§ 3.1 p.m.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Belstead) rose to move that the order, laid before the House on 28th September, be approved.
§ The noble Lord said: My Lords, the Act with which this order is concerned was passed in October of last year as an emergency measure in order to enable steps to be taken to deal with the consequences of industrial action which prison officers were then taking. As part of that action, there was a refusal by prison officers to receive prisoners into any establishment which already contained a population in excess of its certified normal accommodation. As a result, because of the 1073 chronic overcrowding of the prison system, large numbers of prisoners had to be held in police cells or other temporary accommodation. Before turning to the detailed implications of the order, it may be convenient if I first review the provisions contained in Part I of the Act, since it is these provisions, together with related provisions in Section 8, whose repeal would be postponed by the order. By way of preliminary, however, I would emphasise that none of the provisions in Part I is currently in force and none is brought into force by this order.
§ Section 1 of the Act, when it is in force, provides that any person whose detention in any type of Prison Department establishment is lawful, may also be lawfully detained in any place in England or Wales approved for the purpose by the Secretary of State, and there are further provisions in Section 1 governing the operation of such "approved places" and the application to them of the ordinary law relating to prisons. The practical purpose of Section 1 was to make it possible to open special temporary prisons to accommodate prisoners who had been excluded from ordinary Prison Department establishments by the industrial action of last winter to which I have referred. There were, in the event, two "approved places". The first was at Frankland in County Durham, and the second at Rollestone Camp on Salisbury Plain. Frank-land and Rollestone held prisoners while the industrial action of the prison officers lasted, and ceased to Operate as temporary prisons in January and February of this year. In passing, I should perhaps mention that Rollestone Camp has recently again been brought into use as a temporary prison, as indeed also has Beckingham Camp in Lincolnshire. But neither of those establishments operates under the provisions of Section 1 of this Act. Each has been declared to be a prison under Section 33(2) of the Prison Act 1952 and each is run, like any other prison, by members of the prison service. The reason for bringing these two camps into use recently as prisons was the unprecedented pressure on prison accommodation brought about by the record high level which was reached by the prison population in July of this year.
§ Section 2 of the Act, when it is in force, provides that a person remanded in custody by a magistrates' court shall not be brought before the court again for further remands but shall instead, if a further remand is thought appropriate, be so remanded in his absence, except where the court has issued a direction requiring the person to be in court. Section 2 also provides, however, that the power of a magistrates' court to require a person remanded in custody to be brought before it at any time remains unaffected. The exceptional provisions of Section 2 were introduced because of the circumstances which obtained during the industrial action last winter, when thousands of prisoners, including large numbers of remand prisoners, could not be lodged in Prison Department establishments and had instead to be held either in police cells or in one or other of the approved places opened under Section 1, often at a considerable distance from the court. The provisions of Section 2 understandably gave rise to some concern, and to some debate in your Lordships' House, when they were introduced, but, thanks to the good sense and flexibility shown by all concerned, Section 2 appeared to work 1074 remarkably well in practice. Certainly no evidence was brought to the attention of the Home Office that any defendant had suffered disadvantage through the operation of Section 2.
§ The remaining three sections of Part I of the Act contained unusual and wide-ranging powers for the Secretary of State to take action to intervene in the ordinary process of the criminal justice system if the circumstances made such action unavoidable. I think it is important for me to point out that none of these powers was, in the event, exercised by my right honourable friend. Section 3 conferred on the Secretary of State power to release prisoners committed or remanded in custody, but only if he was satisfied that it was necessary to do so in order to make the best use of places available for detention. Section 4 conferred power to remove the power which a magistrates' court had to commit persons to prison for failure to pay any sum of money or for want of sufficient distress to satisfy any sum of money. Finally, Section 5 contained a power for the Secretary of State to direct that prisoners of a specific class shall be released earlier than they would otherwise be released, although not more than six months earlier. As with Section 3, the Secretary of State may not give a direction under Section 5 unless he is satisfied that it is necessary to do so in order to make the best use of the places available for detention; and I repeat that Sections 3, 4 and 5 were never used.
§ That is the effect of the Act. The effect of this order is simply this: Part I, to which I have just referred, and the related provisions of Section 8(1) to (5), which deal with the activation of Part I, shall be repealed 12 months after the date on which the Act was passed. Were the order before your Lordships not to be made, repeal would therefore take place automatically on 28th October of this year. Section 8(7) however provides that the Secretary of State may by order postpone the repeal of Part I and Section 8(1) to (5) for any period of up to 12 months, although not for more than 12 months at a time, and it is such an order that is now before your Lordships. I would emphasise that the order to postpone repeal has not been made because of any expectation that it will be necessary to bring any of the provisions of Part I into force within the foreseeable future. That would require a further and quite separate order under Section 8(2)(b), and my right honourable friend has no intention at present of making any such order. On the other hand, we do not think it would be prudent to allow the complete repeal of Part I and Section 8(1) to (5) to take place at this time, which is what would have happened were the order before your Lordships not to be made.
