given these assurances and we shall watch future developments with interest, hope and expectation. I should like again to repeat what I ventured to say at the beginning of our discussions on this matter; namely, the hope that even at this hour there will be movement towards settlement of this unhappy dispute.
§ The LORD CHANCELLOR
My Lords, I should like to thank the noble and learned Lord, Lord Elwyn-Jones, for what he has said. I certainly echo his hopes, although I do not know with what degree of optimism. I should like especially to thank noble Lords who have been organising the opposition from the Labour and Liberal Benches for their co-operation and understanding in this matter. They have been extremely courteous and very helpful.
§ On Question, Bill read 3a, and passed.