§ The industrial action which led to the enactment of the Act a year ago ceased at the beginning of this year. But I regret to have to say to the House that we have not yet arrived at a position where it can be said to have been conclusively terminated. The Prison Officers' Association agreed last February to suspend its action pending the outcome of negotiations on a new duty system to cover working arrangements in Prison Department establishments. Those negotiations have been long and complicated, and while we are working hard for a satisfactory outcome, there can as yet be no guarantee that that will be the case. Nor can we overlook the fact that the prison service 1075 has been, and still is, under very severe strain from the pressures of overcrowding and decaying buildings. My right honourable friend has no reason at present to expect any recurrence of industrial action on a large scale, but he came to the view that the insurance that this Act provides against the possibility of a breakdown in the criminal justice system should not be dismantled at this stage, and that the total repeal of the Act ought not therefore to take place now.
§ If it were desired to bring any of the provisions of Part I into force, a further order would have to be made under Section 8(2), under which the Secretary of State has power by order to bring all, or any, of the provisions of Part I into force for a period not exceeding one month, subject to renewal by further orders. If, against our expectations, action of that kind had to be taken, your Lordships would have the opportunity under Section 8(5) to consider whether it was right for the House to support such an order. All that is proposed in the order that is currently before your Lordships, which has been made under Section 8(7), is that repeal of Part I and the related provisions of Section 8 shall be postponed for a period of 12 months. The order ceases to have effect 40 sitting days after it was made, unless within that period it is approved by your Lordships' House and another place. For the reasons that I have given, the Government consider that the order is a prudent, but necessary, measure, and I ask your Lordships to give it your approval. My Lords, I beg to move.
§ Moved, That the order, laid before the House on 28th September, be approved.—(Lord Belstead.)
§ 3.12 p.m.
§ Lord Boston of Faversham
My Lords, your Lordships will be grateful to the Minister, the noble Lord, Lord Belstead, for outlining the Government's reasons for introducing the order, and he has clone so with his usual clarity. But I should be less than frank with the House if I said that I was grateful that the order itself had been introduced. It is, I believe, regrettable that the Government have decided to ask Parliament to postpone the repeal of this Act—the Imprisonment (Temporary Provisions) Act 1980—for 12 months, and to keep it in being for another year. It is regrettable, first, that Parliament is being asked to retain legislation of this kind now by order and, secondly, that the Government consider that the situation in our prisons is such that this step is necessary and justified.
Let me try to deal with those points. The Act was passed a year ago in circumstances of the most acute crisis in our prisons, and at the height of the prison officers' dispute. The Bill was brought in to help to avert a complete breakdown within the prison service, and to avert a breakdown in the criminal justice system itself. That was an unprecedented situation. It had to be dealt with. The Government accordingly decided to bring in emergency legislation. It was right to do so. The Opposition did not oppose it. Indeed, as the Minister and the House will recall, we facilitated its passage through Parliament, and the Bill was passed in one day in your Lordships' House.
Parliament is very jealous of its rights and duties, which exist to safeguard the rights of everyone in this country, and which include the right and duty to 1076 scrutinise most carefully any legislation that is introduced. Parliament has always been ready to act swiftly in an emergency, as we have seen, and the Opposition was ready to respond and indeed did respond last October, just as Oppositions have been ready traditionally where there has been clear need and justification.
When it was introduced as a Bill, the Act was acknowledged on all sides to contain some draconian powers, powers which, when used, would curtail the liberties of the subject; and that was acknowledged also by the Government themselves. Nevertheless, in all the circumstances it was right to bring in the powers, as we ourselves agreed, and as a temporary measure—I stress those words. But there were qualifications which we all had, not least the Government themselves. They had to have such qualifications to justify the exceptional action that they were proposing to take. The first of the reservations was that the powers were needed in the circumstances, which themselves were unprecedented.
In my submission, it cannot be claimed that there exists today the same situation as existed a year ago. It is of great importance for the well being of Parliament and the public that procedures of the kind used a year ago are reserved only for the most urgent, pressing, exceptional and—if one may make a rare, but proper, use of the word—extreme needs. Parliament has been seen to be able to act with great speed, and, if it could be argued that a situation like the one last year had arisen again, then the proper course would be to bring in a new Bill.
As the Minister has explained, it is true that the powers in the Act will not themselves actively be in operation after the passage of the order. Another order under the Act would be needed to bring them into effect; and indeed, as the noble Lord has also indicated to your Lordships this afternoon, the Government cannot see any reason for activating Part I—I quote the words that he used—" within the foreseeable future''.
But, as we know, one difficulty about orders is that they cannot be amended. We can only take them or leave them, or, by rejecting them, leave the Government with the option of bringing them back in a different form. It is true that by its very nature this Act does not invite much scope for amendment. It is very tightly drawn and, if I may say so, in the circumstances, well drawn, as was the case last year. But that is all the more reason for subjecting its provisions to the fullest possible examination and scrutiny.
Of course it is also the case that the prison population is still at a level which some would readily acknowledge to be a crisis level, but it has been so for some time, regrettable though that is. Last Thursday it was stated in another place that on 20th October the figure was 43,837. And the figure, bad though it is, as it was last year, was not advanced as the reason and justification for the exceptional step in Parliament to meet an unprecedented situation. The Minister has already referred to the use of police cells. As we have heard and understand, they are no longer being used for these purposes, nor indeed is Rollestone Camp, though the Minister has explained that it is being used as a designated prison at the moment. Frankland prison, which was brought into service for these pur- 1077 poses, is, I think, empty at the moment. So it can be said that there are not pressures in those directions as there were last year.
It is true, too, that the prison officers' dispute has been only suspended, as the noble Lord, Lord Belstead, has mentioned to your Lordships. But Ministers have also said that negotiations are proceeding. Indeed, the noble Lord has said that this afternoon to your Lordships. I quote one Minister, who has said that he is,certainly hopeful that those negotiations will have a satisfactory outcome".A representative of the Government has also said that they,do not think it likely that there will be any recurrence of industrial action on a large scale, or that difficulties will arise from any other cause with which the present system will be unable to cope",though,it plainly remains a possibility".My Lords, the situation is quite different from the circumstances of last year, and if some of these powers did not have to be used then (and thank goodness they did not!) they are clearly far less justified now. Moreover, the fact that the Act was to be temporary—indeed, it says so in its very Title—caused it to be more acceptable last year and caused potential criticism of it then (I think it is right to say) to be far less than would otherwise have been the case.
I confess I was somewhat disturbed to find that, in justification of this order, it was said in another place by the honourable and learned gentleman the Minister of State, Mr. Mayhew—for whom I have a very great deal of respect—that:If that dispute had now been resolved and had been out of the way for some time, we should be in a different position".My Lords, I wonder how long "for some time" is meant to be. I also wonder, and am bound to ask: How long now does the Government regard "temporary" as being likely to be? I do not recall words quite like that being used last year in putting the case for the Act, when the situation was at its most serious.
Clearly we all want to see the seal put on a final and satisfactory agreement with the prison officers, and clearly we want to see vast improvements in the often appalling conditions which have to be faced by our prison officers—who, with very few exceptions, do an outstanding job in immensely difficult circumstances. And, of course, we want to see conditions for prisoners improved as well. But part of the longer-term solution must lie—this is in part, at least—in the introduction as rapidly as possible of suitable and effective alternatives to imprisonment and other measures to reduce the prison population.
Many of these have been put forward and discussed over a long period now, and I will not go into details on this occasion, but I will just note that, for example, there were many useful proposals in the Fifteenth Report of the Expenditure Committee of another place entitled The Reduction of Pressure on the Prison System, which was published in July 1978 and the considered response to which, I might also mention, had reached an advanced stage when the last Government went out of office in May 1979. There were also the proposals referred to in the May Com- 1078 mittee's Report on the Prison Service, which came out in October of that year, 1979; and the report of the Parliamentary All-Party Penal Affairs Group, called Too Many Prisoners, which came out in June 1980, with their supplementary report, which came out this September, called Still Too Many Prisoners. Then, again, there were the Fourth Report of the Home Affairs Committee of another place, which came out on the 20th July this year, and other valuable reports from the National Association for the Care and Resettlement of Offenders.
So there has been no shortage of ideas over a long period covering more than one Government. These include—and, again, I will not go into details, but will mention just a few of them—such proposals as extending the parole system, extensions of remission, shorter sentences (there have, it is true, been some improvements there by the courts over this past year), partially suspended sentences, alterations in the attendance centre system, including proposals for the day centres, more extensive use of community service orders, intermediate treatment for children and young persons, proposals on probation and so on. There has been no shortage at all of ideas and proposals for alternatives to imprisonment and for reducing the pressure on the prison system and the number of the prison population.
My Lords, I know that the Minister and his department have been considering and pursuing many of these matters. There is, for instance, the Government's document Review of Parole, which was published in May of this year. But if they have been pursuing them (as I believe they have, some of them) then there is even less case for this order. Of course, if they have not been pursuing them quickly enough, then that is even more reprehensible, but it would be wrong and unfair of me to use this occasion to seek to explore that possibility.
My Lords, I am not going to invite my noble friends to divide on this matter, but I hope the Minister will acknowledge the very real concern there is that measures like this Act shall not remain on the statute book one moment longer than is absolutely necessary, and that they should be there at all only in the most exceptional and grave circumstances.
§ 3.25 p.m.
§ Lord Foot
My Lords, I have listened with great care to everything that the noble Lord, Lord Boston of Faversham, has said about this subject, but at the end of it I am afraid I do not share his alarm at the extension of this Imprisonment (Temporary Provisions) Act for a further 12 months. He said, as I understood it at the beginning, that he thought that under this temporary Act the Home Secretary was taking to himself what he called, I think, draconian powers which were a threat to the civil liberties which we in this country enjoy. With one exception to which I will make some reference in a minute, I do not know of anything which has been done under this Act which has infringed anybody's liberty at all, and I cannot see any reason why in the next 12 months, if this Act is given a further extension for that period, what has not occurred during the last 12 months should occur during the next 12 months.
1079 It is on that account that when I came here this morning I was rather thinking that the debate on this Motion would be something of a formality. I thought it would go through almost "on the nod". But there is one matter contained in the Act to which I should like to make some reference, and that is the provisions in Section 2, the remand in custody provisions. Those provisions have of course a special significance, because last June, in a Written Answer to a Parliament ray Question, the Home Secretary said that it was his intention, in the light of the experience that we had had under Section 2 of this Act, to introduce permanent legislation upon the matter which is dealt with in that section.
Of course, what Section 2 does is to abolish what has been long the law of the land; that is, that where a person is remanded in custody by a magistrates' court that person can be remanded for only eight days, and at the end of those eight days he must be brought back if it is desired to remand him again—or, indeed, he must be brought back in any event. That has been the state of the law, as I understand it, for well over a hundred years. The draconian power that was taken by Section 2 (and here the adjective is, I think, appropriate) was to provide that that should be scrapped, and that for the future it would be possible for a magistrates' court to remand a person in custody in his absence.
Indeed, if one reads Section 2 with care one sees that the magistrates can, if they wish, remand a person in custody for successive periods of eight days indefinitely, without his ever being brought before the court which is making those remand orders. As a result of that, he has no opportunity to apply for bail; he has no opportunity to make inquiries of the court as to how his case is progressing; and he remains in his place of confinement waiting interminably for the day when he will be brought up for the committal or other proceedings.
That was indeed a major change in the law, and that was acceptable, in my view, only because it was a temporary measure to deal with an emergency situation. The emergency situation arose, as the noble Lord on the Front Bench has said, because prison officers refused to take into custody people remanded by the magistrates' court if the numbers then in confinement were greater than the proper establishment figures. Also, of course, the prison officers were refusing to bring these people to the courts. They said, "We are not going to take them to the courts. We are not going to take them every eight days, as the courts require". The reason why the provision making that draconian change in the law about being remanded in custody is of particular significance today is that last June the Home Secretary said that in the light of that experience he was proposing to introduce permanent legislation along the same lines.
I have only this to say. I recognise that there are very great advantages to be gained if one can get rid of this business whereby people have to be brought to the courts every eight days even if it serves no useful purpose. It is obvious that anybody who wants to be brought back to the court every eight days wants to renew an application for bail. In many cases an application for bail is not made because it is hopeless. 1080 In other cases the application is made but it is hopeless because an application has previously been rejected and there are no new facts to put before the court. So many of the journeys to court which are undertaken under the supervision of prison officers and policemen every eight days are quite unnecessary and impose an almost intolerable drain on our limited resources of manpower and finance, as we all know.
If one could eliminate the unnecessary, fruitless and pointless applications for bail and visits to the courts every eight days, there would be great advantages. At a stroke one would reduce the demands upon the already overstrained resources of the prisons and the police. Based on figures produced by the Justices' Clerks Society, there is good reason to believe that the provisions of Section 2, since the appearance of the person concerned every eight days was no longer necessary, have eliminated about one-third of the remand applications. That is a very considerable figure. I believe the criminal statistics for 1979 show that the number of remands in custody was something like 250,000. The figure which the Justices' Clerks Society have provided give reason to believe that under this provision in Section 2 we have eliminated perhaps 80,000—something like one-third—of those applications. To my knowledge, no one has yet worked out the average cost of taking a prisoner to court every eight days in terms of travel, police time, prison time and the rest. But the cost must be very considerable, and if it were only £10 every time, one is up to a figure of something like £1 million. In fact, it must be very much more expensive than £10 and therefore we are talking about a potential saving running into millions of pounds. That would obviously be a great gain if one could achieve it.
The problem is, can one arrange matters so that the remand system is altered without infringing the basic rights of the person who is being held in custody? Obviously no administrative saving should be preferred to, or allowed to take precedence over, the rights of the individual. The problem which arises here—and it is one which has been discussed over a number of years—is how one can safeguard the rights of the person remanded in custody and at the same time achieve this large gain in administrative expense.
There has been a great deal of discussion on this subject and in the statement which the Home Secretary made in June he made it clear that he was going to ask all interested bodies to advise him on how they believed this objective might be accomplished. I believe that it can be done. Something like 10 years ago in this House I had the temerity to propose that the period of remand by a magistrates' court in future be 21 days unless the person concerned objected and said that he wanted to come hack to the court in eight days. I also suggested in an amendment to a Criminal Justice Bill that was going through Parliament at that time that, if one set up such an arrangement with sufficient safeguards and ensured that the person concerned was legally represented and had been properly advised, and that he could not be detained for longer than eight days except with his express consent, one could achieve all the gains without any of the comparative disadvantages.
Unfortunately, everyone was against me. I believe that I managed to scrape up eight people in the Division 1081 Lobby when I took the amendment to a vote. It was mainly thrown out because it was very powerfully opposed by the noble and learned Lord, Lord Gardiner. He brought his great authority to bear and said that he thought my suggestion was altogether too dangerous. Since that time some proposal of this kind has gained support in all sorts of different directions. The Magistrates' Association, the Justices' Clerks Society and other bodies have come out in favour of some reform of this kind.
I want to use this opportunity to say to the Government that I certainly hope that they will, as Mr. Whitelaw foreshadowed, introduce this amending, permanent legislation at an early date so that it will supersede Section 2, and will give to the person remanded in custody a real safeguard that his basic rights are not going to be infringed. I hope that we are going to see notice of that legislation in the Queen's Speech when the new Session begins; I shall be very disappointed if it does not appear. I do not suppose that the noble Lord can possibly tell us that is going to be in the Queen's Speech, but he might find a form of words to indicate whether something of this kind will be included.
§ Lord Boston of Faversham
My Lords, before the noble Lord, Lord Foot, sits down, and although I hesitate to cross swords with him because I agree with him on so many legal matters, I did wonder, in his general approach to the order before your Lordships, whether his attention had been drawn to the remarks made by his honourable friend the Member for the Isle of Wight, Mr. Stephen Ross, in another place last night, when the order was debated there. Mr. Ross said that he bitterly opposed the renewal of this legislation; he opposed it when it was first introduced and he always felt that Section 1 was the only part of it which was necessary.
§ 3.40 p.m.
§ Lord Renton
My Lords, The noble Lord, Lord Foot, has made the most useful and constructive speech and I am sure it has commanded a lot of attention from your Lordships. May I say that I believe the Government are fully justified in asking for this Act of 1980 not to be repealed, for two main reasons: First, because, as has been said, the prison officers' dispute has not yet been resolved and it is better to be safe than sorry. But the second reason is one on which I should like to dwell for a few moments. It is that the difficulties of prison administration have been increasing steadily year after year for nearly 30 years. Even if the prison officers' dispute had not taken place, provisions of the kind included in the Act which is not to be repealed would in my opinion sooner or later have had to be introduced. The granting of an extra year for considering those matters and for making some of the provisions permanent, as the noble Lord, Lord Foot, has said, seems to me to be quite essential. There is an almost permanent dilemma with regard to the prison administration so long as crime continues 1082 to increase and the courts continue to feel that they must send people to prison.
Our prison system is mainly based, so far as numbers are concerned, upon the situation that prevailed round about 1950. There simply has not been the will on the part of Governments or of Parliaments to provide the rapidly increasing funds to enlarge the prison system. There has been so much competition for expenditure in other fields—in health, in education, in roads; in any kind of public expenditure you can think of—that the need to keep pace with growth in the prisons has necessarily had a poor priority. That is the situation which still prevails and I do not see any easy or probable way of its being overcome for some time.
That is why the difficulties within the prison system itself make it essential for the Government to be given yet another year to consider whether these provisions, brought in perhaps accidentally as a result of the prison officers' dispute, should not be made more permanent. I am sure that my noble friend Lord Belstead—and I warmly endorse the tribute paid to him by the noble Lord, Lord Boston—is fully justified in asking the House for an extension of these powers.
§ Lord Donaldson of Kingsbridge
My Lords, when, sitting next to the noble Lord, Lord Boston, I supported the emergency provisions on that Bench, the things which interested me chiefly were two or three provisions in this temporary Bill for which we had been pressing for years to become part of our permanent penal legislation. One of them has been discussed by the noble Lord, Lord Foot, and I agree with all that he said. The only point about that, in relation to this Bill, is that it is faulty as things stand and there is no limit under this Bill to the number of weeks that a man can be held on remand and there is no specific demand that he should give his waiver to his right to go every eight days. I was hoping that, by this time, we should have at least this provision put forward in some permanent way so that these additions could be made and we could discuss any of the further difficulties about civil liberties. I know that the noble and learned Lord, Lord Gardiner, and the Howard League are opposed to this and I would only say that the Inter-Parliamentary Penal Affairs Group has made the recommendation specifically; and we all hope (as does the noble Lord, Lord Foot) that it will be contained in the Queen's speech. If it is, we will support it from these Benches.
The second thing is Clauses 3 to 5 which were never used. They contained some powers which we think the Home Secretary should have anyway and not only in an emergency. They give him the right to release certain categories of prisoners in certain circumstances—those awaiting trial or serving the last six months of their sentences—and to prevent magistrates from committing people to prison for not paying fines. We believe that the second thing—after extensive discussion, because there are great difficulties about it—should probably become part of our legislation, as should, certainly, the first. So that my disappointment is that instead of getting down to the problems which have been well illustrated by the operation of the emergency powers, the Government are rather lazy in asking simply for extension. But they must have the extension. I hope that before we meet again on this 1083 subject there will be some serious proposals for adding to the existing legislation these very important items, one of which at least in Clause 2 has shown itself to work extremely well. We shall not oppose the order.
§ 3.48 p.m.
§ Baroness Trumpington
My Lords, I should like to support the Government in their wish to prolong this order. None of us who is in a position to send or not to send someone to prison does so or does not do so as a matter of convenience for the administration. It is a matter for the protection of the public or of the degree of seriousness of the crime. It is not an administrative convenience to send someone to prison or to remand in custody. Getting back to what the noble Lord, Lord Foot, has said, it has been my experience in Pentonville Prison that the workshops have suffered considerably due to the escort duties carried out by prison officers, which means there are not enough staff to man the prison workshop. This means that the workshops are closed and the prisoners remain in their cells. This has been given officially as one of the reasons for the closure of many workshops in prisons.
There are two types of prisoner to my mind (there may be others) on remand. There are those who wish to be on remand in custody because they know that their period of remand in custody will count toward their sentence and their eventual release when and if they are found guilty by the courts. There are others who may have served time on remand and, being found not guilty, are released; but that time can never be given back to them.
I wonder whether the Government will be able to give me an answer to the question of whether boards of visitors, many of whom are magistrates, could take on the duties within the prison walls of the eight-day appearance of a chap on remand; so that the administrative difficulties are put to a minimum and the innocent person does not stand in risk of remaining inside for many weeks or months before their case came up before the court. I have often known of cases of people being released on bail who had been on remand in custody. I wonder whether the Government would consider boards of visitors taking on this duty.
§ 3.50 p.m.
§ Lord Wells-Pestell
My Lords, I think that it would be fair to say that the solution to this particular problem relating to the overcrowding in our prisons depends entirely on having a policy to deal with delinquents. I am a little surprised to hear that this particular order may only be resolved if the pressure on our prisons can be released. I speak with something like 11 years' experience in the probation service—albeit a good many years ago—and 36 years as a magistrate sitting in magistrates' courts, quarter sessions and crown courts. I feel that the Government must look carefully into this matter as to whether or not there is a real alternative to prison.
What we are faced with at the present moment is a parole system out of which we created a virtue from a necessity. I go so far as to say—and I know I shall be contradicted—that not enough time was given to 1084 creating a parole system to meet the needs of individuals. The overriding claim was that we had to reduce the prison population and so the idea of parole was conceived and we made a virtue out of a necessity. My noble friend Lord Donaldson says that he hopes that there will be provision whereby it will be impossible to send people to prison for non-payment of fines. But they are not paying their fines now. I do not know how many millions of pounds in the Metropolitan area alone is not collected each year. To have a judicial system that imposes a fine, and when the fine is not paid nothing is done about it, is quite disastrous.
I do not want to take up time because your Lordships may feel, with some justification, that this is not really relevant to the order before the House, but I urge the Government to look carefully at alternatives to prison. I dislike intensely the Executive, the Home Secretary, having the right to say: "We will release this group of people regardless of what they have done, and we will release them six months earlier in order to reduce the strain on our prisons". Our magistrates and judges are not so uninformed, ill-informed and misinformed that they do not know what they are doing. They have before them probation and social reports related to the needs of the individual. I do not think that overcrowding can be dealt with by somebody in the Government saying, "We will reduce this and that". It is an interference in the judicial system which I do not altogether like.
We have to look at the alternatives. We know that community service orders have worked, and worked very well. We know that there are many other things that can be tried. What appals me—and the noble Lord the Minister will expect me to say this—is that the year before last the Home Office gave approval to the training of something like 400 probation officers who completed their training within the past few months. A hundred of them have been informed that there will be no work for them, after we have gone through the expense of training them. Surely it is not beyond the wit of the Home Office to say, "All right, we will introduce various alternatives and we can use these 100 probation officers". I do not know how much it costs to maintain a probation officer for one year, but I do know how much it costs to maintain somebody in prison.
All I want to do is ask the noble Lord—and it may be irrelevant so far as this order is concerned—whether his department will get down to the task of thinking of alternatives to prison? The Government should bear in mind that in the last analysis prison serves a very useful purpose so far as some individuals are concerned, because there may well be no other way of dealing with them.
§ 3.54 p.m.
§ Lord Harris of Greenwich
My Lords, if I may follow the noble Lord, Lord Wells-Pestell, in what has become a rather wide-ranging debate—and I make no complaint about that—on the criminal justice system, I do not think that we have a large number of opportunities to direct our attention to this particular series of issues. It is by happy accident that we find ourselves in a position to do so today. I speak entirely for myself and I support the order moved by the Parliamentary Under-Secretary, for two reasons: first, 1085 as the noble Lord pointed out, the industrial action taken by the Prison Officers' Association has only been suspended. In a situation of that kind it would be very remarkable were the Home Secretary of the day not to ask for renewal of the powers which are set out in the order. Secondly—and we cannot possibly ignore this—we are facing a most dangerous crisis in our prison system.
I am well aware of the fact that in the past few years that particular form of words has been used by people speaking on both sides of this House and on both sides of another place. But the fact is that the situation month by month and year by year is becoming more serious. It would be the height of folly not to have powers of this sort available to deal with a very serious situation. Let me explain what I mean by a crisis in the prison system. I have had the opportunity, both as a Minister and more recently, of visiting a number of our local prisons. Taking the point made by the noble Baroness a few moments ago about the position in Pentonville, it is right to say that the crisis situation which we face does not operate throughout every prison in this country—in fact that is not the position at all. In a number of prisons there is no serious overcrowding problem. The real difficulty faces us in the local prisons where people are serving short sentences, where there are fine defaulters of the kind referred to by the noble Lord, Lord Wells-Pestell, and where there are a very substantial number of remand prisoners.
The problem is that there is a risk of a breakdown in one of these local prisons of something absolutely basic such as the mains services or the sewerage system, which cannot cope with the sheer pressure of numbers of people who are having to be maintained in custody in those establishments. I am well aware of the fact that there are many who say: "In that situation it is the responsibility of the Government to build more prisons".
Unfortunately, it takes somewhere around 10 years to build a prison. First one designs it; then there have to be the prolonged local inquiries that take place in order to get local approval of the scheme. When people hear that a prison is about to be built they do not normally greet this news with unrelieved enthusiasm. There is parliamentary pressure on the Secretary of State of the day and then subsequently there is the building programme. Of course there is always a risk that there will be some financial crisis and a cutback in the capital expenditure of the Prison Department of the Home Office. The fact is that we cannot deal with a crisis situation in our local prisons on a short-term basis. Therefore I repeat that this is the character of the problem that we face at the moment, and it is right for us to recognise where it lies.
There are only two other points that I should like to make. The noble Lord, Lord Wells-Pestell, said that he thought it was the duty of the Home Office—and of course I agree with him—to look for alternatives to imprisonment. There has been no shortage of enthusiasm in the Home Office through Governments of different political persuasions to looking at alternatives to imprisonment. The Conservative Government of 1970–74 took the power to create community service. They launched six experimental schemes which proved their value. As a result of that, the Labour Govern- 1086 ment after 1974 extended community service to cover the whole of England and Wales. Undoubtedly that has had a dramatic effect in terms of turning people away from prison. In making some form of very rough calculation as to what would have happened last year if we had not had community service, it is possible that up to 10,000 additional people would have found their way into our grossly overcrowded prisons. That is an indication of the scale of community service and the value it has been as a means available to the magistrates' courts and to the Crown Courts; so I do not think there is a lack of interest or enthusiasm in looking for alternatives to imprisonment.
Again, there has been a great deal of parliamentary argument about getting out of prison some people who are mentally ill, who should be in regional secure units. There has been a fair amount of argument between the Home Office and the DHSS as to how quickly one can get such people out of the prison system altogether; but again that has public expenditure implications for the DHSS and also as regards getting trade union approval and the agreement of local communities to the creation of regional secure units.
The only other point I would make is the very important one made by the noble Lord, Lord Foot, and referred to also by the noble Baroness, Lady Trumpington. It is an important point and I hope that the Government will have the opportunity to look again at the question of remands in custody and the fact that at the present moment one has to produce people, for perfectly understandable reasons, as the noble Lord, Lord Foot, reminded us, at eight-day intervals. This has a devastating effect upon the régime in local prisons. The noble Baroness referred to Pentonville, where there had to be regular closure of workshops. That happens in many other Prison Department establishments throughout this country, making the régime in those establishments even more intolerable than it is in any event. Therefore it seems to me that the proposal made by the noble Baroness is quite right, though I can well imagine some of the objections that may be made, for example, to getting the magistrate members of boards of visitors looking at some of these remand cases in some judicial or quasi-judicial framework. I can understand the arguments which will be used against the proposal. It will be asked: will this be a court and, if so, are the public and the press to be admitted? But the fact is that she is quite right; the sheer pressure of numbers of those who appear week in and week out, in many cases with no apparent benefit to anybody, is having the most serious consequences on the prison system and the sooner we can move to some more satisfactory system, while at the same time safeguarding the rights of the criminal defendant, the better it will be for all of us.
My Lords, I have listened with great care to what my noble friend Lord Belstead has said, and also to what has been said by other speakers. Not for the first time, I found the contribution of the noble Lord, Lord Boston of Faversham, particularly arresting. He raised a fundamental constitutional point which I believe to be of the greatest importance, for the Act to which this order refers may be called "an Act of Parliament pending". In other words, 1087 the implementation of this Act depends solely upon the whim of the Executive. It hangs like the sword of Damocles over those directly involved in the implementation of the Act. By such parliamentary means, I believe that the Executive are using, not for the first time, a device which converts Parliament into nothing more than a rubber stamp. My noble friend might well suggest: "Some rubber stamp that talks back to one for over an hour!" However, it is a device which I believe should be used as rarely as possible, in emergency situations. This is the key—where is the emergency? The conditions have changed during the period of more than a year ago and I find this practice is unfortunate. I quite appreciate the reason for it, namely, that it is extremely convenient for an Executive to use Parliament in this way. Nevertheless, abuse of this device does worry me.
§ 4.5 p.m.
§ Lord Belstead
My Lords, the noble Lord, Lord Foot, said he had expected that this order would be taken formally. All I can say is that it ill behoves any Government spokesman to come to your Lordships' House and to expect any piece of business to be taken formally—for, as we have seen this afternoon, this order has led to an extremely important and interesting debate, with contributions being made by your Lordships from various parts of the House.
The noble Lord, Lord Boston, recalled the extremely difficult circumstances of October last year when the Opposition, and indeed your Lordships' House generally, facilitated the passage of the Act, the repeal of which for a further year would be postponed as a result of approving this order. The noble Lord said in essence, I think, that while the passing of the Act a year ago was justified then, he was less happy about the postponement of repeal at a time when the criminal justice system is not subject to disruption of a kind that occurred last winter. That view was also echoed in the final speech by my noble friend Lord Morris.
However, the position is that the order before the House does not actually bring any of the provisions of Part I of the Act into force at all. We are dealing only with a contingency provision because, as my noble friend Lord Renton said, it is better to be safe than sorry. My noble friend said that bearing in mind first of all that the industrial action which necessitated the bringing in of this legislation is still technically only suspended and not ended. There would need to be, if any of the provisions of Part I were to be brought into effect, an entirely separate order made under the terms of Section 8(2) if circumstances were to develop which made the activation of Part I appropriate. If I may say so with respect to my noble friend Lord Morris, this separate order would have to be separately approved not only by another place but also by your Lordships' House. The Government sincerely hope and trust that the activation of any of the provisions of Part I will not be needed, but my right honourable friend believes it would be premature at this stage to allow the ability to do so if necessary to be wholly removed. I am extremely grateful to those of your Lordships who, either enthusiastically or perhaps not so enthusiastically 1088 but with understanding, have felt that the order ought to be made.
Having said that, if the House will forgive me, I will not follow the noble Lord, Lord Wells-Pestell, down the road of debating alternatives to custody, enormously important though they are, as the noble Lord, Lord Harris, reminded us. Nor will I follow my noble friend Lord Renton down the road of the need for new prisons, although I am glad to say that we do have at last, even in these difficult days, a building programme for new prisons which will enable us to start, beginning in this financial year, six new prisons in the next three years.
However, I think I owe the House the very briefest explanation of the present stage of negotiations with the Prison Officers' Association, on which so much of what I am bringing before the House is based. Very briefly, consultation with governors and the Prison Officers' Association has shown that the original proposal which was brought up after the industrial action of the winter, that there should be a single common attendance system, lacked the necessary degree of flexibility when we look at the range of different establishments that there are in the prison service. It is now proposed that discussions should be directed towards producing a single common working agreement covering a variety of different shift patterns. But the Prison Officers' Association take the view that such a change requires the approval of their members.
I thought your Lordships might be interested to hear that tomorrow a delegate conference of the Prison Officers' Association is due to be held to decide whether further negotiations should be conducted on that basis. On the assumption that the outcome of tomorrow's conference is favourable, negotiations on the detail of such a working agreement can then proceed quickly. I understand that the POA will wish to seek the approval of their members to the final form of the agreement, and its implementation will need to be preceded by a period of local discussion and training. But I hope that this process will be completed with all possible speed.
Incidentally, considering the interest which has been taken in the order, I ought just to say that in the interim, between the ending of the industrial action of last winter, which caused such grievous disruption to the prison service, and today, the Prison Department of the Home Office has been seeking, and is continuing to seek, measures to improve industrial relations generally within the prison service. It has submitted proposals to the POA for revising the Whitley structure and, also, the department has made it clear that it wishes to discuss with the POA the possibility of a procedural agreement, with a view to improving consultative arrangements. It is hoped to put proposals to the Prison Officers' Association shortly, as a basis for discussion on that as well.
The noble Lord, Lord Foot, and, indeed, my noble friend Lady Trumpington and the noble Lord, Lord Donaldson, all referred to one part of the Act which I am asking should not be repealed, and that is Section 2. I think it is fair to say that all three said, in essence, that, provided the right arrangements are made, herein could lie very real advantages for the future. Again, very briefly, may I simply reply in this 1089 way: As the noble Lord, Lord Foot, reminded your Lordships, Section 2, as it is incorporated at the moment in this Act, is not a very satisfactory piece of drafting. It has relied upon a little guidance which was given by the Home Secretary to the courts, in order—of course, within the discretion of the courts—that the attention of the Judiciary could be drawn to some of the needs of Section 2.
The main point which my right honourable friend ventured to make to the courts was that he thought it highly desirable that defendants should be legally represented, if their remand hearing took place in their absence. He asked the courts to give the most serious consideration to the grant of legal aid on the first occasion when the defendant appeared before the court, if the court decided to remand the offender in custody. Experience of the working of Section 2, when the industrial action was on, suggested that it did work well and that the normal arrangements for producing remand prisoners before the courts every eight days might be relaxed.
It is a fact that on 18th June this year, in answer to a Parliamentary Question from my honourable friend Mr. Ivan Lawrence, the Member for Burton, the Home Secretary indicated that he intended to bring legislative proposals before the House at an early opportunity, to enable remand hearings in magistrates' courts to take place in the defendant's absence, subject to certain conditions being met. These conditions would be that the court should be satisfied that the defendant consented to further remands in absence and that he, or she, was legally represented.
That is the situation as it stands at the moment, and although, as the noble Lord, Lord Foot, rightly said, it would not be possible for me to anticipate what is in the gracious Speech—I think we must await a further move from my right honourable friend on this matter—I hope that the few facts connected with Section 2, of which I have reminded the House, may lead your Lordships to feel that perhaps my right honourable friend's expressed intention is along the right lines.
May I come to the specific question which my noble friend Lady Trumpington asked. My noble friend asked about the possibility of boards of visitors acting as alternative courts for remand hearings. As the noble Lord, Lord Harris, immediately saw, boards of visitors' proceedings in prisons could hardly be open to the public; and, at least, when a prisoner was remanded in absence under the emergency provisions, the court proceedings had to be open to public scrutiny.
Additionally, courts already have powers to remand a prisoner to an alternative court nearer to the prison in which the offender is detained. This power is largely used for dangerous prisoners, but could reduce the problems involved in escorting remand prisoners back and forth in ordinary times. I do not think that I would, or should, make any further comments on my noble friend's suggestion on this matter, because I have tried to indicate in my answer to the noble Lord, Lord Foot, the direction in which my right honourable friend's mind is working on this matter.
Finally, I return to a fundamental question which the noble Lord, Lord Boston, asked me. The noble Lord asked: How temporary is temporary? None of us can today foresee how future circumstances may develop. 1090 But, for the purpose of our proceedings in your Lordships' House this afternoon, I think it is sufficient to observe that the order before us postpones the repeal for 12 months and no longer. If there were any proposal 12 months hence to provide for further postponement of repeal, then that proposal would itself have to be embodied in a further order needing to be approved by this House and by another place. That is the effect of the order which I have brought before your Lordships' House this afternoon and to which I now, again, ask the agreement of your Lordships.
§ On Question, Motion agreed to.